Sh. Arun Kumar Goel vs The Sr. General Manager, Dscsc ...
2009 Latest Caselaw 4707 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELH

+                          O.M.P. No.149/2000

                                                 19th November, 2009.

SH. ARUN KUMAR GOEL                                       ...Petitioner

                           Through:     Mr. S. C. Sharma, Advocate.
              VERSUS

THE SR. GENERAL MANAGER, DSCSC LTD. & ORS.                    ....Respondents.

                           Through:     Mr. R.K. Sharma, Advocate.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

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

     2. To be referred to the Reporter or not?      Yes

     3. Whether the judgment should be reported in the Digest? Yes

    %                            JUDGMENT (ORAL)

VALIMIKI J. MEHTA, J.

1. This is a petition under Section 34 of the Arbitration and

Conciliation Act, 1996 challenging the Award dated 24.3.2000 passed by the

sole Arbitrator. The arbitration proceedings arose on account of the claim made

by the petitioner/claimant for its transportation dues. The petitioner was granted

a transportation contract for the transportation of grains by the respondent for

the period June, 1993 to May, 1994. The petitioner/claimant states that its bills

O.M.P. No.149/2000 Page 1 of transportation were not cleared by the respondent and therefore he filed its

claims before the Arbitrator.

2. The issue, therefore, before the Arbitrator was that whether the

petitioner was entitled to his claim of transportation charges. With respect to

these dues towards transportation, the stand of the respondent was that there

were missing stocks of grains and therefore such value of missing stocks of

grains was adjusted from the bills of the petitioner/transporter. The Arbitrator

has given a finding that the respondent is entitled to make recoveries from the

bills of transportor on account of the missing stocks of grains.

3. Before me the counsel for the objector has very vehemently

contended that the Award itself shows certain helplessness by the Arbitrator by

saying that the procedure with respect to issuing of grains for transportation and

its receipt is faulty. No doubt, that this is so said by the Arbitrator, but the

entire Award has to be read and certain lines cannot be torn out of context from

the Award. I may note that the Arbitrator specifically arrived at the following

findings:

(i) It has been found as a matter of fact that right from June, 1993 till

the end of the contract, recoveries were made from the bills of the

petitioner/claimant for the missing grains and absolutely no objection

O.M.P. No.149/2000 Page 2 whatsoever and no letter whatsoever was written protesting or objecting to these

recoveries.

(ii) The Arbitrator has arrived at a finding of fact that objection for the first

time was raised much later in June, 1996 i.e. almost after three years and

therefore, the Arbitrator holds that this shows that if the recoveries were not

genuine, there was no reason for the petitioner to not have made any claim even

after two years of the performance of the contract.

(iii) The Arbitrator has further arrived at a finding of fact that during the

period of the transportation contract, i.e. in February, 1994, the

transporter/claimant/petitioner in fact asked for clearing of all the dues of

Rs.28000 to Rs.30,000 and for which the respondent corporation released a sum

of Rs.28,118.59 to the petitioner/claimant in March, 1994.

(iv) A physical verification of stocks of grains was conducted in July, 1993

and which physical verification done during the contractual period has not been

disputed by the claimant.

The aforesaid becomes clear from the following paragraphs of the

Award:

"30(ii) Having said this, the benefit of the deficiency cannot be used to the advantage of the claimant transporter because he himself has agreed that the procedure does not include any

O.M.P. No.149/2000 Page 3 provision whereby he issues a receipt when he takes over the goods to be transported from the respondent corporation. However, the Respondent Corporation could have obtained copies of the gate pass in respect of the goods in question [which stood issued to them by FCI and were subsequently found missing (not supplied to the FPSs)] from the FCI so as to establish that the goods were actually taken out from the FCI godown by the claimant transporter or his authorised representative. But the Respondent Corporation failed to do so. However the clinching evidence of menseria weighs against the claimant as although deductions were made from the bills of the claimant in June, 1993, the claimant transporter did not raise a claim in this regard or dispute such deduction till upto May, 1996. In fact, on the contrary, they have given a letter in Feb.94 to the Respondent Corporation requesting for clearing all dues of Rs.28 to 30,000/- on account of missing stocks as a follow up of which the Respondent Corporation released a sum of Rs.28,118.59 ps. To the claimant in March, 1994. Thereafter the claimant corporation continued to perform its contract on the terms & conditions agreed to as per agreement and did not file a single claim contesting the settlement of accounts. It is only after 3 years that they have made their first claim by way of legal notice in May, 1996 and have tried to establish that the Respondent Corporation has wrongly with-held their dues and have tried to pass on the missing stocks pertaining to the earlier contractor on to them. But they have not been able to establish their claim either by way of records or arguments. Nor have they been able to explain the delay of 3 years in claiming of such a huge amount.

33(i) The respondent corporation has produced records in terms of officenote, physical verification report dt. 2.7.93 and 14.7.93, composite register and summary statement prepared on the basis of composit registers established that the value of the missing stocks was equal to the deductions made from the dues of the claimant. That these statements were made based on physicaly verification done during the contract period of the claimant transporter has not been disputed by the claimant.

Though it was seen that composite registers were not properly authenticated, but at the same time the validity of the same

O.M.P. No.149/2000 Page 4 cannot be disputed as the office records and summary statement based on these and the details of amount return to the FPS on account of non-supply of food articles, tally with each other."

(Emphasis Added)

4. In view of the aforesaid findings of fact, the Arbitrator has held

that the respondent corporation was entitled to make recoveries from the bills

for the missing stocks of grains and therefore, to that extent the bills of the

transporter were not justified.

5. It is settled law that while hearing objections under Section 34, this

court will only interfere if the finding of facts as arrived by the Arbitrator are so

perverse that it shocks the judicial conscience or are against the provisions of

the contract or are in any manner illegal. I do not find any illegality or

perversity at all in the findings as arrived at by the Arbitrator. A civil case has

to be decided on balance of probabilities. Looking at the balance of probability

and the evidence as available before the Arbitrator, the Arbitrator has arrived at

finding of facts to which this court, even if it is of another view, would not

choose to interfere under Section 34. Accordingly, the aforesaid objections are

dismissed, leaving the parties to bear their own costs.

November 19, 2009                                     VALMIKI J.MEHTA, J
Ne/ib




O.M.P. No.149/2000                                                             Page 5