Roger Enterprises Pvt Ltd. vs Union Of India
1993 Latest Caselaw 48 Del

JUDGMENT

S.C. Jain, J.

(1) M/S. Roger Enterprises Pvt Ltd, hereinafter called the petitioner was awarded, a contract under At No. AM-5/110/288/28.12.81/456/24.3.82/75/COAD/229 dated 14.7.82 for supply of one Ratrac Tracked Over Snow Vehicle model Sr 300-VK with its standard accessories and spare parts. The disputes ana differences arose between the petitioner and Union of India ( Director General of Supplies & Disposal) out of the said contract. The disputes were referred to Shri R.N.Mishra and consequent upon his resignation, the reference was made to Shri Shiv Parkash, Legal Adviser to the Govt, of India who entered upon the reference and made his award on 11.9.90 disallowing the claim of Union of India being unjustified. The counter claim of the respondent was also not accepted being vague. However, they were allowed to prefer the said claim by a separate reference in the other contract for adjudication after furnishing necessary details if the amount is withheld by the Union of India against that claim.

(2) The petitioner filed this application under Section 14(2) read with Section 17 of the Arbitration act for filing of the awed and for making the same a rule of the court Union of India filed objections to the said award by filing I.A-No. 10579/91 under Sections 30 and 33 of the Arbitration act pleading, inter alia, that the Arbitrator has arbitrarily and illegally, ignored the terms and conditions of the contract with reference to the packing and marking.

(3) The award has been challenged as being based on conjectures and surmises. Damage to the goods were caused due to defective packing and improper handling and the Arbitrator has not applied his mind to the claim of the objector that damage was caused due to defective packing.

(4) These objections were contested by the petitioner by filing reply mentioning that the ordered Stores were squarely packed with seaworthy packing, The stores consignment duly arrived and was manifested and discharged at Bombay port on 23.2.1983 and well prior p73 to that the port consignee had received and accepted the bill of lading,the invoice, packing list,other shipping documents in accordance with the conditions of the L/C and relevant provisions of the contract.

(5) The main thrust of the argument of the counsel for the objector-Union of India was that the Arbitrator illegally ignored the most important term and condition of the contract which reads as under:

"THE stores should be securely packed with seaworthy packing i.e. to avoid loss and damages in transit by sea/rail/road. All packing must be clearly marked with the above A/T number and date, Indenter number and date, name of the port and ultimate consignee designation, net weight, gross weight and sizes."

(6) According to the learned counsel the Arbitrator has erred in holding that the claimants could not establish that the ordered stores under the subject contract were to be packed in a specified manner by the respondents-contractors and the same were not packed by them in that manner. The attention of the Arbitrator was drawn to all the documents and the evidence in this regard relating to the defective packing by the con tractor but the Arbitrator misread that evidence and wrongly dismissed the claim of the Union of India. The The contractor was responsible for loss occurring due to defective packing and this fact has not been appreciated by the Arbitrator.

(7) A perusal of the award shows that it is a reasoned award which has been given after appreciation of the evidence. The Arbitrator came to the conclusion on the basis of evidence on record.

(8) It is settled principle of law that when a court is called upon to decide the objections raised against the award, the jurisdiction of the court is limited as expressly indicated in the Arbitration Act and it has no jurisdiction to sit in appeal to. examine and scrutinise all the claims on the basis of material produced before the arbitrator. In this case I find that the Arbitrator has taken a view which is plausible view. This court cannot sit as a court of appeal by reassessing the material on record. It is not necessary for the court to examine the material produced before the arbitrator. It has been laid down by the Supreme Court in Sudershan Trading Company V.Govt of Kerala 1989 S.C.890 that "Appraisement of evidence by the arbitrator is never a matter which the court questions and considers. If the parties have selected their own forum, the-deciding forum must be conceded the power of appraisement of the evidence. The arbitrator is the, sole judge of the quality as well as the quantity of evidence and it will not be for the court to take upon itself the task of being a judge on the evidence before the arbitrator. In this case the question before the Arbitrator was whether the loss occurred to the consigned goods was on account of defective packing and the Arbitrator on the basis of evidence and material before him came to the conclusion that the claimant could not establish that the ordered stores were to be packed in a specified manner by the contractor and the goods were not packed by them in that manner and the respondents were responsible for defective packing due to which stores were received in damaged condition at .the port at Bombay. It is also admitted position that the consignment was Fob and the suppliers were not responsible for the faulty workmanship, design or manufacture of the vehicle as a whole or in part. The stores were not insured by the Indenter. These findings of the Arbitrator based on evidence and material before him are not questionable before the court. There is nothing to indicate that the Arbitrator has misconducted himself or the proceedings or the view taken by him is erroneous. Under these circumstances the objections filed by the Union of India are hereby dismissed.

(9) The award is made a rule of the court. There is no order as to, costs.