JUDGMENT N.K. Mehrotra, J.
1. The first case amongst four cases referred to above is the appeal under Section 39 of the Arbitration Act, 1940 (hereinafter referred to as the 'Act') against the order dated 28.8.2004 passed by the Civil Judge (Senior Division), Rae Bareilly in Misc. Case No. 32 of 2004 whereby the application of the appellant, U.P. Power Corporation Limited (hereinafter referred to as the 'U.P.P.C.L.') under Section 30/33 or the Act has been rejected and the interim award dated 24.2.2004 made by the Arbitrator Sri S.K. Rai has been made a Rule of the Court. The cross-objection has been preferred against a finding of the Civil Judge (Senior Division), Rae Bareilly in the same judgment. Since the impugned order dated 28.8.2004 is the composite order on the application under Section 30/33 of the Act moved by the appellant and the application under Section 17 of the Act moved by the respondent, M/s. Universal Insulators and Ceramics Limited, Rae Bareilly (hereinafter referred to as the 'M/s. UICL') for passing a decree in accordance with an interim award, the U.P.P.C.L. has filed a separate revision under Section 115 of the Code of Civil Procedure challenging the proceedings and order passed under Section 17 of the Act. Writ Petition No. 3177 (M/B) of 2004 has been filed by the M/s. Universal Insulators and Ceramics Limited, Rae Bareilly before filing of the F.A.F.O. by the U.P.P.C.L. for issuing a writ in the nature of mandamus commanding the respondents to make payment of Rs. 979.8527 lacs plus interest accrued thereon as directed by the Five Members Committee of the appellant and directed by the Government order dated 9.12.2002 as contained in Annexure-3 to the writ petition.
Facts of the case:
2. The appellant, U.P.P.C.L. placed two firm orders on the respondent No. 1 in appeal on 23.4.1980 for supply of insulators and the agreement between the parties contained an arbitration clause. A dispute arose between the parties and it was referred to the arbitration of one Sri R.D. Maheshwari, a retired Chief Engineer of the then U.P. State Electricity Board, the predecessor of the present appellant, U.P.P.C.L. The respondent No. 1 filed a claim petition on 20.12.1991 claiming a sum of Rs. 1,482.66 lacs. The claim was contested by the then U.P. State Electricity Board (hereinafter referred to as the 'U.P.S.E.B.'). Sri R.D. Maheshwari, the sole Arbitrator passed an order on 26.3.1992 directing that the claims under two heads would be considered by him and the other claims will not be considered. This order dated 26.3.1992, passed by Sri R.D. Maheshwari, the sole Arbitrator was challenged by the UICL before the Civil Judge (Senior Division), Rae Bareilly. It was also prayed by the UICL before the Civil Judge (Senior Division), Rae Bareilly that Sri R.D. Maheshwari be removed as Arbitrator.
3. On 18.3.1996, the Civil Judge (Senior Division), Rae Bareilly allowed the petition of the respondent No. 1. Sri R.D. Maheshwari was removed as the Arbitrator on the ground of misconduct. By the same order, the Civil Judge (Senior Division), Rae Bareilly appointed Sri S.K. Rai, a retired District Judge and former Joint Secretary Law, Government of India as the sole Arbitrator to decide the dispute between the parties. The Civil Judge (Senior Division), Rae Bareilly also determined the scope of arbitration. The U.P.S.E.B. filed a Civil Revision No. 44 of 1996 before this Court challenging the order of the Civil Judge (Senior Division), Rae Bareilly dated 18.3.1986. Subsequently, the U.P. Power Corporation Limited was substituted in the place of the U.P. State Electricity Board. This civil revision remained pending till 8.7.2003. During the pendency of the Civil Revision No. 44 of 1996, the respondent No. 1 approached the appellant for an out of court settlement. Admittedly, a Five Members' Committee was constituted by the appellant itself to examine the entire matter and to submit the report/recommendation to resolve the dispute vide its order dated 21.9.2000. This committee consisted of two technical experts viz., the Director (Distribution), Chief General Manager (Materials Management), two experts from Finance and Audit Department viz. the Director (Finance), the then Chief General Manager (Accounts and Audit) and the Special Secretary (Energy) nominated by the Government. The Committee examined seven claims of the respondent No. 1 and admitted and computed the liability of the appellant, U.P.P.C.L. on Claim Nos. 1, 2, 4 and 5 but refused to admit the Claim Nos. 3, 6 and 7. The Committee computed the different amount on the aforesaid four claims, the total of which comes to Rs. 979.8527 lacs alongwith interest thereon. The matter was referred to the State Government and the State Government after seeking the opinion of the Advocate General, issued an order on 9.12.2002 requiring the appellant to pay the respondent No. 1 the amount as admitted and computed by the Five Members' Committee itself within a period of 15 days.
4. During the course of the hearing of the Civil Revision No. 44 of 1996, the respondent No. 1 prayed to this Court that the civil revision had become infructuous on account of the fact that the Five Members' Committee had given its decision regarding the out of court settlement and there was no dispute which remained to be decided. This Court dismissed the Civil Revision No. 44 or 1996 as having become infructuous on 8.7.2003. The relevant portion relied on by the respondent No. 1 in the order of this Court in Civil Revision No. 44 of 1996 is as follows:
After filing of the revision certain developments took place to settle the dispute between the parties to this revision. As is evident from the record and which is not denied by the revisionist that a committee was appointed by the revisionist at the instance of the opposite party No. 1 to resolve the dispute. That committee calculated the amount due to the opposite party No. 1 and referred the matter to the Government and the Government issued an order on 9.12.2002, which has been filed in this revision and on the strength of this order....
The only relevant fact is that during the pendency of the revision at the instance of the opposite party No. 1 a committee was appointed consisting of Highly placed officers of the corporation and this committee admitted the liability to make the payment according to its own calculation and the matter was referred to the Government and the Government issued a G.O. on 9.12.2002 for making payment. So, now there remains no dispute between the parties and the revision appears to have become infructuous because of the appointment of the committee and the report of the committee has not been rejected either by the Government or by the U.P.P.C.L....
The submission for issuing a mandamus to enforce the alleged vested right of the opposite party can be considered in writ only....
In view of the above, this revision being infructuous is dismissed.
