Jharkhand High Court
M/S Matchi (Mateti) Engineering And ... vs Uranium Corporation Of India Limited on 29 January, 2021
Author: Aparesh Kumar Singh
Bench: Aparesh Kumar Singh
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Civil Review No. 95 of 2019
M/S Matchi (Mateti) Engineering and Contractor, UCIL
Project Sundernagar, District-Singhbhum (East) --- Petitioner
Versus
Uranium Corporation of India Limited, Jaduguda Mines,
East Singhbhum, Jharkhand --- Opposite party
CORAM: Hon'ble Mr. Justice Aparesh Kumar Singh
Through: Video Conferencing
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For the Petitioner : Mr. Pratyush Kumar, Advocate
Mr. Prashant Kumar Shrivastava
For the Respondent : Mr. Sudarshan Shrivastava, Advocate
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14/29.01.2021 Heard learned counsel for the petitioner, Mr. Pratyush Kumar and Mr.
Sudarshan Shrivastava appearing for the opposite party.
2. Petitioner has sought review of the judgment and decree dated 1st November, 2018 and 18th July, 2019 passed in Arbitration Appeal No. 07 of 2003. Petitioner was allowed to amend the averments made in the review petition vide I.A. No. 2684 of 2020 by order dated 28th August, 2020. By the instant amendment application, petitioner has sought to add certain grounds in support of the prayer for review.
3. The Arbitration Appeal No. 07 of 2003 was preferred under Section 39(1)(vi) of the Arbitration Act, 1940 by the defendant/opposite party-Uranium Corporation of India Limited being aggrieved by the judgment dated 9 th May, 2003 passed by learned Sub Judge-I, Ghatshila, whereby the objection filed on behalf of the appellant under Sections 30 and 33 of the Act of 1940 was rejected. By order dated 9th May, 2003, the Award was made rule of the Court with interest of 18% post- award till the date of payment. By the impugned judgment dated 1 st November, 2018 passed in Arbitration Appeal No. 07 of 2003, this Court did not find any error apparent on the face of the award or any misconduct on the part of Arbitrator to interfere in the matter on the specific grounds urged by the objector/appellant herein. The operative portion of the judgment at paras 14, 15 and 16 are quoted hereunder;
"14. Jurisdiction of the learned Arbitrator to award pre-reference interest pendente lite interest and future interest is no longer res integra in view of the recent judgment rendered by Hon'ble Supreme in the case of Reliance Cellulose Products Limited Vs. Oil and Natural Gas Corporation Limited [(2018) 9 SCC 266], at Paragraph 24 thereof, it has been held in the following terms:-
"24. A conspectus of the decisions that have been referred to above would show that under the 1940 Act, an arbitrator has power to grant pre-reference interest under the Interest Act, 1978 as well as pendente lite and future interest. However, he is constricted only by the fact that an agreement between the parties 2. may contain an express bar to the award of pre-reference and/or pendente lite interest. Since interest is compensatory in nature and is parasitic upon a principal sum not having been paid in time, this Court has frowned upon clauses that bar the payment of interest. It has therefore evolved the test of strict construction of such clauses, and has gone on to state that unless there is a clear and express bar to the payment of interest that can be awarded by an arbitrator, clauses which do not refer to claims before the Arbitrators or disputes between parties and clearly bar payment of interest, cannot stand in the way of an arbitrator awarding pre-reference or pendente lite interest. Thus, when one contrasts a clause such as the clause in Second Ambica Construction Case with the clause in Tehri Hydro Development Corpn. Ltd., it becomes clear that unless a contractor agrees that no claim for interest will either be entertained or payable by the other party owing to dispute, difference, or misunderstandings between the parties or in respect of delay on the part of the engineer or in any other respect whatsoever, leading the Court to find an express bar against payment of interest, a clause which merely states that no interest will be payable upon amounts payable to the contractor under the contract would not be sufficient to bar an arbitrator from awarding pendente lite interest under the 1940 Act. As has been held in First Ambica Construction Case, the grant of pendente lite interest depends upon the phraseology used in the agreement, clauses conferring power relating to arbitration, the nature of claim and dispute referred to the Arbitrator, and on what items the power to award interest has been taken away and for which period. We hasten to add that the position as has been explained in some of the judgments above under Section 31(7) of the 1996 Act, is wholly different, inasmuch as Section 31(7) of the 1996 Act sanctifies agreements between the parties and states that the moment the agreement says otherwise, no interest becomes payable right from the date of the cause of action until the award is delivered."
