Kerala High Court
Raghul Construction Engineers And ... vs N.T.P.C. on 9 August, 2005
Equivalent citations: 2005(4)KLT629
Author: J.B. Koshy
Bench: J.B. Koshy
JUDGMENT J.B. Koshy, J.
1. Two arbitration awards passed by the same arbitrator were set aside by the civil court by a common order. These two appeals are filed by the contractor against that common order. Parties are the same.
2. Appellant/Contractor was awarded two contracts with the respondent National Thermal Power Corporation (NTPC) for (1) the construction of temporary office-cum-storeshed No. 2 at plant area of Kayamkulam STPP and (2) construction of an approach road to the southern block of plant area of Kayamkulam STPP. Clause 56 of the general conditions of contract provides for arbitration. First paragraph of Clause 56 reads as follows:
"Except where otherwise provided for in the Contract all questions and disputes relating to the meaning of the specifications, designs, drawing and instructions herein before mentioned and as to the quality of workmanship or materials used on the work or as to any other question, claim, right, matter or thing whatsoever in any way arising out of or relating to the contract, designs, drawings, specifications, estimates, instructions, orders or these conditions or otherwise concerning the works; or the execution or failure to execute the same whether arising during the progress of the work or after the completion or abandonment thereof shall be referred to the sole arbitration of the General Manager of National Thermal Power Corporation Ltd., and if the General Manager is unable or unwilling to act to the sole arbitration of some other person appointed by the Chairman and Managing Director...."
It was also provided as follows:
"The award of the arbitrator shall be final, conclusive and binding on all parties to this contract."
When disputes arose in respect of these two contracts contractor requested for arbitration. Since that was not acceded, application was filed for appointment of arbitrator. Respondent contended that most of the disputes are outside the purview of arbitration. It was also submitted that there was accord and satisfaction. After detailed consideration, Sub Court held that there is no accord and satisfaction and directed the Chairman and Managing Director of the respondent Corporation to appoint arbitrator in terms of Clause 56 of the conditions of contract. The Court also held that whether there is any arbitrable dispute exist or not has to be considered by the arbitrator to be appointed by the Chairman and Managing Director as per the terms of contract entered into by the parties. In accordance with the above judgment, Shri K.J. Naik, Deputy General Manager of respondent NTPC, who is basically an expert civil engineer, was finally appointed as the sole arbitrator. The arbitrator was appointed on 10-8-1994. In the appointment order, it was also requested to give a reasoned and speaking award keeping in view of the observations of the court. The arbitrator partly allowed certain claims of the contractor on 23-5-1997. According to the court below, the arbitrator has exceeded the jurisdiction and misconducted himself relying on extraneous matters. Court also went into the merits of the matter in detail on all claims and found that the arbitrator erroneously awarded amounts. Hence, the awards were set aside and directed to appoint a new arbitrator to decide the matter. It is the contention of the appellant that the Deputy General Manager of the respondent was the sole arbitrator. He heard both parties, took evidence from both parties and there is no allegation of violation of the principles of natural justice, considered the entire matter and meticulously passed the award. Finding of the arbitrator based on evidence cannot be set aside by the court as the arbitrator is the sole judge with regard to the disputes between the parties. But, the Court considered the matter as if it was an appeal and findings of the Court are perverse as arbitrator's findings are based on evidence. It is also submitted that the arbitrator did not travel beyond the jurisdiction vested in him.
3. Now, we will consider M.F.A.No. 859 of 2002 filed against the award in O.P. (Arb.) No. 72 of 1997 with regard to the construction of temporary office-cum-storeshed No. 2 at plant area. Letter of award was given on 14-6-1990. Before that, the decision to give the award was informed by telegram on 24-5-1990. The actual work was completed on 15-2-1991. A pre-final bill was submitted on 22-2-1991. He was informed by the NTPC that part bills were given from time to time on the basis of the terms of the contract and since the actual work was completed, it is for him to give the final bill. Accordingly, final bill dated 11-8-1991 was submitted on 12-8-1991 for an amount of Rs. 20,77,732.29. NTPC refused to give a completion certificate by letter dated 20-12-1991 as the contractor did not remove the surplus materials to the stores. Till the surplus materials, are received back, it shall be deemed as incomplete. The contractor on 20-12-1991 issued a lawyer notice demanding arbitration. Various additional claims than that was mentioned in the final bill were also raised in the above lawyer's notice. Since final bill was not paid, appellant filed Writ Petition before this Court (O.P.No. 7703 of 1992). After filing the O.P., reply to the lawyer notice was sent on 30-5-1992 denying the claims and also pointing out that if there is dispute, remedy is to go for arbitration subject to arbitrability of disputes. The Writ Petition was disposed of recording the submission that final bill will be settled within two months. Final payment was made on the basis of the final bill on 6-8-1992 and security deposit was released on 12-8-1992. The above payments were not accepted in settlement of all the claims. With a letter of protest dated 12-8-1992, the above cheques were accepted by the contractor. Thereafter, they approached the Sub Court and on the basis of the directions of the Sub Court and in accordance with Clause 56 of the general conditions of contract, an arbitrator was appointed and award was passed on 23-5-1997.
