Prakash Sharma (Deceased) Thr. ... vs Delhi Development Authority
2000 Latest Caselaw 1004 Del

ORDER

Devinder Gupta, J.

1. Facts in brief giving rise to this appeal preferred against the order passed by learned Single Judge on 24.12.1999, are that with respect to the work of construction of 192 MIG DUs in Pocket A (P), Pitampura, Group III contract was awarded to the claimant. Certain disputes arose amongst the parties. To adjudicate upon the claim of the claimant and the counter claim of the respondent. Shri G.R. Hingorani was appointed as the sole arbitrator by the Engineer Member of the Delhi Development Authority on 27.3.1985. On 20.3.1988 the Arbitrator made and published his award A clarification was also made by the Arbitrator to the award on 26.4.1988. The Award was filed in this Court. The claimant filed objections to the award, which later on were withdrawn by him. No objection was raised by the respondent. Accord- ingly, on 15.12.1988 learned Single Judge made the award rule of court and thus a decree in terms of the award was passed in Suit No. 692-A/98.

2. On 20.4.1999 a sum of Rs. 2,49,236/- was paid by the respondent to the claimant. On 21.5.1999 the claimant filed an application seeking to execute the decree for the remaining amount. The said application was registered as Execution Case No. 236/99. The claimant after adjusting the amount of Rs. 2,49,236/- sought recovery of an amount of Rs. 6,45,023.62 along with interest calculated up to 15.5.1999 as detailed below:-

      a)   Awarded amount          Rs. 2,75,448.00
   
   b)   Interest at the 
          rate of 18% from 
          20.9.84 to 14.12.98      Rs. 7,06,524.12
   c)   Interest at the 
          rate of 15% from 
          15.12.98 to 15.5.99      Rs. 17,215.50
       Total                     Rs. 9,99,187.62
      Less on account of 
      counter claim of DDA 
                                   Rs. 1,04,920.00
                                   Rs. 8,94,259.62
       Less part payment made 
       by DDA on 20.4.99           Rs. 2,49,236.00
       Net amount payable :        Rs. 6,45,023.62
 

3. The judgment debtor raised an objection to the claimant's claim stating that on payment of Rs. 2,49,236/- and handing over of Vikas Patra of Rs. 1,00,000/- to the legal heirs of the claimant no amount is due and payable.

4. Learned Single Judge considered the respective submissions made on behalf of the claimants and the respondent. Upholding the contention of learned counsel for the respondent that the arbitrator awarded interest on the amount due and payable to the claimant after adjustment of the counter claim of the respondent, therefore, the respondent had rightly calculated the amount and no amount is now due and payable to the claimant. As regards the security amount, learned Single Judge directed the parties to lead evidence on affidavits on the question that whether any interest would or would not be payable. Feeling aggrieved the appellants have filed this appeal. We have heard learned counsel for the parties and been taken through the record.

5. Learned Single Judge observed that the claims of the claimant were under 18 heads. Claims in respect of items 3, 4, 5, 6, 7, 8, 10, 11, 12, 13, 16 and 17 were disallowed and against the remaining claims, following amounts were awarded:- "Claim No. 1 - Rs. 60,783/-

     Claim No. 2    -    Refund of security of 
                         deposit of Rs. 1 lakh 
                         subject to recovery of 
                         any amount awarded 
                         against the DDA's counter 
                         claim.
     Claim No. 9    -    Rs. 39,665/- (Rs. 33,065/- 
                         corrected vide order dated 
                         26th April, 1988 passed by 
                         the arbitrator) and Rs. 6,000/-
     Claim No. 14   -    Rs. 50,000/-
     Claim No. 15   -    Rs. 25,000/-."
 

6. Thus in all a sum of Rs. 1,75,448/- was awarded in favour of the claimant besides refund of security deposit of Rs. 1,00,000/-.

7. Against claim No. 18 pertaining to interest, learned Arbitrator held the claimant entitled to simple interest at the rate of 18% p.a. as under:-

"Claim No. 18 for pendente lite interest

The claimant is entitled to payment of simple interest at 18% per annum from 20.9.1984 upto the date of payment or decree whichever is earlier, on the amounts awarded against claims 1 to 17 reduced by the amounts awarded against the counter claim of D.D.A."

Against the counter claim of DDA (respondent), only claims No. 4 and 6 were allowed as follows:- "Claim No. 5 - Rs. 60,928/- Claim No. 6 - Rs. 44,000/- Total :- - Rs. 1,04,928/-"

