Food Corp. of India, New Delhi v. Banwari Lal Sharma
1988-05-23
SOBHAG MAL JAIN
body1988
DigiLaw.ai
JUDGMENT 1. - This appeal by the Food Corporation of India is directed against the judgment dated Sept. 10, 1981, of the District Judge, Churu, dismissing the appellant's application filed under Section 20 of the Arbitration Act, 1940, (hereinafter referred to as the Act). 2. Banwari Lal, respondent herein, to be referred to as the Contractor, entered into a contract with the appellant for loading/unloading and transporting food grains etc., in and around Churu for a period of 2 years from June 1, 1971 to May 31, 1973. The work was completed and the respondent was paid his bills. Subsequently, the internal audit party of the Corporation pointed out that excess payment of money had been made tor-the contractor. Three amounts viz. Rs. 16,301.49, Rs. 9.19 and Rs. 76.80 were pointed out as excess payments. A notice was given to the contractor to refined the amount of excess payment but he did not comply. The Corporation also claimed interest' at the rate of 12 per cent per annum from that contractor on this amount. As the contract contained a clause which provided that all disputes, and differences arising out of or in any way touching or concerning the agreement shall he referred to arbitration of a Arbitrator to be appointed by the Managing Director of the Food Corporation of India, the Corporation filed an application under Section 20 of the Act in the Court of District Judge, Churu, for the tiling of the original agreement in the court and forget erring the dispute to the Arbitrator to be appointed by the Managing Director of the Food Corporation of India. 3. The application was contested by the Contractor. He denied that any excess payment was made to him. It was rather stated that the Corporation was un-lawfully with-holding the amount of security of Rs. 3,000/- deposited by him. It was pleaded that as no dispute or difference arose between the parties during the period of agreement, the Corporation was not entitled to have the matter referred to Arbitration. It was averred that the agreement was for 2 years. The said period had expired and, as such, the agreement itself having ended, no proceedings in pursuance of that agreement could be taken after the expiry of the period. 4. The District Judge, by the judgment dated Sept. 10, 1981, dismissed the application.
It was averred that the agreement was for 2 years. The said period had expired and, as such, the agreement itself having ended, no proceedings in pursuance of that agreement could be taken after the expiry of the period. 4. The District Judge, by the judgment dated Sept. 10, 1981, dismissed the application. The learned Judge found that though the dispute existed between the parties, the period of agreement itself having expired on March 31, 1973, the clause in the agreement relating to arbitration could no longer be enforced. According to the learned District Judge, the application was not maintainable after the expiry of the period of contract. 5. Aggrieved by the aforesaid judgment of the learned District Judge, the Food Corporation of India, has filed the present appeal in this Court. 6. I have heard learned Counsel for the parties. Mr. D.S. Shishodia, counsel for the appellant, has contended that the arbitration clause survive even after the expiry of the period of contract and the learned District Judge was in error in dismissing the application on the ground of being not maintainable after the period for the performance of the contract came to an end. 7. The question for consideration in this case is whether the arbitration clause of the contract ceased to exist on the expiry of the period of contract. The period of contract was 2 years from June 1, 1971 to May 31, 1973. To decide the question whether the arbitration clause would survive even after the expiry of the period of contract, it would be necessary to refer to the arbitration clause. In the contract it is Clause XIX, which reads as under:- "XIX. Arbitration. - All disputes and differences arising out or in any way touching or concerning this agreement whatsoever (except as to any matter the decision of which is expressly provided for in the contract) shall be referred to the sole arbitration of any person appointed by the Managing Director of the Food Corporation of India. It will be no objection to any such appointment that the person appointed is or was an employee of the Corporation that he had to deal with the matters to which the contract relates and that in the course, to his duties as such employee of the Corporation he had expressed views on all or any of the matter in dispute or difference.
The award of such Arbitrator shall be final and binding on the parties to this contract. It is a term of this contract that in the event of such Arbitrator to whom the matter is originally referred being transferred or vacating his office or being unable to act for any reason, the Managing Director, of F.C.I. at the time of such transfer vacation of office or inability to act shall appoint another person to act as Arbitrator. Such person shall be entitled to proceed with the reference from the stage at which it was left by his predecessor. It is also a term of this contract that no person other than a person appointed as aforesaid should act as Arbitrator and if for any reason that is not possible the matter is not to be referred to Arbitration at all. Provided further that any demand for arbitration in respect of any claims(s) of the contractors, under the contract shall be in writing and made within one year of the date of termination or completion (expiry of the period) of the contract and where such demand is not made within that period, the claim(s) of the contractors shall be deemed to have been waived and absolutely barred and the Corporation shall be dis-charged and released of all liabilities under the contract in respect of those claims. It is further provided that the arbitrator may, from time to time with the consent of the parties, enlarge the time for making publishing the award. "The costs of and in connection with arbitration shall be at the discretion of the arbitrator who may make a suitable provision for the same in his award." Subject as aforesaid the Arbitration Act, 1940 shall apply to the Arbitration proceedings under this clause." The phraseology used in the arbitration clause is very wide. It embraces all disputes and differences arising out of or in any way touching or concerning the agreement. Time, the arbitration clause is an integral part of the contract and does not exist dehors the contract. Where the contract itself is void ab-initio, the arbitration clause will be of no avail as its operative force depends on the existence of the contract. Here, in the present case, it is not the case of the parties that the contract itself was void or it never existed. The contract remained in existence and was duly performed.
