[1] IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO.873 OF 2001 IN ARBITRATION PETITION NO.248 OF 1995 The Municipal Corporation of Greater Mumbai, a Corporation constituted under the Mumbai Municipal Corporation Act, 1888 having its registered office at Mahapalika Marg, Fort, Mumbai-400 001. .... Appellants - Versus - 1. M/s. Kulkarni & Co., having its registered office at 32, Prabhat Apartments, Hanuman Road, Opp: Tilak Vidyalaya, Vile Parle (E), Bombay-400 057. a) Smt. Rekha Rajaram Kulkarni Widow of late Shri Rajaram Gopal Kulkarni. b) Amit Rajaram Kulkarni c) Ms Anita Rajaram Kulkarni d) Master Ashish Rajaram Kulkarni, a minor, through his mother and natural Guardian Smt. Rekha Rajaram Kulkarni heirs and legal representatives of late Rajaram Kulkarni, Proprietor of M/s. Kulkarni & Co. .... Respondents Sarvasri U.J. Makhija with Ramesh Dhanuka and K.N. Gaikwad i/b M/s. N.V. Matai & Co. for the Appellants. Ms Bhadra N. Dalal for the Respondents. [2] CORAM: CORAM: CORAM: SRI R.M.S. KHANDEPARKAR & SRI R.S. MOHITE, JJ. DATED: DATED: DATED: APRIL 04, 2008 ORAL JUDGMENT (Per Sri R.M.S. Khandeparkar, J.): ORAL JUDGMENT (Per Sri R.M.S. Khandeparkar, J.): ORAL JUDGMENT (Per Sri R.M.S. Khandeparkar, J.): 1. Heard. This appeal arises from the judgment dated 7-8-2000 passed by the learned single Judge in Arbitration Petition No.248 of 1996. By the impugned judgment, the learned single Judge has dismissed the petition, however, has reduced the interest rate from 18% to 12% on the amount awarded in favour of the respondents. 2. The respondents herein had submitted their tender for construction of tenements meant for occupation by Nurses for which the tenders were invited by the appellants and pursuant to the work being allotted to the respondents in the year 1979, the respondents completed the work and handed over the possession of the premises to the appellants in March, 1983. However, the final bill regarding the construction remained to be submitted to the appellants by the respondents till September, 1992. When the bill was submitted, dispute arose between the parties and the same was referred for adjudication by way of arbitration and the learned Arbitrator declared his award on 4-1-1995. Being [3] aggrieved, the appellants filed arbitration petition before this Court which came to be heard and disposed of by the learned single Judge by the impugned order. Hence the present appeal. 3. The grounds on which the impugned order is sought to be challenged are that the plea of bar of limitation, which was raised by the appellants, was not properly considered by the learned single Judge, and secondly that an exorbitant rate of interest has been awarded on the principal amount. 4. It is the contention of the appellants that, admittedly, the work was completed in the March, 1983 and even the possession of the premises was handed over to the appellants in the said year. Considering Clause 74 of the agreement between the parties, the respondents were required to submit the final bill within three months therefrom and since no such final bill was submitted within the said period, according to the appellants, the respondents were not entitled to submit the bill after nine years and the same point has not been properly appreciated and considered by the learned single Judge and, therefore, according to the learned counsel appearing for the appellants, the impugned order needs to be set aside. On the other hand, it is the case of the respondents that though the work was [4] completed and possession of the premises was handed over to the appellants in the year 1983, the measurements of the construction were not taken by the appellants in the presence of the respondents or their representative and inspite of repeated requests in that regard, till 1992 no opportunity was given to the respondents to verify the measurements alleged to be taken by the appellants in relation to the construction work carried out by the respondents. In those circumstances, it was for the first time in July, 1992 that the certified measurements were made available for inspection by the respondents and within three months therefrom the respondents submitted their final bill. Considering the period of limitation prescribed under Clause 74 for submission of the final bill, such final bill was within the period of limitation and the same having been duly considered by the learned Arbitrator as well as the learned single Judge, according to the counsel appearing for the respondents, there is no case for interference in the impugned order. 