NEPA LIMITED THROUGH ITS SENIOR MANAGER (LEGAL) versus MANOJ KUMAR AGRAWAL
[2022] 14 S.C.R. 446, Supreme Court of India, 2022
Outcome: Appeal(s) allowed (Granted)
Segment: Ratio
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SUPREME COURT REPORTS
[2022] 14 S.C.R.
[2022] 14 S.C.R. 446
446
NEPA LIMITED THROUGH ITS SENIOR MANAGER (LEGAL)
v.
MANOJ KUMAR AGRAWAL
(Civil Appeal No. 3984 of 2019)
DECEMBER 08, 2022
[SANJIV KHANNA AND SUDHANSHU DHULIA, JJ.]
Code of Civil Procedure, 1908 – Order XXI, Rule 1 –
Arbitration and Conciliation Act, 1996 – ss. 34 and 37 – Interest on
award – By award dated 14.04.2000, appellant was held liable to
pay Rs. 14,49,300/- to respondent with interest @ rate of 18% per
annum from date of award, till payment – Objections filed by
appellant u/s.34 were dismissed – Appeal filed u/s.37 – High Court
passed order whereby, on appellant depositing 50% of the awarded
amount within 10 days from date of the order before executing court,
the execution proceedings for the balance amount were to remain
stayed – Respondent was entitled to withdraw the deposited amount
after furnishing personal undertaking for restitution of the amount
– Pursuant to the interim order, appellant deposited Rs.7,78,280/-
– Respondent withdrew this amount after furnishing the personal
undertaking on 08.11.2001 – Whether respondent entitled to interest
@ the rate of 18% p.a. as per award on the principal amount of Rs.
14,49,300/- till decision of appeal u/s. 37 of the Act or interest @
the rate of 18% p.a. is payable on the net principal amount after
set-off/adjustment of interest due on 08.11.2001 from Rs.7,78,280/
- which was withdrawn by respondent on 08.11.2001 – High Court
by
impugned order held that in terms of Order XXI, Rule 1, sub-
rules (4) and (5) of CPC, the appellant having failed to give notice
for deposit of amount of Rs.7,78,280/-, the respondent would be
entitled to interest @ the rate of 18% per annum, even on the sum
of Rs. 7,78,280/-, which was withdrawn by him, till decision of the
appeal under u/s. 37 – Held: When the deposited amount is
withdrawn and gets credited in the account of the decree holder, he
is not entitled to interest on the deposited amount, even when there
is failure on the part of the judgment debtor to issue notice of deposit
– In absence of notice, the interest would cease to run from the date
when the amount is transferred /credited in the account of the decree
holder – If notice is issued, interest ceases to run from the date of
service of notice.
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Allowing the appeal, the Court
HELD: 1. It is accepted and admitted position that the
respondent had withdrawn amount of Rs. 7, 78, 280/-, which had
been deposited by the appellant, on 08.11.2001. In this
background, the question of notice in terms of sub-rule (4) to
Rule 1 to Order XXI of the CPC becomes irrelevant. [Para
14][450-E-A; 451-A]
2. The legislative intent clearly, is that the interest would
cease on the principal amount paid by the judgment debtor to the
decree holder. Issue of notice is to enable the decree holder to
withdraw the amount deposited. Therefore, when the deposited
amount is withdrawn and gets credited in the account of the decree
holder, he is not entitled to interest on the deposited amount,
even when there is failure on the part of the judgment debtor to
issue notice of deposit. In absence of notice, the interest would
cease to run from the date when the amount is transferred/
credited in the account of the decree holder. If notice is issued,
interest ceases to run from the date of service of notice. [Para
14][451-C-E]
3. In the present case, Rs.7,78.280/- was deposited by the
appellant on 05.11.2001. The stay, therefore, only operated for
the balance amount. On the balance amount, certainly, the
appellant would be liable to pay interest @ the rate of 18% per
annum till the date of actual payment. However, on Rs.7,78,280/
- paid, after adjusting /appropriating payment due on the interest
accrued, on the balance principal
amount paid to the respondent,
interest would not be payable. [Para 21][453-C-E]
Gurpreet Singh v. Union of India (2006) 8 SCC 457 :
[2006] 7 Suppl. SCR 422-followed on.
