Delhi High Court
M/S. Jagan Nath Ashok Kumar vs Delhi Development Authority on 16 September, 2009
Author: Vikramajit Sen
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ EFA(OS) No.1/2006
M/S. JAGAN NATH ASHOK KUMAR ..... Appellant
Through: Mr. Ram Kumar Gupta,
Partner of Appellant
Firm
versus
DELHI DEVELOPMENT AUTHORITY ....Respondent
Through: Ms. Anusuya Salwan,
Adv.
% Date of Hearing : August 19, 2009
Date of Decision : September 16, 2009
CORAM:
* HON'BLE MR. JUSTICE VIKRAMAJIT SEN
HON'BLE MR. JUSTICE V.K. JAIN
1. Whether reporters of local papers may be
allowed to see the Judgment? No
2. To be referred to the Reporter or not? No
3. Whether the Judgment should be reported
in the Digest? No
VIKRAMAJIT SEN, J.
1. The present Appeal impugns the Order dated 21.11.2005
passed by the Execution Court, declining the prayer of the
present Appellant seeking pre-suit and pendente lite interest on
the Arbitral Award published by the learned Arbitrator on
25.9.1997. This was pursuant to the Order dated 19.5.1997
passed by the Division Bench of this Court remanding the
matter for reconsideration. The plea of the Appellant before the
Execution Court and also before us has been that the Award
dated 25.9.1997 is only a part of the claim earlier awarded by
the learned Arbitrator vide Order dated 22.3.1991. Thus, the
two Awards had merged and that the Order dated 7.7.1994
whereby the learned Single Judge was pleased to allow the pre-
suit and pendente lite interest at the rate of 12 per cent per
annum from the date of the Award would apply on the
subsequent Award dated 25.9.1997 as well.
2. Mr. Ram Kumar Gupta, Partner of the Appellant Firm, who
has appeared in person, has sought to urge that vide Award
dated 25.9.1997, the learned Arbitrator awarded a sum of
Rupees 3,19,333/- as pre-suit and pendente lite interest which
would have, in fact, been payable on 22.3.1991 and thus making
him entitled to interest thereon. Reliance has been placed on a
decision of the Division Bench of this Hon'ble Court in DDA -vs-
Saraswati Construction Company, 114(2004) DLT 385(DB)
where it has been held that the interest awarded in lieu of
compensation or damages become principal amount for which
the party would be entitled for interest on account of it being
withheld by opposite party.
3. The learned counsel for the Respondent has stated that
pursuant to the Order dated 7.7.1994, wherein the learned
Single Judge made the initial Award rule of Court, the Appellant
has been paid the entire decreetal amount of Rupees 5,18,714/-
on 9.12.1994 inclusive of up-to-date interest. The reference
made to the learned Arbitrator by the Division Bench vide Order
dated 19.5.1997 was limited to specific issue of determination of
pre-suit and pendente lite interest. The Arbitrator vide its Award
dated 25.9.1997 awarded Rupees 1,65,248/- as pre-suit interest
on Rupees 3,57,295/- at the rate of 15 per cent per annum and
Rupees 37,963/- as pendente lite interest on the same Award. A
Decree was passed with modification in the Award on 5.2.2001
and this amount as per that Decree has been calculated and has
been paid. In light of these facts the learned counsel for the
Respondent has urged that the subsequent reference to the
learned Arbitrator by the Division Bench of this Court was, in
fact, for determination of pre-suit and pendente lite interest
accruing to the Appellant and thus the demand for pendente lite
and pre-suit interest on this amount now does not arise at all.
4. We find ourselves in agreement with the learned counsel
for the Respondent and it is our considered view that the ratio
of Saraswati Construction is not attracted in the present case
as in that case the Award that got merged in the original Award
was the compensation under a Clause of the Agreement. In the
present case, the subsequent Award was in reference to the
pendente lite and pre-suit interest in which case the merger of
the two Awards for levying interest cannot be allowed.
5. Section 47 of the Code of Civil Procedure, 1908 contains
the salutary principle that the Execution Court cannot go behind
the Decree passed by the Court of competent jurisdiction. The
scope of interference by the Executing Court in a Decree passed
by a competent court has been recounted in Darshan Singh -vs-
State of Punjab, (2007) 14 SCC 262, paragraph 16 and 17 of
which are reproduced below:-
16. This Court held in Vasudev Dhanjibhai Modi -vs-
Rajabhai Abdul Rehman, (1970) 1 SCC 670 that the
executing court cannot go behind the decree unless it
is shown that it was passed by a court inherently
lacking jurisdiction and thus was a nullity. The
aforesaid decision of this Court squarely applies to the
facts of the present case. This is not a case in which the
decree on the face of it was shown to be without
jurisdiction. It is not the case of the respondent that the
court which passed the decree was lacking inherent
jurisdiction to pass such a decree.
17. This Court in Bhawarlal Bhandari -vs- Universal
Heavy Mechanical Lifting Enterprises, (1999) 1 SCC
558 and in C. Gangacharan -vs- C. Narayanan, (2000) 1
SCC 459 has also taken the same view that the
executing court cannot go behind the decree of a court
of competent jurisdiction except in the decrees void ab
initio without jurisdiction.
6. In light of the facts of the case and above-mentioned
exposition of the law by the Apex Court, we hold that no
grounds have been made out by the Appellant who essentially
would like us to go behind a Decree which he has already
accepted and benefitted from to the tune of Rupees 5,18,714/-.
7. Appeal stands dismissed. Parties to bear their own costs.
( VIKRAMAJIT SEN )
JUDGE
September 16, 2009 ( V.K. JAIN )
tp JUDGE
