Oswal Agro Mills Limited vs Oswal Woollen Mills Limited
2007 Latest Caselaw 722 Del

JUDGMENT

Sanjay Kishan Kaul, J.

1. The parties to the present petition with all good intentions started a business dealing which has got soured. Both the companies were under the control of the same original family but due to the internal family disputes, came to be controlled by different groups of the family. The present dispute appears to be really a reflection of the family dispute.

2. The petitioner, Oswal Agro Mills Limited is engaged in the business of manufacturing and trading in vegetable oils, soaps, Chemicals and petroChemicals etc. The respondent is also carrying on the business of manufacturing and trading of vegetable oils, woollen and related products. The parties entered into an agreement dated 30.3.1982 in terms whereof the petitioner was appointed by the respondent as its agent under the Import Export Procedure Handbook 1981- 82 for advising, assisting and guiding the respondent to import materials under the REP licenses. The goods to be imported were Crude Palm Kernal Oil. There were 9 REP licenses in question for an aggregate CIF value of Rs.1,85,95,100/-. In terms of Clause 4 of the agreement, the petitioner was to be paid a remuneration of 5% of the CIF value of the goods imported along with all cost and expenditure incurred for import of the material.

3. This agreement was followed by another agreement dated 13.9.1982 in terms whereof it was agreed that the material imported by the petitioner under the REP licenses on behalf of the respondent would be sold by the respondent to the petitioner after carrying out processing of oil at its factory premises. The oil after processing would be Palm Kernal Oil. The sale price of this processed oil by the petitioner was agreed to be the actual reimbursement of the landed cost of the imported oil plus 25% of CIF value of the imported material towards manufacturing charges.

4. In pursuance to the aforesaid arrangement, during the months of March - May, 1993 the petitioner imported various consignments of the oil and the arrangement in terms of the aforesaid agreement was followed. The dispute, however, arose as out of the total value of materials to be imported under the licenses, the respondent made available licenses to the petitioner only of the value of Rs.1,16,00,800/-. Thus, material value of CIF value of Rs.69,94,300/- could not be imported by the petitioner in the absence of the REP licenses of the said value. The petitioner claimed losses on account of breach of contracts. Such losses included the amount of remuneration of the petitioner of 5% under the agreement dated 30.3.1982, actual loss of profit which the petitioner would have gained by the sale of the balance oil which could not be imported on account of non-supply of the REP licenses. A third claim was also laid on account of cost of short supply of the oil after processing by the respondent apart from the claim of interest.

5. The respondent disputed the aforesaid claims and, on the other hand, had counter claims on the petitioner on account of sale value of semi-refined oil, share/loss of profit and interest.

6. The disputes had resulted in the petitions being filed under Section 20 of the Indian Arbitration Act, 1940 (hereinafter referred to as the said Act) and the two petitions in question were decided by a common order dated 18.7.1991 whereby the disputes were referred to the arbitration of two arbitrators. The two arbitrators, who ultimately heard the matter, could not arrive at an agreed award in terms of the Minutes of the Meeting held on 19.2.1999 and the matter was referred to the Umpire, Justice Charanjit Talwar (Retd.), who made and published his award dated 21.2.2000. In terms of the award, an amount of Rs.64,65,782/- has been awarded to the petitioner along with interest @18% per annum from 1.11.1991 till date of realization and costs. The respondent aggrieved by the same, has filed the present objections under Sections 30 and 33 of the said Act.

7. Learned Counsel for the parties advanced detailed oral arguments. At the inception of the hearing itself, it was put to learned Counsel for the parties that matter being of consideration of such objections, the same must fall within the parameters of scrutiny by this Court under Sections 30 and 33 of the said Act. This Court would, thus, not sit as a Court of appeal to re-appraise the evidence and attempt to come to a different conclusion than that arrived at by the Umpire. Thus, merely because this Court on the same set of evidence could possibly come to a different view, would not be a ground to interfere with the award. Learned Counsel, thus, set out their pleas in terms of the aforesaid parameters and succinctly so.

