Union of India v. Ganesh Government Contractors & Rural Works
2014-11-10
P.K.LOHRA
body2014
DigiLaw.ai
Judgment : Both these writ petitions are founded on identical facts and the question of law involved therein is common, therefore, these petitions are disposed of by this common order. Facts in brevity, as projected in S.B. Civil Writ Petition No.2016/2014, are narrated in chronological order as under:- At the threshold, a contract for work of handling of goods/parcels transshipment was awarded to the first respondent for a period of three years commencing from 14th October, 1984 and pursuant thereto an agreement was signed between the petitioners and the first respondent on th October, 1984 containing arbitration clause. Subsequently, another contract of same nature was awarded to the first respondent for a period of three years commencing from 16th May, 1990 and an agreement between the parties was executed for the same on 15th May, 1990 having arbitration clause. On completion of both the contracts, a dispute cropped up between the rival parties regarding payments, and therefore, first respondent for redressal of his grievances invoked arbitration clause and initiated the proceedings for appointment of arbitrator for both the contracts. By judicial intervention, subject-matter of dispute in both the contracts were referred to an arbitrator and Shri Lal Singh Ujjawal, retired Divisional Manager, North-Western Railway, Jodhpur was appointed as sole arbitrator. The arbitrator passed separate awards for both the contracts of even date i.e. st March, 2003. Being aggrieved by the arbitral awards, petitioners laid separate petitions under Section 34 of the Arbitration and Conciliation Act, 1996 (for short, hereinafter referred to as 'the Act of 1996') before the learned District Judge, Bikaner raising certain objections against the awards. Along with the petitions under Section 34 of the Act of 1996, petitioners also filed separate applications under Section 5 of the Limitation Act for condonation of delay. The learned District Judge, Bikaner, while relying on a decision of Hon'ble Apex Court, rejected both the petitions under Section 34 of the Act of 1996 by holding that in these proceedings, provisions of Section 5 of the Limitation Act are not applicable. Thus, both the petitions were thrown away solely on the ground of limitation. Feeling dismayed with the order of the learned District Judge, Bikaner, petitioners preferred two separate appeals before this Court under Section 37 of the Act of 1996 and this Court was pleased to decide both these appeals by a common order dated 16th February, 2005.
Thus, both the petitions were thrown away solely on the ground of limitation. Feeling dismayed with the order of the learned District Judge, Bikaner, petitioners preferred two separate appeals before this Court under Section 37 of the Act of 1996 and this Court was pleased to decide both these appeals by a common order dated 16th February, 2005. The Court held that petitions under Section 34 of the Act of 1996 are not time barred, and therefore, while allowing the appeals, matter was remanded back to the learned District Judge for deciding objections of the petitioners afresh on merits. The operative portion of the order reads as under:- The net result is that the impugned order cannot be sustained. The appeal is therefor allowed, the impugned order is set aside, and the matter is sent back to the learned trial Court, with a direction to decide the objections on merits, in accordance with the law, and most expeditiously. The parties are directed to appear before the learned trial Court on 11th March 2004, as prayed. After remand, the petitions under Section 34 of the Act of 1996 filed on behalf of the petitioners were considered de-novo on merits by the learned Additional District Judge No.2, Bikaner (for short, 'learned trial Court'). The learned trial Court after examining the objections on merits found that there is no substance in the objections and consequently by order dated 14th May, 2009 dismissed the petitions of the petitioners under Section 34 of the Act of 1996. It is apparent from the pleadings that after rejection of the petitions submitted by the petitioners under Section 34 of the Act of 1996, no endeavour was made at their behest to challenge the order of the learned trial Court, and therefore, by efflux of time order attained finality. According to version of the petitioners, after expiry of period of limitation from the date of order dated 14th May, 2009, within reasonable period, the requisite amount was paid to the contractor with interest in terms of arbitral awards. The requisite amount was paid in the month of December, 2009. The respondent-contractor feeling dis-satisfied with the action of the petitioners in making compliance of the arbitral award initiated execution proceedings in the year 2010 for claiming interest on the total amount awarded by the arbitrator @12% from the date of the award.
