When parties to the contract had agreed to the fact that interest would not be awarded on the amount payable to the contractor under the contract, in our opinion, they were bound by their understanding. Having once agreed that the contractor would not claim any interest on the amount to be paid under the contract, he could not have claimed interest either before a civil court or before an Arbitral Tribunal.

                                                                  REPORTABLE




                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO. 2404 OF 2008

    UNION OF INDIA                            ... APPELLANT


                                   VERSUS



    M/S. BRIGHT POWER
    PROJECTS (I) P.LTD.                       ... RESPONDENT






                               J U D G M E N T




    ANIL R. DAVE, J.




 1.  Being aggrieved by the judgment delivered in Appeal  (Lodging)  No.124
    of 2006 in Arbitration Petition No.321 of 2005 dated 7th August,  2006,
    delivered by the High Court of Judicature at Bombay,  this  appeal  has
    been filed wherein the issue is whether the appellant is liable to  pay
    interest to the respondent though there was a provision in the contract
    that  no  interest  should  be  paid  on  the  amount  payable  to  the
    contractor. The facts which are relevant for the  purpose  of  deciding
    the issue, in a nutshell, are as under.




 2. The appellant and the respondent had entered into  a  contract  whereby
    the respondent had to construct certain structures, which had been more
    particularly described in the agreement entered into by the parties  on
    20th January, 1997.




 3. In the course of execution  of  the  contract,  a  dispute  had  arisen
    between the appellant and the respondent contractor and  as  agreed  by
    the parties, the dispute had been referred to  the  Arbitral  Tribunal.
    After hearing the concerned parties, the Arbitral Tribunal declared  an
    award on 17th May, 2005,  whereby  it  also  awarded  interest  to  the
    respondent contractor on the amount  awarded,  from  the  date  of  the
    reference till the date of the award.




 4.  Relying  upon  the  judgment  delivered  in  the  case  of  Secretary,
    Irrigation Department, Government of Orissa and Ors. v. G.C. Roy (1992)
    1 SCC 508, the Arbitral Tribunal awarded interest on the amount of  the
    award.  In the said case, this Court had considered the  provisions  of
    Section 29 of the Arbitration Act, 1940, which dealt  with  payment  of
    interest pendente lite.   After analyzing the scheme of the  said  Act,
    various earlier decisions and after considering the  very  same  issue,
    namely, whether an arbitrator has power to award interest pendente lite
    and, if so, on what  principles,  this  Court  had  observed  that  the
    Arbitral Tribunal had power to award interest.




 5.  Being aggrieved by the Award and especially because of interest  being
    awarded by the  Arbitral  Tribunal,  the  appellant  filed  Arbitration
    Petition No.321 of 2005 in the High Court of Judicature at Bombay.  The
    said arbitration petition was dismissed on 13th December, 2005.




 6. Being aggrieved by the  dismissal  of  the  Arbitration  Petition,  the
    appellant filed an appeal which was  also  dismissed  by  the  Division
    Bench of the High Court of Judicature at Bombay on  7th  August,  2006.
    Judgment of a Division Bench of the High Court of Judicature at  Bombay
    dated 2nd July, 1997, delivered in the case of Union of India v.  Anand
    Builders was relied upon and except for stating the  above  reason,  no
    other reason was recorded  by  the  High  Court  while  dismissing  the
    appeal.

 7. According to the learned counsel appearing for the  appellant,  it  was
    not open to  the  Arbitral  Tribunal  to  award  any  interest  to  the
    contractor in view of a specific condition incorporated in the contract
    entered into between the parties that no interest would be paid to  the
    contractor.

 8. On the other hand, the learned counsel  appearing  for  the  respondent
    contractor submitted that the Division Bench  of  the  High  Court  had
    rightly upheld the order passed by the learned Single Judge as well  as
    the Arbitral Tribunal.

    9.      On the aforesaid contentions, this Court has to decide  whether
    the contract between the parties contained  an  express  bar  regarding
    award of  interest  and  if  so,  whether  the  Arbitral  Tribunal  was
    justified in awarding interest for the period commencing from the  date
    of reference till the date of the award.

    10.     Clause 13 (3) of the contract entered into between the  parties
    reads as under:

           “13(3).     No interest will be payable upon the  earnest  money
           and the security deposit or amounts payable  to  the  contractor
           under the contract, but Government Securities deposited in terms
           of sub-clause(1) of this clause will be repayable with  interest
           accrued thereon.”




    11.    Thus, it had been specifically understood  between  the  parties
    that no interest was to be paid on the earnest money, security  deposit
    and the amount payable to the contractor under the contract. So far  as
    payment of interest on Government Securities, which had been  deposited
    by the respondent contractor with the appellant is  concerned,  it  was
    specifically stated that the said amount was  to  be  returned  to  the
    contractor along with interest accrued thereon, but so far  as  payment
    of interest on the amount payable to the contractor under the  contract
    was concerned, there was a specific term that no  interest  was  to  be
    paid thereon.

    12.    When parties to  the  contract  had  agreed  to  the  fact  that
    interest would not be awarded on the amount payable to  the  contractor
    under  the  contract,  in  our  opinion,  they  were  bound  by   their
    understanding.  Having once agreed that the contractor would not  claim
    any interest on the amount to be paid under the contract, he could  not
    have claimed interest either before a civil court or before an Arbitral
    Tribunal.

    13.    Section 31(7) of the  Arbitration  and  Conciliation  Act,  1996
    (hereinafter referred to as ‘the Act’) is  clear  to  the  effect  that
    unless otherwise agreed by the parties, the Arbitral Tribunal can award
    interest at reasonable rate for a period commencing from that date when
    the cause of action arises till the date of the award.   Section  31(7)
    of the Act, reads as under:

           “31(7) (a)  Unless otherwise agreed by the parties, where and in
           so far as an arbitral award is for the  payment  of  money,  the
           Arbitral Tribunal may include in the sum for which the award  is
           made interest, at such rate as it deems reasonable, on the whole
           or any part of the money, for the  whole  or  any  part  of  the
           period between the date on which the cause of action  arose  and
           the date on which the award is made.”




    14.    Section 31(7) of the Act, by using the  words "unless  otherwise
    agreed by the parties", categorically specifies that the arbitrator  is
    bound by the terms of the contract so far as award of interest from the
    date of cause of action to date of the award is concerned.   Therefore,
    where the parties had agreed that no interest  shall  be  payable,  the
    Arbitral Tribunal cannot award interest.

    15.    We may also refer to the decision  of  this  Court  in Union  of
    India v. Saraswat Trading Agency and others  (2009)16  SCC  504.   This
    Court has observed in the said case that if  there  is  a  bar  against
    payment of interest in the contract, the arbitrator  cannot  award  any
    interest for such period.  In view of the  specific  bar  under  Clause
    13(3) of the contract entered into between the parties, we are  of  the
    view that the Arbitral Tribunal was not justified in awarding  interest
    from the date of entering upon the reference to the  Arbitral  Tribunal
    till the date of the award.

    16.    The Arbitral  Tribunal  had  mainly  relied  upon  the  judgment
    delivered by this Court in G C Roy’s case (supra).  In the  said  case,
    the situation was different.  The contract between the parties did  not
    contain any condition that interest would not be paid.  In para  44  of
    the said judgment, it has been observed as under :

           “44.  Having regard to the above consideration,  we  think  that
           the following is the correct principle which should be  followed
           in this behalf:

           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.”




    17.     Relying upon the aforestated judgment delivered by this  Court,
    the Arbitral Tribunal thought it proper to award interest on the amount
    payable to the contractor for the period commencing from  the  date  on
    which the reference was entered upon till the date of the award.    The
    Tribunal, however, failed to consider the provisions of  Section  31(7)
    of the Act and clause 13(3) of the contract before awarding interest in
    the present case.

    18.     It is also pertinent to note that G.C. Roy’s case  (supra)  had
    been decided on December 12, 1991 on the basis of the provisions of the
    Arbitration Act, 1940, which was not operative at  the  time  when  the
    dispute on hand was decided by the Arbitral Tribunal.

    19.     Section 31(7)(a) of  the  Act  ought  to  have  been  read  and
    interpreted by the Arbitral Tribunal before taking  any  decision  with
    regard  to  awarding  interest.   The  said  Section,  which  has  been
    reproduced hereinabove, gives more respect  to  the  agreement  entered
    into between the parties.  If the parties to the agreement agree not to
    pay interest to each other, the Arbitral Tribunal has no right to award
    interest pendente lite.

    20.     By relying upon the  judgments  which  pertained  to  different
    period when statutory provisions were different, the Arbitral  Tribunal
    had awarded interest on the amount payable to the  contractor  for  the
    period from the date when the reference was entered upon till the  date
    of the award and the said  view  of  the  Arbitral  Tribunal  had  been
    confirmed by the High Court.  In our opinion, the Arbitral Tribunal and
    the High Court ought to have considered the provisions of the  Act  and
    the terms of agreement entered upon by the parties.

    21.    In the aforestated circumstances, the  Arbitral  Tribunal  ought
    not to have awarded  interest  to  the  respondent  from  the  date  of
    reference till the date of the award.

