{"id":156875,"date":"2009-03-02T00:00:00","date_gmt":"2009-03-01T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ms-shadani-builders-vs-ms-begraj-agrawal-on-2-march-2009"},"modified":"2016-01-20T02:33:02","modified_gmt":"2016-01-19T21:03:02","slug":"ms-shadani-builders-vs-ms-begraj-agrawal-on-2-march-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ms-shadani-builders-vs-ms-begraj-agrawal-on-2-march-2009","title":{"rendered":"M\/S Shadani Builders vs M\/S Begraj Agrawal on 2 March, 2009"},"content":{"rendered":"
Chattisgarh High Court<\/div>\n
M\/S Shadani Builders vs M\/S Begraj Agrawal on 2 March, 2009<\/div>\n
       \n\n  \n\n  \n\n \n \n             HIGH COURT OF CHATTISGARH AT BILASPUR      \n\n\n               Arbitration Appeal No.25 of 2007\n\n                    1.         M\/s   Shadani   Builders\n                                                      ...Petitioners\n\n\n                            Versus\n\n                       1.       M\/s    Begraj   Agrawal\n\n                        2.       Justice   Shri   C P    Sen\n                                                     ...Respondents\n\n!      Shri  S.K. Dubey, Sr. Advocate with Dr. Shailesh  Ahuja,\n      counsel for the appellant.\n\n\n^      Shri  B.P.  Sharma  with  Shri K.  Sharma,  counsel  for\n      respondent No.1.\n\n\n         Honble Shri Dhirendra Mishra & Honble Shri D R Deshmukh JJ\n\n    Dated:02\/03\/2009\n\n:    Judgement\n\n\n\n\n\n                           O R D E R\n<\/pre>\n
                  (Passed on 2nd March, 2009)<\/p>\n
           The  following  order of the Court  was  passed  by
\nDhirendra Mishra, J.\n<\/p>\n
  1.    This arbitration appeal under Section 37 (1)(b) of the<\/p>\n
     Arbitration and Conciliation Act, 1996 (for short `the Act,<\/p>\n
     1996′) is directed against the order dated 30th June 2007<\/p>\n
     passed in Civil (Arbitration) Case No.9-A\/2007 whereby learned<\/p>\n
     District Judge, Raipur has rejected the application of the<\/p>\n
     appellant under Section 34 of the Act, 1996 for setting aside<\/p>\n
     award dated 3-10-99 passed by the sole arbitrator.<\/p>\n
  2.    The  case  of  the appellant, in brief,  is  that  the<\/p>\n
     appellant is a firm registered under the Partnership Act.  The<\/p>\n
     partners of the firm owned and possessed lands situated at<\/p>\n
     village Boriya Kala, Tehsil and District Raipur.  Thok Kirana<\/p>\n
     Vyapari Sangh, Gudiyari, Raipur entered into an agreement to<\/p>\n
     purchase shops to be constructed on the above described land<\/p>\n
     on the individual agreement.  The rate of each shop was fixed<\/p>\n
     at Rs.2,50,000\/-.  A sum of Rs.50,000\/- was payable during the<\/p>\n
     construction period and balance of Rs.2 lakhs with interest in<\/p>\n
     60 monthly installments commencing from the date of handing<\/p>\n
     over possession.\n<\/p>\n<\/p>\n
  3.    The  appellant  and respondent No.1  entered  into  an<\/p>\n
     agreement for construction of 500 shops at the rate of Rs.140<\/p>\n
     per sq. ft..  The shops were to be constructed within  18<\/p>\n
     months.  They entered into another agreement for construction<\/p>\n
     of road.  The dispute arose between the petitioner and the<\/p>\n
     construction  agency regarding construction and  payment.<\/p>\n
     Initially the dispute was resolved and accordingly, the terms<\/p>\n
     of agreement were modified, however, dispute persisted.  On<\/p>\n
     the basis of report lodged by respondent No.1 proceedings<\/p>\n
     under Section 145 and 146 of the Code of Criminal Procedure<\/p>\n
     (for  short `the Code’) were drawn and the Sub Divisional<\/p>\n
     Magistrate, vide order dated 24-10-96, attached 280 under<\/p>\n
     construction shops and construction materials in Criminal case<\/p>\n
     No.25\/96.  The construction materials under attachment were<\/p>\n
     handed  over  in the interim custody of one  Lalit  Kumar<\/p>\n
     Singhania.\n<\/p>\n<\/p>\n
  4.    Two  separate  criminal  revisions  preferred  by  the<\/p>\n