The requisite amount was paid in the month of December, 2009. The respondent-contractor feeling dis-satisfied with the action of the petitioners in making compliance of the arbitral award initiated execution proceedings in the year 2010 for claiming interest on the total amount awarded by the arbitrator @12% from the date of the award. The prayer made in the execution petition on behalf of the respondent-contractor was resisted by the petitioners and a reply was submitted, wherein it is averred that the requisite amount in terms of arbitral award with interest has been paid to the petitioner and as such it is not entitled for interest @12% on the aforesaid amount from the date of award. The learned District Judge, Bikaner (for short, 'learned executing Court') after hearing the rival parties passed the impugned order dated 9th November, 2013, whereby the petitioners are directed to pay interest to the respondent-contractor @12% from the date of award on the entire claim for which respondent was declared entitled by the arbitrator. The order of learned executing Court is under challenge in the writ petition. Learned counsel for the petitioners, Mr. Jagdish Vyas, has vehemently argued that order impugned is dehors the arbitral award inasmuch as for certain claims, the arbitrator has not awarded any interest to the respondent, yet the learned executing Court has allowed interest @12%, which is an error apparent on the face of record, and therefore, impugned order cannot be sustained. Mr. Vyas, learned counsel for the petitioners, would contend that an arbitral award on attaining finality is executable as a decree of a civil court, and therefore, the powers of the executing Court, in this regard, are akin to a civil Court to grant relief to the decree-holder in terms of the decree and not beyond the same. Elaborating his submissions, in this behalf, learned counsel has submitted that the learned executing Court has exceeded its jurisdiction by allowing interest @12% to the respondent, which was beyond the scope of the award itself and as such the award impugned merits annulment in exercise of certiorari jurisdiction of this Court.
Elaborating his submissions, in this behalf, learned counsel has submitted that the learned executing Court has exceeded its jurisdiction by allowing interest @12% to the respondent, which was beyond the scope of the award itself and as such the award impugned merits annulment in exercise of certiorari jurisdiction of this Court. Learned counsel for the petitioners has submitted that the objections laid by the petitioners under Section 34 of the Act of 1996 were rejected on 14th May, 2009 and thereafter within a reasonable period cheques of the requisite amount were deposited in the Court on 25th September, 2009, and therefore, interest claimed by the respondent-contractor was not at all admissible in terms of Section 36 of the Act of 1996, which is a very vital issue, which was not considered by the learned Court below, while passing the impugned order. Lastly, learned counsel has urged that in terms of Section 31(7)(a) of the Act of 1996 interest which was disallowed on certain claims to the respondent-contractor by the arbitral Tribunal was not at all admissible and yet the learned Court below has allowed the same contrary to the mandate of law, which is serious jurisdictional error warranting interference by this Court in exercise of supervisory jurisdiction of this Court enshrined under Article 227 of the Constitution. Learned counsel for the petitioners in support of his contentions has placed reliance on a decision of Hon'ble Supreme Court in case of State of Haryana & Ors. V/s. M/s. S.L. Arora & Company [ AIR 2010 SC 1511 ], while laying stress on paras 18.2 and 18.4 of the verdict. The Court in para 18 has held as under:- 18. As there is some confusion as to what section 31(7) authorizes and what it does not authorize, we will attempt to set out the legal position regarding award of interest by the arbitral tribunals, as emerging from section 31(7) of the Act. 18.1. The provision for interest in the Act is contained in section 31 dealing with the form and contents of arbitral award. It employs two significant expressions "where the arbitral award is for payment of money" and "the arbitral tribunal may include in the sum for which the award is made, interest..... on the whole or any part of the money".
The provision for interest in the Act is contained in section 31 dealing with the form and contents of arbitral award. It employs two significant expressions "where the arbitral award is for payment of money" and "the arbitral tribunal may include in the sum for which the award is made, interest..... on the whole or any part of the money". The legislature has thus made it clear that award of interest under sub-section (7) of section 31 (and award of costs under sub-section (8) of Section 31 of the Act) are ancillary matters to be provided for by the award, when the arbitral tribunal decides the substantive disputes between the parties. The words `sum for which the award is made' and `a sum directed to be paid by an arbitral award' contextually refer to award on the substantive claims and not ancillary or consequential directions relating to interest and costs. 18.2. The authority of the arbitral tribunals to award interest under section 31(7)(a) is subject to the contract between the parties and the contract will prevail over the provisions of section 31(7)(a) of the Act. Where the contract between the parties contains a provision relating to, or regulating or prohibiting interest, the entitlement of a party to the contract to interest for the period between the date on which the cause of action arose and the date on which the award is made, will be governed by the provisions of the contract, and the arbitral tribunal will have to grant or refuse interest, strictly in accordance with the contract. The arbitral tribunals cannot ignore the contract between the parties, while dealing with or awarding pre-award interest. Where the contract does not prohibit award of interest, and where the arbitral award is for payment of money, the arbitral tribunal can award interest in accordance with Section 31(7) (a) of the Act, subject to any term regarding interest in the contract. 18.3. If the contract provides for compounding of interest, or provides for payment of interest upon interest, or provides for interest payable on the principal upto any specified stage/s being treated as part of principal for the purpose of charging of interest during any subsequent period, the arbitral tribunal will have to give effect to it.
