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2011 DIGILAW 181 (MP)

Bengani Food Products Pvt. Ltd. , Calcutta v. Prestige Soya Industries, Indore Arbitration

2011-02-08

N.K.MODY

body2011
JUDGMENT 1. This judgment shall also govern the disposal of AA No. 19/2007 as in both the appeals the appellant is one and the same and nature of dispute is also one and the same. 2. In AA No. 18/2007 the appeal is against the order dated 25.1.2007 passed by XII ADJ, Indore in Arbitration Case No. 7/2004 whereby the application filed by the appellant under section 34 of Arbitration and Conciliation Act 1996 (which shall be referred hereinafter as 'A and C Act") was dismissed and award dated 7.4.2004 whereby the appellant was directed to pay a sum of Rs. 4,75,000/- alongwith interest @ 9% per annum w.e.f. 1.8.2000 was confirmed. 3. In AA No. 19/2007 the order under challenge is dated 25.1.2007 passed by XII ADJ, Indore in Arbitration Case No. 8/2004 whereby the application filed by the appellant under section 34 of A and C Act was dismissed and award dated 7.4.2004 passed in Arbitration Case No. 152/2001 whereby the appellant was directed to pay a sum of Rs. 4,75,000/- alongwith interest @ 7.5% per annum w.e.f. 1.8.2000 was confirmed. 4. Short facts of the case are that in both the cases claim was filed by he respondent for reference alleging that appellant entered into an contract for supply of Indian Solvent Extracted Toasted Yellow Soyabean. It was alleged that appellant failed to abide by the terms and conditions of contract, therefore, appellant is entitled for the claim amount. The claim was disputed by the respondent on various grounds including on the ground that Arbitral Tribunal has no jurisdiction to entertain the claim. It was prayed that claim filed by the respondent be dismissed. After holding inquiry learned Arbitral Tribunal passed the award as stated above against the appellant. Being aggrieved by the award appellant preferred application/objections under section 34 of the A and C Act before learned Court below which was objected by respondent. After hearing , the parties learned Court below dismissed both the applications against which the present appeal has been filed. 5. Learned counsel for the appellant argued at length and submits that the impugned order passed by learned Court below is illegal, incorrect and deserves to be set -aside. After hearing , the parties learned Court below dismissed both the applications against which the present appeal has been filed. 5. Learned counsel for the appellant argued at length and submits that the impugned order passed by learned Court below is illegal, incorrect and deserves to be set -aside. It is submitted that since there was no valid agreement for referring the dispute to learned Arbitral Tribunal of SOP A and the contract in question was neither signed by the appellant nor it contained any arbitration clause, hence the act of SOP A in referring the matter to Arbitral Tribunal was wholly without jurisdiction. It is submitted that learned Arbitral Tribunal decided the matter as per the SOPA rules but at the same time learned Arbitral Tribunal committed error in not taking into consideration that as per the SOPA rules and SOPA model contract (term No.5, 2, 3) and excess in Moisture above 12% in Soyabean Meal is rejectable at the option of buyer. It is submitted that in the facts and circumstances of the case the approach of learned Arbitral Tribunal to pick up one term and ignore another term was contrary to the provisions of substantive law and Act. It is submitted that learned Court below committed serious error of law in not taking into consideration the fact that the impugned award was liable to be set-aside because there was no contract between the parties that the appellant/company will be liable to take delivery of the defective goods containing high moisture above 12%. It is submitted that learned Court below committed error in not taking into consideration the fact that appellant was not permitted to adduce oral evidence as there was no agreement between the parties to purchase the defective material. On the basis of aforesaid submission learned counsel for the appellant submits that appeal be allowed and the impugned order passed by learned Court below and the award be set-aside. 6. Learned counsel for the respondent submits that objections were raised by the appellant are beyond the scope of section 34 of A and C Act. It is submitted that after due appreciation of evidence of facts on record award was passed and no illegality has been committed by learned Court below in dismissing the application filed by the appellant. It is submitted that appeal has no merits and the same be dismissed. 7. It is submitted that after due appreciation of evidence of facts on record award was passed and no illegality has been committed by learned Court below in dismissing the application filed by the appellant. It is submitted that appeal has no merits and the same be dismissed. 7. From perusal of record, it appears that at the initial stage objections regarding jurisdiction was raised by the appellant and matter went-up to High Court at Calcutta. After the verdict of High Court, there is no justification on the part of appellant to challenge the validity of award on account of jurisdiction. So far as other grounds which have been raised by the appellant are concerned, are out of ambit of section 34 of A and C Act. In view of this, the appeal filed by the appellant has no merits and the same stands dismissed. Copy of the judgment passed in this case be kept in the record of AA No. 19/2007. C.C. As per rules.