- (1.) THIS is an application for setting aside the award No. CG/19/79/381 dated 2.9.1981 made and published by the Tribunal of Arbitrators of Indian Chamber of Commerce.
(2.) THE petitioner is a manufacturer of iron and steel materials and the respondent is a dealer of iron and steel materials as well as of Galvanized Corrogated Sheets. Since July 1973, the respondent has business transaction with the petitioner's branch in Calcutta. On 15.12.76, the petitioner allotted in favour of the respondent 2 wagons of defective Galvanized Corrogated Sheets 0 63 mm and 2 wagons of defective B. P. sheets 16/24 G to be supplied on a ?priority? basis from Burnpur Works. Two works orders, being MDS/WBEN/A/10685 and MDS/WBEN/A/10686 both dated 29.12.76 were issued by the petitioner in favour of the respondent. After all the formalities were completed, the petitioner dispatched 2 wagons of defective B. P. Sheets against works Order No.A 10686. It is the respondent's case that the petitioner failed and neglected to despatch 2 wagons of defective Galvanized Corrogated Sheets of 0.63 mm. against works Order No. A 10685, dated 29.12.76. Due to the aforesaid breach of contract by the petitioner, the respondent suffered damage. In terms of Clause 24 of the works order, the respondent referred the dispute for arbitration of the Indian Chamber of Commerce. THE respondent filed a statement of claim claiming damage of Rs.43,400/- being the difference between the agreed price and the market rate of the goods. THE petitioner then filed an application under sections 5 and 33 of the Arbitration Act in the City Civil Court praying for a declaration there was no binding arbitration agreement between the parties and obtained an order of injunction restraining the respondent from proceeding with the reference. THE respondent applied for revision of the said order of injunction by this Court and by an order dated 15.12.1980, the said order was set aside holding that the arbitration clause was binding and the Arbitrators were competent to decide the claim for damage referred to them. Under the circumstances, the petitioner filed its counter statement on 11.2.81 denying the respondent's claim for Rs.43,400/-. On 28.2.81 the respondent filed its re-joinder. By a letter dated 3.3.81 the petitioner was intimated by the Tribunal that they had received the final statement from the claimant and no further statements from the parties were called for. This letter is Annexure ?B? to the petition. On 12.5.81, the respondent submitted before the Arbitrators an amended statement of claim by introducing a claim for specification performance of the contract No. A 10685 dated 29.12.76 by specific delivery of 2 wagons of defective Galvanized Corrogated Sheets. According to the petitioner, the Tribunal of Arbitrators without any notice to the petitioner and without hearing them, allowed the said amendment ex parte by accepting the amended paragraphs 19(a) and 19(b) to the respondent's statement of claim. By a letter dated 13.5.81, the Tribunal informed the petitioner that they had received an amended statement of claim from the respondent and sent a copy of the same to the petitioner but did not direct the petitioner to file any counter statement dealing with the amended portion. On 14.8.81, the Arbitrators held a sitting, heard the parties and made and published their award on 2.9.81 directing specific delivery of 2 wagons of goods under works Order No. A 10685 dated 29.12.76. THE award was duly filed and notice of filing of the award under section 14(2) of the Arbitration Act was received by the petitioner on 24.12.81. the present application was taken out by the petitioner for setting aside the said award on 9.2.82 which is clearly beyond 30 days from the date of receipt of the notice. In paragraph 13 of the present petition, the petitioner tried to explain the reasons for not filing the petition in time and prayed for condonation of delay. In paragraph 14 of the petition, the grounds for setting aside the award were set out. THE grounds (a), (b), (c), (d), (k) and (l) were passed before me. In grounds (a) and (b), the petitioner attacked the award on the allegation that the goods were readily available in open market and damage was adequate compensation. THE learned Arbitrators erred in law by directing specific performance of contract. In grounds (c), (d) and (k) the petitioner alleged that the Arbitrators misconducted the proceeding by allowing amendment and introducing a claim for specific performance without hearing the petitioner. In ground (1) the petitioner alleged that there was error on the face of the award. In the affidavit-in-opposition all these grounds were denied and the respondent alleged that the application was barred by limitation. So the point of limitation is taken first for decision. The petitioner received the notice under section 14(2) on the eve of Christmas vacation. It appears that after reopening of the Court in January,1982, the petitioner on 16.1.82, handed over the papers to M/s. Fowler and Co. for taking necessary steps. A Counsel was briefed for giving opinion and on 20.1.82 he advised the petitioner to apply for setting aside the award. On 21.1.82, the same Counsel was briefed for drafting the petition but on 22.1.82, the brief was returned due to the serious illness in the Counsel's family. The time expired on 23.1.82. 23rd and 24th January were holidays due to Netaji's birthday. On 25.1.82 another Counsel was briefed for drawing the petition and the draft was made ready by 29.1.82. 30.1.82 was Saraswati Puja and 31.1.82 was Sunday. On 1.2.82 a senior Counsel was briefed to settle the draft. He held two Conference on 5th and 6th February, 1982 and handed over the settled draft on 8.2.82 and the application was taken out on 9.2.82. According to Mr. Sarkar, the Counsel for the respondent, the time taken by the lawyers was unreasonable and did not amount to sufficient cause. On the contrary it proves the negligence on the part of the lawyers. According to him they ought to have drafted and settled the petition in hot haste in view of the fact that the time had already expired on 23.1.82 and on the facts of this case the application should be dismissed in limine. Mr. Sarkar cited the cases of (1) Ramlal and Ors. v. Rewa Coalfields Ltd., AIR 1962 SC 361, (2) Bhakti Bhusan Mondal v. Khagendra Kumar Bandopadhya and Ors., AIR 1968 Cal 69, (3) Dewan and Ors. v. Buddhu and Ors., AIR 1914 All 521, (4) Mahant Bikram Dass Chela v. Financial Commissioner of Revenue and Punjab, Chandigarh and Ors., (1977) 4 SCC 69 (5) Chunilal Basu and Anr. v. The Chief Justice, High Court and Ors., 78 CalWN 719 and (6) The Rajputana Trading Co. (P) Ltd. v. Malaya Trading Agency, AIR 1971 Cal 313, on the point of limitation and in support of his contention that lawyer's negligence would not amount to sufficient cause. Mr. Ajay Mitter, Counsel for the petitioner, submitted that before giving opinion or drawing or setting the petition, the lawyers concerned had to go through the entire records before the Arbitrators, the entire proceeding before the City Civil Court as well as the records of revision case before the High Court. The matter became more complicated on the point of law due to the amendment introducing an alternative case for specific performance in a claim simplicitor for damage. He invited my attention to the fact that the present petition was heard for 7 days and most of the time was taken by Mr. Sarkar himself in defending the amendment allowed by the learned Arbitrators. This fact alone would justify the time taken by the lawyers. There is a lot of force in the submissions of Mr. Mitter. He further pointed out that there was no allegation of negligence, inaction or bad faith against the applicant and as such section 5 of the Limitation Act should be construed liberally in the present case. He strongly relied on the case of (7) Soorajmull Nagarmal v. Golden Fibre and Products, AIR 1969 Cal 381, in support of his contention: - ?Where no negligence, nor inaction, nor want of bona fide can be inputted to the applicant, a liberal construction of the section has to be made in order to advance substantial justices.?
(3.) I accept the submission of the petitioner's Counsel that there was no negligence or laches on the part of the lawyers and the time taken by them was reasonable and necessary. The petitioner has satisfactorily explained the delay and the delay must be condoned.;