     appellant as well as one Ram Awatar Agrawal against the order<\/p>\n
     of attachment and interim custody were dismissed by learned<\/p>\n
     Sessions Judge vide order dated 6-12-96.  The petition under<\/p>\n
     Section 482 of the Cr.P.C. preferred by the partner of the<\/p>\n
     appellant firm was allowed by the High Court of Madhya Pradesh<\/p>\n
     vide  order dated 17-7-97 and criminal proceedings  under<\/p>\n
     Sections 145 and 146 of the Code were quashed with a finding<\/p>\n
     that respondent No.1 had no right to remain in possession and<\/p>\n
     the  proceedings were abuse of the process of the  Court.<\/p>\n
     Consequently, the shops and the materials were released to the<\/p>\n
     appellant.\n<\/p>\n<\/p>\n
  5.    The  appellant served respondent No.1  with  a  notice<\/p>\n
     demanding damages of Rs.2,08,12,430\/-.  Respondent No.1 denied <\/p>\n
     liability.   Since agreement dated 19-12-94 provided  for<\/p>\n
     settlement  of  the dispute between the  parties  through<\/p>\n
     arbitration by 2 arbitrators, one to be appointed by each of<\/p>\n
     the parties, the appellant served respondent No.1 with  a<\/p>\n
     notice appointing Justice K.L. Israni, retired Judge of the<\/p>\n
     High Court of Madhya Pradesh as Arbitrator of the appellant<\/p>\n
     and called upon the respondent to appoint arbitrator.  On<\/p>\n
     their failure, the appellant approached the High Court of<\/p>\n
     Madhya  Pradesh  under Section 11 of the  Act,  1996  for<\/p>\n
     appointment of Arbitrator.\n<\/p>\n<\/p>\n
  6.   In the meanwhile, one Ram Awatar Agrawal filed SLP (Cr)<\/p>\n
     No.2111\/97  in  the  Supreme Court for  quashing  of  the<\/p>\n
     proceedings under Section 146 of the Code.  The Supreme Court<\/p>\n
     vide  order dated 4-8-97 directed the parties to maintain<\/p>\n
     status quo in respect of possession of subject property.  The<\/p>\n
     Supreme Court was also apprised that petition under Section 11<\/p>\n
     of the Act, 1996 is pending in the High Court for appointment<\/p>\n
     of  arbitrators.  However, on the basis of consent of the<\/p>\n
     parties (Ram Awatar Agrawal and Yudhishtirlal) that they shall<\/p>\n
     abide by decision of arbitrator the Supreme Court vide order<\/p>\n
     dated  12-12-97  disposed of the petition with  following<\/p>\n
     direction:-\n<\/p>\n
               “We  direct that such reference be  made
\n               to  Mr.  Justice C.P. Sen.  The  learned
\n               arbitrator would give his award as early
\n               as  practicable, preferably within  four
\n               weeks  from  the date of  entering  into
\n               reference.   It  will  be  open  to  the
\n               arbitrator  to give appropriate  interim
\n               direction.  The parties have  agreed  to
\n               abide   by   such  directions   of   the
\n               arbitrator.    Pending  the  arbitration
\n               proceedings, the Shadani Builders who is
\n               respondent  No.2, will  maintain  status
\n               quo in respect of 150 shops and will not
\n               remove  materials, plant, machinery  and
\n               equipments from the site.  The  impugned
\n               judgment\/order of the High Court  stands
\n               set-aside  and  the  proceedings   under
\n               section  145 Cr.P.C. also stand disposed
\n               of.   The appeal is accordingly disposed
\n               off.”\n<\/p><\/blockquote>\n
  7.    The  record  of  the case was forwarded  to  the  sole<\/p>\n
     arbitrator who entered into reference and directed the parties<\/p>\n
     to submit their respective statements of claims.  Accordingly,<\/p>\n
     respondent No.1 submitted claim for a sum of Rs.5,59,63,446\/-<\/p>\n
     under various heads, as detailed in paragraph-10 of the memo<\/p>\n
     of appeal.  The appellant contested the claim of respondent<\/p>\n