P.S.L. Ramanathan Chettiar and Others. v. O.R.M.P.R.M.
Ramanathan Chettiar AIR 1968 SC 1047 : 1968 SCR
367 – distinguished.
State of Rajasthan v. J.K.S Synthetics and Anr. (2011)
12 SCC 518 : [ 2011] 10 SCR 993 ; Raunaq
International Limited v. I.V.R. Construction Limited and
Others (1999) 1 SCC 492 : [1998] 3 Suppl. SCR 421
and Hyder Consulting (UK) Ltd. v. State of Orissa
(2015) 2 SCC 189 : [2014] 14 SCR 1029 - referred to.
NEPA LIMITED THROUGH ITS SENIOR MANAGER (LEGAL)
v. MANOJ KUMAR AGRAWAL
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Case Law Reference
[2006] 7 Suppl. SCR 422 
followed on
Para 14
[1968] SCR 367
distinguished
Para 17
[2011] 10 SCR 993 
referred to
Para 22
[1998] 3 Suppl. SCR 421 
referred to
Para 23
[2014] 14 SCR 1029
referred to
Para 24
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3984
of 2019.
From the Judgment and Order dated 19.06.2017 of the High Court
of Madhya Pradesh at Jabalpur in Civil Revision Petition No. 368 of
2012.
Sumeer Sodhi, Aman Nandrajog, Devashish Tiwari, Advs. for the
Appellant.
Respondent-in-person
The Judgment of the Court was delivered by
SANJIV KHANNA, J.
1. By award dated 14.04.2000, the appellant, M/s Nepa Limited,
was held liable to pay Rs. 14,49,300/- to the respondent, Manoj Kumar
Agrawal. The amount was towards refund of the balance security deposit,
which was made by Manoj Kumar Agrawal in terms of the agreement
dated 25.10.1996. The award had stipulated that Rs. 14,49,300/- would
carry an interest @ the rate of 18% per annum from the date of the
award, till payment.
2. It is an accepted case that the appellant paid an amount of Rs.
1,50,000/- to the respondent on 22.10.2001. It is also undisputed that this
payment would be adjusted/set-off against the interest, and not from the
principal amount of the award, i.e., Rs.14,49,300/-.
3. The objections filed by the appellant under Section 34 of the
Arbitration and Conciliation Act, 19961 were dismissed on 28.02.2001.
4. The appellant had thereupon
preferred an appeal under Section
37 of the Act before the Division Bench of the High Court. On 30.10.2001,
1 For short, the “Act”.
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the Division Bench passed an order whereby, on the appellant depositing
50% of the awarded amount within ten days from the date of the order
before the executing court, the execution proceedings for the balance
amount were to remain stayed. The respondent was entitled to withdraw
the deposited amount after furnishing personal undertaking for restitution
of the amount if he is so directed, within three months from the date of
the final disposal of the appeal. The direction/order attaching the properties
of the appellant was to continue.
5. Pursuant to the interim order, the appellant had deposited Rs.
7,78,280/- on 05.11.2001. On 08.11.2001, the respondent withdrew
Rs.7,78,280/-, after furnishing personal undertaking in terms of the order
dated 30.10.2001.
6. The appeal preferred by the appellant under Section 37 of the
Act was dismissed by the Division Bench on 02.02.2012.
7. It may be stated here that the respondent had also challenged
the award by filing objections under Section 34 of the Act, which were
dismissed. Thereupon, the respondent had filed an appeal under Section
37 of the Act which was also dismissed. It is stated by the respondent,
who appears in-person, that both the appellant and the respondent had
preferred a special leave petition before this Court, which were dismissed.
