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IN THE HIGH COURT AT CALCUTTA
HARISH TANDON, HIRANMAY BHATTACHARYYA, JJ.
M/s. Bhowmick Enterprise (India) – Appellant
Versus
Union of India & Ors. – Respondents
GA No. 2 OF 2020 (Old GA 933 OF 2020), GA No. 3 OF 2020(Old GA 1137 OF 2020), RVW No. 2 OF 2020 IN APO No. 28 of 2019 arising out of EC NO.206 OF 2018
Decided on : 16-07-2021
Constitution of India, 1950 – Article 141 – Civil Procedure Code, 1908 – Order 47 Rule 1 – Sole arbitrator – Case of default – Arbitral Tribunal – Held, Supreme Court was referred to in judgment under review and same was taken into consideration while passing said judgment, it was not essential for this court to discuss subsequent judgment passed by a bench of lesser strength on a similar question of law as has been held by Hon’ble Supreme Court of India (supra) – Thus, for reasons as aforesaid this court is of considered view that judgment and order under review does not suffer from any error apparent on face of record – Application for review being RVW No. 2 of 2020 is accordingly, without, however, any order as to costs – Disposed of.
JUDGMENT :
Harish Tandon, J.
1. The instant memorandum of review is at the instance of the appellant seeking review of our judgment and order dated August 22, 2019 passed in APO 28 of 2019 arising out of EC No. 206 of 2018.
2. The decree holders preferred the appeal being APO No. 28 of 2019 challenging a judgment and order dated December 5, 2018 passed by the Learned Single Judge in EC No. 206 of 2018 directing the judgment debtor/respondent to pay a sum of Rs. 3,90, 215 by way of demand draft in favour of the appellant/ review applicant.
3. The said appeal was dismissed by the judgment and order under review.
4. The sole arbitrator passed the final award on January 19, 2001 awarding a total sum of Rs. 4, 59, 212 in respect of claim no. 1, 2 and 4 and further granted the interest at the rate of 12% simple interest per annum on and from February 28, 1998 till the date of award. It was further indicated therein that the aforesaid sum should be paid within 90 days from the date of the award and in case of default, it would carry a simply interest at the rate of 13% per annum.
5. In the judgment under review we expressed our view that once the Arbitral Tribunal awarded the simple interest from specified date which constitutes the sum indicated in Section 31 (7) (a) of the Arbitration and Conciliation Act 1996 it has to be calculated on a yearly rate on the principal sum and not otherwise.
6. The learned advocate for the review applicant contended that there is an error apparent on the face of the record in the judgment under review in as much as the method of calculation of interest as laid down in the judgment of the Hon’ble Supreme Court of India in the case of Hayder Consulting (UK) Limited vs. State of Orissa reported at (2016) 6 SCC 362 was not taken into consideration though the same was relied upon by the learned advocate in the course of hearing of the appeal. He, further, contended that when in the award it is directed that the interest is payable at a particular rate per annum then the interest has to be calculated on yearly basis and the interest for the first year is to be added with the principal amount and the interest for the subsequent period is to be calculated on the total sum i.e. the principal together with the interest of the preceding period/ periods. In other words the contention of the learned advocate is that the interest is to be calculated on compound basis.
7. Mr. Dutta, the learned advocate for the review petitioner relied upon the following judgments of the Hon’ble Supreme Court of India on the scope and powers of review by a high court.
• Oriental Insurance Co. Ltd. and Anr. vs. Gokulprasad Maniklal Agarwal and Anr. reported at (1999) 7 SCC 578,
• Kunhayammed and Ors. vs. State of Kerala and Anr. reported at (2000) 6 SCC 359,
• Board of Control for Cricket in India and anr. vs. Netaji Cricket Club and Ors. reported at (2005) 4 SCC 741,
• Nandi Investments & Enterprises vs. L.M. Saravamangala reported at (2005)9 SCC 754,
• National Housing Coop. Society Ltd. vs. State of Rajasthan and Ors. reported at (2005)12 SCC 149,
• Commissioner of Central Excise, Hyderabad vs. Associated Cement Companies Limited reported at (2011)11 SCC 420,
• Commissioner of Central Excise, Mumbai vs. Bharat Bijlee Limited reported at (2011)12 SCC 172,
• K.G. Derasari and Anr. vs. Union of India and Ors. reported at (2001) 10 SCC 496,
• Srinivasiah vs. Sree Balaji Krishna Hardware Stores reported at (1998) 8 SCC 312.
8. Mr. Mukherjee, the learned advocate for the respondent seriously disputed the contentions of Mr. Dutta. He contended that the review petitioner could not make out any ground for exercising the powers of review by this Court.
9. We have heard the learned advocates for the parties and have perused the materials on record.
10. The final award passed by the arbitral award directed payment of interest on simple interest basis per annum. Simple interest is calcul
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