M/S. Goodwill Super Markets vs Indian Railway Catering & Tourism ...
2014 Latest Caselaw 1349 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                  FAO No.74/2014

%                                                   12th March, 2014

M/S. GOODWILL SUPER MARKETS                  ..... Appellant
                  Through: Mr. Siddharth Joshi, Advocate.
                  Versus
INDIAN RAILWAY CATERING & TOURISM CORPORATION LTD.
                                       ..... Respondent
                  Through:
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

C.M. No.4664/2014 (exemption)

1.           Exemption allowed subject to just exceptions.

             C.M. stands disposed of.

C.M. No.4667/2014 (condonation of delay in re-filing)

2.           For the reasons stated in the application, delay of 57 days in re-

filing the appeal is condoned.

             C.M. stands disposed of.

+ FAO No.74/2014 and C.M. Nos.4665/2014 (stay) and 4666/2014 (filing
of additional documents)



FAO No.74/2014                                                  Page 1 of 5
 3.          This first appeal is filed under Section 37 of the Arbitration &

Conciliation Act, 1996 (hereinafter referred to as 'the Act') against the

impugned order of the court below dated 7.9.2013 by which objections filed

by the appellant under Section 34 of the Act were dismissed.

4.          The respondent herein i.e Indian Railways Catering and

Tourism Corporation Ltd was the claimant in the arbitration proceedings.

The claim as filed by the respondent in the arbitration proceedings was

essentially a claim for balance due on account of stocks of "Rail Neer"

supplied by the appellant to the respondent.      The basic claim of the

respondent was stated in para 14 of the claim petition and which was that

"Rail Neer" sold for the year 2007-08 was of the amount of Rs.50,41,825/-

but amount received was only Rs.38,66,440/- and therefore the balance

amount of Rs.11,75,385/- was said to be due and payable and for which the

main claim petition was filed.

5.          The appellant herein appeared in the arbitration proceedings

and contested the claim.     The appellant also filed the counter claim.

However, when we refer to the written statement filed by the appellant, the

specific figures of amounts due to the respondent/claimant was of

Rs.11,75,385/- on account of the figure of sales made and payments made

have not been disputed. In para 14 of the written statement only adjustments
FAO No.74/2014                                                 Page 2 of 5
 have been prayed for against the respondent/claimant, and therefore surely

onus was upon the appellant herein to make good its case.           Both the

arbitrator and the court below noticed the aspects which were the

contentions of both the parties and have held that the claim of the

respondent/claimant of Rs.11,75,385/- being the balance due on account of

sale of stocks was due.

6.            Before proceeding further, it is relevant to note that scope of

hearing objections under Section 34 of the Act is limited. The aspects of

appreciation of evidence and conclusions to be derived at from the record

falls in the realm/jurisdiction of the Arbitrator and the court hearing

objections under Section 34, and much less the appellate court hearing the

appeal against an order dismissing the objections, cannot interfere unless the

findings are against the law (Section 28(1)(a) of the Act) of the land or

against the contractual provisions(Section 28(3) of the Act) or are totally

perverse. When on the basis of evidence on record, a particular finding is

arrived at and two views are possible of the situation, the Award cannot be

said to be illegal or violative of the contract or perverse and nor can the

order which dismisses the objections under Section 34 against the Award be

said to be illegal.


FAO No.74/2014                                                 Page 3 of 5
 7.           A reference to the objections filed shows that essentially what

was contended on behalf of the appellant was that the arbitrator has misread

the evidence for arriving at the conclusion for passing of the Award, and the

claim petition of the respondent should not have been allowed. These types

of objections do not fall in the scope of Section 34 of the Act.

8.           Also, though counsel for the appellant argues before me that

appellant wanted to lead evidence with respect to its defence/counter claims,

however when a query was put to show as to whether such a prayer was

made before the arbitrator or even in the objections filed under Section 34,

nothing to this effect could be pointed out to this Court. In fact, as already

stated above, objections filed by the appellant under Section 34 show that

the conclusions of the arbitrator drawn from the evidence on record were/are

being challenged.

9.           The onus to prove the adjustments claimed by the appellant was

upon the appellant and the appellant failed to do so by leading of necessary

evidence and therefore there is no illegality or perversity in the action of the

arbitrator in awarding the amount claimed by the respondent herein being

the balance due on the sale of stocks.




FAO No.74/2014                                                     Page 4 of 5
 10.          In view of the above, there is no merit in the appeal, and the

same is therefore dismissed, leaving the parties to bear their own costs.




MARCH 12, 2014                                VALMIKI J. MEHTA, J.

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