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2023 DIGILAW 134 (JK)

Nasrullah Malik v. State of Jammu & Kashmir

2023-04-06

PUNEET GUPTA

body2023
JUDGMENT : 1. The award dated 15.06.2002 was passed by the arbitrator Mr. Prem Singh, retired Managing Director, J&K State Forest Corporation, Jammu. The arbitrator was appointed by this court vide order dated 07.09.1999. The award has been challenged by the applicant-State Forest Corporation on the grounds mentioned in the application. 2. The claimant Nasarullah Malik has filed objections to the objections filed by the respondents. 3. The dispute pertains to the contract allotted in favour of the petitioner for off-road transportation of timber from Ugman Dugaada to Ukhral falling under compartments 13, 15 & 16. The sanction was granted by the General Manager (West) vide order No. 2248-54/GM/West/J, dated 06.08.1988 for transportation from Ugman Dugaada to Ukhral for a volume of 2.60 lac cft of sawn timber. The agreement also came to be executed between the parties. The respondents did not supply the quantity of timber as required and later on the General Manager (West) sanctioned the extension in the working period for off-road transportation in favour of the petitioner on the same terms and conditions which were contained in the earlier sanction order. 4. The petitioner alleged that he had suffered losses on account of failure on the part of the respondents to adhere to the terms of the agreement. The dispute was raised by the petitioner with the respondents and raised the claim under various heads. The claim raised by the petitioner before the arbitrator was objected to by the respondents on the ground that there was no failure on the part of the respondents as far as alleged non-compliance of the terms and conditions of the agreement is concerned. The terms and conditions did not envisage allowing of the claims of the petitioner. 5. The arbitrator accepted claim Nos. 1,2,3,6 & 7 and rejected rest of the claims of the petitioner. The claimant was held entitled to Rs. 9.41 lacs but without any interest on the ground that the claimant had himself not claimed pendente lite interest as per his own statement. 6. Mr. Vipan Gandotra, learned counsel appearing for the objector has submitted that the arbitrator has grossly erred in adjudicating the claim as he has allowed the claims of the petitioner though not entitled to the same. The claims submitted by the petitioner were not covered under the agreement. 6. Mr. Vipan Gandotra, learned counsel appearing for the objector has submitted that the arbitrator has grossly erred in adjudicating the claim as he has allowed the claims of the petitioner though not entitled to the same. The claims submitted by the petitioner were not covered under the agreement. The respondents fulfilled all the conditions of the agreement and even granted extension for completion of the transportation of timber. It is also the case of the SFC that there was no guarantee for any increase or decrease of the stocks by the corporation during the subsistence of the agreement. 7. Mr. O.P. Thakur, learned senior counsel appearing for the petitioner-claimant has argued that the petitioner-claimant was infact entitled to more claim than the one awarded by the arbitrator as there was deficiency on the part of the respondents qua the contract in question. The learned counsel has submitted that the claimant was entitled to pendente lite interest also though not awarded by the arbitrator. 8. The main argument put forth by the learned counsel for the respondents is that the claim of the petitioner was not covered by the arbitration clause and, therefore, the arbitrator was wrong in awarding claim in favour of the petitioner-claimant. 9. Clause 40 of the agreement dated 09.08.1988 between the parties which mentions as under:- "Any dispute, difference or question which may arise at any time between the parties in respect of the work to be executed the second party under this agreement shall be referred formalities to the Managing Director J&K State Forest Corporation whose decision shall be final and binding on both parties." 10. Clause 38 of the Agreement states as under:- "As the volume of work and value of contract are estimated and cannot be granted, the second party shall not be entitled to any damages or compensation for any short fall (in total or activity/sub-activity wise)." 11. Clause 34 of the Agreement states that the claimant shall not have any right to claim extension nor it shall be granted. The General Manager concerned can, however, grant extension as a result of viz-major on such terms and conditions as he may prescribe. 12. The award is admittedly non-speaking one. In view of the fact that the award passed by the arbitrator is non-speaking one, the controversy in the present case itself narrows down. The General Manager concerned can, however, grant extension as a result of viz-major on such terms and conditions as he may prescribe. 12. The award is admittedly non-speaking one. In view of the fact that the award passed by the arbitrator is non-speaking one, the controversy in the present case itself narrows down. The learned counsel for both the sides have from their own point of view have tried to put forth their arguments so as to reject/maintain the award passed by the arbitrator. 