Supreme Court - Daily Orders
Mmtc Ltd. vs Anglo American Metallurgical Coal Pty ... on 19 April, 2022
Bench: K.M. Joseph, Hrishikesh Roy
M A NO. 102 OF 2022
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
MISCELLANEOUS APPLICATION NO. 102 OF 2022
IN
REVIEW PETITION (C) NO. 89 OF 2021
IN
CIVIL APPEAL NO. 4083/2020
MMTC LTD. APPELLANT/
APPLICANT
VERSUS
ANGLO AMERICAN METALLURGICAL COAL PTY LTD. RESPONDENT
O R D E R
This is an application filed, seeking the clarification, as to whether the phrase "pendente lite" has been used by the Hon'ble Court in place of the phrase "pre-award interest period" and includes the period of pre-arbitration, i.e. the period commencing from the date of breach of contract to the date of commencement of the arbitration proceedings.
This Court had allowed the appeal filed by Signature Not Verified Digitally signed by SONIA BHASIN Date: 2022.04.22 16:31:36 IST the respondent and restored the majority award. Reason: Thereafter, a review petition was filed by the 1 M A NO. 102 OF 2022 petitioner. The said review culminated in the following order :-
“Application for oral hearing is allowed.
We have heard Mr. Kapil Sibal, learned Senior Advocate, appearing on behalf of the respondent in the Review Petition. The Review Petition has been filed by MMTC Ltd. on the short ground that no reasons have been given by the Majority Award for awarding pre-award interest at the rate of 7.5% and pendente lite and future interest at the rate of 15%. We may only reiterate that the majority Award, which was upheld by the learned Single Judge and set aside by the Division Bench of the High Court, was finally upheld by our judgment dated 17.12.2020, where we allowed the appeal against the Division Bench judgment thereby restoring the Majority Award.
Having heard learned counsel for the parties, we are of the view that given the large interest component of the award, pendente lite and future interest may be reduced to 6% simple interest.
The Review Petition stands disposed of.” 2 M A NO. 102 OF 2022 Having heard the learned senior counsel for the parties, we must first of all observe that a second review does not lie and what we are concerned with an application seeking a clarification of the order passed in the review petition. We are conscious of the fact that under the Arbitration and Conciliation Act, 1996 as far as interest is concerned, it is divided into two periods. The periods would consist of pre-award and post-award. The pre-award period in terms of the pre 1996 regime was being treated as further sub- divided into two periods viz. the period from the date of the breach till the date of the reference. The other part was the period starting with the reference culminating in the award. In the review, however, we may notice that the complaint of the petitioner itself was based on judgment of this court reported in [2019] 11 SCC 465. We may therein note paragraph 7 :-
“7. Section 31(7) is in two parts :clause
(a) pertains to the award of interest for the pre-reference and pendente lite period, which is subject to the agreement between the parties. This would be evident from the opening words of Section 31(7)(a) - "unless otherwise agreed by the parties". Absent an agreement between the parties, the Arbitral 3 M A NO. 102 OF 2022 Tribunal has the discretion to award interest; as it deems reasonable. Interest may be awarded either on the whole, or any part of the sum awarded.” This Court has in the order passed in review petition dated 29.7.2021 finally taking the note of the large interest component of the award directed the reduction of the pendente lite and future interest to 6%. It must be noticed that under the majority award in keeping with the 1996 Act, the pre-award interest was granted at the rate of 7.5% % and post award interest was granted @ 15%. In the nature of the jurisdiction that we are exercising that is in an application seeking clarification and bearing in mind that this is not a second review and taking the order as it is and also noticing the contents of para 7 of the judgment of this Court in [2019] 11 SCC 465 (supra), we would only clarify that pendente lite and future interest being reduced to 6% simple interest would mean that the petitioner would be liable to pay interest @ 6% from the date of reference onwards till the date of payment, whereas for the period from the date of breach till the date of reference, interest will be @ 7.5% per annum.4
M A NO. 102 OF 2022 The application is disposed of accordingly.
……………………………………………. .J. [K.M. JOSEPH] ……………………………………………. .J. [HRISHIKESH ROY] NEW DELHI;
APRIL 19, 2022.
5
M A NO. 102 OF 2022
ITEM NO. 5 COURT NO. 10 SECTION-XIV-A
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Miscellaneous Application No. 102/2022 in R.P.(C) No. 89/2021 in C.A. No. 4083/2020 (Arising out of impugned final judgment and order dated 29-07-2021 in R.P.(C) No. No. 89/2021 passed by the Supreme Court Of India) MMTC LTD. Appellant/ Applicant VERSUS ANGLO AMERICAN METALLURGICAL COAL PTY LTD. Respondent (FOR ADMISSION and IA No.140853/2021-CLARIFICATION/DIRECTION[TO BE TAKEN UP IN THE FIRST THREE CASES] Date : 19-04-2022 These matters were called on for hearing today. CORAM :
HON'BLE MR. JUSTICE K.M. JOSEPH HON'BLE MR. JUSTICE HRISHIKESH ROY For Petitioner(s) Mr. Jayant Sud, ASG Mr. Akhil Sacchar, Adv.
Mr. Randeep Sachdeva, Adv.
Mr. Karan Kapur, Adv.
Mr. Tushar Jawal, Adv.
Ms. B. Vijayalakshmi Menon, AOR For Respondent(s) Mr. Kapil Sibal, Sr. Adv.
Mr. Neeraj Kishan Kaul, Sr. Adv. Mr. Aman Ahluwalia, Adv.
Mr. Samar Singh Kachwaha, Adv. Ms. Garima Bajaj, AOR Mr. Raghavendra Mohan Bajaj, Adv. Ms. Ankit Khusu, Adv.
Ms. Aakanksha Mohan, Adv.
Ms. Aanya Saluja, Adv.
Mr. Nikhil Bamal, Adv.
Mr. Raghav Aggarwal, Adv.
Mr. Dhruv Sharma, Adv.
Ms. Pritha Suri, Adv.
Ms. Ira Mahajan, Adv.6
M A NO. 102 OF 2022 UPON hearing the counsel the Court made the following O R D E R The application is disposed of in terms of the Signed Order.
(SONIA BHASIN) (RENU KAPOOR) COURT MASTER (SH) BRANCH OFFICER [Signed Order is placed on the file] 7