4. Against a total sum of Rs. 53,91,020-40, the arbitrator awarded only Rs. 15,08,121-20 with 18% interest from the date of filing the claim before him till the date of award. The amount claimed and the amount awarded are as follows:
Nature of items of claim Claim Amount Award Amount
Rs. Rs.
1. As per Annexure- to
the statement of claim 19,12,866-96 9,11,275-00
2. Labour wages paid more
than minimum wages 6,07,533-66 2,99,854-97
3. Loss in output due to
deployment of union labour 5,20,743-00 1,28,509-27
4. Loss in output due to
increase in working hours 1,24,749-67 32,127-32
5. Increase in cost of construction 4,64,254-56 55,631-35
6. Loss due to suspension of work 3,74,107-00 52,836-39
7. Extra items and deviation in quantities
due to change of location of site 8,92,548-65 NIL
8 Increase in cost of petroleum products 3,88,860-00 27,887-21
9. Interest for late payment of R.A. bills 1,05,257-00 NIL
Total 53,91,020-40 15,08,121-20
A contention was raised before the court below at the time of appointment of arbitrator that there was accord and satisfaction because of then payment of final bills. The court below rightly held that there was no accord and satisfaction as the bills were accepted in protest. Even if the final bill was accepted without protest in final settlement of claim, if it is proved that such a settlement was entered into out of necessity or undue influence or coercion, in certain circumstances, the Court can ignore such receipts and hold that there was no accord and satisfaction. In Chairman and MD, NTPC Ltd. Reshmi Constructions, Builders and Contractors , when accord and satisfaction were pleaded, the Apex Court did not accept it as protest letter was written on the same day and amount was received only due to extreme necessity and undue influence and coercion. Here, payment made against contractor's final bill was accepted by him only under protest and, therefore, there is no accord and satisfaction. In fact, it was not pleaded before us that the arbitration agreement is not maintainable because of accord and satisfaction.
5. It is the main case of the respondent that on the basis of the contractual terms, no bills can be submitted after submission of the final bill. It is based upon Clause 52 of the general conditions of agreement. Clause 52 of the general conditions of agreement reads as follows:
"52. The final bill shall be submitted by the Contractor within three months of physical completion of the works. No further claims shall be made by the Contractor after submission of the final bill and these shall be deemed to have been waived and extinguished. Payment of those items of the bill in respect of which there is no dispute and of items in dispute, for quantities and at rates as approved by Engineer-in-charge, shall be made within the period specified hereunder, the period being reckoned from the date of receipt of the bill by the Engineer-in-Charge:
(a) Contract amount not exceeding Rs. 5 lakhs Four months
(b) Contract amount exceeding Rs. 5 lakhs Six months After payment of the amount of the final bills payable as aforesaid has been made, the contractor may if he so desires, reconsider his position in respect of the disputed portion of the final bill and if he fails to do so within 90 days, his disputed claim shall be dealt with as provided in contract."
