HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Misc. Appeal No. 2358/2016
1. Senior Regional Manager, Hindustan Petroleum Corporation Ltd., 17 Jamshedi Kate Road, Mumbai.
2. Senior Regional Manager Retail, Hindustan Petroleum Corporation Ltd., Jodhpur Salawas Depot, Jodhpur.
----Appellant Versus Kanahaiya Lal Jhavar, Proprietor Rajendra Petrol Service, Nokha, District Bikaner.
----Respondent
For Appellant(s) : Mr. Sunil Beniwal
Mr. Manoj Bhandari
For Respondent(s) : Mr. Harshit Bhurani
HON'BLE MR. JUSTICE VINIT KUMAR MATHUR Judgment 01/03/2021 The present appeal has been preferred against the judgment and order dated 06.02.2016 passed by District Judge, Jodhpur City in Civil Misc. Case no. 35AA/2010 whereby the application preferred by the respondent Kanhaiyalal under Section 34 of the Arbitration and Conciliation Act of 1996 was allowed and the award disallowing certain claims passed by the Arbitrator dated 17.08.2009 was quashed and set aside.
Briefly stated facts of the case are that M/s Rajendra Petrol Service was given a contract by appellants on 12.05.2003 for transportation of petroleum products. A dispute arose with respect to the rate of transportation of petroleum products from the point where the truck was loaded. The claimant raised the issue that HPCL did not pay him the transportation charges as per the rates applicable at loading/dispatch point on 23.09.2004, they suffered a loss of Rs. 11,30,754/-, therefore, the same was asked to be paid by the Petroleum Corporation. Since, there was an Arbitration (Downloaded on 03/03/2021 at 08:27:29 PM) (2 of 6) [CMA-2358/2016] Clause in the agreement entered into between the claimant and respondent, the matter was referred to the Arbitrator. The Arbitrator after taking into consideration the relevant pleadings, partly allowed the claims after adjudicating the dispute vide its award dated 14.08.2009 in the following terms :-
"In terms of the provisions made in the agreement, I decide the claims of the claimants as under :-
(a) The claim of Rs.95,723.76 demanded for transporting 440 KL product from Jamnagar to Jodhpur depot is not maintainable since the tank trucks were sent by Jodhpur to Jamnagar loading point for bridging the product and the trucks were not shifted or attached to Jamnagar dispatch point. As such rate applicable at Jodhpur depot shall apply. Therefore, this claim is not tenable and is accordingly rejected.
(b) Claim of Rs.9,54,690/- for transportation of 9420 KL petroleum product from Bhatinda to Hanumangarh is not maintainable because tank trucks were attached to and sent by Hanumangarh depot to Bhatinda dispatch point for bridging product and were not shifted or attached to Bhatinda dispatch point. As such claimant was entitled to prevailing L- 1 rates at Hanumangarh depot where tankers were attached. But he has been paid at L-1 rates applicable to Jodhpur depot, which is not correct. Therefore, contractor is entitled to get payment of Rs.2,09,239/-. Being differential amount between Hanumangarh and Jodhpur rates. This claim is accordingly partly allowed for Rs.2,09,239/- only.
(c) For the reasons given in para (b) on page No.8 the claim of Rs.11,368.56 for transportation of 40 Kilo Litre petroleum products from Jamnagar dispatch point to Jaipur depot is not maintainable since tank (Downloaded on 03/03/2021 at 08:27:29 PM) (3 of 6) [CMA-2358/2016] truck was sent by Jaipur depot to Jamnagar for bridging. As such Jaiput L-1 rate shall be applicable (which is lower than the Jodhpur rate) where tank truck was attached. Payment has been paid at rates applicable to Jodhpur depot which is not correct. As such claimant has to refund the excess amount of Rs.8,213/- already paid being differential between Jaipur and Jodhpur rates.
(d) Claim for transportation of 320 Kilo litre petroleum products from Baroda to Salawas dispatch point is not maintainable since tank trucks were attached to and sent by Salawas depot to Baroda for bridging and were not shifted/attached to Baroda. As such, claim of Rs.54,297.60 is rejected.
(e) Claim of Rs.14,671.26 for transportation of 40 Kilo litre petroleum products from Jamnagar to Hanumangarh dispatch point as claimed is not maintainable since tank trucks were attached to and sent by Hanumangarh depot to Jamnagar disptach point for bridging. As such L-1 rate of Hanumangarh depot shall apply and not of Jamnagar. But contractor has been paid at rates applicable to Jodhpur depot which is not correct. As such, contractor is entitled to be paid a sum of Rs.14,923/- being differential between Hanumangarh and Jodhpur rates. This claim is accordingly partly allowed for Rs.14,923/- only. Rest of the claim is rejected.