15. On none of the counts, therefore, this Court is persuaded to believe that the Arbitrator misconducted himself in awarding the claim. Award under each of the items is well reasoned and takes into account the contention of rival parties, the relevant terms of the agreement as well as materials adduced during the arbitration proceedings in respect thereof. Learned Sub-Judge-I, Ghatshila therefore did not find any error apparent on the face of the award or any misconduct on the part of Arbitrator to interfere in the matter on the specific grounds urged by the objector/appellant herein. However, there is no other rational basis showed in the impugned order to award interest @ 18% post decree. Apart from that, learned counsel for the appellant is right in saying that the post decretal interest @ 18% has erroneously been granted over the total sum which includes principal and interest component. Under 1940 Act, Section 29, the Court has the discretion to award interest at a reasonable rate from the date of decree to be paid on the principal sum as adjudged by the award and confirmed by the decree. Learned Sub Judge-I, Ghatshila therefore committed an error in law in awarding interest @ 18% over the adjudged amount i.e. both principal and interest taken together. As such, on this score, this Court is satisfied that the impugned order needs interference. There are no materials on record to show as to what was the prevalent rate of interest at the time the award was passed. In such circumstances, this Court is of the view that the principal amount i.e., Rs. 10,82,203.21 as adjudged under the award should carry interest @ 10% per annum from the date of decree till it is paid.
3.16. Accordingly, appeal stands partly allowed with the aforesaid modification in the impugned order."
4. The appeal was partly allowed with the modification indicated therein. The review petitioner has, inter alia, sought review of the impugned judgment on three counts:
(i) That this Court committed an error apparent on the face of record by modifying the judgment of the learned Sub Judge-I-, Ghatshila to the extent that the post-decreetal interest at the rate of 18% has been erroneously granted including the principal and interest component.
This Court despite noticing the judgment of the Apex Court in the case of Reliance Cellulose Products Limited Vs. Oil and Natural Gas Corporation Limited reported in (2018) 9 SCC 266, Para-24 held that the post-decreetal interest at the rate of 18% should be on the principal amount alone adjudged by the award and confirmed by the impugned decree. Learned counsel for the petitioner relying upon the decision of the Apex Court in the case of Yashwant Sinha and others Vs. Central Bureau of Investigation reported in (2020) 2 SCC 338, Paragraphs 69 and 78 submits that the finding of the Appellate Court amounts to an error apparent on the face of record, which can be corrected in review. The Hon'ble Supreme Court in the case of Reliance Cellulose Products Limited (supra), arising out of 1940 Act held that interest is compensatory in nature and is parasitic upon principal sum not having been paid in time. Section 29 also speaks about principal sum, which includes the principal sum and the interest awarded thereupon by learned Arbitrator. This Court, therefore, may exercise its review jurisdiction to correct the apparent error on the face of record.