    22.    For the aforestated reasons, we set aside the impugned  judgment
    and the award so far as it pertains to  payment  of  interest  pendente
    lite and direct that no interest would be paid on  the  amount  payable
    under the contract to the respondent from the  date  of  the  reference
    till the date of the award.

    23.     The appeal is allowed with no order as to costs.





                               …………………………………………………….J
                                (ANIL R. DAVE)






                               …………………………………………………….J
                                        (VIKRAMAJIT SEN)






                               …………………………………………………….J
                                          (PINAKI CHANDRA GHOSE)
    NEW DELHI;
    JULY 2, 2015.

In our opinion, the High Court had committed an error by not considering the above facts and by observing that the appellant will have to take legal action against the ONGC for recovery of the amount payable to it. If one looks at the relationship between the appellant and the respondent, it is very clear that the respondent had given a sub-contract to the appellant and in the said agreement of sub-contract, the ONGC was not a party and there was no liability on the part of the ONGC to make any payment to the appellant. Moreover, we could not find any correspondence establishing contractual relationship between the ONGC and the appellant. In the circumstances, the ONGC cannot be made legally liable to make any payment to the appellant. As stated hereinabove, only for the sake of convenience and to get the work of the ONGC done without any hassle, the ONGC had made payment to the appellant on behalf of the respondent without incurring any liability to make complete payment on behalf of the respondent. 28. The learned counsel appearing for the appellant failed to show any document in the nature of a contract entered into between the appellant and the ONGC whereby the ONGC had made itself liable to make payment to the appellant. Even when the payment had been made by the ONGC, it was very clear that the payments were made on behalf of the respondent as the ONGC was debiting the account of the respondent by the amount paid to the appellant. It is important that the payment was made to the appellant only upon certification of work done by the respondent. The ONGC had given a contract to the respondent. The ONGC had never entered into any contract with the appellant and therefore, it did not rely upon any certification or any statement made by the appellant in relation to quantum of work done by the appellant. This fact also shows that the ONGC was concerned with the work which had been approved by the respondent and instead of making payment to the respondent, the ONGC had made payment to the appellant on behalf of the respondent, though there was no legal obligation on the part of the ONGC to make such a payment to the appellant. 29. For the aforestated reasons, we do not agree with the view expressed by the High Court and the impugned judgment delivered by the High Court is set aside. The ONGC shall not be liable to make payment, as rightly decided by the Arbitral Tribunal, to the appellant but the payment shall have to be made by the respondent, who had given a sub- contract to the appellant. Majority view of the Arbitral Tribunal on the above issue is confirmed and the view of the High Court is not accepted. The respondent shall accordingly make payment to the appellant.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO.3353 OF 2005



    M/S ESSAR OIL LTD.                      ... APPELLANT


                                   VERSUS




    HINDUSTAN SHIPYARD LTD. & ORS.        ... RESPONDENTS


                                    WITH

                        CIVIL APPEAL NO.3355 OF 2005



                               J U D G M E N T




    ANIL R. DAVE, J.

    1.     Being aggrieved by a common judgment dated 29th September, 2004,
    delivered in Appeals Against Order Nos.255 and 624 of 2003 by the  High
    Court of Andhra Pradesh at Hyderabad, these appeals have been filed  by
    M/s Essar Oil Ltd., who had been given  a  sub-contract  by  the  first
    respondent, Hindustan Shipyard Ltd., in respect of a contract which was
    given to it by the Oil and Natural Gas Commission.

    2.     The facts giving rise to the present litigation, in a  nutshell,
    are as under:-

           The Oil and Natural Gas Commission (hereinafter referred  to  as
    ‘the ONGC’) had given a contract to Hindustan Shipyard  Ltd.  to  carry
    out work of fabrication, skidding, sea fastening,  transportation  etc.
    at various stations located in  the  coastal  areas  of  India.  It  is
    pertinent to note that the contractor, Hindustan Shipyard Ltd., who  is
    respondent no.1 in both  the  appeals,  had  been  permitted  to  avail
    services of any other person for doing the aforestated  work  entrusted
    to it.  In other words, it was open to respondent no.1 to engage a sub-
    contractor for getting  the  work  done.  Other  respondents  in  these
    appeals are the arbitrators, who are formal parties.

    3.     In pursuance of the aforestated understanding arrived at and the
    contract entered into between the ONGC and Hindustan Shipyard Ltd. (who
    has been referred to as ‘the respondent’ hereinafter),  the  respondent
    had entered into a contract  with  M/s  Essar  Oil  Ltd.,  who  is  the
    appellant in both these  appeals.   Thus,  the  appellant  was  a  sub-
    contractor in respect of the  contract  which  the  respondent  had  to
    fulfill for the ONGC.

    4.     It appears that for the sake of convenience and so as to obviate
    certain financial difficulties of the respondent, certain payments  had
    been made to the appellant directly by the ONGC.  The  appellant,  upon
    getting certain work done  under  the  sub-contract  and  upon  getting
    necessary certificates with regard to the quality and quantity  of  the
    work done from the respondent, had received some payment from the  ONGC
    on the strength of those certificates.

    5.     In the process of carrying out the contract, the  appellant  was
    not paid by the respondent for the work done and therefore,  a  dispute
    had arisen between the appellant and the respondent.  Let us  not  look
    at the nature of the dispute or the amount  claimed  or  the  liability
    with regard to making payment to the appellant at this  stage,  suffice
    it to state  that  there  was  an  Arbitration  Agreement  between  the
    appellant and the  respondent  and  therefore,  the  dispute  had  been
    referred to the Arbitral Tribunal.  Respondent nos.2, 3 and 4  are  the
    Arbitrators, who had made the  Award  with  regard  to  which  we  will
    discuss presently.

    6.     Thus, the dispute with regard  to  non-payment  and  some  other
    disputes had been referred  to  the  Arbitral  Tribunal  consisting  of
    Respondent nos.2, 3 and 4.   It is pertinent  to  note  here  that  the
    ONGC, who had given a contract to the respondent, was  not  before  the
    Arbitral Tribunal because the ONGC was not a party to  the  Arbitration
    Agreement entered into between the appellant and the  respondent.   The
    question which was involved in the  said  dispute  was  not  only  with
    regard to determination of the amount to be paid to the appellant,  but
    was also with regard to determination of a person  who  was  liable  to
    make payment to the appellant.

    7.     After hearing the concerned parties, the Arbitral Tribunal  made
    an Award, but all the three Members of the Tribunal could not  come  to
    the same conclusion.  The majority i.e. two  Members  of  the  Tribunal
    came to the conclusion that there was no privity  of  contract  between
    the appellant and the ONGC; and  the  ONGC  was  not  a  party  to  the
    contract between the appellant and the respondent.   In the aforestated
    circumstances, the ONGC, according to the majority view, could  not  be
    held liable for making payment to the appellant and  the  liability  to
    make payment to the appellant was that of the respondent.  It was  also
    held by the majority that the appellant could not even sue the ONGC for
    the unpaid amount.  Accordingly, the Award was made.  At this stage, we
    are not concerned with the other facts and the amount  awarded  by  the
    majority of the Tribunal.

    8.     On the other hand, the dissenting Member, who was  in  minority,
    was of the opinion that there was a contract between the appellant  and
    the ONGC and therefore, the ONGC was liable  to  make  payment  to  the
    appellant,  but  he  expressed  an  opinion  to  the  effect  that  the
    respondent should be directed to make payment to the appellant only  if
    the respondent is paid the  unpaid  amount  by  the  ONGC.   Thus,  the
    minority view was that the liability to make payment to  the  appellant
    was that of the ONGC, but as the  ONGC  was  not  a  party  before  the
    Tribunal,  the  proper  course  open  to  the  appellant  was  to  take
    appropriate legal action against the ONGC for recovery  of  the  amount
    due and payable to the appellant.

    9.     The respondent was  aggrieved  by  the  Award  of  the  Arbitral
    Tribunal as according  to  the  majority  view  of  the  Tribunal,  the
    respondent was  liable  to  make  payment  to  the  appellant.  In  the
    circumstances, the respondent filed OP NoS.989 of 2001 and 96  of  2002
    before the Principal District Judge, Visakhapatnam, under Section 34 of
    the Arbitration and Conciliation Act, 1996.

    10.    The Principal District Judge, Visakhapatnam,  decided  both  the
    Original Petitions by orders dated 10th October, 2002 and 1st November,
    2002, respectively. The learned Principal District Judge confirmed  the
    award on the issues with which we are concerned, but  he  remanded  the
    matter to the Arbitral Tribunal on the issues regarding  counter  claim
    etc., with which we are not concerned in this case.

    11.    Being aggrieved by the aforestated  two  orders  passed  in  two
    Original Petitions, the respondent filed Appeals Against Order  Nos.255
    and 624 of 2003 before the High Court of Andhra Pradesh  and  the  High
    Court allowed the appeals by a common judgment  dated  29th  September,
    2004, validity of which has been challenged before this Court in  these
    appeals.

    12.    The High Court came to a conclusion that there was a  tripartite
    agreement among the ONGC, the appellant and the respondent.   The  High
    Court had relied upon some letters written by the appellant to the ONGC
    and therefore, the ONGC was also treated as a party  to  the  contract.
    It also held that as the ONGC was a party to the contract, it ought  to
    have been made a party before the Arbitral Tribunal but as the ONGC was
    not represented before the Arbitral Tribunal, the  Award  made  by  the
    Tribunal was bad in law.  The Award deserved to be  set  aside  by  the
    Principal District Judge but he  did  not  and  therefore,  the  orders
    passed in the Original Petitions filed  before  the  learned  Principal
    District Judge were also bad in law and accordingly the Award  and  the
    orders passed in the Original Petitions were quashed and set aside.

