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1995 Supreme(Bom) 466
IN THE HIGH COURT OF BOMBAY
S.M. Jhunjhunuwala, J.
The Food Corporation of India.... Petitioners.
Versus
M/s. ANPO Shipping Co. Ltd. and others.... Respondents.
Arbitration Petition No. 111 of 1995 in Award No. 178 of 1994, decided on
2-11-1995.
Advocates appeared :
R.V. Desai, for petitioners.
H.J. Thacker i/b M/s. Bootwala Co., for respondent No. 1.
Headnote:Section 30 - Reference-Where arbitration agreement permitted it of all disputes to arbitration, arbitrator entitled to entertain counter-claim-It cannot be said that arbitrator exceeded his jurisdiction.
Since the ambit and scope to challenge to an award under Section 30 of the Act has not been laid down by the catena of decisions of the Honourable Supreme Court as also of Court and other High Courts, an award is not vulnerable to any challenge thereto. When an arbitrator is made the final arbiter of the disputes between the parties, an award is not open to challenge on the ground that the arbitrator has reached a wrong conclusion or has failed to appreciate the facts. The appreciation of evidence by the arbitrator is not a matter which the Court questions and considers. An arbitrator is the sole Judge of the quantity as well as the quality of evidence and it will not be for the Court to take upon itself the task of being a Judge on the evidence before the arbitrator. Once there is no dispute as to the contract, what is the interpretation of that contract is a matter for the arbitrator on which the Court cannot substitute its own decision. If on a view taken of a contract, the decision of arbitrator on certain amount awarded is a possible view though perhaps not the only correct view, the award cannot be examined by the Court An award is not invalid merely because by a process of inference and arguments it may be demonstrated that the arbitrator has committed some mistake in arriving at his conclusion. An aware made by an arbitrator is conclusive as a judgment between the parties and the Court is entitled to set side an award if the arbitrator has misconducted himself or the proceedings or when the award has been made after the issue will order by the Court superseding the arbitration or after the arbitration proceedings have become invalid under Section 35 of the Act or where an award has been improperly procured or is otherwise invalid under Section 30 of the Act. The Court in dealing with an application to set aside an award, has not to consider whether the view of the arbitrator on the evidence is justified. The arbitrators adjudication is generally considered binding between the parties, for he is a tribunal selected by the parties and the power of the Court 10 set aside the award is restricted to cases set out in Section 30 of the Act. The Court has no appellate jurisdiction in binding a petition to set aside an award under Section 30 of the Act. No case of misconduct on the part of the arbitrators has been made out. The award under challenge is an unreasoned award and it is not possible for this Court to probe into the mind of the arbitrators so as to find out as to what impelled them to make the award which has been made by them. It is also well-settled that unless the arbitration agreement provides for giving of the reasons by the arbitrator, it is not obligatory for the arbitrator to give reasons for making of an award and as such since the arbitration agreement between the parties did not provide for the arbitrators to give reasons for the award, the award under challenge though not speaking award cannot be said to be bad in law. There is no error of law apparent on the face of the award inasmuch as no legal proposition of law has been set out in the award itself making the basis thereof which can be said to be erroneous.
2. Briefly stated, relevant facts are as under :
(i) The petitioners are a statutory body established under the provisions of the Food Corporation of India Act, 1964 for the purpose of trading in the foodgrains and food-stuffs and other matters connected therewith and incidental thereto and are an agency set up for the purpose of handling import/export, storage movement, distribution and sale of foodgrains under the statute having the regional office situate at Bombay. The 1st respondents are the owners of the vessel 'M.V. ICARUS' ( for short, 'the said vessel');
(ii) The petitioners had purchased Vietnam white Rice 35% of 1988-89 crop as per the standard specifications notified by the Central Food Corporation of S.R. Vietnam weighing 12271.100 MT Net (245422 bags) from the Department of Foreign Trade, Ministry of Commerce, Government of Vietnam. The said rice was to be consigned to India ;
(iii) A Charter Party Agreement dated 19th August, 1989 was entered into and the said vessel of the 1st respondents was chartered for carriage of the said rice from Saigon port to Marmagoa West Coast of India. The terms and conditions agreed between the parties in respect of the said Charter Party Agreement also incorporated Clause 57 which reads as under:
"Clause 57: All disputes arising under this charter shall be settled in India in accordance with provisions of the Arbitration Act, 1940 of India, each party appointing an Arbitrator from out of the panel of Arbitrators maintained by the Indian Council of Arbitration, New Delhi, and the two Arbitrators appointing an Umpire whose decision in the event of disagreement between the Arbitrators shall be final and binding upon both the parties hereto. The Arbitrators and the Umpire shall be commercial men."
(iv) By the said Charter Party Agreement dated 19th August, 1989, the 1st respondents agreed for carriage of the said cargo on the terms and conditions mentioned therein. The said Clause 57 provided for settlement of all disputes arising under the said charter by reference to arbitration in accordance with the provisions of The Arbitration Act, 1940 (for short 'the Act'). Since dispute arose between the petitioners and the 1st respondents under the said charter, reference thereof was made for arbitration by invoking arbitration agreement contained in said Clause 57. The petitioners appointed one A.S. Kulkarni as Arbitrator on their behalf and 1st respondents appointed one B.V. Shanbag as Arbitrator on their behalf. The Arbitrators appointed one K.L. Chugh as the Umpire.
(v) Before the said Arbitrators, the petitioners filed their statement of claim. The 1st respondents filed their Written Statement and Counter-claim. The petitioners filed their Reply/Rejoinder to the counter-claim of the 1st respondents. Before the Arbitrators, the parties chose not to lead any oral evidence. The Arbitrators after perusing the pleadings, the documents which were produced before them, hearing the Counsel of the respective parties and considering the record before them including the case law relied upon by the parties through their respective Counsel, made and published the said Award dated 30th October, 1993 which has been filed in this Court and numbered as Award No. 178 of 1994. Under the said Award, the claim which the petitioners had put forward before the Arbitrators has been rejected and the counter-claim of the 1st respondents has been awarded in favour of the 1st respondents as mentioned therein.
3. While fairly conceding that an award is not vulnerable to any challenge thereto, Mr. Desai, learned Counsel appearing for the petitioners, has submitted that the arbitrators have come to erroneous conclusion in rejecting the claim of the petitioners and awarding the counte
