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2023 DIGILAW 246 (CAL)

Swapan Traders v. Union Of India

2023-02-16

SHEKHAR B.SARAF

body2023
JUDGMENT : (Shekhar B. Saraf, J.) : 1. Swapan Traders (hereinafter referred to as the ‘award holder’) have filed the present application under Section 36 of the Arbitration & Conciliation Act, 1996 (hereinafter referred to as the ‘act’) for the execution of an award dated May 13, 2009, passed by B Mondal, Lt Col, Sole Arbitrator. 2. The award holder has prayed for the recovery of INR 31,50,607/- (Thirty-One Lakhs Fifty Thousand Six Hundred Seven Rupees) from Union of India (hereinafter referred to as the ‘award debtor’) on account of unpaid interest. Facts 3. The factual matrix of the present lis has been mapped out below: a. Contract No. CWE/136-WE/22 of 2004-05 was executed between the parties for ‘special repair to roof sheets of building nos. 10, 24, 25, 31, 34 & 35 at crops complex at Sukna under GE Khaprail”. Certain disputes arose related to the said contract, and the matter was referred to the sole arbitrator B Mondal, Lt Col, appointed by the Chief Engineer Siliguri Zone. b. The sole arbitrator passed an award dated May 30, 2009, and awarded a total sum of INR 8,26,408/- (Eight Lakhs Twenty-Six Thousand Four Hundred Eight Rupees) to the award holder along with 12% p.a. pre-award interest and 15% p.a. post-award interest. The said award was challenged by the award debtor before Ld. District Judge at Darjeeling under Section 34 of the act, and the same was set aside, and the matter was remanded back for fresh adjudication. The award holder preferred an appeal against the said order of Ld. District Judge before this court, and by an order dated February 02, 2020, the same was allowed, and the award dated May 30, 2009, was upheld. c. An execution application, EC 122/2020, was filed by the award holder to realise the awarded amount. Subsequently, the award debtor paid the sum of INR 28,90,700/- (Twenty-Eight Lakhs Ninety Thousand Seven Hundred Rupees) on December 18, 2020, to the award holder. As a result, on the prayer of the counsel on behalf of the award holder, the said execution application was disposed of by this Court. d. The present execution application was filed by the award holder praying for the recovery of interest as allegedly due on August 30, 2022, for a sum of INR 31,50,607/-(Thirty-One Lakhs Fifty Thousand Six Hundred Seven Rupees). Contentions 4. d. The present execution application was filed by the award holder praying for the recovery of interest as allegedly due on August 30, 2022, for a sum of INR 31,50,607/-(Thirty-One Lakhs Fifty Thousand Six Hundred Seven Rupees). Contentions 4. Mr Tapas Dutta, counsel appearing for the award holder, has contended as follows: a. The counsel submits that the award holder is entitled to recover the ‘awarded sum’ and ‘interest thereon’ till the realisation, which comes to INR 31,40,607/-on August 30, 2022. This amount, he claims, is after adjusting the payment made earlier on December 18, 2020, of INR 28,90,700/-by cheque no. 220473 of State Bank of India by the award debtor. The counsel further claims that the award remains unsatisfied to this date. b. The counsel argues that the aforesaid amount paid by the award debtor does not include the calculation of interest in an appropriate manner and is in complete contravention of the judgments of the Supreme Court. The counsel contends that the arbitrator awarded interest of 12% p.a. for the pre-award period and 15% p.a. for the post-award period; hence, according to him, interest has to be charged once a year. He submits that the interest element will be added to the principal and subsequently to the sum. c. The counsel further contends that interest will be added with the principal for the first year, and the resultant product would be the sum. Furthermore, he argues that after one year, when the interest will be charged and added with the principal, then the status of the principal amount would lose its identity and once interest is added with the principal, said figure cannot be segregated and be treated as ‘sum’ for all subsequent period, and in the next year and all subsequent year interest will be added with ‘sum’. d. The counsel further challenged the calculation made by the award debtor as, according to him, the method adopted by the award debtor has been overruled by the larger bench of the Supreme Court. The counsel further submitted that the award debtor failed to consider the interest payable from August 1, 2020, to December 18, 2020, as the cheque was enchased on that day. The counsel further submitted that the award debtor failed to consider the interest payable from August 1, 2020, to December 18, 2020, as the cheque was enchased on that day. e. The counsel, in support of his contentions, placed reliance upon the judgments of the Supreme Court in Hyder Consulting (UK) Limited -vs-Governor, State of Orissa reported in (2015) 2 SCC 189 and Hyder Consulting (UK) Limited -vs-State of Orissa reported in (2016) 6 SCC 362 to argue that compound interest should be applied in the present case. f. The counsel contended and prayed that the award debtor is liable to pay INR 36, 20, 948/-as on December 31, 2022, and further interest as would be charged till the date of payment. 