8. The first principal objection as canvassed by learned Counsel for the respondent was that the Umpire was obliged to commence the trial de novo as if the reference was a fresh one before him and the proceedings before the two arbitrators could not have been read for the adjudication by the Umpire. This plea is based on the submission that this is the mandate of law and the respondent never agreed or conceded to such evidence being read by the Umpire as was recorded before the two arbitrators.

9. Learned Counsel proceeded to set-forth the legal position in respect of the aforesaid by first referring to the provisions of Article 4 of Schedule I of the said Act, which reads as under:

4. If the arbitrators have allowed their time to expire without making an award or have delivered to any party to the arbitration agreement or to the umpire a notice in writing stating that they cannot agree, the umpire shall forthwith enter on the reference in lieu of the arbitrators.

10. Learned Counsel submitted that the Umpire, thus, has to enter upon the reference in lieu of the arbitrators and as to what the same would imply was supported by the commentary of S.D. Singh, The Law of Arbitration. The relevant portion appears in Note 30 in the Chapter dealing with Section 30 of the said Act at page 358 and reads as under:

30. Hearing before an umpire. - It is legal misconduct on the part of an umpire to decide a case without giving notice to the parties or hearing their comments on the evidence. He must hear the evidence of the parties and their witnesses, if application be made to him by either party to do so, notwithstanding that the same evidence has already been adduced before the arbitrators. The umpire is not justified in the face of an objection by either party, in taking any part of the evidence from the notes of the arbitrators unless there are special provisions in the submission permitting him to do so. If it is necessary for the justice of the case, that the umpire should personally hear the witnesses and application is made to him for that purpose, he is not justified in refusing to hear them. If the umpire refuses to hear evidence even when requested by the parties to do so, the award would be bad for misconduct.

An objection on the ground that the umpire has not reheard the evidence may, however, be waived by the conduct of the parties; and the fact that the parties seeking to impeach the award made no application to the umpire for rehearing the evidence, will generally operate as a waiver by conduct.

An umpire may, however, take part in the deliberations before the arbitrators, and may sit with them and consider the matters referred. If an award is made by the arbitrator unanimously, it would not be bad merely because the umpire took part in the deliberations.

But, though the umpire may sit with the arbitrators, and hear the evidence and arguments advanced before them, he cannot interfere in the proceedings before them for he is not a sarpanch or a chairman of the Board of Arbitrators. But if an umpire while sitting with the arbitrators during the hearing of evidence puts a few questions to the witnesses to clear certain points or take some part in the discussions as to how the documents are to be exhibited, there is no misconduct involved.

Even though an umpire may have heard the whole of the evidence and followed the proceedings before the arbitrators, he cannot, on entering on the reference, pronounce his award forthwith without giving the parties further opportunity to make their submissions before him, unless, of the course, the terms of the reference permit him to do so. 'Entering on the reference' in Paragraph 4 of Schedule I does not mean 'proceed to give the award'. He must hear the parties afresh, and deliver the award only if the parties have nothing further to submit.

11. Learned Counsel also referred to Russell on Arbitration (Twenty-First Edition) where on page 167 the following observations have been made in respect of an Umpire's jurisdiction and duty with regard to evidence and hearing:

Umpire's jurisdiction and duty with regard to evidence and hearing. Where the umpire enters upon the reference in lieu of the arbitrators he needs to review the evidence and submissions only on those matters about which the arbitrators have disagreed. The umpire has a duty to hear the evidence of the parties and their witnesses, if application is made to him by either party, even if the same evidence has already been adduced before the arbitrators (but not the umpire). The umpire may not take any part of the evidence from the notes of the arbitrators, unless the parties both agree. The umpire must conduct the hearing impartially.