    13.    The main issue which is  involved  in  these  appeals  is  about
    ascertainment of a person,  who  is  liable  to  make  payment  to  the
    appellant.  There is no dispute with regard to quality or  quantity  of
    the work done by the appellant at this stage.   It is  not  in  dispute
    that the appellant has not been paid the amount payable to it.   It  is
    also not in  dispute  that  the  appellant  had  been  engaged  by  the
    respondent  in  pursuance  of  a  contract  entered  into  between  the
    respondent and the ONGC and it was open  to  the  respondent  to  avail
    services of any other person for doing the work entrusted to it by  the
    ONGC.   In the light of the aforestated undisputed facts, the  question
    is only with regard to determination of liability of the person who has
    to make payment to the appellant.

    14.    The learned counsel appearing for the appellant  had  vehemently
    submitted that the view taken by the majority of the Arbitral  Tribunal
    being correct, the High Court ought not to  have  interfered  with  the
    said view.  So as to substantiate his submission, the  learned  counsel
    had mainly submitted that there was no privity of contract between  the
    appellant and the ONGC.  The appellant had performed the  work  of  the
    ONGC in pursuance of a contract given to it by  the  respondent,  which
    was a sub-contract in nature.   In absence of any contract between  the
    ONGC and the appellant, the appellant could not  have  made  any  claim
    before the ONGC and as there was no contract between them, it was  also
    not possible for the appellant to make the  ONGC  a  party  before  any
    Court or Authority  for  recovery  of  the  amount  payable  to  it  in
    pursuance of the sub-contract given by the respondent.

    15.    It had been fairly admitted by the learned counsel appearing for
    the appellant that very often payments were made to  the  appellant  by
    the ONGC.  It had further been submitted that the payments were made by
    the ONGC so as to facilitate the appellant and to get the work  of  the
    contract done smoothly.  Every time when payment was made by  the  ONGC
    to the appellant, the ONGC used to debit the account of the  respondent
    i.e. the amount so paid by the ONGC to the appellant was treated by the
    ONGC as if the said payment was made by the  ONGC  to  the  respondent.
    Thus, so as to obviate a long procedure and to expedite payment to  the
    appellant, who was actually doing the job for the ONGC, instead of  the
    ONGC paying to the appellant  through  the  respondent,  the  ONGC  was
    paying directly to the appellant.

    16.    The learned counsel for the  appellant  had  with  great  stress
    submitted that there was not a single contract  between  the  appellant
    and the ONGC and there was no tripartite contract among the  appellant,
    the respondent and the ONGC, whereby the ONGC was made  liable  to  pay
    the appellant in respect of the work done by it.

    17.    For the aforestated simple reason, it had been submitted by  the
    learned counsel for  the  appellant  that  the  majority  view  of  the
    Arbitral Tribunal was correct and the  respondent  is  liable  to  make
    payment to the appellant with whom it had entered into the contract. It
    had been further submitted by the learned counsel that in view  of  the
    aforestated factual and legal  position,  the  appeals  deserve  to  be
    allowed and the respondent should be made liable to make payment to the
    appellant.

    18.    On the other hand, the learned counsel for  the  respondent  had
    submitted that the ONGC was liable to make payment to the appellant and
    therefore, there is no liability on the part of the respondent to  make
    payment to the appellant.

    19.    It had further been submitted by the  learned  counsel  for  the
    respondent that it is not necessary that in each  and  every  case  the
    contract should be in writing. The contract can be very  well  inferred
    by the act or  conduct  of  the  parties,  whereby  impliedly  a  party
    undertakes to make  good  a  liability  to  make  payment  to  someone.
    According to the learned counsel, even in the instant case,  there  was
    an implied contract amongst the appellant, the respondent and the  ONGC
    and therefore, it was the liability of the ONGC to make payment to  the
    appellant.

    20.    The learned counsel for the respondents had drawn our  attention
    to correspondence exchanged between the ONGC and the respondent. He had
    specially referred to a letter dated 25th October,  1991  addressed  by
    the respondent to the ONGC, wherein it was stated  that  the  ONGC  had
    desired to make payment directly  to  the  appellant  in  pursuance  of
    meetings convened among the representatives of the respondents and  the
    ONGC.  He had also submitted that some of the letters  written  by  the
    ONGC to the respondent clearly denoted that the ONGC had  accepted  the
    liability to make payment to the appellant and therefore, there was  no
    liability on the part of the respondent to  make  any  payment  to  the
    appellant.   He had further submitted that the  subsequent  conduct  of
    the ONGC of making direct payment to the appellant established the fact
    that the ONGC had undertaken the  liability  to  make  payment  to  the
    appellant.  The aforestated letter dated 25th October, 1991  and  other
    letters which had been exchanged between the respondent  and  the  ONGC
    were placed on record to show that there was  a  contract  between  the
    ONGC and the appellant.

    21.    For the aforestated  reasons,  it  had  been  submitted  by  the
    learned counsel for the respondent that the view of the High Court that
    the ONGC was liable to make payment to the  appellant  is  correct  and
    therefore, the appellant should take  appropriate  action  against  the
    ONGC for recovery of  the  unpaid  amount.  The  learned  counsel  had,
    therefore,  submitted  that  the  view  taken  by  the  High  Court  is
    absolutely correct and the respondent is no more  liable  to  make  any
    payment to the appellant.

    22.    We have heard the learned counsel for the parties at length  and
    have also considered some judgments cited by  them  and  the  documents
    which had been placed on record and relied upon by them.

    23.    Upon hearing the learned counsel and  looking  at  the  contract
    entered into between the appellant and the respondent and upon  perusal
    of other letters, we believe that the view expressed by the High  Court
    cannot be accepted.

    24.    It is true that the ONGC  had  made  payment  to  the  appellant
    directly on several occasions.  Upon perusal of the correspondence,  we
    find that some understanding, but not amounting  to  any  agreement  or
    contract, was arrived at between the ONGC and the respondent for making
    direct payment to the appellant, possibly because  the  respondent  was
    not in a position to make prompt payments to the  appellant.   It  also
    appears that  on  account  of  the  delay  in  making  payment  to  the
    appellant, the work of the ONGC was likely to  be  adversely  affected.
    The ONGC was interested in getting its work done promptly  and  without
    any hassles.  In the circumstances, upon perusal of the correspondence,
    which had taken place between the ONGC and the respondent, it is  clear
    that so as to facilitate the respondent, the ONGC had made payments  on
    behalf of the respondent to the appellant directly.

    25.    Simply because some payments had been made by the  ONGC  to  the
    appellant, it would not be established that  there  was  a  privity  of
    contract between the ONGC and the appellant and only  for  that  reason
    the ONGC cannot be saddled with a liability to pay the  amount  payable
    to the appellant by the respondent.

    26.  It is also pertinent to note that the  Arbitration  Agreement  was
    only between the appellant and the respondent.   The  ONGC  was  not  a
    party to the Arbitration Agreement.  When a dispute had arisen  between
    the appellant and the respondent in relation to payment of  money,  the
    appellant had initiated the arbitration proceedings.  As the  ONGC  was
    not a party to the  Arbitration  Agreement,  it  could  not  have  been
    represented before the Arbitral Tribunal.  If the ONGC was not a  party
    before the Arbitral Tribunal, the Tribunal  could  not  have  made  any
    Award making the ONGC liable to make payment to the appellant.  In  the
    aforestated factual and legal position, the Arbitral Tribunal could not
    have made the ONGC liable in any respect and rightly, the majority view
    of the Arbitral Tribunal was to the effect that the ONGC, not  being  a
    party to any contract or  Arbitration  Agreement  with  the  appellant,
    could not have been made liable to make any payment to the appellant.

    27.    We are in agreement with the view expressed by the  majority  of
    the Arbitral Tribunal.  In our opinion, the High Court had committed an
    error by not considering the above facts  and  by  observing  that  the
    appellant will have to take legal action against the ONGC for  recovery
    of the amount payable to it.  If one looks at the relationship  between
    the appellant and the respondent, it is very clear that the  respondent
    had given a sub-contract to the appellant and in the said agreement  of
    sub-contract, the ONGC was not a party and there was  no  liability  on
    the part of the ONGC to make any payment to the appellant. Moreover, we
    could not find any correspondence establishing contractual relationship
    between the ONGC and the appellant.  In  the  circumstances,  the  ONGC
    cannot be made legally liable to make any payment to the appellant.  As
    stated hereinabove, only for the sake of convenience  and  to  get  the
    work of the ONGC done without any hassle, the ONGC had made payment  to
    the appellant  on  behalf  of  the  respondent  without  incurring  any
    liability to make complete payment on behalf of the respondent.

    28.    The learned counsel appearing for the appellant failed  to  show
    any document in the nature of  a  contract  entered  into  between  the
    appellant and the ONGC whereby the ONGC had made itself liable to  make
    payment to the appellant.  Even when the payment had been made  by  the
    ONGC, it was very clear that the payments were made on  behalf  of  the
    respondent as the ONGC was debiting the account of  the  respondent  by
    the amount paid to the appellant.  It is important that the payment was
    made to the appellant only upon  certification  of  work  done  by  the
    respondent.  The ONGC had given a contract to the respondent.  The ONGC
    had never entered into any contract with the appellant  and  therefore,
    it did not rely upon any certification or any  statement  made  by  the
    appellant in relation to quantum of work done by the  appellant.   This
    fact also shows that the ONGC was concerned with  the  work  which  had
    been approved by the respondent and instead of making  payment  to  the
    respondent, the ONGC had made payment to the appellant on behalf of the
    respondent, though there was no legal obligation on  the  part  of  the
    ONGC to make such a payment to the appellant.

    29.    For the aforestated reasons, we  do  not  agree  with  the  view
    expressed by the High Court and the impugned judgment delivered by  the
    High Court is set aside.  The ONGC shall not be liable to make payment,
    as rightly decided by the Arbitral Tribunal, to the appellant  but  the
    payment shall have to be made by the respondent, who had given  a  sub-
    contract to the appellant.  Majority view of the Arbitral  Tribunal  on
    the above issue is confirmed and the view of  the  High  Court  is  not
    accepted.   The  respondent  shall  accordingly  make  payment  to  the
    appellant.

    30.    For the reasons enumerated hereinabove, the appeals are  allowed
    with no order to costs.




                                                      …………………………………………………….J
                                   (ANIL R. DAVE)






                                                      …………………………………………………….J
                                     (VIKRAMAJIT SEN)






                                                      …………………………………………………….J
                                         (PINAKI CHANDRA GHOSE)
    NEW DELHI;
    JULY 2, 2015.

We are not inclined to reject the testimony of PW 3 on the ground that his conduct had been unusual at the place of the occurrence, he having kept himself aloof therefrom instead of attempting to save his brothers who were under murderous attack by a group of assailants. As rightly observed by the courts below that, on being confronted with such an unforeseen and sudden situation, it is quite likely that individuals would react differently and if the PW 3, being petrified by such unexpected turn of events, being in the grip of fear and alarm, as a matter of reflex hid himself from the assailants, his version of the episode, in our estimate, is not liable to be discarded as a whole as the same is otherwise cogent, coherent and compact. 18. As the eventual objective of any judicial scrutiny is to unravel the truth by separating the grain from the chaff, we are of the opinion that in the face of clinching evidence on record, establishing the culpability of the appellants, their conviction and sentence as recorded by the courts below does not call for any interference at this end. The participation in the gory brutal attack of the appellants with the lethal weapons resulting in death of two persons Ashok and Rohtash is proved beyond reasonable doubt not only by the testimony of PW 3, the eyewitness, but also by other evidence collected in course of the investigation and adduced at the trial. On an overall appreciation of the materials on record, we find ourselves in complete agreement with the findings recorded by the courts below. 19. In the wake of the above, the impugned judgment and order of the High Court sustaining the decision of the learned trial court is affirmed. The appeal lacks in merits and is thus dismissed.

                                              {REPORTABLE}

                   IN THE SUPREME COURT OF INDIA

                 CRIMINAL APPELLATE JURISDICTION

                         CRIMINAL APPEAL NO(s) 1590/2011



Daya Ram & Ors.                              .....Appellant(s)

                            VERSUS

State of Haryana                             .....Respondent(s)


                       JUDGMENT

AMITAVA ROY, J.

      Having failed to secure redress against their conviction under section
302 of  the  Indian  Penal  Code  (for  short  hereinafter  referred  to  as
IPC/Code) read with Section 34 of the Code,  and the sentence  consequential
thereto, from the High Court of  Punjab  and  Haryana,  at  Chandigarh,  the
appellants seek the remedial intervention of this  Court.  By  the  impugned
judgment and order dated 28.7.2010 rendered in Criminal  Appeal  No.  261-DB
of 2003 and Criminal Revision Petitioner No. 1560 of 2003,  the  High  Court
has sustained the  decision  of  the  Additional  Sessions  Judge  (Ad-hoc),
Hissar passed in Sessions Case No.  120/SC  on  06.02.2003,  sentencing  the
appellants, following their conviction as above, to suffer imprisonment  for
life and to pay a fine of Rs.500/- each,  in  default,  to  undergo  further
rigorous imprisonment for six months.  As alongwith  the  appellants,  three
others, namely, Devi Lal, Chander Singh  and  Vidyadhar  alias  Didaru  were
also tried but were acquitted, the  Complainant  /  Informant  Bajrang  Bali
being aggrieved had filed Criminal  Revision  Petition  No.  1560  of  2003,
which was dismissed.  The High Court thus, in toto sustained the verdict  of
the learned trial court on both counts.

2.    We have heard Mr. P. N. Kush, the learned counsel for  the  appellants
and Mr. Arun Kumar, the learned counsel for the Respondent.

3.    The prosecution case is traceable  to  the  First  Information  Report
(for short hereinafter referred to as FIR) recorded on  25.8.2001  at  12.15
PM, on the version made by the informant Bajrang Bali to the effect that  on
23.8.2001, the aforenamed Devi Lal, Chander Singh,  Vidyadhar  alias  Didaru
and Daya Ram, sons of Sahi Ram, residents of the  same  village  had  abused
his brother Ashok and had threatened to kill him.  On being  informed  about
this threat on the next day i.e. 24.8.2001, the  informant  had  accompanied
his brothers Rohtash and Ashok to their field  at  about  8.30/09.00  PM  to
look after the crops. According to the informant, as soon  as  they  reached
the field, Vidyadhar alias Didaru, Chander Singh, Daya Ram, Madan  and  Devi
Lal sons of Sahi Ram and Hans Raj and Rohtash sons of Ami  Lal  all  of  the
same village came out from behind the standing Bajara  crop  thereat,  being
armed with lathi, jailly and gandasa and unleashed a series of  assaults  on
Rohtash and Ashok.  The  informant  alleged  that  the  assailants  had  hid
themselves in the cover of the Bajara Crops and though  he  had  accompanied
his brothers, he was behind them by 10/12 paces. He stated  that  on  seeing
the attack, he concealed himself in the bushes nearby but in  the  moonlight
he could recognise all the seven  assailants.  He  mentioned  that  all  the
seven  persons  inflicted  injuries  on  his  brothers  with  their  weapons
whereupon the injured fell on the ground. According to the  informant,  Daya
Ram  thereafter  fetched  a  cart  (peter  rehra)  parked  nearby  and   the
assailants removed his brothers from the field. The  informant  stated  that
out of fear and alarm he kept himself in the hiding  for  the  rest  of  the
night and only at the break of  dawn,  he  went  back  to  the  village  and
disclosed the above episode to  his  cousin-brother  Sarwan  and  thereafter
embarked on a search for the  injured.  He  stated  that  after  a  thorough
search, they could detect the dead bodies of  Rohtash  and  Ashok  lying  in
front of the door of the Dhani (small hutment adjacent to  the  agricultural
field to enable the occupant to keep a vigil on the crops)of Sahi  Ram,  the
father of the appellants, Daya Ram and Madan. The  informant  after  waiting
there in inconsolable anguish and pain, left the spot to inform the  Police,
by leaving Sarwan Kumar to be on guard. He met the SHO,  PS  Adamur  at  the
bus stand at Darauli, and disclosed the whole incident.  His  statement  was
recorded by the  said  officer  and  after  endorsing  an  observation  that
offences under Section 148/149/302/201 IPC  had  been  committed,  forwarded
the report to the  police  station  Adampur  whereupon  FIR  No.  207  dated
20.8.2001 was registered. Investigation followed,  in  course  whereof,  the
appellants alongwith Devi Lal, Chander Singh, Vidyadhar  alias  Didaru  were
arrested and acting on their statements of disclosure, their weapons of  the
alleged assault i.e. jailly, kulhari/Gandasa and lathis were  recovered  and
seized. The Investigating Officer also visited the site,  performed  inquest
over the dead bodies, prepared a report and despatched the bodies for  post-
mortem examination. He drew a site-plan, collected samples of  blood-stained
earth, seized amongst others a bucket, a   chappal  (Hawai)  from  near  the
dead body of the Rohtash and one pair of  leather  slippers  from  near  the
dead body of Ashok. The Investigating Officer prepared  recovery  memos  and
sealed the seized items. He also recorded the statement  inter-alia  of  the
informant, Bajrang  Bali  and  others  and  eventually  laid  a  chargesheet
against all the seven persons under the above provisions of the  Code.   The
matter was eventually committed to the  Court  of  the  Additional  Sessions
Judge (Ad-hoc), Hissar and charge  under  Section  302/201/148/149  IPC  was
framed against all the seven persons  including  the  appellants,  to  which
they pleaded “not guilty”.

