Senior Regional Manager, H.P.C.L ... vs Kanahaiya Lal
2021 Latest Caselaw 5822 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Misc. Appeal No. 2358/2016

1. Senior Regional Manager, Hindustan Petroleum Corporation Ltd., 17 Jamshedi Kate Road, Mumbai.

2. Senior Regional Manager Retail, Hindustan Petroleum Corporation Ltd., Jodhpur Salawas Depot, Jodhpur.

----Appellant Versus Kanahaiya Lal Jhavar, Proprietor Rajendra Petrol Service, Nokha, District Bikaner.

                                                                ----Respondent


For Appellant(s)          :    Mr. Sunil Beniwal
                               Mr. Manoj Bhandari
For Respondent(s)         :    Mr. Harshit Bhurani

HON'BLE MR. JUSTICE VINIT KUMAR MATHUR Judgment

01/03/2021

The present appeal has been preferred against the judgment

and order dated 06.02.2016 passed by District Judge, Jodhpur

City in Civil Misc. Case no. 35AA/2010 whereby the application

preferred by the respondent Kanhaiyalal under Section 34 of the

Arbitration and Conciliation Act of 1996 was allowed and the

award disallowing certain claims passed by the Arbitrator dated

17.08.2009 was quashed and set aside.

Briefly stated facts of the case are that M/s Rajendra Petrol

Service was given a contract by appellants on 12.05.2003 for

transportation of petroleum products. A dispute arose with respect

to the rate of transportation of petroleum products from the point

where the truck was loaded. The claimant raised the issue that

HPCL did not pay him the transportation charges as per the rates

applicable at loading/dispatch point on 23.09.2004, they suffered

a loss of Rs. 11,30,754/-, therefore, the same was asked to be

paid by the Petroleum Corporation. Since, there was an Arbitration

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Clause in the agreement entered into between the claimant and

respondent, the matter was referred to the Arbitrator. The

Arbitrator after taking into consideration the relevant pleadings,

partly allowed the claims after adjudicating the dispute vide its

award dated 14.08.2009 in the following terms :-

"In terms of the provisions made in the

agreement, I decide the claims of the claimants as

under :-

(a) The claim of Rs.95,723.76 demanded for transporting 440 KL product from Jamnagar to Jodhpur depot is not maintainable since the tank trucks were sent by Jodhpur to Jamnagar loading point for bridging the product and the trucks were not shifted or attached to Jamnagar dispatch point. As such rate applicable at Jodhpur depot shall apply. Therefore, this claim is not tenable and is accordingly rejected.

(b) Claim of Rs.9,54,690/- for transportation of 9420 KL petroleum product from Bhatinda to Hanumangarh is not maintainable because tank trucks were attached to and sent by Hanumangarh depot to Bhatinda dispatch point for bridging product and were not shifted or attached to Bhatinda dispatch point. As such claimant was entitled to prevailing L- 1 rates at Hanumangarh depot where tankers were attached. But he has been paid at L-1 rates applicable to Jodhpur depot, which is not correct. Therefore, contractor is entitled to get payment of Rs.2,09,239/-. Being differential amount between Hanumangarh and Jodhpur rates. This claim is accordingly partly allowed for Rs.2,09,239/- only.

(c) For the reasons given in para (b) on page No.8 the claim of Rs.11,368.56 for transportation of 40 Kilo Litre petroleum products from Jamnagar dispatch point to Jaipur depot is not maintainable since tank

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truck was sent by Jaipur depot to Jamnagar for bridging. As such Jaiput L-1 rate shall be applicable (which is lower than the Jodhpur rate) where tank truck was attached. Payment has been paid at rates applicable to Jodhpur depot which is not correct. As such claimant has to refund the excess amount of Rs.8,213/- already paid being differential between Jaipur and Jodhpur rates.

(d) Claim for transportation of 320 Kilo litre petroleum products from Baroda to Salawas dispatch point is not maintainable since tank trucks were attached to and sent by Salawas depot to Baroda for bridging and were not shifted/attached to Baroda. As such, claim of Rs.54,297.60 is rejected.

(e) Claim of Rs.14,671.26 for transportation of 40 Kilo litre petroleum products from Jamnagar to Hanumangarh dispatch point as claimed is not maintainable since tank trucks were attached to and sent by Hanumangarh depot to Jamnagar disptach point for bridging. As such L-1 rate of Hanumangarh depot shall apply and not of Jamnagar. But contractor has been paid at rates applicable to Jodhpur depot which is not correct. As such, contractor is entitled to be paid a sum of Rs.14,923/- being differential between Hanumangarh and Jodhpur rates. This claim is accordingly partly allowed for Rs.14,923/- only. Rest of the claim is rejected.