12. A reference was also made to American Jurisprudence (Second Edition, Vol.5) in para 123 as under:

123. Hearing before umpire or additional arbitrator....He must examine such witnesses as the parties choose to produce, and as to such points as they choose to raise, even though the same witnesses have been examined as to the same points before the arbitrators....

13. Learned Counsel, thus, submitted by reference to the aforesaid commentaries that the Umpire must hear the evidence afresh.

14. Learned Counsel drew the attention of this Court to the judgment of the learned single Judge in State of Mysore v. R.J. Shah and Co. Ltd. and Anr. AIR 1969 Mysore 237 which held that the reading of Section 3 of the said Act along with Rule 4 of Schedule I made it clear that in case of a reference to an Umpire on disagreement between the arbitrators, all matters including matters in respect of which arbitrators disagreed fall to be decided by him. The first Schedule of the Arbitration Act can be excluded by agreement of the parties but in the absence of express words to that effect where an Umpire enters on the reference in lieu of the arbitrators, all the matters fall to be decided by him and not merely matters in respect of which arbitrators have disagreed. It was further held that the Umpire has to hear the evidence de novo if an application is made to him to do so by either party notwithstanding that the same evidence has already been adduced before the arbitrators and the Umpire can make his award on the notes of the evidence taken by the arbitrators only if no party objects. A learned single Judge of this Court in Magnum Films v. Golcha Properties AIR 1986 Delhi 320 held that the word 'reference' clearly indicates that it is the entire reference which means that the Umpire should decide all the disputes and should not merely confine himself to the area of difference between the arbitrators. Similarly, a Division Bench in State of Madhya Pradesh v. Preconco, Indore AIR 1987 Madhya Pradesh 284 held that the jurisdiction of the Umpire is not confined only to resolving the extent of differences between the arbitrators but the Umpire can adjudicate on entire reference de novo. Lastly, learned Counsel referred to the matter of arbitration between Salkeld, surviving Partners and c., And Slater and Harrison, 12 AD. and E. 768 holding that the Umpire has to re-hear the witness and if he makes an award on the evidence taken on by the arbitrators, the award will be set aside.

15. Learned Counsel for the respondent thereafter proceeded to submit that at the first hearing before the Umpire on 24.4.1999 itself along with the letter of 21.5.1999 the respondent had made his intention known requiring de novo proceedings. Despite this, the Umpire has proceeded to consider the material on record before the arbitrators to come to a conclusion.

16. Learned Counsel for the respondent submitted that the intention of the respondent towards the aforesaid was apparent from the first hearing held on 24.4.1999 itself. However, the earliest communication referred to in this behalf is of 21.5.1999 stated to enclose an application under Section 5 of the said Act filed by the respondent before the High Court of Delhi. In the said petition a prayer was made for revoking the authority of the Umpire and to appoint another Umpire who would charge a more reasonable fee. In the petition there is also reference to proceedings starting de novo. A reference has also been made to another letter dated 24.5.1999.

17. On the aforesaid aspect, learned Counsel for the petitioner did not really dispute the legal position but contended that there was no such request made. However, what was emphasized was that the objection on the ground of the Umpire not hearing the evidence may be waived by conduct of parties. In view of the fact that the parties seeking to impeach the award made no application to the Umpire for re-hearing the evidence, it will generally operate as a waiver by conduct. This legal position emerges clearly from the commentary in Russell, as discussed in S.D. Singh, extracted above.