     No.1 and submitted that the appellant is entitled to receive<\/p>\n
     damages due to breach of contract on the part of respondent<\/p>\n
     No.1.  The claims are beyond the scope of reference and are<\/p>\n
     not arbitrable and the claims are highly exaggerated.  The<\/p>\n
     appellant also claimed Rs.2,98,58,540\/- and interest thereon<\/p>\n
     by  way  of  damages under various heads, as detailed  in<\/p>\n
     paragraph-12 of the memo of appeal.  The sole arbitrator vide<\/p>\n
     his  order dated 9th May, 1998 directed the appellant  to<\/p>\n
     furnish  bank  guarantee for a sum of Rs.1 crore  towards<\/p>\n
     security for the satisfaction of the claim and rejected the<\/p>\n
     prayer to release the shop.\n<\/p>\n<\/p>\n
  8.    On  the  basis of pleadings of the respective parties,<\/p>\n
     statements of claims and counter claims put-forth by  the<\/p>\n
     parties, learned Arbitrator framed various issues.<\/p>\n
  9.   The parties to the proceedings filed affidavit apart from<\/p>\n
     filing other documents in support of their case and  also<\/p>\n
     examined witnesses before the Tribunal.\n<\/p>\n<\/p>\n
  10.   After elaborately dealing with various clauses of  the<\/p>\n
     original agreement as well as subsequent 3 agreements, it has<\/p>\n
     been held that the agreements were executed in the presence of<\/p>\n
     independent persons and it is difficult to believe that the<\/p>\n
     contractor  was  coerced  in executing  subsequent  three<\/p>\n
     agreements under economic duress.  Contention of the owner<\/p>\n
     that subsequent agreement dated 3-10-1995 supersedes  the<\/p>\n
     original contract dated 19-12-1994 has been negated.  The<\/p>\n
     owner committed breach of trust of terms of agreement in not<\/p>\n
     clearing  bills of the contractor fortnightly, which  was<\/p>\n
     essence of the contract.  The owner did not have sufficient<\/p>\n
     funds at all material time.  It failed to provide lay out of<\/p>\n
     site.  Accordingly, it has been held that the owner committed<\/p>\n
     breach  of trust of contract by not paying running  bills<\/p>\n
     immediately relating to stoppage of work intermittently.<\/p>\n
  11.   The  contractor’s claim towards loss in profit due  to<\/p>\n
     reduction in work and towards overhead expenses has also been<\/p>\n
     rejected.   Dismissing the claim of  the  owner,  learned<\/p>\n
     Arbitrator held that `the claims of the contractor are allowed<\/p>\n
     to the extent of Rs.50,13,204\/- towards the unpaid bills of<\/p>\n
     the works executed by it, Rs.64,836\/- towards the road work<\/p>\n
     executed and Rs.7,47,577.50\/- towards interest on late payment<\/p>\n
     of the bills.’  It has been further directed that amount of<\/p>\n
     Rs.50,88,140\/- towards unpaid works shall carry interest @ 18%<\/p>\n
     per  annum  from 4-6-1996 to 3-10-1999.   The  amount  of<\/p>\n
     Rs.58,35,717.50\/- shall carry interest @ 18% per annum from 4-<\/p>\n
     10-1999 till the date of realization.  Out of 150 shops under<\/p>\n
     attachment as per the order of the Supreme Court, 50 shops to<\/p>\n
     remain under attachment till amount awarded is paid in full by<\/p>\n
     the owner.  The owner shall pay the following costs:-<\/p>\n
     (i)  Towards arbitrators fees paid by the
\n                                                    contractor
\n     Rs.2,35,000.00<\/p>\n
     (ii) Towards arbitrators travelling
\n          expenses borne by the contractor        Rs.8,245.00<\/p>\n
     (iii)     Diet money of 2 witnesses of the
\n          contractor                              Rs.10,000.00<\/p>\n
     (iv) Lawyer’s fees                      Rs.5,00,000.00
\n                                             _________________
\n                                        Total           Costs:\n<\/p>\n
     Rs.7,48,245.00<\/p>\n
  12.   The appellant filed an application under Section 34 of<\/p>\n
     the Act, 1996 before the District Judge.  Respondent No.1<\/p>\n
