- (1.) This revision petition by the decree-holder is directed against order dated 07.11.1998 as passed in Execution Case No.6/1997 whereby the Additional District Judge No.2, Alwar, while dealing with an application for execution of the money decree based on an arbitral award, has rejected the claim made by the decree-holder for further amount and, while partly allowing the objections taken by the judgment-debtor (the non-petitioner herein), has directed the petitioner-decree-holder to refund an amount of Rs. 79,585/-, said to have been received in excess, alongwith interest @ 14% p. a.
(2.) Put in brief, the relevant facts and background aspects of the matter are as follows: On 10.04.1987, the petitioner, a Government Contractor, entered into a contract with the non-petitioner for construction of the multi-purpose studio complex, staff quarters etc. for the purpose of All India Radio, Alwar. As per Clause 25 of the Agreement, any dispute was to be referred to arbitration; and since some dispute regarding payment arose between the parties, the same was referred to the sole arbitrator. The arbitrator made his award on 20.07.1992 whereby the non-petitioner was held liable to pay to the petitioner an amount of Rs.6,12,097/- alongwith simple interest at the rate of 14% per annum with effect from 25.03.1990 until the date of decree or payment whichever be the earlier. The terms of the award, being directly relevant for the present purpose, are reproduced as under:- "15. AWARD NOW THEREFORE on consideration of claims of claimants and counter claims of Respondents, I do hereby make award that Respondents do pay Claimants a sum of Rs. 6,12,097/- (Rupees Six lakhs twelve thousands and ninety seven only). In addition, Respondents shall also pay simple interest at 14% p.a. on sum of Rs. 6,12,097/- w.e.f. 25.03.90 to date of decree or payment whichever is earlier." In terms of Section 17 of the Arbitration Act, 1940 ('the Act of 1940' hereafter), the proceedings were taken up for making the award a rule of the Court before the learned Additional District Judge No.2, Alwar. In its order dated 04.04.1997, the Court dealt with and rejected the objections taken by the non-petitioner, accepted the award, and pronounced the judgment in terms of the award; and a decree came to be drawn accordingly. The Court held the petitioner entitled to receive an amount of Rs. 6,12,097/- from the non-petitioner and further held that the petitioner would be entitled to interest @ 14% per annum on the principal amount i.e., Rs.6,12,097/- from 20.07.1992 to 05.01.1993 and from the date of filing of the award in the Court until realization. The stipulation regarding interest in the decree dated 04.04.1997 is the bone of contention and has been the subject of consideration by the learned Executing Court in its order impugned. The relevant part of the decree dated 04.04.1997 reads as under:- "26. XXX XXX XXX" After the decree aforesaid, the petitioner-decree-holder filed an application for execution and claimed an amount of Rs.12,17,220/- from the non-petitioner. In these execution proceedings, the non-petitioner (judgment-debtor) deposited an amount of Rs.11,20,000/- in the Executing Court wherefrom the petitioner was allowed to withdraw a sum of Rs.11,16,022/- on 14.07.1997. Thereafter, the non-petitioner filed the objections that the decree holder was entitled to receive only an amount of Rs.10,40,415/-. It was submitted before the Executing Court on behalf of the petitioner-decree-holder that in its judgment on award, the Court found justified the interest as awarded from 25.03.1990 @ 14% per annum; that the Court ultimately accepted the award and directed a decree to be drawn in accordance therewith; and that in the last paragraph of the judgment, the Court allowed interest from 20.07.1992 i.e., the date of award @ 14% per annum. Thus, according to the petitioner, the amount of interest as per award and decree, from 25.03.1990 to 05.01.1993, came to Rs.1,94,160/-. The petitioner submitted that the judgment-debtor had deposited only an amount of Rs.11,20,000/- whereas the amount payable came to Rs.12,17,260/-. It was contended that the award was not suffering from any infirmity and the same was made the rule of the Court; and the intention of the Court was clear that interest as per award was to be paid from "25.03.1990" but in the decree, the date "20.07.1992" came to be mentioned that could only be of an accidental slip or a clerical error. The contentions aforesaid were countered on behalf of the non-petitioner with the submissions that the Executing Court could not correct any so-called error in the decree. It was submitted that as per the decree, the decree-holder was entitled only to an amount of Rs.10,40,415/- until 14.07.1997 towards principal and interest. It was further submitted that the amount had been deposited in excess and received in excess by the decree-holder and hence, the judgment-debtor was entitled to get back an amount of Rs.79,585/- together with interest.
(3.) In its impugned order dated 07.11.1998, the learned Executing Court proceeded to reject the submissions made on behalf of the petitioner-decree-holder essentially on the consideration that it cannot travel beyond the decree. The Executing Court observed that in paragraph Nos. 21 and 22 of the judgment, the decree-holder was, of course, found entitled to interest from 25.03.1990 but then, this date of commencement of interest came to be mentioned in the decree as 20.07.1992; and the intention and spirit behind such mentioning of the date was beyond its reach. The Executing Court referred to the calculation as suggested by the judgment-debtor and ultimately directed the petitioner to refund the alleged excess amount of Rs.79,585/- together with interest @ 14% per annum from the date of receiving i.e., 15.07.1997. The relevant part of the order impugned reads as under:- "XXX XXX XXX XXX XXX XXX Assailing the order aforesaid, the learned counsel for the petitioner-decree-holder strenuously contended that the Executing Court has acted illegally and with material irregularity in rejecting the claim of the petitioner and in conversely directing refund of the amount to the non-petitioner. The learned counsel argued that the entire consideration of the Executing Court had been from an altogether wrong angle where neither the facts of the case were considered nor the law applicable. The learned counsel submitted that the Executing Court totally ignored the meaning, effect, and purport of the judgment and decree dated 04.04.1997 whereby the award was found not suffering from any infirmity and was made the rule of the Court; and specifically, the directions regarding the date of commencement of interest and the rate of interest were approved. According to the learned counsel, the component of interest from 25.03.1990 to 20.07.1992 was an integral and indispensable part of the award dated 20.07.1992 that was never altered by the Court and this component of interest cannot be denied to the petitioner. The learned counsel for the petitioner has referred to and relied upon the decision of the Hon'ble Supreme Court in the case of Indian Hume Pipe Company Limited Vs. State of Rajasthan, 2009 10 SCC 187. The learned counsel also submitted that the judgment and decree are required to be looked at for their true import and spirit; and if at all there be any case of accidental slip or omission, the same could always be corrected under Section 152 read with Section 151 of the Code of Civil Procedure. In this regard, the learned counsel has referred to the decisions in B.Shivananda Vs. Andhra Bank Ltd. & Anr., 1994 4 SCC 368 and Bishnu Charan Das Vs. Dhani Biswal and Anr., 1977 AIR(Ori) 68.;