Point of Law: Executing Court is required to execute the award, as it is and as it stands and the issue cannot be governed by any concession/admission, so as to result into any estoppel.

JUDGMENT :

Rule made returnable forthwith. Mr. Soman, the learned counsel waives service for the Respondent. Heard finally by consent of parties.

2. The present Petition involves an issue about the calculation/computation of the amount payable to the Respondent - Decree holder under the award of the arbitrator.

3. The Petitioner is a Public Sector undertaking. The Petitioner had awarded a contract to the Respondent for construction of the BG Single Line Tunnel through shaft No.3 (Karbudhe) in Ratnagiri North Section vide an agreement dated 18 November 1993. As disputes and differences arose between the parties, the matter was referred to arbitration. The Arbitral Tribunal by an award dated 28 March 2007 allowed the claim of the Respondent with interest @12% per annum from the date of the award. A corrigendum was issued to the award on 17 April 2007, as to Claim No.9, with which we are not presently concerned.

4. According to the Petitioner, the calculation of the principal amount alongwith interest payable to the Respondent was made and after deducting taxes, the Petitioner under its advice dated 27 April 2007 informed the Respondent about the amount due and payable and issued a cheque in respect thereof which was accepted by the Respondent without any demur.

5. The Petitioner subsequently received a notice in Special Execution Proceeding No.503/2019 on the file of the learned Senior Civil Judge at Ratnagiri directing the Petitioner to pay an amount of Rs.67,11,263/- to the Respondent. It appears that the Petitioner filed an Application for review of the order dated 27 January 2021 claiming that the said amount was not payable to the Respondent under the said award. The learned Executing Court by an order dated 24 February 2021 rejected the Application for review. Principally, the order dated 27 January 2021 and the one refusing to grant the Application for review dated 24 February 2021 are subject matter of challenge in this Petition.

6. It appears that the Petitioner had filed an Application (Exh.18) for amendment of its reply and Application (Exh.20) to withdraw from the joint pursis (Exh.16) and the undertaking. The Executing Court rejected Application (Exh.20) by an order dated 27 January 2021 and the Application (Exh.20) was rejected by an order dated 7 September 2020. By virtue of an amendment to the Petition, the Petitioner has incorporated challenge to both these orders also.

7. I have heard Ms. Kiran Bhagalia, the learned counsel for the Petitioner and Mr. Nikhil Sakhardande, Senior Advocate, for the Respondent. With the assistance of the learned counsel for the parties, I have gone through the record.

8. It is submitted by the learned counsel for the Petitioner that the present Petition only pertains to Claim No.10 which is in respect of the interest on Claim Nos.1 to 9 and 11. It is pointed out that as per Para No.4.10, the Arbitral Tribunal has held the Respondent to be entitled to simple interest @ 14% p.a. w.e.f. 7 December 1995 (the date when the final bill was passed) till 31 December 2000 and @ 12% p.a. w.e.f. 1 January 2001 till the date of the award. It is submitted that accordingly the calculation was made arriving at a total figure of Rs.2,48,03,572/-. The Petitioner had issued a cheque for Rs.2,12,99,602/- after deducting the taxes of Rs.35,03,970/- which was accepted by the Respondent without any demur. It is submitted that in reply (Exh.12) filed to the Execution Proceedings, there was an inadvertent error on account of a misconception and calculation made by the concerned Deputy Engineer which is not binding on the Petitioner. It is submitted that the concerned officer of the Petitioner, on the basis of a misinterpretation of the decision of the Supreme Court in M/s. Hyder Consulting (UK) Ltd. Vs. Governor, State of Orissa, (2015) ALL SCC 189 had arrived at an incorrect figure. It is submitted that only t