DELHI AIRPORT METRO EXPRESS PRIVATE LIMITED v. DELHI METRO RAIL CORPORATION

Interpretation of – Held: Every judgment must be read as applicable to the particular facts proved, or assumed to be proved since generality of the expressions which are found cannot be considered to be intended to be exposition of the whole law – They would have to be governed and qualified by the particular facts of the case in which such expressions are found. 716 B C D E F G H DELHI AIRPORT METRO EXPRESS PRIVATE LIMITED v. DELHI METRO RAIL CORPORATION 717 Dismissing the appeal, the Court HELD: 1.1 It could be seen from clause (a) of sub-section (7) of Section 31 of the Arbitration and Conciliation Act, 1996 that the part which deals with the power of the Arbitral Tribunal to award interest, would operate if it is not otherwise agreed by the parties. If there is an agreement between the parties to the contrary, the Arbitral Tribunal would lose its discretion to award interest and will have to be guided by the agreement between the parties. The provision is clear that the Arbitral Tribunal is not bound to award interest. It has a discretion to award the interest or not to award. It further has a discretion to award interest at such rate as it deems reasonable. It further has a discretion to award interest on the whole or any part of the money. It is also not necessary for the Arbitral Tribunal to award interest for the entire period between the date on which the cause of action arose and the date on which the award is made. It can grant interest for the entire period or any part thereof or no interest at all. [Para 15][728-C-E]

1.2 In the instant case, the words “unless otherwise agreed by the parties” would assume significance. If clause (a) of sub- section (7) of Section 31 of the 1996 Act is given a plain and literal meaning, the legislative intent would be clear that the discretion with regard to grant of interest would be available to the Arbitral Tribunal only when there is no agreement to the contrary between the parties. The phrase “unless otherwise agreed by the parties” clearly emphasizes that when the parties have agreed with regard to any of the aspects covered under clause (a) of sub-section (7) of Section 31 of the 1996 Act, the Arbitral Tribunal would cease to have any discretion with regard to the aspects mentioned in the said provision. Only in the absence of such an agreement, the Arbitral Tribunal would have a discretion to exercise its powers under clause (a) of sub-section (7) of Section 31 of the 1996 Act. The discretion is wide enough. It may grant or may not grant interest. It may grant interest for the entire period or any part thereof. It may also grant interest on the whole or any part of the money. If the contention as raised on behalf of the appellant-DAMEPL is to be accepted, the phrase “unless otherwise agreed by the parties” would be rendered A B C D E F G H 718 SUPREME COURT REPORTS [2022] 3 S.C.R. redundant and would become otiose. It could thus be seen that each and every word and each and every phrase mentioned in the provision will have to be given effect to. Statutes have to be construed so that every word has a place and everything is in its place. [Para 16, 18, 19, 21][728-F; 729-E-G, G-H; 730-F-G]

1.3 The 1996 Act itself emphasizes on party autonomy. As such, the legislative intent is clear that when the parties have agreed to the contrary on any of the aspects as mentioned in clause (a) of sub-section (7) of Section 31 of the 1996 Act, the Arbitral Tribunal will cease to have any discretion and would be bound by an agreement between the parties. Any interpretation which would render the phrase “unless otherwise agreed by the parties” otiose or redundant will have to be avoided. If the interpretation, as placed by the appellant-DAMEPL is to be accepted, the phrase “unless otherwise agreed by the parties” would be reduced to a “dead letter” or “useless lumber”. Such an interpretation would be wholly impermissible. [Para 22- 24][730-G-H; 731-A, F-G]

1.4 As per Article 29.8 of the Concession Agreement, the Termination Payment would become due and payable to the Concessionaire by DMRC within thirty days of a demand being made by the Concessionaire. It further provides that if the DMRC fails to disburse the full Termination Payment within 30 days, the amount remaining unpaid shall be disbursed along with interest at an annualized rate of SBI PLR plus two per cent for the period of delay on such amount. It can thus clearly be seen that Article 29.8 of the Concession Agreement deals with payment of interest on Termination Payment amount. The Arbitral Tribunal rightly construing the Concession Agreement has directed. Termination payment would be as per the provisions of the Concession Agreement and the interest on the Termination payment would accrue from 7th August, 2013 (i.e., the date 30 days after the demand of Termination payment by appellant on 8th July, 2013). Though the Arbitral Tribunal has found that the rates of interest on loans taken by the appellant are lower than SBI PLR + 2%, it has observed that it was beyond the competence of the Arbitral Tribunal to change or alter or modify the provisions of the Concession Agreement. The Arbitral Tribunal, therefore, has A B C D E F G H DELHI AIRPORT METRO EXPRESS PRIVATE LIMITED v. DELHI METRO RAIL CORPORATION 719 granted interest at an annualized rate of SBI PLR + 2%, though it had found that the rate of interest on which the loan was taken by the appellant was on the lower side. Thus, the Arbitral Tribunal, has rightly given effect to the specific agreement between the parties with regard to the rate of interest. The arbitral award has been passed in consonance with the provisions as contained in clause (a) of sub-section (7) of Section 31 of the 1996 Act and specifically, in consonance with the phrase “unless otherwise agreed by the parties”. [Para 26-28][732-C-E; 733-C-F]

1.5 Every judgment must be read as applicable to the particular facts proved, or assumed to be proved. The generality of the expressions which are found in a judgment cannot be considered to be intended to be exposition of the whole law. They will have to be governed and qualified by the particular facts of the case in which such expressions are to be found. [Para 31][734- B-C]

1.6 In view of the specific agreement between the parties, the interest prior to the date of award so also after the date of award will be governed by Article 29.8 of the Concession Agreement, as has been directed by the Arbitral Tribunal. The findings recorded by the Arbitral Tribunal have reached finality in view of the judgment and order passed by this Court in Civil Appeal No.5627 of 2021. Thus, there is no error in the observations of the Single Judge of the High Court in the impugned judgment and order passed in Execution Petition. [Para 35, 36][735-B-D] Hyder Consulting (UK) Limited v. Governor, State of Orissa through Chief Engineer (2015) 2 SCC 189 : [2014] 14 SCR 1029 – distinguished. N.S. Nayak & Sons v. State of Goa (2003) 6 SCC 56 : [2003] 1 Suppl. SCR 69; Sree Kamatchi Amman Constructions vs. Divisional Railway Manager (Works), Palghat and Others (2010) 8 SCC 767 : [2010] 10 SCR 487; Reserve Bank of India v. Peerless General Finance and Investment Co. Ltd. and Others (1987) 1 SCC 424 : [1987] 2 SCR 1; Hardeep Singh v. State of Punjab and Others (2014) 3 SCC 92 : [2014] 2 SCR 1; Union A B C D E F G H 720 SUPREME COURT REPORTS [2022] 3 S.C.R.