FOOD CORPORATION OF INDIA Vs. JAGDISH CHANDRA SAHA

JUDGEMENT

(1.) The above appeals namely F.A. No.43 of 1991 and F.A. No.48 of 1991 arise from the common judgment and decree dtd. 12.8.91 passed by the learned Additional Subordinate Judge, West Tripura District, Agartala, in Title Suit (Arb.) No.3 8 of 1984 refusing to set aside the award passed by the Arbitrator on 15.12.89 and also refusing to award interest at the rate of 12 per cent per annum from the due date of payment by the Food Corporation of India till realisation of decretal amount to Sri Jagadish Chandra Saha and as such these two appeals involve common question of facts and laws and as such we hereby propose to dispose of these two appeals with the following judgment.

(2.) The facts of the case in a short compass are as follows :- Sri Jagadish Chandra Saha is a Government Contractor and supplier, who is the appellant in F.A.No.48/91 and hereinafter referred to as 'claimant-petitioner', and the Food Corporation of India is engaged in providing food-grains and food-stuffs to different states with its offices including the appellants Nos.2,3,4 and 5, who are the appellants in F.A.No.43 of 1991, and hereinafter referred to as 'respondents- Corporation'. The claimant-petitioner entered into an agreement with the respondents-Corporation in response to Tender No.F.9/NSFR/HTC/80 dtd.7.2.1980 floated by the Regional Manager of the respondents-Corporation for appointment of loading/unloading, handling and transport Contractor at Food Corporation/Godowns and Rail Heads at Dharmanagar/Churaibari (Tripura) to FCI Depots at various places including Agartala/Pencharthal/Hanger, etc. within the State of Tripura. The validity of the contract was for a period of 2 years commencing from 1.6.1980 to 31.5.1982, which was further extended for a period of 2 months more up to 31.7.1982. During the execution of the works under the contract, a dispute/difference has arisen amongst the parties and subsequently the claimant-petitioner demanded for arbitration from the Managing Director of the Respondents-Corporation but there was no response from the end of the said Managing Director. Having no alternative the claimant-petitioner filed a petition before the competent Court under Sec.8 of the Arbitration Act, 1940 on 29.8.84. The said petition was amended as per order dtd.9.9.86. In the said petition the claimant-petitioner contended that he made claims for payment in terms of the agreement for some item of works but the respondents-Corporation did not make payment of the legal dues to the petitioner claimant for which he demanded to the Regional Manager of the respondents-Corporation of 9.5.1983 for payment of his claims to the tune of Rs.20,61,489.61p plus interest, or for appointimg an Arbitrator. The Petitioner also simultaneously demanded the same claim to the Managing Director of the Respondents- Corporation coupled with a request to appoint an Arbitrator within 15 days of the receipt of the said notice or else the petitioner would have to approach the appropriate Court for redress. The said Managing Director of the respondents-Corporation received the said letter on 12.5.1983 but nothing had come up despite several reminders of the claimant-petitioner. In continuation with the earlier demand notice dtd. 9.5.83, the claimant-petitioner made additional claim on 18.7.1983 for an amount of Rs.82,848.15p for illegal deduction made by the District Manager of the respondents-Corporation. However, the petitioner received the same payment on 8.12.83 against his original claims. Again the petitioner demanded the respondent No.2, namely the Managing Director, on 4.1.84 for appointment of Arbitrator but it was in vain. Thereafter the petitioner sent reminder on 16.4.84 on the same subject but of no result. Having no alternative the petitioner filed an application under Sec.20 of the Arbitration Act before the competent Court, and the competent Court, namely the learned Subordinate Judge, West Tripura District, Agartala, by his order dtd. 30.1.87 referred the dispute/matter to the Arbitrator, namely to the Managing Director of the respondents-Corporation, either to act or to appoint any other person as Arbitrator to decide the dispute. Being dissatisfied with the order dtd.30.1.87, the Respondents-Corporation filed arevision petition being Civil Revision No.33 of 1987 before this Court. This Court dismissed the said revision petition vide order dtd. 15.4.88 passed in Civil Revision No.33 of 1987. Thereafter the learned Arbitrator made an award on 15.12.89 by holding that the claimant- petitioner is entitled to Rs.3,58,OOO/- (Rupees three lakhs fiftyeight thousand) only on account of detention charges of Truck; Rs.5,20,361.61p (Rupees five lakhs twenty thousand three hundred sixty one and paise sixty one) only, on account of additional transport charges; Rs.82,848,15p (Rupees eighty two thousand eight hundred forty eight and paise fifteen only) by way of refund realised on account of food grains; and Rs.9,235.15p (Rupees nine thousand two hundred thirty, five and paise fifteen only) by way of refund on account of oil-soaked rice from the respondents- Corporation. The said award further entitled the claimant-petitioner to pray before the learned Court for interest pendetelite, and for the period from decree till realisation. Being dissatisfied with the award dtd. 15.12.89 passed by the learned Arbitrator, the Respondents- Corporation submitted objection as required under Secs. 30 and 33 of the Arbitration act, 1940 before the learned Additional Subordinate Judge, West Tripura, Agartala, coupled with a prayer for setting aside the award dtd. 15.12.1989. The petitioner-claimant also submitted written objection to the objection of the Respondents-Corporation made under Secs.30 and 33 of the Arbitration Act, and the petitioner made a prayer before the learned Court below for making the award dtd. 15.12.89 a "Rule" of the Court, and also prayed for interest pendente lite till realisation of the award money. The case was registered as Title Suit (Arb.) No.38 of 1984. After hearing the parties the learned Additional Subordinate Judge, West Tripura District, Agartala, disposed of the case on 12.8.91 making the said award dtd.15.12.89 of the Arbitrator as a Rule of the Court. The learned Court further ordered that the respondents-Corporation is to pay 6 percent interest per annum on the decretal amount from the date of decree till realisation. Being aggrieved by the impugned judgment/order and decree dtd.12.8.91 passed by the learned Additional Subordinate Judge, West Tripura District, Agartala in case Title Suit (Arb.)No. 38 of 1984, the present appellants, namely the respondents- Corporation, preferred this appeal.

