UNION OF INDIA Vs. KALIMULLA KHAN

JUDGEMENT

(1.) This appeal arises from the judgment and decree dated 24.9.92 passed by the learned Assistant District and Sessions Judge, Shillong in(Arb) Misc. Case No. 4(H)of 1992 dismissing the objections filed by the present appellant and thus making the award dated 7.3.1992 of the learned Arbitrator as a Rule of the Court. The facts of the case in a short compass are as hereunder : 1. As the related tender of the present respondent, Mr. Kalimulla Khan was accepted by the appellant in connection with the supply of meat to the troops, a contract/agreement was executed and entered between the parties for supply of meat for the period from 1.4.1991 to 31.3.1992 vide Contract No. EC/CD/Shillong/08/91-92 dated 13.2.1992. As per the said contract, the present respondent started supply of meat from 1.4.1991 to the Supply Depot, ASC, Shillong. However, a dispute arose between the parties since the month of September, 1991 and the present appellant resorted to risk purchase as per Clause 7(ii) of the Contract Deed entered between the parties. In that connection, the respondent - Shri Kalimullah Khan filed a Title Suit No. 8(H)/91 and a petition for injunction being Misc. Case No. 27(SH)/91 before the learned Court below, and that the learned Court below granted ad-interim injunction on 16.9.91 restraining the present appellant from recovering the amounts involved in the risk purchase on different dates from the petitioner's bills, security deposit, etc; and also resorting to the risk purchase at the cost and expenses of the present respondent. In compliance with the show cause notice issued by the learned Court below, the appellant contended that Clause 21 of the Contract Deed provides for arbitration for settlement of the disputes and, as such, the respondent should resort to arbitration to which, the present respondent had no objection to refer the matter to arbitration.

(2.) The respondent also filed an application under Section 41 (b) of the Arbitration Act and prayed for grant of injunction restraining the appellant from making any deduction from his bills in respect of the expenses involved in the risk purchase, which was granted by the learned Court below on 1.10.91. Being dissatisfied with the said order of 1.10.91, the present appellant filed a Revision petition being Civil Revision No. 43(SH)91 before this Court and that the same was disposed of on 28.1.91 by this Court, directing the appellant to appoint their own Arbitrator within 15 days and ask the parties to submit their respective claims within a period of 3 months and thus, the Arbitrator entered into the reference. The concerned Arbitrator, after completion of the arbitration proceeding gave an award and forwarded the same to the learned Court below. The appellant filed objection under Section 30 read with Section 33 of the Arbitration Act, 1940 and sought for setting aside the award on the main ground that the Arbitrator has misconducted himself and the proceedings by not applying his mind to the related Clause 7(ii) of the Contract Deed, the Arbitrator did not consider the relevant documents of the appellant while making the award ; and by examining the witnesses without any summons or notice and that, the award is vitiated and invalidated in the absence of any reason being given while granting the claims of the claimants/respondents and rejecting the claim of the opposite party/appellant. After hearing the parties, the learned Court below rejected the objections of the appellant/opposite party and made the award of the Arbitrator a Rule of the Court under the impugned judgment and decree dated 24.9.92 passed in (Arb) Misc. Case No.4 (H)/92.

(3.) Shri S. Chakravarty, learned counsel for the appellant, at the very outset contended, that the learned Court below as well as the Arbitrator had mis appreciated the existing facts and circumstances and the materials available on record while passing the related award and the impugned judgment and decree. The learned counsel further submitted, that the respondent' contractor having failed to supply items as demanded and the resultant purchase at risk as required under Clause 7(ii) of the Contract Deed, title learned Arbitrator ought to have-rejected the claim of the claimant/respondent. This aspect was also to be examined and considered by the learned Court below and the learned Court below ought not to have made the award as a Rule of the Court. It is also contended by the learned counsel for the appellant, that the learned Arbitrator misconducted himself by not following the procedure in allowing the witnesses to make statement without proper notice and summons and also in allowing the claims of the contractor/respondent. The learned Court below erred in law in holding that the objections made by the appellant was time barred. Shri Chakravarty contended.