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TMI Blog2017 (12) TMI 1846X X X X Extracts X X X X X X X X Extracts X X X X ..... tage in accordance with law. If not raised or/and given up with consent, the party would be precluded from raising such plea at a later stage of the proceedings on the principle of waiver. If permitted to raise, it causes prejudice to other party. In our opinion, this principle applies to this case - the Appellant is otherwise not entitled to raise the plea on yet another ground. It is not in dispute that the Appellant's application filed Under Section 34 of the Act was partly allowed by the Single Judge only to the extent of two claims regarding award of interest. In other words, the application suffered dismissal substantially on all other claims except two claims mentioned above. However, despite suffering substantial dismissal, the Appellant did not file any appeal to challenge the part dismissal of their application. The grant of award of interest on arbitrable claims by the Arbitral Tribunal is not inherently illegal or against any public policy or per se bad in law or beyond the powers of the Arbitral Tribunal. In other words, it is permissible to award interest in arbitrable claims by the Arbitral Tribunal - Section 31(7) (a) and (b) of the Act empowers the Arbitral ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal in terms of Clause 56(1) and to make a reference to the Arbitral Tribunal for deciding the disputes which had arisen between the parties. 6. The High Court, by order dated 27.07.2001, with consent of both the parties allowed Respondent No. 1's application and referred the various claims (1 to 17) made by the Respondent (claimant) against the Appellant for their adjudication by the Arbitral Tribunal, which consisted of three Arbitrators (Railway Officials). The order making the reference to the Arbitral Tribunal reads as under: There is no dispute that claims Nos. 1 to 13 which are mentioned in the letter dated 19th August, 1999, Exhibit B to the Application, are already referred for arbitration to Shri B.B. Verma, Presiding Joint Arbitrator FA CAO (I), Churchgate and two other Arbitrators, (i) Shri Arunendra Kumar, Jt. Arbitrator CRSE, Churchgate and (ii) Shri S.K. Kulshrestha, Jt. Arbitrator CE, N.F. Railway. 2. By Consent, claim at Sr. No. 16 (Claim No. 2.1) and at Sr. No. 17 (Claim No. 2.2) are also referred for arbitration to the same Arbitrators who shall decide these claims along with claim Nos. 1 to 15. They shall also be free to decide pre-re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... challenge to other claims including award of interest on such claims were concerned, the Single Judge rejected the Appellant's all objections and upheld the award in totality for all purposes. 10. Respondent No. 1 (claimant), felt aggrieved against that part of the order of the Single Judge which interfered in part in the arbitral award, filed appeal before the Division Bench. So far as the Appellant-Union of India was concerned, they did not file any appeal against that part of the order of the Single Judge which had rejected substantially their application filed Under Section 34 of the Act. In this view of the matter, the award to that extent became final. 11. By impugned judgment, the Division Bench of the High Court allowed Respondent No. 1's appeal and set aside the order of the Single Judge. It was held that no ground Under Section 34 of the Act had been made out by the Union of India to modify the award to the extent of awarding interest on the claim. In other words, in the opinion of Division Bench, the ground on which the limited interference was made by the Single Judge for setting aside a part of the Award in relation to award of interest from a particular ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... foundation and finding by any Court on such plea. 19. Having heard learned Counsel for the parties and on perusal of the record of the case, we are inclined to accept the argument of learned Counsel for Respondent No. 1 as, in our view, it has a force and hence deserves acceptance. 20. It is not in dispute that the Appellant did not raise the plea based on Clause 13(3) of the GCC against Respondent No. 1 at any stage of the proceedings either in their reply filed before the Arbitral Tribunal or/and in submissions except raising it, for the first time, before this Court in this appeal. 21. On the other hand, we find that in Section 11(5) proceedings, the Appellant did not raise this objection in their reply and instead gave their express consent to refer the issue of award of interest payable on various claims (1 to 17) to Arbitral Tribunal considering the said claim to be arbitrable under the contract. 22. In our opinion, the Appellant could have registered their objection before the Single Judge at the time of making a reference to the Arbitral Tribunal by pointing out Clause 13(3) of GCC or could have reserved their right to raise such objection before the Arbitral T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ally on all other claims except two claims mentioned above. However, despite suffering substantial dismissal, the Appellant did not file any appeal to challenge the part dismissal of their application. 30. In this view of the matter, in our view, the order of the Single Judge insofar as it resulted in dismissal of the Appellant's application became final and attained finality. In order to keep the issue alive, the Appellant was under obligation to file regular appeal before the Division Bench against that part of the Single Judge's order by which their application Under Section 34 of the Act in relation to all other claims had been dismissed. It was only then in the event of dismissal of the appeal, the issues raised therein could have been pursued in appeal to this Court Under Article 136 of the Constitution and that too only on the grounds raised therein and decided against the Appellant. It was, however, not done by the Appellant. 31. In our opinion, therefore, this is yet another infirmity which renders the appeal devoid of any merit. 32. In our considered view, the grant of award of interest on arbitrable claims by the Arbitral Tribunal is not inherently illeg ..... X X X X Extracts X X X X X X X X Extracts X X X X
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