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Noting that every judgment must be read as applicable to the particular facts proved, or assumed to be proved, the Supreme Court on Thursday remarked, ".... 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."

Further reference was made to the observations of a three-­Judge Bench of the Top Court in the case of The Regional Manager and another vs. Pawan Kumar Dubey, wherein it was held that,

"7.......Even where there appears to be some conflict, it would, we think, vanish when the ratio decidendi of each case is correctly understood. It is the rule deducible from the application of law to the facts and circumstances of a case which constitutes its ration decidendi and not some conclusion based upon facts which may appear to be similar."

A bench of Justices L Nageshwar Rao and BR Gavai, thus, reiterated that one additional or different fact can make a world of a difference between conclusions in two cases even when the same principles are applied in each case to similar facts.

These observations were made by the Top Court while deciding whether the "sum" awarded under clause (a) of subsection (7) of Section 31 of the Arbitration and Conciliation Act, 1996 (1996 Act") would include the interest pendente lite or not.

A Concession Agreement was entered into between the Delhi Airport Metro Express Private Limited ("DAMEPL") and Delhi Metro Rail Corporation ("DMRC") to carry out civil works (excluding at the Depot) and the balance works ( including the Depot civil works and the Project systems works) were to be executed by DAMEPL.

When a dispute arose between the parties, DMRC referred the dispute to Arbitration under Article 36.2 of the Concession Agreement.

After an arbitral award was passed, DAMEPL filed execution proceedings, wherein a contention was raised by it that the sum, as specified under clause (a) of subsection (7) of Section 31 of the 1996 Act, would include interest for a period from the date on which the cause of action arose to the date on which the award was made. Such contention was rejected by the Delhi High Court.

Before the Top Court, DAMEPL relied on Hyder Consulting (UK) Limited vs. Governor, State of Orissa through Chief Engineer, to argue that upon a plain reading of clauses (a) and (b) of subsection (7) of Section 31 of the 1996 Act, it is clear that in the sum for which an Award is made, interest may be included for the pre-award period, and that for the post-award period, interest up to the rate of 18% per annum may be awarded on such sum directed to be paid by the Arbitral Tribunal.

Applying the principle of plain interpretation of the language employed by the legislature, the Court held that the position that would emerge on an analysis of clause (a) of subsection (7) of Section 31 of the 1996 Act, was as under:

1. It begins with the words "Unless otherwise agreed by the parties";
2. where and insofar as an arbitral award is for the payment of money, the Arbitral Tribunal may include interest component in the sum for which the award is made;
3. the interest may be at such rate as the Arbitral Tribunal deems reasonable;
4. the interest may be on the whole or any part of the money;
5. the interest may be for the whole or any part of the period between the date on which the cause of action arose and the date on which the award is made.

".... the part which deals with the power of the Arbitral Tribunal to award interest, would operate if its 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", noted the division bench.

Thus, reliance was place on Article 29.8 of the Concession Agreement, wherein it was clearly stated that 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 provided that if the DMRC failed 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 was further found that in the case of Hyder Consulting, there was no agreement between the parties with regard to the payment of interest and as such the facts were different from the case at hand.

Case Title: Delhi Airport Metro Express Private Limited Vs. Delhi Metro Rail Corporation