Bux Shipping Line Vs. Bangladesh Water Development Board & others, 1 ADC (2004) 476

Case No: Civil Review Petition No. 27 of 2002

Judge: Md. Ruhul Amin ,

Court: Appellate Division ,,

Advocate: Dr. Kamal Hossain,Mr. Abdul Wadud Bhuiyan,,

Citation: 1 ADC (2004) 476

Appellant: Bux Shipping Line

Respondent: Bangladesh Water Development Board & others

Subject: Arbitration/Mediation,

Delivery Date: 2002-08-18

Supreme Court of Bangladesh
Appellate Division
(Civil)
 

Present:
Mainur Raza Choudhury, CJ.
Md. Ruhul Amin, J.
Mohammad Fazlul Karim, J.
KM Hasan, J.
Md. Fazlul Haque, J.
 
Bux Shipping Line
...........Petitioner
Vs.
Bangladesh Water Development Board & others
.........Respondents
 
Judgment
August 18, 2002.
 
The Arbitration act,
Section 3, 29.
In the Arbitration act there is no provision which confers power on the court to grant interest prior to the date of the decree by the Court itself.
The Arbitrator could not grant future interest beyond the date of passing of the award. This part of the award about further interest was beyond the powers of the Arbitrator because it is only the Court which could award interest…. Hence in this case the Arbitrator had no jurisdiction to grant interest beyond the date of the decree as the power to grant interest after passing of the decree vests exclusively in the court under section 29 of the Act. ……. (9)
 
Case Referred to-
46 DLR (AD) 97.
 
Lawyers Involved:
Dr. Kamal Hossain, Senior Advocate (Md. Ozair Farooq, Senior Advocate with him) instructed by Md. Nawab Ali, Advocate-on-Record-For the Petitioner.
Abdul Wadud Bhuiyan Senior Advocate Instructed by Ms. Sufia Ahmed, Advocate-on-Record-For the Respondents.
 
Civil Review Petition No. 27 of 2002
(From the Judgment and Order dated December 12, 2001 passed by the Appellant Division in Civil Appeal No, 195 of 2000)
 
JUDGMENT
Md. Ruhul Amin, J:
 
             The petitioner seeks review of the judgment of December 12, 2001 in Civil Appeal No. 195 of 2000 (heard along with Civil Petition No. 1181 of 2000). The Civil Appeal was filed against the judgment and decree of February 1, 2000 of a Division Bench of the High Court Division in First Appeal No. 269 of 1999 affirming the judgment and decree of January 11.1999 of the 5th Court of Subordinate Judge, Dhaka in Title Suit No. 106 of 1994 decreeing the same upon making the award dated August 22, 1994. The Court of Subordinate Judge decreed the title suit for the awarded amount of Tk. 2,01,52, 289.84. The learned Subordinate Judge while making the award did not allow interest on the awarded amount either from the date of making of the award or from the date of making the award till realization of the awarded amount, though the umpire at the time of making the award allowed interest on the awarded amount at the Bank rate of the Sonali Bank till realization from the date of intimation of signing of the award.
 
2.         Facts in the background of which dispute between the parties in the proceeding arose and was referred to the arbitrator need not be stated in detail since in the judgment under review facts relating to the dispute arbitrated have elab­orately been stated.
 
3.         Defendant respondents invited tender for carrying initially 500 Metric tons (MT) cement from Chittagong Cement Clinker and Grinding Factory to their go down at Serajgong on nego­tiated rate of Tk. 640 per MT. Later on quantity of cement to be carried was raised at different times and finally to 6000 MTs. On completion of carrying of the total quantity of cement plain­tiff petitioner submitted bills and the payment having not been made as per billed amount the dispute in the light of the terms of the agree­ment was referred to the Arbitrators and that the Arbitrators having has differed the matter was referred to the Umpire and the Umpire made the award for the amount as mentioned hereinabove with interest.
 
4.         The plaintiff petitioner took the award to the court of Subordinate Judge, Dhaka for mak­ing the same Rule of the Court and the learned Subordinate Judge made the award rule of the Court for the awarded amount of Tk. 2, 01,52,289.84. The learned Subordinate Judge while making the award rule of the court did not pass any order as to interest on the decreetal amount i.e. on the awarded amount of TK. 2,01,52,289. 84 from the date of decree up to realiza­tion.
 