8. Learned counsel appearing for the appellant accepts that the
payment of Rs.7,78,280/-, which was withdrawn by the respondent on
08.11.2001, would be first
adjusted/set-off against the interest element
payable in terms of the decree, which in this case, is the award. The
balance amount would be set off/adjusted towards the principal amount
payable. To this extent also, there is no dispute.
9. The dispute before us is whether the respondent is entitled to
interest @ the rate of 18% as per the award on the principal amount of
Rs. 14,49,300/- till the decision of the appeal under Section 37 of the Act
on 02.02.2012, or interest @ the rate of 18% is payable on the net
principal amount2 after the set-off/adjustment of interest due on
08.11.2001 from Rs.7,78,280/- which was withdrawn by the respondent
on 08.11.2001.
2 See paragraph 25 below. As per calculations made by the appellant vide Annexure ‘A’
to this judgment the net principal amount payable is Rs. 9,13,483/-. As per the
calculations made by the respondent vide Annexure ‘B’ to this judgment the net principal
amount payable is Rs.9,30,300/-.
NEPA LIMITED THROUGH ITS SENIOR MANAGER (LEGAL)
v. MANOJ KUMAR AGRAWAL [SANJIV KHANNA, J.]
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10. On 01.08.2012, the respondent had filed an application for
recovery of amount of Rs. 3,97,382/- along with the interest. On
18.08.2012, the respondent had filed another application stating and
claiming that he was entitled to interest on Rs.14,06,259/-, i.e., the principal
amount awarded along with the 18% interest till the decision of the appeal
under Section 37 of the Act, which was decided on 02.02.2012.3
11. The executing court vide order dated 05.10.2012 held that the
respondent is entitled to decree in the sum of Rs. 3,97,382/- along with
the interest @ the rate of 18% per annum.
12. The appellant paid an amount of Rs. 4,15,629/- on 31.10.2012.
The payment was computed on the basis of the order passed by the
executing court quantifying the decree amount as Rs. 3,97,382/- and
included interest payable on the said amount.
13. Aggrieved, the respondent preferred a civil revision before
the High Court of Madhya Pradesh at Jabalpur, which had been allowed
by the impugned order dated 19.06.2017, inter alia holding that in terms
of Order XXI, Rule 1, sub-rules (4) and (5)4 of the Code of Civil
Procedure, 19085, the appellant having failed to give notice for deposit
of amount of Rs. 7,78,280/-, the respondent would be entitled to interest
@ the rate of 18% per annum, even on the sum of Rs. 7,78,280/-, which
was withdrawn by him, till the decision of the appeal under Section 37 of
the Act, on 02.02.2012.
14. In our
opinion, the judgment of the High Court is unsustainable
and contrary to the law. In the present case, it is accepted and admitted
position that the respondent had withdrawn amount of Rs. 7,78,280/-,
which had been deposited by the appellant, on 08.11.2001. In this
3 It appears that some payments were made by the appellants post dismissal of their
appeal under Section 37 of the Act on 02.02.2012. Therefore, the figures mentioned do
not tally with awarded amount etc.
4 Order XXI – Execution of Decrees and Orders –
1. Modes of paying money under decree. –
xx
xx
xx
(4) On any amount paid under clause (a) or clause (c) of sub-rule (1), interest, if
any, shall cease to run from the date of service of the notice referred to in sub-rule
(2).