Accordingly, I hold that claimant is entitled to receive a total amount of Rs.2,15,949 and respondent is liable to pay a sum of Rs.2,15,949. Payment to be made within 30 days from receipt of award. Rest of claim of the claimant demanding payment @ applicable at locations where tank trucks were sent for bridging is not maintainable and is rejected."
The claimant assailed the validity of the award passed by the Arbitrator to the extent that the amount of transporting the petroleum products from Jamnagar to Jodhpur, Bhatinda to (Downloaded on 03/03/2021 at 08:27:29 PM) (4 of 6) [CMA-2358/2016] Hanumangarh and Baroda to Salawas was disallowed. Learned District Judge, Jodhpur City allowed the application preferred by the respondent-claimant under Section 34 of the Act and reversed the findings of the Arbitrator rejecting the claim of the respondent-claimant for transporting the petroleum products from Jamnagar to Jodhpur, Bhatinda to Hanumangarh and Baroda to Salawas.
While laying challenge to the order passed by the learned District Judge, Jodhpur City on 06.02.2016, Shri Bhandari vehemently argued that the rejection of the claim of the respondent-claimant for transportation of the petroleum products as mentioned above was rightly done by the Arbitrator in light of the Agreement Clause between the parties and since there was no change in the dispatch point of the petroleum products, the claimant was not entitled for any differential amount even if it is being dispatched from other locations. The learned counsel further submits that the Arbitrator has rightly taken into consideration the concept of bridging while adjudicating the claim and therefore the claimant is not entitled for any amount of transporting the petroleum products, if the same is dispatched from other locations. He also submits that even as per Section 34 of the Arbitration and Conciliation Act, 1996, the application preferred by the claimant is not maintainable as none of the clause mentioned in Section 34 has been stated to be violated in the present case and the learned court has traversed beyond the jurisdiction while entering into the merits of the case. Learned counsel for the appellant has relied upon the judgment of Hon'ble the Supreme Court in the case of Associate Builders vs. Delhi Development Authority AIR 2015 SC 620.
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(5 of 6) [CMA-2358/2016] Per contra, learned counsel for the respondent-claimant submits that the cost incurred for the transportation of the petroleum products from different depots was more than the agreed amount of dispatch from Jodhpur which was the dispatch point as per agreement and therefore, the claimant cannot be put to disadvantage while maintaining the terms of contract. The bridging concept cannot be interpreted in such a way that if the petroleum truck was being transported from any other location, then the amount agreed between the Corporation and the claimant, will remain the same much less to the disadvantage of the claimant.
I have considered the submissions made at the Bar and gone through the order passed by learned District Judge, Jodhpur City dated 06.02.2016 as well as the award 17.08.2009 passed by the Arbitrator.
The short point involved in the present case is that an agreement was entered into between the claimant and the Petroleum Corporation for transportation of the petroleum products from the location (i.e. dispatch point) that was agreed between both the parties. The transportation of the petroleum products from the dispatch point to other places was fixed as agreed between the parties. However, during the currency of the agreement, certain changes in transportation of the petroleum products were ordered by the Petroleum Corporation which was other than the agreed dispatch point. Since the petroleum products were to be transported from Jamnagar to Jodhpur, Bhatinda to Hanumangarh and from Baroda to Salawas, the claimant, for transportation of such petroleum products, was (Downloaded on 03/03/2021 at 08:27:29 PM) (6 of 6) [CMA-2358/2016] entitled for the payment of charges in addition to the agreed rate as per the agreement.
It is noted that the concept of bridging was not the part of the contractual agreement between the parties, therefore, the same should not have been applied in the present case. The judgment of Hon'ble the Supreme Court relied upon by the learned counsel for the appellant is of no help and does not apply to the facts in the present case.
It is also noted that as per Clause 2(c) of the agreement the claimant would be entitled to the rates applicable for transportation of the product from the points as ordered by the Petroleum Corporation. For brevity, clause 2(c) is reproduced as under :-
"(C) corporation would also be entitled to transfer attachment of any tank lorry to another storage point for optimum utilization of tank lorries. However, in such event, tank lorry would either be sent with load to the new location or in case it is sent empty, would be paid for one way distance. Thereafter, prevailing L-1 rate applicable to the said new storage point would apply. All other terms including Arbitration Clause would remain uncharged."
Thus, in the light of specific clause entered into between the Petroleum Corporation and the claimant, the claimant is entitled for the amount for transportation of the petroleum products from the dispatch point which is other than the agreed dispatch point and therefore, the order passed by the learned District Judge does not suffer from any infirmity. The appeal is bereft of merit and same is, therefore, dismissed.
(VINIT KUMAR MATHUR),J 2-/VivekM/-
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