18.3. If the contract provides for compounding of interest, or provides for payment of interest upon interest, or provides for interest payable on the principal upto any specified stage/s being treated as part of principal for the purpose of charging of interest during any subsequent period, the arbitral tribunal will have to give effect to it. But when the award is challenged under Section 34 of the Act, if the court finds that the interest awarded is in conflict with, or violating the public policy of India, it may set aside that part of the award. 18.4. Where an arbitral tribunal awards interest under section 31(7)(a) of the Act, it is given discretion in three areas to do justice between the parties. First is in regard to rate of interest. The Tribunal can award interest at such rate as it deems reasonable. The second is with reference to the amount on which the interest is to be awarded. Interest may be awarded on the whole or any part of the amount awarded. The third is with reference to the period for which the interest is to be awarded. Interest may be awarded for the whole or any part of the period between the date on which cause of action arose and the date on which the award is made. 18.5. The Act does away with the distinction and differentiation among the four interest bearing periods, that is, pre-reference period, pendente lite period, post-award period and post-decree period. Though a dividing line has been maintained between pre-award and post-award periods, the interest bearing period can now be a single continuous period the outer limits being the date on which the cause of action arose and the date of payment, subject however to the discretion of the arbitral tribunal to restrict the interest to such period as it deems fit. 18.6. Clause (b) of Section 31(7) is intended to ensure prompt payment by the award-debtor once the award is made. The said clause provides that the "sum directed to be paid by an arbitral award" shall carry interest at the rate of 18% per annum from the date of award to the date of payment if the award does not provide otherwise in regard to the interest from the date of the award.
The said clause provides that the "sum directed to be paid by an arbitral award" shall carry interest at the rate of 18% per annum from the date of award to the date of payment if the award does not provide otherwise in regard to the interest from the date of the award. This makes it clear that if the award grants interest at a specified rate up to the date of payment, or specifies the rate of interest payable from the date of award till date of payment, or if the award specifically refused interest, clause (b) of Section 31 will not come into play. But if the award is silent in regard to the interest from the date of award, or does not specify the rate of interest from the date of award, then the party in whose favour an award for money has been made, will be entitled to interest at 18% per annum from the date of award. He may claim the said amount in execution even though there is no reference to any post award interest in the award. Even if the pre-award interest is at much lower rate, if the award is silent in regard to post-award interest, the claimant will be entitled to post-award interest at the higher rate of 18% per annum. The higher rate of interest is provided in clause (b) with the deliberate intent of discouraging award-debtors from adopting dilatory tactics and to persuade them to comply with the award. On the other hand, learned counsel for the respondent-contractor has urged that the impugned order passed by the learned executing Court is in consonance and conformity with the provisions of Section 31(7)(b) of the Act of 1996, and therefore, no interference with the same is called for in exercise of certiorari jurisdiction of this Court. Learned counsel, Mr. Ladrecha, has submitted that even if for certain claims, the arbitral Tribunal has not awarded interest, the respondent is entitled for interest post arbitral award by virtue of clause (b) of Section Section 31(7) of the Act of 1996 and the learned executing Court has passed the impugned order by relying on the said clause, which is a just decision warranting no interference in exercise of supervisory jurisdiction of this Court. Elaborating his submissions, in this behalf, Mr.
