Delhi High Court
Purna Nand vs East Delhi Municipal Corporation ... on 21 July, 2016
$~4
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: July 21, 2016
+ FAO 33/2016
PURNA NAND ..... Appellant
Through: Mr. Rajeev Kumar & Mr. Ajeet Singh
Verma, Advocates
Versus
EAST DELHI MUNICIPAL CORPORATION & ANR.
..... Respondents
Through: Mr. Arvind Kumar Sharma, Standing
Counsel for E.D.M.C.
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
ORAL
C.M.No. 1894/2016 (Under Section 5 of The Limitation Act)
There is delay of 27 days in filing the accompanying appeal.
Learned counsel for appellant submits that due to his bona fide
mistake, the appeal could not be filed in time and delay is not intentional.
Notice.
Mr. Arvind Kumar Sharma, Standing Counsel for respondent-
E.D.M.C, accepts notice of the application.
Upon hearing, this Court finds that sufficient cause is shown for
the delay occasioned. For the reasons stated in the application, this
application is allowed and delay of 27 days' in filing the accompanying
appeal is condoned.
Application is disposed of.
FAO 33/2016
At the request of counsel representing both the sides, this appeal is
taken up for final hearing.
Impugned order of 5th August, 2015 dismisses appellant's
objections on merits by Award of 22nd April, 2014.
Learned counsel for appellant submits that the letter of 21 st April,
2008 seeking revision of wages to the tune of `75,000/- has infact been
not disputed by the respondent and so, exclusion of this letter by trial
court by observing that it does not bear any date or signatures, is a patent
illegality. Attention of this Court is drawn to Claim No.1 made in the
claim petition and corresponding reply thereto by respondents, to show
that the stand of respondents qua this letter is that supporting documents
have not been furnished by appellant.
It is pointed out by learned counsel for appellant that there was no
requirement of furnishing any documents for the reason that the revision
of wages was sought as per the rates issued by the Economic Advisory of
Government of India, Ministry of Industries under Clause 10 (C) of the
Agreement. It is also submitted that the number of labour employed by
appellant is also reflected in the running bills issued by the respondents.
On the face of it, this contention does not appeal to reason and even
the running bills are not on record to indicate as to how many labourers
were employed by the appellant. Thus, this claim has been rightly
negated.
So far as the interest on delayed payment on running as well as
final bills is concerned, appellant has spelt out the period of delay and the
interest claimed thereon in the claim petition. In the reply to the claim
petition, the stand of the respondent is that it is a matter of record but
there is no provision for payment of interest under the Agreement
between the parties. The trial court in the impugned order notes that
appellant had failed to issue notice to Commissioner, MCD to claim the
interest on the delayed payment.
The stand of respondent of there being no agreement to claim
interest on the delayed payment stands negated by the Apex Court in
Secretary, Irrigation Department, Government of Orissa & ors. Vs. G.C.
Roy AIR 1992 SC 732 by declaring as under:-
"45. Where the agreement between the parties does not
prohibit grant of interest and where a party claims interest and
that dispute (along with the claim for principal amount or
independently) is referred to the arbitrator, he shall have the
power to award interest pendente lite. This is for the reason
that in such a case it must be presumed that interest was an
implied term of the agreement between the parties and
therefore when the parties refer all their disputes -- or refer the
dispute as to interest as such -- to the arbitrator, he shall have
the power to award interest. This does not mean that in every
case the arbitrator should necessarily award interest pendente
lite. It is a matter within his discretion to be exercised in the
light of all the facts and circumstances of the case, keeping the
ends of justice in view."
Learned counsel for appellant submits that the agreement does not
provide for writing to Commissioner of MCD to claim interest on the
delayed payment and the letter has to be written by the appellant to the
concerned Superintendent Engineer of MCD and this course petitioner
had adopted. Attention of this Court is drawn to a letter of 20th July, 2008
(Annexure E-collly) written by petitioner to the concerned Superintendent
Engineer to claim interest on the delayed payment. It is pointed out by
learned counsel for the petitioner that on the next day, petitioner had also
written a letter to the Chief Engineer as also to the Commissioner, MCD
on 29th December, 2008 to seek interest on the delayed payment and there
was no response to these letters. Learned counsel for appellant states that
the delay ranges from 76 days to 1704 days.
A bare perusal of the Award reveals that interest on delayed
payment has been declined to appellant by observing that there is no
provision to pay the interest even if there is some delay.
After having heard learned counsel for the parties at length, on
perusal of the impugned order, the material on record and the decision
cited, I find that the objection of appellant to claim enhanced wages has
been rightly rejected by the learned Arbitrator and on this account, the
impugned order cannot be faulted with. However, the objection of
appellant to claim interest on the delayed payment has not been dealt with
by the Arbitrator and the trial court in the right perspective and in view of
the dictum of the Supreme Court in G.C.Roy (supra), appellant is held
entitled to the interest on the delayed payment. The Award and the
impugned order of 5th August, 2015 denying payment of interest on
delayed payment is a patent illegality, which vitiates it to this extent only.
The objection of appellant to claim interest on delayed payment is
allowed and the respondents are directed to compute the interest @8%
p.a. on the delayed payment and to pay it to the appellant within a period
of twelve weeks.
With aforesaid directions, this appeal is disposed of.
(SUNIL GAUR)
JUDGE
JULY 21, 2016
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