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Supreme Court of India
M/S Oriental Structural … vs State Of Kerala on 22 April, 2021Author: Aniruddha Bose
Bench: Surya Kant, Aniruddha Bose
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 3454 OF 2011
M/s. Oriental Structural Engineers Pvt. Ltd. …Appellant(s)
Versus
State of Kerala …Respondent(s)
JUDGMENT
ANIRUDDHA BOSE, J.
The appellants were awarded a contract by the State of
Kerala for upgradation of a State Highway for two stretches, from
MuvattupuzhaThodupuzha and Muvattupuzha–Angamaly. The
agreement in this regard was executed on 7 th November, 2002.
This appeal originates from disputes on certain issues arising
between the parties primarily relating to making payment to the
appellants under certain heads. In the present proceeding,
however, the only point of dispute on which arguments have been
Signature Not Verified
Digitally signed by
DEEPAK SINGH
Date: 2021.04.22
advanced before us is over entitlement of the appellants to receive
18:26:01 IST
Reason:
interest on delayed payment on the subjectheads, which were to
1
be paid by the employer in local currency as per the stipulations
in the said agreement. The agreement had provision for resolution
of disputes by a Disputes Review Board (DRB) which was to make
recommendations at the first instance. If the recommendations
were not acceptable to any of the parties, such disagreeing party
was required to give notice to commence arbitration within a
specified time and thereafter the dispute was to be settled
through arbitration. So far as the controversies out of which this
appeal arises are concerned, disputes on three counts arose
between the parties, which could not be resolved at the stage of
DRB recommendations. Those disputes were referred to a three
member Arbitral Tribunal (the ‘Tribunal’ in short). We have
already referred to the scope of controversy involved in this
appeal. This controversy shall be henceforth referred to in this
judgment as dispute on delayed payment. We shall address that
issue only in this judgment.
2. The Tribunal passed the award in favour of the appellants
on this point and interest was directed to be paid on delayed
payment in relation to local currency component payable under
the agreement. This was, however, a majority award and not a
unanimous one as one of the members of the Tribunal gave a
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dissenting view. In the succeeding paragraphs of this judgment,
whenever we refer to the expression ‘award’, it shall mean the
majority award only. The award of the Tribunal was assailed by
the State of Kerala before the District Court at Ernakulam (the
Arbitration Court) by taking out an application under Section 34
of the Arbitration and Conciliation Act, 1996 (the1996 Act). This
application was allowed in part. Award of the Tribunal in favour
of the appellants on the point of interest on delayed payment was
set aside. The Arbitration Court also adjudicated upon two other
points, but as these points have not been urged before us, we do
not consider it necessary to deal with them here in this judgment.
The decision of the Arbitration Court was sustained in appeal by
a Division Bench of the Kerala High Court. This appeal is against
the said Bench decision of the High Court delivered on 17 th
September, 2009. The appellants want the award of the Tribunal
allowing their claim for interest on delayed payment to be
restored.
3. Entitlement of the contractor to interest was provided for in
subclause 60.8 of the agreement on delayed interim payment.
This clause has been reproduced in page 38 of the paperbook and
reads:
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“ Time of Payment and Interest
(a) The amount due to the Contractor under any
Interim Payment Certificate issued by the Engineer
pursuant to this Clause or to any other term of the
Contract shall subject to Clauses be paid by the
Employer to the Contractor as follows.
(i) (A) In the case of Interim Payment Certificates
within 42 days after the Contractor’s monthly
statement has been submitted to the Engineer for
certification pursuant to subclause 60.1. Provided
that if the Engineer’s Interim Certificate has not yet
been issued within said 42 days, the Employer shall
pay the amount shown in the Contractor’s monthly
statement and that any discrepancy shall be added
to or deducted from the next payment to the
Contractor and
(B) in the case of any monthly statement submitted
by the Contractor at a time when the Bank’s loan or
credit (from which part of the payment to the
Contractor are being made) is suspended within 14
days after such monthly statement is submitted.
Provided that if the Engineer’s Interim Certificate
has not yet been issued within said 14 days the
Employer shall pay the amount shown in the
Contractor’s monthly statement and that any
discrepancy shall be added to or deducted from the
next payment to the Contractor.
