Prasanta Kumar Deka, J. -
(1.) Heard Mr. S. N. Sarma, learned senior counsel assisted by Mr. K. Kalita, learned counsel for the appellant and also Mr. P. Kataki, learned counsel for the respondent.
This appeal has been preferred by the appellant under Section 37 of the Arbitration and Conciliation Act, 1996 against the judgment and order dated 20.11.2009, passed by the learned District Judge, Kamrup at Guwahati in Misc (Arb) Case No.176/2007.
(2.) The respondent as the proprietor of M/S Rajlakshmi Gas Service, is the claimant before the sole Arbitral Tribunal of Shri A. Misra, claiming an amount of Rs.21,96,720.00 and interest thereon against bills for toll charge from December, 2001 to May, 2004 against the present appellant.
(3.) The facts, upon which the claimant has founded the claim, may be recorded briefly. In pursuant to the tender No.NE/LPG/JT-2/2000, issued by the appellant corporation for transportation of filled LPG cylinders in vertical position Ex-Duliajan, the claimant/respondent submitted his tender. The claimant/respondent quoted, a price bid for transportation to Kamalabari as Rs.74.00 per cylinder exclusive of toll and ferry charges which would be billed on production of actual Government receipt. The appellant vide its letter dated 21.02.2001, allotted the work order to the claimant/respondent. Later on, the appellant offered the claimant/respondent Rs.65.00 per cylinder (rounded with) as transportation rate to and fro Kamalabari. In response to the said letter, the claimant/respondent accepted the said rate of Rs.65.00 excluding toll and ferry charges which would be billed on production of actual Government receipt issued by the District Authority which was clearly mentioned in the price bid. The claimant/respondent submitted its bill for toll and ferry charges on various dates along with the receipts issued by M/S Priyam Carrying Service for Nimati-Kamalabari ferry service. The respondent/appellant cleared the bill on 06.05.2003 for the month of February, 2001 to November, 2001 for toll and ferryghat charges for transportation of LPG cylinder from Nimatighat to Kamalabari and back from Kamalabari to Nimatighat. The bill amount of toll and ferry charges from December, 2001 to May, 2004 were not cleared by the Department of Finance of the appellant company though the same were served and cleared by the Deputy Manager, LPG, Jorhat etc. Vide letter dated 10.11.2003, the appellant for the first time raised objection against the rate of ferry charges and withheld the pending bills of the claimant/respondent. The ground for such withholding of the bills as informed to the claimant/respondent that after processing the ferry charge bills for the period February, 2001 to November, 2001 payment for which was released and comparing the bills of M/S Olee Bora (another transporter) for the same ferry crossing to Majuli, there was substantial difference in the rate charged by the claimant/respondent and the one charged by M/S Olee Bora. The claimant replied to the above letter dated 04.12.2003 stating that he was not in a position to comment on the rate quoted by M/S Olee Bora, asserted further that as per guidelines of Explosive Rules and Regulation and in the interest of safety, he transhipped the LPG cylinder on exclusive ferries. It was further stated that as per intimation of rate by the Executive Engineer, Inland Water Transport Division, Dibrugarh, the rate of M/S Olee Bora was pertaining to common ferries which were shared by public and not exclusively as used by him in the interest of safety. The rates claimed by him were fixed by the Government of Assam and the payments of bills were sought in the form of reimbursement of the payment which he has already made to the concerned authorities and as such did not carry any element of profit whatsoever. It was further pointed out by the claimant/respondent that the rate charged by other transporters were in quintal basis and applicable to common ferries which were shared by to carry common goods to Majuli Island and not for the exclusive ferries as used by him as per the guidelines of Explosives Department and to that effect, he produced the certificate of the Sub-Divisional Officer (Civil), Garmur, Majuli, Government of Assam showing the toll charges as Rs.870.00 one way per full truck of cylinders and ferry charge Rs.3,650.00 only per trip one way per full truck of cylinders. He also submitted the letter dated 21.10.2003 issued by Office of the Executive Engineer, Inland Water Transport Division, Dibrugarh issued to the Executive Engineer, IOC (AOD) Ltd., stating that rate of ferry is Rs.20.00 per quintal for carrying general goods only and this rate is not valid for carrying LPG as there is no approved rate against LPG fixed by the Government. The letter dated 18.09.2003, issued by the Department of Explosive, Government of India advising the claimant/respondent to transport the LPG cylinders only and exclusively by boat in the interest of safety, the letter dated 18.12.2003, issued by the Director of Inland Water Transport, Guwahati to Senior Area Manager, IOC (AOD) Ltd., informing the hire charge of RPL in between Nimatighat to Kamalabari is Rs.5,000.00 only per day excluding POL etc. for carrying of goods etc. It is submitted by the claimant/respondent that the above rate of Inland Water Transport is higher than the rate approved by the District Authority namely SDO (Civil) Garmur, Majuli. That the Inland Water Transport has fixed the above rate for one day only but in his case it took at least four to five days to carry filled and empty cylinders to and fro Nimatighat to Kamalabari. Accordingly, the claimant/respondent claimed the said amount of Rs.21,96,720.00 along with interest and an amount of Rs.6,67,584.00 with effect from June, 2004 to January, 2006 along with interest.;