Himachal Pradesh High Court
Union Of India vs M/S Vij Enginer & Construction Pvt. Ltd on 25 July, 2019
Author: Sureshwar Thakur
Bench: Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CARBC No. 5 of 2018 .
Reserved on 18.7.2019 Decided on : 25.7.2019 Union of India ...Petitioner Versus M/s Vij Enginer & Construction Pvt. Ltd ...Respondent ___________________________________________ Coram Hon'ble Mr. Justice Sureshwar Thakur, Judge. Whether approved for reporting? yes ________________________________________________ For the petitioner : Mr. Balram Sharma, Central Government Counsel.
For the respondent : Mr. Rakesh Thakur, Advocate.
Sureshwar Thakur, Judge The petitioner herein, stands aggrieved, by the award pronounced by the sole Arbitrator, hence through, the instant petition, cast under the provisions of 34 of the Arbitration and Conciliation Act, 1996, it, strives, to, beget its reversal. The learned Arbitrator, vis-à-vis, the contesting claims, reared before him, by the litigants, had dis-allowed claim No. 1(a), and, vis-à-vis, claim No. 1(b), ::: Downloaded on - 29/09/2019 01:16:17 :::HCHP 2 appertaining to levying of interest, on the defaulted amount, proceeded, to, on anvil of Section 31(7) of the Act, provisions whereof, stand extracted .
hereinafter, and, in consonance therewith hence levied interest thereon:
"31. Form and contents of arbitral award: (7) (a) Unless otherwise agreed by the parties, here and in so far as an arbitral award is for the payment of money, the arbitral tribunal may include in the sum for which the awards is made interest, at such rate as it deems reasonable, on the whole or any part of the money, for the whole or any part of the period between the date on which the cause of action arose and the date on which the award is made".
Therethrough, a statutory leverage, stands purveyed, to him, to award interest, on, the defaulted sum(s), a) at such rates, as deemed, reasonable, b) levying of interest, on the awarded sum(s), covering the periods, falling in the interregnum, since the accrual of cause of action, and, the date whereat the award, is, made,
(c) hence the latter portion of the apt statutory provisions, empowers the Arbitrator, to award even pre-adjudication interest, or he stands empowered, to levy ante lis interest, on the relevant adjudicated sum(s), of, money. Further more, since the respondents, in their pleadings, borne in para-2, 2 ::: Downloaded on - 29/09/2019 01:16:17 :::HCHP 3 visibly acquiesce, to the afore levying of interest, vis-
à-vis, the defaulted sum(s) of money, (d) thereupon hence in the sole Arbitrator, vis-à-vis, claim No. 1(b), .
rather levying pre-reference interest, upon, the acquiesced defaulted amount, has not committed, any impropriety or illegality. Consequently, the apposite levying(s), of, pre-reference interest, in the manner, as borne in para-45, and, 46, of the Award, as rendered by the Sole Arbitrator, does not merit, any interference.
2. Furthermore, the Sole Arbitrator, vis-à-vis, the claim reared therebefore, by the respondent herein, and, working towards escalation, and, Damages, had depended, upon, the concurrent therewith, admissions made by the petitioner herein, and, hence under the afore head of claim, he, awarded a sum of, Rs. 831853/- to the respondent herein. Consequently, hence with the afore claim, being admitted, by the petitioner herein, thereupon the relief granted, qua therewith, vis-à-vis, the respondent herein, is, both, just and fair, and, warrants no interference, besides, the quantum, of, levying(s) of interest, thereon is also not interfereable.
3 ::: Downloaded on - 29/09/2019 01:16:17 :::HCHP 43. In addition, the Sole Arbitrator, vis-à-vis, the claim reared by the respondent herein, and, appertaining, to, loss of profit, vis-à-vis, the afore .
statutory claim, had awarded, a sum of Rs.
30,63,277/-,and the reasons assigned, for, his awarding, the afore sum(s) of money, under, the afore head, (a) ensues from, the petitioner(s) herein, evidently, failing to perform their part, of contract(s),
(b) and also when the awards of money(s) under the afore recorded claims, of, the respondents herein, is not reared, as a, ground before this Court, for it hence making an intereference therewith, therefrom the awarding, of, claim No. 3, by the sole Arbitrator, vis-à-vis, the respondent herein, also does not, merit any interference.