Elaborating his submissions, in this behalf, Mr. Ladrecha would contend that interest envisaged under Section 31(7)(a) of the Act of 1996 refers to interest on the amount awarded anterior to the arbitral award, whereas clause (b) of Section 31(7) deals with interest on the amount awarded by the arbitral Tribunal posterior to the award and for which grant of interest on the entire award @18% per annum is mandated and by the impugned order the learned executing Court has awarded interest @12% only, which cannot be faulted so as to make subject matter of judicial scrutiny. In support of his contentions, Mr. Ladrecha has also placed reliance on paras 16, 17 as well as 18.4 and 18.6 of the verdict of Hon'ble Supreme Court in State of Haryana & Ors. (supra). Paras 16 and 17 read as under:- 16. Some Arbitral Tribunals have misconstrued clause (b) of section 31(7) of the Act and assumed that the said provision requires the rate of post-award interest in all arbitral awards should be 18% per annum, and that they do not have any discretion in regard to post-award interest. Some have misconstrued it further to infer the rate of interest mentioned therein is an indication that invariably the rate of interest in arbitrations, either pre-award or post-award, should be 18% per annum. Both these assumptions are baseless and erroneous. If that was the legislative intention, there would have been no need for vesting discretion in Arbitral Tribunals, in the matter of interest, under section 31(7)(a). The principles relating to award of interest, in general, are not different for courts and arbitral tribunals, except to the extent indicated in section 31(7) of the Act and CPC. A comparatively high rate of post-award interest is provided in section 31(7)(b) of the Act, not because 18% is the normal rate of interest to be awarded in arbitrations, but purely as a deterrent to award-debtors from avoiding payment or using delaying tactics. In fact a provision similar to section 31(7)(b) of the Act, if provided in section 34 of Code of Civil Procedure, will considerably reduce the travails of plaintiffs in executing their decrees in civil cases. Be that as it may. 17. The difference between clauses (a) and (b) of section 31(7) of the Act may conveniently be noted at this stage.
Be that as it may. 17. The difference between clauses (a) and (b) of section 31(7) of the Act may conveniently be noted at this stage. They are: (i) Clause (a) relates to pre-award period and clause (b) relates to post-award period. The contract binds and prevails in regard to interest during the pre-award period. The contract has no application in regard to interest during the post-award period. (ii) Clause (a) gives discretion to the Arbitral Tribunal in regard to the rate, the period, the quantum (principal which is to be subjected to interest) when awarding interest. But such discretion is always subject to the contract between the parties. Clause (b) also gives discretion to the Arbitral Tribunal to award interest for the post-award period but that discretion is not subject to any contract; and if that discretion is not exercised by the arbitral Tribunal, then the statute steps in and mandates payment of interest, at the specified rate of 18% per annum for the post- award period. (iii) While clause (a) gives the parties an option to contract out of interest, no such option is available in regard to the post-award period. In a nutshell, in regard to pre-award period, interest has to be awarded as specified in the contract and in the absence of contract as per discretion of the Arbitral Tribunal. On the other hand, in regard to the post-award period, interest is payable as per the discretion of the Arbitral Tribunal and in the absence of exercise of such discretion, at a mandatory statutory rate of 18% per annum. Mr. Ladrecha has also placed reliance on a yet another decision of Hon'ble Apex Court in case of Indian Hume Pipe Co. Ltd. V/s. State of Rajasthan, reported in 2010 CDR 36 (SC). In this verdict, the Apex Court has reiterated the principles laid down in case of State of Haryana (supra). Mr. Ladrecha has contended that after passing of the arbitral award, the protracted judicial proceedings at the behest of the petitioners has delayed the payment of requisite amount for more than six years, therefore, entitlement of the respondent for interest in terms of Section 31(7) of the Act of 1996 is unquestionable and as such the interest awarded by the learned executing Court cannot be categorized as infirm or without jurisdiction.
Countering the argument of the learned counsel for the petitioners that the learned executing Court has travelled beyond the terms of the award, Mr. Ladrecha would contend that post arbitral award interest is a right of the respondent contractor, which emanates from the mandatory provision of law and same cannot be construed as beyond the scope of the arbitral award. I have heard learned counsel for the parties and perused the impugned orders. In both these cases, the crucial question, which has cropped up for determination, can be fragmented in two parts, namely, (i) powers of the executing Court in determining the claim of future interest on the arbitral award and (ii) admissibility of interest posterior to the arbitral award within the four corners of Section 31(7) of the Act of 1996. With a view to examine the powers of the executing Court, it has become imperative to dilate on pivotal issue namely question to be determined by the Court executing decree under Section 47 of the Code of Civil Procedure, 1908 (for short, 'CPC'). Section 47 CPC mandates that while executing a decree, an executing Court cannot go beyond the terms of the decree. Hon'ble Supreme Court in case of C.F. Angadi V/s. Y.S. Hirannayya [ (1972) 1 SCC 191 ] has held that a Court executing a decree cannot modify or vary the terms of the decree. The Court in para 10 has held as under:- 10. A Court executing the decree shall execute it as it stands. It cannot modify or vary the terms of the decree. No execution can be taken to that general principle. But the execution court has the right to construe a decree in the light of the applicable provisions of law and if in this case on a construction of the decree in the light of the applicable provision of law, it found that the deposit made by the respondent on January 2, 1960, was according to law a deposit in compliance with the terms of the decree, then the execution Court was not varying the terms of the decree but executing the decree as it stood after considering the effect of the deposit in the light of the relevant law. In case of State of Punjab & Anr. V/s. Buta Singh [1995 Supp.