18. On consideration of the arbitral record, I am of the view that the respondent has failed to satisfy that there was any serious endeavor for getting the evidence again recorded before the Umpire and, thus, it is a case of waiver by conduct. It is trite to say that in view of the aforesaid legal principles enunciated and discussed, the proceedings before the Umpire have to begin de novo. This will be despite the fact that the same evidence had already been adduced before the arbitrators. The Umpire cannot refuse to hear the witness again and if on request of a party to do so, fails to do so, the award would be bad for misconduct. This legal principle is, however, qualified by the principles of waiver by conduct of parties. The respondent participated in the arbitration proceedings and made no application to the Umpire for re-hearing the evidence. The reliance really placed is in an application filed under Section 5 of the said Act before the High Court of Delhi, a copy of which was placed before the Umpire. The dispute related to quantum of fee. If the respondent was serious in its endeavor that it should get an opportunity to get the evidence recorded afresh, an application could easily have been filed. It is only from oblique references that the respondent seeks to derive such an intent. The commentary of S.D.Singh relied upon by the learned Counsel for the respondent itself provides that where a party seeking to impeach an award made no application to the Umpire for re-hearing of the evidence, the same would generally operate as a waiver by conduct. This aspect is clearly an afterthought which arose during the culmination of the proceedings before the Umpire. The respondent refused to extend time for making the award and simultaneously was not conducting the hearing which was expedited by the Umpire. The respondent at no stage applied for all or any of the evidence to be recorded afresh. It must thus be held that the respondent waived the right by conduct.

19. Learned Counsel for the respondent really could not dispute the award in respect of the first claim of the petitioner which arose on account of the entitlement of the petitioner to 5% remuneration on the imports. This claim is the balance amount not imported as per contract. Really speaking, no submission was advanced disputing this claim and, in fact, the submission of learned Counsel for the respondent was that no other amount on account of any alleged loss could be granted to the petitioner in view of the provisions in the contract for 5% remuneration as calculated in terms of claim 1.

20. Learned Counsel for the respondent, however, disputed claim 2 and contended that the same was outside the agreements and could not have been awarded by the Umpire. In this behalf, learned Counsel pointed out that the first agreement dated 30.3.1982 contains the provision of 5% remuneration on the CIF value as per Clause 4 of the said agreement. The second agreement dated 13.9.1982 had the relevant clauses as under:

3. We hereby agree that we shall sell the material imported under the above referred agreement after processing in our factories as per your requirements. We shall charge you the price of such processed oils which shall be equivalent to landed cost (excluding service charges paid to you under the above referred agreement) plus manufacturing charges mutually agreed and 25% of the C.I.F. Value of the goods imported.

4. The goods will be delivered to you ex-our factories at Madras and Ludhiana for the price fixed hereinabove.

5. PAYMENT: You shall make the payment of processed goods within 7 days of the delivery of the goods after deducting the amount paid by you on our behalf in respect of the goods if any."

21. It was, thus, the submission of the learned Counsel for the respondent that the only obligation of the respondent was to process the imported material and deliver the same after processing at agreed rates to the petitioner and, thus, the respondent could not be held liable beyond the quantity of material supplied. Since this claim arose out of non-utilization of REP licenses and the goods were never processed, no damages could be awarded on this account.

22. I am unable to accept this contention of learned Counsel for the respondent for the reason that the two agreements have to be read as a whole. In any case, the second agreement dated 13.9.1982 provided for processing and supply at pre- determined rates to the petitioner. The combined arrangement was that the petitioner would utilize the REP licenses for import on behalf of the respondent and earn a commission of 5% on the same. Thereafter the goods would be processed by the respondent and supplied to the petitioner and such sale would be at pre- determined rates. Since part of the imports did not take place on account of failure of the respondent to give the REP licenses, the amount which the petitioner would have earned on further sale in the market certainly can be recovered from the petitioner.