     submitted  their reply along with preliminary objections.<\/p>\n
     Learned  trial  Court on the basis of  pleadings  of  the<\/p>\n
     respective  parties framed 12 issues on 28th June,  2001.<\/p>\n
     Respondent No.1 also moved an application under Order 14 Rule<\/p>\n
     2 of the CPC to recast the issue No.11 and decide the same as<\/p>\n
     preliminary issue.  However, prayer was rejected vide order<\/p>\n
     dated 25-1-2002.  Respondent No.1 preferred civil revision<\/p>\n
     against the above order and the same was disposed of vide<\/p>\n
     order dated 13-2-2007 with a direction to the trial Court to<\/p>\n
     decide issue No.11 as preliminary issue.  After hearing the<\/p>\n
     parties, it was further directed to pass judicial order with<\/p>\n
     regard to striking off issue Nos.1 to 10 framed by the trial<\/p>\n
     Court and to frame other issues as proposed by the respondent.<\/p>\n
  13.   Learned District Judge by the impugned order dismissed<\/p>\n
     the  petition of the appellant under Section 34 read with<\/p>\n
     Section 13 (5) of the Act, 1996 with a following findings:-<\/p>\n
          “The  Supreme Court appointed sole arbitrator
\n          for  adjudication of the dispute between  the
\n          parties  with  their  consent.   The  Supreme
\n          Court  is  competent to pass  any  order  for
\n          adjudication  of any dispute in the  interest
\n          of   justice   under  Article  142   of   the
\n          Constitution of India and the award passed by
\n          the  arbitrator can be challenged on  any  of
\n          the  grounds mentioned in Section 34  of  the
\n          Act, 1996.  Since the appellant has not shown
\n          any ground under Section 34 for setting aside
\n          award,  their  application under  Section  34
\n          read with Section 13 (5) of the Act, 1996  is
\n          rejected.”\n<\/p><\/blockquote>\n
  14.   The  appellant has impugned the order of the  District<\/p>\n
     Judge  on the ground that the lower Court did not  follow<\/p>\n
     direction passed in revision.  It did not decide issue No.11<\/p>\n
     by giving reasons.  The application has been dismissed by a<\/p>\n
     cryptic and non speaking order.\n<\/p>\n<\/p>\n
  15.  Challenging the composition of Arbitral Tribunal, it was<\/p>\n
     argued that though the appellant did not raise any objection<\/p>\n
     before the Arbitral Tribunal, but composition was challenged<\/p>\n
     under Section 34 of the Act, 1996.  Arbitral Tribunal derives<\/p>\n
     a jurisdiction from the arbitral agreement (Section 7 of the<\/p>\n
     Act).  The appointment of arbitrator should be in consonance<\/p>\n
     with  the  provisions of Chapter-III of  the  Act,  where<\/p>\n
     composition is not in accordance with law, the same can be<\/p>\n
     challenged under Section 34 of the Act, 1996.  Relying on<\/p>\n
     various  judgments of the Hon’ble Supreme Court,  it  was<\/p>\n
     vehemently argued that the arbitrator could not be appointed<\/p>\n
     contrary to the statute, more particularly against a party<\/p>\n
     which was not before it thereby causing injustice to such<\/p>\n
     party;  where  there is inherent lack of jurisdiction  in<\/p>\n
     composition of arbitral tribunal and objections, even if were<\/p>\n
     not raised before the arbitrator and the parties submitted to<\/p>\n
     jurisdiction of arbitrator, the dispute can be raised by way<\/p>\n
     of petition under Section 34 as it is well settled that there<\/p>\n
     is no estoppel against the statute.\n<\/p>\n<\/p>\n
  16.   Referring to paragraph 47, page 91 and 94 and  further<\/p>\n
     referring to page 108, end of para-49 of the award, it was<\/p>\n
     argued that the arbitrator after recording a finding that the<\/p>\n
     respondent received aggregate sum of Rs.3,05,762,37\/- deducted<\/p>\n
     only Rs.2,97,91,231\/- on the basis of last bill submitted and<\/p>\n
     awarded sum of Rs.50,13,204\/-. By deducting the actual amount<\/p>\n
