TaxTMI 
TaxTMI 
2017 (12) TMI 1846
X X X X Extracts X X X X
X X X X Extracts X X X X
.... in this appeal, is whether the Arbitral Tribunal was justified in awarding interest on various claims for different periods to the claimant (Respondent No. 1), namely, (i) for a pre-reference period, i.e., 04.03.1996 to 05.05.1999 @ 15% p.a.; (ii) pendent lite, i.e., for the period from 06.05.1999 to 09.09.2002 @ 12% p.a.; and (iii) post reference period, i.e., 09.09.2002 till payment @ 18% p.a., total (first and second) Rs. 12,89,033/- on the awarded sum. Brief facts: 4. A works contract (repairing work of 25 No. stators of TAO-659 Traction Motors of Electric Locomotives type WCAMI of Electric Loco Shed-Valsad) was awarded by the Union of India (Railways)-the Appellant herein to Respondent No. 1 (claimant) on 19.12.1994. 5. In execution of the works contract, various disputes arose between the parties. Since the General Conditions of Contract (in short, "GCC") contained Clause 56(1) to decide the disputes arising out of the contract through arbitration, Respondent No. 1(claimant) invoked the arbitration Clause and filed an application in the High Court of Bombay Under Section 11(5) of the Arbitration and Conciliation Act (hereinafter referred to as "the Act") praying the....
X X X X Extracts X X X X
X X X X Extracts X X X X
....74 1.6 Payment under price variation clause 85,106 85,106 1.8 & 2.3 2.4 Payment of pre lite interest from 13.12.95 to 5.5.99 As accrued 12,89,033 Total 27,62,214 8. The Appellant-Union of India, felt aggrieved of the Arbitral Award, challenged its legality by filing an application Under Section 34 of the Act in Bombay High Court (Single Judge). 9. The Single Judge, by order dated 21.04.2003, allowed the appeal in part and made two modifications in the arbitral award with respect to the date of award of interest on the claim of Respondent No. 1 for damages and on the claim of one purchase item. The Single Judge made the interest payable from the date of award till realization. So far as the challenge to other claims including award of interest on such claims were concerned, the Single Judge rejected the Appellant's all objections and upheld the award in totality for all purposes. 10. Respondent No. 1 (claimant), felt aggrieved against that part of the order of the Single Judge which interfered in part in the arbitral award, filed appeal before the Division Bench. So far as the Appellant-Union of India was concerned, they did not file any ap....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 17. It was, therefore, her submission that the award to this extent was not legally sustainable and, therefore, it was liable to be set aside Under Section 34 of the Act. Learned Counsel elaborated this submission by placing reliance on the provisions of the Act and some decided cases cited at the Bar. 18. In reply, learned Counsel for Respondent No. 1 (claimant) supported the impugned judgment and contended that the aforementioned point urged by the Appellant was neither raised nor urged before the Arbitral Tribunal nor the High Court, i.e., Single Judge and also Division Bench and hence it cannot be permitted to be raised, for the first time, in an appeal Under Article 136 of the Constitution for want of any factual foundation and finding by any Court on such plea. 19. Having heard learned Counsel for the parties and on perusal of the record of the case, we are inclined to accept the argument of learned Counsel for Respondent No. 1 as, in our view, it has a force and hence deserves acceptance. 20. It is not in dispute that the Appellant did not raise the plea based on Clause 13(3) of the GCC against Respondent No. 1 at any stage of the proceedings either in their rep....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e-whether on facts or law, it has to be raised by the party at appropriate stage in accordance with law. If not raised or/and given up with consent, the party would be precluded from raising such plea at a later stage of the proceedings on the principle of waiver. If permitted to raise, it causes prejudice to other party. In our opinion, this principle applies to this case. 29. In our opinion, the Appellant is otherwise not entitled to raise the plea on yet another ground. It is not in dispute that the Appellant's application filed Under Section 34 of the Act was partly allowed by the Single Judge only to the extent of two claims regarding award of interest. In other words, the application suffered dismissal substantially on all other claims except two claims mentioned above. However, despite suffering substantial dismissal, the Appellant did not file any appeal to challenge the part dismissal of their application. 30. In this view of the matter, in our view, the order of the Single Judge insofar as it resulted in dismissal of the Appellant's application became final and attained finality. In order to keep the issue alive, the Appellant was under obligation to file re....