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1987 DIGILAW 207 (DEL)

FRANCIS KLEIN AND COMPANY PRIVATE LIMITED v. UNION OF INDIA

1987-05-05

C.L.CHAUDHRY

body1987
C. L. Chaudhry ( 1 ) ON 28th December, 1974, the Union of India (here-inafter referred to as the respondent) placed an order on M/s Francies Klein and Co (P) Ltd. (hereinafter referred to as the petitioner) for supply of one SIG Pull Type port manufacturing machine and other accessories and spares. The country of origin was Switzerland and the manufacturers were M/s SIG Swiss Industrial Company, Switzerland. The terms of delivery were FOR Port of Shipment. The date of delivered was stipulated in the A/t as 31. 12. 75. The Inspecting authority was DDG (I), New Delhi and Inspecting Officer was DG ISM, London. The total value of the contract was Swiss Frs, 656565. 60, Out of the saide amount the net FOB value payable to the foreign principals was Swiss Frs. 591508. 60 and the commission of the respondent amounting to Swiss Frs 65057 was payable in rupee at the TT selling Exchange rate on the date of the contract. The machines were shipped after inspection on 21. 9. 76. The machine was supplied to the respondent, who raised a claim against the petitioner for Rs. 1,82 264. 00 on account of damages for the loss suffered by the respondent due to increase in the exchange rate. The split up of the claim is as under. ( 2 ) THE petitioner repudiated the claim of the respondent. Clause 24 contained in the Conditions of Contract DOS and D-68 (Revised) was a invoked and the disputes and differences were referred to the sole arbitration of Shri P. C. Rao, Additional Legal Advisor. The Arbitrator entered upon the reference and heard the parties. Shri P. C. Rao resigned and thereafter Mrs R. Lakshmanan was appointed as the sole arbitrator. The learned arbitrator after hearing the parties made h award on 9. 5. 1984. The claim of the Union of India for Rs. 1,82,263. 82 was dismissed and the Union of India was directed to release to the petitioner the amount withheld on account of aforementioned claim. ( 3 ) THE petitioner filed an application under Sections 14 and 17 of the Arbitration Act, being suit No. 976-A/34 for getting the award filed in Court and for making it a rule of Court. In pursuance to the direction given by this Court, the Arbitrator filed the award along with the proceedings. ( 3 ) THE petitioner filed an application under Sections 14 and 17 of the Arbitration Act, being suit No. 976-A/34 for getting the award filed in Court and for making it a rule of Court. In pursuance to the direction given by this Court, the Arbitrator filed the award along with the proceedings. Notice of the filing of the award was given to the Union of India, who filed objections which is the subject matter of I. A. 405/85. ( 4 ) THE respondent also filed and an application under Section 14 of the Arbitration Act, being suit No. 948-A/84, for getting the award filled in Court. A notice was issued to the Arbitrator, who informed the Court that the award had already been filed in suit No. 976-A/84. ( 5 ) THE respondent has filed objections being I. A. 405/85 under Sections 16, 30 and 33 of the Arbitration Act assailing the award. ( 6 ) THE petitioner had contested the objections filed by the Union of India. It is stated in the reply that the award given by the Arbitrator is legal and valid and there was no misconduct on the part of the arbitrator. ( 7 ) ON the pleadings of the parties the following issues were framed. 1. Whether the award is liable to be set aside on the objections of respondent No, 1 ? 2. Relief? ( 8 ) THE parties have led evidence by way of affidavits. ( 9 ) THE main objection taken by the Union of India is that in terms of the reference the Arbitrator is obliged to give reasons in the award but the learned Arbitrator has not done so. Therefore, it is a clear violation of the terms of the reference. I do not agree with the contention raised on behalf of the objector. I have perused clause 24 of the Conditions of Contract. It reads in the following terms. "24. Arbitration. In the event of any question, dispute or difference arising under these conditions or any special conditions of contract, or in connection with this contract (except as to any matters, the decision of which is specially provided for by these or the special conditions) the same shall be referred to the sole arbitration of an Officer in the Ministry of law appointed to be the arbitrator by the Director General of Supplies and Disposals. It will be no objection that the arbitrator is a Government servant, that he had to deal with the matters to which the contract relates or that in the course of his duties as a Government servant he had expressed views on all or any of the matters in dispute of difference. The award of the arbitrator shall be final and binding on the parties of this contract. In the event of the arbitrator dying being unable to act for any reason, or his award being set aside by the court for any reason it shall be lawful for the Director-General of Supplies and Disposals to appoint another arbitrator in place of the out-going arbitrator in the manner aforesaid. It is further a term of this contract that no person other than the person appointed by the Director General of Supplies and Disposals as aforesaid should act as arbitrator and that if for any reason that is not possible the matter is not to be referred to arbitrator at all. The arbitrator may from