In case of State of Punjab & Anr. V/s. Buta Singh [1995 Supp. (3) SCC 684], while reiterating the same principle, the Apex Court in para 3 has held as under:- 3. It is obvious that the executing court had no jurisdiction to direct the recovery of any amount which was not granted by the decree under execution since the decree was for a mere declaration. The order of the executing court being without jurisdiction, it was the duty of the High Court to have corrected that error of jurisdiction. However, the High Court has failed to do so. In case of Rajasthan Financial Corporation V/s. Man Industrial Corporation Ltd. [ (2003) 7 SCC 522 ], while reiterating the principle that executing Court cannot go beyond the decree, the Apex Court held in para 18 as under:-18. We have considered the rival submissions. There can be no dispute to the proposition that the executing Court cannot go beyond the decree. There can be no dispute that the executing Court must take the decree according to its tenor. Also as has been set out in Greater Cochin Development Authority case when a decree is in terms of an award/document then the terms of that document have to be looked at. In this case the decree is in terms of the compromise deed. The decree does not provide that the compromise deed or any of its terms have been varied. To be remembered, that the decree is passed under Order 23 Rule 3 Civil Procedure Code. Under this provision normally the Court passes the decree in terms of the compromise. Of course, the Court can make a change. However, if the Court was making a change it would have had to record why it was making the change and what change it was making. It could not then provide that the decree was in terms of the compromise. If the Court was not passing the decree in terms of the compromise then this opening portion of the decree could not have been there. The subsequent portion is mere classificatory in nature as to which of the options was to be exercised. This does not govern or detract from the main terms of the decree which is a decree in terms of the compromise.
The subsequent portion is mere classificatory in nature as to which of the options was to be exercised. This does not govern or detract from the main terms of the decree which is a decree in terms of the compromise. Clauses 2 and 7 of the compromise deed make it very clear that the appellants were entitled to charge interest on half yearly basis. We see no substance in the submission that the "half yearly rests" were to apply only if the rate of interest was to be decided by the appellants. These words clearly applied to both the options. In the classificatory portion the words "on half yearly basis" have not been mentioned because the portion is only clarifying how interest was to be calculated. This portion thus does not detract from the fact that the decree is in terms of the compromise deed. Merely because some other minor changes, which appear to be inadvertent changes, have crept in do not also detract from the fact that the decree is in terms of the compromise deed. We also do not find any uncertainty in the decree. In case of J & K Bank Ltd. & Ors. V/s. Jagdish C. Gupta [(2004) 10 SCC 568], three Judges Bench of Hon'ble Supreme Court, while dilating on the powers of the executing Court under Section 47 CPC, reiterated the same principle that executing Court cannot go beyond the decree and held in para 2 as under:- 2. The short question involved in the case is whether the executing court could go beyond the decree by directing that the respondent be promoted to the post of Chief Manager. It is no more res integra that the executing court has no jurisdiction to go behind the decree. It is not disputed that the decree did not contain any direction to promote the respondent to the post of chief Manager. Under such circumstances, we are of the view that the executing court as well as the High Court fell in error in issuing directions in execution case that the respondent be promoted to the post of Chief Manager. The order under challenge, therefore, deserves to be set aside. We order accordingly. The appeal is allowed. There shall be no order as to costs. Thus, the legal position remains no more res-integra that executing Court cannot go beyond the terms of the decree.