(ii) The Appellate Court by the impugned judgement has reduced the post-
decreetal interest awarded @ 18% by the learned Sub Judge-I, Ghatshila to 10% per annum from the date of decree till it is paid. The Appellate Court was persuaded by the reasoning that there are no materials on record to show as to what was the prevalent rate of interest at the time the award was passed. Learned counsel for the petitioner has referred to the judgment of learned Sub-Judge-I, Ghatshila and the discussion at Paragraph-10 of the judgment impugned herein that counter claim of the respondent was allowed on 4. the balance mobilization advance of Rs. 1,67,095/- with interest @ 17% per annum from 27.05.1992 till the date of award. It is however submitted by learned counsel for the petitioner that counter claim awarded was not under challenge by the claimant. He has also referred to the findings of the learned Arbitrator on the counter claim of the defendant/ opposite party herein, wherein Clause-13 of the Special Condition of Contract D-23A was taken note of, which provided that such advance shall bear interest @ 17% per annum till the date of the award. It is submitted that the learned Sub-Judge-I, Ghatshila, therefore, was justified in awarding interest @ 18% on the post- decreetal sum. This again is an error apparent on the face of the record, which may be corrected in review jurisdiction.
(iii) Learned counsel for the petitioner has then referred to the decree prepared under the impugned judgement. He submits that perusal thereof would show that no interest have been granted for the period from the date of submission of the award to the learned court below to the date of judgment i.e. 09.05.2003 passed in Title Suit No. 9 of 1998, though the said period carried interest and the same had not been disturbed or set aside by this Court in Arbitration Appeal.
5. Learned counsel for the petitioner has placed reliance upon the decision of the Apex Court in the case of Reliance Cellulose Products Limited (supra) and also that in the case of Oil & Natural Gas Commission Vs. M.C.Clelland Engineers S.A reported in (1999) 4 SCC 327, Para-4. He submits that the principal amount + interest awarded thereupon together form principal sum, as contemplated in Section 29 of 1940 Act upon which, post-decreetal interest can be awarded by the learned Court of Sub-Judge-I, Ghatshila. He has also placed reliance upon the decision in the case of Lily Thomas Vs. Union of India & others reported in (2000) 6 SCC 224 on the scope of review jurisdiction. According to him, as per the observations of the Apex Court in the case of Yashwant Sinha and others (supra) at para 78 that if the relevant law is ignored or an inapplicable law forms the foundation for the judgement, it would provide a ground for review. This Court despite noticing the decision in the case of Reliance Cellulose Products Limited (supra) committed an error in holding that post-decreetal interest under Section 29 of the 1940 Act would lie only upon the principal sums and not interest also taken together. Based on these submissions, learned counsel for the petitioner has summarized his arguments on 5. the aforesaid premise in order to seek review of the impugned judgment on these three counts.
6. Learned counsel for the opposite party, Mr. Sudarshan Shrivastava has, at the outset, referred to the scope of review under Order 47 Rule 1 of the Code of Civil Procedure. He submits that the petitioner has not shown discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made. He has placed reliance upon the decision in the case of Union of India Vs. Sandur Manganese and Iron Ores Limited and others reported in (2013) 8 SCC 337 on this point. He submits that the plea raised by the petitioner, if allowed, would amount to re-appreciation of the entire case of the parties on merits, which is not permissible under the scope of review. The first two plea may, at best, would be a ground for appeal, but in the garb of review, petitioner should not be allowed to agitate matters, which require detailed arguments and re-hearing of the main matter itself. It is submitted that this Court on appreciation of the provisions of law and the decisions of the Apex Court has taken a view that post-decreetal interest could not have been awarded under Section 29 of the 1940 Act, both upon the principal amount and the interest added together. This being a plausible view taken by the Appellate Court cannot be termed as an error apparent on the face of the record warranting review of the impugned judgment.
7. Learned counsel for the opposite party has also answered the second plea raised by the petitioner on the point of reduction of interest to 10% per annum post decree by the Appellate Court. It is submitted that this Court took note of 17% rate of interest awarded on the counter claim by the learned Arbitrator, as also reflected from the award and judgment of the learned Sub- Judge-I, Ghatshila. However, the learned Sub-Judge-I, Ghatshila in the judgment dated 09.05.2003 appears to have been mistakenly guided by the provisions of Arbitration and Conciliation Act, 1996 in awarding 18% rate of interest on the post-decreetal sum. There were no materials on record before the learned Lower Court to show that what was the prevalent rate of interest at the time of passing of the award or when the award was made the rule of the Court vide judgement dated 09.05.2003. Therefore, such a plea also does not fall within the scope of review. Review jurisdiction cannot be exercised to discover and correct patent errors in the judgment under review. Otherwise, it would amount to an appeal in disguise.
