Does a clause barring interest on money lying due to a dispute and on delay in making payments bar the arbitrator's power to award pre-reference interest?

Paragraph 19Clause 54 of the GCC is worded differently, and the difference matters. It bars claims for interest or damages in two separate situations, not one. The first is the same as before, money or balance lying with the Corporation owing to a dispute, difference or misunderstanding. But Clause 54 then adds, in its own right and joined by the word "or", a second, independent situation, "any delay on the part of the Engineer-in-Charge making periodical or final payments", before finally adding the same closing words, "or in any other respect whatsoever." This is not a small drafting difference. By naming delay in payment as a separate ground, standing on its own and not tied to any dispute, Clause 54 does what the clause in Harish Chandra (supra) never did: it expressly shuts out a claim for interest arising from delayed payment, whether or not there was any dispute about it at all. The very situation that fell outside the bar in Harish Chandra (supra), delay in payment, without more, is brought squarely inside the bar in Clause 54. That is the true and complete answer to the High Court's view that the two clauses say the same thing; they do not, and the difference is decisive.

Paragraph 20This is also not a one-off or unusual way of drafting such a clause. The very same structure, a separate, additional line barring interest on delayed payments, over and above the bar on money withheld due to a dispute, appears in the clauses that this Court examined in Sayeed Ahmed (supra) and THDC-II (supra), and in each of those cases, for that very reason, this Court held that the clause was a complete bar on the arbitrator's power to award interest, whether for the pre-reference period or pendente lite. We respectfully agree with that reasoning and see no reason to depart from it. It follows that the High Court was in error in treating Clause 54 as no different from the clause in Harish Chandra (supra). The two clauses are worded differently, and that difference in wording makes all the difference in law. It is the line of decisions in Sayeed Ahmed (supra) and thereafter, not Harish Chandra (supra), that governs this case.