The order under challenge, therefore, deserves to be set aside. We order accordingly. The appeal is allowed. There shall be no order as to costs. Thus, the legal position remains no more res-integra that executing Court cannot go beyond the terms of the decree. So far as the present case is concerned, awarding interest post arbitral award for which the arbitrator has not awarded interest on a particular claim, I am afraid, it is difficult to presume that the arbitrator has disallowed future interest. The recitals contained in the arbitral awards, nowhere indicate that arbitrator has declined future interest on the claim allowed to the respondent-contractor. It is only interest pendente lite which is disallowed to the respondent-contractor in respect of some of the claims. Therefore, the intention of the arbitrator was to disallow interest on the claim amount from the date of accrual of cause of action up-till passing of the award and not for the future interest. In such a situation the irresistible conclusion of this Court is that plea canvassed by the learned counsel for the petitioners rhetorically that executing Court has awarded future interest to the respondent-contractor beyond the terms of the decree by transgressing its jurisdiction cannot be sustained. There remains no quarrel that Section 36 of the Act of 1996 clearly envisages that after attaining finality an arbitral award shall be enforced under CPC, in the same manner as if it were a decree of the Court. In the instant case, both the arbitral awards attained finality on rejection of the petitions under Section 34 of the Act of 1996 laid by the petitioners on 14th May, 2009. The sole arbitrator in both the awards bifurcated claims of the respondent-contractor in ten and six parts respectively. While passing the award in both the cases, the arbitrator has awarded interest @8% per annum for certain claims and pertaining to some of the claims, no interest was allowed to the respondent-contractor. Item-wise summary of both the awards indicating amount claimed, amount awarded/amount not awarded and the interest awarded in both the petitions are reproduced as under:- S.B. Civil Writ Petition No.2016/2014 Item No. Item-wise award Claim Amount (Rs.) Award Amount (Rs.) Interest 1. Claim on account of imposting additional fines for discriminative special condition. 3,05, 031.00 2,00,000.00 No interest allowed. 2.
Item-wise summary of both the awards indicating amount claimed, amount awarded/amount not awarded and the interest awarded in both the petitions are reproduced as under:- S.B. Civil Writ Petition No.2016/2014 Item No. Item-wise award Claim Amount (Rs.) Award Amount (Rs.) Interest 1. Claim on account of imposting additional fines for discriminative special condition. 3,05, 031.00 2,00,000.00 No interest allowed. 2. Claim on account of wrongly deducted and wrongly withheld due payments from the bills against Item “BCM” (8 Wheeled coal covered wagons B.G. 7,70,384.00 3,85,000.00 8% interest allowed. 3. Claim on account of wrong interpretation and wrong application on B.G., “BOX” 8 wheeler open coal wagons. 1,42,309.00 NIL No interest allowed. 4. Claim on account of services done about clearance of yard and goodshed at DEE (TY) and DLT 5,00,000.00 NIL No interest allowed. 5. Claim for refund of cost of Labour 46,406.00 31500.00 8% interest allowed. 6. Claim for unpaid regular Bills. 1,92,415.00 1,13,000.00 8% interest allowed. 7. Refund for wrongful and unjustified demurrage charges recovered. 3,50,956.00 2,20,000.00 No interest allowed. 8. Claim for settlement of rates for item No.8 of the SOP 96,000.00 26000.00 8% interest allowed. Item No. Item-wise award Claim Amount (Rs.) Award Amount (Rs.) Interest 9. Claim for wrong forfeiture of security deposit amount. 25,000.00 NIL No interest allowed. 10. Claim for compensatory damages for breach of contract under different head. 26,25,000.00 55,000.00 No interest allowed. TOTAL 50,53,582.00 10,20,500.00 S.B. Civil Writ Petition No.2284/2014 Claim No. Particulars Amount Claimed Amount Awarded Interest 1. The Claim on account of wrongful recovery & Unjustified withholding of dues. 1,53,534/- 1,21,000/- 8% interest allowed. 2. The claim on account of non-settlement of rates and remuneration for handling of full load wagons of Iron commodities for the period 14.10.84 to 31.03.88. 3,60,000/- 58,400/- 8% interest allowed. 3. The claim on account of non-settlement of rates and remuneration's for the services for sweeping of Rly. Yard, goods shed area and disposal of refuse. For the period 15.04.1986 to 31.03.1988. 3,52,500/- 1,92,000/- 8% interest allowed. 4 The claim on account of unjustified recovery of demurrage charges for the period Jan., 1986 to March, 1988. 1,56,000/- 60,000/- No interest allowed. Claim No. Particulars Amount Claimed Amount Awarded Interest 5. The claim on account of compensatory damages for nonpayment of legitimate dues for more than 12 years and breach of contract. 15,00,000/- 1,00,000/- No interest allowed. 6.