(ii) (A) In the case of the Final Payment Certificate
pursuant to Subclause 60.13 within 84 days after
the Final statement and written discharge have been
submitted to the Engineer for certification and
(B) In the case of the Final Statement submitted by
the Contractor at a time when the Bank’s loan or
credit from which part of the payments to the
Contractor are being made is suspended or for
which payment under (ii) (A) becomes due after 63
days of the date of notification of the suspension
notice payment will be made within 63 days after
the date of notification of the suspension pursuant
to Sub Clause 69.6(d) provided that if the Engineer’s
Final Payment Certificate has not been issued within
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the said 63 days, the Employer shall pay the
undisputed amounts shown in the Final Statement.
(b) In the event of the failure of the Employer to
make payments within the time stated the Employer
shall pay to the Contractor interest compounded
monthly at the rate(s) stated in the Appendix to Bid
upon all sums unpaid from the date upon which the
same should have been paid in the currencies in
which the payment are due. The provisions of the
Sub Clause are without prejudice to the Contractor’s
entitlement under Clause 69 or otherwise.”
4. The relevant provision of the appendix to the bid, the content
of which came for interpretation before the Tribunal and
thereafter before the two judicial fora stipulated:
“ANNEXURE- P-3
Kerala State Transport Project
Volume III
Section 6: Appendix to Bid Page 7.8
Origin of materials 60.3(a) (v) item Origin Currency
And Plants 60.3 (d) Plant, USA
Machinery & Germany, or
Spares any other US Dollars
Bitumen & Iran,
Thermoplastic Singapore or US Dollars
Paint any other
Bidder to complete
Rates of Interest upon 60.8 ________ percent of payments in local
Unpaid Sums currency. For other countries, refer to the
table below. Currency (as per SubClause 60.1) London InterBank On
Lending Rate
(LIBOR) Plus 2 percent
USS do
The above of interest for foreign currencies shall be supplied by the ”
Bidder, and these rates are subject to clarification/negotiation before
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formalizing the Contract.
5. In their bid document, the appellants had left the space for
recording the rate of interest for payment to be made in local
currency blank. The agreement contemplated payment to the
contractor in foreign currency as also in local currency. So far as
payment by foreign currency was concerned, as would be evident
from the appendix to the bid quoted in the preceding paragraph,
the London Interbank Onlending Rate (LIBOR) plus two per cent
was the specified norm. It was on this basis the State’s stand has
been that the rate of interest on delayed payment (as
contemplated in Clause 60.8) in local currency had to be treated
as “zero” or “nil”. It has also been the position of the State,
referring to certain communications made by the appellants that
there was waiver of the claim of interest by the appellants. In the
award, the Tribunal had repelled the argument of the State that
the words “zero” or “nil” could be read into the said column of the
“appendix to bid”. Relying on the Constitution Bench judgment of
this Court in the case of Secretary, Irrigation Department,
Government of Orissa & Ors. vs. G.C. Roy [(1992) 1 SCC 508],
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the Tribunal held that a person deprived of the use of money to
which he is legitimately entitled has a right to be compensated
and such compensation may be called interest, compensation or
damages. Two documents originating from the appellants in the
form of written communications were relied upon by the State
before the Tribunal to contend that claim for interest, in any
event, stood waived by claimants on delayed payment of the sum
which was to be made in local currency. First of these two
documents was a letter of the appellant dated 14th July, 2004
(Exhibit R1 before the Tribunal) and the next was another
written communication dated 3rd August, 2004 (Exhibit C72
before the Tribunal). The first letter issued by the appellants
addressed to the Chief Executive Officer, Kerala State Transport
Project reads :
“Dear Madam,
As discussed on the above subject we confirm
that there is no provision of interest on
delayed payment in the Contract and hence
interest will not be claimed.”
(quoted verbatim)
6. The next communication dated 3rd August, 2004 was
addressed to the same officer of the respondents. The text of this
communication is:
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“Dear Sir,
We wish to invite your kind attention to the
issue of release of payment against IPC1
General Items as recommended by DRB. As
a precondition for release of the said
payment, we were made to issue the above
referred letter dated 14.7.2004. Our
commitment not to claim any interest on the
said amount released by you be treated
purely as a goodwill gesture so that our
future payments are released to us without
any delay. The said letter is restricted to the
subject claim/item only.”
(quoted verbatim)
7. Before the Tribunal, the appellants had taken a point that
the said letter of 14th July, 2004 was issued under coercion or
duress. Their second plea on this count was that the content of
the first letter was restricted to release of withheld amount
recommended by the Review Board in respect of Interim Payment
CertificateI (IPCI). The Tribunal accepted the stand of the
appellants (claimants before it). It was, interalia, observed in the
award:
“The essential element of waiver is
intentional relinquishment of known right.
