BHAGYANAGAR METALS LTD Vs. MAHANAGAR TELEPHONE NIGAM LTD

JUDGEMENT

(1.) This is an execution petition made by the decree holder seeking issuance of warrants of attachment for recovery of Rs. 90,52,617/- including interest commencing from 15.7.2002 to 31.7.2002 in the sum of Rs. 63,050/- and further interest from 1.8.2002 till the date of realization at the rate of 16 per cent per annum.

(2.) It is stated in the execution petition that the judgment debtor has made part payment in the sum of Rs. 4,61,58,302/- to the satisfaction of the arbitral award which was accepted by the decree holder under protest requesting their right to recover the rest of the amount in terms of the award dated 19.3.2002. The decree holder also wrote a detailed letter to the judgment debtor on 27.7.2002 but of no avail.

(3.) The judgment debtor filed reply to this petition repudiating the claim of the decree holder on the grounds inter alia that out of the total sum of Rs. 5,51,47,869 /- the judgment debtor has paid a sum of Rs. 4,61,58,302/- in terms of the award towards the satisfaction of that award after making deduction of Rs. 60,56,115/- against short closure of P.O. of 1998 and liquidated damages as the judgment debtor was within its right to deduct that sum for the reasons that the liquidated damages did not come under the purview of arbitration clause as the same fell out side the Arbitral Tribunal. The judgment debtor while objecting this part of the claim referred to para 16 of the Bid documents which deals with liquidated damages indicating that liquidated damages would not come under the purview of arbitration Clause 20. The judgment debtor also referred to the Arbitration award where learned arbitrator while dealing with this aspect observed as under: