M/S Assam Import Agency vs Cement Corporation Of India Ltd.
2009 Latest Caselaw 3275 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI


                                                   Date of Reserve: August 11, 2009
                                                      Date of Order: August 20, 2009

+ CS(OS) 789/1991
%                                                                              20.08.2009
     M/s Assam Import Agency                                            ...Plaintiff
     Through: Mr. J.N. Aggarwal, Advocate

       Versus

       Cement Corp. of India Ltd.                                       ...Defendant
       Through: Mr. Ajay Verma, Advocate


       JUSTICE SHIV NARAYAN DHINGRA

1.     Whether reporters of local papers may be allowed to see the judgment?

2.     To be referred to the reporter or not?

3.     Whether judgment should be reported in Digest?


       JUDGMENT

1. By this order, I shall dispose of the objections filed by the

plaintiff/petitioner under Section 30, 34 of the Arbitration Act, 1940 against an

award dated 31st December 1991 whereby the claim of plaintiff was rejected

and a NIL award was passed.

2. Brief facts relevant for the purpose of deciding this suit are that the

plaintiff entered into a contract with defendant for handling of the cement.

The relevant clauses of contract are as under:

"Clause (i). That you are awarded the work of handling cement at Jogighopa Dump at Rs.17 PMT as per terms and conditions of our Tender as further modified and agreed to during discussions on 07.10.1983.

Clause (iv). In case the cement is supplied to the Consignee

CS(OS) 789.91 M/s Assam Import Agency v. Cement Corp. of India Ltd. Page 1 Of 4 directly from the wagons you will be paid the rate of Rs.8/50 PMT.

Clause (v). The loading charges from the railway wagons or from your godowns to the Consignee/lorry will be reinstated at the rate per MT approved by the State/ Central Govt.

authorities."

3. In the contract, the quantity stipulated was 47,000 MT, however, this

quantity was variable. The contract was granted for one year. The contention

of plaintiff is that the actual quantity forwarded by defendant and handled by

plaintiff was much less. The plaintiff had made arrangement for stipulated

quantity and incurred expenditure for handling large quantity of 47,000 MT

whereas the quantity forwarded was 16650/- MT. The plaintiff raised a bill of

Rs.2,99,004/- on the basis of expenditure incurred by it for the contracted

quantity. The defendant took a stand that this bill was not payable as the

plaintiff had been paid handling charges in accordance with the contract.

Ultimately, the dispute was referred, at the instance of the plaintiff, to the

arbitrator. Before the arbitrator, the plaintiff raised a claim of Rs.8,12,715/-

towards loss because of expenditure incurred by plaintiff on godown etc and

raised a claim of Rs.3,18,692/- on the ground that he was not paid full amount

for the quantity of cement handled. The petitioner/plaintiff also claimed a sum

of Rs.8,50,000/- under clause 4 on the ground that the plaintiff was also

entitled to payment @ Rs.8.50 PMT for quantity supplied directly by

defendant /respondent to the consignees by wagons. The plaintiff also

claimed interest over this amount. The learned arbitrator found the claim

made by the plaintiff as untenable. It is also observed by learned arbitrator

that during continuation of arbitral proceedings parties had settled their

accounts in respect of other things and in view of settlement arrived at, he

was only to give an award in respect of unresolved disputes regarding

CS(OS) 789.91 M/s Assam Import Agency v. Cement Corp. of India Ltd. Page 2 Of 4 applicability of clause iv.

4. The plaintiff had argued before the arbitrator that it was entitled to

claim handling charges even for that cement which directly went to the

consignee without having been handled by the plaintiff @ Rs.8.50 PMT. The

learned arbitrator after considering clauses (i), (iv) and (v) came to conclusion

that there was two kinds of handling to be done by plaintiff; one where the

cement was to arrive at the railway station and was to be taken by the

plaintiff to his godwon and then supplied to the consignees. In such a case,

the plaintiff was entitled for handling charges @ Rs.17 PMT and the second

type of handling was one where the cement arrived at the railway station

from wagons and it was not to be taken to the godown but from wagon itself

it was loaded to the trucks of the consignees directly. For such a handling, the

plaintiff was entitled for Rs.8.50 PMT. The learned arbitrator turned down the

plea of petitioner that the petitioner was also entitled to handling charges in

respect of those consignments which were not handled by the petitioner in

anyone of the above two manners and the consignment went directly to the

consignee through wagons itself.

5. I consider that the contract between petitioner and respondent could

not have been interpreted in any other manner. The petitioner was given

contract of handling the cement and if cement was not to be handled by the

petitioner in any manner, the petitioner was not entitled for any handling

charges.

6. The learned counsel for petitioner argued that no amount was paid in

respect of the settlement and the arbitrator should have mentioned the

CS(OS) 789.91 M/s Assam Import Agency v. Cement Corp. of India Ltd. Page 3 Of 4 amount to be paid to petitioner under the settlement. Counsel for respondent

submitted that the amount as agreed during settlement was paid to the

petitioner after the settlement was arrived at and the learned arbitrator was

only to give an award in respect of unresolved dispute regarding applicability

of clause iv on consignment of cement which directly went to the consignee

and no handling was done by the petitioner.

7. I have perused the record and the reply filed by respondent. The

respondent had given details of the handling charges payment made by

respondent to the petitioner under the contract. Thus, the plea of plaintiff that

it was not paid the amount on account of handling charges is baseless. I also

find that the award passed by learned arbitrator suffers from no infirmity and

the learned arbitrator did not misconduct himself nor the award suffers from

an error on the face of it. The allegations made by the plaintiff against the

arbitrator that the award was ante-dated is also baseless . I find no force in

the petition. The petition is hereby dismissed. No orders as to costs.

August 20, 2009                                        SHIV NARAYAN DHINGRA J.
rd

CS(OS) 789.91 M/s Assam Import Agency v. Cement Corp. of India Ltd. Page 4 Of 4