of U.P. Vs. Harish Chandra & Co 
INSC 534 (11 November
Majmudar, S. Saghir Ahmad, K. Venkataswami. Majmudar, J.
granted in S.L.P.(C) No. 6307 of 1995.
have heard learned senior counsel for the parties in these two appeals.
these appeals by special leave arise out of one and the same judgment rendered
by the High Court of Judicature at Allahabad.
Civil Appeal No. 7643 of 1995, the appellant-State of U.P. has brought in
challenge the aforesaid order of the High Court dismissing its appeal against
the award decree passed by the learned Trial Judge subject to a slight
modification in favour of the appellant - State to which we will make a
reference while considering the cross-appeal arising out of S.L.P.(C) No. 6307
cross-appeal is filed by the respondent Harish Chanra & Co. in Civil Appeal
No.7643 if 1995 who has felt aggrieved by the modification regarding rate of
interest as ordered by the High Court in the impugned judgment to the extent it
reduced interest from 15 per cent per annum as awarded by the trial court from
the date of decree till payment to 6 per cent.
facts leading to the controversy in question may be stated at the outset. On
26th October, 1979 an agreement was entered into between the Superintending
Engineer, Irrigation Construction Circle, Dehradun on behalf of the
appellant-State on the one hand and M/s. Harish Chandra & Co., New Delhi
(respondent herein) on the other.
work entrusted to the respondent-contractor was for excavation of Khara Power
Channel from K.M. 8 to K.M. 9.8 and also the construction of drainage crossings
at Chhoti Lui at K.M. 9.2 and Bari Lui at K.M. 9.6. The work was to be started
on 1.12.1979 and was to be completed latest by 31.5.1982. It is the case of the
appellant-State that the respondent-contractor did not complete the work within
the specified time, that is, by 31.5.1982. Time was extended and still he did
not complete and left the work incomplete on 31.5.1986. That required the State
to get the work completed through other agencies which resulted in incurring of
additional cost by the State in completing the said work.
arose between the parties in connection with the work which was carried on by
the respondent before the aforesaid date, i.e. 31.5.1986. It appears that the
respondent issued a letter dated 16.11.1983 regarding various claims put
forward in the said letter and seeking arbitration of the said disputes as per
the clause contained in the Special Conditions of the Contract. The Chief Engineer,
Yamuna Valley Projects, Irrigation Department, Dehradun responded to the said
letter of the respondent and referred the claims Nos. 1, 2, 4 & 8, 13, 15
and 16 contained in the claimant's aforesaid letter for arbitration to the sole
arbitrator - Chief Engineer, Irrigation Department of the State. After hearing
the parties, the arbitrator rendered his award dated 24th February, 1992.
arbitrator awarded interest on the amounts found due by him to the respondent
at the rate of 15 per cent from 16.11.1983, that is, the date on which the
claimant had sought for reference, to 5.1.1988 on different items.
pendente lite was also allowed at 15 per cent and 6 per cent interest was
allowed on the amounts found due from the date of the award to the date of
actual payment or date of decree whichever was earlier. The said award was
sought to be made rule of the court by the respondent. The appellant-State
raised various objections to the award being made rule of the court. The
learned Trail Judge/Civil Judge, Dehradun, after hearing the parties, by order
dated 11th March, 1993 made the award rule of the court and further directed
that the claimant shall be entitled to get the ordinary interest of 15.5 per
cent per annum on the amount of award with effect from the date of the order upto
the satisfaction of the decree. It is this decree passed by the trial court
that resulted into an appeal by the appellant-State before the High Court which
came to be disposed of by the impugned judgment.
senior counsel for the appellant State Shri Avadh Behari Rohtagi in support of
the appeal vehemently submitted that the arbitrator had no power to grant
interest prior to the reference in view of clause 1.9 of the Special Conditions
of the Contract which clearly prohibited granting of such interest. He also
submitted that the two claims which were granted by the arbitrator regarding hardrock
cutting were also not sustainable on the evidence on record.
cross-appeal, it was submitted by learned senior counsel Shri Harish N Salve
while supporting the main part of the judgment under appeal that the High Court
had committed a patent error in reducing the rate of interest from 15.5 per
cent to 6 per cent from the date of the trial court's order till satisfaction
of the decree. He further submitted that interpretation of Clause 1.9 by the
arbitrator could not have been made a subject matter of objections under
Section 30 of the Arbitration Act.
view of the aforesaid rival contentions, the following points arise for our determination
Whether the award of interest prior to the date of the reference was within the
power and jurisdiction of the arbitrator ?
Even if it was within the jurisdiction of the arbitrator, whether Clause 1.9
barred such consideration ?
Whether such an objection could have been raised before the court in objections
under Section 30 of the Act ?
Whether the reduction of interest from 15.5 per cent to 6 per cent from the
date of the decree till satisfaction of the decree as ordered by the High Court
was justified ?
No.1 So far as this point is concerned, we note a decision of the 3-Judge Bench
of this Court in State of Orissa vs. B.N.Agarwalla, 1997 (2) SSC 469, which has
clearly ruled in the light of the earlier Constitution Bench judgment of this
Court in Secretary, Irrigation Deptt., Govt. of Orissa vs. G.C Roy, 1992 (1)
SCC 508, that the claim for interest even for the pre-reference period was also
within the power and authority of the arbitrator after the Interest Act, 1978.
It is also not in dispute between the parties that in the present cases the
cause of action for reference arose after coming into force of the Interest
Act, 1978. It is also not in dispute between the parties that in the present
cases the cause of action for reference arose after coming into force of the
Interest Act, 1978.
it cannot be effectively urged by learned senior counsel for the
appellant-State that the arbitrator had no power to grant such pre-reference
point is, therefore, answered in affirmative.
