State of Kerala, Represented By The Secretary To Government, Water Resources Department v. K. N. Madhusoodanan Contractor, Sree Niketan, Kalanjoor
2021-12-22
C.S.SUDHA, P.B.SURESH KUMAR
body2021
DigiLaw.ai
JUDGMENT : C.S. Sudha, J. 1. If the certificate of completion of work is not issued by the Officers of the Department concerned due to an inadvertent or deliberate omission, would that mean that the period of limitation for seeking a reference to arbitration extend indefinitely, is the question interaliaposed by the learned Government Pleader appearing for the appellants in this case. The appellants herein are the appellants before the court below and the respondents in the arbitration proceedings initiated by the sole respondent herein/claimant/contractor. The parties will be referred to as described in the proceedings before the Arbitrator. 2. The claimant/contractor and the respondents/State of Kerala entered into a contract for the work of 'K.I. & T.C.D.P.-L.B.C.-formation of Kottiyam Branch Canal between Ch.4050M to 6486 M. including C.D.works'. An agreement dated 31.07.1987 was entered into between the claimant/contractor and the respondents/State relating to the execution of the aforesaid work. The accepted probable amount of the work was Rs.29,45,790/-. The period for completion of work was fixed as 11 months from the date of the order to proceed with the work, which order was issued on 14.08.1987. The time for completion of the work was 11 months from the date of selection notice, that is, from 01/07/1987 to 31/05/1988. However, the work was completed only on 30.06.1990. After completion of the work, disputes arose between the parties. As per the conditions of the contract, the disputes are to be settled by arbitration in accordance with clauses 51 and 52 of the Local Competitive Bidding (L.C.B.) and General Conditions of Contract (G.C.C.) forming part of the agreement. The Chief Engineer, Project III (Kallada), Kottarakara by letter dated 27.02.1992 appointed Shri.T.K. Sasi, Chief Engineer (Investigation and Planning), Vikas Bhavan, Thiruvananthapuram as the sole Arbitrator. Pursuant to the appointment, the parties were given opportunity to put in their pleadings and adduce evidence. The learned Arbitrator on the request of the claimant made a site visit/inspection, during the course of which the claimant, the representatives of the respondents and their respective counsels were also present. After considering the documentary evidence produced by either side and after hearing them, the Arbitrator passed an award on 12.09.1994. Claims (a), (d), (d)(i) and (f) moved by the claimant were allowed and a total sum of Rs.25,59,461/-was awarded.
After considering the documentary evidence produced by either side and after hearing them, the Arbitrator passed an award on 12.09.1994. Claims (a), (d), (d)(i) and (f) moved by the claimant were allowed and a total sum of Rs.25,59,461/-was awarded. The claimant/contractor moved the Principal Sub-Court, Thiruvananthapuram under Section 17 of the Arbitration and Conciliation Act, 1940 (the Act), for passing a decree in accordance with the award. The respondents moved an application under Section 30 of the Act to set aside the award. The court by impugned judgment dated 07.08.2010 set aside the award on claims (d) and (d)(i) and confirmed the award on claims (a) and (f). Aggrieved, the respondents/State of Kerala has moved the present appeal. 3. Heard Adv.V.K.Sunil, the learned Government Pleader for the appellants/State and Adv. Sri.K.L.Varghese, the learned Senior Counsel instructed by Adv. Sri. Ranjit Varghese for the respondent/claimant. 4. Claim (a) is relating to excavation work done for which the claimant/contractor claimed payment for additional quantity of 28,000 cubic meter and claim(f) is relating to award of interest. In addition to the challenge under the aforesaid two heads, a preliminary objection was also raised by respondents/State to the effect that the reference has not been made within the period stipulated in the contract and hence the reference is barred by limitation. It was contended before the Arbitrator by referring to clause 52 of the L.C.B that neither party is entitled to bring a claim to arbitration, if the Arbitrator is not appointed before the expiry of 30 days of the expiry of the defect liability period. In this case, the work had been completed on 30.06.1990. The defect liability period was over on 30.12.1990. Hence, appointment of the Arbitrator ought to have been made before the expiry of 30 days of the defect liability period. Here the appointment of the Arbitrator was made only on 27.02.1992, which is apparently in violation of clause 52 of the L.C.B., contended the respondents/State. The learned Arbitrator after referring to clauses 18(e), 25 and 52 of the L.C.B., rejected the contention of the respondents/State. It was found that the defect liability period could be reckoned only from the certified date of completion of the work. However, the certificate of completion of work was admittedly not furnished to the claimant/contractor by the Superintending Engineer.