23. Learned Counsel for the respondent in addition to the aforesaid submission, contended that the award of damages for loss of profit at Rs.2700/- PMT on 1965.21 MT suffers from an error apparent on the face of the award and, thus, even if such amount is payable, the very basis of such calculation is erroneous. The calculation is based on the debit note raised by HLL on the petitioner for non-delivery of supply. The relevant portion of the award in this behalf is as under:

The claimant had filed the debit note (exhibit C-20) issued by HLL amounting to Rs.1,72,975.00 in support of its plea that it had suffered damages and loss as a result of the Respondent's failure to supply the said goods, namely PKO, it is urged. The contracted rate per MT and the market rate on the date of delivery, contracted quantity and the amount of damage suffered by HLL have been mentioned in the said debit note. The certified copy of the plaint, apparently, had been filed to corroborate the facts that the claimant had entered into a contract to sell PKO with HLL, the commodity had to be delivered by 31st August, 1983, the contractual price per MT was Rs.14,500/-, the difference between market price as claimed by HLL and the contracted rate was Rs.13,500/- per MT. The contracted quantity which could not be supplied by the claimant was 1275.950 MT and, thus, the amount of loss and damage amounted to Rs.1,72,23,975.00. All these facts find mention in the debit note, which, I hold, is a substantive piece of evidence in these proceedings.

24. Learned Counsel for the respondent submitted that though the Umpire relied upon the debit note, the plaint filed by HLL at Bombay as also the written statement filed by the petitioner ought to have been read. The debit note of HLL discloses the contracted value which could not be supplied as 1275.950 MT and not 1965.21 MT. The loss of profit was, therefore, limited to only 1275.95 MT as the petitioner had failed to establish any other market and/or agreement in respect of which it could not supply or sell because of inability to import the balance quantity.

25. Here again, on a consideration of the matter, I am unable to accept the plea of the learned Counsel for the respondent. The claim of HLL has been taken as the basis to determine the price which would have been obtained by the petitioner from the material. It is not necessary that the petitioner should first obtain a supply order and then only be entitled to claim the damages. The basis of the damages is that once the goods would have come into the hands of the petitioner, they would have been sold at a particular market price. Indisputably, the balance quantity which was not supplied was 1965.21 MT and, thus, the damages have to be calculated on that account of supply.

26. The linked aspect canvassed by the learned Counsel for the respondent is the rate of damages of Rs.2700 PMT. In this behalf, learned Counsel submitted that the debit note of HLL could not be read in isolation and had to be read with agreement dated 10.1.1983 between HLL and the respondent which form a part of the plaint containing the debit note of HLL. Clause 4 of the agreement dated 10.1.1983, which is Ex. A-1, reads as under:

4. PRICE : Rs.14,500/- (Rupees fourteen thousand five hundred only) per M.TY., Deld. Our Sewri Factory, including all taxes, octroi and other duties, which every may be applicable " % payment discount to the Buyer, Buyer to issue 'C' form.

27. Learned Counsel for the respondent, thus, submitted that the price of Rs.14500/- was for delivery of the oil at the factory of HLL at Sewri and it included all taxes, octroi and other dues as also applicable "% payment discount. The umpire has proceeded to take the price of the oil sold to the petitioner at Ludhiana at Rs.11800 PMT as the cost price to the respondent to determine the loss of profit. In this behalf it is stated that the price at the relevant time of delivery at Ludhiana was Rs.12000 PMT and the same could not be delivered to Sewri, Bombay without incurring certain expenses on taxes, octroi, transportation charges and "% payment discount. In this behalf a calculation sheet was submitted to show that if these elements are taken into consideration, the cost would come to Rs.1475 PMT and if "% payment discount is also added to the same, the total cost would be approximately Rs.1500 PMT. The cost price, thus, which would arise for delivery at Bombay would be minimum Rs.13,500/- (Rs.12000+1500) and, therefore, at best, the loss of profit would be Rs.1,000 PMT.

28. Learned Counsel for the petitioner, on the other hand, pleaded that there is no basis made for the aforesaid plea by learned Counsel for the respondent. There was no plea raised in the written statement that the rate between HLL and the petitioner contain certain inputs which would not apply in case of delivery at a different place. In the absence of any evidence, the plea cannot be permitted to be raised on a first occasion before this Court by producing working sheets.