Nos. 2. and 3.
it was vehemently contended that even if arbitrator and power to award interest
for pre-reference period, Clause 1.9 prohibited the consideration of such claim
by the arbitrator. Now it must be kept in view that the arbitrator has
interpreted Clause 1.9 and has rejected the contention that claim of interest
would not survive by virtue of the said Clause. Shri Salve submitted that once
the arbitrator has so decided, it was within his jurisdiction to decide one way
or the other and when the question of interest itself was a subject matter of
dispute referred to him, it was for the arbitrator to decide that question and
that could not have been made subject matter of any objection under Section 30
of the Arbitration Act. It is not necessary for us to closely examine this
contention of Shri Salve for the simple reason that when we turn to the Clause
itself, we find that even on merits learned counsel for the appellant-State
cannot effectively support his contention in the light of the said Clause. The
reason is obvious. The said Clause reads as under :- "1.9 No claim for
delayed payment due to dispute etc.
claim for interest or damages will be entertained by the Government with respect
to any moneys or balances which may be lying with Government owing to any
dispute, difference; or misunderstanding between the Engineer-in-charge in
marking periodical or final payments or in any other respect whatsoever."
A mere look at the Clause shows that the claim for interest by way of damages
was not to be entertained against the Government with respect to only a
specified type of amount, namely, any moneys or balances which may be lying
with the Government owing to any dispute, difference between the
Engineer-in-Charge and the contractor; or misunderstanding between the
Engineer-in-Charge and the contractor in marking periodical or final payments
or in any other respect whatsoever. The words "or in any other respect
whatsoever" also referred to the dispute pertaining to the moneys or
balance which may be lying with the Government pursuant to the agreement
meaning thereby security deposit or retention money or any other amount which
might have been with the Government and refund of which might have been
withheld by the Government. The claim for damages or claim for payment for the
work done and which was not paid for would not obviously cover any money which
may be said to be lying with the Government. Consequently, on the express
language of this Clause, there is no prohibition which could be called out
against the respondent-contractor that he could not raise the claim for
interest by way of damages before the arbitrator on the relevant items placed
for adjudication. In fact, similar contention has been repelled by the
aforesaid decision of the 3-Judge Bench of this Court in paragraphs 25 of the
Report that under Clause 4 which was pressed in service, no interest was
payable on the amount withheld. The claim which was made in that case by Durga Parshad
before the arbitrator was for the non-payment of the full amount as per final
bill submitted by him and the interest so awarded on the said amount was
clearly not covered by Clause 4 of the contract. Similar is the facts situation
in the present case and the working of the Clause in question is also of an
identical nature. Therefore, the contention of learned senior counsel for the
appellant-State that Clause 1.9 barred the consideration of such a claim for
interest cannot be sustained. The High Court, therefore, rightly came to the
conclusion that that Clause was not a bar to such a claim. Further contention
of learned senior counsel for the appellant that the claims regarding cutting
of hardrock were wrongly granted, cannot be made subject matter of an objection
under Section 30 of the Arbitration Act which could have been agitated for
getting any reduction of the amount as awarded by the arbitrator. It was a
question purely on merits of the award which could not be agitated in
objections as they were not in the nature of an appeal against the award before
the court below. Civil Appeal No.7643 of 1995 is disposed of accordingly.
No.4 In the cross-appeal being Civil Appeal arising out of Special Leave
Petition (Civil) No.6307 of 1995, learned senior counsel for the
respondent-State vehemently submitted that as per Section 24 of the U.P. Civil
Laws (Reforms and Amendment) Act, 1976, paragraph 7-A was inserted in the First
Schedule to the Arbitration Act, 1940 which barred the power of the arbitrator in
granting more than 6 per cent interest on the awarded amount and, therefore,
the High Court was justified in reducing 15.5 per cent interest to 6 per cent
in the light of the said provision. The aforesaid contention of the learned
counsel has to be examined in the light of what the High Court stated in para 9
of the impugned judgment. It has observed that when the arbitrator has found
interest at the rate of 6 per cent per annum to be reasonable, the trial court
ought to have adopted the same rate of interest for being awarded to the
contractor. In our view, the said reasoning cannot be sustained for the simple
reason that even if aforesaid Paragraph 7-A which was not pressed in service
before the High Court could be resorted to, it only barred the power of the
arbitrator and not of the court. Further, it could not be said that the
arbitrator had found the interest at the rate of 6 per cent per annum to be
reasonable. In fact, he had no authority or power to go beyond 6 per cent
interest. So far as the court is concerned, it is in its discretion to award
15.5 per cent interest on the decretal amount from the date of the decree till
satisfaction of the decree. As that was within the realm of the discretionary
jurisdiction of the trial court it could not have been set aside by the High
Court in appeal. The cross-appeal will stand allowed to this extent by
modifying the judgment and order of the High Court by substituting 15.5 per
cent interest instead of 6 per cent interest per annum from the date of the decree
Civil Appeal No. 7643 of 1995 is dismissed and the Civil Appeal arising out of
Special Leave Petition (Civil) No. 6307 of 1995 is allowed to the aforesaid
limited extent. In the net result, the impugned judgment of the High Court is
modified to the extent indicated and the order of the trial court will stand
wholly confirmed. In the facts and circumstances of the present case, there
will be no order as to cost.
orders will stand vacated. The security furnished by the respondent-contractor
in compliance with the earlier interim order will stand discharged.