The learned Arbitrator after referring to clauses 18(e), 25 and 52 of the L.C.B., rejected the contention of the respondents/State. It was found that the defect liability period could be reckoned only from the certified date of completion of the work. However, the certificate of completion of work was admittedly not furnished to the claimant/contractor by the Superintending Engineer. In the absence of a certified date of completion, it was found that the defect liability period and the period for appointment of the Arbitrator could not be fixed. The Arbitrator found that the dates referred to by the respondents/State were not based on the certified date of completion. Further, the Arbitrator also took note of a letter dated 12.10.1991 sent by the claimant/contractor to the respondents/State requesting the release of security deposit. This request was denied by the respondents/State on the ground that the request could be considered only as per the conditions of the contract, as per which the security deposit could be released only on the expiry of the defect liability period. Therefore, the request of the claimant/contractor was denied on the ground that the defect liability period was not over. In such circumstances, the Arbitrator found that the contention of the respondents/State that the Arbitrator ought to have been appointed before 30.01.1991, has no sanctity and that it has to fail. It was also noticed that as per clause 52 of the L.C.B. it was the Chief Engineer, K.I.P. who is empowered to appoint the Arbitrator. In this case, the Chief Engineer had appointed the Arbitrator after taking into consideration all these aspects in accordance with the provisions of the contract entered into by the parties. Taking into account all these factors, the learned Arbitrator rejected the preliminary objection raised by respondents/State. This finding of the Arbitrator was affirmed by the court below. This finding is assailed in the present appeal. 5. It is argued by the learned Government Pleader for the respondents/State that merely because the completion certificate had not been issued by the respondents/State, that would not mean that the limitation period would stand extended or that it would run indefinitely. It is pointed out that the fact that the date of completion of the work is 30.06.1990 is admitted by both sides. Therefore, the said date is to be taken/reckoned as the date from which the defect liability period would commence.
It is pointed out that the fact that the date of completion of the work is 30.06.1990 is admitted by both sides. Therefore, the said date is to be taken/reckoned as the date from which the defect liability period would commence. In this case the work was completed on 30.06.1990. If that be so, the defect liability would expire on 30.12.1990. The claimant/contractor ought to have raised his claim for appointment of an Arbitrator before the authority concerned on or before 29.01.1991. However, the records reveal that the Arbitrator was appointed only on 27.02.1992; that the Arbitrator had entered on his reference on 9.04.1992 and that the claimant/contractor had submitted his statement of claims before the Arbitrator only on 16.07.1992. Therefore, it is apparent and obvious that the claim had been filed by the claimant/contractor before the Arbitrator after the expiry of nearly two years from the date of completion of works, i.e., 30.6.1990, which is against clause 52 of the L.C.B. In such circumstances, the Arbitrator was wrong in rejecting the preliminary objection raised by the respondents/State, which has wrongly been affirmed by the court below. As this finding of the Arbitrator as well as the court below is against the provisions of the L.C.B., the same is liable to be set aside, contend the respondents/State. 6. Clause 18(e), 25 and 52 of the L.C.B. reads - “18. MATERIALS AND WORKMANSHIP: (a)xxx (b)xxx (c)xxx (d)xxx (e) Defects liability : The Contractor shall be responsible to make good at his own expense, within such period as may be stipulated by the ………. any defect which may develop or may be noticed before the expiry of SIX months from the certified date of completion and which is attributable to the Contractor. All notices of such defect shall be given to the Contractor promptly. In case the contractor fails to make good the defects, the Executive Engineer may employ other persons to make good such defects, and all expenses consequent thereof and incidental thereof shall be borne by the Contractor. xxxxxxx xxxxxxx xxxxxxx” “25. CERTIFICATE OF COMPLETION OF WORKS: As soon as the work is completed, the Contractor shall give notice of such completion to the …... and within one month of receipt of such notice the ...... shall furnish the Contractor with the certificate of Completion or otherwise.” “52.
