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2018 DIGILAW 4134 (MAD)

Senior Regional Manager, Tamil Nadu Civil Supplies Corporation, Tiruvarur v. Kannan Lorry Service, Rep. by its Sole Proprietor, R. Nagarajan

2018-11-08

S.VAIDYANATHAN

body2018
JUDGMENT : 1. This Original Petition has been filed seeking to set aside the Award dated 28.09.2017 passed by the learned Arbitrator in Case No.2/2016/SV, directing the 1st Petitioner to repay the Security Deposit of Rs.2,00,000/- to the claimant. 2. An Agreement was entered into between the Petitioners/Corporation and the Respondent herein on 07.10.2010, which required the Contractor to lift stocks as per the instructions given by the Senior Regional Manager by providing adequate number of lorries and transport the stocks and deliver them within the stipulated time. As per the said Agreement, the Respondent/Contractor had deposited a sum of Rs.2,00,000/- as Security Deposit with the Petitioners/Corporation for the due performance of the Contract. 3. Though, according to the Petitioners/Corporation, they issued Movement Orders to the Respondent/Contractor, the latter failed to move the load of food grains from 07.10.2010 onwards. Hence, a Show Cause Notice dated 22.02.2011 was issued to the Respondent/Contractor, calling upon them to explain as to why the contract should not be terminated and as to why the Concern should not be blacklisted. The Respondent/Contractor submitted an explanation dated 28.02.2011 alleging that the transportation of rice and paddy could not be done, as his representatives suddenly fell ill. As there was no valid and sufficient cause for the failure of the Respondent/Contractor to perform their contractual obligations, the 1st Petitioner issued proceedings dated 28.03.2011 terminating the contract, blacklisting the Respondent and forfeiting the Security Deposit of Rs.2,00,000/-. 4. Challenging the said proceedings, the Respondent/Contractor filed W.P.No.9137 of 2011 before this Court along with a Petition seeking interim stay of the said proceedings. On 08.04.2011, this Court granted an order of interim stay in W.P.No.9137 of 2011. Pursuant thereto, the Respondent/Contractor filed O.P.No.722 of 2011 seeking appointment of an Arbitrator to resolve the dispute arising out of the Agreement dated 07.10.2010. The said Original Petition was disposed of on 10.10.2014. 5. The learned Arbitrator, vide proceedings dated 28.09.2017 in Case No.2/2016/SV, took up the case of the Respondent/Contractor and held as under: "(i) The orders passed by the Respondent-1 in his procs/M1/4585/2010, dated 28.03.2011 are hereby ordered to be set aside. (ii) The Respondent-1 is directed to repay the Security Deposit of Rs.2,00,000/- (Two Lakhs only) to the claimant. (iii) The claim of interest at 18% on the Security Deposit amount is ordered to be rejected. (ii) The Respondent-1 is directed to repay the Security Deposit of Rs.2,00,000/- (Two Lakhs only) to the claimant. (iii) The claim of interest at 18% on the Security Deposit amount is ordered to be rejected. (iv) Cost of Arbitration has to be shared by both parties on 50:50 basis." 6. Before the Arbitrator, it was contended by the Respondent/Contractor that the Petitioners/Corporation has not sent Movement Orders to them and that they have not proved the same by any documentary evidence. It was further contended by him that the Petitioners/Corporation have not specified the quantum of loss sustained by them. 7. Learned counsel appearing for the Petitioners/Civil Supplies Corporation submitted that the learned Arbitrator has failed to take into consideration the various Movement Orders issued by the Corporation to the Respondent/Contractor that were furnished at the time when oral submissions were made on behalf of the Corporation and hence, the Petitioners/Corporation are perfectly justified in issuing the proceedings dated 28.03.2011, thereby terminating the Respondent's Contract. 8. Though the Petitioners/Corporation are trying to impress upon this Court that they have issued Movement orders to the Respondent, in the Award of the Arbitrator, it has been clearly discussed that the Petitioners/Corporation have not produced any documentary evidence to that effect. Hence, the Arbitrator has ordered repayment of Security Deposit of Rs.2,00,000/- to the Claimant and further held that the cost of Arbitration has to be shared by both parties on 50:50 basis. 9. At this juncture, it is worth referring to the Apex Court decision in the case of W.M. Agnani vs. Badri Das reported in (1963) 1 LLJ 684, wherein, the Industrial Tribunal put one interpretation upon the resolution of the Management and the High Court thought it better to put another. The Apex Court held that it cannot be said to introduce an error apparent on the face of the record in the order of the Industrial Tribunal and ff it can be said that the view taken by the Tribunal is not even reasonably possible, perhaps an argument can be urged that the error is apparent on the face of the record. In the said case, the High Court exceeded in its writ jurisdiction in interfering with the finding of the Industrial Tribunal based on the construction put by it upon the resolution of the Management. 19. In the said case, the High Court exceeded in its writ jurisdiction in interfering with the finding of the Industrial Tribunal based on the construction put by it upon the resolution of the Management. 19. For better appreciation, relevant portion of the judgment rendered in Agnani's case (cited supra) is extracted hereunder: "11. ... The Tribunal took the view that this resolution clearly showed that the enquiry had to be held about the incident which took place on November 16, 1959 and it thought that the reference to his previous conduct was incidental and may have been necessary for determining the question of sentence, but it was not intended to be the subject matter of the enquiry. The High Court has taken a different view. Apart from the correctness of one view or another, it seems to us plain that in a matter of this kind, if the Tribunal put one interpretation upon the resolution and the High Court thought it better to put another, that cannot be said to introduce an error apparent on the face of the record in the order of the Tribunal. If it can be said that the view taken by the Tribunal is not even reasonably possible, perhaps an argument may be urged that the error is apparent on the face of the record; but, in our opinion, it would not be possible to accept Mr. Setalvad's argument that the construction placed by the Tribunal is an impossible construction. On the other hand, while conceding that the view taken by the High Court may be reasonably possible, we are inclined to think that the construction put upon the resolution by the Tribunal is also reasonably possible; in fact, if we had to deal with the matter ourselves, we would have preferred the view of the Tribunal to the view of the High Court." 9. Thus, in view of the clear finding arrived at by the Arbitrator and in the absence of sufficient documentary evidence to establish the case of the Petitioners/Corporation, this Court finds no reason to interfere with the Award passed by the Arbitrator. Accordingly, the Original Petition stands dismissed. No costs. Consequently, connected Application No.8159 of 2018 is closed.