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2006 DIGILAW 1282 (PNJ)

Dhindsa Rice Mill v. Managing Director

2006-03-27

VINEY MITTAL

body2006
Judgment Viney Mittal, J. 1. The appellant before this court is the Objector who had filed an application under section 34 of the Arbitration and Conciliation act,1996 for setting aside the award dated July 16,2001 passed by the sole arbitrator. The aforesaid objections were dismissed by the learned Additional district judge vide order dated February 1,2006. The said order has been challenged by the appellant through the present appeal. 2. An agreement was rendered between the Punjab State Civil supplies Corporation Limited (Punsup) and the appellant,m/s. Dhindsa Rice mill. As per the aforesaid agreement Punsup supplied 44391 bags weighing 28,854.15 quintals of fine variety of paddy to the mill after making allowance 2% drige i. e.577.08.300 quintals. The miller was to be paid shelling charges at the rate of Rs.10/- per quintal and double line machine stitching @ Rs.1.25 per bag. In case of shortage, the miller was liable to pay 1 1/2 times of economic cost of paddy. Rice after milling was to be supplied back to the Corporation by the miller. Punsup claimed that there was a late delivery of rice. Consequently, a dispute arose between the parties. The matter was referred for adjudication to the Arbitrator as per the arbitration clause in the agreement. 3. The arbitrator had examined the entire material made available to him by the parties vide his award dated July 16,2001. An amount of rs.95,578/- was held payable along with 21% interest on the principal amount of Rs.7903/- with effect from September 1,1996 till June 10,1997 in favour of the Corporation. 4. A petition under section 34 of the Act was filed by the miller for setting aside the aforesaid award. The parties led their evidence before the learned Additional District Judge. On perusal of the evidence led by the parties and on examination of the various pleas raised by them, learned additional District Judge vide his order dated February 1,2006 had dismissed the petition filed by the miller under section 34 of the Act. The award passed by the Arbitrator has been held to be legal and valid. The miller has now approached this court through the present appeal. I have heard Shri G. C. Dhuriwala, learned counsel for the appellant at some length. 5. The award passed by the Arbitrator has been held to be legal and valid. The miller has now approached this court through the present appeal. I have heard Shri G. C. Dhuriwala, learned counsel for the appellant at some length. 5. It has been argued by the learned counsel that the order of the learned Additional District Judge dismissing the petition filed by the appellant-miller was wholly erroneous and the award passed by the arbitrator was liable to be set aside. Learned counsel has submitted that surinder Kumar Anand had appeared before the Arbitrator as CW1 and although the cross-examination of the aforesaid witness was not completed, still the Arbitrator had chosen to rely upon the statement of the aforesaid witness. It has further been contended by the learned counsel that the arbitrator had given the interest for the late delivery of rice wrongly and contrary to the facts and circumstances of the case. Learned counsel has maintained that the godown of Food Corporation of India had remained closed for a period of two months and, therefore, the miller could not have been faulted for late delivery of the rice. I have duly considered the aforesaid argument of the learned counsel but find no force in the same. 6. Learned Additional District Judge in the impugned order has specifically noticed that Surinder Kumar Anand was examined as a witness before the Arbitrator. The proceedings were adjourned repeatedly by the arbitrator for providing an opportunity to the miller to cross-examine the said witness. However, on account of non-availability of the counsel for the miller, the entire cross-examination of the aforesaid witness could not be completed. In these circumstances, it has rightly been noticed by the learned additional District Judge that the objector/miller could not take advantage of its own wrong. If the cross-examination of the aforesaid witness could not be completed in spite of various opportunities having been granted by the Arbitrator, on account of the fact that counsel for the miller was not available, then the miller could not be heard to make a grievance to the effect that the cross-examination of the said witness had not been completed. In these circumstances, learned Additional District Judge had noticed that proper opportunities to cross-examine the said witness had been provided to the miller-objector but the said opportunities had not been availed. In these circumstances, learned Additional District Judge had noticed that proper opportunities to cross-examine the said witness had been provided to the miller-objector but the said opportunities had not been availed. Even the other argument raised by the learned counsel with regard to the grant of interest by the Arbitrator, the learned Additional district had rightly noticed that the interest had become payable by the miller on account of the late delivery of rice for the period September 12,1996 till November 14,1996. The said interest was in terms of clause VII of the arbitration agreement dated May 1,1996. Consequently, it has been held by the learned Additional District Judge that the award of interest by the Arbitrator was not beyond his jurisdiction and rather the same was in consonance with the arbitration agreement. 7. It is well settled under the provision of section 34 of the Act that a civil court is not to act as a court of appeal. Merits of the controversy, as adjudicated by the Arbitrator, cannot be gone into. The scope of proceedings unde section 34 of the Act is very limited. Unless the case is brought within the parameter of section 34 (2) of the Act, the award rendered by the Arbitrator cannot be set aside. Nothing had been brought on record by the appellant-miller before the learned Additional District judge to show that the award passed by the Arbitrator was liable to be set aside on any of the grounds mentioned in section 34 (2) of the Act. 8. Before parting with this order it must be noticed that the learned counsel for the appellant has sought to challenge the award of the arbitrator by raising the merits of the controversy before this court. I am afraid the aforesaid challenge cannot be accepted. This court while hearing the appeal against the order of the learned Additional District Judge has to examine only such points which have been raised by the objector/petitioner before the civil court. Any fresh ground of challenge or any fresh fact cannot be taken into consideration. As a result of the aforesaid discussion, I do not find any merit in the present appeal. The same is,accordingly, dismissed.