xxxxxxx xxxxxxx xxxxxxx” “25. CERTIFICATE OF COMPLETION OF WORKS: As soon as the work is completed, the Contractor shall give notice of such completion to the …... and within one month of receipt of such notice the ...... shall furnish the Contractor with the certificate of Completion or otherwise.” “52. ARBITRATION: All the dispute or differences in respect of which the decision has not been final and conclusive shall be referred for arbitration to the sole Arbitrator appointed as follows: xxxx xxxx xxxx xxxx Neither party is entitled to bring a claim to arbitration if the arbitrator has not been appointed before the expiry of thirty days after defect liability period.” 7. It is true as argued by the learned standing counsel that the period of limitation for seeking reference to arbitration cannot be ext ended indefinitely. However, there is a specific clause in the agreement relating to the manner in which the period has to be computed. In the instant case, admittedly no completion certificate has been issued by the respondents/State. In such circumstances it is just not possible to fix the date from which the defect liability period would commence or expire. If only the exact date/day on which the defect liability period expires is fixed, the period of 30 days within which the request for reference to arbitration is to be made can be computed. 8. It was further pointed out on behalf of the respondents/State that as per clause 25 of the L.C.B. the claimant/contractor had an obligation to give notice of completion of work to the Engineer as soon as the work was completed, who in turn with in one month of the receipt of such notice was to furnish the former with the certificate of Completion. No such notice was given by the claimant/contractor and hence no certificate of completion could be issued. As argued on behalf of the respondents/State, we will assume for a moment that 30.6.1990 is the date on which the defect liability period is to commence. In the award, the Arbitrator refers to a letter dated 12.10.1991 sent by the claimant/contractor requesting the respondents/State to release the security deposit due to his financial constraints.
As argued on behalf of the respondents/State, we will assume for a moment that 30.6.1990 is the date on which the defect liability period is to commence. In the award, the Arbitrator refers to a letter dated 12.10.1991 sent by the claimant/contractor requesting the respondents/State to release the security deposit due to his financial constraints. This request of the claimant/contractor was rejected by the respondents/State on the ground that the security deposit can be returned only as per the terms of the contract, that is, it can be returned only after the defect liability period is over. Therefore, according to the respondents/State, the defect liability period was not over even in October 1991. If that be so the argument advanced that the claimant/contractor ought to have raised his claim under clause 52 for reference to arbitration before the appropriate authority on or before 21.01.1991, will obviously have to fail. In the absence of evidence to show the date on which the defect liability period is over, the finding of the learned Arbitrator rejecting the preliminary objection for the reasons given in the award to which we have already adverted to does not suffer from any infirmity. The court below also rightly did not interfere with this finding of the Arbitrator. 9. It is further argued on behalf of the respondents/State that clause 51 of the L.C.B. has also not been complied with and therefore the dispute is not arbitrable. Clause 51 reads - “51. SETTLEMENTOFDISPUTES: If the contractor considers any work demanded of him to be outside the requirements of the contract, or considers any drawing, record or ruling of the authority executing agreement on any matter in connection with or arising out of the contract or carrying out of work to be unacceptable, he shall promptly ask the authority executing agreement in writing for written instructions or decision. Thereupon the authority executing agreement shall give his written instructions or decisions within a period of thirty days of such request. Upon receipt of the written instructions or decision the contractor shall promptly proceed without delay to comply with such instructions or decisions.
Thereupon the authority executing agreement shall give his written instructions or decisions within a period of thirty days of such request. Upon receipt of the written instructions or decision the contractor shall promptly proceed without delay to comply with such instructions or decisions. If the authority executing agreement fails to give his instructions or decision in writing within a period of thirty days after being requested, or if the contractor is dissatisfied with the instructions or decision of the authority executing agreement, the Contractor may within thirty days after receiving the instructions or decision appeal to Chief Engineer who shall afford an opportunity to the Contractor to be heard and to offer evidence in support of his appeal. This officer shall give a decision within a period of sixty days after the Contractor has given the said evidence in support of his appeal. If the contractor is dissatisfied with this decision, the Contractor within a period of thirty days from receipt of the decision shall indicate his intention to refer the dispute to arbitration failing which the said decision shall be final and conclusive.” 10. Therefore, by referring to clause 51, the argument advanced on behalf of the respondents/State is that without complying with the aforesaid clause, reference could not have been made to arbitration. However, it is seen that this argument was never advanced either before the Arbitrator or before the court below. The only challenge was non- compliance or violation of clause 52. Moreover, as concluded by the Arbitrator, the Chief Engineer, K.I.P. who is the authority empowered to appoint the Arbitrator, must have taken into account all these clauses in the agreement before appointing the sole Arbitrator. Therefore, at this late stage, a completely new contention or argument cannot be advanced by the respondents/State. 11. Now coming to Claim (a) which has been allowed by the Arbitrator. The said claim reads - “Is not the claimant entitled to get paid at the rate of Rs.160/ M3 (or at any other rate) for the excavation done in hard strata between Ch.4050M to 6486M? To what, if any, is the relief entitled to by the claimant in this respect?” According to the claimant/contractor, the material excavated was not amenable to ordinary modes of excavation due to the peculiar nature of the sub-strata which consisted of whitish clay substance which constituted hard strata between Ch.4050M to 6486M.
