Narayan Chandra Sil, J. - (1.) This is to consider an application under Section 30 read with Section 33 of the Arbitration Act, 1940 for setting aside the award. The petitioner is the Food Corporation of India while the respondents are HARDLAND SHIPPING CO. LTD. and OCENIC SHIPPING AGENCY PVT. LTD. The petitioner's case in brief is that a Charter Party Agreement was executed between the petitioner party and the respondent No. 2 followed by a bill of lading dated 25.8.1988 whereby it was provided that "Amar Kanti" was to carry a total quantity of 1, 35, 000 bags of rice weighing 13, 500.000 M.Ts. from her forwarding port at Bangkok/Kashichang for discharging her entire cargo at Calcutta lightening at Pondichery. The Vessel arrived at Pondicherry and discharged a quantity of 30, 730 bags including 505 slack and torn bags. The survey was made on the shortage and the shortage is detailed in paragraph 2 of the petition. The Vessel was supposed to carry a total quantity of 1, 04, 270 bags of rice to Calcutta but actually the vessel discharged 1, 03, 223 bags weighing 9855.810 M.Ts. only against the bill of lading. Thus, there was short landing of 1, 047 of original bags weighing 1, 04, 700 (N) M.Ts. plus shortage in contents for 1, 03, 223 bags landed at Calcutta. The claimant made the claim in two parts one for short landing at Pondichery and other at Calcutta. The claims were not settled for which the matter was referred for arbitration in terms of Arbitration Clause contained in the charter party as described in paragraph 5 of the petition. The dispute was referred to Joint Arbitrators namely Mr. S. Dutta and Mr. J.L. Puri, the former being nominated by the petitioners and the later by Respondent No. 1. The Arbitrators held meeting of the parties on various dates and ultimately they made and published a non- speaking award on 10.3.92 dismissing the claim of the petitioners before the Court amounting to Rs. 21, 92, 000.69. It is also stated that the Joint Arbitrators rejected the counter-claim of the respondents whimsically and in a hasty manner and referred the entire dispute with regard to claim and counter-claim of the parties to the umpire. The respondents took tle ground of jurisdiction before the umpire as regards his competency. During the hearing, an application under Section 28 of the Act was filed by the claimants before the High Court for extension of time to file the Awards. The time was extended by the High Court. The parties did not adduce any oral evidence but relied on the respective pleadings and documents. Ultimately the umpire made and published his Award on 27.6.02. The umpire committed error in granting Award in favour of the respondents by ignoring wrongfully the survey report produced by the petitioners. It is also stated that the umpire mechanically and without applying mind and considering the charter's claim passed the Award. It is also alleged that the umpire had exceeded his jurisdiction and committed the legal misconduct as the umpire passed the Award during the pendency of the matter before the High Court since 1992.
(2.) The respondents have contested the application by filing affidavit-in- opposition wherein all the material allegations are denied and it is inter alia stated that the vessel , M. V. "Amar Kanti" arrived at the port of Pondichery on 16th September, 1988 with a total cargo of 1, 35, 000 bags of rice weighing about 13, 500 mts. where 4, 500 mts.of rice were unloaded. All formalities like Health survey, checking of ventilation system Food Corporation of India v. Hartland Shipping Co. (Cal) 205 were made. All the four hatches containing the goods were found to be in good and proper condition. No trace of any sweating anywhere was found in the hatches. A total quantity of 33, 730 bags of rice were discharged in good condition without any shortage. Thereafter the vehicle carried the balance cargo of 1, 04, 270 bags for discharge at Calcutta Port and those bags of rice were discharged at Calcutta Port in good and proper condition without any shortage or damages. Thus, the responsibility of the respondents ceased after having discharged the cargo in the Ports. It is also stated that on 26.7.1990 the petitioners filed a statement of claim before the Joint Arbitrators claiming a sum of Rs. 21, 92, 000/- as compensation for alleged short-landing of a portion of the cargo. Subsequently on 9.10.90 the petitioners filed a supplementary statement of claim of Rs. 1, 84, 685.60 p. for despatch earned and customs overtime payments alleged to be due front the respondents. The matter was contested by the respondents by filing an application before the Arbitrators. On 13.6.91, the petitioners filed before the A.bitrators their counter claim for a sure of US Dollar 1, 36, 728.15 as demurrage and balance freight. On 13.2.1992 it was agreed between the parties that the claim of the petitioner in respect of short-landing of cargo would be heard separately on 20th and 21st of February, 1992. Accordingly, the Joint Arbitrators held meetings and the proceeding was confined only to the claim of the petitioners in respect of short-landing of cargo. Award was passed on 10.3.92 and notice thereof was given on 10.3.92 for ascertaining the true scope. From the said minutes it would be clear that the disagreement between the Joint Arbitrators was in respect of the claim of the petitioners for despatch and the counter claim of the respondents for demurrage and balance freight. Thereafter the hearing was made on 5.9.92 when the petitioners submitted before the Umpire that he had no jurisdiction to hear the said dispute inasmuch as he had been appointed by the Joint Arbitrators on 12.10.90 i.e. to say beyond the statutory period of 30 days from the date of the appointment of the Arbitrators. It was also submitted by the petitioners that the time to make award by the Umpire had expired. After considering the submissions made by the respondents the Umpire had kept the hearing in abeyance and directed the parties to obtain the order from the High Court as regards his jurisdiction. The matter was heard by Mr. Pinaki Chandra Ghose, J. who was pleased to affirm the jurisdiction of the Umpire. Thereafter the Umpire took up the hearing of the matter where the petitioners insisted that the entire matter be heard de novo including the claim of the petitioners for short-landing though there was no disagreement with regard thereto by the Joint Arbitrators in rejecting the claim for short-landing made by the petitioners. The petitioners filed written notes before the Umpire on 20.1.2001 including the claim for compensation on account of short-landing. The Umpire made the award and asked the parties to ascertain the true scope and effect thereof.
(3.) The petitioner has filed nor written notes on argument in which it is inter alia stated that the claim of the respondents (Hartland) is ex facie barred by limitation and that the claim of the respondents is extinguished and ceased to exist by reason of the lapse of time under the Carriage of Goods by the Sea Act, 1925, for the reason that Article 3 Clause 6 provides notice of loss or damage to be given within three days "In any event the carrier and the ship shall be discharged from liability in respect of loss or damage unless suit is brought within one year after delivery of goods or the date when the goods should have been delivered". In the instant case the counter claim for demurrage had been made after 2 1/2 years of the cause of action accrued. Several case laws have been referred to by the learned Advocate for the petitioner in order to substantiate his claim. It is also stated that the point for limitation was taken up before the Joint Arbitrators which was also heard by the Umpire in the form of jurisdiction as the question of jurisdiction also embraces the question of limitation.;