5. The appellant, U.P.P.C.L. filed a Special Leave Petition No. 22995 of 2003 against the judgment and order dated 8.7.2003, passed by this Court in Civil Revision No. 44 of 1996 before the Supreme Court of India. On 19.1.2004, the Supreme Court dismissed the said special leave petition and clarified the order that the appointment of Sri S.K. Rai as Arbitrator would stand and arbitration now must proceed. It was also clarified that the parties would be entitled to place before the Arbitrator whatever material they wanted and it would be for the Arbitrator to decide as to whether or not the U.P.P.C.L. was bound by the report of the Five Members' Committee. The matter thus, went back to Sri S.K. Rai who had been appointed as Arbitrator and the parties submitted to his jurisdiction and the appellant as well as the respondent No. 1 made a prayer before the Arbitrator Sri S.K. Rai that the arbitration proceedings be concluded at the earliest as the dispute was pending since 1981 and the arbitration proceedings before the Arbitrator had resumed after more than 7 years. On the request of both the parties on 24.1.2004 and 28.1.2004 respectively, the Arbitrator, Sri S.K. Rai fixed 7.2.2004 in the arbitration case.
6. During the course of the proceedings, the respondent No. 1 made an application under Section 27 of the Act praying that an interim award be made in its' favour. It was stated that the Five Members' Committee of the appellant itself had computed and admitted the liability of the appellant after negotiations with the respondents to the extent mentioned in its' report and the report had been submitted to the appellant, U.P.P.C.L. which had itself referred the matter to the State Government for its legal opinion and after deliberations and clarifications, it had been decided to accept the report of the Five Members' Committee. Thereafter, the Government orders were issued by which it was directed to dispose of the matter by making payment in accordance with the report of the Five Members' Committee of the appellant. It was thus, prayed that since the U.P.P.C.L. had itself computed and accepted that a minimum amount of Rs. 979.8527 lacs with interest thereon has become payable to the respondent No. 1, an interim award for the said amount plus interest be made. The application of the claimant, the respondent No. 1 under Section 27 of the Act was served upon the appellant, U.P.P.C.L. and thereafter after receiving the objection of the appellant, U.P.P.C.L. and after hearing the parties, the Arbitrator, Sri S.K. Rai made an interim award by means of which he held that the report of the Five Members' Committee was binding on the parties and that the objections of the appellant, U.P.P.C.L. were without substance. In this way, the Arbitrator passed an interim award for making the payment of Rs. 979.8527 lacs in accordance with the report of the Five Members' Committee.
7. The Arbitrator filed the interim award before the Court of the Civil Judge (Senior Division), Rae Bareilly and the respondent moved an application under Section 17 of the Act for making the interim award as Rule of the Court.
8. Before passing of the impugned order by the Civil Judge (Senior Division). Rae Bareily, the Writ Petition No. 3177 (M/B) of 2004 was already filed by the respondent No. 1 for issuing directions for making payment and the writ petition was being contested by the appellant, U.P.P.C.L. This Court passed an order on 12.7.2004 in the writ petition directing the appellant. U.P.P.C.L. to pursue its' application before the Civil Judge (Senior Division), Rae Bareilly under Section 17 of the Act for making interim award a Rule of the Court and the Civil Judge (Senior Division), Rae Bareilly was directed to decide the application moved by the M/s. UICL under Section 17 of the Act and the objection preferred by the appellant U.P.P.C.L. under Section 30/33 of the Act within one month from the date the certified copy of the order was produced. In pursuance of the order of this Court dated 12.7.2004 passed in the pending writ petition, the Civil Judge (Senior Division), Rae Bareilly heard the matter and decided the application of the appellant, U.P.P.C.L. under Section 17 of the Act by passing a common order dated 28.8.2004 and the interim award dated 24.2.2004 was made the Rule of the Court. Subsequent to the passing of the impugned order dated 28.8.2004, the Civil Judge (Senior Division), Rae Bareilly has passed the decree in terms of the interim award on 9.9.2004.
9. The main case before us is the first appeal against the impugned Judgment and order dated 28.8.2004 by which the application under Section 17 of the Act and objection under Section 30/33 of the Act have been decided. This is an appeal therefore, before further proceeding; the reference to these four provisions under the Act shall be material. The provisions under these four sections of the Act are as follow:
17. Judgment in terms of award.Where the Court sees no cause to remit the award or any of the matters referred to arbitration for reconsideration or to set aside the award, the Court shall, after the time for making an application to set aside the award has expired, or such application having been made, after refusing it, proceed to pronounce judgment according to the award, and upon the judgment so pronounced a decree shall follow and no appeal shall lie from such decree except on the ground that it is in excess of or not otherwise in accordance with, the award.
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30. Grounds for setting aside award.An award shall not be set aside except on one or more of the following grounds, namely ;
(a) that an arbitrator or umpire has conducted himself or the proceedings ;
(b) that an award has been made after the issue of an order by the Court superseding the arbitration or after arbitration proceedings have become invalid under Section 35 ;
(c) that an award has been improperly procured or is otherwise invalid.
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33. Arbitration agreement or award to be contested by application.Any party to an arbitration agreement or any person claiming under him desiring to challenge the existence or validity of an arbitration agreement or an award or to have the effect of either determined shall apply to the Court and the Court shall decide the question on affidavits:
Provided that where the Court deems it just and expedient, it may set down the application for hearing on other evidence also, and it may pass such orders for discovery and particulars as it may do in a suit.
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39. Appealable orders.(1) An appeal shall lie from the following orders passed under this Act (and from no others) to the Court authorized by law to hear appeals from original decrees of the Court passing the order ;
An order:
(i) superseding an arbitration ;
(ii) on an award stated in the form of a special case ;
(iii) modifying or correcting an award ;
(iv) filing or refusing to file an arbitration agreement ;
(v) staying or refusing to stay legal proceedings where there is an arbitration agreement ;
(vi) setting aside or refusing to set aside an award:
Provided that the provisions of this Section shall not apply to any order passed by Small Cause Court.
(2) No second appeal shall lie from an order passed in appeal under this section, but nothing in this Section shall affect or take away any right to appeal to the Supreme Court.
