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IN THE HIGH COURT OF DELHI
C. Hari Shankar, J.
Adhunik Security Services - Appellant
Versus
National Highway Authority of India - Respondent
EX.F.A. 11 of 2022 & CM No. 26506 of 2022 and CM No. 26507 of 2022
Decided On : 31-05-2022
| Table of Content |
|---|
| 1. dispute over arbitral award sums. (Para 1 , 1) |
| 2. nature of appeal under order xxi rule 58(4). (Para 2 , 3) |
| 3. definition and requirements of a decree. (Para 4 , 5 , 6) |
| 4. adjudication process under order xxi. (Para 7 , 8 , 9) |
| 5. no conclusive determination in impugned order. (Para 10 , 11) |
| 6. dismissal of appeal as not maintainable. (Para 12 , 13) |
1. This petition, stated to have been preferred under Order XXI Rule 58(4) of the Code of Civil Procedure, 1908 (CPC) assails the following order, passed by the learned Additional District Judge (the learned ADJ) in Execution Civil 33/2017 (Adhunik Security Services v. NHAI):
"EX CIVIL 33/17
M/S AUDHNIK SECURITY SERVICE Vs. NATIONAL HIGHWY AUTHORITY OF INDIA
25.02.2022
Present: Sh. Rahul Shukla, Ld. Counsel for DH through VC.
Sh. C.S. Chauhan, Ld. Counsel for JD.
Ld. Counsel for DH stated that the dispute is regarding para no. 31(iii, iv, v) of the Arbitral Award. Ld. Counsel for DH further stated that as per the amount mentioned in the entry no. 31(iii) and 31(iv), there is dispute regarding interest and the amount mentioned in the para no. 31(v), no any amount has been paid on behalf of opposite party. It is submitted by Ld. Counsel for DH that as per the section 31(7)(b), the DH is entitled for interest @ 2% higher than the current rate of interest if award is not making provision for interest on a particular amount. On the other hand, Ld. Counsel for JD stated that the issue of interest has already been decided in the award and JD has already made payment of the awarded amount, therefore, they are not liable to pay any further interest as per Section 31(7) (b).
I have considered the submissions of both parties and have also gone through the relevant provision. Section 31(7)(b) reads as "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." It is not disputed that the JD has already made payment of the amount as well as the interest as mentioned in the award. Ld. Counsel for JD stated that in the other amounts which are mentioned in the award, the JD has not paid interest at the rate of 2% higher than the current rate as per their above said provisions. However, it is clearly mentioned in the provision that the DH is entitled for the said rate of 2% higher than the current rate of interest if the award does not otherwise directs. However, in the present award, the Ld. sole Arbitrator had specifically mentioned about the rate of interests on particular amounts and had not awarded the interests on other particular amounts which reflect that the Ld. sole Arbitrator has otherwise, directed regarding mode of rate of interest where it is to be paid and where it is not to be paid. Therefore, it is clear that the DH is not entitled for the interest as per the provision mentioned u/s 31(7) (b) but is entitled to the amount of interest as awarded by the Ld. sole Arbitrator in the award. Ld. Counsel for DH further requested that he seeks time to clarify on para no. 5 that whether entries of amount in this para are two different entries or is one entry under another entry as a heading.
Hence, put up for clarification on this point on 20.05.2022."
2. To my mind, this appeal, at this stage, is not only not maintainable but is completely misconceived. Order XXI Rule 58(4) reads thus:
"58. ADJUDICATION OF CLAIMS TO, OR OBJECTIONS TO ATTACHMENT OF, PROPERTY.
****
(4) Where any claim or objection has been adjudicated upon under this rule, the order made thereon shall have the same force and be subject to the same conditions as to appeal or otherwise as if it were a decree."
3. An appeal would lie, under Order XXI Rule 58(4) only where there is adjudication of a claim or objection under Order XXI Rule 58(4), and, in such event, the adjudication is eligible to be treat
An appeal under Order XXI Rule 58(4) is not maintainable without a conclusive adjudication of claims, highlighting the distinction between adjudication and mere opinion.
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