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2025 DIGILAW 304 (AP)

Hindustan Ship Yard Ltd. , Visakhapatnam v. Essar Oil Ltd Mumbai

2025-02-19

MAHESWARA RAO KUNCHEAM, R.RAGHUNANDAN RAO

body2025
Order : As all these revision petitions arise out of the same set of facts and common questions arising between the same parties, they are being disposed of by way of this common order. 2. Heard Sri V. Ravinder Rao, learned Senior Counsel representing Sri P. Raja Sekhar, learned counsel appearing for the petitioner and Sri Avinash Desai, learned Senior Counsel representing Sri D.S. Siva Darshan, learned counsel appearing for the respondent. 3. A few facts would be necessary, before going into the questions, which arise in the present set of revision petitions. a) The petitioner and the respondent had entered into turn-key contracts on 03.03.1992 (hereinafter referred to as 1992 contract') and on 31.03.1995 (hereinafter referred to as 1995 contract'). On account of disputes in these contracts, arbitration was initiated, by the respondent, in both these cases, on 16.10.1998. The arbitration relating to the 1992 contract ended in an Arbitral Award, dated 20.04.2001, passed in favour of the respondent. The arbitration relating to the 1995 contract resulted in an Arbitral Award, dated 24.10.2001 passed in favour of the respondent. b) Aggrieved by these awards, the petitioner herein filed O.P.No.989 of 2001 and O.P.No.96 of 2002, under Section 34 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as 'the Act'). O.P.No.989 of 2001 came to be dismissed on 10.10.2002 and O.P.No.96 of 2002 came to be dismissed on 01.11.2002. Aggrieved by these orders of dismissal, the petitioner moved this Court, under Section 37 of the Act, by way of C.M.A.No.255 of 2003 and C.M.A.No.624 of 2003. Both these appeals came to be allowed, on 29.09.2004, and the Awards passed by the Arbitral Tribunal were set aside. Against these orders, the respondent filed C.A.No.3353 of 2005 and C.A.No.3354 of 2005 before the Hon‘ble Supreme Court and the same came to be allowed, on 02.07.2015, and the arbitral awards came to be restored. c) After the completion of these proceedings, the respondent filed E.P.No.45 of 2015 and E.P.No.46 of 2015 for execution of the said awards. These execution petitions came to be dismissed on 11.07.2016 by the Executing Court. Against these orders of dismissal, the respondent filed C.R.P.No.5551 of 2016 and C.R.P.No.5552 of 2016 before this Court, which were allowed on 27.01.2017, restoring the Execution Petitions. S.L.P.No.9931 of 2017 and S.L.P.No.9932 of 2017, preferred by the petitioner, before the Hon‘ble Supreme court, were dismissed on10.04.2017. These execution petitions came to be dismissed on 11.07.2016 by the Executing Court. Against these orders of dismissal, the respondent filed C.R.P.No.5551 of 2016 and C.R.P.No.5552 of 2016 before this Court, which were allowed on 27.01.2017, restoring the Execution Petitions. S.L.P.No.9931 of 2017 and S.L.P.No.9932 of 2017, preferred by the petitioner, before the Hon‘ble Supreme court, were dismissed on10.04.2017. d) After the dismissal of these two Special Leave Petitions, arguments were advanced in E.P.Nos.45 and 46 of 2015, for the purpose of obtaining attachment of the deposits, of the petitioner herein, for realization of Rs.78,67,64,928/- in the case of E.P.No.45 of 2015 and an amount of Rs.118,28,00,000/- in the case of E.P.No.46 of 2015. f) The petitioner herein, contested the attachment of the fixed deposit receipts, on the ground that the calculation Memos showing the aforesaid amounts, are incorrect and that no attachment can be given on the basis of such a calculation. The petitioner assailed the calculations made in both cases on two grounds – (1) The Arbitral Tribunal had only granted interest till the date of Award and no interest had been awarded beyond the date of Award. In the absence of any such Award being made, no interest can be calculated from 20.04.2001 and 24.10.2001 respectively. As such interest had been calculated even after the date of Award, the same would have to be deducted before any orders can be passed; and (2) The award had been passed in terms of US dollars and the respondent had applied the rate of Rs.63.5705 per US dollar by applying the foreign exchange rate applicable as on 02.07.2015, which was the date on which the Hon‘ble Supreme Court had allowed the Special Leave Petitions and restored the Arbitral Award. The petitioner argued that the rate of exchange which should have been applied was Rs.48.34 per US dollar, which was the exchange rate as on 10.10.2002 and 01.11.2002 when the petitions, under Section 34, came to be dismissed by the Principal District Judge, Visakhapatnam. g) The Principal District Judge, Visakhapatnam, after hearing both sides, had passed a common order, in both Execution Petitions, on 18.07.2017. The Principal District Judge took the view that the rate of exchange applicable to these cases, would be the rate of exchange as on the date of judgment of the Principal District Judge, Visakhapatnam, on 10.10.2002 and 01.11.2002. g) The Principal District Judge, Visakhapatnam, after hearing both sides, had passed a common order, in both Execution Petitions, on 18.07.2017. The Principal District Judge took the view that the rate of exchange applicable to these cases, would be the rate of exchange as on the date of judgment of the Principal District Judge, Visakhapatnam, on 10.10.2002 and 01.11.2002. The learned Principal District Judge also took the view that the respondent would be entitled to post award interest at the rate of 18% per annum till the date of payment. 