10. It is clear from the perusal of the Section 30 of the Act referred to above that unless the grounds existing in Clauses (a), (b) or (c) of Section 30 exist, an Award of an Arbitrator would not be set aside. It is also clear that no collateral ground except those mentioned in Section 30 itself could be the subject-matter of an application under Section 30/33 of the Act for setting aside the award and similar is the scope of challenge to the order of the Civil Judge (Senior Division), Rae Bareilly under Section 39 of the Act. It is settled law that Section 30 of the Act which provides for setting aside the award of the Arbitrator is restrictive in its operation. The use of the expression "shall" in the body of Section 30 of the Act makes it mandatory that the award of an Arbitrator would not be set aside except on the grounds as mentioned therein. In the proceedings under Section 30 of the Act, the decision of the Arbitrator is envisaged as being final between the parties and reappraisal of evidence by the Court is not permissible. In Arosen Enterprises Limited v. Union of India (1999) 9 SCC 449, it has been held by the Supreme Court that even in the event where two views are possible on a question of law arising in an arbitration proceeding the Court would not be justified in interfering with the award. The Court cannot substitute its own judgment with the Judgment of the Arbitrator and come to the conclusion that the Arbitrator had acted contrary to the agreement between the parties. If the view of the Arbitrator is a possible view the award or the reasoning contained therein cannot be examined. Similar view was taken by the Supreme Court in State of U.P. v. Allied Constructions 2003 (3) SCCD 1243 : 2003 (5) AWC 3457 (SC) : (2003) 7 SCC 396 and Continental Construction Limited v. State of U. P. 2004 (1) SCCD 231 : 2004 (1) AWC 23 (SC) : (2003) 8 SCC 4.
11. Section 17 of the Act provides that where an award is not set aside by the Court and where the Court sees no cause to remit the award for reconsideration to the Arbitrator, the Court would after the time for making the application to set aside the award having expired or after refusing to set aside the award proceed to pronounce the judgment according to the award. Upon the judgment being pronounced a decree is to follow and no appeal would lie from such decree except on the ground that the decree is in excess of or not otherwise in accordance with the award. It is thus, clear that the Legislature did not envisage any appeal against a decree under Section 17 of the Arbitration Act except on the extremely limited terms, i.e., that the decree is in excess or not in accordance with the award. Therefore, no other ground can be the subject-matter in appeal against the decree under Section 17 of the Act.
12. It is settled legal position that neither the Civil Judge (Senior Division), Rae Bareilly who is hearing the objections under Section 30/33 of the Act nor the High Court would reappraise the evidence for the purpose of determination of question of fact which have been decided by the Arbitrator. Similar is the position that the High Court while hearing an appeal or revision against the order of the Civil Judge (Senior Division), Rae Bareilly would not attempt to substitute the discretion and jurisdiction of the Arbitrator with its own finding.
13. Therefore, we have to examine the impugned order in accordance with the aforesaid legal position. A perusal of the grounds taken in the F.A.F.O. by the appellant makes it clear that the appeal has been filed on grounds (a) and (c) of Section 30 of the Act. The allegation of the appellant is that the Arbitrator Sri S.K. Rai has mis-conducted himself and the proceedings and that the interim award has been improperly procured and is otherwise invalid. While the case of the respondent No. 1 is that the award has been passed by the Arbitrator wholly in accordance with the principle of natural justice and he has neither mis-conducted himself nor the proceedings and there is no defect or illegality in making the interim award by the Arbitrator and that the award is valid and has correctly been made a rule of the Court.
14. The interim award has been passed on the interpretation of the provisions under Section 27 of the Act which is as follows:
27. Power of arbitrators to make an interim award,(1) Unless a different intention appears in the arbitration agreement, the arbitrators or umpire may, if they think fit, make an interim award.
(2) All references in this Act to an award shall include references to an interim award made under Sub-section (1).
15. From the perusal of the aforesaid provisions, it is clear that the Arbitrator can make an interim award unless the arbitration agreement bars the making of such an interim award. Once an interim award is made, it can be implemented in the same manner in which a final award is implemented.
16. The contention of the appellant before this Court is that the arbitration agreement between the parties envisaged the passing of only 'an award' thus since the agreement envisages passing of only one award, the Arbitrator did not have the jurisdiction to pass an interim award. The same issue was raised before the Arbitrator Sri S.K. Rai and the learned Civil Judge (Senior Division), Rae Bareilly.
17. The Arbitrator has repelled the contention of the appellant, U.P.P.C.L. by saying that the agreement between the parties did not in any manner preclude the Arbitrator from making an interim award. It was held by the Arbitrator that there was no clause in the agreement which may reveal that the parties did not intend to give the power to the Arbitrator to make an interim award. The Arbitrator also came to the conclusion that the giving of an interim award by him in the present case would not amount to conferring the power on him to give two decisions and that on a plain reading of the agreement, he was of the opinion that there was nothing in the agreement which may lead to the inference that the parties intended to restrain him from giving an interim award. The Arbitrator relied on the judgment of this Court in the case of Anand Prakash and Anr. v. Assistant Registrar, Co-operative Society and Ors. , in which this Court has held that an interim award can be made by an Arbitrator after hearing the parties and considering the evidence. There does not appear any error in the finding recorded by the Arbitrator that the application of the respondent No. 1 under Section 27 of the Act was maintainable.
18. The award was filed before the Civil Judge (Senior Division), Rae Bareilly for making Rule of the Court. The same contention was raised before the Civil Judge (Senior Division). Rae Bareilly in the objection under Section 30 of the Act. The Civil Judge (Senior Division), Rae Bareilly came to the conclusion that since there was nothing in the agreement between the parties which may have restrained the Arbitrator from making an interim award, hence the Arbitrator had the power under Section 27 of the Act to make an interim award.
19. The next argument of the learned Counsel for the appellant is that the prayer for interim award under Section 27 of the Act was untenable for the reasons that the respondent No. 1 by its' application under Section 27 of the Act was seeking the implementation of a Five Members' Committee Report which according to the respondent No. 1 was an admission of liability of the appellant. It has been argued that if, Five Members' Committee Report was to be implemented, then the same was actually a final resolution of the dispute and there was nothing "interim" about it. Thus, it has been argued by the appellant that the so called interim award finally decides the entire controversy in question and is thus not interim at all and nothing in fact remains now to be decided. The learned Counsel for the respondent No. 1 has argued that the report of the Five Members' Committee constituted by the appellant, can be taken to be an admission of the liability of the appellant. The learned Counsel for the respondent No. 1 has referred the principle under Order XII, Rule 6 of the Code of Civil Procedure wherein an application could be made by the claimant-respondent for an interim award for the admitted amount as per the Five Members' Committee Report. It has been next argued by the learned Counsel for the respondent No. 1 that the Five Members' Committee Report would have been final had the appellant made the payment to the respondent-claimant as per the said report and since the appellant did not make the said payment accordingly, the respondent No. 1 continues to press it's original claim of Rs. 1482.66 lacs with interest and prayed for an interim award for atleast an amount admitted by the Five Members' Committee of the appellant itself.
