REVATHI ENTERPRISES Vs. GOEL INDUSTRIES

JUDGEMENT

(1.) APPEAL against the order dated 13.06.2006 made in O.P.No. 30 of 2003, passed by this Court. The claimant in O.P.No,30 of 2003 on the file of this Court is the appellant herein.

(2.) THE appellant has claimed in the said O.P that he entered into a consignment agency agreement on 05.07.1995 with the first respondent, who is a manufacturer of steel tube fittings both black and galvanised at Calcutta and that the said agreement stipulates that the price of the goods to be sold by the appellant shall be set out as per the despatch advices and the price at which goods to be sold continued to be the subject matter of discussions even after two years of correspondence. According to the appellant, he had invested a sum of Rs.16,13,470/- in connection with the business with the first respondent. On his letter dated 03.05.1996 to the first respondent, the appellant has specified the minimum requirement and the minimum range regarding supply by the first respondent. THE supply of item between 11.07.1996 and 16.09.1996 by the first respondent is not to the demand and satisfaction of the appellant. THErefore, the appellant by letter dated 03.01.1997, taking into account ground reality, has revised his inventory of stock to be held by him for the commencement of consignment agency business and sent a fresh list of stocks to be transferred to the first respondent before commencement of the same at Coimbatore. THE first respondent was keeping quiet for 1-1/2 years and thereafter asked the appellant by letter dated 16.01.1997 to commence the business with the available stock. THErefore the appellant called upon by letter dated 05.02.1997 the first respondent to send back the declaration Form-F and collect the materials. THE first respondent by letter dated 10.02.1997 claimed that the appellant's decision to call off the agency agreement was a unilateral one and wanted him to continue business with the available stocks. This led to the appellant for moving this Court in O.P.No,467 of 1997 for appointment of Arbitrator and Mr.Justice A.Abdul Hadi was appointed as Arbitrator on 14.07.1998. THE appellant submitted his claim before the Arbitrator on 18.09.1998, since the respondents have chosen to remain exparte. THErefore, they have filed before this Court, Application Nos. 2277, 2278, 2279 and 2280 of 1999 for removal of Arbitrator, for direction to return the excess fee, to stay all further proceedings and for an interim injunction restraining the Arbitrator from giving away the keys of the godown to the appellant. Aggrieved against the dismissal of all those applications by this Court by common order dated 18.04.2001, the first respondent has filed Appeals in O.S.A.Nos.395 to 397 of 2001 which were also dismissed on 28.02.2002. This led to the first respondent filing Special Leave Petition and finally, the Arbitrator had proceeded with the enquiry. An Advocate Commissioner was appointed and he took inventory of the entire stocks. THE first respondent moved the Arbitrator for return of the keys of the godown and the same was granted by the Arbitrator on 06.10.2001. THE first respondent has approached Court in CMA.No.1497 of 2001 challenging the order dated 06.10.2001. THE said CMA was dismissed on 31.01.2002. THE respondents therefore moved the Supreme Court in SLP No,4457 of 2002 and obtained order of stay of order dated 06.10.2001, however, there was a direction for the sale of the goods through an Advocate Commissioner.

(3.) LEARNED Judge along with O.P. took up Application No,4973 of 2003 filed by the appellant to raise additional grounds in the O.P and Application No,4141 of 2005 filed by the first respondent for a direction for return of the goods by the appellant and disposal of them by common order dated 13.6.2006 by holding that this Court cannot re-appreciate the evidence to take a different view as this Court is not an Appellate Court, that engrossing the award on a Stamp Paper subsequently will not amount to re-writing the award that the award dated 09.08.2002 is admittedly an ex parte award and the Arbitrator need not come to a conclusion that whatever said by the appellant was decreed to have been accepted by the first respondent, and thus dismissed the O.P and other applications. It is the correctness of this order that is challenged before us by the claimant in the O.P.