1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION NO. 3903 OF 2009 (Shree Ambika Construction Company vs. Union of India through Sr. Divisional Engineer) Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. NOVEMBER 25, 2009. Heard finally Shri Srivastava, learned counsel for the petitioner and Shri Lambat, learned counsel for the respondent. The impugned order passed by the Principal District Judge below Exh. 1 shows that the calculations submitted by the petitioner / decree holder cannot be accepted and the calculations submitted by judgment debtor, therefore, were accepted and the proceedings in Regular Darkhast were closed holding that the award/ decree was satisfied. Shri Srivastava, learned counsel states that the award of interest against Claim No. 12 by the Arbitrators was not disturbed by the Principal District Judge while passing orders in MCA No. 527 of 2003 on 23rd June 2006. He points out that only the rate of interest at 15% was applied in relation to certain items from 30.07.1989 and Arbitrators had granted said benefit from 30.07.1988. He further states that this was maintained in First Appeal No. 284 of 2007 by this Court 2 vide its judgment dated 20.12.2007 and SLP against it has been dismissed. He, therefore, states that the claim made by the petitioner and placed before this Court as Annexure – “H” at page 105 is proper. According to Shri Lambat, learned counsel, claim No. 12 allowed by the Arbitrators has been set aside by the Principal District Judge and that cancellation was never questioned in First Appeal by the petitioner. He, therefore, states that as interest has not been awarded by the learned Principal District Judge, in his judgment dated 23.06.2006, inclusion thereof in Annexure - H is misconceived. The facts clearly show that against Claim No. 12, the Arbitrators had awarded total amount of Rs. 4,26,775/- towards interest. There was further direction that total amount (including interest) should be paid within 30 days of the date of award i.e. 30.04.2003 and if the amount was not so paid, the entire amount was to carry 18% interest till realisation. Thus, the entitlement of the petitioner was worked after considering the principal amount plus interest plus cost awarded to them and in default of payment of this entire amount, interest of 18% was directed to be calculated on entire amount. The learned District Judge in MCA No. 527 of 2003 passed the following order : “ORDER The application is partly allowed. The award made in respect of claim No.3.2 (Work order No.ACC/Spl/Br 52/2, is hereby set aside. 3 The award in respect of claim Nos. 4, 5 and 6 is also set aside. The remaining award is modified as under: The present applicant do pay the amount of Rs.23,282/- in respect of work order No.ACC/Spl/Br 52/1, with interest at the rate of 15% per annum to the Contractor and the interest would be payable from 30.07.1989 till the date of realisation of the amount. The applicant do return the security deposit, the amount of Rs.10,178/- with interest at the rate of 15% per annum and the interest would be payable from 30.07.1989 till the date of realisation of amount. The applicant also do pay the costs of Rs. 40,000/- to the contractor and future interest at the rate of 15% per annum as awarded on this amount, till the date of realisation of the amount. No order as to costs of this proceeding. Nagpur. Date : 23.6.2006. Sd/- (T.V. Nalawade) District Judge, Nagpur” The modification to this order because of judgment of this Court dated 20.12.2007 in First Appeal No. 284 of 2007 is not in dispute. It is to be noted that the learned District Judge at Nagpur has not deleted Claim No. 12 i.e. interest awarded by the Arbitrators to the petitioner. The order above shows that only in relation to certain items specified therein i.e. amount of 4 Rs.23,282/- in respect of work order No.ACC/Spl/Br 52/1, direction was given to calculate interest @ 15% per annum from 30.07.1989 till realisation. The further modification is in relation to payment of amount of Rs. 10,178/- and amount of Rs.40,000/- awarded as cost. The learned counsel for the respondent is not in a position to show that claim No. 12 allowed by the Arbitrators has been set aside by the District Judge. The judgment of this Court dated 20.12.2007 also does not consider said aspect. In the circumstances, the learned District Judge erred in concluding that the amount of interest as claimed by the petitioner as per award against Claim No. 12 could not have been allowed to be recovered. The document at Annexure - “H” shows that the amount as awarded by the Arbitrators has been reduced by mentioning that interest has been calculated at 15% from 30.07.1989 to 30.04.2003 and thereafter because the amount was not paid within stipulated time, future interest at 15% has been claimed from 01.05.2003 till the date of filing of execution proceedings. The impugned order, therefore, cannot be sustained. The same is accordingly quashed and set aside. At this stage, Shri Lambat, learned counsel states that the respondent wants to dispute the calculations made by the petitioner at Annexure “H” and for said purpose the matter should be remanded to the District Judge. Shri Srivastava, learned counsel states 5 that the petitioner is fighting since 20 years for this recovery. In the interest of justice, one chance as prayed for is given to the respondent, however, subject to deposit of amount of Rs.3,60,949/- before the Court of Principal District Judge, Nagpur, by the respondent, within a period of four weeks from today. If the amount is so deposited, the learned District Judge shall consider the objection, if any, taken to calculation and shall proceed further with the execution. 50% amount of sum deposited by the respondent is allowed to be withdrawn by the petitioner, subject to the petitioner furnishing the solvent security to the satisfaction of Principal District Judge, Nagpur. The Principal District Judge shall look into the objection as early as possible and in any case by 31st January 2010. The parties to appear before the learned Principal District Judge on 3rd December 2009. Writ Petition is disposed of accordingly. JUDGE *GS.