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Chacko Geevarghese Vs. State of Kerala and ors. - Court Judgment

LegalCrystal Citation
SubjectArbitration
CourtKerala High Court
Decided On
Case NumberC.R.P. Nos. 89 and 90 of 1981
Judge
Reported inAIR1982Ker333
ActsCode of Civil Procedure (CPC) , 1908 - Sections 47; Arbitration Act, 1940 - Sections 17
AppellantChacko Geevarghese
RespondentState of Kerala and ors.
Appellant Advocate M.P. Abraham,; P. Jayasankar and; N. Baby George, Ad
Respondent AdvocateGovt. Pleader
Cases Referred(vide Devan KrishnanKartha v. Kochu Mohamed Pariathu.
Excerpt:
.....section 47 of code of civil procedure, 1908 and section 17 of arbitration act, 1940 - petition for execution of decree - date and amount could be ascertained from construction of decree - having regard to terms of decree executable notwithstanding omission to mention exact figure of retention amount - lower court directed to proceed with execution petition on basis that retention amount provided under decree and amount referred to by way of retention amount in execution petition is same. - - 20,000/- (rupees twenty thousand only) as well as the retention amount' 3. the retention amount, it will be noticed, had cot been specifically stated in the award. it is therefore best to follow the dictates of common sense upon each particular case. we have no doubt therefore, but that award is..........amount'3. the retention amount, it will be noticed, had cot been specifically stated in the award.4. execution petition no. 65 of 1979 was thereafter filed by the petitioner, for executing the decree. that was opposed by the respondents, the state and its officers. the revision petitioner produced two certificates exts. a1 and a2 issued by the executive engineer, giving the details relating to the retention amount. the sum due by way of retention amount as disclosed by the certificates comes to rs. 44,717/-. there does not appear to be any dispute regarding the genuineness at the certificate or the correct-ness of the amount, (even in the course of the arguments of these revision petitions, i ascertained from the government pleader whether there was any dispute regarding the.....
Judgment:
ORDER

Sukumaran, J.

1. The two revision petitions are connected and have been filed by the same contractor, who had undertaken to carry out certain works relating to the Kallada Irrigation Project.

2. The revision petitioner had entered into, with the Government, an agreement for the execution of work on 13-4-1973. Disputes which arose in the course of the execution of the work had been referred to the Chief Engineer-Arbitrator in the manner enjoined by the provisions of the contract. He made an award on 26-11-1975. Pursuant thereto, an application, O. P. (Arbitration) No. 38 of 1975 was made under Section 17 of the Arbitration Act. That application was allowed and a judgment and decree in terms of the award were passed on 9-7-1976. These revision petitions concern only claims 9 and 10 referred to in the award. The operative portion of the award in respect of those claims reads :

'Claims-- (IX) and (X): The respondent shall release to the claimant the security deposit of Rs. 20,000/- (Rupees Twenty Thousand only) as well as the retention amount'

3. The retention amount, it will be noticed, had cot been specifically stated in the award.

4. Execution Petition No. 65 of 1979 was thereafter filed by the petitioner, for executing the decree. That was opposed by the respondents, the State and its officers. The revision petitioner produced two certificates Exts. A1 and A2 issued by the Executive Engineer, giving the details relating to the retention amount. The sum due by way of retention amount as disclosed by the certificates comes to Rs. 44,717/-. There does not appear to be any dispute regarding the genuineness at the certificate or the correct-ness of the amount, (Even in the course of the arguments of these revision petitions, I ascertained from the Government Pleader whether there was any dispute regarding the quantum of the retention amount as disclosed under Exts. A1 and A2 and as claimed by the revision petitioner. He stated that he had no instructions on this aspect.) There does not seem to have been any objection raised about the correctness of the amount at any relevant stage and it is therefore to be presumed that the amount actually due by way of retention amount is Rupees 44,717/-. The execution petition, as stated earlier, was resisted by the State and its officers on the ground that the decree did not give the exact retention amount and consequently the decree was unexecutable. The Court observed :

'Unless the amount is specified in the decree, the executing Court cannot by its own fix the amount.'

It fell that despite the production of Exhibits Al and A2, the executing Court cannot go behind the decree. In that view of the matter the objection of the respondents was upheld. The petitioner was advised to get the decree amended by appropriate steps on the original side and then apply for execution.