     already paid, the balance would be Rs.42,28,204\/- and not<\/p>\n
     Rs.50,13,204\/-.\n<\/p>\n<\/p>\n
  17.  Challenging imposition of interest @ 18% from the date of<\/p>\n
     dispute, it was argued that it is highly excessive and against<\/p>\n
     the terms of contract, the same is in violation of Section 31<\/p>\n
     of  the Act, 1996.  The Tribunal also ignored that due to<\/p>\n
     attachment of 150 shops, the appellant was deprived of rental<\/p>\n
     income, 50 shops are still attached and the appellant  is<\/p>\n
     deprived  of rental income from the attached shops.   The<\/p>\n
     arbitrator has awarded interest under the head of loss of<\/p>\n
     profit and further awarded interest @ 18% from 4-10-99 on the<\/p>\n
     above amount and thereby awarded interest on interest which is<\/p>\n
     not permissible.  There is no stipulation for charging of<\/p>\n
     interest at any stage in the agreement.  Respondent No.1 has<\/p>\n
     also been awarded excessive amount towards costs and a sum of <\/p>\n
     Rs.5 lakhs has been awarded towards counsel fee.<\/p>\n
  18.   On  the  other hand, Shri B.P. Sharma, learned counsel<\/p>\n
     appearing for respondent No.1 submitted that from perusal of<\/p>\n
     the record of the District Judge, it would be evident that the<\/p>\n
     matter was fixed for final hearing.  The parties were given<\/p>\n
     sufficient opportunity to file their written arguments. Though<\/p>\n
     the appellant submitted written argument in part, however, the<\/p>\n
     matter was argued at length on merits by counsel representing<\/p>\n
     both the parties.  In the Act of 1996, the Court’s power to<\/p>\n
     interfere with the arbitration proceedings has been curtailed<\/p>\n
     and the emphasis is on minimizing the supervisory role of<\/p>\n
     Courts  in arbitral process.  During the proceedings  for<\/p>\n
     setting aside arbitral award, it is not necessary to allow the<\/p>\n
     parties to lead evidence after framing issues because the<\/p>\n
     matter is to be adjudicated on the basis of record of the<\/p>\n
     arbitrator.   The respondent herein raised a  preliminary<\/p>\n
     objection before the lower Court that the appellant has taken<\/p>\n
     benefits of the order passed by the arbitrator and out of 150<\/p>\n
     shops, which have been ordered to be attached as per the order<\/p>\n
     of the Hon’ble Supreme Court, 100 shops have been released by<\/p>\n
     the arbitrator and released shops have been disposed of by the<\/p>\n
     appellant.  Thus, the appellant has taken benefit of award<\/p>\n
     and, therefore, he cannot be permitted to question validity of<\/p>\n
     the award. Though this issue has been answered by learned<\/p>\n
     District Judge against the respondent herein, but the error<\/p>\n
     apparent in the finding of learned District Judge can  be<\/p>\n
     rectified by exercise of power under Order 41 Rule 33 of the<\/p>\n
     CPC.\n<\/p>\n<\/p>\n
  19.  Referring to Section 34, it was argued that the award can<\/p>\n
     be set aside under Section 34 only in the contingency where<\/p>\n
     the party making application furnishes proof of conditions (i)<\/p>\n
     to (v) of Section 34 (2)(a) and secondly, when the Court finds<\/p>\n
     that (1) the subject matter of the dispute is not capable of<\/p>\n
     settlement by arbitration under the law for the time being in<\/p>\n
     force or (2) the arbitral award is in conflict with the public<\/p>\n
     policy of India.\n<\/p>\n<\/p>\n
  20.  From perusal of the entire objection, it would be evident<\/p>\n
     that no such ground has been taken which comes within the<\/p>\n
     purview of Section 34 (2)(a) or (b).  As per Section 31 (7)<\/p>\n
     (a) & (b), the arbitrator has jurisdiction to grant interest<\/p>\n
     as it deems reasonable.  Section 7 (b) of the Act recognizes<\/p>\n
     grant of 18% per annum, therefore, even if the award does not<\/p>\n
     impose any interest, the person in whose favour the award is<\/p>\n