Clause 52 of the general conditions of agreement quoted above would show that claimant/contractor should make all his claims in the final bill and after submission of final bill, no fresh claims can be raised even if there are some genuine claims which could have been raised in the final bill if not included in the final bill will stand extinguished. After submission of the final bill, if the contract amount is exceeding Rs. Five lakhs, quantity should be measured by the engineer-in-charge within six months and payment will be made. After the tender of payment, the contractor can make the dispute within 90 days. If there are disputes, after receipt of the bill under protest, he can make request for arbitration in terms of the contract But, the submission of the respondent is that only claim No. 1 was covered by the final bill. Item Nos. 2 to 9 claimed before the arbitrator were not covered by the final bill. Those claims were raised for the first time in the lawyer notice after four months of the submission of the final bill (No amounts were awarded under claim Nos. 7 and 9) and, therefore, arbitrable dispute was only with regard to claim No. 1. It was submitted by the counsel for the respondent that in Reshmi Constructions' case (supra), all the claims were raised in the final bill. The question was only whether the receipt of the payment in settling the final bill out of necessity amount to accord and satisfaction when letter of protest was sent on the same day. Here, the contention is that except item No. 1, none of the other claims were raised in the final bill and, therefore, they are debarred from claiming that on the basis of the terms of the contract. It is well settled law that the arbitrator cannot award any amount ignoring the contractual provisions. He is bound by the contract. He cannot travel beyond the terms of the contract. Of course, interpretation of the contract is for the arbitrator. The contention whether the claims other than claim Nos. 2 to 9 were arbitrable was specifically raised before the arbitrator. That was not considered by him. It is submitted that since new arbitrator was directed to be appointed this can be considered by the new arbitrator or this matter can be decided by this Court as it is a matter of jurisdiction. Counsel for the contractor also submitted that arbitrability of the dispute regarding claim Nos. 2 to 9 must be decided by this Court as there is no point in dragging the matter further by a remand and the contract was entered into and the amounts are due for more than a decade. Several recovery proceedings are against the contractor and, therefore, jurisdictional matter may be decided by this Court. Learned Counsel for NTPC also cited Apex Court's decision in, General Manager. Northern Railways and Anr. v. Sarvesh Chopra (AIR 2002 SC 1272). In the above case, the Apex Court held that whether a claim will come as excepted matter or whether the claims are arbitrable or not can be decided by the court, it would be an exercise in utility to refer for adjudication by the arbitrator a claim though not arbitrable and thereafter set aside the award if the arbitrator chooses to allow such a claim. Arbitrability of claim Nos. 2 to 9 were raised before the arbitrator. But, it was not considered by the arbitrator. It is contended by the learned Counsel for the contractor that the arbitrator has stated that he has considered the entire claims, counter-claims and evidence and, therefore, this question also was considered and thereafter award was passed. Therefore, one has to presume that the arbitrator held that these are arbitrable. But, as per the terms of the appointment order, he has to make a speaking award. Arbitrability of the disputes though raised was not seen discussed in the award and there is no material to show whether the arbitrator applied his mind on that aspect. In any event, since both parties requested that this matter should be decided by us in spite of sending back to another arbitrator, on this matter alone, we have gone through that question also.
6. It is well settled law that the contractor can make claims only arising out of the contract and only such disputes can be decided by the arbitrator. In Union of India v. Popular Builders, Calcutta , Steel Authority of India Ltd. v. J.C. Budharaj, Government and Mining Contractor and in Alopi Parshad v. Union of India (AIR 1960 SC 558), the Apex Court held that an award by an arbitrator offering a claim which was not arbitrable as per the terms of the contract entered into between the parties is liable to be set aside. In this connection, we also refer to the decision of the Apex Court in Prabartak Commercial Corporation Ltd. v. Chief Administrator, Dandakaranya Project . Clause 52 of the contract very clearly states that after submission of the final bill, no further claims can be submitted and the above Clause 52 also shows that after final bill is submitted, it is for the awarder of the contract to measure, check and make payment. After the submission of the final bill, no further claims or subsequent claims can be claimed by the contractor. If such claims cannot be made by the contractor, disputes with regard to the same is not arbitrable. Claims after submission of final bill are barred and, therefore, no dispute can be raised with respect to such claims. Attempt of the counsel for the contractor is that the final bill dated 11-8-1991 submitted on 12-8-1991 is not actually a final bill as it was not approved by the NTPC. It is further stated that on the basis of the final bill measurements were taken only on 28-4-1992. It is submitted that final bills can be submitted only after checking measurements. The counsel also pointed out that even though the contractor claimed completion of the work on 15-2-1991, completion certificate was not given by the respondent and, therefore, the contract itself was not completed at the time when the final bill was sent and a real final bill can be sent only after completion of the contract. We are unable to accept that submission. After completion of the work, the surplus materials were to be returned to the NTPC. By letter dated 14-10-1991, NTPC intimated the contractor that completion certificate cannot be given till the surplus materials are returned to the stores of NTPC as per the contractual clause. This was issued as per Clause 31.1 of the contract. Here, physical completion of the work was over by 15-2-1991, that is, the claim of the contractor also is that pre-final bill was submitted on 22-2-1991 and the final bill on 12-8-1991. He himself termed it as a final bill. As per Clause 52, after submission of the final bill, it is for the awarded to measure the work and, accordingly, measurement was taken on 28-4-1992 and admitted claims in the final bill were paid on 6-8-1992 and security deposit was returned on 12-8-1992. All the details of the claims made before and after the final bill were available with the contractor. He has got his own measurements for the work. Measurements for the work from time to time were available with the NTPC also. Claimant was indisputably getting payment of part bills from time to time. Even according to the contractor, he has not done any work after 15-2-1991. Therefore, all the claims could have incorporated in the final bill dated 12-8-1991. When he raised lawyer notice on 22-2-1991, it was not in respect of the work done between the date of final bill and after issuing of the lawyer notice. Therefore, all the claims not mentioned in the final bill are extinguished as per the terms of the contract. Hence, we agree with the counsel for the respondent that the claims raised after the final bill are not arbitrable as no such claims can be put forward by the contractor.
