Southern Railway, Represented By Divisional Railway Manager (Works) v. Padmavathy Constructions
2019-02-06
R.NARAYANA PISHARADI, V.CHITAMBARESH
body2019
DigiLaw.ai
JUDGMENT : Chitambaresh, J. 1.The arbitral award to the extent it granted interest on the amount claimed was sought to be set aside by recourse to Section 34(2) of the Arbitration and Conciliation Act, 1996 ('the Act' for short). The same was repelled by the order impugned leading to this appeal under Section 37(1)(c) of the Act contending inter-alia that the Arbitral Tribunal has erred in interpreting the arbitration agreement. 2. We heard Mr.C.S.Dias and Mr.Raymond George Dias, Advocates on behalf of the appellant and Mr. Jacob Sebastian, Advocate on behalf of the respondent. 3. Clause 16(2) of the General Conditions of Contract governing the parties reads as follows: “(2) No interest will be payable upon the earnest money or the security deposit or amounts payable to the Contractor under the contract, but Government Securities deposited in terms of sub-clause (1) of this clause will be repayable with interest accrued thereon.” (emphasis supplied) Section 31(7) of the Act dealing with the contents of the arbitral award as regards interest is as follows: “(7) (a). Unless otherwise agreed by the parties, where and insofar 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, at such rate as 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. (b) A sum directed to be paid by an arbitral award shall, unless the award otherwise directs, carry interest at the rate of two per cent, higher than the current rate of interest prevalent on the date of award, from the date of award to the date of payment. Explanation. - The expression 'current rate of interest' shall have the same meaning as assigned to it under clause (b) of section 2 of the Interest Act, 1978 (14 of 1978).” (emphasis supplied) Thus it is open to the parties to agree as in the instant case that no interest will be payable on the amounts due to a contracting party for the period between the date on which the cause of action arose and the date of award.
4.The Supreme Court in Sree Kamatchi Amman Constructions v. Divisional Railway Manager (Works), Palghat and others [ (2010) 8 SCC 767 ] after noticing the distinguishing feature in the Act observed as follows: “19. Section 31(7) of the new Act by using the words 'unless otherwise agreed by the parties' categorically clarifies that the arbitrator is bound by the terms of the contract insofar as the award of interest from the date of cause of action to the date of award. Therefore, where the parties had agreed that no interest shall be payable, the Arbitral Tribunal cannot award interest between the date when the cause of action arose to the date of award.” The above decision as well as the decision in Union of India v. Bright Power Projects (India) (P) Ltd. [ (2015) 9 SCC 695 ] were approved and followed in Sri Chittaranjan Maity v. Union of India [ (2017) 9 SCC 611 ]. T.P.George v. State of Kerala [ AIR 2001 SC 816 ] relied on by the respondent was under the Arbitration Act, 1940 wherein a provision akin to Section 31(7)(a) of the Act was absent. 5. The Arbitral Tribunal had awarded a sum of Rs.79093/-towards interest on the final bill amount and payment under the modified schedule at the rate of 14% per annum put forward as Claim No.7. The said amount cannot be awarded in terms of Clause 16(2) of the General Conditions of Contract governing the parties which is in accord with Section 31(7)(a) of the Act. However the award of interest at 10% per annum beyond forty-five days from the date of publication of the award by the Arbitral Tribunal on the remaining total amount is justifiable. This is because the parties can agree only for the period between the date on which the cause of action arose and the date on which the award is made under Section 31(7)(a) of the Act. The Arbitral Tribunal is well within its powers to award future interest on the amount due to the claimant from the date of award till its realisation in the circumstances. The court below erred in not setting aside the arbitral award to the extent it included a sum of Rs.79093/- towards the component of interest under Section 34(2) of the Act.
The court below erred in not setting aside the arbitral award to the extent it included a sum of Rs.79093/- towards the component of interest under Section 34(2) of the Act. The impugned order is set aside and the award of interest of Rs.79093/- is deleted since it does not fall within the ambit of a dispute contemplated by the parties. The arbitration appeal is allowed. No costs.