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2017 DIGILAW 347 (RAJ)

Omprakash Hanuman Sahai Contractors Through Shri Omprakash S/o Shri Shyam Lal Ji Sharma v. State of Rajasthan Through, The Collector

2017-01-31

VEERENDR SINGH SIRADHANA

body2017
JUDGMENT : Veerendr Singh Siradhana, J. 1. Aggrieved of the order dated 3rd November, 1999, made by the District and Sessions Judge, Jaipur City, Jaipur, in Arbitration Case No. 117/1997; the claimant/appellant/decree-holder has instituted the instant misc. appeal, with a prayer to restore the award dated 21st February, 1997, along with Corrigendum, made by the Arbitrator. 2. Briefly, the essential skeletal material facts necessary for appreciation of the controversy are that the M/s. Omprakash Hanuman Sahai Contractors (appellant/decree-holder), was awarded the work of construction of Road from Padsoli-Harsoli Gagardu-Rehalana-Dhandholi. An agreement No. 94 of 1987- 1998, was executed between the parties for an amount of Rs.8,29,884.05, with the stipulated date of commencement and completion being 17th November, 1987 and 16th February, 1989. The work was, in fact, completed on 30th November, 1989. 3. Owing to certain disputes post execution of the work, the matter was referred to Arbitrator as per Clause 23 of the Agreement, who made the award dated 21st February, 1997. The District and Sessions Judge, Jaipur City, Jaipur, vide impugned order and decree interfered with the award only to the extent of rate of interest; of which the appellant/decree-holder is aggrieved of. 4. Mr. S.K. Damani, representing the appellant, submits that the Arbitrator allowed interest on Rs.2,02,456/- (corrected total Rs.2,04,531/-), @ of 18% p.a. from the date of award i.e. 21st February, 1997, till actual date of payment; but the District and Sessions Judge, Jaipur City, Jaipur, reduced the rate of interest from 18% p.a. to 9% p.a., contrary to law. 5. It is further urged that similar interference was made by the District and Sessions Judge, Jaipur City, Jaipur, while reducing the rate of interest on the amount of Rs.1,48,750/-, for the pendente lite period from 9% p.a. to 6% p.a., which cannot be sustained, being contrary to law as well as opinion of the Supreme Court and of this Court as well. 6. He has relied upon the opinion of this Court in the case of Alim & Co. v. State of Rajasthan:1998 (Suppl.) Arb.L.R.67, wherein a Co-ordinate Bench of this Court held that the Court can modify or correct the award only under the circumstances as contemplated under Section 15(a), (b) and (c) of the Arbitration Act, 1940. 6. He has relied upon the opinion of this Court in the case of Alim & Co. v. State of Rajasthan:1998 (Suppl.) Arb.L.R.67, wherein a Co-ordinate Bench of this Court held that the Court can modify or correct the award only under the circumstances as contemplated under Section 15(a), (b) and (c) of the Arbitration Act, 1940. A reference has also been made to the opinion of the Supreme Court in the case of State of Orissa v. B.N Agarwalla etc.,: AIR 1997 SC 925 . 7. Per contra: Dr. A.S. Khangaroot, Additional Government Counsel, while supporting the impugned order and decree dated 3rd November, 1999, made by the District and Sessions Judge, Jaipur City, Jaipur, urged that there is no illegality, much less a gross illegality, so as to call for any interference by this Court as to the reduction in the rate of interest having regard to the overall factual matrix and circumstances of the case at hand. In support of his stand, learned counsel has also relied upon the opinion of the Supreme Court in the case of P. Radhakrishna Murthy v. M/s. N.B.C.C. Ltd.: Civil Appeal Nos. 1393-1394/2003, decided on 5th March, 2013. 8. I have heard the learned counsel for the parties and with their assistance perused the materials available on record as well as gave my thoughtful consideration to the rival submissions at Bar so also carefully scanned the impugned order and decree made by the District and Sessions Judge, Jaipur City, Jaipur. 9. Indisputably, the Arbitrator made the award dated 21st February, 1997, along with Corrigendum, allowing simple interest @ 18% p.a. in favour of the appellant/claimant from the date of award i.e. 21st February, 1997, till it is made rule of Court/realization whichever is later, on the initial amount of award i.e. Rs.2,02,456/- (corrected amount Rs. 2,04,531/-). Interest @ 9% p.a. was also allowed for the period pendente lite i.e. with effect from the date of reference being 21st December, 1992 up to the date of signing of the award i.e. 21st February, 1997; on Rs.1,48,750/-. 10. Factual matrix as recorded by the Arbitrator is not in dispute. The jurisdiction of the Arbitrator to award interest is no more resintegra in view of catena of opinions of the Apex Court of the land. In the case of T.P. George v. State of Kerala and another: 2001 (1) Arb. 10. Factual matrix as recorded by the Arbitrator is not in dispute. The jurisdiction of the Arbitrator to award interest is no more resintegra in view of catena of opinions of the Apex Court of the land. In the case of T.P. George v. State of Kerala and another: 2001 (1) Arb. L.R. 490 (SC), on a survey of earlier opinions, the Apex Court of the land observed that there are four stages of grant of interest i.e. (1) from the stage of accrual of cause of action till filing of the arbitration proceedings, (2) during pendency of the proceedings before Arbitrator, (3) future interest arising between date of Award and date of the decree, and (4) interest arising from date of decree till realization of award. 