Heard learned Counsel for the parties.
This petition under Articles 226 and 227 of the Constitution of India is filed challenging the order dated 09.08.2011 passed by the learned Judge, Court No.16, City Civil and Sessions Court, Ahmedabad by which the Execution Petition No.321/2009 came to be dismissed as fully satisfied, which reads as under :-
"1. Certain undisputed facts can be stated that the Darkhastdar has filed the present Execution petition for executing the award passed by the arbitator vide Arbitration Award Case No.ARB/GP/(7)/10 dated 11.12.2003 and has claimed in total Rs.5,15,344/- alongwith the interest at the rate of 10% from the date of award, if not paid within 60 days. It is also undisputed that CMA No.120/2008 (original CMA No.109/2004), was preferred against arbitration award under Section 34 of the Arbitration & Conciliation Act, before the City Civil Court at Ahmedabad. The City Civil Court No.7, Ahmedabad, was pleased to dismiss the CMA No.120/2008 (original CMA No.109/2004), and thereby confirmed the award passed by the arbitrator. It is undisputed that when the judgment debtor has challenged the award of the arbitrator before the competent court, within stipulated time period, he has deposited Rs.5,15,344/- on 26.03.2004 vide cheque No.059113. The judgment creditor has filed an application to withdraw the said amount on 26.06.2009 and the Hon'ble Court has allowed the judgment creditor/darkhastdar to withdraw the said deposited amount alongwith the interest in total Rs.5,86,998/- and has permitted to withdraw after dismissal of the CMA No.109/2004.
2. When the CMA No.109/2004 was pending for the final hearing in the competent court, the darkhastdar has given an application dated 26.04.2004 to withdraw the said deposited amount but however the competent court has declined to allow the darkhastdar to withdraw the said amount, has directed to invest the said deposited amount into the fixed deposit in any nationalized bank."
In continuation of the above, if operative portion of the award dated 11.12.2003 is seen, it reads as under :-
"The claim consists of three-sub divisions pre suit interest, pendentilite and post award interest.
18(i):-- After considering all the submission of the claimant and respondent I find that amount under claim no.(1) (2) (3) (4) (5) (9) (10) (11) (12) (13) and (17) was to be paid by on or before 30.12.1998 i.e. six months after fore closure of the agreement on 30.06.1998. Therefore I award a simple interest @ 12% for period of two years i.e. upto 5.1.2001 (actual date of payment of final bill) on all the awarded amounts of the claims except on claim no 6,7(a),7(b) and 8.
18(ii):-- After considering all the submission of the claimant and respondent I further award Pendilite simple interest of 8% P.A. for 2 years 10 months i.e. from 5.1.2001 on the awarded amounts of all the claims including interest awarded under 18(i).
18(iii):-- Post award interest : I further award that above awarded amount including interest should be paid to the claimant within 60 days from the date of award failing which total awarded amount shall be paid @ 10% from the date of award to actual date of payment."
That 'Darkhast' was filed to get the interest on the awarded amount and upon consideration of provisions of Section 34 as well as Section 36 of the Arbitration and Re-conciliation Act, 1996 the Court below concluded that the judgment debtor has already deposited the award in the Court and therefore, the interest claimed by the judgment creditor holder of the decree was not due.
The above calculation is under challenge in this Writ Petition under Articles 226 and 227 of the Constitution of India on the ground that the petitioner is entitled to claim 10% of interest on the amount namely Rs.5,15,344/= (award amount) from the date of the award, i.e. 11.12.2003 till the order of the Court dismissing the application of the judgment debtor filed under Section 34 of the Act to the tune of Rs.2,94,173/=. Since withdrawal of the amount awarded was already deposited by the judgment debtor was objected which finally came to be withdrawn by judgment creditor who became entitled to receive 10% interest on the balance amount of Rs.2,22,521/= with 10% interest and thus, the amount due is Rs.2,55,821/=.
It is therefore submitted that the order impugned dismissing the execution petition as fully satisfied is contrary to evidence on record and deserves to be quashed and set aside. It is also contended by learned Counsel for the petitioner that Section 34 Application filed by the judgment debtor was already rejected and the said application was infact decided and was not pending on the day when the impugned order came to be passed.
As against this, learned Counsel Ms. P.J. Davawala appearing for the respondent - BSNL would contend that the amount of award of arbitrator was passed on 11.12.2003 and the said amount was to be deposited within 60 days meaning thereby the judgment debtor was to comply with the award on or before 10.02.2004 but infact it came to be deposited on 26.03.2004. However, at the same time by filing Miscellaneous Civil Appeal later on it was prayed that arbitral award dated 11.12.2003 be quashed and set aside on certain grounds. However, the application came to be dismissed on 16.06.2009. Prior to that, an attempt made by judgment creditor to withdraw the amount was refused. In the above circumstances, it is submitted that the claim of judgment creditor to receive the interest as calculated by him is on a wrong premise and order impugned do not deserve any interference by this Court in exercise of powers under Articles 226 and 227 of the Constitution of India.
On perusal of the record, arguments canvassed by learned Counsel for the parties and order of the award of the arbitrator where specific duty is cast upon the judgment debtor as reflected in Claim No.18(III) under the head 'Post Award Interest' that the amount of award including interest should be paid to the claimant within 60 days from the date of the award failing which the total awarded amount shall be paid @ 10% from the date of award to actual date of payment. That interpretation of the above Clause as urged by the petitioner that 10% of the interest is to be awarded to the claimant till the application under Section 34 filed by the judgment debtor came to be rejected is misconceived in as much as the amount of the arbitral award was already deposited on 26.03.2004 and even as per the claimant petitioner / decree holder, the amount of Rs.5,86,996/= was withdrawn by him in the month of September 2009. Thus, the deposit of the amount awarded by the Arbitrator carrying different rate of interest for the Claim No.8(i) and Claim No.8(ii) was deposited with interest on 26.03.2004 which ought to have been deposited by the judgment debtor on or before 10.02.2004. Therefore, the award of the Arbitrator was substantially complied with. However, payment of the award was made beyond the period of 60 days and the claimant petitioner was entitled to 10% of interest on the total amount so awarded. There is no dispute as such for not depositing the amount of award for the above period and therefore, rejection of the execution petition by the Court below vide the impugned order cannot be said to be in any manner contrary to law or against the award of the Arbitrator.
In view of the above, the petition is devoid of merits and is therefore, dismissed with no order as to costs. Notice discharged.
Sd/-
(Anant S. Dave, J.) Caroline Top