Salil K.Roy Chowdhury, J. - (1.) THIS is an application under Sections 5, 11, 12 and 15 of the Arbitration Act, 1940, inter alia for revoking the authority of the Arbitrator being Tribunal of Arbitration, Bengal Chamber of Commerce and Industry, in respect of Case No. 143 of 1977 pending before the same and for removal of the Arbitrator and appointment of a sole Arbitrator and consequential reliefs.
(2.) THE facts of the case which are not disputed are that by a contract in writing dated 29th of January, 1969, entered into between the parties, the respondent agreed to store imported non-edible tallow in Steel Storage Tank situated at Ram Nagar on the terms and conditions contained in the said contract. Under the said contract the respondent was appointed as the clearing storage. handling and forwarding agent in respect of the said tallow which was to be imported by the petitioner and stored in the said tank of the respondent on the terms and conditions of the said contract. THE said storage tank was ready in or about June, 1969, and between June, 1969 and September. 1977, the petitioner issued diverse instructions and/or orders to the respondent authorising them to receive store and handle tallow from the vessels carrying tallow. THE respondent did receive a total quantity of about 58,550,554 M. Ts. of tallow in the said storage tank from incoming vessles. THE petitioner also from time to time between June. 1969 to October. 1975, issued delivery orders and/or challans in the name of its nominee or nominees and/or allottee or allottees for diverse quantities of tallow mentioned in the said delivery orders and/or challans. THE respondent between June. 1969 to October, 1975, duly supplied a total quantity of 58,045.673 M. Ts. of tallow to the nominee or nominees and/ or allottee or allottees of the petitioner to whom delivery challans and/ or orders have been issued by the petitioner from time to time as aforesaid. THE said contract was originally for a period of ten months with an option to the petitioner to continue the contract for a further period of twelve months. THE said contract also provided for further ' extension beyond the aforesaid period to be mutually decided and was agreed between the parties. After various extensions the said contract stood determined and/or terminated and/or discharged on or from September, 1975, and thereafter, the said storage tank was emptied and drained and a quantity of 504.881 M.Ts. was found short and/or unaccounted for. Under the said contract which made the respondent liable to render true and faithful account to the petitioner in respect of the said tallow and as such, become liable for the said shortage. In spite of the demand of the petitioner the respondent failed and neglected to pay the value of the said short quantity of tallow handled by them and the loss of the petitioner was assessed at 25,72,873.50 p. for which the petitioner made a demand on the respondent together with interest at the rate of Rs. 18 per cent per annum from October. 1975, being the date of termination of the said contract until payment. THE respondent made a counterclaim of about Rs. 6,25,674.83 P. alleged to be payable by the petitioner to the respondent. Consequently, a dispute and difference arose and the same was referred to for adjudication under the arbitration clause contained in the said contract by the respondent before the Tribunal of Arbitration, Bengal Chamber of Commerce and Industry. THE said Tribunal registered the case being Case No. 143 of 1977 and the pleadings were filed before the Tribunal of Arbitration, Bengal Chamber of Commerce and Industry. It is now alleged by the petitioner that the question of law as stated in paragraph 15 and various sub-paragraphs thereunder has arisen inter alia whether the petitioners' claim is barred by limitation, whether the Arbitration Rules of the Bengal Chamber of Commerce and Industry are appropriate for the adjudication of the disputes arising in the instant case, whether the respondent is accountable to the petitioner as principal and agent, whether the law of paramount applies in this case, if not, what is the liability of the respondent as a bailee, whether the Tribunal is competent to determine the complicated questions of law arising between the parties, whether the admitted shortage of 504.881 M.Ts. of tallow is arbitrable, whether the respondent is entitled to set off and/or counterclaim any amount against the claim of the petitioner.
(3.) ON the 4th of July, 1980, the petitioner applied before the said Tribunal of Arbitration. Bengal Chamber of Commerce and Industry under Rule XXIII of the Rules of Tribunal of Arbitration, Bengal Chamber of Commerce and Industry, for reference of the questions stated hereinbefore to the Hon'ble High Court as a special case for its opinion. By a letter dated 7th of October, 1980, the petitioner was informed by the said Tribunal of Arbitration that they have decided in the instant case that it was not necessary to state as a special case and for the opinion of the Hon'ble High Court. Thereafter, the petitioner in view of the said complicated questions which the Tribunal of Arbitration has taken upon itself to decide sought the permission of the Tribunal of Arbitration to be represented by a lawyer which was denied. Even a full time employee of the petitioner being the Legal Adviser was not permitted to represent the petitioner in the reference. In the premises on the grounds as set out in paragraph 20 and various sub-paragraphs thereunder the petitioner is asking for the Relief as prayed for in this application and the present application was filed on the 12th of November, 1980, and on that date an ad interim injunction was issued in terms of prayers (d) and (e) inter alia restraining the respondent from taking any step in the said reference and also all proceedings before the Tribunal of Arbitration. Bengal Chamber of Commerce and Industry. After filing affidavits directions for which was given on the 14th of November, 1980 the matter was heard at length.;