The claimant has stated that the said letter
was given by them under coercion. This
holds goods in view of the fact and
circumstances of the case. It is also noted
that the said letter dated 14.7.04 (ext. R1) is
not even mentioned in the defence
statement dated 29.1.05. Nor has this issue
been raised before the DRB. So the
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argument of the respondent that the letter
dated 14.7.04 (ext. R1) is a waiver of the
rights of the claimant does not stand. The
fact that this letter was issued at the time of
receiving payment in respect of IPC. I
suggests that this was given under coercion.
The waiver does not apply to the instant
case. This is corroborated by the fact that
the claimant has been continually agitating
for the payment of interest before and after
the issuance of the said letter. As discussed
earlier, payment of interest on unpaid sums
was due under the terms of the contract
and under the law. The recommendation of
the DRB made after due deliberations and
discussions with the parties has relevance
in the matter.”
(quoted verbatim)
The Tribunal directed interest on delayed payment in
paragraphs 1.6 to 1.8 of the award. Extract from the award
containing these paragraphs would appear later in this
judgment.
8. The majority view of the Tribunal was that the contract itself
provided for payment of interest with regard to local currency and
foreign currency. The plea of the appellants has been that there
was no waiver and in any event the communication of 14 th July,
2004 followed by that of 3rd August, 2004 related to IPCI only.
This stand had been broadly accepted by the Tribunal. The
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Tribunal had also accepted the appellants/claimants’ stand that
there was no waiver on claim of interest in respect of all sums
due for which Interim Payment Certificates had been issued. The
Tribunal’s finding on that aspect was buttressed by the fact that
the appellants/claimants had continued to raise demand for
interest subsequent to the issue of those two communications.
These were essentially findings on facts.
9. The Arbitration Court and the Appellate Court in sustaining
the State’s application for setting aside the award were of the view
that the contract could not be construed to contain provisions for
interest on delay in payment with regard to the local currency
component contained in the agreement, as the appellants did not
fill up the blank space with the rate of interest. Opinion of the
Appellate Bench was that in the event it was intention of the
claimants to retain their entitlement to interest on delayed
payment under that head, they ought to have had filled in the
blank space in the “appendix to bid”. Another facet of the High
Court’s reasoning was that the respondents might have had been
persuaded to accept the appellants’ bid on the basis that the
appellants would claim no interest on delayed payment in such
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situation, as this factor could have made their bid more
competitive.
10. This appeal, in substance, is an extension of a proceeding
under Section 34 of the 1996 Act. To go into the question of
legality of the decisions made by the two judicial fora, we need to
test first if the grounds of challenge to the award met the test laid
down by this Court in the case of Oil Natural Gas Corporation
Ltd. vs. Saw Pipes Ltd. [(2003) 5 SCC 705]. Contention of the
respondents has been that the Arbitral Tribunal’s order stood
vitiated under the “patent illegality” principle spelt out in that
judgment. This principle came under the broad heading of “Public
Policy” test, applying which an arbitral award could be set aside.
What would constitute patent illegality has been elaborated by
this Court in a later judgment, Associate Builders vs. Delhi
Development Authority [(2015) 3 SCC 49]. An award would be
invalidated, as per this authority, if the same was in
contravention of substantive law of the country or contravention
of the “Arbitration Act itself”. In paragraph 42.3 of the Report (in
the case of Associate Builders), it has been held:
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“42.3 (c) Equally, the third subhead of patent
illegality is really a contravention of Section
28(3) of the Arbitration Act, which reads as
under:
“28. Rules applicable to substance of
dispute.(1)(2)* * *
(3) In all cases, the Arbitral Tribunal shall
decide in accordance with the terms of the
contract and shall take into account the
usages of the trade applicable to the
transaction.”
This last contravention must be
understood with a caveat. An Arbitral
Tribunal must decide in accordance with the
terms of the contract, but if an arbitrator
construes a term of the contract in a
reasonable manner, it will not mean that the
award can be set aside on this ground.
Construction of the terms of a contract is
primarily for an arbitrator to decide unless
the arbitrator construes the contract in such
a way that it could be said to be something
that no fairminded or reasonable person
could do.”