20. A perusal of the application under Section 27 of the Act moved by the respondent No. 1 goes to show that the respondent No. 1 claimed an amount admitted by the Committee constituted by the appellant. It is clear from the perusal of the report of the Five Members' Committee that the report of the Five Members' Committee would have decided the dispute finally only if the appellant has agreed for its implementation and not otherwise. There is no such case of the appellant before this Court now that the parties had agreed to settle the dispute finally on the basis of the Five Members' Committee Report and thus, the said report on the basis of which the interim award is based is actually a final resolution of the dispute.
21. As per Supreme Court's judgment in special leave petition against the order passed in revision, the Arbitrator was required to decide as to whether this report was binding or not? Although this Court in Civil Revision No. 44 of 1996 has held the revision infructuous as there remains no dispute between the parties after accepting the liability to make the payment by the Five Members' Committee constituted by the appellant and the Supreme Court did not interfere in the judgment of this Court in civil revision but at the same time, the Supreme Court revived the appointment of the Arbitrator by issuing a mandate that the Arbitrator must now proceed. Therefore, it cannot be said at all that since the Five Members' Committee Report sought to resolve the dispute finally, any award on the basis of the said report cannot be an interim award and can only be a final award.
22. The next ground in appeal is that the Civil Judge (Senior Division), Rae Bareilly has recorded a finding that the Arbitrator did not provide adequate and reasonable opportunity of hearing to the appellant and that the Arbitrator acted against the well-settled tradition and propriety, yet the interim award made by the Arbitrator has been upheld by saying that it is not a misconduct. It has been argued by the learned Counsel for the appellant that by not affording a reasonable and adequate opportunity of hearing, the Arbitrator mis-conducted himself and the proceedings as well and thus, the objections of the appellant under Section 30 of the Act should have been allowed. The learned Counsel for the respondent has argued that there is no illegality in the order of the learned Civil Judge (Senior Division), Rae Bareilly by which he has rejected the objection of the appellant even by holding that full opportunity of hearing was not given to the appellant, because this fact itself would not constitute misconduct on the part of the Arbitrator nor would this fact entitle the appellant to plead that the award was invalid or was improperly procured.
23. The respondent No. 1 has also filed the cross-objection which has been registered as Cross-objection No. 21 of 2004. These cross-objections have been filed to challenge this finding of the Civil Judge (Senior Division), Rae Bareilly, it has been argued that this observation is ill-founded and in fact full opportunity of hearing was given to the appellant and the objections of the appellant, U.P.P.C.L. to the application of the respondent No. 1 under Section 27 of the Act were decided after hearing the parties by the Arbitrator.
24. The learned Counsel for the appellant has challenged the legality of the cross-objection of the respondent No. 1 on the ground that the subject-matter of the cross-objections and the relief sought therein must conform to the requirement of Section 39(1) of the Arbitration Act. It has been argued by the appellant that the cross-objection can be preferred if, the applicant could have sought for the same relief by filing an appeal in conformity with the provisions of Section 39(1) of the Act. According to the learned Counsel for the appellant, the cross-objections do not fall within any of the categories contemplated by Clauses (i) to (vi) of Sub-section (1) of Section 39. The learned Counsel for the appellant has placed reliance on a recent Supreme Court judgment in Municipal Corporation of Delhi v. International Security and Intelligence Agency Ltd. (2004) 3 SCC 250.
25. The learned Counsel for the respondent No. 1 has referred the provisions under Order XLI, Rule 22 of the Code of Civil Procedure which are as follow:
Upon hearing respondent may object to decree as if he had preferred separate appeal.(1) Any respondent, though he may not have appealed from any part of the decree, may not only support the decree (but may also state that the finding against him in the Court below in respect of any issue ought to have been in his favour ; and may also take any cross-objection) to the decree which he could have taken by way of appeal, provided he has filed such objection in the appellate court within one month from the date of service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further time as the appellate court may see fit to allow.
Explanation.A respondent aggrieved by a finding of the Court in the judgment on which the decree appealed against is based may, under this rule, file cross-objection in respect of the decree in so far as it is based on that finding, notwithstanding that by reason of the decision of the Court on any other finding which is sufficient for the decision of the suit, the decree, is wholly or in part, in favour of that respondent.
(2) Form of objection and provisions applicable thereto. Such cross-objection shall be in the form of a memorandum, and the provisions of Rule 1, so far as they relate to the form and contents of the memorandum of appeal, shall apply thereto.
(3) ...
Note.For provisions as to commencement and application of the above amendments made by Act 46 of 1999, Repeal and Savings provision, see Section 32(2)(u) of the C.P.C. (Amendment) Act, 1999 (Act 46 of 1999), given in the Appendices.
(4) Where, in any case in which any respondent has under this rule filed a memorandum of objection, the original appeal is withdrawn or is dismissed for default, the objection so filed may nevertheless be heard and determined after such notice to the other parties as the Court thinks fit.
(5) The provisions relating to appeals by indigent persons shall, so far as they can be made applicable, apply to an objection under this Rule.
26. The argument of the learned Counsel for the respondent No. 1 is that Order XLI, Rule 22 of the Code of Civil Procedure is a provision which is in two parts. The first part of Order XLI, Rule 22 deals with a case where a respondent, though he may not be aggrieved by the decree or any part of it, may only be aggrieved with a finding on one issue. The second part of Order XLI, Rule 22 deals with a case where a respondent in an appeal is aggrieved with a part of decree. It is submitted that in the first case the respondent is supporting the entire decree, but merely challenging a finding by filing cross-objections, whereas in the second case the respondent is opposing a part of the decree as well. The learned Counsel for the respondent No. 1 has submitted that the Judgment of the Supreme Court in Municipal Corporation of Delhi v. International Security and Intelligence Agency Ltd., (supra) is a judgment which deals with a situation where a respondent is opposing the decree or a part of it while in the present case the respondent No. 1 is supporting the entire decree but is only aggrieved with a particular finding in the judgment on the basis of which the decree has been drawn up and therefore, the judgment of Municipal Corporation of Delhi v. International Security and Intelligence Agency Ltd. (supra) has no application and the cross-objection are maintainable.