5. Guided by the observations of that Court, the petitioner filed I. A. No. 108 of 1980 in O. P. (Arbitration) No. 38 of 1975 for correcting the judgment and decree, by quantifying the retention amount as disclosed from Exts. A1 and A2. This application too was met with objection on the ground that the petition was not maintainable, that there was no error in the judgment and decree and consequently the petition was liable to be dismissed. That Court felt that in the circumstances disclosed, the Court could only remit the award for quantifying the amount and consequently an exercise of the power under Sections 152 and 153, C. P. C. to amend the judgment and decree could not be undertaken. The application was accordingly dismissed.

6. It is in the above desperate situation that the petitioner has approached this Court for reliefs. C. R. P. No. 89 of 1981 has been filed against the order in I. A. No. 108/80. C. R. P. No. 90 of 1981 was filed from the earlier order dated 18-12-1979, by which the Court had declined to execute the decree. (In respect of the latter revision petition, there was delay in the presentation of the same. That delay, however, was condoned by this Court). Counsel for the petitioner submitted that there was absolutely no impediment in executing the decree. As stated earlier, the actual sum due by way of retention amount does not appear to be in controversy. Exhibits Al and A2 would disclose the actual amount due by way of retention amount.

7. The first question that may be considered in this case is whether the judgment and decree passed in terms of the award, enabling the party to realise the retention amount but without mentioning the actual amount due thereunder, is an executable decree. Can it be said that merely for the reason that the actual figure is not given in the decree, a decree is not executable at all? On principle and precedents, the proposition that a decree is not executable at all in such circumstances, does not appear to be tenable.

8. It is not as though the awards without actually specifying the quantum of money payable thereunder are unheard of in arbitration proceedings. Wading through the case law in relation to such arbitral adjudications, one comes across numerous instances where the actual quantum of money is not specified, but is easily calculable or asccrtainable The question whether such an award is 'uncertain' and is therefore not enforceable, had received the attention of Courts from very early times. I am of the view that the observations contained in one of those very early decisions, express the principle with great lucidity. The decision is ex parte Ailcheson, (1823) 1 LJKB 48. The passage reads:

'It is very difficult to say what should be considered to be such an uncertainty in an award as to make it void. No precise rule can be laid down. It is therefore best to follow the dictates of common sense upon each particular case. If a man of common understanding upon reading over the award, can comprehend the full meaning and intention of the arbitration, then it is sufficiently certain.'

In the same volume, Gargey v. Aitcheson, (1823) 1 LJRKB 252, the following passage occurs :

'What sums each party paid is a mere question of arithmetic, the award is sufficiently certain.'

In Plummet v. Lee, (1837) 6 LJ Ex 141; (an award directed interest to be paid) :

'An award directed interest to be paid from the last settlement of Mr. Thomson. When action was brought on the award, objection was taken on the ground that the award was not final or certain inasmuch as it did not specify the day of settlement. Parke J. repelled the contention, holding that the time of last settlement was certain, and was not a matter in dispute between the parties. We have no doubt therefore, but that award is good. In the course of the arguments in that case, it was urged that nothing shall be intended against an award and what is uncertain about it may be helped by averment, relying on Cargey v. Aitcheson, (1823) 1 LJRKB 252; Beale v. Beale, Roll : Abr. 'Arbitrament' (R) 14, (1634) 1 Roll Abr 251, P1. 14 and Hanson v. Liversedge, (1866) 2 Vent 242.'

fn a much later case, Mathew v. Inland Revenue Commr., (1914) 3 KB 192, when a referee made an order for costs, without actually quantifying the amount so awarded by way of costs, it was held that a valid award was made, for although the reference did not fix the amount of costs, the costs could be ascertained by the Master, an officer of the Court. It was observed that the Master would assess the costs when the award is made a rule of the Court, the Master doing it as a ministerial officer. The effect of the case law on this aspect is summarised by Russell on Arbitration, 19th Edition, at page 246 in the following words :

'If the arbitrator gives the rule for calculating the amount of money to be paid, so that the rest is 'mere arithmetic' without staling the result of such calculation, the award is sufficiently certain according to the general rule.'

The approach of the Courts in respect of such cases is well illustrated by the observation of Best, J. in Cargey v. Aitcheson (Bramwell and Alderson's Reports, (1823) 2 B & C 170), where he observed :

'An award should always be supported unless there be some unanswerable objections to if.'

9. It is therefore clear that judged by the relevant principles, the award passed by the arbitrator in the present case was not vague or uncertain. It was one in respect of which a judgment and decree could be passed under Section 17. In the present case, the judgment and decree had been, as a matter of fact, passed on the basis of the award. It is not open to the State thereafter to contend that the award is uncertain or that it cannot be made the rule of the Court, or that a judgment cannot be based in terms of the award under Section 17.