5. The first point which arises for consideration in the matter is as to whether the learned single Judge has duly considered the point of bar of limitation which was sought to be raised by the appellants in the arbitration petition. Undisputedly, the point of limitation related to Clause 74 and the same prescribed that the final bill [5] shall be submitted by the contractor within three months of physical completion of the work. It was further provided that no further claim should be made by the contractor after submission of the final bill and the same should be deemed to have been waived and extinguished and the payment of those items of the bill in respect of which there was no dispute and of items in dispute, for quantities and rates as approved by the Commissioner should be made within a reasonable period as may be necessary for the purpose of verification, etc. 6. It is not in dispute nor it can be disputed that for the purpose of preparation of the final bill, the certified measurements must be available to the contractor. The certified measurements would imply verification of the measurements taken by the parties in relation to the construction work completed by the contractor. There is a categorical assertion on the part of the respondents in their affidavit in reply filed in answer to the arbitration petition that the respondents could get the inspection of the certified measurements in relation to the work completed by them, for the first time, in July, 1992. In other words, the certified measurements which were necessary for the preparation of the final bill by the respondents in relation to the work which was completed in the year [6] 1983 were made available to the respondents, for the first time, in July, 1992. Obviously, therefore, by no stretch of imagination it can be presumed or concluded that there was any occasion for the respondents to prepare the final bill prior to July, 1992. In the case in hand, undisputedly, such final bill was presented to the appellants in September, 1992. In other words, such bill was submitted within three months from the date of availability of the certified measurements to the respondents. In view of the fact that the categorical assertion on the part of the respondents that the certified measurements were made available to them, for the first time, in July, 1992, was never denied nor disputed either in the course of the arbitration proceedings or even when the matter was heard before the learned single Judge, the fact that the final bill could not have been presented before July, 1992 stands undisputed. Once the same is not in dispute and the bill was presented within three months from the availability of the certified measurements to the respondents, it cannot be said that there is any violation of Clause 74 on the part of the respondents and it must be held that the final bill was submitted within the period of limitation prescribed thereunder. Considering the same, we do not find any illegality or infirmity, either in the impugned judgment or in the award passed by the learned Arbitrator on the point of [7] plea of limitation which was sought to be raised by the appellants. 7. The other point which was sought to be canvassed was in relation to the interest awarded by the learned Arbitrator and the order passed in that regard by the learned single Judge. It is the contention on behalf of the appellants that the interest rate awarded at the rate of 12% is not only on the higher side but it also includes interest on the interest for the period from 4-1-1995 to 21-2-1995. The contention is that the amount of Rs.17,46,484/- also includes the interest already accrued at the rate of 18%. It is not in dispute that the learned Arbitrator was entitled to fix the rate of interest. The learned Arbitrator had awarded interest at the rate of 18% p.a. on the amount awarded under the award. The learned single Judge has reduced the same from 18% to 12%. Once it is not in dispute that the learned Arbitrator was not incompetent or was empowered to fix the rate of interest, unless it is pointed out with necessary supporting materials that the rate awarded was either excessive or has been fixed arbitrarily, the question of interference in the interest rate fixed by the learned Arbitrator, and already reduced by the learned single Judge, question of interference therein in the appeal arising from the order passed by the learned single Judge does not arise [8] at all. Mere allegation that the rate is excessive is not sufficient for interference by the Court in case of rate fixed by the Arbitrator. Undisputedly, it is a matter which relate to the construction work which was completed in the year 1983 and essentially on account of failure on the part of the appellants, the respondents could not get the certified measurements of the work completed till July, 1992. This shows that the conduct on the part of the appellants was not appreciable and it resulted in keeping the matter lingering for nearly more than a decade. This Court can certainly take judicial notice of the fact that prior to 2000, the bank’s interest rate for the loan amount ranged from 15% to 22% per annum. It was only after 2000 that the rate of interest has fallen. In these circumstances, the award which was passed prior to 2000 and the order which was passed as long back as in 2000 in relation to the transaction which took place between 1983 to 1992, we do not find that the rate of interest at the rate of 12% could be said to be on the higher side by any stretch of imagination. Considering the same, merely because for a period of 25 days, there is an overlapping of interest amount, that would also not justify interference in the impugned order or the award. Hence we find no substance regarding the rate of interest also. 8. As no other point is sought to be canvassed in the [9] matter, there is no case made out for interference in the impugned order. Hence, the appeal fails and is hereby dismissed. No order as to costs. (R.S.Mohite, J.) (R.M.S.Khandeparkar, J.) sjs/A8aj873.01 sjs/A8aj873.01 sjs/A8aj873.01