- (1.) THIS petition under Article 227 of the Constitution of India has been preferred by the petitioner challenging order passed below Ex.31 by Civil Judge (Senior Division), Gandhinagar in Special Execution Petition No.52 of 1995.
(2.) FACTS relevant for the purpose of deciding this petition can be summarised as under : 2.1 The petitioner was awarded contract of constructing earthwork and C.C. lining between Ch.5.03 kms. to 10.14 kms. on Damanganga Right Bank main canal by agreement No.B-2/16 of 1982-83. 2.2 It appears that the petitioner kept on requesting the respondents to disburse the outstanding amount with regard to the contract. Since the respondents failed to make the payment, petitioner instituted Civil Suit No.157 of 1989 in the Court of Civil Judge (Senior Division), Ahmedabad (Rural) at Ahmedabad. Civil Court appointed a retired Chief Engineer, Vigilance Commission, as Sole Arbitrator to resolve the dispute between the petitioner and the respondents. 2.3 Record reveals that the Sole Arbitrator passed an award on 31st August, 1993. The said award along with arbitration proceedings were filed in the Court of Civil Judge (Senior Division), Ahmedabad (Rural) at Mirzapur which was numbered as C.M.A. No.235 of 1993. The application under Section 17 of the Arbitration Act, 1940 was filed by the petitioner for making the award rule of the Court and passing a decree in terms of the award. The Civil Judge (Senior Division), Ahmedabad (Rural) at Mirzapur passed a decree in terms of the order vide its judgment dated 30th December, 1993. 2.4 Record also reveals that the petitioner preferred Special Execution Petition in the Court of Civil Judge (Senior Division), Ahmedabad (Rural) at Mirzapur which was numbered as Special Darkhast No.39 of 1994. It appears that pending final disposal of Special Darkhast No.39 of 1994, respondents preferred appeals being First Appeal No.3779 of 1995 and First Appeal No.3780 of 1995 with Civil Applications for condonation of delay in both the appeals. 2.5 Record also reveals that there was delay in preferring two First Appeals referred to above and therefore, the Division Bench of this Court heard the respondents on their applications for condonation of delay and having found that the respondents have not been able to assign any sufficient cause for delay, rejected both the applications. Since the applications for condonation of delay were rejected, the First Appeals against the award were not entertained. 2.6 However, while dismissing the appeals as barred by limitation, Division Bench observed as under : The learned Counsel for the respondents has stated that if the payment is made within two months from today, the respondent will accept the same with interest at the rate of 9% p.a. for the whole period i.e. the payment is to be made within two months from today, on or before October 1, 1995 2.7 It appears that the concession was given by the petitioners herein saying that if the payment is made by the Government within two months, they would accept the payment @ 9% instead of 17% as awarded as per the decree. 2.8 Record also reveals that vide letter dated 16th October, 1995, respondents were informed that the last date for payment is 01.10.1995 which has expired and the petitioners are not willing to extend the time. 2.9 Record further reveals that vide letter dated 08.12.1995, respondent No.2 was requested to make payment by 11.12.1995 as per the decree passed by the Court. Respondents issued a cheque bearing No.4042665 dated 11.12.1995 for the sum of Rs.37,69,401=60 ps., and this amount seems to have been calculated @ 9% interest and not @ 17% interest as per the decree. 2.10 This cheque referred to above was accepted under protest and the respondents were requested vide letter dated 11.12.1995 to make the due payment of the balance amount calculating the interest @ 17% p.a. The balance principal amount of Rs.9,63,423=35 ps., was required to be paid with running interest @ 17% p.a. from 12.12.1995 till the amount is fully paid to the petitioner. In this regard, application Ex.26 was filed before the Civil Judge (Senior Division), Gandhinagar as the record and proceedings of Special Execution Petition No.39 of 1994 were transferred to the Court of Civil Judge (Senior Division) at Gandhinagar and was numbered as Special Execution Petition No.52 of 1995. 2.11 It appears that Civil Judge (Senior Division), Gandhinagar passed an order below Ex.31 directing the respondents to make the deficit payment with 9% interest vide order dated 14.08.2003. 2.12 It is at that stage that the petitioner herein preferred this petition praying for appropriate relief. I have heard learned counsel Mr. Sukhwani appearing for the petitioner and learned AGP Ms. Calla for the respondents. I have also perused the impugned order under challenge and prima facie, I am of the view that the order seems to have been passed under some misconception. It appears that the trial Court seems to have relied upon letter dated 08.12.1995 addressed by the petitioners, wherein, it has been stated that they are ready and willing to grant time to the respondents to make the payment upto 11.12.1995 and requested the respondents to make the payment as per Court decree immediately. This letter has been construed by the trial Court as if that the petitioner has acquiesced his right of getting the payment @ 17% interest. It is an undisputed fact that the First Appeals were dismissed as barred by limitation. It is also an undisputed fact that since both the First Appeals were dismissed as barred by limitation, award has been confirmed @ 17% interest. Statement made by the petitioners in the First Appeals that they would accept the amount @ 9% would bind them provided that the respondents make the payment within two months. It appears that warrants were issued by the Executing Court against the respondents and at that point of time, petitioner requested the Court concerned that the warrants may not be executed against the respondents provided they make the payment as per the decree by 11.12.1995.
(3.) IN my opinion, this can be the only construction of the letter which has been construed otherwise. I am of the view that trial Court has committed an error in taking the view that the petitioner on its own free Will and volition was ready and willing to accept the payment by 11.12.1995 is sufficient to warrant an inference that they were ready to accept interest @ 9% p.a. Prima facie, it appears that the application Ex.26 with a prayer to make the payment of Rs.9,63,423=35 p.s., with running interest @ 17% p.a. from 12.12.1995 till its realisation was already granted, but, it appears that the same was an ex-parte order and therefore, in the year of 2002, application Ex.31 came to be preferred by the respondents herein saying that they ought to have been heard and the Court may pass a fresh order in this regard. It is thereafter that the concerned Court passed the order below Ex.31 dated 14.08.2003. In the above view of the matter, the order passed by learned Civil Judge (Senior Division) at Gandhinagar below Ex.31 in Special Execution Petition No.52 of 1995 deserves to be quashed. In the result, this petition succeeds. The order passed by Civil Judge (Senior Division), Gandhinagar below Ex.31 dated 14.08.2003 in Special Execution Petition No.52 of 1995 is hereby quashed and set aside. Respondents are directed to deposit the balance amount of Rs.9,63,423=35 ps., (Rupees nine lacs sixty three thousand four hundred twenty three and thirty five paisa only) with interest @ 17% p.a. from 12.12.1995 till the date of realisation within a period of three months from the date of receipt of this order. Rule is made absolute.;