29. I am in agreement with the submission of learned Counsel for the petitioner that the substratum for such a plea was never layed by the respondent. The original plea was quite different. No plea was raised and no evidence was adduced to substantiate that the basis of price fixation with HLL was inclusive of certain inputs which would not apply in case of delivery at a different place and, thus, certain elements are liable to be excluded. In the present proceedings, this Court cannot now take cognizance of this plea merely on the basis of a table/chart being produced without any back-up evidence and work out exclusion of certain price elements to come to a different figure. This is not the scope of scrutiny of the present proceedings. I am, thus, of the considered view that the objection of the respondent cannot be sustained and is accordingly rejected.

30. The third claim of the petitioner is on account of short supply. The submission of learned Counsel for the respondent is that the relevant records in this behalf are not available on account of fire in the factory of the respondent and, thus, an application was moved to examine an expert witness. The expert witness established that the process loss for converting from the crude form of oil was at least 5.25% and no evidence was produced by the petitioner to show a lesser loss. Thus, if the process loss is calculated on the total amount of delivery made, the shortfall would be much less.

31. Learned Counsel for the petitioner contended that what is stated by the expert witness in any case cannot be treated as a gospel truth and in this behalf relied upon the judgment of a learned single Judge of this Court in Thyssen Stahlunion Gmbh v. Steel Authority of India . It was held that the evidence under Section 45 of the Evidence Act, 1872 of an expert opinion is not binding on the Court in all cases and the Court does not become functus officio to draw conclusion if the expert has also given opinion of finding. It is, thus, submitted that the Umpire was well within his right to draw a conclusion different from that of the expert witness.

32. The premise of the aforesaid submission is that a process loss has to be taken into account. In my considered view, this plea of the respondent cannot be accepted since the agreement dated 13.9.1982 did not contain any such clause. A commercial contract was entered into by the parties. Both the parties would be aware whether there was any processing loss or not. If no such processing loss was envisaged, the same cannot be added. It has to be presumed that while structuring the prices, the parties agreed on the total quantity to be supplied Thus, the obligation was to supply an equivalent quantity irrespective of any alleged processing loss.

33. It may also be added that the learned Umpire has examined this aspect and has rightly come to the conclusion that it is only after some evidence was recorded before the arbitrators and the failure of the respondent to produce the relevant material including of sales that the plea of loss of records at the factory was sought to be canvassed and the expert witness produced to cover the same up. The objection to the said claim is, thus, rejected.

34. Insofar as the counter-claims are concerned, the only submission advanced by learned Counsel for the respondent, apart from the grievance of lack of adequate opportunity to address submissions before the Umpire, is that since the total cost of imported material was Rs.4,28,31,637.53 and the cost of processed material was Rs.4,35,40,411/-, therefore, indisputably a sum of Rs.7,08,744/- was due and payable. This plea is supported by the fact that in reply to the counter claim, the petitioner had not disputed that the credit in respect of the transaction between the parties had to be adjusted. It was stated as under:

However, the credit in respect of the transaction between the parties have been adjusted and/or liable to be adjusted against the claims of the Respondent to the tune of more than Rs.3,73,75,509/- in respect of the damages suffered by them.

35. The plea, thus, is that out of the claim of the petitioner, the petitioner itself accepted the concept of adjustment of credit in respect of the transaction.

36. Learned Counsel for the respondent merely disputed the aforesaid plea but could not really rebut the plea of the petitioner. The counter-claim pleaded by learned Counsel for the respondent of Rs.7,08,744/- is based on the reply to the counter-claim by the petitioner. In fact, the plea of the petitioner, as stated above, was that the amounts were liable to be adjusted against the claims/damages suffered. No doubt this Court does not sit as a court of appeal, as stated above, but where a finding is capable of being derived on the admitted pleadings of the parties, the counter-claim to that extent ought not to have been rejected by the Umpire. In fact, as stated above, the real plea in respect of the counter-claim is only for this amount of Rs.7,08,744/- which, in my considered view, is liable to be allowed in favor of the respondent.

