1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL JURISDICTION CHAMBER SUMMONS NO. 818 OF 2006 IN EXECUTION APPLICATION NO. 158 OF 2006 IN ARBITRATION AWARD DATED 17TH JULY 2005 M/s. Eskay Engineers. ... Claimants. V/s. Bharat Sanchar Nigam Limited. ... Respondents. Mr. S.U. Kamdar a/w. Ms. Pooja Patil i/b. V.L. Panjwani, claimanants. Mr. Viral D. Shukla i/b. Shukla & Associates for Respondents. CORAM : S.C. DHARMADHIKARI, J. DATE : 30TH SEPTEMBER 2008. P.C. :- Heard learned Counsel for the parties. 2. This is a Chamber Summons filed by Respondent Bharat Sanchar Nigam Ltd. This Chamber Summons prays that the Execution Application No.158 of 2006 in Arbitration award dated 7th July 2005 and the warrant of attachment issued pursuant to the same be declared as null 2 and void. 3. The learned Counsel for the Respondents presses prayer clause (b)(i). The same reads as under :- "(b)(i). The Claimants are entitled to recover an amount of Rs.76,26,569.00 as per Arbitration Award dated 07.07.2005 plus Rs.60.00 being the costs of Execution, aggregating to Rs.76,26,629.00. The Claimants may be directed to refund sum of Rs.21,31,515.00 to the Respondents / Judgment Debtor, being the excess amount claimed and withdrawn by the Claimants from the amount deposited by the Respondents / Judgment Debtor with Sheriff of Mumbai in the Execution Application No.158 of 2006 as per Arbitration Award dated 07.07.2005." 4. Mr. Shukla appearing for the Respondent vehemently contended that the original claimants before this Court have appropriated and adjusted from the amount deposited in this Court pursuant to the Award, certain claims which were not subject matter of arbitration. In other words, he submits that out of the total amount of Rs.97,58,144/- deposited in this Court pursuant to the award dated 7th July 2005, some of the amounts which are claimed to be due and payable by the claimants are not covered by the award. The deposit therefore is far in excess of the 3 awarded claim. He submits that the award arises out of pending bills for certain works carried out by the Claimants for the Respondents. There was a dispute with regard to these bills and that is how a reference was made to the arbitrator. Before the Arbitrator, several claims are made for recovery of the amounts under the running bills but there was no claim in so far as refund of security deposit or interest and therefore, in the execution application claimant's claim amounts which are not in confirmity of the award but far in excess thereof. If they are in excess thereof, they would be liable to refund to the Respondent. On the earlier occasion, when the matter was argued extensively, the refund claim not was quantified and that is how prayer clauses (b)(i) was allowed to be inserted. Now, that amount be permitted to be withdrawn or the claimants be directed to refund or pay to the Respondents to same. 5. He submits that the security deposit of Rs.14,00,000/- was never claimed. Further, there was no claim for interest before the Arbitrator. The operative award is a declaratory award. It directs that in cases of 60% of payment and where no payment has been made, only, in such cases the payment should be made by September 2005. This claim is referrable to the running bills and nothing else. Therefore, this Chamber Summons be allowed. 4 6. On the other hand, Shri Kamdar, learned Counsel appearing for the Claimants contended that this is one more attempt by the B.S.N.L. to re-open the award. The B.S.N.L. desires that this Court should go behind and re-open the award, although the challenge to the award has failed right upto the Hon'ble Supreme Court. He submits that an application can be made only to correct clerical or mathematical error but in no case substantial amount can be claimed now by the Respondents in execution proceeding. Their challenge to the award raising identical pleas having failed, the chamber summons must be dismissed. 7. That apart, Shri Kamdar took me through the award and contended that the claim for security deposit is a specific claim before the sole arbitrator. He submits that if the award itself is perused, it is clear that Claim no. 2 is for refund of security deposit whereas Claim No.3 is for interest. By no state of imagination, the operative award/operative order and directions can be read in isolation. It must be read alongwith the substantive part of the award. Therefore, the directions in clause No.3 to make payment in excess where 60% payment or no payment has been made includes security deposit as well as interest. For all these reasons and pointing out some clerical and calculation error, he submits that the 5 Chamber Summons be dismissed. Mr. Kamdar urges that although, this Court can make appropriate corrections but even after deposit of Rs.97,00,000/- in this Court, balance remains unsatisfied and is outstanding. The claimants will, therefore, seek appropriate relief from this Court in that regard. 8. I have perused the Chamber Summons and all affidavits in reply, rejoinder, sur-rejoinder and further rejoinder. I have also perused the award and the annexures thereto. 9. There is much substance in the contention of Shri Kamdar that Claim No.2 and Claim No.3 before the learned Arbitrator would include the payment as directed under the operative part of the award. In other words, the direction was to make payment in cases where part payment is made or no payment is made would include return of security deposit in full. It also means that the claim for interest has been adjudicated upon and the claimants would be entitled to recover the said sum. 10. As far as claim of interest is concerned, it is specifically claimed under Claim No.3 and although there may not be any direction to pay the amount under that claim, yet, in law, if the Claimant is entitled to claim the 6 same before same arbitrator, then that claim can also be enforced and executed. It is not as if the arbitrator has rejected that claim. In such circumstances, there is no substance in the contention of the Respondents that security deposit and interest are not part of the claims before the arbitrator. They are specifically mentioned as subject matter of the claim before the arbitrator. The claim was not restricted as urged to only the running bills. In such circumstances, direction No.3 must be construed as a order to pay all claims in so far as the works are concerned. As far as interest is concerned, Shri Kamdar has fairly clarified that the amount was not awarded by the arbitrator but that the amount is claimed under Section 31(7) of the Arbitration and Conciliation Act, 1996. That is how the claim of interest made on the awarded sum is raised. The statutory power which the Court can exercise on the basis of a Award is the power invoked by the Claimants. I need not enter into that part inasmuch as the Respondents are yet to make any claim for interest under Section 31(7) of the Act. 11. However, there is no substance in the contentions of the Respondents that claim for refund of security deposit is not included in direction No.3 of the operative portion of the award. That claim is specifically made and adjudicated upon and if that payment is not made by 7 the B.S.N.L., they will have to make it is clear from of the directions. The Award is not isolation as suggested by the Respondent. 12. For the aforesaid reasons, I find no substance in this Chamber Summons and it is accordingly dismissed. However, the claim amount as awarded by the Arbitrator as per Annexure CA-2 to the Award includes the pending bills and bills duly certified for payment. The claims for transport are made twice. Once they are made under the heading pending bills at Sr.No.85 and 90. However, these claims are repeated under the sub-heading original bills certified for payment once again. Therefore, to the extent that the claims are repeated under the second heading, there is no obligation to make payment. Similarly, Mr. Kamdar points out that the claim at Sr.No. 79 pertaining to bill No.2925 dated 14th August 2002, shows balance due as Rs.4,53,431/-, but the same should be read as Rs. 44,477/- (Exhibit C). 13. Even if the re-calculation is done, it does not means that the Claimants are required to refund any amount straightway and no directions can be issued at this stage. More so, when opportunity has been granted to the Claimants to apply for payment for Interest on the award by instituting appropriate proceedings. As and when the claim is lodged, it 8 would be open for the Claimants to point out the aforesaid calculation error and at that stage the Court will consider making appropriate orders and directions and if need be for the payment by the Respondents of any sum. Reseving the liberty to apply for such calculation and keeping open all contentions for both sides therein, this Chamber Summons is dismissed. (S.C. DHARMADHIKARI, J.)