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1993 DIGILAW 3 (BOM)

Jutex v. Telecom Divisional Manager and others

1993-01-05

A.A.CAZI, G.D.KAMAT

body1993
JUDGMENT- G.D. KAMAT, J.:-We have heard learned Counsel for rule. Accordingly, rule is made to be heard forthwith. 2. Petitioner is a partnership firm and was allotted telephone bearing No. 3299 at Vasco da Gama. The petitioner had instituted Writ Petition No. 163 of 1992 in this Court for an appropriate writ directing respondents Nos. 1 and 2 to refer the dispute of excessive billing for the period between 16th of August, 1991 and 15th of October, 1991 for an amount of Rs. 29,941 under section 78 of the Indian Telegraph Act, 1885 to Statutory Arbitration. Rule was made absolute in that writ petition by the order dated 24th of April, 1992. Based upon the direction of this Court, respondent No. 3 who is the Telecom District Manager at Kolhapur, was appointed as the Arbitrator by the Union of India. By a communication dated 8th of June, 1992 the 3rd respondent the Arbitrator while forwarding a copy of minutes of proceedings held on 5th of June, 1992, called upon the petitioner to intimate to him if there is new evidence to be adduced in the matter in respect of the dispute raised. Accordingly the petitioner in terms of the communication dated 8th of June, 1992, forwarded some additional evidence through Elbee Courier Services Limited to the officer of the Arbitrator on 16th of June, 1992. 3. Some time later the petitioner received a copy of award made by the Arbitrator dated 16th of June, 1992. It is a grievance of the petitioner that whatever new evidence submitted on behalf of the petitioner was not taken into consideration as the award was made on 16th June, 1992 on which date the Courier Services had delivered the petitioner's communication dated 13th June, 1992. 4. The next grievance of the petitioner is that after making of the award the Arbitrator made a corrigendum to the award and by his communiciation dated 3rd of October, 1992 informed the petitioner regarding the corrected award. This was done behind the back of the petitioner inasmuch as no notice was given to the petitioner that the award earlier made dated 16th of June, 1992 was required to be corrected. 5. The facts averred in the petition are not in dispute nor indeed can be disputed. 6. This was done behind the back of the petitioner inasmuch as no notice was given to the petitioner that the award earlier made dated 16th of June, 1992 was required to be corrected. 5. The facts averred in the petition are not in dispute nor indeed can be disputed. 6. It is clear from the communication dated 8th of June, 1992 that the Arbitrator while enclosing the copy of the minutes of the arbitration conducted on 5th of June, 1992 called upon the petitioner to intimate new evidence, if any, within seven days from the receipt of that communication. Accordingly the petitioner forwarded by its letter dated 13th of June, 1992 what was sought by the Arbitrator. In that communication it was also brought to the notice of the 3rd respondent that there was no disconnection of telephone of the petitioner as was wrongly held out on behalf of respondent Nos. 1 and 2. There is a reasonable ground to believe that the communication of 13th June, 1992 forwarded by the petitioner was not looked into by the Arbitrator who in fact made the award dated 16th of June, 1992 the date on which his office received the petitioners' communication in compliance with the 3rd respondents' communication dated 8th of June, 1992. The Arbitrator having once called upon the party to adduce further evidence and if the same is not taken into consideration needless to say that the award rendered on 16th of June, 1992 stands vitiated. 7. Again it must be seen that when the Arbitrator thought that his award earlier given needs to be corrected, he should have atleast given a notice to the petitioner. Having not done so, the Arbitrator suo motu could not correct the award. For the purpose of record it may be mentioned that whereas the Arbitrator earlier held certain number of calls as having been made by the petitioner the corrected award shows 3523 calls in excess of the previous figure. Since this was not merely a correction of arithmetical mistake, it was clearly incumbent upon the Arbitrator to have given a notice to the petitioner when the Arbitrator thought it wise to issue a corrigendum to the award earlier made. Therefore, the corrected award also needs to be set aside as having been made without any notice to the petitioner and to that extent also stands vitiated. 8. Therefore, the corrected award also needs to be set aside as having been made without any notice to the petitioner and to that extent also stands vitiated. 8. Having come to this position, it is necessary that the original dispute raised by the petitioner in respect of the bill for the period from 16th of August, 1991 to 15th of October, 1991 for an amount of Rs.29,941/- needs to be gone into afresh by the Arbitrator. Accordingly, respondent No.2 is directed to appoint a new Arbitrator to go into that dispute and render his award within three months from the date of appointment. Accordingly, the rule is made absolute to the extent indicated above. 9. Parties are left to bear their own costs. Order accordingly.