11. In the case of Hindustan Construction Company Ltd. v. State of Jammu & Kashmir: AIR 1992 SC 2192 , the Supreme Court held that Arbitrator is competent to award interest from the date of award. In the case of Secretary Irrigation Dept. Govt. of Orissa v. G.C. Roy: (1992) 1 SCC 508 , and in the case of Executive Engg., Dhankanal Minor Irrigation Division v. N.C. Budharaj (dead) through LRs., the Apex Court of the land held that the Arbitrator can also award interest for the preference period. 12. In the case of Channa Bros. & Co. v. Union of India: 2003(1) Arb. LR 157 (SC), while examining the issue of grant of interest in the backdrop of the contemplation under Section 29 & 30 of the Arbitration Act, 1940 and Section 3 and 4 of the Interest Act, 1978, the Supreme Court relying upon the opinion in the earlier case of M/s. Vidyawati Construction Co. v. Union of India and Ors; Civil Appeal No. 2337/1999, decided on 27th November, 2001, held that award made by the Arbitrator granting 18% interest on the amount awarded; was not required to be, in any way, altered by the High Court and restored the rate of interest awarded by the Arbitrator. 13. In the case of Shakambari & Co. v. Union of India, following the opinion in the case of Secretary, Irrigation Department (Supra), the Apex Court of the land restored the award of the Arbitrator with reference to the interest while setting aside the interference made by the learned Single Judge and Division Bench. 13. In the case of Shakambari & Co. v. Union of India, following the opinion in the case of Secretary, Irrigation Department (Supra), the Apex Court of the land restored the award of the Arbitrator with reference to the interest while setting aside the interference made by the learned Single Judge and Division Bench. Thus, jurisdiction, power and competence of Arbitrator to award interest in the same manner as a Court can do, is no more res-integra. 14. In the case of P. Radhakrishana Murthy (Supra), wherein the High Court interfered with the amount of interest allowed by the Arbitrator @ 16.5% p.a. reducing it to 12% p.a. was in the singular facts of that case, wherein the High Court recorded a finding that Arbitrator is not a Conciliator and his duty is to decide the disputes, submitted to him, according to the legal rights of the parties and not according to what he may consider to be fair and reasonable. The factual matrix in the case also included the fact that the Contractor did not claim of 10% of loss of profit under specific claims that was added to the contract amount and was awarded by the Arbitrator and made the rule of Court. The Arbitrator has also accepted the contention of N.B.C.C. that the work was delayed on account of the contractor and consequently awarded a sum of Rs.2,40,000/- payable by the contractor to NBCC as damages on the ground that the owner of the godown (FCI) had recovered an amount of Rs.2,40,000/- from NBCC on account of delay in completion of the work by the contractor. The Supreme Court having regard to the findings of the High Court on the relevant aspects did not interfere with the reduction of rate of interest @ 12% p.a. from 16.5% p.a., holding that the exercise of discretionary power by the Arbitrator under Section 34 of the Code of Civil Procedure is a discretionary power. 15. Thus, the factual matrix of the case at hand, is entirely different and distinguishable from that case of P. Radhakrishna Murthy (Supra), which has been referred to and relied upon by the learned counsel for the State-respondents. 16. Moreover, a Larger Bench of the Supreme Court in the case of State of Orissa v. B.N. Agarwalla (Supra), as to the jurisdiction of the Arbitrator with reference to award interest, held thus: "18. 16. Moreover, a Larger Bench of the Supreme Court in the case of State of Orissa v. B.N. Agarwalla (Supra), as to the jurisdiction of the Arbitrator with reference to award interest, held thus: "18. In view of the aforesaid decisions there can now be no doubt with regard to the jurisdiction of the arbitrator to grant interest. The principles which can now be said to be well-settled are that the arbitrator has the jurisdiction to award pre-reference interest in cases which arose after the Interest Act, 1978 has become applicable. With regard to those cases pertaining to period prior to the applicability of the Interest Act, 1978. In the absence of any substantive law, contract or usage, the arbitrator has no jurisdiction to award interest. For the period during which the arbitration proceedings were pending in view of the decision in G. C. Roy's case AIR 1992 SCW 389 (supra) and Hindustan Constructions Limited case AIR 1992 SCW 2647 (supra), the arbitrator has the power to award interest. The power of the arbitrator to award interest for the post-award period also exists and this aspect has been considered in the discussion relating to Civil Appeal No. 9234 of 1994 in the later part of this judgment. 17. In the case at hand, the District and Sessions Judge, Jaipur City, Jaipur, did not find any fault with the award made by the Arbitrator dated 21st February, 1997, including the Corrigendum. Hence, reduction of the rate of interest vide impugned judgment and decree, cannot be sustained in absence of any reason supported by any reasonings. 18. For the reasons and discussions aforesaid, the appeal succeeds and is hereby allowed. 19. The impugned order and decree dated 3rd November, 1999, made by the District and Sessions Judge, Jaipur City, Jaipur, is hereby set aside. 20. The award made by the Arbitrator dated 21st February, 1997, along with Corrigendum, is restored. Appeal allowed - Order of district judge set aside, award restored.