The court affirmed that the absence of a contractual duty for reconciliation negated claims of mitigation, while emphasizing the absolute liability of the petitioner for theft by its employees under the agreements, reinforcing principles of bailment.

JUDGMENT :

SANDEEP V. MARNE, J.

1) By this Petition filed under the provisions of Section 34 of the Arbitration and Conciliation Act, 1996, (Arbitration Act) Award of the learned Sole Arbitrator dated 3 May 2023 is sought to be invalidated. By the impugned Award, the Arbitral Tribunal has awarded sum of Rs. 25,05,79,968/- together with interest @ 18% p.a. upto 16 April 2016 in favour of the Petitioner. The Tribunal has also awarded sum of Rs. 23,26,05,022/- in favour of the Respondent. Petitioner is aggrieved by award of claim of Respondent in the sum of Rs. 23,26,05,022/- and has filed the present Petition.

Facts

2) Petitioner-Securitrans India Pvt. Ltd, (SIPL) is an incorporated entity engaged in the business of providing ATM cash replenishment services, cash delivery and pick up services and cash management and consultancy services. Respondent- FIS Payment Solutions and Services Pvt. Ltd. (FIS) is also an incorporated entity engaged in the business of providing financial technology solutions including ATM management services and ATM software services to retail and institutional banking industry.

3) Respondent, being a provider of financial technological solutions including ATM management services and ATM software services, entered into independent agreements with its customers which includes banks and financial institutions. Certain portion of services which were supposed to be provided by Respondent to the banks and financial institutions is sub-contracted. Petitioner being service provider of ATM cash replenishment services was outsourced part of contracts entered into between Respondent and Banks, namely the part relating to cash withdrawal and replenishment services to ATM centers serviced by the Respondent. Accordingly, Petitioner and Respondent entered into an Agreement on 16 August 2010, under which Petitioner agreed to provide cash withdrawal and cash replenishment services to the Respondent. The tenure of the Agreement was renewed from time to time and the same expired on 31 December 2014. On 4 June 2015, Petitioner and Respondent entered into a fresh agreement, under which again the Petitioner agreed to provide cash withdrawal and replenishment services to the ATM centers serviced by the Respondent. The detailed scope of services was set out in Schedule-A to both the agreements. The ATM centers at which services were to be provided were listed at Schedule-C. The agreement came into effect from 1 January 2015 and was to remain valid for initial period of 13 months with automatic renewal upto 21 January 2018. According to the Petitioner, it rendered services under the 2015 Agreement and raised several invoices since January 2015. However, Respondent failed and neglected to honour those invoices and the monies remained unpaid. According to the Petitioner, the total amount of unpaid invoices was Rs. 25,05,79,968/- with further interest payable thereon.

4) On 3 November 2015, representative of Respondent orally informed the Petitioner that it had received a loading difference of Rs. 16,12,50,000/- from Bank of India (BOI) for certain ATMs. On 4 November 2015, Respondent sent an email to the Petitioner stating that the loading difference of Rs. 16,12,50,000/- from BOI was in respect of the ATMs at Chauparan and Barhi. Petitioner was subsequently informed that similar shortage had been detected in resepct of ATMs located at Jhumritelaiya. On 5 November 2015, Respondent sent email to the Petitioner providing details of purported loading difference. On 8 Novemb