11. The High Court in the appeal concurred with the Arbitration
Court and concluded that omission to include the rate of interest
in the bid document, the “appendix to bid” to be specific, had
resulted in creation of contractual term that there would not be
any claim for interest on delayed payment (as per Clause 60.8) so
far as payment in local currency component contained in the
agreement is concerned. In our opinion, however, the
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interference with the award by the Arbitration Court on this
ground was unwarranted. The underlying reasoning of the
Appellate Court and earlier, the Arbitration Court on this point is
that the Tribunal went beyond the contractual term in awarding
interest. The case of G.C. Roy (supra) and a later decision of this
Court, Reliance Cellulose Products Ltd. vs. ONGC Ltd. [(2018)
9 SCC 266], were relied upon before us by the appellants to
sustain the Tribunal’s findings. These decisions are sought to be
distinguished on behalf of the respondents on the ground that
the former decision related to interest pendente lite and both
these cases were under the Arbitration Act, 1940. Under the said
statute, an arbitrator had power or jurisdiction to grant pre
reference interest under the Interest Act, 1978 as also pendente
lite and future interest. Such jurisdiction stood curbed only if
express terms of the contract precluded payment of interest.
Referring to another authority, the Union of India vs. Bright
Power Projects (India) (P) Ltd. [(2015) 9 SCC 695], this Court
highlighted the position of law on grant of interest under Section
31(7) of the 1996 Act. In the case of Bright Power Projects
(supra), it has been opined by this Court that unless otherwise
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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. In the dispute
which forms the subjectmatter of this appeal, being the
agreement, there was no specific exclusion of payment of interest
on delayed payment in relation to the local currency component.
12. On the other hand, the specific term of the agreement
entered into by and between the parties provided for payment of
interest on delayed payment as terms of the contract. What was
not specifically agreed upon was the rate at which such interest
would be paid. The blank space in the “appendix to the bid”, in
our opinion, cannot be construed as cancellation of the clause
providing for payment of interest of delayed release of funds. We
do not think the Appellate Court or the Arbitration Court was
right in adopting the approach that by not specifying the blank
space provided for filling in the interest rate. We are of the view
that to come to such an inference, active exclusion of payment of
interest under that head was necessary to have been
incorporated in the agreement. Though the case of G.C. Roy
(supra) was delivered in a dispute to which the 1940 Act was
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applicable, the Constitution Bench of this Court has laid down
certain general proposition or principle on the aspect of grant of
interest. This general proposition was referred to by the Tribunal.
It has been held in paragraph 43.1 of the Report (in the case of
G.C. Roy):
“43. The question still remains whether
arbitrator has the power to award interest
pendent lite, and if so on what principle. We
must reiterate that we are dealing with the
situation where the agreement does not
provide for grant of such interest nor does it
prohibit such grant. In other words, we are
dealing with a case where the agreement is
silent as to award of interest. On a conspectus
of aforementioned decisions, the following
principles emerge:
(i) A person deprived of the use of money to
which he is legitimately entitled has a right to
be compensated for the deprivation, call it by
any name. It may be called interest,
compensation or damages. This basic
consideration is as valid for the period the
dispute is pending before the arbitrator as it is
for the period prior to the arbitrator entering
upon the reference. This is the principle of
Section 34, Civil Procedure Code and there is
no reason or principle to hold otherwise in the
case of arbitrator…..”
13. The underlying principle guiding award of interest is that
interest payment is essentially compensatory in nature. But as
we have already observed, in the case before us, interest on
delayed payment formed part of the contract itself. The
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agreement did not contain any express exclusion clause on
payment of interest on delayed payment whether on component
of payment in foreign currency or local currency. We accept the
reasoning of the Tribunal on the basis of which it rejected the
respondents’ plea of waiver. This was a finding of fact on
appreciation of materials placed before the Tribunal. One of the
reasons behind the decisions of the Appellate Court and
Arbitration Court was that the appellants, while bidding, had
given up their claims for interest. In substance, the respondents’
assertion is that the Tribunal went beyond the contractual terms,
and the said two fora sought to invoke the principle of law
contained in the third subhead of the “patent illegality” principle
elaborated in the case of Associate Builders (supra).
14. The Appeal Court accepted reasoning of the Arbitration
Court that the blank portion in the appendix to the bid would
imply “zero” or “nil”. This reasoning, in our opinion, is flawed
and such an interpretation of the agreement would actually be
contrary to and beyond the terms of the contract. The Tribunal in
this case had already come to a factual finding on appreciation of
evidence that there was no such implication. Such an exercise on
the part of the Arbitration Court and the Appellate Court would
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constitute rewriting the contract, which is impermissible. The
Tribunal rejected the plea of waiver and we have reproduced its
reasoning on that point. We cannot hold such reasoning to be
perverse or improbable in the factual background of the present
case. The Tribunal in this case could have had awarded interest
as a compensatory or equitable measure, as there was no clause
providing for exclusion or ouster of interest payment on delayed
payment. The Tribunal determined the rate thereof in sub
paragraphs 1.6 to 1.8 of the award. This part of the award
specifies:
“1.6 It is, therefore, held that the Claimants
are entitled to interest on the amount as due
under any IPCs issued by the Engineer or
failing which, on the amounts as shown in the
Claimants monthly statements submitted to
the Engineer for certification and when were
not paid or had been withheld by the
Respondents and such interest shall be paid
by the Respondents for the period as 42 days
after the claimants’ respective monthly
statements had been submitted to the
Engineer for certification to the date of
payment thereof in full. The arbitral tribunal
further holds that on the unpaid sums and for
the period of delay in the payment thereof as
stated hereinabove, the Respondents shall pay
to the claimants interest at the rate of 1% per
month compounded monthly such rate being
representative of the prevalent rate of access
to money that the claimants were deprived of.
