IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA LPA No.8 of 1994. Judgment Reserved on:14.10.2008 Decided on: November 26, 2008. M/s.R.J.Shah & Co. Ltd. …..Appellant / decree holder. VERSUS H.P.State Elecricity Board …..Respondent / judgment debtor. Coram The Hon’ble Mr. Justice Jagdish Bhalla, Chief Justice. The Hon’ble Mr.Justice Kuldip Singh, Judge. Whether approved for reporting?1 Yes For the Appellant: Mr.Atul Y.Chitale, Mrs.Suchitra A.Chitale, Ms.Shweta Mazumdar and Mr.Suneet Goel, Advocates. For the Respondent: Mr.K.D.Sood, Advocate. Per Kuldip Singh, Judge. This appeal has been directed against the judgment dated 31st March, 1994 passed by the learned Single Judge in OMP No.118 of 1986 in Execution petition No.35 of 1985 upholding the objections of respondent / judgment debtor that decree is not executable, the amount awarded has already been paid by the Judgment debtor to the appellant / decree holder and dismissing the Execution 1 Whether the reporters of the local papers may be allowed to see the Judgment? Yes …2… Petition. The appellant and respondent herein-after are also referred as decree holder and judgment debtor respectively. 2. The brief facts of the case are that in order to resolve the disputes arose between decree holder and judgment debtor in respect of interpretation of some clauses of the contract agreement No.SEG-1/1967-68 dated 2.12.1967 and the rates payable for some items of the works contracted for construction of Giri Hydro Electric Project in District Sirmour Arbitrators were appointed who made the award on 20.11.1976 and the award was filed in this Court. The judgment debtor filed objections in this Court under Section 30 of the Arbitration Act, 1940 against the award which were registered as CS No.17 of 1977. The objections of the judgment debtor except to the extent of award in respect of electricity tariff were rejected and by way of decree dated 4.4.1979 award dated 20.11.1976 was modified only to the extent that the claim in respect of Item No.7 of the judgment debtor was disallowed with regard to the reimbursement of extra electricity charges recovered by the judgment debtor due to change in tariff rates and the rest of the award was made rule of the Court and decree in terms of the award for Rs.47 lacs in respect of disputes 1, 2 and 4; in respect of dispute No.5 the rates payable shall be those given by the Arbitrators under the disputes; in respect of dispute No.6 the …3… rate for excavation shall be Rs.130 instead of Rs.107.90; and further claimants were held entitled to interest at the rate of 9% per annum from the date of award till the date of payment. The decree dated 4.4.1979 was assailed by the judgment debtor in FAO No.15 of 1979 which was dismissed on 4.3.1985. 3. The decree holder filed Execution Petition No.35 of 1985 for executing the decree dated 4.4.1979 passed in CS No.17 of 1977 which was upheld in FAO No.15 of 1979 on 4.3.1985. In Execution Petition, it was alleged that judgment debtor is liable to pay Rs.9,15,536 as per details given in Annexures II and III filed with the Execution Petition. The judgment debtor is also liable to pay Rs.25,788.40 costs as per decree dated 4.4.1979 and decree dated 4.3.1985. The judgment debtor filed objections being Objection Petition No.118 of 1986 in Execution Petition No.35 of 1985 and pleaded that decree holder is not entitled to any amount under the decree dated 4.4.1979 since all due payments have been made. The decree holder denied the stand of the judgment debtor in the reply dated 24.4.1986 and prayed for dismissal of the objections. The judgment debtor filed rejoinder dated 12.5.1986 to the reply dated 24.4.1986 and reiterated its stand which was taken in objections. The decree holder by way of application dated 7.10.1986 filed on …4… 13.10.1986 prayed that decree holder be allowed a sum of Rs.5,32,880 as payment due under the decree. The judgment debtor vide reply dated 23.10.1986 supported by affidavit dated 24.10.1986 contested the application dated 7.10.1986. The decree holder filed another application dated 12.11.1986 and submitted that it may be allowed a sum of Rs.5,33,034 as payment due under the decree. The decree holder filed written submissions in the Court on 2.9.1987 praying therein that the decree holder be allowed Rs.5,33,034 and interest on Rs.2,92,092 beyond 31.10.1986 at the rate of 9% per annum as per decree dated 4.4.1979. The judgment debtor filed written submissions dated 14.9.1987 wherein it was submitted that whole of the amount has been paid to the decree holder, in fact excess payment