27. We are of the view that the Judgment of the Supreme Court should be followed as it appears from the plain reading without making any interpretation and we hold that in view of the plain reading of the Judgment of the Supreme Court in the case of Municipal Corporation of Delhi v. International Security and Intelligence Agency Ltd. (supra), the cross-objections filed by the respondent No. 1 are not maintainable. The learned Counsel for the respondent No. 1 further submitted that even if the cross-objections are not maintainable, it is the duty of the Court to hear an appeal to consider the correctness of any finding which is a part of the judgment in appeal and for this purpose, the learned Counsel for the respondent No. 1 has placed reliance upon the Judgment of the Supreme Court in Bhanu Kumar Shastri v. Mohan Lal Sukhadia , the Supreme Court relying on an earlier judgment in Ramabhai Ashabhai Patel v. Dabhi Ahjit Kumar Fulsinji and Ors. , negatived the contention that the respondent was not competent to challenge the correctness of a finding as he had not preferred an appeal. In support of his argument, the learned Counsel for the respondent No. 1 has also placed reliance on various decisions of various High Courts in M. Manoharan Chetti and Ors. v. C. Coomasaswamy Naidu Sons, Madras AIR 1980 Mad 212 ; Naresh Ahir and Ors. v. Smt. Barhiya and Anr. and Smt. Ram Rakhi v. Smt. Atti and Anr. .
28. In view of the aforesaid decisions, it appears to us that the respondent No. 1 without even filing cross-objections can in the appeal of an appellant canvass that any finding decided against him is in fact wrongly decided. This is also provided under Order XLI, Rule 33 of the Code of Civil Procedure which is as follows:
Power of Court of Appeal.--The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection (and may, where there have been decrees in cross-suits or where two or more decrees are passed in one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees):
Provided that the appellate court shall not make any order under Section 35A, in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to make such order.
29. In view of the aforesaid provisions, it is open for this Court to examine the correctness of the findings of the Court below even after rejecting the cross-objection of the respondent No. 1.
30. From a perusal of the record, it appears that after the Judgment of the Supreme Court in Special Leave Petition No. 22995 of 2003 on 19.1.2004 the respondent No. 1 made an application to the Arbitrator on 24.1.2004 with a request that the Arbitrator may proceed with the arbitration as per the direction of the Supreme Court. This is admitted fact. On 28.1.2004, the appellant, U.P.P.C.L. also wrote to the Arbitrator and requested him to proceed with the arbitration in pursuance of the Judgment of the Supreme Court. This fact also finds place in the interim award and is not disputed by the parties The Arbitrator issued notices to the parties fixing 7.2.2004 as the date of hearing in the arbitration proceedings. In the order dated 28.1.2004, the Arbitrator mentioned that the matter would not be adjourned. This is also admitted fact. It is not the case of the either party that the date 7.2.2004 was not known to any of the parties. Both the parties appeared before the Arbitrator on 7.2.2004 and on that date an application was moved by the respondent No. I with a prayer for an interim award under Section 27 of the Act be made, the copy of the application was served on the representative of the appellant, U.P.P.C.L. on 7.2.2004. On the same day, the appellant made an application to grant six weeks time to engage some other lawyer and on this ground the adjournment was sought. The Arbitrator passed an order on the same day stating therein that there was no justification for adjournment of the case for six weeks and the Arbitrator provided ten days' time to the appellant. U.P.P.C.L. to file reply to the application under Section 27 of the Act and further provided that the reply of the appellant, U.P.P.C.L. should be served upon the respondent No. 1 by 17.2.2004 and replication to the reply may be filed by the respondent No. 1 within three days thereafter. It was also clarified that the application moved under Section 27 of the Act would be read on affidavit alone and a time frame was provided by the Arbitrator to file evidence through affidavit. By the agreement of the parties, the case was fixed on 22.2.2004 and it was clarified that the parties should be ready for argument on the application under Section 27 of the Act.
31. The case of the appellant is that the copy of the order dated 7.2.2004 was received by them on fax and it was not clear ; whereas, the respondent No. 1 has submitted that the order was communicated to the appellant, U.P.P.C.L. It appears to us that the order dated 7.2.2004 was sent by Fax to the parties on 7.2.2004 itself by the Arbitrator and the same was sent to the parties by Speed Post also which was delivered to the parties. This plea was also raised before the Arbitrator. The Arbitrator considered this plea and decided the same. We do not find any error in the view taken by the Arbitrator while deciding this plea of the appellant regarding no availability of the clear copy of the order dated 7.2.2004. It appears to us that the appellant, U.P.P.C.L. appeared on 22.2.2004 and filed objection to the application of the respondent No. 1 under Section 27 of the Act. It is not disputed that on 22.2.2004 the Arbitrator heard the matter finally and reserved the judgment on the application under Section 27 of the Act. It also appears that on 22.2.2004, the representative of the respondent No. 1 and the appellant, U.P.P.C.L. were present before the Arbitrator and objection was filed by the appellant, U.P.P.C.L. to the application of the respondent-claimant under Section 27 of the Act. A personal of the objections indicate that the same were on the merits of the case. It was stated in the objections that if the application under Section 27 of the Act was not rejected outright on merits then nothing would be left before the sole Arbitrator for adjudication. It was submitted that if the hearing was required then the respondents would be able to engage their counsel only by March, 2004 and thereafter because their counsel was held up in some other arbitration proceedings. Since the respondent No. 1 did not file any replication to the objection of the appellant, U.P.P.C.L., the matter was heard by the Arbitrator. There is no denial that the hearing was done by the Arbitrator on 22.2.2004 and the Arbitrator passed an order regarding the fact that the hearing was over and the judgment on the application under Section 27 of the Act was reserved. This order was passed in the presence of the parties.