1.7 The Arbitral Tribunal therefore directs
that the Respondents shall pay to the
claimants interest on the unpaid sum of Rs.
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2,15,72,150/ for the period of the due dates
of payment till the actual dates of full
payment of such amount at the rate stated in
para 1.6 above in respect of IPCs No. 2 & IPC
No. 4.
1.8 The Respondents shall further pay to
the claimants such interest on the unpaid
sums in respect of other IPCs No. 5 to 14
issued by the Engineer or the Claimants
monthly statements submitted to the Engineer
for certification for the period from the due
dates of payment till the actual dates of full
payment at the rate as stated in hereinabove.
The respondents are also directed to pay
further interest at the rate of 12% per annum
on the interest amount determined pursuant
to para 1.7 and 1.8 hereinabove from such
dates of payment of the principal amount to
the date of award.”
15. The Appellate Court’s rationale that such blank interest
column might have had resulted in acceptance of the bid of the
appellants as their bid could have been more competitive on the
assumption that the other bidders might have had pressed for
interest in that column is not acceptable to us. We do not find
any material from which such a conclusion could be reached. No
material has been shown to us from which it can be inferred that
omission to fill in the blank space gave the appellants some kind
of competitive edge in the bid process. We also do not know if
other bidders had left the space blank or filled the same with
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specified rate. The Arbitration Court’s view, sustained by the High
Court is tainted with an element of speculation on this point.
16. We do not find any flaw in the reasoning of the Arbitral
Tribunal that the contract did not prohibit the award of interest
in respect of delayed payment in local currency component
specified therein. This being the position, in our opinion, the
contrary view expressed by the Arbitration Court in a proceeding
under Section 34 of the Act, which view was upheld by the
Appellate forum, breaches the permissible boundaries for
encroaching upon an award as laid down in Saw Pipes case
(supra).
17. In our opinion, the view taken by the Tribunal on
consideration of the contract was both reasonable and possible
view. We, however, are of the opinion that the rate at which
interest has been directed to be paid as contained in paragraphs
1.6 and 1.8 of the award, which we have reproduced above, are
rather excessive. As the agreement is silent on the point of rate
of interest but provides for payment of interest on delayed
payment, the Tribunal’s exercise of fixing the rate should have
been on the basis of applying the principle laid down in
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paragraph 43.1. in the case of G.C. Roy (supra). The said
principle is applicable in a proceeding under the 1996 Act as well.
This principle has been broadly incorporated in Section 31(7) (a)
of the 1996 Act. The only difference between the situation
contemplated in the aforesaid provision and the facts of this case
is that the agreement involved is not silent on interest entitlement
of the appellants on delayed payment but the agreement contains
provision for such payment. Only the rate at which interest
would be payable remained unspecified. In our view, simple
interest at the rate of 8% would be just and equitable on the sum
left unpaid, calculated otherwise on the basis of subparagraphs
1.6. to 1.8 of the award. We, accordingly, set aside the judgment
of the Division Bench of the High Court of Kerala impugned in
this appeal on the point of entitlement of the appellants to receive
interest on delayed payment in relation to local currency
component of the contract. As a consequence, judgment of the
Sixth Additional District Judge, Ernakulam, shall also stand
invalidated. The award of the Tribunal shall stand sustained so
far as direction to pay interest on delayed payment of the local
currency component of the agreement is concerned, but the rate
of interest on the sum shall be computed in the manner
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prescribed in paragraphs 1.6, 1.7 and 1.8 and shall be at 8%
simple interest per annum.
18. The appeal is allowed in the above terms.
19. There shall be no order as to costs.
……………………………J.
(SURYA KANT)
………………………….J.
(ANIRUDDHA BOSE)
NEW DELHI
APRIL 22, 2021
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