7. Now, the question is what are the claims which were not mentioned in the final bill. According to the learned Counsel for the respondent only item No. 1 was mentioned in the claim schedule and item Nos. 2 to 9 were not mentioned in the final bill. They were raised in the lawyer notice only. Since no amount was awarded in item Nos. 7 and 9, the question is whether the award under item Nos. 2, 3, 4, 6 and 8 were raised in the final bill. We have gone through the entire claims in the final bill dated 5-8-1992 with covering letter dated 11-8-1992 and submitted on 12-8-1992 and there was no claim for labour wages, loss in output due to deployment of union labour, decrease in working hours, increase in cost of construction or loss due to suspension of work or increase in cost of petroleum products. Therefore, item Nos. 2 to 8 were not covered in the final bill. They were mentioned in the lawyer notice sent subsequent to the final bill. Therefore, they are clearly outside the purview of arbitration as the contractor cannot make any new claims or additional claims after submission of the final bill, whether that is accepted or not. Of course, if the claims are mentioned in the final bill and if it is not accepted by the awarder fully, disputes with regard to those claims can be submitted for arbitration. Even if some of the claims mentioned subsequently are justifiable, he cannot make further claims, whether justifiable or not, and, therefore, claim Nos. 2 to 9 were non-arbitrable and award in respect of those are liable to be set aside. In this connection, we also refer to Section 15(1) of the Arbitration Act, 1940. If some portions of the award are without jurisdiction, such part can be separately set aside if it will not affect the award in respect of disputes which are arbitrable. The whole award need not be set aside. The portion of the award that goes beyond the terms of contract need be set aside. Undisputed part can be removed if it is separable and rest of the award can be made rule of the Court as held by the Privy Council in Mt. Amir Begam v. Syed Badr-ud-din Husain and Ors. (AIR 1914 PC 105) (Same view was expressed in Metro Electric Co., New Delhi v. Delhi Development Authority, New Delhi and Ors. . Here, award in claim No. 1 is separable from claim Nos. 2 to 9 and claim No. 1 is included in the final bill and is arbitrable.
8. Now, we will come to the question whether the award under claim No. 1 which is an arbitrable dispute is liable to be set aside or whether any misconduct was committed by the arbitrator. There is no contention by the respondent that there is violation of the principles of natural justice. All the procedures were complied with. Very valid reasons are given in the award. An expert civil engineer who is none other than the General Manager of the respondent Corporation has considered the matter in depth and award under claim No. 1 was passed after due consideration of all the aspects placed before him. The award under item No. 1 shows that joint inspection was conducted and most of the amounts awarded were admitted claims with regard to schedule items. With regard to extra items also for each and every item mind was applied and contentions of both parties were considered and award was made. The amounts awarded were also on the agreed rates. Entire evidence was considered and for extra items, CPWD specifications were considered. With regard to the non-schedule items also, measurements were taken by NTPC and joint inspections were considered and, in most of the claims, mutually agreed rates on joint verification was awarded. One of the non-agreed portion is the claim for application of cement primer. The arbitrator has considered the matter as follows:
"In the contract specification for the finishing of external wall white was stipulated. During the execution it was changed to cement wash with cement primer. The claim is for the primer coat which was not envisaged in the contract. The respondents claimed that no primer coat has been provided. The parties were asked to check jointly the external walls in position whether the primer coat is provided or not. The, parties jointly inspected and submitted during the proceedings that the primer coat has been applied which has to be paid separately. However, the quantity claimed is more than the actual quantity executed. The quantity actually executed was agreed as 1025.14 square metre against claimed 1,234.32 square metre: At the DSR rate and agreed contract premium the amount payable is 1025.14 x 3.15 x 1.855 = Rs. 5,990-15. Less 7 per cent rebate : Rs. 5,570-84."
