Oral Judgment:
Heard Shri Mascarenhas, learned Counsel appearing for the Petitioner and Ms. Kamat, learned Addl. Government Counsel appearing for the Respondent.
2. The above Petition challenges the Order passed by the learned Civil Judge, Senior Division at Quepem, dated 22.02.2000, whereby an application filed by the Petitioner under Section 152 of the Civil Procedure Code to award interest in terms of Section 29 of the Arbitration Act, 1940, came to be rejected.
3. Briefly, the facts of the case are that in an Arbitration Proceedings, an Award came to be passed by the Arbitrator which was submitted to the learned Civil Judge, Senior Division under Section 14 of the Arbitration Act, 1940. Thereafter, it appears that the Respondents raised same objections to the said Award. In the meanwhile, the Petitioner also filed an application dated 06.11.1992 under Section 17 of the Arbitration Act, 1940, inter alia, claiming that whilst making the Award the Rule of the Court, interest should be awarded from the date of the Decree upto actual payment. Thereafter, whilst disposing of the objections raised by the Respondents by Judgment dated 22.12.1993, the learned Judge rejected the objection but, however, in the same Order, directed that the Award of the sole Arbitrator be made the Rule of the Court. Immediately, thereafter, the Petitioner filed an application dated 02.07.1994, under Section 152 of the Civil Procedure Code to award interest at the rate of 18% per annum from the date of the Decree upto actual payment.
4. The Respondent challenged the said Judgment passed by the learned Judge rejecting their objections before this Court. This Court dismissed the Appeal preferred by the Respondent which was thereafter upheld by the Hon'ble Supreme Court. In the meanwhile, by the impugned Order dated 22.02.2000, the learned Civil Judge, Senior Division, Quepem, dismissed the application under Section 152 of the Civil Procedure Code filed by the Petitioner. The said Order came to be challenged in the above Writ Petition.
5. Shri Mascarenhas, learned Counsel appearing for the Petitioner, has pointed out that the learned Judge has failed to consider that an application was already filed by the Petitioner way back in the year 1992 even before the Award of the Arbitrator was made the Rule of the Court which was not disposed of whilst making the Award the Rule of the Court. Learned Counsel further pointed out that it is well settled that even assuming interest is refused, specific reasons as to why such interest has been refused should be given by the Court. Learned Counsel further pointed out that the Petition has been pending for quite sometime in view of the fact that the Judgment passed dismissing the objections raised by the Respondents were being challenged before the Hon'ble Supreme Court. Learned Counsel has thereafter taken me through the impugned Judgment and pointed out that the learned Judge has erroneously considered the said application on the basis of Section 34 of the Civil Procedure Code which is not applicable to the facts and circumstances of the case. Learned Counsel relied upon the Judgments of the Apex Courts reported in (2005) 3 Scale 402 in the case of State of Rajasthan vs. M/s. Nav Bharat Construction Co, and (2005) 12 SCC 273 in the case of C. V. Krishna vs. Govt. of T. N. Learned Counsel as such submits that the impugned Order deserves to be quashed and set aside.
6. On the other hand, Ms. Kamat, learned Addl. Government Advocate appearing for the Respondents, has pointed out that the application under Section 152 of the Civil Procedure Code is not maintainable in law. Learned Addl. Government Advocate further pointed out that merely not awarding interest does not by itself mean that there is any clerical error which gives rise to the Petitioner to file an application under Section 152 of the Civil Procedure Code. Learned Counsel further pointed out that there is no error and in fact the interest was refused by the learned Judge whilst making the Award the Rule of the Court. Learned Addl. Government Advocate has relied upon the Judgment of the Apex Court reported in 2005 (7) S.C.C. 748, in the case of BijayKumar Saraogi vs. State of Jharkand.
7. I have duly considered the submissions of the learned Counsel appearing for the respective parties. On perusal of the impugned Order, the learned Judge has considered the application filed by the Petitioner on the assumption that provisions of Section 34(2) of the Civil Procedure Code were applicable to the facts of the case. I am afraid that the grounds on which the interest has been refused by the learned Judge in the impugned Order dated 22.02.2000, cannot be sustained. Be that as it may, it is not in dispute that an application was already filed by the Petitioner under Section 17 of the Arbitration Act, 1940, way back in the year 1992 before the Award of the Arbitrator was made the Rule of the Court. Considering that the application was pending and not disposed of at the time of the passing of the Judgment dated 22.12.1993, I find that the learned Judge has failed to consider the said aspect whilst passing the impugned Order. In the interest of justice, I find that such consideration would be material for the purpose of deciding the application under Section 152 of the Civil Procedure Code.
8. In such circumstances, leaving of the contentions of the parties open on merits, I find it appropriate that the impugned Order passed by the learned Judge deserves to be quashed and set aside and the learned Judge be directed to consider the application filed by the Petitioner under Section 152 of the Civil Procedure Code afresh after considering that the application was already pending before the learned Judge filed under Section 17 of the Arbitration Act, 1940, which was not disposed of.
9. In view of the above, I pass the following:
ORDER
(i) The impugned Order dated 22.02.2000, passed by the learned Civil Judge, Senior Division at Quepem is quashed and set aside.
(ii) The learned Judge is directed to decide the applications dated 06.11.1992 and 02.07.1994 afresh in the light of the observations made herein above in accordance with law.
(iii) All contentions of the parties on merits are left open.
(iv) Petition stands disposed of accordingly.
(v) Parties are directed to appear before the learned Judge on 13.08.2012 at 10.00 a.m.