5.         The defendant respondents as against the judgment and decree of the learned Subordinate Judge preferred appeal before the High Court division and the said Division by the judgment and decree dated February 1, 2000 affirmed the judgment and decree passed by the Court of Subordinate Judge, Dhaka.
 
6.         The plaintiff petitioner being dissatisfied with the judgment and decree of the High Court Division moved the Appellate Division by fil­ing petition for leave to appeal and obtained leave to appeal and thereupon Civil Appeal No. 185 of 2000 was registered.
 
7.         This Division by the judgment and order as mentioned here in before dismissed the appeal.
 
        This review petition has been filed upon taking exception to the observation of this Division that "It is seen from the judgment and decree of the Court of the Subordinate Judge that while making the award dated 22nd August, 1994. Rule of the court the said court passed the decree for he awarded amount i.e. for TK. 2,01,52,289.84 only and that did not grant any interest, which was within his discre­tion, on the awarded amount till realization thereof. The High Court Division by the judg­ment under appeal affirmed the judgment and decree of the Court of Subordinate Judge. So it is distinctly clear that interest as was granted by the umpire on the awarded amount till realiza­tion there of was not allowed by the court of Subordinate Judge as well as by the High Court Division.............."The Court of Subordinate Judge did not grant any interest on the decreetal amount and as such no error was committed by the High Court Division in affirming the decree of the Court of first instance in not holding that the said court decreeing the suit made the award in its entirety part of the decree."
 
          And thereupon making contention that the judgment and order of this Court is beyond the dicta laid down in 46 DLR (AD) 97. In the reported case upon noticing the ratio of the cases relating to granting of interest by an Arbitrator on the awarded amount this Division reached the following conclusions:-
 
a) Pre-reference Period interest:
             In the absence of any law or agreement providing for payment of interest by an Arbitrator on an award made by him it will not be proper and safe to vest in him power to award interest for the pre reference peri­od, for this period the Arbitrator may allow interest only if it is provided in any agree­ment or law.
 
b) Pendente lite interest:
             An Arbitrator may allow pendente lite interest on the analogy of the court's power to grant interest if the dispute were agitated before it. In the case of Arbitrator this inter­est should be for a period not exceeding four months. This period of four months, as referred to in section 3 of the First Schedule of the Arbitration Act, is fixed for conclud­ing an arbitration proceeding, this period for concluding the proceeding may of course, be extended by court but such extension will not necessarily empower the Arbitrator to allow interest for a period beyond four months, unless the Arbitrator finds that the debtor or the person from whom money is due, has deliberately pro­longed the arbitrating proceeding. In other words, the arbitrator may allow interest pendent lite for a period beyond four months if the prolongation of the proceed­ing is caused by circumstances beyond his control Again, to avoid any controversy, the period for pendent lite interest will start from the date on which the Arbitrator enters upon the arbitration proceedings and end on the day the award is made
 
C) As to interest for the future, that is, from the date of the award till realization of the money, though section 29 of the Arbitration Act did not give the Arbitrator this power he may allow interest on his award till realization on the same analogy to Court's power. This will be in accord with justice and fairness. 
 
8.         Dr. Kamal Hossain, learned Counsel for the petitioner in support of his contention that Arbitrator was quite competent to award inter­est on the awarded amount relies on the conclu­sion 'c' of this Division in the aforesaid report­ed decision. The learned Counsel for the peti­tioner further submits that learned Subordinate Judge while making the award rule of the court specifically in the ordering portion of the judg­ment mentioned that award shall from part of the decree and that as the award was made part of the decree, the only conclusion that legally be drawn from the decree of the learned Subordinate judge is that while making award Rule of the Court the said court also allowed interest on the awarded amount till realization as was awarded by the Arbitrator. The learned Counsel in elaborating his submissions that the judgment of this Division in the Appeal No. 195 of 2000 was "beyond the dicta laid down in 46 DLR (AD) 97" referred of the conclusion "c" reached by this Division in the aforesaid case. It may be mentioned that in the said reported case while this Division considered the matter of awarding of interest by the Arbitrator on the awarded amount as observed- "Any interest from the date of the decree till realization may be allowed only by the Court under section 29 of the Arbitration Act. In other wards, the learned Subordinate Judge, in his discretion could have allowed interest from the date of the decree till realization of the money there under. This period partially coincides with the period from the date of award till realization.
 
