Rajiv Shakdher, J. - (1.) The captioned interlocutory application represents objections filed on behalf of the defendant i.e. NHPC Limited (hereafter referred to as "NHPC") under Sections 30 & 33 of the Arbitration Act, 1940 (in short "1940 Act").
(2.) The application was heard by me at some length on 04.04.2019. In the proceedings held on that date, I had recorded the submission of counsel for parties with regard to the main issue at hand. While I wanted to dispose of the matter on 04.04.2019, I was persuaded by Mr. Nath, who, appears for NHPC, to stand over the matter as he wanted to place on record certain judgments for my consideration. 2.1 Therefore, after recording the submission of counsel of both sides, and after setting out my prima facie view, I had stood over the matter till today i.e. 08.04.2019. 2.2 Thus, in order to avoid repetition, and for the sake of convenience, the relevant part of my order dated 04.04.2019 is extracted hereafter. "2. These objections have been preferred by NHPC Limited company (NHPC), qua the award dated 09.02.2018, as clarified by the order dated 28.03.2018. 3. Upon notice being issued in CS(Comm.) 907/2018, the arbitral tribunal, concededly, filed the aforementioned award and the followup clarificatory order in this Court. 4. It is thereupon that NHPC preferred the instant objections via the captioned application. 5. The principal objection which NHPC raises with regard to the directions contained in the award dated 09.02.2018 pertains payment of interest. 5.1 This objection is pivoted on the provisions contained in Clause 49.5 of the General Conditions of Contract (in short "GCC"). 6. It is the contention of Mr. Nath, Advocate, appearing on behalf of NHPC, that the arbitral tribunal could not have awarded interest as there is a bar in the said clause on the payment of interest with regard to the monies withheld and/or retained by NHPC. 7. Mr. Sawhney, who appears on behalf of non-applicant/plaintiff, contends otherwise. 7.1 Learned counsel submits that the bar obtains only if money was otherwise due and payable to the non-applicant/plaintiff. 8. According to Mr. Sawhney, since NHPC raised disputes qua the claims raised by the non-applicant/plaintiff, Clause 49.5 of the GCC would have no applicability. 8.1 In the alternative, Mr. Sawhney says even if the clause is construed to mean that it permits NHPC to mark a lien on the sums which the contractor claimed under the subject contract, the lien can hold and therefore, monies can be withheld and/or retained only against monies payable to NHPC in respect of any other contract obtaining between the parties. Learned counsel says that there are no sums payable to NHPC under any other contract. 9. I have heard learned counsel for the parties. 10. For the purpose of disposal of the objection raised by NHPC, one would have to examine the width and scope of Clause 49.5 of the GCC. Thus, for the sake of convenience, the same is extracted hereafter: "49.5..any sum of money due and payable to the contractor (including the security deposit returnable to him) under the contract may be withheld or retained by way of lien by the Engineer In charge or corporation against any claim of the corporation or such other persons or persons in respect of payment of a sum of money arising out of or under any other contract made by the contractor with the Engineer-in-charge or corporation or with such other person or persons. The sum of money so withheld or retained under this clause by the Engineer-in-charge or Corporation will be kept withheld or retained as such by the Engineer-in-charge or Corporation or till his claim arising out of in the same contract or any other contract is either mutually settled or determined by the Arbitrator, if the contract is governed by the arbitration clause under the clause 55 or by the competent court hereinafter provided, as the case may be, and the contractor shall have no claim for interest or damages whatsoever on this account or any other ground in respect of any sum of money withheld or retained under this clause." 11. A careful perusal of the said clause shows that it prohibits payment of interest to the contractor in the following scenario: 11.1 Where any sum is due and payable to the contractor including by way of security deposit under the contract, the same can be withheld or retained by way of lien, inter alia, by NHPC against any claim it may have vis-a-vis the contractor arising out of or under "any other" contract between the parties. 11.2 The clause goes on to provide that the sum so withheld or retained will be kept withheld or retained by NHPC. This part of the clause also provides for termination of the lien in two situations. First, where "his claim" (and this could be only the contractor's claim) arising out of the same contract or any other contract is settled. Second, where his claim, that is, the contractor's claim whether arising out of the same contract or any other contract is determined by an Arbitrator or a competent court. 12. It is only when such a situation arises that the respondent is not obliged to pay interest or damages to the contractor qua money withheld or retained. 13. Mr. Sawhney submits that apart from the monies claimed under the subject contract, no other sums are due and payable to the contractor either under the subject contract or any other contract. 14. Furthermore, Mr. Sawhney submits that insofar as the subject contract is concerned the dispute between parties pertained to finalisation of the rates qua extra work. The learned counsel submitted that since the rates were not finalised by the respondent, monies were not released to the contractor against the claims made in respect of extra work. 14.1 The argument was that the contractor's claims were fluid as there was no crystallisation of dues. 15. In any event, according to Mr. Sawhney, no lien was ever marked by NHPC vis-a-vis plausible claims of the nonapplicant/plaintiff arising out of the subject contract. 16. It is also the contention of Mr. Sawhney that NHPC did not raise any independent claim against the non-applicant/plaintiff. According to learned counsel, the claimant before the arbitral tribunal was only the non-applicant/plaintiff. 16.1 Learned counsel re-emphasized the point that assuming without admitting lien could be marked or as contended was marked there were no sums due and payable under any other contract to NHPC. 16.2 I must put on record that this aspect is not disputed by Mr. Nath. 17. Mr. Nath, Advocate, appearing on behalf of NHPC, contends to the contrary. 17.1 According to the learned counsel, the clause takes within its ambit even the subject claims which stand determined by the arbitrator via the award dated 9.2.2018. In other words, the contention is that qua the claim determined by the arbitrator with respect to the subject contract no interest would be payable. 18. Prima facie, I am of the view that the construction placed on Clause 49.5 of the GCC by Mr. Nath is not tenable. 19. However, Mr. Nath seeks time to place on record before me certain judgements to persuade me to his point of view. 20. Besides this, Mr. Nath says that there are two other issues which are required to be considered. 20.1 First, as to whether the rate of interest granted by the arbitral tribunal ought to be sustained. 20.2 Second, the date from which the liability, if any, to pay interest, should commence."
(3.) A perusal of the aforesaid extract of my order dated 04.04.2019 would demonstrate that the objections taken by NHPC to the impugned Award and the clarification issued thereafter by the learned Arbitrator veers around one principal issue, which is, the directions contained in the impugned Award qua payment of interest by NHPC to the non-applicant/plaintiff i.e. Jai Prakash Associates Limited (in short "JAL").;