4. Aggrieved by these orders, dated 18.07.2017, the petitioner filed C.R.P.No.4127 of 2017 against the order in E.P.No.45 of 2015 and C.R.P.No.4114 of 2017 against the order in E.P.No.46 of 2015. The respondent, being aggrieved by the rate of exchange being fixed, as on the date of the orders of the trial Court, under Section 34 of the Act, on10.10.2002 and 01.11.2002, has filed C.R.P.No.7076 of 2017. 5. Sri V. Ravinder Rao, learned Senior Counsel representing Sri P. Raja Sekhar, learned counsel appearing for the petitioner, would contend that the foreign exchange rate, available on the date of the decree of the trial Court, in the petitions filed under Section 34 of the Act, would be applicable. The same is contested by Sri Avinash Desai, learned counsel appearing for Sri D.S. Sivadarshan, learned counsel appearing for the respondent. 6. We have heard extensive arguments advanced on both sides. However, we need not go into all these issues as the guidelines for determining the rate of foreign exchange in such cases, is now settled by virtue of the judgment of the Hon‘ble Supreme Court in the case of DLF Ltd., (Formerly Known as DLF Universal Ltd.,) and Anr., vs. Koncar Generators and Motors Ltd . , [ (2024) SCC Online SC 1907 ] . In this case, the question that came up before the Hon‘ble Supreme Court was, what date should be fixed as the date of conversion of foreign exchange. Apart from this, certain amounts had been deposited with the Courts, in the course of litigation and there was a question as to whether the date of such deposit should also be taken into account for fixing the date of conversion. 7. The Hon‘ble Supreme Court, after reviewing the law on this issue, including the judgments of Hon‘ble Supreme Court in the cases of Forasol vs. ONGC , [1984 Suppl. 7. The Hon‘ble Supreme Court, after reviewing the law on this issue, including the judgments of Hon‘ble Supreme Court in the cases of Forasol vs. ONGC , [1984 Suppl. SCC 263] and Renusagar Power Co. Ltd., vs. General Electric Co., , [1994 Suppl. (1) SCC 644] , and various other judgments of the Hon‘ble High Court of Delhi, had held that the date on which the Arbitral Award becomes enforceable shall be the date of conversion and that if any amounts are deposited in Court, prior to such a date, the said date of deposit shall be treated to be the date on which conversion shall take place, to the extent of amount deposited. 8. In the present case, the date on which the award has become final would be the date, on which C.A.No.2253 of 2005 and C.A.No.3354 of 2005, came to be allowed on 02.07.2015. It does not appear that any amount had been paid prior to this date. It is only after the present revision petitions had been filed, and in pursuance of the interlocutory orders passed by this Court, that certain amounts came to be deposited in Court. 9. In the circumstances, 02.07.2015 which is the date on which the Hon‘ble Supreme Court had allowed C.A.Nos.3353 and 3354 of 2005, would have to be fixed as the date on which the rate of foreign exchange should be fixed. 10. Sri V. Ravinder Rao, learned Senior Counsel, on the question of the rate of interest and liability to pay interest, after the date of the award, raises the following contentions: a) The respondent, in both claims, sought interest at the rate of12% per annum on the amounts claimed by it from the due date of payment to the actual date of payment. Apart from this, the respondent sought subsequent interest at the rate of 24% from the date of reference till the date of award. b) The Arbitral Tribunal, awarded interest at the rate of 12%from the date of submission of last invoice to the date of award. No future interest was awarded from the date of award. c) The respondent, having restricted his claim for interest, by seeking award of interest at the rate of 12%, cannot now claim interest at the rate of 18 %. No future interest was awarded from the date of award. c) The respondent, having restricted his claim for interest, by seeking award of interest at the rate of 12%, cannot now claim interest at the rate of 18 %. The respondent, having restricted its claim of interest, has effectively waived its right to claim enhanced interest at the rate of18%. d) Section 31(7) of the Act does not come into play as no interest has been awarded by the arbitral tribunal at all, from the date of award. e) Reliance is placed upon the judgments in Morgan Securities & Credits (P) Ltd., vs. Videocon Industries Ltd., , [ 