32. In view of the aforesaid facts of the case, the correctness of the finding of the Civil Judge (Senior Division), Rae Bareilly with regard to the opportunity of hearing is to be examined. The Civil Judge (Senior Division) Rae Bareilly has recorded the finding that the order dated 7.2.2004 was served upon the appellant, U.P.P.C.L. There is no finding of the Civil Judge, Rae Bareilly that a legible copy of the said order was not given to the appellant, U.P.P.C.L. There is no finding of the Civil Judge (Senior Division). Rae Bareilly that the Power Corporation was not represented on 22.2.2004 and there is no finding that the objection of the Power Corporation was not filed before the Arbitrator on that date. Similarly, there is no finding that the parties were not heard by the Arbitrator on 22.2.2004. The Civil Judge (Senior Division) was of the view that when no time limit has been fixed by the Arbitrator to give an interim award ; when the matter has been pending since last 24 years, no prejudice would have been caused to any of the parties for delaying the matter for other one or two months. The learned Civil Judge has forgotten that there is lot of difference between the pending litigation and the arbitration proceedings. The arbitration proceedings are the proceedings before a private Arbitral Tribunal. The Arbitration Act was enacted to provide the cheaper and faster direct forum to resolve the dispute between the parties by a forum of their choice. The proceedings were under the old Act of 1940. An Arbitrator had to make award within four months after entering into a reference unless the agreement gives a different time schedule. Moreover in this case, there was a mandate of the Supreme Court for the Arbitrator to proceed and the Arbitrator was to expedite the proceedings after keeping in mind the pendency of the dispute for the last 24 years and the parties had themselves requested the Arbitrator to decide the matter expeditiously. Therefore, it cannot be said that there was any undue haste on the part of the Arbitrator to conclude the proceedings. Only because the Arbitrator fixed a short date in the matter and refused to adjourn the matter on the asking of the appellant, U.P.P.C.L. Is no ground to infer any misconduct on the part of the Arbitrator. In Hart Om Maheshwari v. Vinit Kumar Parekh (2004) 3 Arb LR 534 (SC), it has been held that refusal of an Arbitrator for an adjournment in arbitration proceedings pending for the last four years could not be taken as an instance of the misconduct of the Arbitrator and that the same would not be a ground for setting aside of an award made by an Arbitrator under Section 30 of the Act. Adjournment is a matter of discretion and where the Arbitrator refused to grant an adjournment, it could not be said that the Arbitrator had misconducted himself.
33. The award was challenged before the Civil Judge on the ground that it was an ante-dated award by the Arbitrator and therefore, it was misconduct and it was improperly procured award. No such ground as has been taken before the Civil Judge has been taken here in appeal. There is no dispute about the fact that the orders were reserved for 22.2.2004 by the Arbitrator, A notice was sent to the parties by the Arbitrator on 25.2.2004, by Registered Post informing the parties that the interim award has been made and signed by him on 24.2.2004. The receipt of the notice is not denied by either party. On receipt of the notice, the parties obtained the copy of the interim award from the Arbitrator on 28 2.2004 and 29.2.2004. Therefore, this contention that the award was ante-dated, has been rightly repelled by the learned Civil Judge.
34. The learned Counsel for the appellant has further submitted that the finding of the Arbitrator about the binding nature of the Five Members' Committee is not correct. It is alleged that this report was never admitted or accepted by the appellant and Fine Members' Committee was not a Statutory Committee. It appears that the respondent No. 1 submitted before the Arbitrator that a Five Members' Committee had been constituted by the Chairman and the Managing Director of the U.P.P.C.L. Itself after obtaining instructions and approval from the State Government. The said committee was constituted to settle and finalise the matter of the claims of the respondent No. 1 for an out of Court settlement. It was asserted by the respondent No. 1 that the committee comprised of senior-most officers of the Power Corporation namely, the Director (Distribution), Director (Finance), Chief General Manager (Material Management), Chief General Manager (Accounts and Audit), Special Secretary (Energy) as nominees of the Principal Secretary (Energy). It was also submitted by the respondent No. 1 that this Five Members' Committee not only examined the claims of the respondent No. 1 in appeal but also gave full opportunity of hearing to the parties. The report was submitted to the Chairman and Managing Director, Power Corporation who referred the matter to the State Government and the State Government also issued directions for settlement of the matter. The Government order was issued by which the Board of Directors of the Power Corporation were directed to pay an amount of Rs. 979.8527 lacs plus interest thereon as per the computation of claims made by the Five Members' Committee. It was pleaded before the Arbitrator that since the Power Corporation itself had accepted that an amount of Rs. 979.8527 lacs with interest thereon had become payable to the respondent No. 1, there is no legal impediment if the interim award was made for the said amount.
35. The argument of the learned Counsel for the appellant before the Arbitrator was that the report of the Five Members' Committee was merely an opinion or advice and since the Power Corporation did not agree with the said opinion, the appellant was not bound by the same. It has also been asked that the G.O. Issued by the State Government was irrelevant since the Government was never a party to the dispute nor a party to the agreement between the parties. After taking into consideration these arguments of the learned Counsel for the parties, we are of the view that the merit of the issue before the Arbitrator cannot be the subject-matter of the proceedings under Section 30 of the Act for the reason that the Court while considering the application under Section 30 of the Act is only required to see as to whether the Arbitrator has mis-conducted himself or not and whether the award has been improperly procured or is otherwise invalid. Even if, the Arbitrator reached a wrong conclusion, the Court would not sit in appeal over the views of the Arbitrator by re-examining and reassessing the material before him. . The same view was taken by the Supreme Court in Hindustan Tea Co. v. K. Shashikant Co. 1987 (1) AWC 101 (SC) : AIR 1987 SC 87 and Puri Constructions P. Ltd. v. Union of India .
36. The admitted position is that Five Members' Committee is a High Power Committee comprising of experts. It was constituted by the Chairman and Managing Director of Power Corporation, There was never any dispute about constitution of this Committee and it was constituted for the purpose of evaluating the liability of the appellant. No doubt, it can be said that the role of the Committee was simply advisory but at the same time, we do not find any evidence that the Board of Directors has ever disagreed with the report or given any reasons for its non-implementation. The Board of Directors in its' meeting dated 19.2.2003 merely decided that the payment as per report may be made only after the decision of the Arbitrator. We are of the view that a Court exercising its jurisdiction under Section 30/33 of the Act will not examine the report of the Five Members' Committee on its' merit but would examine the same only for the purpose of deciding as to whether the same was binding or not? We noted that the correctness of the report was neither challenged before the Arbitrator nor in the objection under Section 30/33 of the Act before the Civil Judge.
