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Sunday, February 7, 2016

Reverse of the order - liable to be refunded with interest at 12% per annum from the date of withdrawal till the payment = “ In our view, the Arbitral Tribunal went beyond the scope of the contract and it clearly exceeded its jurisdiction. We, therefore, set aside the award insofar as it allows Claim No. 8. Consequently, the appeal stands allowed. At the interim stage, this Court had directed the Appellant to deposit a sum of Rs.70,65,039/- which upon deposit was withdrawn by the Respondent on furnishing a bank guarantee. The appellant is entitled to encash that bank guarantee to recover the sum that was deposited. No order as to costs.”= Interlocutory Application No.4 of 2015 was thereafter preferred by the appellant contending that the decretal amount was withdrawn by the respondent in December 2012 whereas the appeal was allowed in favour of the appellant on 24.4.2015 and that the respondent had reaped the benefits of decretal amount for more than three years. It was submitted that the Arbitral Tribunal had awarded interest @ 12% per annum against the appellant and that the respondent be directed to pay interest @ 12% per annum on the amount of Rs.70,65,039/- from the date of withdrawal till the date of actual payment.=The appellant is right in its submission that the Arbitral Tribunal in its award dated 09.01.2012 had awarded interest at the rate of 12% per annum on amounts awarded under various claims. Matter in issue in Civil Appeal No.6158 of 2013 pertained only to Claim No.8. In the fitness of things, the appellant is certainly entitled to interest at the same rate on the amount which was enjoyed by the respondent. The entitlement of the respondent to this amount stood negated by judgment and order dated 24.04.2015 and as such the respondent must pay back the amount with interest at the same rate. We therefore, direct that the respondent shall pay interest at the rate of 12% per annum on the amount in question namely Rs.70,65,039/- from the date of withdrawal till the amount was made over by the respondent to the appellant. Such payment shall be made within six weeks from today. Interlocutory Application Nos.4 and 5 stand disposed of accordingly

                                                              Non-Reportable

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                               I.A. Nos. 4 & 5

                                     IN

                        CIVIL APPEAL NO. 6158 OF 2013


NATIONAL HIGHWAYS AUTHORITY OF INDIA       ……Applicant/

                                       Appellant
                                   Versus

M/S NCC- KNR (JV)                                                 ….
Respondent


                                  O R  D E R


Uday Umesh Lalit J.


1.    These Interlocutory Applications arise out of Civil Appeal No.6158  of
2013 which was disposed of by this Court on 24.4.2015. While  allowing  said
appeal preferred by National Highways  Authority  of  India,  the  appellant
herein, it was directed by this Court as under:-
“  In our view, the Arbitral Tribunal went beyond the scope of the  contract
and it clearly exceeded its  jurisdiction.  We,  therefore,  set  aside  the
award insofar as it allows Claim No.  8.  Consequently,  the  appeal  stands
allowed. At the interim stage, this Court  had  directed  the  Appellant  to
deposit a sum of Rs.70,65,039/- which upon  deposit  was  withdrawn  by  the
Respondent on furnishing a bank guarantee.  The  appellant  is  entitled  to
encash that bank guarantee to recover the sum that was deposited.  No  order
as to costs.”


2.    Soon thereafter Interlocutory Application No.3 of  2015 was  filed  on
behalf of the respondent, which was disposed of by this Court by  its  order
dated 8.5.2015, which order was to the following effect:-
“Mr. Amit George, leaned  counsel  appearing  for  the  applicant-respondent
shall pay to the petitioner,  National  Highways  Authority  of  India  and,
therefore,  the  bank  guarantee  in  question  need  not  be  encashed.  He
undertakes that the respondent shall  make  the  payment  to  the  applicant
within four weeks from today. The said amount shall be  paid  by  way  of  a
bank draft drawn on a nationalized bank. If the amount is  not  paid  within
the stipulated period, the bank guarantee shall  be  encashed  forthwith  by
the petitioner.

I.A. No. 3 of 2015 stands disposed of accordingly.”


3.    Accordingly, the respondent made over the amount  in  question  within
the  time  stipulated  under  the  order  dated  08.05.2015.   Interlocutory
Application  No.4  of  2015  was  thereafter  preferred  by  the   appellant
contending that the decretal amount  was  withdrawn  by  the  respondent  in
December 2012 whereas the appeal was allowed in favour of the  appellant  on
24.4.2015 and that the  respondent  had  reaped  the  benefits  of  decretal
amount for more than three  years.   It  was  submitted  that  the  Arbitral
Tribunal had awarded interest @ 12% per  annum  against  the  appellant  and
that the respondent be directed to pay interest  @  12%  per  annum  on  the
amount of Rs.70,65,039/- from the  date  of  withdrawal  till  the  date  of
actual payment.



4.    The  appellant is right in its submission that the  Arbitral  Tribunal
in its award dated 09.01.2012 had awarded interest at the rate  of  12%  per
annum on amounts  awarded under various claims. Matter  in  issue  in  Civil
Appeal No.6158 of 2013 pertained only to  Claim  No.8.  In  the  fitness  of
things, the appellant is certainly entitled to interest at the same rate  on
the amount which was enjoyed by  the  respondent.  The  entitlement  of  the
respondent to  this  amount  stood  negated  by  judgment  and  order  dated
24.04.2015 and as  such  the  respondent  must  pay  back  the  amount  with
interest at the same rate.



 We therefore,  direct that the respondent shall pay interest  at  the  rate
of 12% per annum on the amount in question namely  Rs.70,65,039/-  from  the
date of withdrawal till the amount was made over by the  respondent  to  the
appellant.  Such  payment  shall  be  made  within  six  weeks  from  today.
Interlocutory Application Nos.4 and 5 stand disposed of accordingly.



                                 ……………………….J
                                                    (Dipak Misra)


                                ..………………………J.
                                        (Uday Umesh Lalit)
New Delhi
January 19, 2016
ITEM NO.1A-For Order          COURT NO.10             SECTION XIV

               S U P R E M E  C O U R T  O F  I N D I A
                       RECORD OF PROCEEDINGS

I.A. 4 & 5 in Civil Appeal  No(s).  6158/2013

NATIONAL HIGHWAYS AUTHORITY OF INDIA               Appellant(s)

                                VERSUS

M/S NCC KNR JV                                     Respondent(s)


Date : 19/01/2016 These applications were called on for pronouncement of
ORDER today.

For Appellant(s)  Mr. T.S. Sidhu, Adv.
                        Ms. Gunjan S. Jain, Adv.
                        Mr. Vivek Oriel, Adv.
                        Mr. Vikas Soni, Adv.
                     For M/s. M. V. Kini & Associates

For Respondent(s)
                     Mr. R. Sathish,Adv.

      Hon'ble Mr. Justice Uday Umesh  Lalit  pronounced  the  order  of  the
Bench comprising Hon'ble Mr. Justice Dipak Misra and His Lordship.
      I.A. Nos. 4 and 5  are  disposed  of  in  terms  of  the  signed  non-
reportable order.
      Pending application(s), if any, stand(s) disposed of.
|(VINOD KUMAR)                          | |(MALA KUMARI SHARMA)                  |
|COURT MASTER                           | |COURT MASTER                          |

   (Signed Non-Reportable order is placed on the file)

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