We cannot see a better consideration of the matter by an arbitrator. On perusal of the claims under each items, it can be seen that on the basis of joint inspection and almost on agreed terms the award was passed. Interference in the award on claim No. 1 is totally uncalled for. As held by the Apex Court in Bhagawati Oxygen Ltd. v. Hindustan Copper Ltd. (2005 (3) Supreme 243), the Court while exercising power under Section 30 of the Arbitration Act, cannot reappreciate the evidence or examine the correctness of the conclusions arrived at by the arbitrator. We are of the opinion that the court below set aside claim No. 1 for no reason whatsoever. Court below considered the matter as a negated appeal and findings are perverse. The parties have appointed the sole arbitrator as their judge for their matter and he has considered the matter in detail and passed the award on item No. 1 and we see no reason to set aside the same. In this connection, we also refer to the Apex Court decision of Hindustan Tea Co. v. K. Sashikant & Co. and Anr. The award is not open to challenge on the ground that the arbitrator has reached a wrong conclusion or has failed to appreciate facts. As held by the Hon'ble Supreme Court in Puri Construction Pvt. Ltd. v. Union of India , the Court cannot sit in appeal over the views of the arbitrator by reconsidering and reassessing the matter. Against a claim of Rs. 19,12,866-96 on claim No. 1, only Rs. 9,11,275/- was awarded. Even though, on going through the award, we are of the opinion that the arbitrator has passed the award from item Nos. 2 to 9 after considering the evidence, those disputes were not arbitrable as claims were barred by the terms of contract. The presumption as to the validity of the award will not extend to the question of arbitrator's jurisdiction. Therefore, award in respect of claim No. 1 alone can be made as rule of the Court.
9. It is submitted that the arbitrator went wrong in awarding interest from the date of the claim, that too, at the rate of 19%. The arbitrator has got power to award interest pendente life. The arbitrator has awarded 18% interest from the date of submission of the claim on the following reasons:
"The claimants have claimed an interest at the rate of 24 percent on the amount awarded from the date on which the Arbitrator entered on reference on the plea that they have borrowed money at the said percentage from the market. The respondents have considered an interest at the rate of 16 to 20 percent while settling the claims of other contractors. It is therefore reasonable to consider an average percentage of 18 percent on the awarded amount from the date of submission of statement of claim by the claimants, i.e., 15-10-1995 to the date of submission of award, i.e., 23-5-1997."
Even according to the NTPC, the contract was completed as early as on 15-2-1991 and the contractor was able to get the admitted part of final bill only after filing a Writ Petition and considering the fact that no interest was awarded for the period prior to the reference, that is, from the date of completion of the contract to the date of submission of the statement of claim (12-8-1991 to 15-10-1995), we see no reason to interfere in the interest portion. Only interest pendente lite was awarded by the arbitrator and interest from the date of award was not granted. We make it clear that interest is payable only at 9% per annum after 23-5-1997, the date of award, till the decree and thereafter also till payment and the award under claim No. 1 for Rs. 9,11,275/ : with pendente lite interest is made as rule of the court. Interest is payable at the rate of 9% per annum from the date of award till payment. Decree to be passed accordingly. Appeal allowed in part with proportionate costs. Award with respect to claim Nos. 2 to 9 are set aside.
M.F.A.No. 914 of 2002 (O.P.(Arb) No. 73 of 1997)
10. This arbitration was with regard to the second contract with regard to the work of approach road to the southern block of plant area at Kayamkulam STPP. The total claim was Rs. 24,19,108/-. The arbitrator has awarded only Rs. 1,20,900-89. Seven claims were raised out of which item Nos. 5 and 7 were disallowed by the arbitrator. The claims and awarded amount are as follows:
Nature of items of claim Claim Amount Award Amount
Rs. Rs.