4 The claim on account of unjustified recovery of demurrage charges for the period Jan., 1986 to March, 1988. 1,56,000/- 60,000/- No interest allowed. Claim No. Particulars Amount Claimed Amount Awarded Interest 5. The claim on account of compensatory damages for nonpayment of legitimate dues for more than 12 years and breach of contract. 15,00,000/- 1,00,000/- No interest allowed. 6. The claim for the cost of litigation in the Courts. 25,000/- 10,000/- No interest allowed. Total 25,47,034/- (Twentyfive lakhs, fourtyseven thousand, thirtyfour only) 5,41,400/- (Five lakhs, Fourtyone thousand, four hundred only) 8% interest on Rs.3,71,400/- (Three Lakhs, seventyone thousand, four hundred only) Rs.1,70,000/- (One lakh seventy thousand only) to be paid without interest. In S.B. Civil Writ Petition No.2016/2014, the arbitrator has not allowed interest on the amount awarded to the respondent-contractor for claim Nos.1, 7 and 10 and obviously there was no question of awarding interest on claim Nos.3, 4 and 9, which were rejected by the sole arbitrator. Vis-a-vis arbitral award in S.B. Civil Writ Petition No.2284/2014 arbitrator allowed interest @8% on the amount awarded in relation to claim Nos.1 & 2 only and for the rest of the claims i.e. for claim Nos. 3 to 6 though amount has been awarded, but no interest has been allowed to the respondent-contractor. For the claims wherein though certain amount is allowed by the arbitrator and interest is not allowed, it is obvious that the respondent-contractor is not entitled for interest on the amount awarded anterior to the arbitral award and such a claim of the contractor is per se Adjudication of claim favourable to the respondent is clear affirmation about its legitimacy, and therefore, retention of this amount by the petitioners was unjust may be due to protracted judicial proceedings, and therefore, by allowing interest to the respondent on the entire amount in both the execution petitions from the date of award up-till payment is made, the executing Court has not committed any jurisdictional error. In common parlance, in a contract party responsible for breach of contract is obliged to pay damages under Section 73 of the Indian Contract Act, 1872 to the sufferer contracting party. Payment of interest in the form of damages in case of breach of contract is also recognized by law Courts under Section 73 of the Contract Act.
In common parlance, in a contract party responsible for breach of contract is obliged to pay damages under Section 73 of the Indian Contract Act, 1872 to the sufferer contracting party. Payment of interest in the form of damages in case of breach of contract is also recognized by law Courts under Section 73 of the Contract Act. The dispute now remains only with respect to the future interest or interest post arbitral award, which is precisely allowed to the respondent-contractor by the executing Court in the impugned order to examine the same within the four corners of the Act of 1996. The legal position is no more res integra that in case of arbitral award, provisions of Section 34 CPC as such are not applicable logically for the reason that there is a separate and distinct provision for awarding of interest in relation to arbitral award under Section 31(7) of the Act of 1996. Moreover, Section 34 CPC refers to a Court which does not include arbitral Tribunal. My this view if fully fortified from a decision of Hon'ble Apex Court in case of Bhagwati Oxygen Ltd. V/s. Hindustan Copper Ltd. [ (2005) 6 SCC 462 ]. In this verdict, while dilating on true purport of word 'Court' as envisaged under Section 34 CPC, the Court in para 37 held as under:-37. Now Section 34 of the Code of Civil Procedure has no application to arbitration proceedings since the arbitrator cannot be said to be a “court” within the meaning of the Code. But an arbitrator has power and jurisdiction to grant interest for all the three stages provided the rate of interest is reasonable. Well it is true that arbitral Tribunal is not a Court within the meaning of Section 34 CPC, but the decision in Bhagwati Oxygen Ltd. (supra) duly recognizes the powers of the arbitrator to award interest, which includes post arbitral award interest. As per scheme of the Act of 1996, an arbitrator is competent to award interest for the four stages. The Hon'ble Apex Court in case of T.P. George V/s. State of Kerala & Anr.
