INDIAN DAIRY CORPORATION Vs. LASCO

JUDGEMENT

(1.) THIS is an application under Section 20 of the Arbitration Act, 1940, for filing the arbitration agreement dated 18th/23rd of Oct., 1979 and for order of reference of the dispute to the Arbitrator in terms of the arbitration agreement and consequential reliefs.

(2.) BY a letter dated 19th/23rd of Oct. 1979, the plaintiff/petitioner appointed the defendant/respondent purely on a temporary basis for a period of three months as the Clearing Agent at Calcutta for clearance of imported cargo improvement and local transportation jobs and other related items of works as set out in the said letter and also in paragraph 3 and sub-paragraphs thereof in the petition. Pursuant to the said agreement the defendant/respondent and the plaintiff/petitioner started acting as only Clearing Agent of the Calcutta Port on and from 1st of Nov. 1979, till 15th of Dec. 1980 as the terms were extended from time to time. During the period the defendant/respondent acted as the Clearing Agent of the plaintiff/petitioner and handled cargo, namely, skimmed milk powder and rubber oil consigned to the plaintiff/petitioner by different vessels as mentioned in paragraph 7. It is alleged that in course of clearing of the said consignment, the said cargo suffered and/or incurred demurrage and on that account the plaintiff/petitioner is alleged to have paid a sum of Rs. 1,87,000/-. Therefore, it is alleged that the plaintiff/petitioner has suffered the said loss and demurrage due to the lack of proper care and steps and proper clearance not being effected by the defendant/respondent. It is also alleged that the plaintiff/petitioner with the defendant/respondent did not submit quarterly statement of claims lodged, settled or pending and therefore, the plaintiff/petitioner is not in a position to know what steps the defendant/ respondent has taken in respect of claim, refund, compensation or the insurance value of the lost cargo with the Calcutta Port Trust, Steamer Agent and Under-Writers. The plaintiff/petitioner is claiming a sum of Rs. 5,46,520/- insured value of which is Rs. 8,46,520. The defendant/respondent is alleged to have not informed the plaintiff/petitioner what steps they have taken and whether any claim has been lodged with the Insurance Company. After various correspondence disputes and differences are alleged to have arisen between the parties and the same has been summarised in paragraph 22 and various sub-paragraphs thereof in the petition and having regard to the arbitration clause in the said agreement between the parties which is set out in paragraph 21 of the petition being the following terms :

(3.) IN course of hearing it transpires that during the pendency of the present application the plaintiff/petitioner has already realised diverse sums of monies from the INsurance Co. directly which form part of the alleged claim against the defendant/respondent in this application and also took delivery of the goods alleged to be short landed at Calcutta Port which appears to have been landed at Bombay and, therefore, the total claim made in the present application against the defendant/respondent by the plaintiff/petitioner has been reduced by about Rs. 5,00,000/-. IN that view of the matter I directed the parties to file supplementary affidavits on the 12th of June, 1981 and pursuant to that affidavits were filed from which it is admitted that the plaintiff/petitioner has collected diverse sums of money from the INsurance Company as the beneficiary under the insurance policy for which claim was lodged against the defendant/respondent in this application as one of the disputes to be referred to arbitration and also taken delivery of goods from Bombay Port which were alleged to be short landed at Calcutta Port and it was landed in Bombay which was taken delivery by the plaintiff/petitioner. It is admitted by the plaintiff/petitioner in the affidavit of one Mekhat Parameshwar Gopalkrishna Kurup affirmed on the 18th of June, 1981, and also further affidavit of the said deponent affirmed on the 19th of June, 1981, that the plaintiff/ petitioner admitted that various amounts has been received from the Under-Writers by cheques as set out in the said affidavit and also it is admitted that the major portion of the short landed goods which appear to have been landed by the Steamer Agent at Bombay has been received by the plaintiff/petitioner and taken delivery from the Steamer Agent at Bombay and in this process a major portion of the claim appears to have been realised during the pendency of the present application in spite of the fact that the Receiver has been appointed in the application under Section 41 of the Arbitration Act. 1940 pending the Section 20 application, to collect the said amount and it further appears that the plaintiff/ petitioner's attitude is such as they have that they are entitled to receive the said payments without informing the Court or the Receiver or the defendant/ respondent in any way whatsoever during the pendency of this application with a view to intimate this Court about the fact which the defendant/respondent alleged that the plaintiff/petitioner has realised the claims from the INsurance Company and also taken delivery of the goods which are alleged to have been short landed at Calcutta Port in respect of which alleged claims are raised against the plaintiff/petitioner.