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Bareilly Electricity Supply and Co. Ltd. Vs. State of U.P. - Court Judgment

LegalCrystal Citation
SubjectArbitration
CourtKolkata High Court
Decided On
Case NumberAward Case No. 125 of 1976
Judge
Reported inAIR1977Cal426
ActsElectricity (Supply) Act, 1948; ;Arbitration Act, 1940 - Section 30
AppellantBareilly Electricity Supply and Co. Ltd.
RespondentState of U.P.
DispositionApplication dismissed
Cases ReferredF. R. Absalom Ltd. v. Great Western
Excerpt:
- .....the arbitra-tion act, 1940 on the ground that there is an error of law apparent on the face of the award. paragraph xvii of the sixth schedule to the said electricity (supply) act, 1948 provides for certain definitions. under sub-clause (2) oi paragraph xvii clear profit has been indicated to mean the difference between the amount of income and the sum oi expenditure plus appropriations, made up in each case as indicated in the different sub-clauses. several expenditures property incurred under different heads have been allowed to be deducted. but sub-clause (xi) provides as follows :'(xi) other expenses (excluding interest on debentures and loans), admissible under the law for the time being in force in the assessment of indian income-tax and arising from and ancillary or incidental to.....
Judgment:

Sabyasachi Mukharji, J.

1. The petitioner is a company registered under the Indian Companies Act, 1913. During the year 1968-69 ending on 31st March, 1969 the liability on account of interest on hank overdraft, to the extent of R.s. 60,580.39 was deducted out of the income for that year on the ground that it. was an item of expenditure under sub-paragraph (xi) of paragraph XVII (2) (b) of the Sixth Schedule to the Electricity (Supply) Act, 1948 and was deductible for working out the clear profit. Such deduction was disputed on behalf of the State of Uttar Pradesh. According to the State of Uttar Pradesh such amount was not deductible. The said dispute was referred to arbitral ion under the provisions of Section 76 of the Electricity (Supply) Act, 1948. One of the questions referred, inter alia, was as follows :

'Whether the amount of Rs. 60,580.39 being the interest on overdraft is admissible as an item of expenditure during 1968-69 under sub-paragraph XVII (2) (b) (xi) of the Sixth Schedule.'

2. The arbitrators have made the award by holding, inter alia, as follows :

'The amount of R.s. 60,580.39 being the interest on overdraft for the year 1968-69 is not admissible as an item of expenditure under paragraph XVII (2) (h) (xi) of the Sixth Schedule to the Electricity (Supply) Act, 1948.'

3. The said award has been challenged in this application under the Arbitra-tion Act, 1940 on the ground that there is an error of law apparent on the face of the award. Paragraph XVII of the Sixth Schedule to the said Electricity (Supply) Act, 1948 provides for certain definitions. Under Sub-clause (2) oi paragraph XVII clear profit has been indicated to mean the difference between the amount of income and the sum oi expenditure plus appropriations, made up in each case as indicated in the different Sub-clauses. Several expenditures property incurred under different heads have been allowed to be deducted. But Sub-clause (xi) provides as follows :

'(xi) other expenses (excluding interest on debentures and loans), admissible under the law for the time being in force in the assessment of Indian Income-tax and arising from and ancillary or incidental to the business of electricity supply.'

Sub-clause (iv-a) provides as follows :

'(iv-a) interest on loans borrowed from organisations or institutions approved by the State Government'

4. It was, therefore, contended that inasmuch as the arbitrators had excluded Bs. 60.580.39 which was interest on overdraft, the arbitrators had committed an error of law because what was excluded was not interest on overdraft but interest on debentures and loans. It was submitted that overdraft was not loan and in proceeding on the said basis the arbitrators had committed an error of law apparent on the face of the award. In considering whether overdraft was loan it may be mentioned that in Hals-bury's Laws of England 4th Edn., Vol. 3 at paragraph 155 it has been stated that a customer might borrow from a banker by way of loan or by way of overdraft. A loan was a matter of special agreement. In the absence of agreement, express or implied from a course of business, a banker was not bound to allow his customer to overdraw.