1. As per Annexure-1 to the
statement of claim 1,18,613-00 436-93
2. Labour wages paid more
than minimum wages 71,774-00 44,323-02
3. Loss in output due to
deployment of union labour 61,520-00 18,995-58
4. Increase in cost of construction 2,17,375-00 49,306-00
5. Idle establishment of machinery 7,37,337-00 NIL
6. Turn over loss due to prevented gain 10,75,000-00 7789-36
7. Interest for delayed payment at 24% 1,37,489-00 NIL
Interest is awarded from the date of
entering reference upto the date of
the award at 18% Total 1,20,900-89
Arbitrator also dismissed counter-claims with regard to refund of withheld amount against compensation for delay amounting to Rs. 40,660/- and with regard to refund of security amount at Rs. 42,100/-. The award on item No. 1 is not questioned by the appellant. So, dispute is raised with regard to item Nos. 2, 3, 4 and 6.
11. On going through the award, we are satisfied that the entire amount claimed and the counter claims etc. were considered meticulously by the arbitrator and good reasons are also stated by the arbitrator. There is no lack of jurisdiction. Both parties participated in the proceedings and adduced evidence. The sole arbitrator has considered all the claims, counter claims, disputes and difference referred to him. The arbitrator has appreciated, assessed and weighed all statements of facts and counter statements placed before him by the parties. The reasonableness of the reasons for making the award should not have been considered by the court below. After considering the evidence, measurement book maintained by the NTPC was also relied on. The firm price mentioned in the contract is applicable during the contract period. No cost escalation was granted by the arbitrator during contract period. The arbitrator has not awarded any amount as cost escalation for contract items of work done during the contract period. The contract based on IS and CPWD specifications provides for the escalations caused by action of Government like enhancement of price of petroleum products. The contractor specifically stated that the contractor is bound to execute all extra items of work which may be required by the owner to be executed during the performance of the contract and whose rates are available in D.S.R. 1985 at the above quoted percentage. Because IS and CPWD specifications insist on such extra items, the Engineer-in-charge or his representatives gives oral instructions at site to carry out such extra items that are warranted to be to be carried put for the successful completion of the work. And as per the said instructions only the appellant carried out extra items for the successful completion of the work in all respects. Arbitrator while granting increase in cost only adhered to ISI/CPWD specifications and approved rate and the arbitrator never travelled beyond the terms of the contract. It was argued that no increase can be awarded because of the increase in minimum wages. The arbitrator has considered the fact that after entering into the contract and completion of part work, there was suspension of work demanding wages that was paid to neighbouring places. Therefore, IRC was constituted in which management of NTPC was also a party. On the recommendation of IRC, higher wages were fixed and they were compelled to pay the same. Because of the union intervention only unionised people were allowed to work. They were forced to engage local inexperienced workers and appellant's own workers were prevented from work. NTPC also had to agree for this otherwise entire work will cause to a standstill. In this connection, we also refer to the observations of the Apex Court in P.M. Paul v. Union of India and Tarapore and Co. v. State of M.P. . The arbitrator also noticed that similar claims were allowed to the other contractors. We are of the opinion that the court went wrong in setting aside the award as if it is an appellate authority. There is no evidence of misconduct by the arbitrator. We see no ground to interfere in the award in O.P. (Arb.) No. 73 of 1997. The same consideration with regard to payment of interest will apply with regard to the finding in O.P.(Arb.) No. 72 of 1997 (M.F.A.No. 859 of 2002). Therefore, M.F.A.No. 914 of 2002 is allowed. The award is made a rule of the Court. However, rate of interest payable from the date of award is only at the rate of 9% per annum till payment. Appeal allowed with proportionate costs.
In the result, award in respect of first claim (Rs. 9,11275/- with interest as awarded by the arbitrator) in the award impugned in O.P. (Arb.) No. 72 of 1997 is made rule of the Court. Order of the court below with respect to claim Nos. 2 to 9 is confirmed. M.F.A.No. 859 of 2002 is allowed with proportionate costs. The award considered in O.P. (Arb.) No. 73 of 1997 (M.F.A.No. 914 of 2002) is made rule of the Court. In both cases, interest is payable at 9% per annum from the date of award till decree and thereafter till realisation.