(3.) Mr. S.Deb, learned Sr. Counsel for the appellants in First Appeal No.43 of 1991, who is also representing the respondents-Corporation in First Appeal No.48 of 1991, at the very outset contended that there was/is no dispute arbitrable under the relevant contract/agreement executed by and between the parties for the aforementioned works for the period from 1.6.80 to 31.5.82, which has been extended upto 31.7.82. According to Mr.S.Deb, the learned Court below had failed to appreciate the ratio of the decision of the Apex Court rendered in Viswanath Sood's case reported in AIR 1989 SC 952 wherein their Lordships of the Apex Court has held that only those disputes adjudication of which are expressly provided for in the contract document are alone be referred to and adjudicated upon by Arbitration, but the learned Court below did not examine this aspect while passing the impugned judgment and decree. Sri Deb, further, contended that the learned Court below ought to have held that the claim of the claimant-petitioner is barred by limitation inasmuch as the claim was not brought within the prescribed period of limitation, i.e. one year on and from 31.7.1982. It is also contended by Sri S.Deb that the learned Court below had failed to appreciate properly the orders passed by the learned Subordinate Judge, West Tripura, Agartala on 30.1.87 in T.S. (Arb.)No.38/84, and also the order dtd. 15.4.88 passed by this Court in Civil Revision No.33 of 1987 while passing the impugned judgment and decree inasmuch as the said orders did not speak about the question of limitation or maintainability of the claim of the petitioner- claimant. Sri Deb, further, contended that no compensation shall be admissible to the Contractor, namely, the claimant-petitioner, in respect of detention of trucks/any other vehicles at godowns/railway stations or a railway siding or any other loading/unloading site (s) or any other place (s) unless such detention be of extraordinary kind and the decision of the Regional Manager, FCI on such claims shall be final both as regards the admissibility and amount, if any, of the compensation and as such the claim for detention charges of the vehicles/ lorries detained beyond usual period of loading or unloading during the period of contract from 1.6.80 to 31.7.82 for Rs.3,58,000/- (Rupees three lakhs fifty eight thousand only) is not tenable in the eye of law. According to Mr.S.Deb, it is beyond the jurisdiction of the learned Arbitrator as well as the learned trial Court to decide this matter as the jurisdiction is vested to the Regional Manager, F.C.I, in the matter. However, both the learned Arbitrator as well as the learned trial Court exceeded its jurisdiction while making the award as well as the impugned judgment and decree, Sri Deb contended. The learned Counsel, further, contended that the learned Court below has indisputable acted illegally in not setting aside the award in so far as it relates to the interest for the period pendente lite. These points of arguments had already been advanced by the learned counsel of the respondents-Corporation before the learned Arbitrator as well as before the learned Trial Court in support of their case.