Therefore interest from the date of award till realization, when the award has been brought to the court, falls within the court's discretion". In the very said case Mr. Justice Latifur Rahman (as he then was) while agreeing with the judg­ment of the court written by his Lordship the Chief Justice, has observed "In the Arbitration Act there is no provision which confers power on the court to grant interest prior to the date of the decree by the Court itself........The Arbitrator could not grant future interest beyond the date of passing of the award. This part of the award about further interest was beyond the powers of the Arbitrator because it is only the Court which could award inter­est....Hence in this case the Arbitrator had no jurisdiction to grant interest beyond the date of the decree as the power to grant interest after passing of the decree vests exclusively in the Court under section 29 of the Act."
 
9.         The dicta of the case reported in 46 DLR (AD) 97 in the background of the observation as quoted here in above to us appears is that while the award is brought before the court for making the same Rule of the Court then while making the award Rule of the court it is the court alone and alone can award interest on the awarded amount or in other words till realiza­tion there of and that even if the Arbitrator has awarded interest on the awarded amount till realization of the same but if the same i.e. the interest on the awarded amount till realization is not made part of the decree of court or in other words if not awarded by the court before which the award was brought for making the same rule of the court then it would follow that the Court has not granted interest on the awarded amount till realization or in other words the Court has disproved the action of the Arbitrator or umpire as regards awarding of interest on the awarded amount till realization since same could only be granted by the Court before which the Award finally brought for making the same rule of the Court as seen from the case reported in 46 DLR (AD) 97. It would be the natural conclusion that though the Arbitrator awarded interest on the awarded amount till realization but the same has been refused by the court since the court in making the award rule of the court did not grant interest on the substantive awarded amount till realization.
 
10.       The learned Subordinate Judge while making the award, that was given by the umpire for substantive amount of Tk. 2,01,52,289.84 with interest till realization, rule of the court made order that the plaintiff would get awarded amount of Tk. 2,01,52,289.84 and that did not make any order granting any interest on the awarded amount till realization in other wards refused to grant interest on the awarded amount till realization. The plaintiff did not take excep­tion to the decree so passed by the learned Subordinate Judge in any respect. The submis­sion of the learned Counsel for the petitioner that while the learned Subordinate Judge made the award rule of the Court since in the ordering portion of the judgment it was specifically men­tioned that award shall form part of the decree which means the learned Subordinate Judge while made the award in its entirety part of the decree then the only conclusion in that the suit was decreed for the awarded amount as well as in respect of interest thereon till realization. This submission of the learned Counsel for the petitioner as it appears to us is not backed by the decree that has been passed in the suit filed by the plaintiff seeking relief of making the award rule of the Court. From the operative part of the judgment of the learned Subordinate Judge it is clearly seen that the Court passed the decree in the suit for the substantive awarded amount and that refused to grant interest on the awarded amount till realization. It is true the learned Subordinate Judge while passing the decree passed order as to that the award shall form part of s the decree. In our view the order so passed making award part of the decree is limited to the substantive awarded amount and not to the other part of the order of the umpire i.e. order granting interest on the awarded amount till realization. Since the award was brought before the court for making the same rule of the Court then it "falls within the courts jurisdiction" to grant or not to grant interest from the date of award till realization of the awarded amount. Learned Counsel for the respondent submits that this petition for review is not maintainable since there is no "glaring omission or patent mistake or liked grave error has crept in earlier by judicial fallibility". He further submits that contention of the appellant in support of the appeal was that the High Court Division was in error in not holding that the interest that was awarded by the umpire on the awarded amount did form part of the decree while the learned Subordinate Judge was mak­ing the award rule of the court has already been considered by this Division in the appeal and as such the same can not be reagitated in support of the review petition while no error apparent on the face of the record could be pointed out. He also submits that this review petition is also not maintainable since the decision reached at by this Division while disposing of the appeal is in no way beyond the dicta laid down in 46 DLR (AD) 97. The submissions of the learned Counsel for the respondent have merit.
 
11.       Since no error apparent on the face of the record has been pointed out in the judgment sought to be reviewed and that the decision made in the judgment sought to be reviewed as in no way is contrary to the ratio of the decision reported in 46 DLR (AD) 97 relating to power of the arbitrator to grant interest on the awarded amount till realization thereof. The review peti­tion has no merit.
 
Accordingly the same is dismissed. There is no order as to costs.
 
Ed.