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TMI Blog2017 (10) TMI 145X X X X Extracts X X X X X X X X Extracts X X X X ..... which includes the award amount, interest for the pre-reference period, pendente lite and post-award interest. We have held that the appellant is not entitled for any interest. The appellant has already withdrawn 50% of the amount deposited by the respondent, which is in excess of the award amount exclusive of interest. Having regard to the facts and circumstances of the case, we deem it proper to direct the respondent not to recover the excess amount withdrawn by the appellant. Ordered accordingly. - Civil Appeal Nos. 15545-15546 of 2017, (Arising out of SLP (C) Nos.39038-39039 of 2012) - - - Dated:- 3-10-2017 - Mr. J. Chelameswar and Mr. S. Abdul Nazeer JJ. For the Petitioner : Mr. P. Parmeswaran, AOR For the Respondent : Mr. Shreekant N. Terdal, AOR JUDGMENT S.ABDUL NAZEER, J. 1. Leave granted. 2. The appellant, in these appeals, has challenged the legality and correctness of the judgment and order dated 29.9.2011 in A.P.O. No.213/2009 in A.P. No.35/2006 whereby the Division Bench of the High Court of Calcutta has set aside the judgment and order of the learned Single Judge in A.P. No.35/2006 dated 27.1.2009. 3. Brief facts necessary for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder Section 34 of the 1996 Act, for setting aside the said award. The said application was dismissed by the Single Judge of the High Court. The respondent assailed the order of the learned Single Judge by filing an appeal in A.P.O. No. 213 of 2009, wherein it was contended that the appellant had issued a No Claims Certificate to the respondent, thereby forfeiting his right for any claim from the respondent in regard to which the dispute could not be adjudicated by the Arbitral Tribunal. As noticed above, the Division Bench has set aside the order of the learned Single Judge and also the award and directed holding of fresh reference by the Arbitral Tribunal. 8. Learned senior counsel appearing for the appellant submits that the Division Bench failed to appreciate the question that issuance of No Claims Certificate by the appellant was not urged before the Chief Justice in the proceedings under Section 11(6) of the 1996 Act. The said plea was not even urged before the Arbitral Tribunal or before the learned Single Judge. The issue relating to existence of any live claim or the arbitrability of the dispute ought to have been urged in the proceedings under Section 11(6) of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 15,300/- 5. Claim for advance payment to the earth supplier. 1,80,000/- 54,000/- 6. Claim for remaining idle wage payment. 1,80,000/- 54,000/- 7. Claim for overhead charges, i.e., staff salary and house rent 22,000/- 15,000/- 8. Claim for blockage of capital and business loss 12,75,000/- 6,03,119/- 9. Claim for interest 1,58,23,193.16 12,44,546/- 11. Learned Single Judge had dismissed the application filed by the respondent for setting aside the said award. The issue relating to arbitrability of the dispute was not raised in the proceeding under Section 11(6) of the 1996 Act. One of the issues which can be considered by the Chief Justice under this provision is whether the claim is a live claim. This issue can also be kept open to be decided by the Arbitral Tribunal provided the said plea is urged before the Chief Justice. [(See : National Insurance Company Limited vs. Boghara Pol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 14. Therefore, the Division Bench was not justified while considering the arbitrability of the disputes for the first time, particularly, when the respondent has not urged the issue relating to No Claims Certificate before the Chief Justice, Arbitral Tribunal or before the learned Single Judge. 15. The next question for consideration is whether the Arbitral Tribunal was justified in awarding interest on the delayed payments in favour of the appellant. The total interest awarded by the Arbitral Tribunal is ₹ 12,44,546/- which includes interest for the pre-reference period and also pendente lite interest. Section 31(7)(a) of the 1996 Act provides for payment of interest, as under: 31(7)(a) - Unless otherwise agreed by the parties, where and insofar as an arbitral award is for the payment of money, the arbitral tribunal may include in the sum for which the award is made interest, at such rate as it deems reasonable, on the whole or any part of the money, for the whole or any part of the period between the date on which the cause of action arose and the date on which the award is made. In this Section, a specific provision has been created, whereby if the agree ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erest. However, now a specific provision has been created under Section 31(7)(a) of the 1996 Act. As per this Section, if the agreement bars payment of interest, the Arbitrator cannot award interest from the date of cause of action till the date of award. The Court has observed that in regard to the provision in the 1996 Act, the difference between pre-reference period and the pendente lite interest has disappeared insofar as award of interest by the Arbitrator is concerned. Section 31(7)(a) recognizes only two periods, i.e. pre-award and post-award period. 20. In Sree Kamatchi Amman Constructions vs. Divisional Railway Manager (Works), Palghat and Others (2010) 8 SCC 767, this Court was dealing with an identical case wherein Clause 16 of the GCC of Railways had required interpretation. This is the same Clause 16(2) of the GCC prohibiting grant of interest which is also applicable in the facts of the present case. The Court held that where the parties had agreed that the interest shall not be payable, the Arbitral Tribunal cannot award interest between the date on which the cause of action arose to the date of the award. 21. In Union of India vs. Bright Power Project ..... X X X X Extracts X X X X X X X X Extracts X X X X
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