1982-COMPLJ-2-291 , 1983-CALWN-87-61 , 1983 (TLS)517068

HIGH COURT OF CALCUTTA

Coram : Pratibha Bonnerjea

Award Case 230  Of  1981

(JULY 08, 1982)

INDIAN IRON AND STEEL CO. LTD. VS. C. G. ENGINEERING PRIVATE LTD.

PRATIBHA BONNERJEA, J.

( 1 ) THIS is an application for setting aside the award No. CG/19/79/381 dated 2-9-1981 made and published by the Tribunal of Arbitrators of Indian Chamber of Commerce.

( 2 ) THE petitioner is a manufacturer of iron and steel materials and the respondent is a dealer of iron and steel materials as well as of Galvanized corrugated sheets. Since July 1973, the respondent has business transactions with the petitioner's branch in Calcutta. On 15-12-76, the petitioner allotted in favour of the respondent 2 wagons of defective G. C. Sheets 0. 63 mm. and 2 wagons of defective B. P. Sheets 16/24 G to be supplied on a "priority" basis from Burnpur Works. Two works orders being MDS/ W. BEN/a/10685 and MDS/w. BEN/a/ 10686 both dated 29-12-T6 were issued by the petitioner in favour of the respondent. After all the formalities were completed, the petitioner despatched 2 wagons of defective B. P. Sheets against works order No. A10686. It is the respondent's case that the petitioner failed and neglected to despatch 2 wagons of defective G. C. Sheets of 0. 63 mm. against works order No. A 10685 dated 29-12-76. Due to the aforesaid breach of contract by the petitioner, the respondent suffered damage. In terms of Clause 24 of the works order, the respondent referred the dispute for arbitration of the Indian Chamber of Commerce. The respondent filed a statement of claim, claiming damage of Rs. 43,400 being the difference between the agreed price and the market rate of the goods. The petitioner then filed an application under Ss. 5 and 33 of the Arbitration Act in the City Civil Court praying for a declaration that there was no binding arbitration agreement between the parties and obtained an order of injunction restraining the respondent from proceeding with the reference. The respondent applied for revision of the said order of injunction by this Court and by an order dated 15-12-1980, the said order was set aside holding that the arbitration clause was binding and the Arbitrators were competent to decide the claim for damage referred to them. Under the circumstances, the petitioner filed its counter-statement on 11-2-81 denying the respondent's claim for Rs. 43,400. On 28-2-1981 the respondent filed its rejoinder. By a letter dated 3-3-81 the petitioner was intimated by the Tribunal that they had received the final statement from the claimant and no further statements from the parties were called for. This letter is annex. 'b' to the petition. On 12-5-81, the respondent submitted before the Arbitrators an amended statement

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of claim introducing a claim for specific performance of the contract No. A 10685 dated 29-12-76 by specific delivery of 2 wagons of defective G. C. Sheets. According to the petitioner, the Tribunal of Arbitrators without any notice to the petitioner and without hearing them, allowed the said amendment ex parte by accepting the amended Paras 19 (a) and 19 (b) of the respondent's statement of claim. By a letter dated 13-5-81, the Tribunal informed the petitioner that they had received an amended statement of claim from the respondent and sent a copy of the same to the petitioner but did not direct the petitioner to file any counter-statement dealing with the amended portion. On 14-8-81, the Arbitrators held a sitting, heard the parties and made and published their award on 2-9-81 directing specific delivery of 2 wagons of goods under works order No. A 10685 dated 29-12-76. The award was duly filed and notice of filing of the award under Section 14 (2) of the Arbitration Act was received by the petitioner on 24-12-81 The present application was taken out by the petitioner for setting aside the said award on 9-2-82 which is clearly beyond 30 days fro