37. Learned Counsel for the respondent also sought to raise pleas about the alleged misconduct of the Umpire, both legal and of proceedings, breach of principles of natural justice, hostile behavior of the Umpire in reading evidence selectively and not appreciating the evidence properly.

38. There is no doubt that the respondent appears to have taken a slightly hostile attitude in the proceedings before the Umpire. This appears to have resulted in these allegations being made. A perusal of the award shows that sufficient number of dates and time was given to the respondent to advance submissions. No party can claim unlimited time for addressing arguments especially when the respondent was not even willing to extend the time period. The allegations seem to be misconceived and cannot be accepted. In fact, the respondent has not even paid the share of the fee of the Umpire to the extent of Rs.1,08,000/- which the respondent must be held liable to pay. The Umpire is no more, having passed away, but the amount must be remitted to the Umpire and I deem it appropriate to direct that the said amount be remitted to the wife of the late Umpire.

39. The last aspect arises on account of the rate of interest. The plea of the learned Counsel for the respondent is that the grant of 18% interest is very high. It, however, cannot be lost sight of that the interest rates declined during the subsequent period of time and was high when originally the matter went to arbitration. In fact, the respondent itself in its counter-claim has claimed interest at 18% per annum.

40. Learned Counsel for the petitioner relied upon a judgment of the Division Bench of this Court in Bihar Sponge Iron Ltd. (BSIL) v. Rail India Technical and Economic Services Ltd. (RITES), 132 (2006) DLT 489 (DB) where it was held that the award of interest at 18% per annum by the arbitrator was well within the jurisdiction of the arbitrator. In Bhagwati Oxygen Ltd. v. Hindustan Copper Ltd. once again award of interest at 18% per annum for pre- reference, pendente lite and post award period was upheld and the decision of the High Court in reducing the rate of interest to 6% was held not to be valid.

41. In view of the aforesaid legal position, it cannot be doubted that the award of rate of interest of 18% per annum by the Umpire is without jurisdiction or was not permissible. In fact, the respondent itself claimed interest at such rate. I, however, deem it appropriate to confine the said rate of interest till the date of the award. Insofar as the period from the date of the award till the date of recovery is concerned, in view of the declining rate of interest, I deem it appropriate to award interest at 12% per annum simple interest on the principal amount.

42. The result is that the following modifications have to be made to the award:

  (i)   Loss on account of 5% remuneration               Rs. 3,49,807
      (inadvertently mentioned as Rs. 3,49,715)
(ii)  Loss on account of non-import of                 Rs.53,06,067
      Balance material of 1965.21 MT of oil @          Rs.     2700/- 
      per MT (Rs.14,500 - Rs.11,800)
(iii) Loss on account of non-supply of                 Rs. 8,10,000
      300 MT of processed PKO by the respondent @      Rs.    2,700/- 
      per MT (Rs.14,500 - Rs.11,800)
      Total                                            Rs.64,65,874
      Counter-Claim of the Respondent                  Rs. 7,08,744
                                                       ------------
      Amount Payable                                   Rs. 5757130
                                                       ------------
 

43. In view of the aforesaid, the objections of the respondent stand disposed of accordingly.
 

CS(OS) 795-A/2000
 

In view of the objections being disposed of aforesaid, the award is made Rule of the Court with the modifications referred to aforesaid. The petitioner is entitled to the principal amount of Rs. 57,57,130/- with simple interest @ 18% per annum from 1.11.1991 till date of award and simple interest @ 12 % per annum on the principal amount from date of award till date of recovery. Parties are left to bear their own costs but the respondent is liable and shall remit the balance fee of the umpire of Rs. 1,08,000/- to the wife of the late umpire. On failure to so pay within one month the amount be recovered in execution along with the other amounts by the petitioner to be remitted as aforesaid. A decree- sheet be drawn up accordingly.