Madan Lamba vs Jagdish Lamba And Ors.
2005 Latest Caselaw 508 Del

JUDGMENT

S.K. Agarwal, J.

1. The applicant Jagdish Lamba, has prayed for review and modification of the order dated 10.5.2002 passed by this Court in suit nos. 3367/2002 to 3374/2002 making eight awards, as the rule of the Court and seeking condensation of delay in filing the application.

2. Facts in brief are as follows: The family dispute amongst four brothers, namely, Madan Lal Lamba, Jagdish Lamba, Harish Lamba and Kailash Lamba in respect of various businesses, which were jointly carried out, was referred for decision to the arbitrators, who rendered eight awards dated 25.10.1986, distributing the assets amongst them. In terms of the awards, applicant Jagdish Lamba retired from partnership of M/s Volga restaurant with effect from 31.3.1986 and Madan Lal took over the business. In consideration thereof, Madan Lal was to pay to the applicant (Jagdish Lamba) a sum of Rs.4.38 lakhs on or before 31.12.1986, and no interest was awarded by the arbitrators. Three brothers accepted the Awards and these were made Rule of the Court in the eight suits noted above, by a common order dated 10.5.2002. However, Madan Lal did not accept the awards and filed objections, which were also dismissed on the same day.

3. Madan Lal filed an appeal against the order making eight awards as rule of the court, dismissing his objections (FAO (OS) 224/2002). The Division Bench of this Court vide orders dated 3.9.2002, did not find any merit in the appeal and the same was dismissed. The awards became final.

4. On or about 22.10.2002, applicant Jagdish Lamba filed present application seeking review of the order, along with an application for condensation of delay. It is inter alia pleaded that applicant is entitled to interest on the said amount of Rs. 4.8 lakhs which was to be paid by Madan Lal, to the applicant by 31.12.1986; and that there is delay of more than 16 years in making the payment. This is being opposed. I have heard learned counsel for the parties and have been taken through the recor

5. There is no dispute about the applicability of the Interests Act, 1978 to the arbitration proceedings. The arbitrator is fully empowered to grant pendente lite as well as future interest. Reference, in this regard may be made to the decision of the division Bench of this court in Babu Lal v. DDA and Ors 1969 DLT 35. It is also not disputed that review application for grant of interest may be appropriate remedy in the facts of the given case, as held by the Supreme Court in Bharat Coking Coal Ltd. v. Annapurna Construction . Each case depends on its own facts. In this case the relationship between the parties was not that of lender or borrower and there was no stipulation for payment of any interest. It may be noted here, that applicant Jagdish Lamba was respondent (defendant) in suit Nos.3387, 3368, 370, 3372 and 3374 of 1991, wherein the prayer was for making the awards as Rule of the Court. It is not disputed that he was duly served. The arbitrators did not grant any interest to the applicant and he did not file any objection against the award. Thus applicant was satisfied with the amount awarded to him and other properties, which would have fallen to his share. To repeat, all awards were made rule of the Court on the same day. The applicant may have been a loser but it cannot be helped. On the facts of this case, applicant cannot claim interest on the ground of delay.

6. There is another difficulty in this case. The perusal of the Order 47 Rule 1, CPC reveals that an application for review can be filed from a decree or order, from which the appeal is allowed but from which no appeal has been preferred. In other words review is maintainable only when appeal has not been filed. True that the applicant did not file any appeal but as noted above, Madan Lal had filed an appeal against the judgment dated 10.5.2002. It is also not in dispute that applicant was made respondent in the appeal and was duly served. The appeal was disposed of vide order dated 3.9.2002. The applicant neither preferred any appeal nor contested the appeal filed by others. It is not the case of the applicant that there is discovery of any new matter or evidence which, after exercise of due diligence, was not within his knowledge earlier. I find no mistake or error apparent on the face of the record or any other sufficient material to review the order.

7. Even otherwise, the application for review is barred by limitation. It was filed on 24th October, 2002 (after more than five months). The reason stated for delay in filing the application is that the applicant is aged about 80 years, suffering from old age problems and was advised bed rest. In support of this plea a copy of the medical certificate, purported to have been issued by some doctor, was filed. The original medical certificate has not been placed on record. The grounds taken for condoling the delay are too vague to be accepted.

8. For the foregoing reasons, I find no merit in the review application and the same is dismissed.