Delhi High Court
Union Of India vs M/S Kashind Roller Floor on 24 March, 2009
Author: Vipin Sanghi
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO(OS) 351/1999
Date of Decision: 24rd March, 2009
UNION OF INDIA ..... Appellant
Through: NEMO.
versus
M/S KASHIND ROLLER FLOOR ..... Respondent
Through: Mr. Shiv Khurana, Advocate.
CORAM:
HON'BLE MR. JUSTICE MUKUL MUDGAL
HON'BLE MR. JUSTICE VIPIN SANGHI
1. Whether the Reporters of local papers may No
be allowed to see the judgment?
2. To be referred to Reporter or not? No
3. Whether the judgment should be reported No
in the Digest?
% JUDGMENT (Oral)
VIPIN SANGHI, J.
1. The present appeal is directed against the order dated
01.11.1999 passed by the learned Single Judge whereby the
appellant's application being I.A. No. 10658/98 under Section 34 (3) of
the Arbitration and Conciliation Act (the Act) seeking condonation of
delay in filing objections (under Section 34 of the Act) to the arbitral
award dated 21.05.1998 has been dismissed, and consequently OMP
No. 267/98 being objections under Section 34 of the Act have also
been dismissed.
2. The award itself records that the parties agreed that the
proceedings to be treated as under the Act.
3. The impugned order reveals that none appeared for the
petitioner when the application for condonation of delay of 21 days
was taken up for consideration by the Court. Once again, none has
appeared for the appellant. Since the delay was less than 30 days
which is condonable by the Court, we have proceeded to examine the
award on our own on merits by condoning the delay and setting aside
the order of the learned Single Judge of dismissal for default.
4. The respondent was engaged as a milling contractor for
conversion of wheat into atta, flour, suji and gram by the appellant
vide agreement dated 2.8.1991 for a period of three years w.e.f.
30.11.1991. A large quantity of brans, jute bags and gunny wrappings
in which wheat was being supplied and its products was to be
packaged was supplied to the respondent. These got accumulated at
the respondent's premises for which the respondent was made
responsible under Clause 9 (a) of the agreement. The appellant was
not taking back these bags and it continued to remain stored at
premises of the respondent. Despite repeated notices, these bags
were not taken back. Evidently, the respondent disposed of these
bags. The appellants made a claim towards cost of the bags for
Rs.33,28,934/-. The learned Arbitrator after taking note of the notices
sent by the respondent calling upon the appellant to remove the bags
lying at their mill and the fact that these bags were disposed of for Rs.
1,33,600/- by the respondent, allowed the claim of the appellant only
to the extent of Rs. 1,33,600/-. The following counter-claims of the
respondent were also allowed:
"2. The claim of the Respondent for Rs. 21 lacs
for closure of mill from 1.12.94 upto 30.6.95
because of non-lifting of stock is allowed for Rs.
2.5 lacs per month from 1.1.95 till 30.5.95
aggregating Rs. Fifteen lacs for the aforesaid
reasons.
3. The claim of the Respondent for security
staff for watch and ward of claimant's stock at
Rs. 12,000/- per month is allowed for the
period claimed and therefore allows the sum of
Rs. 84,000/- as claimed by the Respondent.
4. The rent claimed by the Respondent for
keeping in their godown for the period from
1.12.94 till 30.10.95 at Rs. 50,000/- per month
is allowed for the aforesaid reason but since
Respondent has only claimed Rs. 3,50,000/- I
allow only Rs. 3,50,000/-.
5. The claim of the Respondent for insurance
stock is allowed for Rs. 6,000/- as claimed by
the Respondent and proved by the
Respondent.
8. The cost of jute twine malethene and
celphose tablets provided by the Respondent
on loan basis is allowed and claim of
Respondent for Rs. 2,95,000/- in this regard is
payable by the claimant as admitted by the
Claimant.
9. The claim of Respondent of refund of
earnest money of Rs. 1 lac and last bill of Rs.
1,83,464/- is allowed an being payable by the
claimant and not denied by the claimant during
hearing."
5. The learned Arbitrator also awarded interest at the rate of 18
per cent from 1.7.1995 when notice was issued to the appellant till the
actual payment.
6. The award shows that the learned Arbitrator has returned a
finding of fact that the respondent had put the appellant to repeated
notice for removal of the bags and despite these notices, bags were
not removed. The respondent was not obliged to continue to store the
bags at its premises for an indefinite period as the contract was for
milling and not for storing bags which was only incidental to milling
and once the milling contract was over the question of keeping these
bags did not arise. They were required to be lifted by the appellant as
soon as possible. On the facts and circumstances the learned
Arbitrator thought it fit that it was reasonable for the respondent to
store the goods for one month only. According to him no explanation
was furnished by the claimant as to why the stores were not removed
immediately even after notice dated 16.07.1995 served upon them.
For these reasons the counter-claims of the respondent were allowed.
7. It is not clear how the appellant could state that the Arbitrator
has erred in allowing the claim of the appellant to the extent of Rs.
1,33,600/- and how the Arbitrator has erred in allowing the aforesaid
counter-claims of the respondent. Consequently, we find no merit in
this appeal, which we have proceeded to consider on merits on the
assumption that the delay of 14 days should have been condoned by
the learned Single Judge. Dismissed.
VIPIN SANGHI, J.
MUKUL MUDGAL, J.
MARCH 24, 2009
DP
