Urmil Mallk vs National Savings Organisation
1991 Latest Caselaw 188 Del

JUDGMENT

Mahinder Narain, J.

(1) Before dealing with the case on merits. I have to deal with I.A.2281/89 u/S. 5 of the Limitation Act has been filed by National Savings Organisation (NSO) for condoning the delay in filing objections to the award. In this application, it is stated that notice was served on 3.2.1989 and objections could not be filed on 1.3.1989 as the filing counter was closedat4.10p.m. However, from objections which are on record the date of filing is 1.3.1989. Apparently it was under objections and it was refiled on 17.3.1989.

(2) Normally time which is given to refile the petition after removing objections by the registry, according to the practice in this Court is 7 days. The objections have apparently been filed after the time which is normally allowed. There is no reply to this application as copy of this application had not been given To the opposite counsel. In any case I have heard Mr. Verghese on his objections and I intend to deal with these objections in my order on merits. In view of the facts and circumstances of the case, I condone the delay.

(3) On Merits : The award dated 29.12.1988 was given by Mr. G.V. Prabhu Postmaster General (PMG), Delhi Circle in the matter of arbitration between Smt. Urmila Malik and NSO.

(4) By an order dated 18.7.1988 passed by B.N. Kirpal, J. in Suit No. 972-A/84 in the matter of Smt. Urmil and Nso, an arbitrator was appointed and all the disputes between Smt. Urmil and Nso were referred to arbitration. It was observed by B.N. Kirpal, J. "IN my opinion the dispute sought to be raised by the petitioner is clearly covered by the arbitration clause. The arbitration clause is very widely worded. It not only deals with the disputes arising under the agreement but it also refers to disputes which are in any manner relating to this agreement. The question as to whether the agreement has been validly terminated or not is certainly a question which would require consideration and is a question which relates to the agreement. As a consequence thereof, there would be a further question of damages which would be payable if it is held that there was a wrongful termination of the tenancy (agency). In my opinion, therefore, the disputes sought to be raised are covered by the arbitration agreement."

(5) Arbitrator has dealt with the questions which have been referred to him. He has stated in his award that one of the disputes between the parties relates to payment of commission on collections made by Smt. Urmil during Nov. and Dec. 1980, in November amounting to Rs. 9,438 40 and on the collections made by her during December, 1980 amounting to Rs. 3,090.60. In addition she has claimed damages due to wrongful termination of her agency.

(6) The Arbitrator is PMG. As such be must know thoroughly the methodology adopted by agents of Nso in making deposits in the post office. It is not disputed that the amount of commission that has been claimed by Smt. Urmil is on the amount collected and received by the post office. The Arbitrator has awarded the amount of Rs. 9,438.40 and Rs 3,090.60 to the petitioner as commission payable on amounts deposited. In my view the award of these amounts by the arbitrator cannot be objected to as the Nso did receive the amount which was collected and deposited by Urmil. It would be proper and right that the commission which she would be en titled on the collections, which would have been paid to her on the amount collected, if she had been the agent, is paid. It is not the case of Nso that Urmil did work of collections of small savings of various persons, and deposited the collections in Post Office gratuitously. Besides this the principle of quantum meruit should be applied to the cases like this. I do not think that award of these two amounts can be objected to by the Nso as they have had the benefit of collections made by Smt. Urmil and should pay commission payable to the collecting agent.

(7) I am of the opinion that the arbitrator in this case has properly awarded the amount which became payable on account of commission. This amount would have been payable to Smt. Urmil, had Smt. Urmil continued to be an agent, as she had been for many years past. I, therefore, reject the objections to the award made by National Saving Organisation vis-a-vis the amount of Rs. 9,438.40 and the sum of Rs. 3,090.60 and make the award with respect to these amounts, a rule of the Court.

(8) Arbitrator has found that by virtue of the terms of the contract between the parties, it is open to the Nso to terminate the agency agreement without assigning any reasons. The arbitrator has awarded a sum of Rs. 3,000.00 to Smt. Urmil on account of long association with the Nso as its agent. Mr. Verghese has contended this part of the award of Rs. 3000.00 on account of long association cannot be sustained as it has been found that the agency was lawfully and legally terminated. If the agency was lawfully and legally terminated then the question of payment of money "exgratia" would not arise. I agree with the contention of Mr. Verghese that payment of Rs. 3,000.00 could not have been ordered. As there is no finding that the termination is wrongful damages could pot have been awarded.

(9) I uphold the objection of Nso regarding the amount of Rs. 3,000.00 awarded ex-gratia by the arbitrator on account of long association of Smt. Urmil with the NSO. I do not think such an award could be made and 1 set aside the award with regard to the sum of Rs. 3.000.00.

(10) I hold that the award of the arbitrator with respect to the sums of Rs. 9,438.40 p. and Rs. 3,090.60 p. is severable from the award of Rs. 3,000.00 and I sever the unsustainable award from the sustainable part of the award. With the aforesaid modifications in the award the same is made rule of the Court.

(11) The amounts with respect to which award has been made rule of the Court be paid within two months from today. If the amount is not paid within two months from today then interest shall be payable on the awarded amount @ of 9% p.a.