JUDGMENT
Manashnath Roy, J.
1. This revisional application, which was contested by the respondent Amiya Kumar Dasgupta, was directed against order No. 18, dated 30th May 1987, passed by the Learned Assistant District Judge, 10th Court, Alipore in Misc. case No. 40 of 1986, whereby the said Learned Court had rejected an application under Order 9 Rule 13 of the Code of Civil Procedure read with Section 151 of the Code and so also the application Under Section 5 of the Limitation Act, 1963.
2. We are not narrating the facts, since the same has been appropriately narrated in this order under challenge. It appears that on or about 31st January, 1981 one Sri A. B. Syam, since deceased, was appointed Arbitrator, on an application Under Section 8(2) of the Arbitration Act, 1940. After the death of the said Sri Syam, on or about 16th June, 1984, Sri G. C. Chatterjee was appointed Arbitrator and on 5th September, 1985, he made an award for Rs. 11,98,339.40p in favour of the respondent before us with pendente lite interest and interest on award at the rate of 15% per annum, from 17th February, 1981 until realisation of the amount, as awarded.
3. There is also no doubt or any dispute that on or about 21st December, 1985, notice in terms of section 14(2) of the Act was received in the office of the petitioner, Food Corporation of India, which is a body corporate and constituted under the Food Corporation of India Act, 1964. The said notice was also admittedly received by their manager, who, we are informed now, was transferred on the relevant date, the particulars whereof will be indicated hereafter. Even on receipt of such notice Under Section 14(2) of the Act, no steps were taken by the Food Corporation of India, the petitioner, in time and as such, on 30th May, 1986, a decree upon award was passed. There was no dispute about the dates.
4. It has been stated now before us in this Court and also in the two applications, which were filed before the Learned Court below, that the present District Manager of the Food Corporation of India came to know of the concerned title suit No. 152 of 1985, that is the arbitration proceeding from the respondents and it was pleaded that 24th July 1986, was the date when the petitioner could get the information or notice of the concerned proceeding. It has also been stated that immediately thereafter, on 25th July, 1986, the applications for certified copy of the judgment and decree were made and they were received on 30th May 1986.
5. It would appear that on receipt of the certified copies, as mentioned hereinabove, on or about 1st August 1986 or immediately, thereafter, the two applications, viz., one under Order 9 Rule 13 of the Code of Civil Procedure read with Section 151 of the Code, for setting aside the ex parte decree and also an application Under Section 5 of the Limitation, or having the delay condoned, were filed. To those applications, the respondent before us also took exceptions and claimed them to be not bona fide and maintainable.
6. By the impugned order, dated 30th May, 1987, the Learned Trial Court dismissed the application under Order 9 Rule 13 of the Code, holding inter alia amongst others, that the same, in view of the decision, as cited at the Bar, was not maintainable as the proceeding was not a suit in terms of Section 17 of the Arbitration Act. The other application Under Section 5 was also dismissed by the Learned Court below holding inter alia amongst others that the applicants therein had miserably failed to explain any diligence or to establish such diligence or to establish such diligence as required in law, for the purpose of having an application Under Section 5 allowed.
7. Mr. Chatterjee, appearing in support of the present application Under Section 115 of the Code of Civil Procedure, claimed that the learned Court below, in terms of the various decisions, as cited at the Bar, was not justified in awarding interest pendente lite and that being the position, the Order, as made, was without jurisdiction and as such, the application under Order 9 rule 13 of the Code and one Under Section 5 of the Limitation Act, were maintainable and that, this Court will have jurisdiction to entertain the prayers, as made. In fact, in support of his submissions, Mr. Chatterjee referred to the determinations in the case of State of Rajasthan v.
R. S. Sharma & Co., . Mr. Chatterjee specifically made reference to paragraphs 10 and 11 of the said determination. Mr. Saha appearing for the opposite party, was fair enough to inform the Court that in terms of the two determination of the Supreme Court in the case of State of Orissa v. Dardasi Sahu, and in the case of State of Orissa and Ors. v. Construction India , the grant of interest pendente lite was not proper. But he claimed that even then, this Court, sitting in this jurisdiction Under Section 115 of the Code of Civil Procedure would not be justified in making any interference. We are conscious of the constraints on the powers of this Court in making interference in applications Under Section 115 of the Code. But we feel, that while dealing with such masters, as in this case, for ends of justice Under Section 115 of the Code, some order can be made, which, according to the conscience of the Court, would be workable, just and fair.
8. Thus, after considering the submissions, as made before us, we dispose of this application Under Section 115 of the Code of Civil Procedure, by directing that the interest pendente lite, which was directed to be given from 31st January 1981 to 5th September, 1985, that is the date when Arbitrator had entered into reference and the date when the award was made, should be disallowed and the opposite party would be entitled to have interest in terms of the order, as made by the Learned Court below, from 6th September, 1985. With the observations as above, we modify the order, as made and dispose of the Rule accordingly. It appears that in terms of our order, dated 10th November, 1987, a sum of Rs. 11,00,000 has been deposited in this Court and the same is lying with the Registrar, Appellate side. In view of the old age of the opposite party, we hold that he will be entitled to withdraw the said amount with corresponding interest, if any, without furnishing any security.
Sudhansu Sekhar Ganguly, J.
9. I agree.