JUDGMENT

Sujoy Paul, J. - This appeal filed under Section 37 of Arbitration and Reconciliation Act, 1966 (hereinafter referred as 'Arbitration Act') assails the order dated 25.06.2022 whereby the application preferred by the appellant under Section 9 of the Arbitration Act was rejected by the Court below.

2. In short, the admitted facts between the parties are that the appellant is a transporter and having licence and contract of plying 2 Oil Tankers. The terms and conditions to supply the tankers are specifically laid down.

3. The appellant's tankers were suspended by order dated 29.05.2021 (Annexure P/4). The same was followed by show cause notice dated 15.07.2021 (Annexure A/6). In turn, the appellant filed its reply to the show cause notice on 04.08.2021 (Anexure A/7) followed by reminder letter No.1 dated 05.09.2021 (Annexure A/8).

4. By the impugned order dated 07.10.2021 (Annexure A/9) passed by the respondent/Corporation, one Tanker of appellant was blacklisted and in addition, a damage of Rs.1,00,000/- was also imposed on the appellant.

5. The appellant feeling aggrieved by the suspension order and order of blacklisting, filed the application under Section 9 of the Arbitration Act before the Court below.

6. The respondents upon receiving notices, submitted their reply.

The Court below heard the parties, rejected the application by impugned order dated 25.06.2022 which is called in question in the present appeal.

7. Ms. June Choudhary, learned Senior Counsel assisted by Ms. Jayalaxmi Aiyer, learned counsel for the appellant submits that the impugned order of suspension dated 29.05.2021 and order of blacklisting and imposition of damages dated 07.10.2021 are called in question mainly on three counts. Firstly, the impugned orders were passed without properly following the principles of natural justice. Secondly, the impugned orders are disproportionate and harsh in nature and thirdly, the appellant was subjected to hostile discrimination, if his case is tested with the case of another dealer namely M/s.Nathmal of Shahdol.

8. To elaborate, learned Senior Counsel submits that the appellant's tankers were suspended and thereafter show cause notices were admittedly issued to him. However, before passing the final order of blacklisting and imposition of damages, the petitioner was not given any personal hearing. For this purpose, the judgment of S.S. Perumal Vs. The Senior Regional Manager, Hindustan Petroleum Corporation Ltd. passed by Madras High Court on 22nd July 2016 and judgment of the Supreme Court in Kulja Industries Ltd. v. Western Telecom Project BSNL, (2014) 14 SCC 731 were relied upon. Thus, first contention is regarding procedural impropriety in the decision making process.

9. The next submission is that no loss was caused to the corporation because of alleged tampering of one lock of one Tanker of the appellant. Every Tanker has two locks, if one was found tampered, in absence of any material to show that any loss is caused to the corporation, the penalty of blacklisting coupled with damages is harsh and excessive and amounts to imposition of double punishment.

10. Lastly, a comparison is drawn with one M/s. Nathmal Sarogi of Shahdol for which pleadings are mentioned in Para-11 of the application filed under Section 9 of the Act. It is argued that the Court below has committed an error in rejecting the application under Section 9 of the Act.

11. Learned counsel for the Corporation, Shri Naveen Salunke urged that the application under Section 9 itself was not maintainable. Section 9 talks about 'interim measure' whereas the relief claimed in the application under Section 9 clearly shows that the appellant prayed for setting aside the suspension order dated 29.05.2021 and blacklisting order dated 07.10.2021. Although, Court below has not gone into these aspects, the fact remains that the application was not maintainable.

1