     passed shall be entitled to interest @ 18% per annum from the<\/p>\n
     date of award till the date of payment and thus, imposition of<\/p>\n
     interest @ 18% will not be against public policy.<\/p>\n
  21.  We have heard learned counsel for the parties.   We have<\/p>\n
     perused the material available on record including the award<\/p>\n
     passed by the Arbitral Tribunal.  We have also perused grounds<\/p>\n
     taken  by the appellant in application under Section  34,<\/p>\n
     preliminary objections taken by the respondent herein against<\/p>\n
     the maintainability of the application; the order passed by<\/p>\n
     this  Court in civil revision preferred by the respondent<\/p>\n
     herein as also the impugned judgment.\n<\/p>\n<\/p>\n
  22.  Learned counsel for the appellant has mainly challenged<\/p>\n
     the  composition of the Arbitral Tribunal.  Relying  upon<\/p>\n
     various  judgments of the Hon’ble Supreme Court,  it  was<\/p>\n
     vehemently argued that the arbitration agreement provided for<\/p>\n
     reference of dispute to 2 arbitrators, one to be appointed by<\/p>\n
     each of the parties and, therefore, reference of dispute to<\/p>\n
     the sole arbitrator is contrary to the arbitration agreement.<\/p>\n
     By  the  Special Leave Petition before the Supreme Court,<\/p>\n
     challenge was made to the order of the High Court of Madhya<\/p>\n
     Pradesh passed in reference to proceedings under Section 145<\/p>\n
     and 146 of the Code, monetary claims and counter claims of the<\/p>\n
     parties was not the subject matter in the SLP, however, the<\/p>\n
     arbitrator by the impugned award has adjudicated the monetary<\/p>\n
     claims of the respective parties, which is wholly beyond the<\/p>\n
     order of reference and outside the jurisdiction and is liable<\/p>\n
     to be set aside.  The parties before the Supreme Court had no<\/p>\n
     authority to agree upon an arbitrator or to refer the matter<\/p>\n
     or dispute between the firms to arbitration.<\/p>\n
  23.   On due consideration of the above arguments, we are of<\/p>\n
     the considered opinion that learned District Judge has rightly<\/p>\n
     rejected the objection regarding composition of the Arbitral<\/p>\n
     Tribunal, as the Supreme Court after recording the consent of<\/p>\n
     the  respective parties has referred the dispute to  sole<\/p>\n
     arbitrator for adjudication of the dispute.  The appellant at<\/p>\n
     no point of time challenged the composition of the Arbitral<\/p>\n
     Tribunal either before the Hon’ble Supreme Court or before the<\/p>\n
     Arbitral  Tribunal during arbitral proceedings.   On  the<\/p>\n
     contrary, they participated in the proceedings, denied claims<\/p>\n
     of respondent No.1 and also submitted counter claim.  The<\/p>\n
     objection in this regard was taken for the first time  in<\/p>\n
     application under Section 34 of the Act, 1996 before  the<\/p>\n
     District Judge, we are of the considered opinion that neither<\/p>\n
     the District Judge nor this Court can entertain and consider<\/p>\n
     any  objection\/challenge to the constitution of  Arbitral<\/p>\n
     Tribunal by the Hon’ble Supreme Court. It is settled law that<\/p>\n
     Article  142  of the Constitution confers undefined,  un-<\/p>\n
     catalogued and extraordinary power unrestricted by ordinary<\/p>\n
     laws.  The legality, validity and correctness in exercise of<\/p>\n
     power  under  Article 142 of the Constitution  cannot  be<\/p>\n
     questioned before this Court.\n<\/p>\n<\/p>\n
  24.  The other ground taken by the appellant to challenge the<\/p>\n
     award  is  that  the award is against the Public  Policy.<\/p>\n
     Referring to para-47 of the Award, it has been argued that<\/p>\n
     after recording receipt of aggregate sum of Rs.3,05,762,37.00<\/p>\n
     by respondent No.1, deduction of only Rs.2,97,91,231 was made<\/p>\n
     on the basis of last bill and accordingly awarded a sum of<\/p>\n
