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State of Orissa Vs. Lal Chand Kapani [1993] INSC 14 (12 January 1993)

Reddy, K. Jayachandra (J) Reddy, K. Jayachandra (J) Singh N.P. (J)

CITATION: 1993 AIR 2464 1994 SCC Supl. (1) 68 JT 1993 Supl. 472

ACT:

HEAD NOTE:

ORDER

1. This is an appeal pursuant to the special leave granted in appeal filed by the State of Orissa against the judgment of the High Court. The matter arises out of arbitration proceedings and the dispute is regarding the interest that was awarded.

2. The arbitrator awarded the amount of Rs 63,186 by way of interest though the claim was of Rs 2,74,230. The Subordinate Judge accepted the award regarding the interest and also made it the rule of the court. Aggrieved by the same the State of Orissa filed an appeal before the High Court and it is held that the direction for payment of interest given by the arbitrator is legal and correct. No other details are given in the judgment of the High Court.

3. In this appeal before us, Mr R.K. Mehta, learned counsel for the appellant submits that the award in the instant case was passed on March 7, 1979 i.e. prior to the Interest Act (i.e. 1978 Interest Act which came into force in August 1981) and as the position stood then the claimant was not entitled to interest during the pre-reference period and, therefore, the interest part of it should be struck down. The learned counsel placed considerable reliance on the 69 judgment of this Court in Executive Engineer (Irrigation), Balimela v. Abhaduta Jena' wherein it was held: (SCC p. 425, para 4) "Again, we must look elsewhere to discover the right of the arbitrator to award interest before the institution of the proceedings, in cases where the proceedings had concluded before the commencement of the Interest Act of 1978. While under the Interest Act of 1978 the expression 'court' was defined to include an arbitrator, under the Interest Act of 1839 it was not so defined. The result is that while in cases arising after the commencement of Interest Act of 1978 an arbitrator has the same power as the court to award interest up to the date of institution of the proceedings, in cases which arose prior to the commencement of the 1978 Act the arbitrator has no such power under the Interest Act of 1839." It is thus clear that before the 1978 Interest Act came into force there was no provision under which the interest for the pre-reference period could be granted. In this case, the Supreme Court also held that the interest pendente lite i.e. from the date of reference to the date of the award, the claimants would not be entitled to the same for the reason that arbitrator is not a court within the meaning of Section 34 CPC since the reference was not by a court in a pending suit. This view regarding the interest pendente lite however has been reversed in Secretary, Irrigation Department, Government of Orissa v. G.C Roy2. Regarding the interest during the pre-reference period, the view taken in Abhaduta Jena case' is not disturbed. Therefore the interest during the pre-reference period can be awarded provided on the date of the award, 1978 Interest Act was in force. In the instant case, we are not specifically concerned with -the interest pendente lite. The submission on behalf of the State with reference to the interest during pre-reference period is that admittedly the proceedings before the arbitrator were initiated in the year 1977 and the award was passed on March 7, 1979 namely before the 1978 Interest Act came into force and therefore the interest during the pre-reference period cannot be awarded. But the difficulty in the instant case is that the interest of Rs 63,186 as shown in the award cannot necessarily be taken as interest for the. pre-reference period. It is not clear whether the interest so awarded includes the pendente lite interest and the period also has not been indicated. As a matter of fact, the learned Subordinate Judge who made the award a rule of the court has clearly noted that the plaintiff claimed interest and the learned arbitrator allowed Rs 63,186 without noting the period or the rate of interest. Therefore, it is difficult to infer that the interest awarded includes interest during the pre-reference period as well as the period during which the arbitration proceedings were pending (pendente lite). Therefore the question of remanding it to the arbitrator does not arise.

Even otherwise this matter was referred to the arbitrator in respect of an agreement entered into in the year 1971 and we do not think that at this distance of time it is in the interest of justice to set aside the impugned,. judgment and reopen all the proceedings, particularly when there is no clear indication that the impugned award included the interest during the prereference period. Accordingly, the appeal is dismissed. There will be no order as to costs.

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