37. The appellant has filed a report of the Committee of the four Directors of the appellant with a supplementary affidavit in which four Directors of the Power Corporation gave recommendation that only an amount of Rs. 37,448 lacs plus Rs. 731.9477 lacs be paid to the respondent No. 1. This report is said to be dated 10.7.2001. It was not filed before this Court in the proceedings in Civil Revision No. 44 of 1996 which was decided on 8.7.2003. It was not filed before the Arbitrator. It was not filed alongwith objection under Sections 30/33 of the Act. It has been filed for the first time alongwith the supplementary affidavit before this Court in this appeal. We are not required to record any finding as to whether this Four Directors' Committee report has taken place of Five Members' Committee Report because this Court is examining the interim award and the impugned order of the Civil Judge within the scope of Sections 30 and 33 of the Act, The learned Counsel for the appellant has submitted that in the report of the Five Members' Committee, it is mentioned that it is based on a legal opinion and certain documents were not brought to the notice of the Law Department at the time of seeking legal opinion but we are not examining the recommendations of the Five Members' Committee with a view to adjudge the correctness of the recommendations. The Five Members' Committee had invited claims from the respondent No. 1 and the appellant U.P.P.C.L. had been given an opportunity to bring all materials on record to rebut the claims and the report was submitted after giving opportunity to both the parties and thereafter the committee negotiated with the claimant regarding the money payable to the respondents. The Five Members' Committee is a statutory Committee or not; is not relevant issue. The only relevant issue is as to whether the report of the Five Members Committee is binding on the appellant or not? This issue was raised before the Arbitrator as per observation of the Supreme Court. The Arbitrator has given detailed reasons as to why the report of the Five Members' Committee was binding on the appellant. The Arbitrator has come to the conclusion that the report was not merely advisory in nature but was in fact binding on the appellant since the committee was an expert Committee appointed by the appellant itself for evaluating the claims of the respondent No. 1 and it was after full opportunity of hearing and after negotiating with the respondent No. 1 that the report had been finalised. The Arbitrator has also taken a notice of the letter dated 21.9.2000, issued by the Chairman and Managing Director of the U.P. Power Corporation Limited in which it has been stated that the Five Members' Committee was instructed to examine and dispose of the matter of the claims of the Company.
38. Since the Arbitrator has decided that the report of the Five Members Committee is binding on the appellant and has given a reason for saying so, it would not be appropriate for this Court to re-examine the question of fact in view of the settled law and mandate of Section 30 of the Act and the limitations imposed therein.
39. The learned Counsel for the appellant has submitted that the Arbitrator should have fixed a date for filing of written statement and after that issues must have been framed and the opportunity must have been given to lead evidence on each issue and the failure of the Arbitrator to do so has resulted in the conclusion that the Arbitrator misconducted the proceedings. We are of the view that this contention has no force because the Code of Civil Procedure is not applicable to the proceedings before the Arbitrator as is apparent from the provisions under Section 41(a) of the Arbitration Act, 1940 which is as follows:
41. Procedure and powers of Court.Subject to the provisions of this Act and of Rules made thereunder ;
(a) the provisions of the Code of Civil Procedure, 1908 (5 of 1908), shall apply to all proceedings before the Court, and to all appeals, under this Act, and .
40. The only procedure that is to be followed by an Arbitrator must be one which is fair and transparent and which does not cause any prejudice to other party. It cannot be denied that the Arbitrator is the master of its own procedure in deciding the dispute. The purpose of the Arbitration is to provide an expeditious forum for resolution of the disputes and thus any technicality of the procedure will not vitiate an Arbitral Award.
41. The appellant has made an attempt to challenge the award of the Arbitrator on the ground of procedural illegality but it goes to show that the Arbitrator has given full opportunity to the parties and he was duty bound to discharge the mandate given by the Supreme Court.
42. This Court will not reappraise the evidence in Arosen Enterprises Limited v. Union of India , the Supreme Court has held that;
the Legislature obviously had in its mind that the Arbitrator being the Judge chosen by the parties, the decision of the Arbitrator as such ought to be final between the parties. Reappraisal of evidence by the Court is not permissible and as a matter of fact exercise of power by the Court to re-appraise the evidence is unknown to proceedings under Section 30 of the Act. In the event of there being no reasons in the Award, question of interference of the Court would not arise at all. In the event, however, there are reasons, the interference would still be not available within the jurisdiction of the Court unless of course, there exist a total perversity in the award or the judgment is based on a wrong proposition of law. In the event however two views are possible on a question of law as well, the Court would not be justified in interfering with the award. The common phraseology 'error apparent on the face of the record' does not itself however, mean and imply closer scrutiny of the merits of documents and materials on record. The Court as a matter of fact, cannot substitute its evaluation and come to the conclusion that the Arbitrator had acted contrary to the bargain between the parties. If the view of the Arbitrator is a possible view the Award or the reasoning contained therein cannot be examined.
43. A similar view has also been taken in State of U.P. v. Allied Constructions and Continental Construction Ltd. v. State of U. P. .
44. From the above, it is clear that the Jurisdiction of the Court in entertaining the petition or application for setting aside an Award under Section 30 of the Act is extremely limited to the grounds mentioned therein.
45. In Civil Revision No. 155 of 2004, the main contention of the revisionist is that the learned Civil Judge could proceed to pronounce the judgment according to the award only after adjudication of the application moved for setting aside the award under Sections 30 and 33 of the Act and the Civil Judge has erred in law in deciding the objection under Section 17 of the Act moved by the respondents and the objection under Sections 30 and 33 of the Act moved by the Power Corporation simultaneously.
46. We are of the view that a bare perusal of the provisions under Section 17 of the Act, it is apparent that once an objection made by the parties under Section 30 of the Act has been rejected or if the time for filing objection has expired and objections are not made, the Court has no option except to make the award a Rule of the Court. Section 17 of the Act does not envisage that the civil court will decide the merit of an Award after rejecting the application of a party under Section 30 of the Act. Section 17 of the Act envisaged that the Civil Judge would pronounce a judgment in terms of the award once the objections under Sections 30 and 33 of the Act were set aside. Thus, there was no reason for the Court not to simultaneously make the Award a Rule of the Court. The Full Bench of this Court in the case of District Co-operative Federation v. Ram Samujh Tiwari AIR 1973 All 476, has held that once an objection under Section 30 of the Act was dismissed, the Court shall proceed to pronounce the judgment according to the award without the party interested making an application to that effect and therefore, the revision filed by the Power Corporation is devoid of any merit and is liable to be dismissed.
47. The next contention of the learned Counsel for the appellant is that the award of the interest by the Arbitrator is not in accordance with the provisions under the Act. It is submitted by the appellant that the Arbitrator could not have awarded more than 6% interest and thus, the order of the Civil Judge is 'liable to be set aside. We are of the view that Clause 7A which has been inserted by 1st Schedule of the Act by way of U.P. Amendment is applicable to the Arbitrator. A plain reading of Clause 7A of the 1st Schedule, it is clear that there are three different stages for which the Arbitrator may award the interest over the principal sum ;
(i) interest on the principal amount from the date of commencement of Arbitration to the date of award. The Arbitrator can grant any amount of interest for this period winch is reasonable.
