FLORA EXPORTS Vs. IMPEX-TRADING GMBH

JUDGEMENT

(1.) The appellant, in this appeal under Section 37 of the Arbitration and Conciliation Act, 1996 (the Act) assails the judgment dated 13.04.2012 passed by the learned Single Judge in O.M.P. No. 559/2010 on 13.04.2012, whereby the appellants objections to the arbitral award dated 16.06.2010 under Section 34 of the Act have been dismissed. The parties entered into Contract No.PJN-1119/06, whereunder the appellant agreed to supply 56,712 pieces of 100% cotton throws in 9,452 boxes from its plant situated at Panipat to the respondent situated in Germany. The date of the start of the contract was 02.02.2006. The dispute arose as, according to the respondent/claimant, the appellant had short supplied the goods which were discovered upon receipt of the goods in Germany. Consequently, the respondent sought refund of the excess amount realized by the appellant for the consignment along with interest.

(2.) The said dispute was referred to arbitration, registered as Case No.1544. The arbitration was conducted in accordance with the rules of Indian Council of Arbitration in terms of the agreement of the parties. The primary issue of fact which arose for determination by the arbitral tribunal, was as to who was responsible for the shortage of goods. Under the contract, the aforesaid supply was to be made by 30.04.2006 ex-Bombay Port on CFR basis. The goods were to be transported by a sea going vessel from Bombay to Rotterdam through Maersk Line (India) Pvt. Ltd. Further, the goods were to be taken by container trucks from Rotterdam to the warehouse of the respondent at Greven, Germany under the supervision of Vat-Logistic Company, the agent of the respondent.

(3.) The first consignment of four containers was delivered by the appellant to the respondent without any complaint. The second consignment of four containers, after inspection by the respondent's authorized representative, left the factory premises at Panipat. The appellant claims that after the containers were stuffed, they were sealed by the officers of the excise department by a lead seal piler and a report was prepared on the spot. The blue seal of the shipping line was also put on the containers. The appellant also locked the container with an iron strip and a lock. The container was then sent to Inland Container Depot (ICD) at Tughlakabad in Delhi. While two of the containers left the factory premises of the appellant on 09.05.2006 and reached ICD at Tughlakabad on 11.05.2006, the third left the factory on 12.05.2006 and reached ICD on 15.05.2006. The fourth container left the factory on 13.05.2006 and reached ICD on 15.05.2006.