amounting to Rs.6,40,819 has been made by the judgment debtor to the decree holder. The decree holder filed written submissions in rejoinder on 6.10.1987 reiterating the stand of the decree holder submitted in written submissions dated 2.9.1987. The learned Single Judge vide judgment dated 31.3.1994 upheld the objections of the judgment debtor and dismissed the Execution Petition. Hence, this appeal. A Division Bench of this Court on 28.10.1994 dismissed the appeal being not maintainable. The Apex Court on 19.7.2007 set aside the order dated 28.10.1994 and remanded the …5… matter to decide the controversy afresh. On 16.9.2008 the learned counsel for judgment debtor conceded maintainability of Letters Patent Appeal in light of Full Bench judgment dated 24.11.1998 in Jaswant Singh Saraff and others versus State of H.P. and others passed in OSA No.5 of 1998. 4. We have heard Mr.Atul Y.Chitale, learned counsel for the appellant / decree holder, Mr.K.D.Sood, learned counsel for the respondent / judgment debtor and gone through the record. The learned counsel for the decree holder has confined his submissions in the appeal with respect to the payment of interest only on the basis of decree dated 4.4.1979 read with appellate decree dated 4.3.1985. The learned counsel for the judgment debtor has submitted that no amount is due and payable to the decree holder under the decree as the judgment debtor has paid entire amount to the decree holder under the decree. 5. The decree holder has claimed different amount on account of interest from judgment debtor at different stages of execution petition. The consistent stand of the judgment debtor is that entire amount under the decree has been paid to the decree holder. The judgment debtor in the objections has pleaded as follows:- “It may also be mentioned at this juncture that the Contractor had also included …6… these alleged claims in the guise of supplementary statement of claims filed before a High Powered Committee constituted after the award of November 20, 1976 (Third Arbitration Award) in subsequent arbitration proceedings which are referred to as the fourth arbitration proceedings. In the said fourth arbitration proceedings the supplementary statement of claims filed by the contractors included the amounts which are now sought to be claimed by the contractors in the guise of execution of the decree dated April 4, 1979 as due and owning under the Award of November 20, 1976. This would be evident from the supplementary statement of claims filed by the contractors under cover of letter dated July 23, 1981 and the charts appended thereto as Annexure XV, Annexure XV (viii) and XV(ix). Copies of the said statement of claims and the three charts mentioned therein are appended as Annexure R-III, R-IV, R-V and R-VI respectively. As against the said claim (Claim No.XIII) the contractors were awarded a sum of Rs.2 lakhs. A copy of the fourth arbitration award dated April 30, 1985 is appended as Annexure R-VII hereto. It would be evident from the above that even assuming (whilst denying) that any amounts were due and …7… owning under the award of November 20, 1976 and the consequent decree of April 4, 1979 the said claims have been finally disposed of and no amounts whatsoever are due and owning to the contractors.” In brief, the judgment debtor has pleaded that after the third arbitration award dated 20.11.1976 the fourth arbitration proceedings were started. In the fourth arbitration proceedings decree holder filed supplementary claim claiming the amount now sought to be claimed under the garb of decree dated 4.4.1979. In view of the award dated 30.4.1985 in fourth arbitration proceedings nothing is payable to the decree holder under the decree. This is in addition to the fact that judgment debtor has satisfied the decree under execution. 6. The fourth arbitration proceedings had arisen out of the final bill. The decree holder in fourth arbitration proceedings had submitted statement of claim on 2.4.1980. Thereafter, by way of supplementary statement of claims dated 23.7.1981 the decree holder had claimed Rs.8,31,110 along with 18% interest from the judgment debtor. The details of Rs.8,31,110 have been given in Annexure R-IV at page 143 of the record. In Annexure R-IV at Sr.No.9 an amount of Rs.5,25,125 on account of interest due on payment as per arbitration award dated 20.11.1976 has been …8… shown. The calculation of interest amounting to Rs.5,25,125 has been shown in Annexure R-V at page 145. In the award dated 30.4.1985 claim of Rs.8,31,110 on account of dues payable under the final bill