(ii) interest for the period prior to the commencement of the Arbitration and the Arbitrator has not awarded any interest for this period.
(iii) interest for the period from the date of the award upto the period which may not be beyond the date of the decree ; as per Clause 7A of the First Schedule maximum interest which can be awarded for this period by the Arbitrator is 6%.
48. In view of the aforesaid provisions under Clause 7A of First Schedule of the Act, the amount of interest in the award needs to be modified only to the extent that 18% interest allowed for the period starting from the date of the Award till the date of the decree be reduced to 6%. Only this modification is required for payment of interest in the interim award. This modification can be permitted in appeal even if no objection has been taken before the Civil Judge.
49. In view of the above, the F.A.F.O. No. 673 of 2004 and Civil Revision No. 155 of 2004 filed by the U.P. Power Corporation Limited against the order of the Civil Judge (Senior Division) Rae Bareilly dated 28.8.2004 in Regular Suit No. 184A of 2004 and Misc. Case No. 32 of 2004 are to be dismissed with the observation that the finding of the Civil Judge (Senior Division), Rae Bareilly that the Arbitrator did not give full opportunity of hearing to the appellant is erroneous and is contrary to the facts on record and the award for the payment of interest from the date of the award till the date of the decree shall be modified and this interest shall be limited to the rate of 6% per annum. The decree of the Civil Judge (Senior Division). Rae Bareilly dated 9.9.2004 shall stand modified to this extent. The Cross-objections, being not maintainable, are also to be dismissed.
50. In the light of the aforesaid judgment, the Writ Petition No. 3177 (M/B) of 2004 having become infructuous is also to be dismissed.
R.P. Yadav, J.
51. I am in full agreement with the judgment prepared by brother Hon'ble N.K. Mehrotra, J. However, I would like to add few words of my own.
52. The order passed by the Civil Judge on 28.4.2004, rejecting the objection under Section 30/33 of the Arbitration Act, 1940 (hereinafter referred to as the 'Act') and making the interim award Rule of the Court has been challenged before this Court.
53. The main argument of the learned Counsel for the appellant is that the Arbitrator while passing the impugned interim award misconducted himself and the proceedings and award is otherwise invalid. He submitted that the Arbitrator did not follow the proper procedure and deprived the appellant from reasonable opportunity of hearing. According to the learned Counsel, the arbitrator ought to have followed the procedure prescribed for the civil suits before giving the interim award.
54. It is undisputed that there is no procedure prescribed for interim award which is contemplated under Section 27 of the Act and also there is no procedure prescribed for the final award as well. According to the provisions of Section 27(2) of the Act, the interim award has the effect of the final award so far as its binding nature on the parties or executability is concerned. In the absence of any specific prescribed procedure, it is expected from the Arbitrator that he will follow the procedure, which is in consonance with the principles of natural justice. In other words, the Arbitrator is required to give due opportunity of hearing to the parties before passing any interim award. As indicated by the name itself, interim award although in essence has the effect of the final award, but it is subject to the award given finally wherein it will merge automatically. Therefore, any order or direction given in the interim award can be modified, varied, set aside or changed at the time of giving the final award.
55. In the present case, the matter of arbitration which has been pending since long was expected to be disposed of expeditiously and the parties had also made prayer to the arbitrator for expeditious disposal of the same. The Arbitrator fixed 7.2.2004 and orders passed that day were duly communicated to the parties and next hearing was scheduled to be held on 22.2.2004, on which date, the appellant-U. P. Power Corporation filed objection against the prayer for interim award and its representative was duly heard and thereafter the dale for giving the award was fixed, on which date, the award was declared and communicated to the parties.
56. In these circumstances, it cannot be said that the appellant-U.P. Power Corporation was not given reasonable opportunity of hearing or that refusal for further adjournment amounted to misconduct on the part of the Arbitrator or the proceedings. The Arbitrator being the forum chosen by the parties, it has to devise its own procedure and there being no specified procedure prescribed in law and Arbitrator having invited objection on the matter of interim award and proffered due opportunity of hearing to the parties, it cannot be said that the Arbitrator has not followed the proper procedure. As already observed above, in absence of any procedure prescribed by law, the requirement was to follow the proper and reasonable procedure adhering to the principles of natural justice and the principles of natural Justice require that the parties should be heard before passing any order to the prejudice of either of the parties. Protracted procedure of civil suits was not required to be followed at all.
57. Arbitrator has passed the interim award on the basis of Five Members' Committee which was constituted by the appellantU. P. Power Corporation itself on the request of the respondent, who with a view to settle the dispute amicably and expeditiously had requested the U.P. Power Corporation-the appellant to resolve the matter, whereupon the Managing Director of the Power Corporation appointed the Committee which consisted of the highly placed responsible officers. Not only this, it has been brought on record of this appeal that subsequently the appellant itself constituted a four members' committee. The members of this Committee were four-Directors of the U.P. Power Corporationappellant. They also recommended for payment to the respondent. The authorities of the U.P. Power Corporation despite this report and also the order of Government for making payment as per report of the committee did not make the payment and decided to fight litigation although the State Government had directed for payment after seeking the opinion of the Advocate General. The purpose of constituting in-House Committee was to scrutinize the claim of respondent and resolve the dispute amicably avoiding unnecessary litigation and to save the expenses involved therein.
58. There is no illegality in the interim award, which is based on the report of the Five Members' Committee constituted by the Managing Director of the U.P. Power Corporation.
59. The rate of interest is being modified on account of the legal provision, which does not permit more than 6% from the date of award till the date of decree. However, at the time of final award, this rate of interest may be modified or enhanced, as for the purposes of final award; this period would be the pendente lite period. It would also be open and permissible in law to the Arbitrator to hold and decide that the Power Corporation was not liable to make any payment and in that event, it will also have the powers to direct for return of the amount or any part thereof received by the respondent.
60. With the modification in the rate of interest for the period aforesaid and reversal of the finding's on the point of opportunity recorded by the Civil Judge against the Arbitrator, the appeal, the revision and the writ petition are to be dismissed.
Cross-objection has already been held to be not maintainable.
(By the Court)
61. After setting aside the finding on the point of no reasonable opportunity of hearing recorded by the Civil Judge (Senior Division), Rae Bareilly and modifying the rate of interest as held above, the F.A.F.O. No. 673 of 2004 alongwith Cross-Objection No. 21 of 2004 and Civil Revision No. 155 of 2004 are dismissed.
62. The Writ Petition No. 3177 (M/B) of 2004 being infructuous is also dismissed.