AMKA TRADING COMPANY Vs. S NANDAGOPAL

JUDGEMENT

(1.) This appeal is against the order of the learned single judge dated 11.4.2001 made in O. P. No.565 of 1999, confirming the award passed by the Arbitrator, thereby rejecting the application filed under Sec.34 of the Arbitration and conciliation Act, 1996. The petitioners in O. P. No.565 of 1999 are the appellants before this Court.

(2.) The respondents herein are engaged in the business of selling lamps and tube-lights. The appellants were acting as sole distributors of the respondents herein since 1979 for the areas of Tamil Nadu and Pondicherry. It is an admitted fact that there was no written agreement between the parties enumerating the terms of distributorship and the terms of their arrangement was to be seen from the trade practice and the conduct of the parties. It is stated that in 1995, there was a change in the management of the respondent company and the Anchor Group of Companies took over the control of the first respondent herein. Differences arose between the parties herein when the first respondent started withholding credits due to the appellants herein. Due to the strained relationship, the parties entered into an arbitration agreement and appointed one p. S. Swaminathan, Chartered Accountant, Chennai, as the sole arbitrator. By agreement dated 9th September 1996 between the parties herein, both parties agreed to file their respective claim statement and participate in the enquiry before the Arbitrator. The first respondent made a claim for rs.1,45,40,712/- together with interest thereon till the payment was made. The appellants herein filed a counter claim of Rs.96,38,794/- exclusive of interest and denied its liability to pay the respondents. It is stated that before the proceedings concluded, the Arbitrator originally appointed by the parties passed away. Thereafter, this court appointed Mr. S. Nandagopal, Chartered Accountant, as the Arbitrator to continue the proceedings. The Arbitrator passed the award on 24.4.1999 awarding a sum of rs.94,92,936/- in favour of the first respondent.

(3.) Before the Arbitrator, the appellant took a specific plea that the claim was barred by limitation. Learned Arbitrator pointed out that the parties agreed to 31.3.1995 as the cut off date for the purposes of settlement of the dispute before the Arbitrator and that the balance sheet of 1995 exhibiting the liabilities amounted to sufficient acknowledgment of debts and hence, the claim was not barred by limitation. The amount due and payable in the case of Eastern Trading Co. , the first appellant herein, was a sum of Rs.1,02,52,746/-. As regards Eastern Chemicals and minerals, the second appellant herein, a sum of rs.21,68,500/- was due. The amount due and payable by universal Enterprises, third appellant herein, was fixed at rs.16,56,282/-. Eastern Trading Company, first appellant herein, agreed its liability to the extent of Rs.18,90,952/-as not time barred. As regards interest, learned Arbitrator held that the interest paid by the first respondent herein to the bank against hundis accepted by the appellants had to be reimbursed by the appellants. As regards the counter claim made by "etc", the appellant Group, learned Arbitrator rejected the claim except to an extent of Rs.47,055/- being the credit agreed to by the first respondent against the supply of electrocast refractories. On the question of set off, learned Arbitrator held that the appellant was entitled to a credit of Rs.29,28,660/- as against a claim of rs.35,40,343/- being the credit shown in the books of the first respondent on account of the appellants herein. Ultimately, the learned Arbitrator held that the transaction between the parties in all aspects had been only on the basis of an oral agreement and the appellants had not produced any written commitment to pay any trade discount and that the appellants had already filed a suit against the promoter of the respondent company as regards the amount paid in several instalments. Thus, the Arbitrator finally arrived at the net amount payable at Rs.94,92,936/-. The arbitrator awarded 18% interest per annum from the date of the referring the dispute to arbitration i. e. , 9.9.1996, till the date of award and interest at 18% per annum from the date of award till the date of payment.