time to time with the consent of all the parties to the contract enlarge the time for making the award. Upon every and any such reference the assessment of the costs incidental to the reference and award respectively shall be in the discretion of the arbitrator. Subject as aforesaid, the Arbitration Act, 1940 and the rules thereunder and any statutory modification thereof for the time being in force shall be deemed to apply to the arbitration proceedings under this clause. Work under the contractshall, if reasonable possible, continue during the arbitration proceedings and no payment due to or payable by the purchaser shall be with held on account of such proceedings. The venue of arbitration shall be the place from which the acceptance notes issued at such other place as the arbitrator at his discretion may determine. In this clause the expression, "the Director General of Supplies and Disposals means the Director-General of Supplies and Disposals for the time being and includes, if there be no Director-General of Supplies and Disposals, the officer who is for the time being the administrative head of the supplies Organisation, whether in addition to other functions or otherwise. " ( 10 ) THERE is no mention in this clause that the Arbitrator is obliged to give reasons. " ( 10 ) THERE is no mention in this clause that the Arbitrator is obliged to give reasons. So, the objection of the Union of India that it was the term of the reference requiring the Arbitrator to give reasons is not well founded. Even otherwise I have perused the award. The learned Arbitrator has given a reasoned award. She has discussed the entire evidence and given reasons and conclusions in DDA vs. M/s Alkaran, AIR 1982 Delhi 365, it was abserved as under :- "when an arbitrator gives reasoned award he is not required to write a detailed judgment setting out each logical step of his reasoning but it is sufficient if he indicates the trend of his thought process so that errors can be eliminated and arbitrariness avoided. "so, the award delivered by the Arbitrator is a reasoned award. ( 11 ) THE other objection raised on behalf of the Union of India is that the Arbitrator had wrongly rejected the claim of the Union. The Union of India placed sufficient material before the Arbitrator to prove the loss suffered on account of delay in supplies and that the arbitrator had reached a wrong conclusion and has failed to appreciate the facts. ( 12 ) THE learned Arbitrator after discussing the evidence came to the conclusion that the claim for liquidated damages of the Union of India had not been proved in the absence of proof of loss suffered by the Union of India. The fact of depreciation of Indian rupee vis-a-vis foreign currency does not have any proximity with the loss. The delay in delivery of the machines is not solely attributable to the petitioner. M/s Hindustan Tea and Co. v. Sashi Kant and Co. , AIR 1987 SC 81 it was observed as under. "the award is reasoned, one. The objections which have been raised against the award are such that they cannot indeed be taken into consideration within the limited ambit of challenge admissible under the scheme of the Arbitration Act. Under the law the Arbitrator is made the final arbiter of the disputes between the parties. The award is not open to challenge on the ground that the Arbitrator has reached a wrong conclusion or has failed to appreciate facts. Under the law the Arbitrator is made the final arbiter of the disputes between the parties. The award is not open to challenge on the ground that the Arbitrator has reached a wrong conclusion or has failed to appreciate facts. Strong reliance was placed by the appellant s learned counsel on an old Madras decision in Yogambal Boyee Ammani Ammal v. Naina pillai Markayar (1909) ILR 33 Mad 15. In our view on the facts of this case challenge to the Award is not permissible by taking the stand that the Arbitrator acted contrary to the provisions of Section 70 of the Contract Act. In these premises the objection filed to the Award has to be rejected. We direct the award to be made a rule of the Court. The parties shall bear their own costs throughout. " ( 13 ) THE court is bound by the arbitrator s finding of fact and cannot review them unless they are unsupported by evidence and unless it appears from the award that there was no evidence to support the finding. The court cannot sit to consider the finding of the Arbitrator as a court of appeal. The Court has also not permitted to reappraise the evidence and sit in appeal over arbitrator s award. The learned Arbitrator has decided the matter after taking into consideration the relevant facts. 1 do not find in this award any legal proposition which is erroneous. There is no error apparent on the face of the record. The objections raised on behalf of the Union of India are wholly on merits on the ground that the Arbitrator has reached a wrong conclusion and has failed to appreciate facts. The award is not open to challenge on these grounds. The objections are without merit and deserve dismissal. Accordingly, the objections are dismissed and the award is made a rule of the Court. The decree may be drawn in term of the award. The petitioner is entitled to costs of these proceedings. The petitions are disposed of. IMPORTANT POINT An arbitrator is the sole arbiter of disputes between the parties and his award cannot be challenged even if he has reached a wrong conclusion or has failed to appreciate facts.