4.    At the trial, the prosecution  examined  several  witnesses  including
the informant, Bajrang Bali, PW 3, and the doctors  who  had  conducted  the
post-mortem examination of the dead bodies and had examined  the  appellants
Madan Lal and Daya Ram.  The prosecution  also  proved  the  report  of  the
Forensic Science Laboratory, Haryana on the samples of earth as well as  the
bucket  and  weapons  of   assault   forwarded   to   it   for   serological
investigation. It  proved  as  well  the  post-mortem  and  medical  reports
alongwith disclosure statements and got  identified  through  witnesses  the
seized weapons and other articles. After the closure of the evidence of  the
prosecution, the accused persons were examined under Section 313 Cr.P.C.  in
course whereof all of them pleaded to be  innocent.   One  witness,  namely,
Rati Ram H.C. was examined in defence.

5.    The learned trial court on a consideration of the evidence  on  record
and after analyzing the rival contentions, convicted  the  appellants  under
Section 302 IPC read with Section 34 of  the  Code  and  sentenced  them  as
above.  However, being of the view that the complicity of  the  other  three
accused persons, namely, Devi Lal, Chander Singh and Vidyadhar alias  Didaru
was doubtful, as the lathis otherwise identified to have been used  by  them
did not wear blood-stains, it acquitted them on the  benefit  of  doubt.  It
rejected the defence plea of delay in lodging of the FIR, having  regard  to
the  developments  prior  thereto.   It  dismissed  the  challenge  to   the
trustworthiness  of  the  informant,  rejecting  the  defence  plea  of  his
indifferent conduct as  a  brother  when  the  deceased  were  being  openly
assaulted in his presence. According to the learned trial court, it was  not
unusual for individuals to react differently in such situations and  was  of
the view that there had been no undue  delay  in  filing  of  the  FIR.  The
learned trial  court  also  discarded  the  defence  plea  of  inconsistency
between the injuries  on  the  dead  bodies  with  the  weapons  of  assault
allegedly used by observing that  the  same  could  be  inflicted  by  blunt
weapons like lathi or  jailly/kulhari,  if  used  by  the  blunt  side.  The
narration of the incident as made by  the  informant,  PW  3  was  otherwise
accepted to be credible except to the extent of participation of  the  three
accused persons, namely, Devi  Lal,  Chander  Singh  and  Vidyadhar  in  the
assaults. The learned trial court was of the  view  that  the  plea  of  the
defence that  the  informant  as  the  eye-witness  could  not  specify  the
individual acts of assault, did not have any fatal bearing on  the  case  of
the prosecution and returned a finding of guilt against  the  appellants  on
an exhaustive analysis of the evidence on record, by taking note  inter-alia
of the factum of seizure of their weapons of assault  i.e.  jailly,  gandasa
and lathis on their disclosures and also the report of the Forensic  Science
Laboratory, Haryana detecting human blood thereon.  The  sentence  as  above
was  awarded  to  the  appellants  after  according  to  them,  hearing   in
connection therewith. The High Court concurred with the learned trial  court
on all the above aspects and maintained the conviction and sentence.

6.    Before adverting to the competing assertions, it would be  appropriate
to notice the relevant evidence in brief.  The informant Bajrang Bali PW  3,
who claimed himself to be the eye-witness of the incident,  is  the  brother
of the deceased persons. He stated on oath, that he had accompanied them  to
the field in the fateful night of 24.8.2001. In his testimony, he  mentioned
about the incident of threat extended by Devi Lal, Chander Singh,  Vidyadhar
alias Didaru and  Daya  Ram  to  his  brothers  in  the  previous  night  of
23.8.2001 and reiterated his version as made in the  FIR  that  on  reaching
the field at about 8/8.30 pm on 24.8.2001, the appellants and  three  others
(since  acquitted)  did  all  together,  inflict  several  assaults  on  his
brothers (deceased), after emerging from behind the Bajara Crop standing  at
the place of occurrence. He mentioned that, the appellant  Madan  was  armed
with jailly, while Daya Ram was with a kulhari.  He testified,  that  others
were armed with lathis. He said that, he was behind his  brothers  by  10/15
paces and seeing the sudden attack, he out of panic, hid himself behind  the
nearby bush to save his life. He stated, that it was  a  moonlit  night  and
therefore, he could identify all the accused persons.  According to him,  as
the injured fell on the ground after being assaulted,  Daya  Ram  brought  a
‘peter rehra’ whereafter, all of them lifted his  injured  brothers  thereon
and left the field.  The witness stated, that out of fear, he did not  leave
the field and it was only in the  next  morning  that  he  returned  to  his
village, and informed his cousin-brother Sarwan about the incident and  then
both set off to search the injured.  The  witness  stated,  that  eventually
they could detect the dead bodies of the two brothers near  the  ‘dhani’  of
Sahi Ram.  He thereafter informed the  police,  who  reached  the  place  of
occurrence and apart from conducting the inquest on the  dead  bodies,  took
other steps including seizure of a bucket, chappal  etc.  The  witness  also
identified the accused persons in  court  and  amongst  others  the  bucket,
seized from the place of occurrence.

7.    In cross-examination, PW 3 stated, that the  dhani  of  Sahi  Ram  was
about fifteen killas from the place of occurrence. To a  suggestion  put  to
him by the defence, he stated that it was  correct  that  the  incident  had
taken place 10/12 paces away from him. He however admitted, that it was  not
possible to give the details of the assaults, by the accused persons on  his
brothers. He reiterated that he did not come out or intervene out of fear.

8.    PW 1  Dr.  Krishan  Kumar  stated,  to  have  examined  Madan  Lal  on
25.8.2001 and to have detected a lacerated wound  and  an  abrasion  on  his
body as detailed in his testimony.  He stated that the injuries which  could
be caused by a blunt weapon, were also possible by a  fall  on  the  ground.
According to him the injuries were six hours old.

9.    This witness also stated that on 27.8.2001, he had examined Daya  Ram,
who complained of pain in his left thumb, index  finger  and  the  adjoining
part of the  hand.  The  witness  stated  that  x-ray  did  not  reveal  any
fracture.   The  corresponding  reports  were  proved  by  him.   In  cross-
examination, this witness reiterated that the  injuries  suffered  by  Madan
Lal could be possible by a fall from a height of four to five feet.

10.   In his evidence, Dr Arun  Gupta  who  had  performed  the  post-mortem
examination on the dead bodies of the Ashok  and  Rohtash  on  26.8.2001  at
about 9.50/10.15 AM, stated to have detected the following injuries.

Ashok:

“
   1. Lacerated wound about 1.5 cm x 5 cm on the anterior surface  of  right
      leg in middle. Clotted blood seen.
   2. Contusion with deformities was seen on upper part of left  hip  joint.
      On dissection injury No. 2 the neck of left femur  was  fractured  and
      clotted blood seen.

   3. Lacerated wound about 4 cm x 5  cm  vertical  lines  on  the  forehead
      approximately in middle. On dissection of injury  No.  3  the  frontal
      bone on right  skull  was  fractured  underlying  brain  tissues  were
      injured. Clotted blood was present.”



Rohtash:

“
   1. Lacerated wound about 3 cm x 1 cm on the left side of  the  head  just
      above the eye brow.
   2. Lacerated wound about 4 cm x 5 cm obliquely  lying  on  the  occipital
      bone of the skull.  On dissection of the  injury  occipital  bone  was
      fractured underlying brain tissues were injured. Clotted blood seen.



   3. On dissection of abdomen abdominal cavity was having blood. The  right
      lobe of liver was injured.”



10.1        This witness opined that in case of Ashok, the  cause  of  death
was multiple injuries and injury to the vital organ of the body i.e.  brain.
According to this witness, the cause of death of Rohtash was  due  to  shock
and haemorrhage and injuries to  vital  organs  of  the  body.   The  doctor
stated, in categorical terms, that the injuries were ante-mortem  in  nature
and sufficient to cause death in the normal course.  According to  him,  the
time-lag between death and the  post-mortem  examination  was  approximately
36/37 hours and death could have occurred on 24.8.2001 between 8.00 to  9.00
pm .

11.   PW 9 Umed Singh, who was on 25.8.2001 posted as SHO,  PS  Adampur  and
to whom the incident was first lodged by Bajrang Bali  PW  3,  detailed  the
steps taken by him in course of the investigation.  While reiterating  that,
the information first in time, about the incident, was lodged  with  him  by
the informant, while he was stationed at bus stand,  Darauli  in  connection
with patrol duty and that after recording the same he had  forwarded  it  to
the police station for registration whereafter formal FIR  was  recorded  as
Ex. P – 24, he deposed  that,  he  went  to  the  spot  and  amongst  others
conducted inquest on the dead bodies and on completion  of  the  formalities
despatched the same for post-mortem examination.  He also prepared  a  site-
plan, made seizures of the bloodstained earth,  chappal/sleeper  lying  near
the dead bodies, a bucket smeared with blood,  and  packed  and  sealed  the
same and deposited all those  with  the  police  station.  This  witness  in
categorical terms, referred to the statements of disclosures,  made  by  the
appellants Rohtash, Devi Lal and Hans Raj leading to the recovery  of  their
lathis concealed in places mentioned by them and proved the  statements  and
also the  recovery  memos  in  connection  therewith.  The  disclosures  and
recovery were during 28.8.2001  and  29.8.2001.  The  witness  also  deposed
about the production of accused persons Chander Singh  and  Vidyadhar  alias
Didaru in  the  police  station  on  23.10.2001  along  with  their  lathis.
Similarly on the basis of the disclosure statements Ex. P-42  and  Ex.  P-43
made  by  the  appellant  Madan  Lal  and  Daya  Ram,  one  jailly  and  one
kulhari/gandasa were recovered from the fields near the dhani  of  Sahi  Ram
which were accordingly packed and sealed. The witness stated as  well,  that
the seized articles/weapons  of  assault  were  forwarded  to  the  Forensic
Science Laboratory, Haryana for serological examination and on  the  receipt
of the report and on a consideration of the materials  collected  in  course
of the investigation, he submitted the chargesheet.