Where the contract itself is void ab-initio, the arbitration clause will be of no avail as its operative force depends on the existence of the contract. Here, in the present case, it is not the case of the parties that the contract itself was void or it never existed. The contract remained in existence and was duly performed. The dispute merely relates to the payments made in excess and certainly arises out of the contract and not de-hors it. The arbitration clause in the contract is merely a collateral term of the contract and despite the expiry of the period fixed for the performance of the work under the contract it would be cease to exist. The very object of the arbitration clause in a contract is that all disputes and differences between the parties arising out of the contract are settled by arbitration. In Union of India v. Kishori Lal Gupta, AIR 1959 SC 1362 , the Supreme Court, dealing with the question as to whether the arbitration clause survive even after the original contract was brought to an end by a settlement- contract between the parties, laid down the principles as under:- "The following principles relevant to the present case emerge from the aforesaid decision: (1) an Arbitration clause is a colateral term of a contract as distinguished from its substantive terms; but nonetheless it is an integral part of it; (2) however, comprehensive the terms of an arbitration clause may be, the existence of the contract is a necessary condition for its operation, it perishes with the contract; (3) the contract may be honest in the sence that it never came legally into existence or it was void ab initio; (4) though the contract was validly executed, the parties may put an end to it as if it had never existed and substitute a new contract for it solely governing their rights and liabilities thereunder; (5) in the former case, if the original contract has no legal existence, the arbitration clause also cannot operate, for along with the original contract, it is also void; in the later case as the original contract is extinguished by the substituted one the arbitration clause of the original contract perishes with it; and (6) between the two falls many categories of disputes in connection with a contract, such as the question of repudiation, frustration, breach etc.
In these cases it is the performance of the contract that has come to end, but the contract is still in existence for certain purposes in respect of disputes arising under it or in connection with it. As the contract subsists for certain purposes, the arbitration clause operation in respect of these purposes." 8. In M/s. Bharat Heavy Electricals Limited v M/s. Amar Nath Bhan Prakash, 1982 SCC 625 , the Supreme Court held that the question whether there was discharge of the contract by accord and satisfaction or not, was a dispute arising out of the contract and liable to be referred to arbitration. As noticed above, the words of the arbitration clause in the present case are comprehensive. It is difficult to impute an intention to the parties in the context of such phraseology in the arbitration clause, that they wanted the arbitration clause to come to an end on the expiry of the period fixed in the contract. The present contract was for loading, unloading and for transporting food grains etc., in and around Churu for a period of two years. If we look to the term of the contract, in the light of this context, it becomes evident that what the parties intended was that the contractor would be obliged to do the work of loading/unloading and transporting of food-grains for the whole duration of the period from 1-6-1971 to 31-5-1973. The very object and purpose was to limit the duration of the work to be performed by the contractor. It could not be the intention of the parties that the moment the outer limit of this period reaches, the obligation of the parties to have the disputes, arising out of or concerning the s contract, settled through arbitration would come to an end. Normally, a dispute or difference between the parties come to light after the work is completed and the stage for settling the account has reached, if the view taken by the District Judge is accepted and allowed to operate as a matter of principle, the very purpose of incorporating the arbitration clause in the contract would be defeated. 9. In my view, therefore, the arbitration clause in the present case would not cease to operate after the period fixed for the performance of the work under the contract had expired.
9. In my view, therefore, the arbitration clause in the present case would not cease to operate after the period fixed for the performance of the work under the contract had expired. The District Judge was in error in dismissing the application filed under Section 20 of the Act. 10. Accordingly, the appeal is allowed, the judgment of the District Judge, Churu, dated Sept. 10, 1981, is set aside and the case is remitted back to the District Judge with a direction to decide the application of the Corporation filed under Section 20 of the Act, in accordance with law. The parties shall bear their own costs of the appeal in this Court.Appeal allowed. *******