Durga
Ram Prasad Vs. Govt. of A.P [1994] INSC 606 (23 November 1994)
Ramaswamy,
K. Ramaswamy, K. Reddy, K. Jayachandra (J)
CITATION:
1995 SCC (1) 418 JT 1995 (2) 86 1994 SCALE (5)42
ACT:
HEAD NOTE:
ORDER
1.
These appeals by special leave arise from the judgment of the Division Bench of
the Andhra Pradesh High Court in Memo of Cross Objection in CMA No. 191 of 1975
dated 23-4- 1975. The appellant had entered into a contract on 16-3- 1965 to
construct foodgrains godown at Karimnagar. In execution thereof, a dispute had
arisen whether the appellant had executed the work as per the contract and is
entitled to certain sums of money withheld by the engineer and also to the
interest payable thereon at 12% etc. The dispute has been referred to the
Arbitrator, a retired Chief Engineer, who in his Award dated 12-4-1972 awarded a sum of Rs 27,776 with interest at 12% on
the amounts wrongfully withheld by the engineer. We are concerned in these
appeals only with the entitlement of interest on the amounts withheld by the
engineer. The Division Bench concluded, while negativing the claim for
interest, thus:
"We
are, however, inclined to agree with the first ground given by the Court below
in negativing the claim for interest. Under clause 69 of MDSS which has to be treated
as part of the contract, it is provided 'nor shall the contractor be entitled
to interest upon any guarantee fund or payments in arrears, nor upon any
balance which may, on the final settlement of his accounts, be found to be due
to him'. Even if it is assumed that the recoveries from the bills were
wrongfully made, such sums would be sums which would be found due to the
contractors on the final settlement of accounts."
2. We
are not concerned with the correctness of the views expressed on other issues
as the State did not file appeals.
Shri Kanta
Rao, the learned counsel for the appellant contended that when the appellant
had executed the work within the period, in terms of the contract, and the
officials of the respondent had wrongfully withheld the due payment, on the
respective dates, the appellant is entitled to the interest on the amounts
wrongfully withheld. He further contends that clause 69 of the MDSS is
inapplicable to the facts of this situation. In support thereof, he places
reliance on the judgment of a learned Single Judge of that Court reported in
APSRTC v. P. Ramanareddi1.
3. The
question, therefore, is whether the appellant is entitled to payment of
interest from the respective dates on which the amounts were withheld by the
concerned engineer and the dispute is arbitrable? 1 (1989) 1 Andh LT 195 420
Clause 69 of MDSS reads thus:
"69.
Interest on money due to the contractor.- (a) No omission by the Executive
Engineer or the Sub-Divisional Officer to pay the amount due upon certificates
shall vitiate or make void the contract, nor shall the contractor be entitled
to interest upon any guarantee found or payments in arrear, nor upon any
balance which may, on the final settlement of his accounts, be found to be due
to him." A reading of this clause gives an indication that interest on
money due to the contractor was negatived in the following circumstances:
(1)
The omission by the Executive Engineer or Sub-Divisional Officer to pay the
amount due upon certificates shall not vitiate or make the contract void;
(2)
The contractor shall not be entitled to interest upon:
(a) any
guarantee found;
(b) payments
in arrears; and
(c) upon
any balance which may on final settlement of his account to be found to be due
to him.
The
question is whether the contractor is entitled to the payment of interest on
the amounts wrongfully withheld from the respective dates. Clause (c) of the
second part of clause 69 of the MDSS would indicate that there should be a
final settlement of the account and upon its settlement, if it is found to be
due and payable to the contractor, on such amount also the contractor is not
entitled to the payment of interest as contracted under clause 69 of the MDSS.
When such is the position, whether the contractor is entitled to payment of
interest on mere making a claim and reference made to the arbitrator and
whether the arbitrator gets jurisdiction to award interest on the amount due
from the respective dates on which the payments were withheld by tile engineer
concerned?
4. It
is true that the learned Single Judge of the A.P High Court appears to have
considered the question and the construction of clause 69 was put up is in favour
of the contractor as contended for. It is not a correct approach.
The
construction put up on clause 69 of MDSS is not correct.
However,
on the facts in that case there does not appear to be any dispute as to the
amount due. Therefore, the learned Judge had proceeded that since the contract
provides for withholding the payment for a suspended period of six months, if
the amount is withheld beyond that period, the contractor would be entitled to
the payment of interest.
That
is not the factual scenario in this case. The very dispute is whether the
appellant is entitled to the payment of the amount pursuant to the contract.
The claim of the State appears to be that the appellant had not constructed the
godown in accordance with the specifications and that, therefore, they withheld
the payment. Unless the dispute is resolved and the amount is found due, the
contractor is not entitled to the payment of it. Thereon interest in terms of
clause 69 of the MDSS is contracted out. When such be the position, then mere
reference does give 421 jurisdiction to the arbitrator to award interest to the
period prior to the reference.
5.
This Court in Executive Engineer (Irrigation) v. Abhaduta Jena2 (in SCC p. 435,
para 20) held that:
"In
the remaining cases which arose before the commencement of the Interest Act,
1978, the respondents are not entitled to claim interest either before the
commencement of the proceedings.... They are not entitled to claim interest for
the period prior to the commencement of the arbitration proceedings for the
reason that the Interest Act, 1839 does not apply to their cases and there is no
agreement to pay interest or any usage of trade having the force of law or any
other provision of law under which the claimants were entitled to recover
interest." This ratio was followed by another Bench of this Court in State
of Orissa v. Niranjan Swain3. In Secy.,
Irrigation Deptt. v. G.C. Roy4 the Constitution Bench was concerned with the
case whether the contractor is entitled to interest pendente lite. The
controversy, therefore, centres around the question whether the contractor is
entitled to the interest pendente lite. The ratio therein, therefore, has no
relevance for the purpose of this case. The ratio in Jena case2 on the above-quoted ratio is still good law.
Accordingly,
we are of the view that the contractor is not entitled to payment of interest
in terms of clause 69 of MDSS for the period anterior to the reference for
arbitration until the final settlement of the amount due to the contractor of
his account is determined. In this case that dispute was determined by the
arbitrator in his award.
Therefore,
from the date of withholding till the date of award the appellant is not
entitled to the payment of interest. The arbitrator has no jurisdiction to
arbitrate that dispute. The Division Bench, therefore, rightly negatived the
claim for interest.
6. The
appeals are accordingly dismissed, but in the circumstances, without costs.
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