To what, if any, is the relief entitled to by the claimant in this respect?” According to the claimant/contractor, the material excavated was not amenable to ordinary modes of excavation due to the peculiar nature of the sub-strata which consisted of whitish clay substance which constituted hard strata between Ch.4050M to 6486M. The said material was not amenable to ordinary modes of excavation. Though the claimant requested for payment for the additional quantity of 28,000 cubic meter, the respondents/State admitted only a negligible quantity of 1038 cubic meter, by treating the said work as extra and unilaterally fixed the rates for the same. According to the claimant, he had accepted the payment at the rate fixed by the respondents/State under protest. He claimed payment at the rate of Rs.160/- per cubic meter for the quantity of 28,000 cubic meter. According to the respondents/State, during the course of excavation, only a portion between Ch.6346M. and Ch.6418M. amounting to 1038 cubic meter was of hard laterite with whitish clay soil. The respondents disputed the allegation of the claimant regarding the presence of hard laterite from Ch.4050M. to 6486M. According to them, the measured quantity of 1038 cubic meters of hard laterite had been accepted by the claimant also and that the rate had been mutually agreed to as per clause 32 of the L.C.B., for which necessary supplemental agreement had also been executed. 12. Based on the documentary evidence produced before the Arbitrator, it was found that the presence of hard substance at various chain ages had been noticed and reported by officers of the respondents at different hierarchy. The then Chief Engineer during his site inspection conducted in November 1998, had reported the presence of whitish clay and hard laterite with sand which was excavated at Ch.4137M to 4364M. During the same period, the Executive Engineer of the department had reported that cut earth between Ch.4850M. to 5600M. and between Ch.6150M. to 6450M. is hard narickal with whitish clay substance. This has been reiterated by the Executive Engineer in June 1981, by noting that the progress of the work has been affected due to the existence of hard strata between Ch.6100M. to 6484M. The Arbitrator in the award further says that during his inspection of the site also, he had noticed the existence of hard substance at places where the sub-strata was visible.
to 6484M. The Arbitrator in the award further says that during his inspection of the site also, he had noticed the existence of hard substance at places where the sub-strata was visible. The Arbitrator found that the claimant had done excavation of hard strata, which according to him would count for 44% of the excavation done at the site. It was noticed that some quantity of the said sub-strata which had not been transported to the dump-yards, was seen dumped on the sides of the canals wherever there was room for the same. Taking into account all these factors, the learned Arbitrator found that the contention of the respondents/State that the hard substance was present only between Ch.6300M. to 6418M. to be untenable and against reality. 13. Relating to the quantity of hard substance excavated, it was noticed by the Arbitrator that the Executive Engineer while reporting the presence of hard strata in between Ch.4850 M. to 5600M. and 6150M to 6450M., had specifically admitted that the quantity in the said reaches was 16,000 cubic meter and 4,500 cubic meters respectively. The respondents/State were not able to refute this aspect. Additionally, it was noticed that the respondents/State had admitted that a quantity of 9548.963 cubic meter of un-serviceable hard strata had been conveyed by the claimant/contractor to dump-yards situated at far off places. This was seen done after utilising considerable quantities of hard strata for forming approach roads at various chainages and for forming deviation roads. This according to the Arbitrator is evident from the various communications of the Executive Engineer and Superintending Engineer issued during the period from November 1998 to March 1990 and also from the inspection report of 1998. Further, the Arbitrator also perused the M. Books, L.F. Books, the plotted sheets etc. He also took into account the aspects noticed by him during his site inspection. Based on all these factors, the learned Arbitrator concluded that the claimant had excavated a quantity of 16,188 cubic meter of hard substance from various chainages in the alignment of the canal constructed as per the contract. 14. As far as the rate for the extra items was concerned, it was found that the rate had been settled strictly in accordance with clause 32 of the L.C.B. It was also found that the rate had been fixed after due negotiations between the parties to the contract.