As per scheme of the Act of 1996, an arbitrator is competent to award interest for the four stages. The Hon'ble Apex Court in case of T.P. George V/s. State of Kerala & Anr. [ (2001) 2 SCC 758 ], while relying on its earlier decision duly recognized four stages of grant of interest while emphasizing that award of interest ought to be granted in all cases when there is a decree of money unless there are strong reasons to decline the same. The Court in para 10 has held as under:- 10. The next question is whether the High Court was right in setting aside the award of the interest from the date of the award. This Court has held in the case of Jagdish Rai and Bros. v. Union of India that the award of interest ought to be granted in all cases when there is a decree of money unless there are strong reasons to decline the same. In the case of Jagdish Rai & Bros. v. Union of India this Court has held that there are four stages of grant of interest, viz., (1) from the stage of accrual of cause of action till filing of the arbitration proceedings, (2) during pendency of the proceedings before the arbitrator, (3) furture interest arising between date of award and date of the decree, and (4) interest arising from date of decree till realisation of the award. The power of Court to grant interest from date of decree is not in doubt. In the case of Hindustan Construction Co. Ltd. v. State of J & K this Court has held that the arbitrator is competent to award interest from the date of the award. This Court has held in the case of Secy., Irrigation Deptt., Govt. of Orissa v. G.C. Roy that the arbitrator has power to grant interest pendente lite. Recently in the case of Executive Engineer, Dhekanal Minor Irrigation Division v. N.C. Budharaj this Court has held that an arbitrator can award interest for the pre-reference period. Thus as per law laid down by this Court interest can be awarded at all four stages. The reasoning given by the High Court that interest cannot be awarded by the arbitrator is thus fallacious and cannot be sustained. In our view the direction to pay interest from the date of award, cannot be faulted.
Thus as per law laid down by this Court interest can be awarded at all four stages. The reasoning given by the High Court that interest cannot be awarded by the arbitrator is thus fallacious and cannot be sustained. In our view the direction to pay interest from the date of award, cannot be faulted. The impugned judgment to the extent that it disallows the interest from the date of the award, is set aside. It is trite that arbitral Tribunal is not akin to a Court within the meaning of section 34 CPC, but then that itself cannot circumscribe the powers of arbitrator to allow post award interest. If the arbitral award is silent for post award interest, the provisions contained under Section 31(7) (b)can be invoked to award future interest by applying analogy under Section 34 CPC. As a matter of fact, Section 31(7)(b) of the Act of 1996 mandates grant of future interest @18% per annum unless the award otherwise directs. This view finds support from the decisions of Hon’ble Apex Court in State of Haryana & Ors. as well as Indian Hume Pipe Co. Ltd. (supra). Section 31(7) of the Act of 1996 with emphasis on clause (b) reads as under:- 31(7)(a). Unless otherwise agreed by the parties, where and in so far as an arbitral award is for the payment of money, the arbitral Tribunal may include in the sum for which the award is made interest, as such rate it deems reasonable, on the whole or any part of the money, for the whole or any part of the period between the date on which the cause of action arose and the date on which the award is made. 31(7)(b). A sum directed to be paid by an arbitral award shall, unless the award otherwise directs, carry interest at the rate of eighteen per centum per annum from the date of the award to the date of payment. Therefore, by allowing post award interest to the respondent-contractor for entire determined claim in both the awards, the learned executing Court has not committed any manifest error of law warranting interference in exercise of supervisory jurisdiction of this Court under Article 227 of the Constitution. In fact, the learned executing Court has passed impugned orders in both the petitions while construing mandate of law by granting interest at a moderate rate i.e. 12% per annum.
In fact, the learned executing Court has passed impugned orders in both the petitions while construing mandate of law by granting interest at a moderate rate i.e. 12% per annum. Supervisory jurisdiction of this Court enshrined under Article 227 of the Constitution is not akin to appellate jurisdiction and as such it is to be exercised with utmost care and circumspection. It is not permissible to upset a decision of inferior Court/Tribunal, while exercising its jurisdiction when two views are possible or even if decision is erroneous, because concern of the Court is to examine decision making process and not the decision itself. Thus, viewed from any angle, I have not been able to find any error much less an error apparent on the face of record in impugned orders, nor it is a case whereby learned executing Court has transgressed its jurisdiction while passing the impugned orders. The impugned orders, in my considered opinion, have not occasioned failure of justice or perpetrated miscarriage of justice in any manner requiring interference. Resultantly, both the writ petitions are bereft of any merit and accordingly same are dismissed. Costs are made easy.