Wazir Chand Bhatia vs Chief Engineer
2021 Latest Caselaw 896 j&K

                                                                    Serial No. 08




       HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                       AT JAMMU


                                                       CR No. 71/2010
                                                       IA No. 83/2010


Wazir Chand Bhatia                               ...Appellant(s)/Petitioner(s)

                      Through:- Mr. Vijay Gupta, Advocate

                             v/s

Chief Engineer, Udhampur                                      ...Respondent(s)

                      Through:- Mr. Vishal Sharma, ASGI


Coram:       HON'BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE

                                     ORDER

1. Order dated 30.04.2010 (for brevity, 'impugned order') passed by the

court of Principal District Judge Jammu (for brevity, 'court below') passed

in the Execution Petition filed by the petition is being questioned in the

instant revision petition.

2. The facts as appearing the instant petition would reveal that an

arbitration award was passed on 13.04.1992 in favour of the petitioner herein

and same was made rule of the court and a decree drawn thereof on

19.05.2000. The award and decree came to be challenged before this Court

in CIMA No. 140/2000 by the respondent herein. The award and decree

came to be set-aside by this Court on 06.07.2005 and consequently,

appointed retired Justice G.D. Sharma as arbitrator.

3. On 08.09.2008, this Court upon filing of an application by the

respondent herein directed Engineer in Chief to appoint a fresh arbitrator in

terms of the contract agreement. The petitioner herein assailed both the

orders of this Court before the Apex Court by filing SLP which came to be

allowed and disposed of in terms of order dated 20.11.2009 setting aside

both the orders of this Court dated 06.07.2005 and 08.09.2008, upholding

the order of the Court below dated 19.05.2000.

4. After the order of the Apex Court dated 20.11.2009 an Execution

Petition came to be filed by the petitioner herein before Principal District

Judge, Jammu on 27.12.2009 wherein the impugned order dated 30.04.2010

was passed.

5. The petitioner questions the impugned order inter-alia on the grounds

that the order is against the decree of the Court, in that, the interest had been

allowed/awarded as a separate claim and that same could not have been

treated as part of the principal amount awarded under the decree and that the

findings in this regard recorded by the court below is bad in law divesting

the petitioner of the amount of interest due to him and that the court below

did not appreciate the law cited by the petitioner and proceeded to the

impugned order arbitrarily.

Heard learned counsel for the parties and perused the record.

6. Record tends to show that the petitioner-decree holder herein after

passing of the order by the Apex Court dated 20.11.2009 in SLP filed by

him maintained an Execution Petition before the court below laying a claim

to an amount of Rs. 55,75,164.10 and sought a recovery of the same through

the mode of attachment and the sale of the properties of the judgment debtor

on the ground that the judgment debtor failed to make payment under the

decree. The amount claimed by the decree holder-petitioner herein had been

calculated on the basis of decreetal amount of Rs. 3,13,987.00, being

payable along with interest @ 18 per cent per annum from the date of final

bill paid i.e. 15.07.1989 till realization of the amount.

7. Record further tends to show that the judgment debtor respondent

herein in the objections filed in opposition to the Execution Petition resisted

the same on the ground that the Execution Petition has been filed prior to the

expiry of period of three months as provided under Section 82 of CPC and

that the calculation in respect of amount recoverable under the decree had

been only Rs. 14,72,680.00 with interest calculated and included up to

08.01.2010.

8. In the objections, it had further been pleaded by the judgment debtor-

respondent herein that an amount of Rs. 9,27000.00 had been deposited by

the judgment debtor before this Court in terms of order dated 17.04.2003,

which included interest calculated upto 19.05.2005 and that the said amount

had been later withdrawn by the judgment debtor when the decree was set-

aside. In essence, the calculation made by the decree holder-petitioner herein

were disputed by the judgment debtor-respondent herein in the objections.

9. The record further tends to show that the court below while

considering the Execution Petition crystallized the controversy qua the

amount recoverable under the decree and upon considering the matter in its

entirety, the court below found that the arbitral award was passed on

13.04.1992 for an amount of Rs. 3,13,987.00 under 22 Heads besides

interest in favour of the decree holder-petitioner herein and that the award

was made rule of the court and decree was drawn on 19.05.2000 and it

emerged from the perusal of the decree sheet that interest figuring at sr. No.

11 is component of the decreetal amount having been awarded at the rate of

18 per cent per annum on all the awarded amount from the date of final bill

paid till the date of actual payment or the date of courts decree whichever is

earlier. The court below also noticed that the date of final bill paid is

15.07.1989.

10. Perusal of the award tends to show that interest has been allowed at a

uniform rate of 18% on all the awarded amounts from the date of actual

payment or date of decree which is earlier. The decree passed in terms

whereof award was made rule of the court has been set-aside upon an appeal

to this Court followed by a modification order and then followed by the

judgment/order of the Apex Court after the same were challenged by the

petitioner before the Apex Court resultantly, confirming the decree and

merging the said decree with the order/judgment of the Apex Court dated

20.11.2009 which date in fact became computable for the purpose of accrual

of interest. Admittedly, the interest allowed at a uniform rate of 18 per cent

per annum on all the awarded amount covered the period before, during and

after the arbitration proceedings.

11. Perusal of the record further tends to show that the award nowhere

provide for grant of future interest by way of a separate direction. The court

below while making the award as rule of the court admittedly has not

allowed any future interest and the interest thus, would be admissible till

20.11.2009 when the degree got merged into order/judgment passed by the

Apex Court. The claim lodged by the petitioner thus, is misconceived and

the computation of amount is not in tune with the terms of the decree.

12. The impugned order passed by the court below has been rightly

passed and does not, as such, call for any interference. Resultantly, the

petition fails and is dismissed.

(JAVED IQBAL WANI) JUDGE

Jammu 16.08.2021 SUNIL-I Whether the order is speaking? : Yes/No Whether the order is reportable? : Yes/No