- (1.) CHALLENGE in this petition is to the orders dated 22.01.2004 and 10.03.2004 (Annexures P -3 and P -4) passed by respondent No.1. M/s Kandla Shipping Services -respondent No.1 entered into an agreement with Haryana State Cooperative Supply and Marketing Federation Ltd. -respondent No.3 on 19.08.1993 (Annexure P -1) for handling the bulk fertilizers (DAP) to be imported from various countries and for further supply of such stocks to various destinations in Haryana after unloading, packing and transporting etc. The petitioner is dealing in stevedoring and handling of bulk cargo of imported fertilizer. As per the terms of the aforesaid agreement, the petitioner received M.V. Kanaras, M.V. Golden Prince in October/November, 1993 at Kandla Port. 32319.981 MT and 31781.858 MT material was unloaded at the port. At the time of loading of the said material, it contained more than 1.6% moisture. When the vessels were unloaded at Kandla Port, the unloaded material had moisture of .03% to .9%, causing loss of net weight. At the instance of Haryana State Cooperative Supply and Marketing Federation Ltd., M/s SGS Ltd. (India) conducted a survey in terms of the agreement. As per survey report, the moisture contents were less than the moisture at the time of loading of the material. The fertilizer had become absolutely moisture free at the time of delivery of the same to the destination in the State of Haryana, which resulted into loss of weight of the said fertilizer. Loss in the weight of fertilizer could not be attributed to the petitioner, as the same was an act of nature. Some portion of the fertilizer was also lost due to unprecedented cyclonic rain and gutsy winds. Thereafter, on 08.03.1994, respondent No.3 made a claim before the Insurance Company, wherein it was specifically stated that during the period the material was packed into bags after discharging from the vessels, it met with heavy cyclonical rain, followed by gutsy winds. However, the said claim was never pursued by respondent No.3 and even its fate was not disclosed to the petitioner. Respondent No.3 deducted the cost of the fertilizer destroyed/lost due to unprecedented cyclonical rain and gutsy winds from the amount, which was payable to the petitioner. A dispute arose between the parties with regard to the payment. As per Clause 14 of the agreement (Annexure P - 1), if a dispute arose, the matter could be settled amicably, failing which the same would be referred to the sole arbitration of Registrar Cooperative Societies, Haryana or his nominee, whose decision would be final and binding upon the parties. Accordingly, the petitioner made a claim before the Registrar, Cooperative Societies, who appointed Additional Registrar, Cooperative Societies, Haryana -respondent No.2, as a sole Arbitrator. The Arbitrator passed an Award dated 09.07.2001 (Annexure P -2) in favour of the petitioner. Thereafter, respondent No.3 filed an appeal before the Secretary to Government of Haryana, Department of Cooperation, under Section 114 of the Haryana Cooperative Societies Act, 1984, wherein implementation of the Award dated 09.07.2001 (Annexure P -2) was stayed.
(2.) THEREAFTER , the petitioner filed an objection with regard to maintainability of the appeal and vide order dated 22.01.2004 (Annexure P -3), it was held that the appeal was maintainable. Ultimately, vide order dated 10.03.2004 (Annexure P -4), the appeal was accepted and the Award (Annexure P -2) passed by the Arbitrator, was set aside.
(3.) LEARNED counsel for the petitioner has argued that the contract/agreement (Annexure P -1) between the petitioner and respondent No.3 could not be subject matter of dispute under Section 102 of the Haryana Cooperative Societies Act, 1984 (for short 'the Act'). A dispute for arbitration, as per Section 102 of the Act, would be restricted to dispute between the members or between the societies with regard to their commitments of past or any agent, nominees or representatives of the officer of the society. It shall include disputes between two societies or between a society or a liquidator. The disputes, as referred under Section 102 of the Act, would not include any contractual obligations of the society with a nonmember of the said society. As per Clause 14 of the contract/agreement (Annexure P -1), the parties have mutually agreed to refer the dispute to sole arbitration of Registrar, Cooperative Societies, Haryana or his nominee. Once, the Registrar or his nominee is to decide the dispute by way of arbitration, then such an award cannot be subject matter of appeal under Section 114 of the Act. After passing of the award (Annexure P -2), respondent No. 3 could have challenged the same under the Arbitration and Conciliation Act, 1996 or Arbitration Act, 1940, as applicable. Learned counsel for the respondent(s) has argued that under Section 114 (k) of the Act, a decision or award of appeal would lie against the decision or award made under Section 103 of the Act. Since the Registrar has passed the impugned award (Annexure P -2), the appeal was maintainable.;