4. Be that as it may, since, sum Rs. 4,37,000/-
was also determined, vis-à-vis, the respondents herein, under claim No. 5, appertaining to profit Loss, on balance work, due to foreclosure, and, since apposite grounds, for casting any challenge thereon, rather remained un-constituted herebefore, thereupon the afore portion, of, the award, is, also maintained. The cost of reference, under claim No. 7, 4 ::: Downloaded on - 29/09/2019 01:16:17 :::HCHP 5 is, also upheld.
5. The awarding(s) qua supplementary claim, No. 1, vis-à-vis, the respondent herein, and, arising .
from introduction of GST, remains un-contested, by the respondent/petitioner herein, (i) thereupon awarding of sum(s) of Rs. 11,50,002/-, under, the afore head also does not warrant any interference.
6. Even though, the petitioner herein, did not rear, any objections, vis-à-vis, the espoused claims, on anvil, qua theirs being time barred, (i) yet, during the course, of, hearing of this petition, the learned counsel for the petitioner, has contended, that the recoursing(s) by the respondent herein, hence, the aegis, of, Arbitration, rather being time barred (i) and also he has made a concomitant therewith espousal, before this Court, that, the entering upon reference(s), rather by the learned Arbitrator, upon time barred claims, being invalid, consequently, also the awarding of sum(s), under certain heads, being stained, given the requisite claims being time barred,
(ii) however, since the afore objections, are raised only before this Court, thereupon they are impermissible, for being reared herebefore iii) 5 ::: Downloaded on - 29/09/2019 01:16:17 :::HCHP 6 moreso, when even at the stage of the sole Arbitrator, hence entering, upon, the reference made to him, by the contracting parties, no apposite objection .
therewith, rather stood raised, by the petitioner herein, nor even when at the afore stage, the petitioner herein, through, making recoursing(s), to all the legal processes, hence strived to seek, an order for restraining the sole Arbitrator, to enter upon a purportedly time barred reference, c) thereupon the afore objection, is, construed, to be surmisely raised, and, also, hence the petitioner is estopped, to, at this belated stage, hence make the afore contention, d) as any permission, to the petitioner/herein, to raise the afore objection, only at this belated stage, rather would gravely prejudice, the, respondent herein, to, despite certain sum(s), of, money, being awarded, qua the claims, reared by him, before the learned Arbitrator, his being, on the afore purported stain, being deprived, to, seek realization thereof.
6. Even otherwise, the merit of the afore claims is to be adjudged, on anvil of the respondent herein, making repeated endeavors, even prior, to the reference, and, even prior to the entering thereinto, 6 ::: Downloaded on - 29/09/2019 01:16:17 :::HCHP 7 hence, by the sole arbitrator, (i) the apt repeated, and, umpteen recorded correspondence(s) made with the petitioner herein, for therethrough the latter .
relenting, to, liquidate to him, the un-contested claims, and singularly appertaining, to the works, already completed, by him (ii) and, when no evidence has emerged, vis-à-vis, the afore un-contested claims, of, the respondent/Contractor, not appertaining, to, certain admitted claims of the Contractor, or being not anchored, upon the afore factors, rather when qua therewith, the respondent herein, had, made recorded abortive umpteen correspondences, with, the petitioner, (iii) thereupon, the, time, of, accrual of cause of action, vis-à-vis, the claims reared by the Contractor, against, the petitioner herein, commences from the stage whereat the petitioner, made dis-
affirmative responses, qua the recorded umpteen correspondences, made with it, by the petitioner/herein, and, when therefrom, the rearing of claims, is, within the realm limitation, thereupon the claims, are, not construable to be either time barred, nor the award, can be stained with any vice of any illegality.
7 ::: Downloaded on - 29/09/2019 01:16:17 :::HCHP 87. Consequently, there is no merit in the petition and the same is dismissed. All pending application(s), if any, are also disposed of. No costs.
.
(Sureshwar Thakur)
Judge
25.7.2019
Kalpana
r to
8
::: Downloaded on - 29/09/2019 01:16:17 :::HCHP