6.On the third plea, learned counsel for the opposite party has referred to Section 152 of the Civil Procedure Code, which permits amendment of judgments, decrees or orders to correct clerical or arithmetical mistakes or errors arising therein from any accidental slip or omission either on its own motion or on the application of any of the parties. It is submitted that such correction in the decree should not be sought in the garb of a review by the petitioner. Therefore, the instant petition does not make out any grounds for exercise of review jurisdiction of this Court. The instant petition is fit to be dismissed.
8. I have considered the submissions of learned counsel for the parties and taken note of the plea raised by the petitioner for seeking review of the impugned judgment on three counts. I propose to deal with them one by one hereinafter. At the outset, it is proper to extract the provisions relating to review under Order 47 Rule 1 C.P.C. hereinbelow.
"1. Application for review of judgment. - (1) Any person considering himself aggrieved-
(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred,
(b) by a decree or order from which no appeal is allowed, or
(c) by a decision on a reference from a Court of Small Causes, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order.
(2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the Appellate Court the case on which he applies for the review.
[Explanation.-The fact that the decision on a question of law on which the judgment of the Court is based has been reversed or modified by the subsequent decision of a superior Court in any other case, shall not be a ground for the review of such judgment.]"
9. Petitioner has rested his plea of review under Order 47 Rule 1 C.P.C i.e., to correct the mistake or error apparent on the face of the record. It is not the case of the petitioner that he has discovered certain new and important matters or evidence which, after exercise of due diligence, was not within his knowledge or could not be produced by him at the time of the impugned judgment. The scope of review jurisdiction has been laid down 7. from time to time by the decisions rendered by the Hon'ble Supreme Court. Power of review is exercised by a Court to correct the mistakes or errors apparent on the face of the record committed by the Court and not for correction of the errors of the parties. Moreover, error to be an error on the face of the record cannot be one which has to be established by a long drawn process of reasoning on points or where there may conceivably be two opinions or the error requires lengthy and complicated arguments to establish it [See AIR 1960 SC 137]. It is also well settled that a review is not an appeal in disguise and a mere erroneous decision may not justify a review. Rendering justice remains the upper most in the minds of the Court while correcting its judgment in exercise of review jurisdiction. A review petition is maintainable if the impugned judgement discloses an error apparent on the face of the record. In the conspectus of facts of the present case, it is appropriate to refer to the case of Yashwant Sinha (Supra) reported in (2020) 2 SCC 338. The Apex Court while explaining the scope of the review jurisdiction has held at Para-78 in the following words.
"78. The view of this Court, in Girdhari Lal Gupta as also in Deo Narain Singh, has been noticed to be that if the relevant law is ignored or an inapplicable law forms the foundation for the judgment, it would provide a ground for review. If a court is oblivious to the relevant statutory provisions, the judgment would, in fact, be per incuriam. No doubt, the concept of per incuriam is apposite in the context of its value as the precedent but as between the parties, certainly it would be open to urge that a judgment rendered, in ignorance of the applicable law, must be reviewed. The judgment, in such a case, becomes open to review as it would betray a clear error in the decision."