2023 (1) SCC 602 ] and R.P. Garg vs. Chief General Manager, Telecom Department and Others , [2024 SCC On Line 2928] 11. As far as the question of whether post award interest should be taken into account for fixing the decretal amount is concerned, the said issue came to be considered by the Hon‘ble Supreme Court in Hyder Consulting (UK) Ltd., vs. Governor, State of Orissa , [ (2015) 2 SCC 189 ] and Morgan Securities & Credits (P) Ltd., vs. Videocon Industries Ltd. 12. Section 31(7) of the Act, which is relevant for this case, reads as follows: Section 31:- Form and contents of arbitral award (1) xxxx (2) xxxx (3) xxxx (4) xxxx (5) xxxx (6) Xxxx (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, 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 of1978). 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 of1978). The costs of arbitration shall be fixed by the arbitral tribunal in accordance with section 31A. Explanation.—For the purpose of clause (a), "costs" means reasonable costs relating to— (i) the fees and expenses of the arbitrators and witnesses, (ii) legal fees and expenses, (iii) any administration fees of the institution supervising the arbitration, and (iv) any other expenses incurred in connection with the arbitral proceedings and the arbitral award. 13. This provision had earlier stipulated the rate of interest as18% per annum. However, Section 31 (7) (b) had been amended, in 2016, to read as above. This provision has been interpreted by the Hon‘ble Supreme Court in a line of judgments commencing from Hyder Consulting (UK) Ltd., vs. Governor, State of Orissa. In this case, the question that was referred to a three Judge Bench of the Hon‘ble Supreme Court, was whether Section 31(7) of the Act permitted award of interest only on the principal amount awarded or whether such interest can be on the principal amount awarded along with interest granted prior to the award. The majority opinion, in the said judgment, held that interest could be awarded on both the principal amount awarded as well as the interest accrued on the principal amount. In the course of interpreting Section 31(7) of the Act, certain observations were also made on whether Section 31 of the Act by itself grants interest at the rate of 18%, unless otherwise, decided by the Arbitral Tribunal. 14. In Morgan Securities & Credits (P) Ltd., vs. Videocon Industries Ltd., the Hon‘ble Supreme Court, after referring to Hyder Consulting (UK) Ltd., vs. Governor, State of Orissa , held as follows: 28.1. The judgment of the two-Judge Bench in S.L.Arora [State of Haryana v. S.L. Arora & Co., (2010) 3 SCC 690 : (2010) 1 SCC (Civ) 823] was referred to a three- Judge Bench in Hyder Consulting [Hyder Consulting (UK) Ltd. v. State of Orissa, (2015) 2 SCC 189 : (2015) 2 SCC (Civ) 38] on the question of whether post-award interest could be granted on the aggregate of the principal and the pre-award interest arrived at under Section 31(7)(a) of the Act. 28.2. 28.2. Bobde, J.'s opinion in Hyder Consulting [Hyder Consulting (UK) Ltd. v. State of Orissa, (2015) 2 SCC 189 : (2015) 2 SCC (Civ) 38] held that the arbitrator may grant post-award interest on the aggregate of the principal and the pre-award interest. The opinion did not discuss the issue of whether the arbitrator could use their discretion to award post-award interest on a part of the 'sum'awarded under Section 31(7)(a). 28.3. The phrase 'unless the award otherwise directs' in Section 31(7)(b) only qualifies the rate of interest. 28.4. According to Section 31(7)(b), if the arbitrator does not grant post-award interest, the award holder is entitled to post-award interest at eighteen per cent. 28.5. Section 31(7)(b) does not fetter or restrict the discretion that the arbitrator holds in granting post-award interest. The arbitrator has the discretion to award post-award interest on a part of the sum. 28.6. The arbitrator must exercise the discretionary power to grant post-award interest reasonably and in good faith, taking into account all relevant circumstances. 28.7. By the arbitral award dated 29-4-2013, a post-award interest of eighteen per cent was awarded on the principal amount in view of the judgment of this Court in S.L. Arora [State of Haryana v. S.L. Arora & Co., (2010) 3 SCC 690 : (2010) 1 SCC (Civ) 823] . In view of the above discussion, the arbitrator has the discretion to award post- award interest on a part of the 'sum'; the 'sum' as interpreted in Hyder Consulting [Hyder Consulting (UK) Ltd. v. State of Orissa, (2015) 2 SCC 189 : (2015) 2 SCC (Civ) 38] . Thus, the award of the arbitrator granting post- award interest on the principal amount does not suffer from an error apparent. 