(5) On any amount paid under clause ()b) of sub-rule (1), interest, if any, shall cease
to run from the date of such payment.
xx
xx
xx”
5 For short, ‘CPC’
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background, the question of notice in terms of sub-rule(4) to Rule 1 to
Order XXI of the CPC becomes irrelevant. In Gurpreet Singh v. Union
of India, (2006) 8 SCC 457, a five Judges Bench of this Court had
examined Rule 1 to Order XXI of the CPC, post the substitution by Act
No. 4 of 1976, and observed that the effect of the substitution is that
upon deposit of the decretal amount in the court and giving notice thereof
to the decree holder, there would be cessation of interest from the date
of notice to the decree holder of such deposit. Rule 1 to Order XXI of
the CPC also postulates payment by the judgment debtor to the decree
holder by other specified modes, namely, by postal money order, bank or
by payment evidenced in writing, in which case the interest ceases to
run from the date money is tendered. The legislative intent clearly, is
that the interest would cease on the principal amount paid by the judgment
debtor to the decree holder. Issue of notice is to enable the decree holder
to withdraw the amount deposited. Therefore, when the deposited amount
is withdrawn and gets credited in the account of the decree holder, he is
not entitled to interest on the deposited amount, even when there is failure
on the part of the judgment debtor to issue notice of deposit. In absence
of notice, the interest would cease to run from the date when the amount
is transferred/credited in the account of the decree holder. If notice is
issued, interest ceases to run from
the date of service of notice.
15. In the present case, order dated 30.10.2001 was passed in the
presence of the parties including the respondent. Thereupon, the appellant
had deposited Rs. 7,78,280/- before the executing court on 05.11.2001.
The respondent had notice of the deposit and accordingly had withdrawn
the said amount, i.e., Rs. 7,78,280/- on 08.11.2001.
16. The respondent, who appears in-person, has relied on the
judgments of this Court in P.S.L. Ramanathan Chettiar and Others.
vs. O.R.M.P.R.M. Ramanathan Chettiar, AIR 1968 SC 1047 and the
decision dated 13.02.2020 in C.A. No. 3867 of 2010, Delhi Development
Authority through its Vice Chairman vs. Bhai Sardar Singh and Sons,
to submit that the order dated 30.10.2001 being conditional and the
withdrawal of Rs. 7,78,280/- being in terms of the conditional order i.e.,
on furnishing of personal undertaking given by the respondent, the
direction for payment of interest @ the rate of 18% on Rs.7,78,280/-
would continue till the decision of the appeal under Section 37 of the Act
on 02.02.2012. It is only then that the complete title and the payment got
vested in the respondent.
NEPA LIMITED THROUGH ITS SENIOR MANAGER (LEGAL)
v. MANOJ KUMAR AGRAWAL [SANJIV KHANNA, J.]
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17. In our opinion, the submission made is fallacious and is contrary
to law. In Ramanathan (supra), the amount which was deposited by the
judgment-debtor was not withdrawn by the decree holder. The judgment
in Ramanathan (supra) in paragraph 12 thereof, specifically states that
“on principle, it appears to us that the facts of a judgment-debtor’s
depositing a sum in court to purchase peace by way of stay of
execution of the decree on terms that the decree holder can draw it
out on furnishing security, does not pass title to the money to the
decree holder. He can if he likes take the money out in terms of the
order, but so long as he does not do it, there is nothing to prevent
the judgment-debtor from taking it out by furnishing another security,
say, immovable property, if the court allows him to do so and on his
losing the appeal putting the decretal amount in court in terms of
Order XXI Rule 1 of the CPC in satisfaction of the decree”.The
aforesaid narration makes it clear that this was not a case in which the
decree holder had withdrawn the money. The penultimate paragraph of
this judgment records that the deposit made was not unconditional, and
that the decree holder was not free to withdraw the amount whenever he
likes even before the disposal of the appeal. In order to do so, he had to
give security in terms of the order, which he did not furnish. It may be
noted that this judgment is prior to the substitution
of Rule 1 to Order XXI
of the CPC by Act No. 104 of 1976 with effect from 1st February 1977.6
18. In the decision of this Court in Delhi Development Authority
(supra), the money deposited by the Delhi Development Authority in
the court was not withdrawn by the contractor Bhai Sardar Singh and
Sons. In fact, an application was filed by Bhai Sardar Singh and Sons to
permit them to withdraw the money, but they were not permitted to do
so. In this background, it was held that the deposit was not payment in
terms of Rule 1 to Order XXI of the CPC. Under the Arbitration Act,
1940, the award can be executed after the award is made Rule of the
Court. Therefore, an award under the Arbitration Act, 1940 per se was
not a decree of the Court. Under the provisions of the Act, i.e., the Act,
1996, an award is a decree of the Court and is executable, unless objections
are filed under Section 34 of the Act.7
6 Whether the amendment has the effect of substitution of the principle enunciated in
Ramanathan’s case (supra), need not be examined in this decision.