14. As far as the rate for the extra items was concerned, it was found that the rate had been settled strictly in accordance with clause 32 of the L.C.B. It was also found that the rate had been fixed after due negotiations between the parties to the contract. Further, taking into account the nature of the substance excavated and the prevailing rate, the learned Arbitrator concluded that there was no reason(s) to interfere with the rate fixed as per the terms of the contract and the supplemental agreement. Thus, finding so, the Arbitrator held that the claimant/contractor had already received payment for a quantity of 1038.06 cubic meter and for the remaining quantity, payment was to be made at the rate of Rs.16.50 per cubic meter, i.e., the rate for earth work as provided in the original agreement. After adjusting the aforesaid amount, the claimant was held entitled to be paid for a quantity of 15,149.94 cubic meter at the rate of Rs.118.50 per cubic meter. Thus, the respondents/State were directed to pay an amount of Rs.17,95,268/-to the claimant/contractor in satisfaction of claim (a). 15. The award of the aforesaid amount under claim (a) was challenged by the respondents/State before the court below. The court below affirmed the finding of the Arbitrator on the claim. This finding of the court below is challenged. It is argued on behalf of the respondents/State that the Arbitrator has arrived at this finding ignoring the several communications that took place between the parties and gave undue and unnecessary importance to one single letter dated 17.11.1988 alleged to have been written by the Executive Engineer to the Superintending Engineer. The claimant/contractor in his letter dated 30.05.1988 to the Executive Engineer had stated that 95% of the canal formation work had been completed by 30.05.1988. The claimant in the said letter has no case that either during the execution of the work or immediately thereafter, he had met with hard strata with whitish clay narickal during the course of the excavation work. In the letter dated 06.01.1988 written by the claimant to the Executive Engineer also he had no such case. In the letter dated 14.07.1988 sent by the claimant to the Superintending Engineer seeking extension of work, though he specifically stated that 95% of the work had been competed, he had not raised a claim relating to the alleged excavation work in hard strata.
In the letter dated 14.07.1988 sent by the claimant to the Superintending Engineer seeking extension of work, though he specifically stated that 95% of the work had been competed, he had not raised a claim relating to the alleged excavation work in hard strata. In the inspection report of the Chief Engineer dated 17.11.1988, prepared after the physical inspection of the entire site, the Chief Engineer noticed and reported that the claimant/contractor had executed excavation work in white clay and hard laterite with sand between Ch.4137M. to 4364M. for a distance of 227 meters. The site inspection by the Chief Engineer was conducted at the instance of the claimant/contractor, who was present throughout the inspection. During the site visit, the Chief Engineer was accompanied by the Executive Engineer and the Superintending Engineer. At that time also, the claimant never raised any claim or submitted any application seeking revision of rates on the ground of excavation of hard strata for the entire length of the work. The Arbitrator as well as the court below has given undue importance to the letter dated 17.11.1988 alleged to have been written by the Executive Engineer to the Superintending Engineer wherein it is stated that the contractor had excavated narickal and whitish clay soil between Ch.4850M. to 5600M. and 6150M. According to the respondents, quite strangely this letter has been given much credence by the Arbitrator as well as by the court below, both of whom have failed to appreciate the entire facts in the correct perspective. It was on 17.11.1988 the Chief Engineer accompanied by the Superintending Engineer and Executive Engineer had made the site inspection. Therefore, the necessity to issue a letter on the very same day by the Executive Engineer to the Superintending Engineer stating that the contractor had to do excavation work in hard strata for a considerable length, is difficult to comprehend, contend the respondents. 16. In the appeal memorandum, the respondents/State or the appellants herein have even gone to the extent of doubting the veracity of the letter dated 17.11.1988. It is pleaded that they have every reason to believe that the letter dated 17.11.1988 of the Executive Engineer is a fabricated document. It is also pleaded that the Executive Engineer-the alleged executant of the letter, was not the person in charge of the work during the course of its execution.
