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2. On the 20th of November 1948, the parties entered into an agreement, hereinafter referred to as the Building Contract, under which the plaintiffs agreed to do the work of fabricating and erecting certain steel trusses and columns and asbestos cement roofing as well as certain other items of work for the defendants-Mills at Nanjangud, subject to the terms and conditions set out in the Building Contract. Among the conditions of the contract, condition No. 72 provides for arbitration in the following terms:

33. Now in this case, as in the case before the Supreme Court cited above, there is no document signed by both the parties which may be described as a reference to arbitration.

34. It will be remembered that the defendants having omitted to act under the arbitration clause contained in the Building Contract, the plaintiffs applied to Court under Sections 8 and 20 of the Act in consequence whereof the Court made an appointment under Section 8 and reference under Section 20. The argument of the learned counsel for the titioners that the subject of reference must be confined to the list of unpaid bills annexed to their original application in Miscellaneous Case No. 77 of 1953 is impossible of acceptance. The said application can by no means be described as a reference to arbitration but is only in the nature of a complaint by the plaintiffs against the defendants' failure to act upon the arbitration clause in the Building Contract with a prayer to compel them to submit the disputes to arbitration pursuant to that clause. The observations contained in the first order of the District Judge dated the 11th of August 1954 and the order of the erstwhile High Court of Mysore dated the 28th of January 1955 in Civil Revision Petition No. 498 of 1958 clearly indicate that both the Courts came to the conclusion that certain disputes arising out of and relating to the Building Contract have arisen between the parties Which in terms of Condition No. 72 in the Building Contract should be submitted to arbitration, but that the Courts did not themselves make any attempt to formulate those disputes and refer them to arbitration.

50. It is not claimed that there is any express provision in the Building Contract for payment of interest, nor has the Umpire awarded interest on that footing.

51. Apart from stating that interest was not a matter referred to arbitration (which contention I have already rejected) the only alleged illegality in the matter of awarding interest pointed out by the learned counsel for the petitioners is that there is something in Clause 68 of the Building Contract indicating that interest was not payable at all. Clause 68 reads as follows:

53. At page 121 of Emden and Watsons Building Contracts and Practice, Fifth Edition, it is stated--

"There is no mercantile usage that interest is payable on a debt due under a Building Contract except as an item of loss in assessing damages."

To the same effect are the principles stated at page 312 of the Eighth Edition of Hudsons' Building Contract, the relevant pasage therein being the following:--

(d) Interest "This can be an important matter in practice, as final accounts are frequently settled by architects and engineers long after the work has been completed, despite provisions in the contract to the contrary. In the absence of express agreement, or mercantile usage, interest was not recoverable at common law upon a' debt due...... and no such usage has been established in relation to building contracts........ There are, however, two important exceptions to the general rule. In the first place, where money has been obtained or retained by fraud, interest is recoverable as an item of damage". (The second exception relates to a statutory provision in England with which we are not here concerned.)