8. The respondent had neither laid any claim for interest on its counter claims nor any was awarded by the arbitrator.

9. Learned Single Judge while interpreting the award with reference to what the arbitrator had said as regards claim No. 18 that pendente lite interest is payable to the claimant at the rate of 18% p.a. from 20.9.1984 to the date of payment only on the amount remaining due after making ad- justment of the counter claim awarded to D.D.A. Thus deducting a sum of Rs. 1,04,928/-, learned Single Judge held the claimant entitled to a sum of Rs. 70,520/- besides refund of the security amount of Rs. 1,00,000/- and inter- est calculated from 20.9.1984 to 14.12.1998 at the rate of 18% p.a. and from 15.12.1998 to 9.4.1999 at the rate of 15% p.a. on Rs. 70,520/-. On working out the entire amount, it was held that no amount was due since out of a total amount of Rs. 2,54,322/- found due and payable, a sum of Rs.2,49,000/- had already been paid and a sum of Rs. 5,086/- had been deducted towards tax at source. As no amount was held to be due and payable to the claimant except refund of the security, decree was certified as partly satisfied. The appellants (legal heirs of the deceased claimant) were asked to collect the security amount without prejudice to the dispute. The only dispute kept pending by the impugned order is "whether the respondent has unreasonably withheld the security deposit given in the shape of Vikas Patras and if so to what effect?"

10. In our view, learned Single Judge has not correctly interpreted the decree and was not justified in only reading the award under claim No. 18, without reference to the other parts of the award. Under claim No. 2 the Arbitrator held the security deposit of Rs. 1,00,000/- refundable to the claimant subject to recovery of any amounts that are awarded to D.D.A's towards its counter claim. In other words the award held the security amount of Rs. 1,00,000/- refundable to the claimant but only after adjusting the amounts of counter claim awarded in favour of D.D.A. had been made. Balance, if any, out of the security deposit was to be refunded to the claimant. As the award of the arbitrator had been made rule of court without any modification, the award had to be executed as such. The executing court cannot go behind the decree. The award stipulates adjustment of the amounts that are awarded in favour of the respondent's towards its counter claim (Rs.1,04,928/-) only from out of the security deposit of Rs.1,00,000/-. The security deposit was in the shape of Vikas Patra. Thus the respondent was entitled to have the adjustment of the said amount only from out of the security deposit. Learned Single Judge ought to have directed the adjustment in the manner, as provided in the award and not in any other manner.

11. It was the claimant who had come to the Court to seek enforcement of the decree for the claims awarded in his favour. The respondent/D.D.A. had not come forward by filing a separate execution for its counter claim. Had the respondent come forward for recovery of its counter claim, the Court was required to follow the principle laid down under Order 21 Rule 19 C.P.C. by allowing an equitable set off. Rule 19 of Order 21 C.P.C. is applicable when there are two separate decrees in two different suits for payment of sums of money passed between the same parties and capable of execution at the same time. In other words Rule 19 of Order 21 C.P.C. is applicable where there is a decree under which two parties are to recover sums of money from each other. It reads:-

"Where application is made to a Court for the execution of a decree under which two parties are entitled to recover sums of money from each other, then-

   (a) if the two sums are equal, satisfaction for both shall be    entered upon the decree; and
 

   (b) if the two sums are unequal, execution may be taken out only    by the party entitled to the larger sum and for so much only as    remains after deducting the smaller sum, and satisfaction for the    smaller sum shall be entered upon the decree."  
 

12. Since the respondent had not come forward to execute its counter claim, it could not, of its own, adjust the amount in any manner it liked. It could not have gone beyond the terms of the decree (award), which allowed it to adjust its counter claim only from out of the security deposit of Rs. 1,00,000/-. Security deposit being in the shape of Vikas Patra, naturally would have earned interest. The entire amount payable to the respondent for its counter claim would be adjustable from out of the security deposit along with interest accrued thereon. Thus the impugned order passed by learned Single Judge to that extent cannot be sustained in law.

13. Learned Single Judge was also not justified in framing an issue on the question whether the respondent had unreasonably withheld the security amount and that whether the claimant would be entitled to interest thereon. The Arbitrator in the award had already allowed interest on the claimant's claim No. 2. Therefore, the said part of the order is also not sustainable in law.

14. The respondent is entitled to adjust its amount of counter claim, first from out of the security amount along with interest accrued there upon. What surplus would becomes available would be added to the remaining amount payable to the claimant. A sum of Rs. 1,75,448/- was held to be due and payable to the claimant. On this amount interest as per the award and decree will be payable to the appellants. After adjusting the amount paid by the respondent, the balance amount is yet due and payable to the appellants.

15. Accordingly, we allow the appeal, set aside the impugned order and hold the appellants entitled to the following amounts:-

(a) Amount payable to the claimant. Rs.1,75,448/-

(b) Interest on Rs. 1,75,448/-

@ 18% p.a. from 20.9.84 to 14.12.98 Rs. 4,94,301.90

(c) Interest on Rs. 1,75,448/-

@ 15% p.a. from 15.5.98 to 20.4.99 Rs. 24,514.65

(d) Total:-(a) + (b) + (c) Rs. 6,94,264.55

(e) Less amount paid by DDA on 20.4.99 Rs.2,49,230.00

(f) Balance amount payable: Rs. 4,45,028.55

(g) Balance amount, if any, out of security amount plus interest accrued thereon after adjusting the counter claim of the respondent i.e. Rs. 1,04,928.00 Grand total:- (f) + (g):-

16. Learned Single Judge will now proceed with the execution to have the above amounts recovered in accordance with law.