10. Based on the aforesaid proposition, this Court is of the view that the finding in the impugned judgment that the post-decreetal interest has been erroneously granted over the total sum which includes principal and interest component by learned Sub Judge-I, Ghatsila under Section 29 of 1940 Act is an error is apparent on the face of record in the light of the ratio rendered by the Apex Court in the case of Reliance Cellulose Products Limited (supra) at para-24 quoted under para-14 of the impugned judgment. The Apex Court while referring to the decisions under 1940 Act held that an Arbitrator has the power to grant pre-reference interest under the Interest Act, 1978 as well pendent lite and future interest. However, he is constricted only by the fact that an agreement between the parties may contain an express bar to the award of pre-reference and/or pendent lite interest. Since interest is compensatory in nature and is parasitic upon a principal sum not having been paid in time, the 8. Apex Court has frowned upon clauses that bar the payment of interest. Under the impugned judgment despite noticing the ratio rendered by the Apex Court in the case of Reliance Cellulose Products Limited (supra), this Court, however, proceeded to hold that under Section 29 of the 1940 Act, the Court has discretion to award interest at a reasonable rate from the date of decree to be paid on the principal sum as adjudged by the Award and not interest thereupon taken together. This being an error apparent on the face of record therefore needs to be corrected in exercise of the review jurisdiction. As such, this Court is of the opinion that the post-decreetal interest has to be granted over the total sum, which includes principal and interest component. Learned counsel for the petitioner has also relied upon the decision in the case of Oil & Natural Gas Commission Vs. M.C.Clelland Engineers S.A (Supra) at para- 4 in this regard.
11. The second plea urged by the petitioner is with regard to reduction of post-decreetal interest at the rate of 10% per annum against 18% per annum awarded by learned Sub Judge-I, Ghatshila in its judgment dated 9th May, 2003. A perusal of the judgment of the learned Sub Judge-I, Ghatshila shows that it was guided by the provisions under Section 31 of the Arbitration and Conciliation Act, 1996, which provided for award of interest at the rate of 18%. It is also evident that there was nothing on record before learned Sub Judge-I, Ghatshila to show as to what was the prevalent rate of interest at the time the award was passed or the award was made rule of court by judgement dated 9th May, 2003. While deciding the appeal, this Court had been apprised by the parties that the counter claim of the defendant-Uranium Corporation India Ltd. on the balance mobilization advance of Rs. 1,67,095/- was awarded with interest at the rate of 17% per annum till the date of award. However, the award of counter claim was conspicuously not under challenge by the claimant. In any case, the plea raised herein is not in relation to the award of interest by learned Arbitrator depending upon the terms of the contract, but the exercise of power by learned Sub Judge-I, Ghatshila under the provisions of 1940 Act in awarding interest at the rate of 18% over the adjudged amount. This therefore not being an error apparent on the face of record, this Court does not find any grounds made out for reviewing the findings of the appellate court regarding the award of interest at the rate of 10% per annum on the post- decree. Therefore the second plea raised by the petitioner is fit to be rejected.
12. The third plea raised by the petitioner is in relation to correction of the decree prepared under judgment under review. Learned counsel for the 9. petitioner has placed reliance upon the decision of the Apex Court in the case of Sushil Kumar Sen Vs. State of Bihar reported in (1975) 1 SCC page-774, Para-2. On the part of the opposite party, learned counsel Mr. Sudarshan Shrivastava has referred to the power of the Court under Section 152 to amend the decree in case of any clerical or arithmetical mistake in the judgments, decrees, orders or any accidental slip of omission therein. No doubt, such remedy is also available to a party under Section 152 of the C.P.C. However, it appears from the pleadings on record that decree passed by learned Sub Judge- I, Ghatshila, is not on record either in the present proceedings or in the appellate proceedings. Therefore, this Court in review jurisdiction is not inclined to entertain such a plea. However, in view of the discussions made hereinabove, the impugned judgment deserves to be reviewed on the first ground taken so far as the award of post-decreetal interest is concerned, which should be on the principal + interest added thereupon.
13. Be it noted that by the judgment dated 1st November, 2018 passed in Arbitration Appeal No. 7 of 2003, except for interference made under para-15 of the judgment, no other findings of learned Sub Judge-I were interfered with. Therefore, let the decree be redrawn in the aforesaid term. However, liberty is left to the parties to seek amendment of the decree, if so advised and as permissible in law.
14. The Review petition is allowed in the manner and to the extent indicated hereinabove.
(Aparesh Kumar Singh, J) jk/