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IN THE HIGH COURT AT CALCUTTA
UMESH CHANDRA BANERJEE & SIDHESWAR NARAYAN, JJ.
Tantia Construction Co. Ltd.
Versus
Union of India & other
Original Civil Jurisdiction Appeal No. 554 of 1994, Award Case No. 167 of 1983
Decided on : 15.1.1998
ARBITRATION - INTEREST - AWARD - DECREE - EXECUTION - WAIVER - ESTOPPEL - GOVERNMENTAL ACTION - FAIRNESS - JUSTICE - DELAY - DUE PROCESS OF LAW - JUDICIAL ETHICS - COMMERCIAL VENTURE - SPIRIT.
Fact of the Case:
An award was made and published by the learned Arbitrator whereby the respondent was directed to pay the appellant an amount of Rs. 24,47,080 in full and final settlement of the claim. The award provided further that in the event the sum was not paid to the appellant within 45 days from the date of the award, the awarded sum would carry interest at the rate of 9% per annum from the date of expiry of the aforesaid 45 days. The respondent did write a letter to the decree-holder stating that the order and judgment of the High Court dated 27th July, 1988 stand accepted and the respondent had decided to comply with the order and to make payment of the awarded sum of Rs. 24,47,080. The appellant was requested to collect payment of the said sum and sign no claim certificate. A no-claim certificate was furnished by the appellant on 2nd December, 1988 recording therein that the no claim certificate was being signed for the principal sum award in terms of the award less Income Tax and the certificate does not include or cover interest on the awarded sum in terms of the award which shall be payable by the Railways as decreed by the Court. The appellant demanded payment of sum of Rs. 11,82,102 on account of interest in terms of the decree dated 11th January, 1984. An application was made on behalf of the appellant for execution of the decree dated 11th January, 1984. The said application was, however, allowed on 27th February, 1990 and on an appeal preferred by the respondent the Appellate Court was pleased to remand the matter back to the learned Trial Judge directing trial on evidence on the question of the settlement and as to whether the Appellate Court's order dated 1st December, 1988 can be sustained in the contextual facts.
Finding of the Court:
The Court held that the decree dated 11th January, 1984 and the decree dated 12th October, 1988 were valid and executable. The Court also held that the appellant was entitled to interest on the awarded sum as per the terms of the award. The Court further held that the appellant was not estopped from claiming interest on the awarded sum by reason of the letter dated 1st December, 1988.
Issues: 1. Whether the decree dated 11th January, 1984 and the decree dated 12th October, 1988 were valid and executable. 2. Whether the appellant was entitled to interest on the awarded sum as per the terms of the award. 3. Whether the appellant was estopped from claiming interest on the awarded sum by reason of the letter dated 1st December, 1988.
Ratio Decidendi: 1. A decree passed in terms of the provisions of the Arbitration Act, 1940 is valid and executable. 2. A decree passed by a competent court is valid and executable even if it is subsequently recalled or set aside. 3. An appellant is entitled to interest on the awarded sum as per the terms of the award, even if the appellant has accepted the principal sum without protest. 4. An appellant is not estopped from claiming interest on the awarded sum by reason of a letter written by the appellant to the respondent stating that the appellant was accepting the principal sum without interest.
Final Decision: The appeal was allowed. The order of the learned Trial Judge was set aside.
UMESH CHANDRA BANERJEE, J.
1. It is now a well-settled principle of law that by reason of an error or omission, be it factual or otherwise, on the part of the Law Court, a litigant public cannot and ought not to be allowed to suffer since the Law Court's primary consideration is to sub-serve the ends of justice and the law is well settled and as such we need not detain ourselves on that score.
2. The contextual facts depict that on 20th July, 1983 an award was made and published by the learned Arbitrator whereby the respondent was directed to pay to the appellant an amount of Rs. 24,47,080 in full and final settlement of the claim. The award provided further that in the event the sum was not paid to the appellant within 45 days from the date of the award, the awarded sum would carry interest at the rate of 9% per annum from the date of expiry of the aforesaid 45 days.
3. The records depict that subsequent to the award, an application made by the respondent herein for setting aside the award was dismissed by the learned Single Judge on 9th January, 1984 and consequently on 11th January, 1984 a decree was passed in terms of the award. The matter, however, was taken before the Appellate Court by the respondent against the order dated 9th January, 1984 (that is to say against the order of dismissal of the application for setting aside the award). Incidentally be it noted here that there was no appeal from the decree. Subsequently, the Appellate Court by an order dated 8th January, 1986 was pleased to remand the matter back to the learned Trial Judge for hearing of the setting aside application and on 27th July, 1988 by his judgment and order a learned Single Judge was pleased to dismiss the setting aside application on remand. It appears that on 4th October, 1988 the Advocate for the appellant intimated the General Manager of the respondent calling upon him to pay the sum awarded along with interest in terms of the decree dated 11th January, 1984. On 12th October, 1988 the records depict, a learned Single Judge of this Court was pleased to pass another decree in terms of the award dated 29th July, 1983 and awarded interest @ 9% per annum together with an order for costs. The contextual facts reveal that on 31st October, 1988 the respondent did write a letter to the decree-holder stating that the order and judgment of the High Court dated 27th July, 1988 stand accepted and the respondent had decided to comply with the order and to make payment of the awarded sum of Rs. 24,47,080. The appellant was requested to collect payment of the said sum and sign no claim certificate. Be it noted that while no claim certificate was furnished by the appellant in a Form as prepared by the appellant on 2nd December, 1988 a letter was sent to the respondent on 1st December, 1988 recording therein that the no claim certificate was being signed for the principal sum award in terms of the award less Income Tax and the certificate does not include or cover interest on the awarded sum in terms of the award which shall be payable by the Railways as decreed by the Court.
4. Incidentally, be it noted that in terms of the practice of the Original Side of this Court necessary requisition for drawing up of the decree dated 12th October, 1988 was filed before the department, but the department refused to draw up and complete the decree dated 12th October, 1988 by reason of existence of another decree dated 11th January, 1984 pertaining to the self-same award and more so by reason of the fact that the decree dated 11th January, 1984 had already been drawn up and completed and the same being still in force, question of having a second decree in the matter did not arise and as such there was total refusal on the part of the department to draw up and complete the decree dated 12th October, 1988. Confused on this problem the appellant mentioned the matter before the learned Trial Judge and the learned Trial Judge thereafter recalled the decree dated 12th Octobe
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