Delhi High Court
Dawar Rubber Industries vs Union Of India on 25 March, 2010
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ O.M.P. No.372/2003
Date of decision : March 25, 2010
DAWAR RUBBER INDUSTRIES ... Petitioner.
Through: Mr. Shiv Khorana, Advocates
VERSUS
UNION OF INDIA ....Respondent
Through: Mr. Anuj Aggarwal and Mr. Gaurav
Khanna, Advocates.
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?
3. Whether the judgment should be reported in the Digest?
% JUDGMENT(ORAL)
VALMIKI J. MEHTA, J
1. By this petition under Section 34 of the Arbitration and Conciliation Act,
1996, the petitioner challenges the Award dated 5.6.2003, passed by the Sole
Arbitrator. The Award came to be passed on account of disputes between the
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parties under the contract wherein the petitioner was supplier of shoes and the
respondent/Union of India was the buyer.
2. The counsel for the petitioner has pressed his objections only with respect to
Claims (A),(B) and (C) as decided by the Arbitrator.
3. Claim (A) was the claim of the petitioner for recovery of an amount of
Rs.3,91,163/- on the ground that the payment with respect to the subject invoice
numbered 579/6 dated 11.10.93 and relatable RR No. 657239 dated 11.10.1993
was not released to the petitioner/claimant. The Arbitrator has found that this
payment was in fact made to the petitioner and the Arbitrator accepted the
certificate as filed by the respondent/Union of India of its bankers that payment of
the goods pertaining to the subject invoice /railway receipt was paid to the
petitioner on 24.11.1993.
Mr. Khorana, on behalf of the petitioner urges that the bankers of the
petitioner however, informed the petitioner that payment with respect to this
invoice and railway receipt was not received. I am unable to agree with the
contentions of the counsel for the petitioner. Once the respondent shows that the
account of the petitioner was in fact specifically credited with respect to subject
invoice/railway receipt, the petitioner cannot contend that no payment was made.
Mr. Khorana sought to take me through certain documents to show that payment
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has been received with respect to the other invoice and not the subject invoice.
However, I note that the argument and the documents relied upon would be
incomplete and unsustainable because Mr. Khorana cannot sustain his arguments
until and unless for the entire financial year, the complete details of the credits in
the bank account of the petitioner are shown, because only then, it would become
clear that the payment made with respect to the subject invoice/railway receipt is
not as found by the Arbitrator and proved by the respondent, but for some other
invoice/railway receipt. Admittedly, before the Arbitrator, no such document
being the complete credits in the bank account of the petitioner during the
relevant financial year has been filed. If that be so, no objection can be sustained
under Section 34 because the finding of the Arbitrator cannot be said to be in any
manner illegal or perverse. In my opinion, the Arbitrator has validly dealt with
this aspect in the following paragraphs and which findings I agree with.
"Claim No.(A)
The claimants have claimed an amount of Rs.3,91,163.00,
towards 95% of the Bill No. 579/6 dt. 11.10.93, with interest @ 27% from due
date, till actual realisation.
AWARD
It has been submitted by the respondents' counsel, Shri P.B.Lal
that the amount Rs.3,91,163.00 in respect of R/R No. 657239 dt. 11.10.93 has
been released to the claimants as the amount of Rs.3,91,163.00 is included in
the Demand Draft No. 125973 dt. 22.11.93 of Rs.8,30,456/00 (U-68 and U-
69) which has been encashed by M/s Dawar Rubber Industries on 24.11.93.
Shri P.B.Lal's submissions have a force as it is apparent from CCA's letter
(U-53) dt. 27.08.96-Sl. No.1 that the amount of Rs.3,91,163.00 has been
released to the claimants. S/Shri Ranjit Singh and Desh Pande, Sr. A.O.have
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also shown the entry in the outward Bill Register (U-64) maintained for the
purpose in CCA's Office (the entries have also been seen by the claimants'
Advocate, Shri Shiv Khorana) wherein it has been mentioned that the
claimants have supplied 14795 pairs against which an amount of Rs.
3,91,163.00 has been paid vide Bill No. 579/6 dt. 11.10.93 i.e. the alleged
95% payment has been made to the claimants vide the aforesaid bills.
In view of the above facts and circumstances, I am of the view
that when the claimants have already received Rs.3,91,163.00 towards the
alleged 95% of Bill No. 579/6 dt. 11.10.93, their claim has no stand hence the
claim with interest @ 27 per annum from alleged due date, is rejected."
4. The other claims which was objected to by the counsel for the petitioner was
Claim (B) and (C). As per these claims, the petitioner challenges the withholding
of an amount of Rs.2 lacs by the respondent on account of breaches committed by
the petitioner in other contracts. The counsel for the respondent during the course
of hearing stated that now in fact Awards have been passed in favour of the
respondent and against the petitioner with respect to those other contracts. The
relevant Award in this regard is dated 15.9.2009 of Sh. B.L.Chaudhary, sole
Arbitrator. Therefore, once an Award has been passed in favour of the
respondent, the respondent will be entitled to appropriate and adjust the amounts
as withheld from these contract towards the claim of other contracts. No
objection is therefore maintainable against the action of the respondent in
withholding the amounts of which payment is sought under these claims.
5. No other issue was pressed.
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6. In view of the above, the petition is dismissed leaving the parties to bear
their own costs.
VALMIKI J. MEHTA,
March 25, 2010
ib
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