15. In R.P. Garg vs. Chief General Manager, Telecom Department and Others , the Hon‘ble Supreme Court after analyzing Section 31 (7) of the Act, held as follows: 11. So far as the entitlement of the post-award interest is concerned, sub-Section (b) of Section 31(7) provides that the sum directed to be paid by the Arbitral Tribunal shall carry interest. The rate of interest can be provided by the Arbitrator and in default the statutory prescription will apply. Clause (b) of Section 31(7) is therefore in contrast with clause (a) and is not subject to party autonomy. The rate of interest can be provided by the Arbitrator and in default the statutory prescription will apply. Clause (b) of Section 31(7) is therefore in contrast with clause (a) and is not subject to party autonomy. In other words, clause (b) does not give the parties the right to 'contract out' interest for the post-award period. The expression 'unless the award otherwise directs' in Section 31(7)(b) relates to rate of interest and not entitlement of interest. The only distinction made by Section 31(7)(b) is that the rate of interest granted under the Award is to be given precedence over the statutorily prescribed rate. The assumption of the High Court that payment of the interest for the post award period is subject to the contract is a clear error. 16. The learned Senior Counsel would also rely upon the judgment of Hon‘ble Supreme court in Krishna Bahadur v. Purna Theatre , (2004) 8 SCC 229 : 2004 SCC (L&S) 1086 : 2004 SCC OnLine SC 956 at page 233 to contend that the respondent had waived its right to post award interest and the same cannot be granted. 17. In this case, the Hon‘ble Supreme court was considering the claim of reinstatement by a retrenched employee. In this case an employee had been retrenched by payment of compensation, which was below the compensation which should have been paid. The contention of the management was that the employee had accepted the said compensation and had waived his right for further compensation. In thatcontext, the Hon‘ble Supreme Court had held as follows: 9. The principle of waiver although is akin to the principle of estoppel; the difference between the two, however, is that whereas estoppel is not a cause of action; it is a rule of evidence; waiver is contractual and may constitute a cause of action; it is an agreement between the parties and a party fully knowing of its rights has agreed not to assert a right for a consideration. 10. A right can be waived by the party for whose benefit certain requirements or conditions had been provided for by a statute subject to the condition that no public interest is involved therein. Whenever waiver is pleaded it is for the party pleading the same to show that an agreement waiving the right in consideration of some compromise came into being. Whenever waiver is pleaded it is for the party pleading the same to show that an agreement waiving the right in consideration of some compromise came into being. Statutory right, however, may also be waived by his conduct. 18. However, on the facts of that case, the Hon‘ble Supreme Court had held in favour of the employee on other grounds. Applying the above principles, it would have to be seen whether a case of waiver has been made out. In the present case, the respondent had sought interest at 12% per annum on the amounts claimed by it from the due date of payment to the actual date of payment. Apart from this, the respondent sought subsequent interest at the rate of 24% from the date of reference till the date of award. It may also be noted that there was no compromise where the respondent accepted a lower rate of interest. It is at best a case of a claim at a reduced rate of interest. The Hon‘ble Supreme court had, while considering such a situation, held as follows: 28.4. According to Section 31(7)(b), if the arbitrator does not grant post-award interest, the award holder is entitled to post-award interest at eighteen per cent. 19. In the present case, no post award interest was granted. In such circumstances, the provisions of section 31 (7) (b), as interpreted by the Hon‘ble Supreme Court, would become applicable. The actual claim of the party becomes irrelevant in such a case and the statutory rate of interest prescribed under section 31 (7) (b) becomes applicable. 20. Before parting with this case, it is necessary to point out an issue arising out of awards containing a foreign exchange component. The normal rate of interest applicable to sums due, in terms of dollars, is far lower than the rate of interest applicable in India. This appears to be primarily on account of the variations in the components of interest, between different currencies, such as actual rate of interest, inflation, risk compensation etc., In cases, such as the present one, the respondent is being compensated for the rise in the value of the dollar and also being granted interest at the rate applicable to sums which are due, in terms of rupees. The question of whether awards, passed in terms of U.S. Dollars, should carry the rate of interest given for rupee awards and whether the rate of interest in Section 31 (7) (b), should be adjusted accordingly, for awards in terms of Dollars,. 21. In the light of the above, C.R.P. Nos.4114 and 4127 of 2017 are dismissed and C.R.P. No. 7076 of 2017 is allowed. There shall be no order as to costs. As a sequel, pending miscellaneous applications, if any, shall stand closed.