5. Mr. Tarunjyoti Tiwari, counsel for the Union of India, has made the following arguments: a. The counsel submits that the computation sheets annexed by the award holder are manifestly erroneous as it calculates compound interest over the awarded amount. The counsel argued that as per the actual calculation, the award holder was entitled to a sum of INR 28,90,699.64/-only, and it cannot arbitrarily miscalculate the actual amount. The counsel further submitted that a cheque of INR 28,90,700/-drawn on State Bank of India no. 220473 on October 13, 2020, has already been handed over to the advocate for the award holder. b. The counsel contends that in the best-case scenario, the award holder can claim some interest between September 1, 2020, to December 11, 2020. The counsel vehemently opposed the present application saying that it is based entirely on a miscalculated sum and misconceived claims. The counsel again reiterated that the department had paid the amount as per the actual calculation on July 31, 2020, and the award holder, according to the counsel, is not entitled to any further sum. Observations 6. I have heard the counsel appearing on behalf of the parties and perused the materials placed on record. 7. The parties in the present case are in conflict as to the type of interest applicable to the awarded sum. 8. Regarding the contention of the award holder, while the levy of Compound Interest is allowed, it is only in some instances and within a specific context. The award sum includes the principle and pre-award interest. 7. The parties in the present case are in conflict as to the type of interest applicable to the awarded sum. 8. Regarding the contention of the award holder, while the levy of Compound Interest is allowed, it is only in some instances and within a specific context. The award sum includes the principle and pre-award interest. If x is the principle, and y is the pre-award interest, the equation formed would be as follows - X + Y = Z Where Z is the awarded sum. Now, while calculating interest, the same would be calculated on the total awarded sum. If L is the post-award interest, then the equation for calculating the amount due would be Z + L = J Where J is the amount due. Post-award interest cannot be separately added to the unpaid pre-award interest. 9. In the present case, the award holders had committed the error of calculating interest on unpaid interest before and even after the award was passed. The award holder in the present case placed reliance upon the judgment of the Supreme Court in Hyder Consulting (UK) Limited -vs- Governor, State of Orrisa (supra) in which the Apex Court had laid down as follows – “4. Clause (a) of sub-section (7) provides that where an award is made for the payment of money, the Arbitral Tribunal may include interest in the sum for which the award is made. In plain terms, this provision confers a power upon the Arbitral Tribunal, while making an award for payment of money, to include interest in the sum for which the award is made on either the whole or any part of the money and for the whole or any part of the period for the entire pre-award period between the date on which the cause of action arose and the date on which the award is made. To put it differently, sub-section (7)(a) contemplates that an award, inclusive of interest for the pre-award period on the entire amount directed to be paid or part thereof, may be passed. The “sum” awarded may be the principal amount and such interest as the Arbitral Tribunal deems fit. If no interest is awarded, the “sum” comprises only the principal. The significant words occurring in clause (a) of sub-section (7) of Section 31 of the Act are “the sum for which the award is made”. The “sum” awarded may be the principal amount and such interest as the Arbitral Tribunal deems fit. If no interest is awarded, the “sum” comprises only the principal. The significant words occurring in clause (a) of sub-section (7) of Section 31 of the Act are “the sum for which the award is made”. On a plain reading, this expression refers to the total amount or sum for the payment for which the award is made. Parliament has not added a qualification like “principal” to the word “sum”, and therefore, the word “sum” here simply means “a particular amount of money”. In Section 31(7), this particular amount of money may include interest from the date of cause of action to the date of the award. ……… 10. In this view of the matter, it is clear that the interest, the sum directed to be paid by the arbitral award under clause (b) of sub-section (7) of Section 31 of the Act, is inclusive of interest pendente lite.” 10. A plain reading of the aforesaid judgment makes it clear that the awarded sum includes the pre-award interest, and thus, interest cannot be seen as a separate component. For purposes of calculation of post-award interest, one cannot calculate interest separately on the pre-award interest. Interest has to be added to the combined awarded sum, which includes both the principal and the pre-award interest. 11. The petitioners have considered ‘sum’ by adding the post-award interest each year. The judgments cited are silent on whether an arbitrator can grant post-award compound interest, but anyway the arbitrator has not done so in this case. The arbitrator has awarded simple interest. 12. After perusing the calculation sheet annexed by the award debtor, this Court agrees with the calculation presented. Taking into account the payment of INR 28,90,700/-made by the award debtor vide cheque no. 220473 drawn on State Bank of India, it is further held that as on the date, the award debtor is not liable to pay any additional amount as claimed by the award holder. 13. However, a minuscule amount remains due on account of interest from September 1, 2020, to December 11, 2020. As a result, I direct the award debtor to make such payment within a week from the date of this judgment. 14. In light of the above considerations, EC 233/2022 is accordingly disposed of. 15. 13. However, a minuscule amount remains due on account of interest from September 1, 2020, to December 11, 2020. As a result, I direct the award debtor to make such payment within a week from the date of this judgment. 14. In light of the above considerations, EC 233/2022 is accordingly disposed of. 15. There shall be no order as to costs. 16. An urgent photostat-certified copy of this judgment, if applied for, should be made available to the parties upon compliance with requisite formalities.