Accordingly, I hold that claimant is entitled to receive a total amount of Rs.2,15,949 and respondent is liable to pay a sum of Rs.2,15,949. Payment to be made within 30 days from receipt of award. Rest of claim of the claimant demanding payment @ applicable at locations where tank trucks were sent for bridging is not maintainable and is rejected."

The claimant assailed the validity of the award passed by

the Arbitrator to the extent that the amount of transporting the

petroleum products from Jamnagar to Jodhpur, Bhatinda to

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Hanumangarh and Baroda to Salawas was disallowed. Learned

District Judge, Jodhpur City allowed the application preferred by

the respondent-claimant under Section 34 of the Act and reversed

the findings of the Arbitrator rejecting the claim of the

respondent-claimant for transporting the petroleum products from

Jamnagar to Jodhpur, Bhatinda to Hanumangarh and Baroda to

Salawas.

While laying challenge to the order passed by the learned

District Judge, Jodhpur City on 06.02.2016, Shri Bhandari

vehemently argued that the rejection of the claim of the

respondent-claimant for transportation of the petroleum products

as mentioned above was rightly done by the Arbitrator in light of

the Agreement Clause between the parties and since there was no

change in the dispatch point of the petroleum products, the

claimant was not entitled for any differential amount even if it is

being dispatched from other locations. The learned counsel further

submits that the Arbitrator has rightly taken into consideration the

concept of bridging while adjudicating the claim and therefore the

claimant is not entitled for any amount of transporting the

petroleum products, if the same is dispatched from other

locations. He also submits that even as per Section 34 of the

Arbitration and Conciliation Act, 1996, the application preferred by

the claimant is not maintainable as none of the clause mentioned

in Section 34 has been stated to be violated in the present case

and the learned court has traversed beyond the jurisdiction while

entering into the merits of the case. Learned counsel for the

appellant has relied upon the judgment of Hon'ble the Supreme

Court in the case of Associate Builders vs. Delhi Development

Authority AIR 2015 SC 620.

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Per contra, learned counsel for the respondent-claimant

submits that the cost incurred for the transportation of the

petroleum products from different depots was more than the

agreed amount of dispatch from Jodhpur which was the dispatch

point as per agreement and therefore, the claimant cannot be put

to disadvantage while maintaining the terms of contract. The

bridging concept cannot be interpreted in such a way that if the

petroleum truck was being transported from any other location,

then the amount agreed between the Corporation and the

claimant, will remain the same much less to the disadvantage of

the claimant.

I have considered the submissions made at the Bar and

gone through the order passed by learned District Judge, Jodhpur

City dated 06.02.2016 as well as the award 17.08.2009 passed by

the Arbitrator.

The short point involved in the present case is that an

agreement was entered into between the claimant and the

Petroleum Corporation for transportation of the petroleum

products from the location (i.e. dispatch point) that was agreed

between both the parties. The transportation of the petroleum

products from the dispatch point to other places was fixed as

agreed between the parties. However, during the currency of the

agreement, certain changes in transportation of the petroleum

products were ordered by the Petroleum Corporation which was

other than the agreed dispatch point. Since the petroleum

products were to be transported from Jamnagar to Jodhpur,

Bhatinda to Hanumangarh and from Baroda to Salawas, the

claimant, for transportation of such petroleum products, was

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entitled for the payment of charges in addition to the agreed rate

as per the agreement.

It is noted that the concept of bridging was not the part of

the contractual agreement between the parties, therefore, the

same should not have been applied in the present case. The

judgment of Hon'ble the Supreme Court relied upon by the

learned counsel for the appellant is of no help and does not apply

to the facts in the present case.

It is also noted that as per Clause 2(c) of the agreement

the claimant would be entitled to the rates applicable for

transportation of the product from the points as ordered by the

Petroleum Corporation. For brevity, clause 2(c) is reproduced as

under :-

"(C) corporation would also be entitled to transfer attachment of any tank lorry to another storage point for optimum utilization of tank lorries. However, in such event, tank lorry would either be sent with load to the new location or in case it is sent empty, would be paid for one way distance. Thereafter, prevailing L-1 rate applicable to the said new storage point would apply. All other terms including Arbitration Clause would remain uncharged."

Thus, in the light of specific clause entered into between

the Petroleum Corporation and the claimant, the claimant is

entitled for the amount for transportation of the petroleum

products from the dispatch point which is other than the agreed

dispatch point and therefore, the order passed by the learned

District Judge does not suffer from any infirmity. The appeal is

bereft of merit and same is, therefore, dismissed.

(VINIT KUMAR MATHUR),J

2-/VivekM/-

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