Syamal Kanti Chakrabarti, J. - (1.) IN the present revisional application order nos. 19 dated 09.07.2008 and order no. 20 dated 06.11.2009 passed by the learned Civil Judge (Senior Division), 1st Court, Midnapore in Money Execution Case No. 1 of 2006 has been assailed.
(2.) IT is submitted on behalf of the petitioner that the dispute regarding construction of Provn of Gymnasium and Sports Secion at Kalaikunda at an estimated cost of Rs. 11,96,207.91 within 11th March, 1988 was referred to the learned Arbitrator who passed an award in favour of the company respondent directing the petitioner Union of India represented by CWE(AF), Kalaikunda, Paschim Midnapore to pay a sum of Rs. 4,34,210/- including interest to the company. Since the respondent company did not receive the entire decreetal amount they filed execution case being Money Execution Case No. 1 of 2006 before the learned Civil Judge (Junior Division), First Court, Paschim Midnapore. During the pendency of the said execution case the respondent company received the decreetal dues under protest. However, after hearing both the parties the learned Court below by order no. 19 dated 09.07.2008directed the petitioner/ judgement-debtor to pay further sum of Rs. 1,44,324/- as interest within sixty days from the date of order to the respondent company. The petitioner on perusal of records found that there was arithmetic error in calculating the interest part and so moved an application on 06.11.2009 under Section 151 CPC before the learned Executing Court for reconsideration of the matter. But the learned Court below has rejected such prayer. IT is contended that the actual balance amount of interest due to be paid to the decree-holder/ contractor will be Rs. 7963/- and not Rs. 1,44,324/-. In fact the learned Arbitrator has awarded simple interest and the dates of applicability of interest for different claims have also been calculated by the learned Arbitrator up to the date of Award, i.e., 29th September, 2003 and regarding claim nos. 1, 2 and 6 interest has been calculated after the date of actual completion of work, i.e., 11th March, 1990 and in respect of claim nos. 6 and 9 interest was payable from the date of payment of final bill, i.e., 11th March, 1993. Regarding claim no. 12 a further interest at the rate of 12 per cent per annum (simple) shall be payable for three months after signing of Award, i.e., 29.09.2003 up to the date of actual payment of claim. IT is also stated by the learned Arbitrator that the three months time is the period for implementation of the Award. Accordingly, the petitioner claims that as per Award interest is payable at the rate of 12 per cent per annum with effect from 11.03.1990 and in respect of claim nos. 1, 2 and 4 it is payable from 30.03.2003 and for claim nos. 6 and 9 interest is payable at the rate of 12 per cent per annum with effect from 11.04.1993 to 30.09.2003 and for claim no. 12 future interest is payable at the rate of 12 per cent per annum with effect from 16.08.2009 to 30.09.2003 and so far as claim in Clause (ii) is concerned, 12 per cent interest will be payable with effect from 31.12.2003 to 18.08.2006, i.e., the date of payment. But the contractor in the instant case has claimed interest before the learned Executing Court for all claims up to 15.08,2006 which is incorrect. By the impugned order the learned Judge has directed to pay the amount of interest without application of mind and has failed to exercise his jurisdiction properly causing miscarriage of justice for which the same is liable to be set aside. Learned lawyer for the decree-holder/ opposite party has claimed that the decreetal dues were paid on 18thAugust, 2006. Therefore, they are entitled to claim interest for the period from 28.12.2003 to 18.08.2006. Therefore, the learned Executing Court is justified in passing such order which should not be interfered with. For the purpose of proper appreciation the decision of the learned Arbitrator in respect of claim no. 13 dealing with interest for the past, present and future is quoted below: Claim No. 13. Interest for the past, present & future. As seen from above certain claims which were justified & genuine has not been paid to contractor and disputes has persisted for very long duration ie. For last 13 years. Since period involved is quite long. I, therefore, consider a simple interest of 12% per annum adequate to compensate for the time value of sums awarded. The date of applicability of interest for different claims shall be as under and calculated up to the date of award ie. 30 Sept 2003. Claim No. 1, 2, 4 after date of actual completion of work ie. 11 March 1990. Claim No. 6,9 From date of payment of Final Bill ie. 11 April 1993. Claim No. 12 From date of delivery of judgement by Honble High Court Kolkata ie 16 Aug 2000. The future interest @ 12% (simple) per annum shall be payable from 3 months after signing of award ie. 29 Sep 2003 up to actual payment of claims. The 3 months time is a period considered for implementation of the award. The future interest shall be applicable only in case Deptt fails to pay the award within this time limit.
(3.) OBVIOUSLY, both the contracting parties are bound by the terms of such Award and no decree can be passed contrary to the terms of such Award. In the instant case the learned Court below while disposing of the application has not assigned any reason and has not worked out details of the calculation in the impugned order no. 19 dated 09.07.2008. He has awarded the interest from 01.10.2003 till the filing of the Execution Case, i.e, 02.01.2006. But from the award it will appear that the period of interest payable commences from different dates in respect of different claims. As regards future interest it has been specifically mentioned that the same will be payable from three months after signing of the Award, i.e, 29th September, 2003 up to actual payment of claims. Therefore, he has allowed the payment of interest for the period from 01.10.2003 to 15.08.2006, i.e., approximately 2 years 10 months without considering the terms of awards. By order no. 20 dated 06.11.2009 the learned Executing Court has refused to reconsider such prayer made under Section 151 CPC. After careful consideration of the matter I hold that the learned Executing Court must abide by the terms of the Award and cannot go beyond it. He has accepted the calculation made by the decreeholder without considering the petition of the judgement-debtor and without giving the judgement-debtor any opportunity of furnishing any fresh calculation sheet in respect of different periods for which interest is payable in respect of claim nos. 1 to 4, 6, 9 and 12. This leads to miscarriage of justice and as such I hold that both the orders passed by the learned Executing Court below are not sustainable in law. In the result I find sufficient merit in this application which is accordingly allowed. The impugned order no. 19 dated 09.07.2008 and order no. 20 dated 06.11.2009 are hereby set aside. The learned Executing Court is directed to calculate the period of interest and the rate of interest afresh strictly in terms of the Award giving opportunity to both the parties to submit before him in writing written calculation sheet in respect of the interest payable for the period and thereafter he will decide the matter on merit upon hearing both the parties in accordance with law and shall pass reasoned order justifying the quantum of interest payable in respect of each item mentioned in the award. Since the matter is pending for along time the learned Executing Court is directed to dispose of the matter within a period of three months from the date of communication of the matter strictly in terms of the Award without granting unnecessary adjournments to the parties. Both the parties are directed to submit their calculation sheet in respect of interest payable as per Award within fifteen days from the date of communication of the order to the learned Court below.;