5. In Banking Law and Practice in India by M. L. Tannan, 14th Edn. at page 324, it has been stated that when a customer requires temporary accommodation, he may be allowed to overdraw bis current account, usually against collateral securities. Prom the customer's point of view this arrangement like the cash credit is advantageous as he is required to pay interest on the amount actually used by him But when a Banker makes an advance on lump sum the whole of which is withdrawn and is sup-posed to be repaid generally, wholly and at one time is called a loan.

6. These propositions, in my opinion, do not establish that an overdraft is not a loan. On the other hand, an overdraft can also be treated as a loan. See the observations in the case of Cuthbert v. Robarts, Lubbock & Co., (1909) 2 Ch 226. Therefore, I am unable to accept the position that there is any error of law apparent on the face of the award because the Arbitrators have held that an overdraft was a loan. From one point of view an overdraft can certainly be treated as a loan. There is no error in holding that an overdraft is a loan.

7. There is a second aspect of the matter. It was contended on behalf of the respondent and, in my opinion, rightly, that the specific question of law as such had been referred to the Arbitrators and, therefore, any error committed by the Arbitrators could not be interfered with by this Court. Reliance in this connection was placed on certain observations of the Supreme Court in the case of Thawardas Pherumal v. Union of India reported in : [1955]2SCR48 and in the case of U.G.V.E.S, & Co. Ltd. v. U. P. Electricity Board, : [1973]3SCR107 .

8. On the other hand, on behalf of the petitioner it was contended that in the facts of this case no specific question of law as such had been referred to and reliance was placed on the observations of Lord Wright in the case of F. R. Absalom Ltd. v. Great Western (London) Garden Village Society Ltd., 1933 AC 592 at p. 616 of the report. It was submitted in this case that there was no submission on any specific question of law as such.

9. In this case, it is indisputable that Rs. 60,580.39 was interest on overdraft and there was no dispute between the parties on this aspect. No question was referred on this point. The reference was on the question whether such interest on the overdraft is admissible as an item of expenditure in paragraph XVII (2) (b) (xi) of the Sixth Schedule. Therefore, the question whether the interest on overdraft can be said to be interest on loan had been referred to and referred to specifically and that is a question of law. Indeed, the decision on this aspect is being challenged by the petitioner as an error of law. Therefore, the question that the Arbitrators had to adjudicate was a question of law. The question is whether such a question of law had been specifi-cally referred to the Arbitrators. The question had been specifically referred to and if it is a question of law, then it need not be recited in the reference, that What has been referred to the Arbitrators is a specific question of law. On behalf of the petitioner it was urged that the question referred to was not whether an overdraft is a loan. Such a decision was only incidental to the reference that had been made. I am, however, unable to accept this contention. Whether overdraft is a loan, is only putting differently the same question. The question, essentially and only is whether interest on overdraft is the same thing, as Interest on loan and as such inadmissible under the relevant paragraph referred to hereinafter. That, in my opinion, is a question which had been referred to. Right or wrong decision on this aspect of the question, in my opinion, is immune from attack in an application for setting aside the award.

10. On behalf of the petitioner it was further urged that in view of Clause IV, Sub-clause (b) of Clause 2 of paragraph XVII of the Sixth Schedule, the Arbitrators were in error in making the award in the manner they did. The question had not been referred to the Arbitrators. Therefore, the Arbitrators were not concerned with this aspect of the matter. The award does not in any way conclude this contention or this controversy on this aspect of the matter.

11. It was also submitted that in the certified copy of the award forwarded to the petitioner one of the Arbitrators had signed the award. It appears however from the original award which has been filed in this Court that both the Arbitrators have signed the award. In the certified copy supplied to the petitioner there must have been a mistake.

12. During the pendency of this application the petitioner's name was changed to Bareilly Holdings Ltd. I direct that the cause-title and the body of the petition be amended in terms of prayer (a) of the petition for amendment filed in this Court today. Let that amendment be effected within a fortnight on a signed copy of the minutes.

13. In the view, however, I have taken on the main point urged, this application fails and is dismissed. In the facts and circumstances of the case, there will be no order as to costs.

14. There will be a judgment in terms of the award and costs of obtain-ing and filing the award. The judgment upon award is stayed for six weeks.


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