     Rs.50,13,204\/- instead of Rs.42,28,204\/-.  It has been further<\/p>\n
     argued that the arbitrator has awarded interest under the head<\/p>\n
     of  loss  of  profit @ 18% per annum  on  the  amount  of<\/p>\n
     Rs.50,88,140\/- towards the unpaid works from     4-6-96 to 3-<\/p>\n
     10-99 and it has been further directed that the amount so<\/p>\n
     calculated to carry interest @ 18% per annum from 4-10-99 and<\/p>\n
     thereby  awarded  interest  on  interest,  which  is  not<\/p>\n
     permissible.\n<\/p>\n<\/p>\n
  25.  Learned counsel for the appellant submitted that the rate<\/p>\n
     of interest is highly excessive, as a long spell of time has<\/p>\n
     expired since the date of award.  Granting interest @ 18% per<\/p>\n
     annum  is burdensome for the company, therefore, interest<\/p>\n
     should be suitably reduced.\n<\/p>\n<\/p>\n
  26.  It is true that learned District Judge has not literally<\/p>\n
     complied with the direction issued by this Court in civil<\/p>\n
     revision, the suit has been dismissed without adverting to the<\/p>\n
     objections raised by the appellant against the award even<\/p>\n
     after deciding issue No.11 against the respondent herein,<\/p>\n
     however, on the merits of the claim made by the contractor, we<\/p>\n
     find from the impugned award dated 3rd October, 1999 that the<\/p>\n
     arbitrator has meticulously examined claims of the contractor<\/p>\n
     under each separate head.  We also find that his claim against<\/p>\n
     certain heads has been rejected whereas, under the other heads<\/p>\n
     it has been allowed by a reasoned order.  The arbitrator has<\/p>\n
     arrived at its conclusion on the basis of detailed marshalling<\/p>\n
     of pleadings and evidence adduced by the respective parties,<\/p>\n
     though we find that there is some calculation mistake and<\/p>\n
     discrepancy towards the deduction of the amount received by<\/p>\n
     the respondent herein, however, the same could be brought to<\/p>\n
     the notice of the arbitrator himself, who could correct the<\/p>\n
     said mistake in exercise of power under Section 33 of the Act,<\/p>\n
     1996.  We do not see any reason to interfere on the quantum of<\/p>\n
     award passed by the learned arbitrator.\n<\/p>\n<\/p>\n
  27.  However, considering the fact that long spell of time has<\/p>\n
     expired  since the date of award, the appellant has  been<\/p>\n
     deprived of the possession of 50 shops since 1999 and also<\/p>\n
     considering that the rate of interest prevailing  in  the<\/p>\n
     country  has  substantially reduced, further taking  into<\/p>\n
     consideration the peculiar facts and circumstances of the<\/p>\n
     case, we are of the opinion that interest awarded by  the<\/p>\n
     arbitrator @ 18% per annum for the post award  period  be<\/p>\n
     reduced to 9%.\n<\/p>\n<\/p>\n
  28.   Accordingly,  the  appeal is  allowed  to  the  extent<\/p>\n
     indicated above.\n<\/p>\n<\/p>\n
  J U D G E                                 J U D G E\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Chattisgarh High Court M\/S Shadani Builders vs M\/S Begraj Agrawal on 2 March, 2009 HIGH COURT OF CHATTISGARH AT BILASPUR Arbitration Appeal No.25 of 2007 1. M\/s Shadani Builders …Petitioners Versus 1. M\/s Begraj Agrawal 2. Justice Shri C P Sen …Respondents ! Shri S.K. Dubey, Sr. Advocate with Dr. Shailesh Ahuja, counsel for the […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[12,8],"tags":[],"class_list":["post-156875","post","type-post","status-publish","format-standard","hentry","category-chattisgarh-high-court","category-high-court"],"yoast_head":"\nM\/S Shadani Builders vs M\/S Begraj Agrawal on 2 March, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/ms-shadani-builders-vs-ms-begraj-agrawal-on-2-march-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"M\/S Shadani Builders vs M\/S Begraj Agrawal on 2 March, 2009 - 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