(per Hon’ble Sri Justice V.V.S.Rao)

1. As these two appeals arise out of common order, dated 10.07.2000, in O.P.Nos.41 and 43 of 1996 on the file of the Court of the III Senior Civil Judge, City Civil Court, Secunderabad, it is expedient to dispose of the appeals by common order.

2. The appellant is the society engaged in the business of selling books including those on Gandhian Philosophy, Ramakrishna Mission, Geeta Press etc. On being approached by appellant, first respondent granted licence for setting up a bookstall in Secunderabad Railway Station. An agreement was entered into on 14.11.1983. Railways received complaints from passengers to the effect that appellant was selling unauthorized publications and pornography books. Therefore, railway authorities terminated the contract on 25.06.1987 and directed appellant to remove bookstall. Appellant alleges that due to such termination and consequent removal of the bookstall, it sustained loss of Rs.1,13,530/-. Therefore, they invoked clause 25 of the Agreement and sought appointment of sole arbitrator to resolve dispute, in vain. They, therefore, filed a petition under Sections 5, 8, 11 and 12 of the Arbitration Act, 1940 on the file of the III Additional Judge, City Civil Court, Secunderabad. The same was allowed and a retired District Judge was appointed as sole arbitrator. Before the arbitrator, appellant raised five claims. The claims were opposed by Railways. The arbitrator framed three substantive issues, namely, (i) What was the market value of the wooden structure, in which, books used to be kept on the date of its disappearance from the place where it used to stand;

(ii) What was the value of the books kept in the wooden structure on the date of its disappearance; and (iii) What are the damages, if any, sustained by appellant? To substantiate its claim, appellant examined three witnesses and marked Exs.A.1 to A.32. On consideration of evidence, learned arbitrator on issue No.1 came to the conclusion that the appellant suffered damage and awarded Rs.24,000/- as cost of wooden structure. The cost of the books which was subject matter of issue No.2 was assessed at Rs.5,000/- and on issue No.3, learned arbitrator awarded Rs.25,000/- towards mental agony. In addition to this, consolidated amount of Rs.10,000/- was awarded towards interest. Thus, in total, the award for Rs.64,000/- with subsequent interest at 12% from the date of the award was passed.

3. The appellant then filed O.P.No.41 of 1996 (out of which C.M.A.No.362 of 2001 arises) under Section 17 of the Arbitration Act to make the award rule of the Court and for award of interest @ 24% per annum. Railways filed O.P.No.43 of 1996 out of which (C.M.A.No.361 of 2001 arises) under Sections 30 and 33 of the Arbitration Act to set aside the award. These two O.Ps., as noticed supra – were dealt with together. The learned III Senior Civil Judge, City Civil Court, Secunderabad, allowed O.P.No.43 of 1996 filed by Railways and partly allowed O.P.No.41 of 1996 only to the extent of Rs.5,000/- towards Arbitrator fees.

4. In this appeal, learned counsel for appellant submits that the Court was in error in setting aside the award for the following reasons. Clause 10 of the Agreement which grants immunity for Railways from the claims for loss or destruction of bookstall, would only be operative during the period of subsistence of licence and the same cannot be claimed by Railways. Secondly, when the arbitrator awarded damages for the loss of wooden stall and damages for the loss of books, impliedly the arbitrator agreed with the appellant that the termination of licence and consequent removal of wooden stall is arbitrary and therefore, the learned Judge ought not to have interfered with the award. Lastly, it is submitted by appellant that after issue of termination order on 25.06.1987, the appellant addressed Ex.A.4 letter seeking time, that in response thereto Railways sent Ex.A.6 communication extending time and within t