12.    In  cross-examination,  the  Investigating  Officer  amongst   others
reiterated that dhani of Sahi Ram was the place from where the  dead  bodies
were recovered.  He deposed further that after the registration of the  FIR,
he reached the place of occurrence, at about 1.30 PM  and  after  exhausting
all steps, forwarded the dead bodies to the hospital at about 4.30 PM.

13.   The report of the Forensic Science Laboratory, Haryana referred to  in
course of the arguments, does indicate that samples of  bloodstained  earth,
one metal bucket, one kulhari, one jailly, one wooden lathi and  one  bamboo
lathi had been forwarded for examination.   The  sample  of  earth,  bucket,
jailly  and  the  lathis  were  subjected  to  serological  analysis   which
confirmed human blood on jailly. However, vis-à-vis the  earth  and  bucket,
the blood spot had disintegrated.

14.   The learned counsel for the appellants  has  strenuously  argued  that
the prosecution having miserably failed to adduce any cogent and  convincing
evidence in support of the charge, they  (appellants)  ought  to  have  been
acquitted.  According to  the  learned  counsel,  the  prosecution  case  is
liable to be rejected on the ground of unexplained delay in the  lodging  of
the FIR.  Further the version of PW  3  being  wholly  unreliable,  on  that
count as well, he being the only witness, the courts  below  ought  to  have
rejected the charge against the  appellants,  he  urged.   Mr.  P.  N.  Kush
argued as well that PW 3 being the sole eye-witness, his testimony ought  to
have been scrutinized with all rigour and as his version  does  unmistakably
fail such test, conviction of the appellants  should  not  have  been  based
thereon.  Without  prejudice  to  these  pleas,  the  learned  counsel,  has
insisted that the acquittal of three of the seven  accused  persons  charged
with the same offence, did destroy the substratum of  the  prosecution  case
and that therefore, the appellants are entitled to be acquitted.

15.   As against this, the counsel for the Respondent has  maintained,  that
in view of the evidence disclosing the intervening  events  leading  to  the
filing of the FIR, the demur of delay  in  connection  therewith  is  wholly
misplaced.  He dismissed as well the criticism of the evidence of the  PW  3
and asserted that this witness was  wholly  reliable  and  in  view  of  the
detailed description of the  incident,  the  conviction  of  the  appellants
based thereon is unassailable.  While contending that the  medical  evidence
on record and the ocular narration of the  incident  by  PW  3  are  clearly
consistent with each other, the learned counsel has argued, that the  charge
against  appellants  is  proved  beyond  reasonable  doubt   and   thus   no
interference with their conviction and sentence is warranted.  According  to
the learned  counsel,  the  recovery  of  the  weapons  of  assault  on  the
disclosures made by the appellants and the report of  the  Forensic  Science
Laboratory, Haryana did corroborate their complicity and thus they had  been
rightly convicted and sentenced by the courts below.

16.   We have duly considered the evidence on record and also the  arguments
based thereon. The case witnesses an incident of double murder of  which  PW
3 has been cited to be the only eye-witness.  It  is  a  matter  of  record,
that the deceased persons were the  brothers  of  this  witness  PW  3,  who
coincidently  is  also  the  informant.  The  courts  below  on  a   correct
assessment of his evidence, had concluded that he indeed was present at  the
place of occurrence at the time of the incident.  Though  the  participation
of the three of the accused persons, namely, Devi  Lal,  Chander  Singh  and
Vidyadhar alias Didaru was not accepted due to absence of any blood mark  in
the lathis said to have been wielded by them, in our opinion in the face  of
the overwhelming and impregnable testimony of this witness on  the  entirety
of the events relatable to the incident, it is not possible  to  extend  any
benefit of doubt to the appellants on that count. Suffice it to state,  that
the ocular account of the incident  presented  by  the  PW  3  has  been  in
graphic details. He did not vacillate  in  identifying  the  appellants.  He
also could relate the  weapons  of  assault  used  by  them.   The  injuries
sustained by the deceased in course of the incident and  those  detected  in
the post-mortem examination are compatible with each other.  The seizure  of
the weapons of assault vis-à-vis the appellants based  on  their  statements
of disclosure and the  report  of  the  Forensic  Science  Laboratory,  also
establish  their  irrefutable  nexus  with  the  crime.   The  plea  of  the
decomposition of the dead bodies to nihilate the medical opinion also  lacks
persuasion.  Noticeably, as per the testimony of the doctor  performing  the
post-mortem examination, the time of death does tally with the  one  of  the
incident.

17.   We are not inclined to reject the testimony of  PW  3  on  the  ground
that his conduct had been unusual at the place of the occurrence, he  having
kept himself aloof therefrom instead of attempting to save his brothers  who
were under murderous attack by a group of assailants.  As  rightly  observed
by the courts below that, on being confronted with such  an  unforeseen  and
sudden  situation,  it  is  quite  likely  that  individuals   would   react
differently and if the PW 3, being petrified  by  such  unexpected  turn  of
events, being in the grip of fear and alarm,  as  a  matter  of  reflex  hid
himself from the assailants, his version of the episode,  in  our  estimate,
is not liable to be discarded as a whole as the same  is  otherwise  cogent,
coherent and compact.

18.   As the eventual objective of any judicial scrutiny is to  unravel  the
truth by separating the grain from the chaff, we are of the opinion that  in
the face of clinching evidence on record, establishing  the  culpability  of
the appellants, their conviction and sentence  as  recorded  by  the  courts
below does not call for any interference at this end. The  participation  in
the gory brutal attack of the appellants with the lethal  weapons  resulting
in death of two persons Ashok and Rohtash is proved beyond reasonable  doubt
not only by the testimony of  PW  3,  the  eyewitness,  but  also  by  other
evidence collected in course of the investigation and adduced at the  trial.
 On an overall appreciation of the materials on record,  we  find  ourselves
in complete agreement with the findings recorded by the courts below.

19.   In the wake of the above, the impugned judgment and order of the  High
Court sustaining the decision of the learned trial court  is  affirmed.  The
appeal lacks in merits and is thus dismissed.




                                  ……...........................J.
                                             (Prafulla C Pant)




                                             ……….…………………J.
                                             (Amitava Roy)


New Delhi,

Date: 02 July, 2015

Original Civil Case No. 32/1992, instituted by him under Section 372 of the Indian Succession Act 1925 for issuance of succession certificate in his favour, as well as the judgment and order dated 23.08.2007 passed in Division Bench Civil Special Appeal No.187/2003 rendered by a Division Bench of the High Court sustaining the decision dated 25.09.2003 above referred to==== “1. If deceased Shri Kanhaiya Lal had adopted applicant Shri Mahaveer Prasad in a legal manner and on 15.11.1978, he had voluntarily executed a legal WILL in favour of the applicant? 2. If on 23.12.1974, deceased Shri Kanhaiya Lal had executed his Will and deposited with the Registrar, Udaipur and this Will is last and legal Will of late Shri Kanhaiya Lal ? 3. If applicant Shri Mahaveer Prasad or out of objectors, who are entitled to get succession certificate? “= On a perusal of the evidence of AW 3, Mohan Lal and AW 4, Mangi Lal, it is apparent that these two witnesses have been able to satisfactorily prove the execution of the Will dated 15.11.1978 and the attestation thereof by two witnesses, as required in law. As adverted to herein above, the signature of the testator Kanhaiya Lal, on these documents has been endorsed by both the handwriting experts. The report of the Forensic Science Laboratory also corroborates this finding. The view expressed by Shri Achyut Narayan, NAW 1 that though the signatures are genuine, those had been obtained on blank papers, which later on were converted into the Will, in the face of the overwhelming testimony of AW 3, Mohan Lal and AW 4, Mangi Lal, had been rightly rejected by the High Court. The recitals of the Will, Exh. 2, also provide sufficient justification for the bequest in favour of Respondent No. 1, Mahaveer Prasad. The fact that wife and daughter of the testator had, at all relevant time, supported the Respondent No. 1 in his initiatives to obtain the succession certificate is also a formidable factor in his favour as well as in endorsement of the genuineness of the Will, 15.11.1978. Noticeably though, the Will dated 23.12.1974 had been registered, no steps had been taken by the non- applicants to obtain the probate thereof. It is not unlikely, that the testator, out of, some disappointment and reservations qua the adopted son, Respondent No. 1 had in the rush of moment and as advised by the persons interested, as recited in the Will dated 15.11.1978, did momentarily decide to disinherit the only son of the family. However, on an equanimous re- consideration and following indepth and dispassionate cogitation, he eventually decided again to bequeath all his properties to him. The approval of the mother and the sister to this bequest is a strong indicator to this effect. We are thus of the view, that in the above factual background, the dispensation made by the testator in favour of the Respondent No. 1 cannot be repudiated to be in defiance of logic or unfair vis-à-vis the other members of the family. We do not find as well, any vitiating or suspicious circumstance invalidating the bequest. 15. The upshot of the above narration is that, the conclusions recorded by the High Court are plausible being based on the materials on record and thus do not warrant any interference in the appeals. On an overall consideration of the pleadings and the evidence adduced, the findings of the learned Trial Court have been rightly reversed. These appeals thus fail and are dismissed.