claimed by decree holder has been shown at Sr.No.XIII. In the award dated 30.4.1985 the claim No.XIII has been answered as follows:- “Claim No.XIII: Claim under this head is allowed in the following manner: The claimant would be entitled to Rs.2 lacs. However, the amount proposed to be deducted by the Board towards income tax amounting to Rs.1,28,174/- will not be deducted from the final bill.” In the written submissions dated 6.10.1987 by way of rejoinder the decree holder has submitted as follows:- “That with respect to the contents of paragraph-6 of the reply of judgment debtor Board, the decree holder Company submit that it is a fact that the decree holder claimed a sum of Rs.8,31,110/- in their supplementary statement of claims filed before the Fourth arbitration tribunal and this claim included a sum of Rs.5,29,728/- being the amount due under third arbitration award.” 7. The decree holder is not clear of the amount due to be recovered from judgment debtor. In the execution …9… petition, the decree holder had claimed Rs.9,15,536 amount due under the decree but vide application dated 12.11.1986 decree holder has quantified the amount Rs.5,33,034 and vide application dated 7.10.1986 Rs.5,32,880 has been claimed. In the execution petition, the amount of Rs.5,25,125 on account of interest has been calculated as per Annexure III at page 83 and another amount of interest Rs.3,64,002.88 calculated up to 30.9.1985 as per Annexure P-IV at page 84. The perusal of Annexure III and Annexure IV would show that the interest has been calculated as per contract conditions and not at the rate of 9% per annum awarded in the decree. The basis of claim of Rs.5,25,125 and Rs.3,64,002.88 in Annexure III and Annexure IV on account of interest is not as per decree hence the calculation of interest in Annexure III and Annexure IV is wrong. In Annexure R-V at page 145, an amount of Rs.5,25,125 on account of interest as per contract conditions has been calculated by the decree holder. Annexure R-V appears to be the part of supplementary claim submitted by decree holder in the fourth arbitration. The Annexure III and Annexure R-V are identical. In the fourth arbitration, the decree holder claimed interest on the basis of award dated 20.11.1976 but was not specifically allowed in the award dated 30.4.1985 under claim No.XIII. In the award dated 30.4.1985 total …10… amount of Rs.3,22,589 was awarded to decree holder including an amount of Rs.2 lacs under claim No.XIX. In the award dated 30.4.1985 under claim No.XIV interest at the rate of 12% per annum on the amount of Rs.3,22,589 was awarded from the date of reference to the date of payment. In other words, interest at the rate of 12% was awarded under claim No.XIII to the decree holder in the award dated 30.4.1985. The claim No.XIII included a claim of interest on the basis of award dated 20.11.1976. The stand of the judgment debtor is that whole of the amount under the decree has been paid. In any case, claim of interest of the decree holder has merged into the award dated 30.4.1985 and, therefore, decree is not executable. 8. There is yet another aspect of the case. During the course of hearing of FAO No.15 of 1979, it was brought to the notice of Division Bench that the judgment debtor had already implemented the award and the decree holder has been paid its dues in terms of the judgment of the learned Single Judge. The perusal of judgment dated 4.3.1985 in FAO No.15 of 1979 would show that a submission was made on behalf of the decree holder that the judgment of the Court having been implemented the judgment debtor had no authority to proceed with the appeal. The Division Bench in this context had observed in the judgment dated 4.3.1985 …11… that only in pursuance of the award or the judgment of the learned Single Judge the Board (judgment debtor) had made the payment but this would not defeat the right of appeal of the Board. The decree holder did not dispute the stand of the judgment debtor before the Division Bench that the payment was made to the decree holder and the decree was satisfied. This supports the contention of the judgment debtor that nothing is payable to the decree holder as the entire amount under the decree has been paid to the decree holder. The learned counsel for the decree holder has failed to make out any case for interference. The impugned judgment is upheld though partly for other reasons. 9. No other point was urged. 10. The result of above discussion, the appeal is dismissed with no order as to costs. (Kuldip Singh),J. (Jagdish Bhalla), C.J. November 26, 2008 (soni)