10. When there is therefore a judgment and decree in the above terms, can the executing Court refuse to execute it merely because in the execution of the decree, the executing Court has to ascertain the actual amount provided under the decree? As stated earlier, the respondents do not dispute the fact that the retention amount is due, nor do they question that the amount due under that head and as disclosed by Exts. A1 and A2 is any other figure than Rupees 44,717/-. Having regard to the terms of the decree, I am of the view that the decree is executable notwithstanding the omission to mention the exact figure of retention amount. The contrary view taken by the executing Court is not tenable. A similar question arose before the Division Bench of Hyderabad High Court in Bapurao v. Hanumanth-rao. AIR 1950 Hyd 48. In that case, the decree directed that the plaintiff was entitled to receive from the defendant every year half of the Iskel (emoluments) of Patwari Giri. A contention was taken that the decree was only declaratory and not executable. This contention was repelled by the Division Bench. The learned Judges observed:

'The words of the decree clearly indicate that the decree is one for payment of a half of the Iskel of Patwari Giri which is payable at a particular period year after year. We therefore, hold that it is not a declaratory decree. Therefore, the question of the exe cutability of the decree cannot arise. The next argument advanced on behalf of the advocate for the appellant is that the decree does not mention any fixed amount nor is the date stipulated and being indefinite as regards the amount payable and the date when it is payable it is incapable of execution. We are of opinion that there is no force in this argument. In this case the decree does enjoin the payment of half of the Iskel of Patwari Giri, and what the half of the Iskel is, can very well be ascertained. It directs the payment of half of the amount that the appellant receives from the revenue by way of Iskel (emoluments) of Patwari Giri. As regards the date, it would be the date on which the appellant is paid the amount by the Revenue Department. The date and the amount could be ascertained from a construction of the decree and this is allowed under the law '.

11. That an ascertainment of the propertyin execution, where it is the subject matterof the decree, is permissible, appears to bethe view taken by the Travancore-CochinHigh Court also (vide Devan KrishnanKartha v. Kochu Mohamed Pariathu. AIR1955 NUC 6036).

12. In the light of the above discussion, I am of the view that the decree passed by the Court in O. P (Arbitration No. 38 of 1975 is executable. The executing Court, instead of pleading helplessness in executing the decree, should have taken steps to ascertain the amount as revealed from Exts. A1 and A2 and thereafter should have proceeded with the execution. In the view that I have taken, the order of the Court in E. P. No. 65 of 1979 is liable to be set aside. Normally I would have directed the ascertainment of the amount and fixation of the sum due by way of retention amount by the Court below. However, in view of the fact that there is no dispute whatever as to the actual amount due by way of retention amount, a further enquiry for the fixation of the amount is unnecessary. The executing Court will proceed on the basis that the decree on the basis of the award enables the petitioner to realise by way of retention amount, a sum of Rs. 44,717/-. Further execution will be proceeded with, on that basis.

13. I therefore allow C. R. P. No. 90 of 1981. The order of the Court below dismissing the execution petition is set aside. I direct the Court below to proceed with the execution petition, on the basis that the retention amount provided for under the decree is Rs. 44,717/- and the amount referred to by way of retention amount in the execution petition is the aforesaid figure.

14. In view of the fact that I have allowed C. R. P. No. 90 of 1981 and directed the execution to proceed in the manner indicated above, it is not necessary to consider the grievance of the petitioner in relation to the order passed in I. A. No. 108 of 1980. C. R. P. No. 89 of 1981 is dismissed in that view of the matter.

15. Counsel for the revision petitioner submitted that his client had been subjected to this harassment by the officers, for extraneous consideration. It is not necessary, nor am I called upon, to express a view on such a submission. A refusal on the part of the respondents to pay the amount awarded by the Arbitrator, when the award had become final and binding, and the judgment and decree in terms thereof had been passed, in the absence of any dispute regarding the actual amount due under the award, and the persistence of an unjust stand thereafter, probably generated such an impression in the revision petitioner. Having regard to the circumstances, it cannot be probably said that such an impression was wholly unjustified. The situation should have been happily avoided by a reasonable approach and attitude by the State and its officers.

16. The revision petitions are disposed of as above. The petitioner will be entitled to the costs in C. R. P. No. 90 of 1981.


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