                                                   {REPORTABLE}


                 IN THE SUPREME COURT OF INDIA
                  CIVIL APPELLATE JURISDICTION
                 CIVIL APPEAL NOS. 1630-31 OF 2010




Smt. Shakuntala Bai & Ors.                         ….Appellants

                             Versus

Mr. Mahaveer Prasad                                ….Respondent



                            JUDGMENT

AMITAVA ROY, J.

   1. The present appeals, mount an  assailment  against  the  judgment  and
      order dated 25.9.2003 rendered by a Single Bench of the High Court  of
      Judicature for Rajasthan, allowing SB Civil Misc. Appeal No. 414/1997,
      preferred before it, by the Respondent No. 1, Mahaveer Prasad  against
      the verdict of the learned District Judge, Udaipur dated 24.5.1997, in
      Original Civil Case No. 32/1992, instituted by him under  Section  372
      of  the  Indian  Succession  Act  1925  for  issuance  of   succession
      certificate in his favour, as well as the  judgment  and  order  dated
      23.08.2007 passed in Division Bench Civil Special  Appeal  No.187/2003
      rendered by a Division Bench of the High Court sustaining the decision
      dated 25.09.2003 above referred to. Aggrieved on both the counts,  the
      non-applicants  in  the  succession  certificate  proceedings  are  in
      appeal.  We have heard the learned counsel for the parties.

   2. The facts in bare minimum as offered by the rival pleadings, are  that
      the predecessor-in-interest of the Respondent No.1, Velchand  had  two
      sons, Amba Lal and Kanhaiya Lal. Respondent No. 1, Mahaveer Prasad was
      the son of Amba Lal who died in 1956. The other siblings of Respondent
      No. 1 were Shanti Lal, Chhabi Lal and Shakuntala  Bai,  the  Appellant
      No. 1 herein.  Chhabi Lal died leaving  behind  Shakuntala  Jain,  the
      Appellant No. 2, his widow and daughter Vishakha Jain,  Appellant  No.
      3. The Respondent No. 1 was taken in adoption by Kanhaiya Lal, who had
      no son, in the year 1962,  and  a  registered  deed  of  adoption  was
      executed on 30.10.1962.   Kanhaiya  Lal  died  on  06.01.1992  leaving
      besides his adopted son, Respondent No. 1, Mahaveer Prasad,  his  wife
      Sohanbai and his daughter Kantabai.  Sohanbai died on  01.03.2001  and
      Kantabai on 25.11.2007  leaving  behind  two  daughters,  named  Vijay
      Lakshmi and Kanchan Devi, Appellant No. 4 and 5 respectively.  In  due
      course, the name of Kantabai who had died during the pendency  of  the
      instant appeals, was deleted from the array of the parties.

   3. The respondent No. 1, Mahaveer Prasad, filed an application before the
      learned Trial Court under Section 372 of  the  Indian  Succession  Act
      1925 (for short hereinafter referred to as ‘the Act’) for issuance  of
      succession certificate, to enable him to collect  the  rent  from  the
      tenants of the ground floor and basement thereunder of the property of
      Kanhaiya Lal (who was by then dead)  situated  at  Plot  No.  2,  Bapu
      Bazar, Udaipur and the deposits in the bank account of  the  deceased.
      This was preceded by a Will dated 15.11.1978, which the Respondent No.
      1 claimed to have been executed by Kanhaiya Lal, bequeathing  property
      mentioned therein to him.  As the records would reveal, this Will  was
      in supersession of earlier Wills dated 01.11.1962 and 23.12.1974.  The
      Respondent No. 1 founded his application for succession of certificate
      on the Will dated 15.11.1978, which according to him was the  last  in
      the line, validly executed by the testator Kanhaiya Lal.   While  non-
      applicant No. 1 and 2, Sohanbai (wife of Kanhaiya  Lal)  and  Kantabai
      (daughter of Kanhaiya Lal) in their  written-statement  supported  the
      application of the Respondent No.1 and  pleaded  that  the  succession
      certificate may be issued him as prayed for, the non-applicant  No.  3
      and 4 Chhabi Lal and Shakuntla alleged that the Will dated  15.11.1978
      was a fictitious one and asserted that the one dated  23.12.1974,  was
      the last valid Will of Kanhaiya Lal.  Non-applicant No. 5 and 6  Vijay
      Lakshmi and Kanchan Devi, both daughters of Kantabai, did also  avowed
      that the Will dated 15.11.1978 was a fake document and the  one  dated
      23.12.1974 was the last valid Will for the testator above named.

   4. On the basis of the pleadings of the parties, the learned Trial  Court
      framed the following issues:

      “1.   If  deceased  Shri  Kanhaiya  Lal  had  adopted  applicant  Shri
      Mahaveer  Prasad  in  a  legal  manner  and  on  15.11.1978,  he   had
      voluntarily executed a legal WILL in favour of the applicant?

      2.    If on 23.12.1974, deceased Shri Kanhaiya Lal  had  executed  his
      Will and deposited with the Registrar, Udaipur and this Will  is  last
      and legal Will of late Shri Kanhaiya Lal ?

      3.    If applicant Shri Mahaveer Prasad or out of objectors,  who  are
      entitled to get succession certificate? “




4.1   Admittedly by order dated 09.02.2006, the learned Trial Court  deleted
the issue No. 2 quoted hereinabove, thus leaving the issues  No.  1  and  3,
originally framed, to be decided in the proceedings before it.

5.    Both sides adduced  evidence,  both  oral  and  documentary.   Amongst
others, the Will dated 15.11.1978 was proved as Exh. 2  and  the  Respondent
No. 1 examined himself in respect of the said document and  also  Mohan  Lal
AW 3 and Mangi Lal AW 4, more particularly, to prove the attestation of  the
said document.  He also examined Mr. P S Mamik, a handwriting  expert.   The
contesting non-applicants also inter-alia examined one Shri Achyut, DW 1,  a
handwriting expert, apart from other witnesses.

6.    The learned Trial Court, on a consideration of the  pleadings  of  the
parties and the evidence on record, held that the Will dated 15.11.1978  was
not a valid one and had been deceitfully obtained by  converting  two  blank
papers, on which the signatures  of  the  testator  Kanhaiya  Lal  had  been
procured by fraud.  It instead  returned  a  finding  that  the  Will  dated
23.12.1974 was last the valid instrument of bequest, though as  adverted  to
hereinabove the issue No. 2, pertaining thereto, had been deleted.

6.1   The learned Trial Court in concluding as above, though did notice  the
testimony of AW 3 Mohan Lal, that he had signed the  Will  dated  15.11.1978
and that his signatures had been obtained in such capacity by  the  testator
himself and further, that he (testator) had also signed  on  every  page  of
the document in his presence, disbelieved this witness,  amongst  others  on
the ground, that he had been at the relevant point of  time,  working  as  a
salesman in the shop of the testator and that he  had  failed  to  correctly
recollect many facts pertaining to the  strained  relationship  between  the
legatee, the Respondent No. 1,  Mahaveer  Prasad  and  the  testator.    The
learned Trial Court rejected as well the testimony of AW  4  Mangi  Lal,  to
the effect that his uncle Kanhaiya  Lal  Kunawat  was  the  other  attesting
witness, who had signed the disputed Will, Exh. 2, in proof  of  attestation
of the execution thereof by the testator.

7.    According to the learned Trial Court, this witness was  not  reliable,
as the son of Kanhaiya Lal Kunawat though  alive,  was  not  produced  as  a
witness  and  he  (Mangi  Lal)  too  was  the  employee  of  testator.   The
identification of the signatures of the testator  Kanhaiya  Lal  Kunawat  on
the Will, Exh. 2, by Mangi Lal was also discarded, on  the  ground  that  he
had faltered to correctly recall the year of execution of the document.  The
learned Trial Court was of the view, that as at the  relevant  time  of  the
family members were living together with the  Kanhaiya  Lal,  and  shared  a
cordial relationship, there was  no  justification  for  the  disputed  Will
dated 15.11.1978, by superseding the earlier  bequest  made  vide  the  Will
dated 23.12.1974.

8.    Shri P. S. Mamik, the handwriting expert, examined by  the  Respondent
No.1 on an examination of the Will,  Exh.  2  and  the  disputed  signatures
thereon, had opined that those were in fact of the  deceased  Kanhaiya  Lal.
This witness also proved his report to this effect,  Exh.  3.   The  learned
Trial Court instead relied on  the  opinion  of  Shri  Achyut,  NAW  1,  the
handwriting expert examined by the contesting  non  applicants  though  this
witness too had opined that the signatures appearing on the  disputed  Will,
Exh. 2 were of the testator Kanhaiya Lal, but had expressed  his  view  that
having regard to the contents of the document and the spacing of the  lines,
it appeared to have been prepared later.