It is pleaded that they have every reason to believe that the letter dated 17.11.1988 of the Executive Engineer is a fabricated document. It is also pleaded that the Executive Engineer-the alleged executant of the letter, was not the person in charge of the work during the course of its execution. The said letter is only an after-thought and the same has been cooked up with oblique motives. The Arbitrator as well as the court below should not have given undue importance to the aforesaid letter, which is seen issued much after the excavation work and also when the inspection report dated 17.11.1988 of the Chief Engineer was readily available in the file. The Arbitrator went wrong in concluding that the contractor had worked in hard strata during the course of the execution of the work based on the alleged letter dated 17.11.1988 when there was ever so many documentary evidence of unimpeachable veracity such as measurement books, level books, contractor's bills etc. to ascertain the said aspect. The court below also went wrong in confirming the award of Rs.17,95,268/-awarded by the Arbitrator and hence the argument is that the award of the aforesaid amount is liable to be set aside. 17. The finding on claim (a) is a factual finding arrived at by the learned Arbitrator after examining the documentary evidence as well as after making a site inspection. The conclusions are supported by cogent reasons. It is well settled that the scope of interference by the court is very limited. Re-appreciation of evidence is impermissible. Where findings are recorded by the Arbitrator on evidence giving elaborate reasons which cannot be said to be either perverse or based on no evidence, it is impermissible for the court to set aside the same on re-appreciation of the evidence led by the parties before the Arbitrator (Ravindra Kumar Gupta and Co. vs. Union of India [ (2010)1 SCC 409 ]). Further, unless there is a finding that the Arbitrator has acted arbitrarily, irrationally, capriciously or in conscious disregard of the contract, no interference is permissible or possible. Even if two views are possible, the view taken by the Arbitrator cannot be interfered with, if they are supported by cogent reasons. The court cannot substitute its evaluation of facts with that of the Arbitrator (Sodaran K. vs. State of Kerala [2015 KHC 3678]).
Even if two views are possible, the view taken by the Arbitrator cannot be interfered with, if they are supported by cogent reasons. The court cannot substitute its evaluation of facts with that of the Arbitrator (Sodaran K. vs. State of Kerala [2015 KHC 3678]). Further, as per Section 30 of the Act, the award is liable to be set aside only on the ground of misconduct of the Arbitrator. In this case, the findings of the Arbitrator are supported by cogent and plausible reasons which can in no way be termed perverse, arbitrary or illegal. Therefore, the contentions of the respondents/State on this ground will also have to fail. 18. Claim (f) relates to the interest claimed by the claimant/contractor before the Arbitrator. Claim (f) reads -“Is not the claimant entitled to get the interest calculated at least at 21% per annum (or at other rate/s on all amounts found due under issue(e) supra? To what relief is the claimant entitled to in this regard?” Before the Arbitrator it was alleged by the claimant that he had carried out the work on borrowed capital and that the delay in settlement of his claims had resulted in huge loss to him. He therefore claimed interest @21% p.a. Refuting this claim, the respondents/State contended that the claimant had received the final payment in full satisfaction of his claim; that the agreement does not contain any clause for payment of interest and that the rate of interest claimed was exorbitant. The learned Arbitrator after taking into account the facts and circumstances of the case concluded 18% simple interest to be a reasonable rate and therefore directed the respondents/State to pay interest at the said rate from 25.05.1992, i.e., the date of entering on the reference for the amount Rs.17,95,268/-awarded under claim(a). For the balance amount, the respondents/State was allowed three months' time to pay failing which they would be liable to pay interest, which would have to be paid from the date of the award. The court below reduced the interest awarded from 18% to 12% p.a. According to the respondents/State, the court below ought to have reduced the interest to 9% as it is settled law that in the absence of any express provision in the contract with respect to the rate of interest, the interest normally to be paid is 9%.
The court below reduced the interest awarded from 18% to 12% p.a. According to the respondents/State, the court below ought to have reduced the interest to 9% as it is settled law that in the absence of any express provision in the contract with respect to the rate of interest, the interest normally to be paid is 9%. In support of this argument, reference is made to A.P.State Trading Corporation vs. Malla – Reddy [2010(4)KLT SN 27 Case no.31 (SC)]. 19. It is true that the agreement executed between the parties do not contain a clause for payment of interest. However, the said agreement does not prohibit payment of interest. Here we refer to Assam State Electricity Board vs. Build worth Pvt. Ltd. [ (2017)8 SCC 146 ] submitted on behalf of the claimant. In this case it was held that it is within the discretion of the Arbitrator to decide on the award of interest based on the facts and circumstances of each case. The interest awarded at the rate of 18% p.a. in the said case was modified to 12% p.a. Therefore, we find no infirmity in the finding of the court below regarding interest. In the result, the appeal fails and hence, the same is dismissed. All pending interlocutory applications, if any, shall stand disposed of.