Judgment

SABYASACHI MUKHARJI, J. - Special leave granted.

2. The respondent was appointed a transport and handling contractor by the appellant subject to the terms and conditions mentioned in three successive agreements in writing entered into by both the parties. After disputes arose between the parties, as per the terms of arbitration clause an arbitrator was appointed to adjudicate upon the disputes. Both the respondent and the appellant filed their respective claims and counter-claims before the arbitrator. After considering the documents and evidence filed before the arbitrator, he made and published an award which was speaking one. The arbitrator did not allow the appellants claim for demurrage and wharfage charges paid to Railways amounting to Rs. 15,63,863.02 by reason of the alleged wrongful conduct of respondent but the arbitrator awarded only 25% of the claim. The arbitrator also did not allow the appellants claim for shortage in transit but reduced the claim by 40% and allowed only 60% of it a mounting to Rs. 52,971.99. By the award the arbitrator awarded to the respondent Rs. 12,64,175.97 and pendante lite interest at 6% per annum. The appellant filed objections in the High Court of Calcutta under Sections 30 and 33 of the Arbitration Act, 1940 (hereinafter called the Act) for setting aside the award. On 18th September, 1980, the learned single Judge of the High Court by his judgment and order set aside the award. There was an appeal to the Division Bench of the High Court. On 2nd June, 1987 the Division Bench of the High Court allowed the respondents appeal by its judgment and order and set aside the judgment of the learned single Judge and upheld the award. Being aggrieved thereby the appellant has come up before this Court by special leave under Article 136 of the Constitution. While issuing notice on the application under Article 136 of the Constitution it was indicated that only three questions will be adjudicated upon in this appeal viz. Rs. 13,94,982.46 which was the amount allowed on account of demurrage and wharfage charges mentioned in the award and secondly, the sum of Rs. 2,35,769.46 and lastly on the question of interest.

3. So far as the second question of the matter is concerned Sree A. K. Sen, counsel appearing for the appellant has not made any submission before us. We also cannot find any substance in this aspect. Therefore, it is not necessary for us to deal with this aspect of the matter.

4. So far as the amount of Rs. 13,94,982.46 on account of demurrage and wharfage is concerned, which was allowed, the award dealt with the question as set out in the paper-book. It appears that the total demurrage and wharfage charges paid by the Corporation to the Railways in respect of the wagons cleared by the claimant firm, respondent herein, after obtaining such waiver as the Railways were persuaded to make was for Rs. 15,63,863.21. The charges were alleged to have been paid under Credit Notes which were produced before the arbitrator. There was no dispute about the actual payment of the charges. The appellants case was that it was entitled to recover the entire amount it had to pay on account of the demurrage and wharfage charges from the respondent under Cl. 9(a) of the agreement.

5. Clauses 9, 9(a) and 9(b) of the agreement are as follows :

"9. The Agent shall commence to load and/or unload all the wagons and trucks as well as all steamers flats, barges and boats or any other conveyance on the day of their arrival and shall carry out the orders and directions of the Manager with all possible despatch and shall responsible for and make good all demurrage or other waiting charges and expenses that may accrue and all other charges that may in the opinion of the Manager be payable because of or through any reasonable detention or delay."

"9(a). The Agent shall be responsible for unloading /loading the wagons within the free period allowed by the Railways and also for loading/unloading for trucks/carts or any oth