9.    Being aggrieved by this determination, the Respondent No. 1  preferred
appeal before the High Court and as referred to hereinabove, SB Civil  Misc.
Appeal No. 414/1997 preferred by the Respondent No. 1  was  allowed  and  DB
Civil  Special  Appeal  No.  87/2003  instituted  by  the   appellants   was
dismissed.  The High Court reversed the decision  of  the  Trial  Court  and
allowed the appeal filed  by  the  Respondent  No.  1  herein  and  directed
issuance of the succession certificate in his favour.

10.   On an elaborate assessment of the pleadings and the evidence  adduced,
the High Court at the threshold, noticed the error apparent on the  face  of
the records committed by the learned Trial  Court  in  examining  the  rival
contentions in the context of the  Will  dated  23.12.1974,  which  was  the
subject matter of issue No. 2 that stood  deleted.   It  recorded  as  well,
that on the consensus of the parties, the disputed Will,  Exh.  2  had  been
referred to the Forensic Science Laboratory and that  the  report  furnished
did prove that the signatures appearing thereon were of  the  testator.   It
discarded the testimony of NAW 1 Shri Achyut Narayan  that  though  the  two
sheets of paper comprising the Will, Exh. 2 did contain  the  signatures  of
the testator, those had been obtained on blank  papers  and  were  later  on
converted into the instrument of dispensation.  The High Court held  amongst
others that the evidence of Mahaveer Prasad and his witnesses Mohan Lal  (AW
3) and Mangi Lal (AW 4) proved the execution and  attestation  of  the  will
Exh. 2.  The  High  Court  did  also  take  notice  of  the  fact  that  the
Respondent No. 1, had been taken in adoption by the  testator,  a  fact  not
disputed and that in absence of any Will, he (Respondent  No.1)  would  have
even otherwise, succeeded to the property of Kanhaiya Lal in that  capacity.
      It viewed the disputed Will to be an instrument,  whereby  the  status
of the Respondent No. 1 as the son of the family  had  been  restored  after
initial misgivings.  It also dismissed the grounds on  which  the  testimony
of attesting witnesses Mohan Lal and that of Mangi Lal  qua  attestation  by
his uncle Kanhaiya Lal Kunawat  had  been  rejected  by  the  learned  Trial
Court.   The  fact  that  the  non-applicants,  who  claimed   to   be   the
beneficiaries of the Will dated 23.12.1974 had not  at  any  point  of  time
sought for a probate thereof was noticed as well. That the  application  for
succession certificate made by the Respondent No. 1, was  supported  by  the
wife and the daughter of the testator, also weighed with the High  Court  in
his (Respondent No. 1) favour.

11.   The learned counsel for the appellants  has  strenuously  argued  that
neither the execution of the Will, Exh. 2, nor the attestation  thereof  has
been proved and thus the High Court was clearly in error  in  reversing  the
determination made by the learned Trial Court.  According to her,  the  last
valid Will of the testator Kanhaiya Lal was dated 23.12.1974,  a  registered
document.  She urged that the disputed Will  being  an  instrument,  whereby
patently  unfair  and  illogical  dispensations  have  been  made,  is  also
otherwise rejectable, being surrounded by several suspicious  circumstances,
which the propounder had failed to dispel.  In  her  endeavour  to  buttress
the above contentions, the learned counsel for  the  appellants,  had  drawn
our attention to the contents of the Wills dated 23.12.1974 and 15.11.1978.

12.   As against this, the learned counsel for the Respondent  No.  1  urged
that the Will, Exh. 2 had been duly executed by the testator  Kanhaiya  Lal,
as required in law  and  in  the  face  of  the  evidence  on  record,  more
particularly, of Mohan Lal (AW 3) and Mangi  Lal  (AW  4),  the  attestation
thereof also stands established.  Apart from the fact  that  Respondent  No.
1, had been adopted by the testator and that he was thus  the  only  son  of
the family for all intents and purposes, the  contents  of  the  Will  dated
15.11.1978, did clearly explain the bequest in his  favour,  he  maintained.
The learned counsel asserted that the fact that the  wife  and  daughter  of
Kanhaiya Lal did support the application of the Respondent  No.  1  for  the
succession certificate authenticated as well, the validity of  the  disputed
Will, Exh. 2.  He pointed out that the succession certificate  was  for  the
limited purpose of collecting the rent paid by the  tenants  in  respect  of
the premises, mentioned therein and lying in deposit with the bank and  thus
in any view of the matter, the instant appeal lacks in merit and  is  liable
to be dismissed.

13.   We have traversed the pleadings, the evidence on record to the  extent
necessary  and  have  also  carefully  analysed  the   competing   arguments
advanced.  Undisputedly, the Respondent No. 1 had been adopted  by  Kanhaiya
Lal in the year 1962 and had become a part of the family  thereby.   As  the
Will dated 15.11.1978, Exh. 2 would reveal, it was  preceded  by  two  Wills
dated 01.11.1962  and  23.12.1974  which  witnessed  different  patterns  of
disposition  of  the  properties  mentioned   therein.    The   Will   dated
15.11.1978, as the recital thereof,  would  reveal  superseded  the  earlier
Wills dated 01.11.1962 and 23.12.1974.  The contents of this  Will,  Exh.  2
discloses that the testator being earlier annoyed with Respondent No. 1  and
as advised by others, had sought to disinherit him and with  that  state  of
mind had executed the Will  dated  23.12.1974.   However,  following  deeper
reflections and self introspections generally  as  well  as  review  in  the
spiritual perspectives, he decided to cancel the Will dated  23.12.1974  and
instead execute the one dated 15.11.1978.  Thereby,  the  property  referred
to therein was bequeathed to Respondent No. 1, who was also  entrusted  with
the responsibility  of  looking  after  his  (testator)  wife  Sohanbai  and
daughter Kantabai during their lifetime.   The  wife  and  daughter  of  the
testator, as named above were also given full rights to live  in  the  house
named  ‘Jain  Rishabh  Bhawan’  which  stood  otherwise  bequeathed  by  the
instrument, in favour  of  Respondent  No.  1  Mahaveer  Prasad.   The  Will
mentioned as well, that the testator had written and verified  the  document
in presence of and under the signatures of two witnesses, namely, Mohan  Lal
Jain and Kanhaiya Lal after considerable  thought  and  voluntarily  without
any pressure.  These documents, also contained the signatures of Shri  Mohan
Lal  Jain  and  Shri  Kanhaiya  Lal,  as  witnesses  who  had  endorsed  the
signatures of the testator thereon as certified by them.

14.   On a perusal of the evidence of AW 3, Mohan Lal and AW 4,  Mangi  Lal,
it is apparent that these two witnesses have  been  able  to  satisfactorily
prove the execution  of  the  Will  dated  15.11.1978  and  the  attestation
thereof by two witnesses, as required in law.  As adverted to herein  above,
the signature of the testator Kanhaiya Lal,  on  these  documents  has  been
endorsed by both the  handwriting  experts.   The  report  of  the  Forensic
Science Laboratory also corroborates this finding.  The  view  expressed  by
Shri Achyut Narayan, NAW 1 that though the  signatures  are  genuine,  those
had been obtained on blank papers, which later on were  converted  into  the
Will, in the face of the overwhelming testimony of AW 3, Mohan  Lal  and  AW
4, Mangi Lal, had been rightly rejected by the High Court.  The recitals  of
the Will, Exh. 2, also provide sufficient justification for the  bequest  in
favour of Respondent  No.  1,  Mahaveer  Prasad.  The  fact  that  wife  and
daughter  of  the  testator  had,  at  all  relevant  time,  supported   the
Respondent No. 1 in his initiatives to obtain the succession certificate  is
also a formidable factor in his favour as well  as  in  endorsement  of  the
genuineness of the Will, 15.11.1978.   Noticeably  though,  the  Will  dated
23.12.1974 had been  registered,  no  steps  had  been  taken  by  the  non-
applicants to obtain the probate thereof.  It  is  not  unlikely,  that  the
testator, out of, some disappointment and reservations qua the adopted  son,
Respondent No. 1 had in the rush of moment and as  advised  by  the  persons
interested, as recited in the Will dated 15.11.1978, did momentarily  decide
to disinherit the only son of the family.  However,  on  an  equanimous  re-
consideration  and  following  indepth  and  dispassionate  cogitation,   he
eventually decided again  to  bequeath  all  his  properties  to  him.   The
approval of the mother and the sister to this bequest is a strong  indicator
to this effect.  We are  thus  of  the  view,  that  in  the  above  factual
background,  the  dispensation  made  by  the  testator  in  favour  of  the
Respondent No. 1  cannot be repudiated to be in defiance of logic or  unfair
vis-à-vis the other members of the family.  We do  not  find  as  well,  any
vitiating or suspicious circumstance invalidating the bequest.

15.   The upshot of the above narration is that,  the  conclusions  recorded
by the High Court are plausible being based on the materials on  record  and
thus do  not  warrant  any  interference  in  the  appeals.  On  an  overall
consideration of the pleadings and the evidence  adduced,  the  findings  of
the learned Trial Court have been  rightly  reversed.   These  appeals  thus
fail and are dismissed.

16.   No cost.


                                                                ..……………………J.
                                                      (R. K. Agrawal)


                                                                ……………………..J.
                                                      (Amitava Roy)
New Delhi
Dated: 02 July, 2015