13. The reliance upon clause 38 of the agreement by the counsel for the respondents that it does not allow the arbitrator to pass the award for the claims submitted by the petitioner-claimant is misconceived. Clause 40 of the agreement as mentioned above itself mentions the fact that any dispute, difference or question which may arise in respect of the work to be executed by the claimants shall be referred to the Managing Director of the Corporation for decision. Clause 40 shall encompass any dispute which may arise between the parties qua the work allotted to the petitioner by the Corporation. Clause 38 has to be read with Clause 40 harmoniously. The loss which the petitioner allegedly suffers and raises claims cannot be restricted qua Clause 38 which states that the damages or compensation cannot be claimed for any shortfall for the above allotted contract to the petitioner. The arbitrator in his wisdom has entertained some of the claims put forth by the petitioner and rejected some after going through the objections submitted to the claims made by the petitioner and the evidence produced before herein by the parties. It is trite proposition of law that where the award is non-speaking one the court is not to probe the mental process of the arbitrator and speculate where no reasons are given by the arbitrator so as to what impelled the arbitrator to arrive at this conclusion. This is what has been held by the Hon'ble Supreme Court in case reported as 1989 (2) SCC 38 titled 'M/s Sudarshan Trading Company v. The Government of Kerala & Anr.'. The court in this authority took note of various decisions of the court while deciding the matter. This is what has been held by the Hon'ble Supreme Court in case reported as 1989 (2) SCC 38 titled 'M/s Sudarshan Trading Company v. The Government of Kerala & Anr.'. The court in this authority took note of various decisions of the court while deciding the matter. The court also held that the High court had no jurisdiction to examine different items awarded clause by clause by the arbitrator and to hold that under the contract these were not sustainable in the facts found by the arbitrator. 14. This court in 2004 (3) JKJ 501 [HC] titled 'Mohd. Ummar Nizami v. State & Ors.' has also relied upon the aforesaid authority of the Apex Court and maintained the award passed by the arbitrator. The court is not required to interpret and infuse its own interpretation to the terms of the agreement once the arbitrator has passed the award. In the case in hand, the court is of the view that infact there is no dispute as to the contract and once the arbitrator has given interpretation to the same and awarded certain claims the court cannot substitute its own opinion. 15. In (1999) 8 SCC 122 the Hon'ble Apex Court held that if the arbitrator has travelled beyond his jurisdiction and acted beyond the terms of the agreement between the parties the agreement is required to be looked into. 16. In (1973) 2 SCC 825 the Apex Court was dealing with the construction of the words which may be interpreted in a particular situation. 17. In the case in hand, it is not that the arbitrator has awarded all the claims put forth by him but has rejected some of the claims. The plea of the respondent that the respondent had also awarded extension for the completion of the contract and therefore there is basic flaw in entertaining the claim and awarding the amounts cannot be entertained. The court finds no reason to tinker with the award passed by the arbitrator. The argument of the learned counsel for the claimant that the petitioner should have been awarded the amount for the claims which have been rejected by the arbitrator is without any force. The petitioner has not challenged the award otherwise passed by the arbitrator by way of objections. The argument of the learned counsel for the claimant that the petitioner should have been awarded the amount for the claims which have been rejected by the arbitrator is without any force. The petitioner has not challenged the award otherwise passed by the arbitrator by way of objections. At the cost of repetition, the court cannot provide its own interpretation for allowing the claim of the petitioner on those items which have been rejected. 18. The argument is raised by the petitioner that the arbitrator has not awarded any interest in favour of the petitioner-claimant while passing the award. The court is again not inclined to accept this argument of the counsel for the petitioner as the arbitrator has rejected the claim for the interest on the ground that the petitioner has himself stated that he would not claim interest. In addition the petitioner did not file objections to the award. The petitioner-claimant cannot not be entitled to any interest. 19. Accordingly, in view of the discussion made above, the Court finds no reason to interfere in the award passed by the arbitrator. The application objecting the award passed by the arbitrator stands dismissed. The award is upheld and made rule of the Court. Office to draw decree sheet accordingly.