RASH BEHARI SEN Vs. ANAND SARUP BHARGAVA

JUDGEMENT

(1.) THIS is a first appeal against an order of Shri K. S. Sidhu, Sub-Judge 1st Class, delhi, dated 31st August, 1959 refusing to set aside an award.

(2.) BY means of an agreement of sale entered into between Shri R. B. Sen and shri A. S. Bhargava on 15-4-1952, the latter was to purchase a plot of land situate in Darya Ganj, belonging to the former, for a sum of Rs. 4,50,000/-, out of which rs. 50,000/- were paid as earnest money and the balance was to be paid at the time of registration of the agreement. Clause 11 of the agreement provided for the settlement of all disputes regarding this agreement by two arbitrators, one to be no nominated by each party, and in case of difference between the arbitrators, by the Umpire nominated by them. The sale did not go through and each party charged the other with the breach of agreement. Ultimately it was decided between the parties that the matter should be referred to arbitration in pursuance of clause 11 of the agreement. Shri Sen nominated Mr. Sardar Bahadur, Advocate, as his arbitrator and Mr. Bhargava nominated Shri P. D. Bhargava, Advocate, as his arbitrator. Before entering on the arbitration, the aforesaid two arbitrators appointed Mr. Bishen Chand, Advocate, as an Umpire. The arbitrators took pretty long time in deciding the matter and although they entered upon arbitration in 1954, they were able to give an award only on 19-101957. This award was unanimous and by means of if the arbitrators awarded a sum of Rs. 42,665/- to Shri A. S. Bhargave along with interest at the rate of three per cent per annum from the date of the award till the date of realisation of the amount. Notice of the filing of this award was given to the parties and Shri Sen then made an application to the learned Subordinate Judge, under section 30 of the Indian Arbitration Act, for setting aside of the award. In this application a large number of objections were taken against the award. The learned Subordinate judge has observed in his judgment as under :--"there are as many as 22 grounds taken up by Mr. R. B. Sen for the purpose of avoiding this award. In fact he has not left anything which he could possibly catch hold of from the provisions of the Arbitration Act and the cases decided thereunder and which, if proved, may give him a chance of getting the award set aside. ' the learned Subordinate Judge, in his final order, negatived all the said objections and refused to set aside the award.

(3.) THE fourth contention of Mr. Sastri, however, seems to have a good deal of force. Under section 34 of the Civil Procedure Code the Courts have specifically been given powers to award future interest. An arbitrator, however, is not a Court and evidently the power given by section 34 to the Courts cannot be exercised by an arbitrator interest to the abitrators and they had, in my opinion, no jurisdiction to award future interest from the date of the award till the date of realisation of the awarded amount. This is an obvious error on the face of the award but the award in this respect can be amended by modifying this part without affecting the other part of it. I would, therefore, modify the award to the extent that the clause with regard to the future interest will be taken out of the same and will have no operation. Under section 29 of the Act, however I would award interest as 3 per cent per annum to Shri Bhargava, respondent, from the date of the decree of the learned Subordinate Judge till the realisation of the amount.