7 Post substitution by Act No.3 of 2016 with retrospective effect from 23rd October
2015, the legal position has undergone change. Section 36 as it stood before the
Amendment Act 3 of 2016 reads:
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19. In the present case, objections under Section 34 of the Act
were filed and dismissed on 28.02.2001. Thereupon, the award was
executable.
20. In Delhi Development Authority(supra), on the aspect of
liability of Delhi Development Authority to pay interest on the deposit
made in court for failure to issue written notice, it was held that it was
not necessary. The reason was that the decree holder was aware of the
deposit made by the judgment debtor. Therefore, the decree holder cannot
be permitted to urge and plead that he was served a notice of the deposit.
Accordingly, the decree holder, it was held, was not entitled to interest
post the decision, even when the judgment debtor had not served any
formal notice as required under sub-rule (4) to Rule 1 to Order XXI of
the CPC.
21. In the present case, the appellate court, on the appeal preferred
under Section 37 of the Act did grant stay, subject to the condition that
the appellant would deposit 50% of the amount. Rs. 7,78.280/- was
deposited by the appellant on 05.11.2001. The stay, therefore, only
operated for the balance amount. On the balance amount, certainly, the
appellant would be liable to pay interest @ the rate of 18% per annum
till the date of actual payment. However, on Rs.7,78,280/- paid, after
adjusting/appropriating payment due on the interest accrued, on the
balance principal amount paid to the respondent, interest would not be
payable.
22. The respondent has relied on the principle that
the interim
order merges into the final order. In Civil Appeal No. 2417 of 2022,
decided on 25.03.2022, titled State of Uttar Pradesh through Secretary
and Ors. v. Prem Chopra, this Court had referred to an earlier decision
in State of Rajasthan v. J.K.S Synthetics and Anr., (2011) 12 SCC
518, wherein it has been observed that where a stay is granted by way
of interim order on dismissal of the writ petition or vacation of the interim
order, the beneficiary of the interim order shall have to pay interest on
the amount withheld or not paid by him by virtue of the interim order.
The aforesaid observations, in fact, support the appellant and not the
respondent. The observations hold that the person liable to make payment
“36. Enforcement. – Where the time for making an application to set aside the
arbitral award under section 34 has expired, or such application having been made, it
has been refused, the award shall be enforced under the Code of Civil Procedure, 1908
(5 of 1908) in the same manner as if it were a decree of the Court.”
NEPA LIMITED THROUGH ITS SENIOR MANAGER (LEGAL)
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would have to pay the principal amount along with the interest which is
specified in the contract or the statute as he had enjoyed benefit of the
stay order. The interest is payable only on the amount that is not paid. It
will be incongruous to hold that the person would be liable to pay interest
even in respect of the amount, which has been paid and handed over to
the decree holder.
23. This Court in Raunaq International Limited v. I.V.R.
Construction Limited and Others, (1999) 1 SCC 492, has observed
that the parties, at whose instance, interim orders are obtained, should
be made accountable for the consequences of the interim order. These
observations obviously are relevant in the context of the present case to
the extent that the appellant is liable to pay interest @ the rate of 18%
per annum on the amount which was not paid to the respondent. However,
the amount which was withdrawn and paid to the respondent, no interest
liability would occur and would be payable.
24. The respondent submits that the payment of Rs. 7,78,280/-
being conditional, the respondent would have been under an obligation to
refund the said amount in case the appellant had succeeded in the appeal
under Section 37 of the Act, 1996. This argument does not impress, as in
the event the appellant had succeeded in their appeal, the entire amount
paid would have been refundable. The undertaking was not onerous,
and was to operate only if the
amount of Rs. 7,78,280/- was not refunded
by the respondent. The respondent had obviously used and utilized the
money. The appellant did not have any right on the money paid to the
respondent, who could use it in a manner and way he wanted. There
was no charge. Money is fungible and would have gotten mixed up with
the other amounts available with the respondent. Right to restitution would
not make the payment conditional. Interest has been jurisprudentially
defined as the price paid for money borrowed, or retained, or not paid to
the person to whom it is due, generally expressed as a percentage of
amount in one year. It is in the nature of the compensation allowed by
law or fixed by parties, for use or forbearance or damage for its
detention.8 In the context of the present case, interest would be the
compensation payable by the appellant to the respondent, for the retention
or deprivation of use of money. Therefore, once the money was paid to
8 Hyder Consulting (UK) Ltd. v. State of Orissa, (2015) 2 SCC 189, as quoted in
Webster’s Third New International Dictionary and Corpus Juris Secondum.
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the respondent, interest as compensation for deprivation of use of money
will not arise.9
25. In view of the aforesaid reasons, we allow the present appeal
and set aside the impugned order dated 19.06.2017, whereby the appellant
had been directed to pay interest @ the rate of 18% per annum on
Rs.14,49,300/- from the date of the award till the date of decision of the
appeal under Section 37 of the Act on 02.02.2012. We hold that the
appellant would be liable to pay interest @ the rate of 18% on
Rs.9,13,483.00/9,30,300.0010 (the exact amount to be calculated and
determined by the executing court) with effect from 08.11.2001 till the
payment was/is made.
26. Learned counsel for the appellant has submitted that they
have made over-payment and our attention is drawn to annexure (P-
12), which shows that they have paid total amount of Rs. 56,70,096/-.
We would not like to go into the said aspect, as this would relate to
computation and calculations. The appellant is entitled to invoke Section
144 of the CPC and take recourse to appropriate remedies available to
him in law, in case over-payment had been made to the respondent.
27. The appeal is allowed in the aforesaid terms.
28. Pending application(s), if any, shall stand disposed of.
9 We have not examined and decided the issue either way – whether interest would be
payable on the amount withdrawn in case withdrawal is on conditions like furnishing
bank guarantee etc.
10 We have taken the figures from the
calculations made by appellant – M/s Nepa
Limited, which is enclosed as Annexure ‘A’ and by Manoj Kumar Agarwal – respondent,
which is enclosed as Annexure ‘B’ to this judgment. As per the appellant, the principal
amount due and payable is Rs.9,13,483/-. However, as per the respondent, the principal
amount due and payable is Rs. 9,30,300/-. The difference is only Rs.17,000/-, albeit,
the correct computation would be made by the executing court.
NEPA LIMITED THROUGH ITS SENIOR MANAGER (LEGAL)
v. MANOJ KUMAR AGRAWAL [SANJIV KHANNA, J.]

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Annexure ‘A’
Sheet of Calculation of Interest by NEPA Limited Through its Senior
Manager (Legal) – Appellant

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Annexure ‘B’
Sheet of Calculation of Interest by Manoj Kumar Agrawal –
Respondent
NEPA LIMITED THROUGH ITS SENIOR MANAGER (LEGAL)
v. MANOJ KUMAR AGRAWAL [SANJIV KHANNA, J.]
Bibhuti Bhushan Bose
Appeal allowed.
(Assisted by : Preetam Bharti, LCRA)