R.L. Gupta, J.@mdashThis judgment will dispose of Suit No. 2761/91 and Suit No. 3947/91. The proceedings in the first suit were commenced on an application under Sections 14, 17 and 29 of the Arbitration Act on behalf of the petitioner, claimant wherein it stated that the parties had certain dispute relating to acceptance of tender No. WL-5/225/2/4/278/81-71/23.12.1983/Bulked/65/156/COAD dated 15.6.1984. The second respondent Ms. Shiv Kumar was appointed as an Arbitrator, who gave his award dated 22.7.1991.
2. Notice of this suit was issued to the Arbitrator directing him to file the award Along with the proceedings. It appears that later on the Arbitrator himself filed the award Along with the proceedings on the basis of which the second suit was registered. After the filing of the award, notice was issued to Union of India respondent to file objections, if any against the award within the statutory period. The present abjections, in the shape of I.A. 4655/93 were filed in behalf of Union of India under Sections 30 and 33 of the Arbitration Act. It was stated in the objection petition that Director General. Supply and Disposal (DGS & D) had invited tenders for barrack blankets required by Inspector General of Police, Manipur and Assam Rifles. The tender of the petitioner claimant was accepted. A formal order dated 15.6.1984 was placed for supply of 18,750 barrack blankets at a order dated 15.6.1984. The stipulated date of performance was 15.10.1984. The security deposit of Rs. 24,044/- payable by 15.7.1984. was not made. Extension of time was also granted up to 31.10.1984. ultimately, it appears that the barrack blankets were not supplied. So there were disputes between the parties, which led to a reference to the Arbitrator and the consequent award.
3. The main objection taken up by Union of India is that they had raised a counter-claim of Rs. 94,075/- on the basis of an accepted tender No. WL-5/182 dated 18.7.1984, which was placed round about the date of breach, on M/s. Orissa Small Scale Industries Corporation at the rate of Rs. 84/- F.O.R. Cuttack as against the defaulted A/T rate of Rs. 78.48 paise, Rs. 78.98 paise and Rs. 79.48 paise as per slab wise quantity respectively. According to Union of India, this amount should have been allowed by the Arbitrator, which has been wrongly disallowed. The petitioner claimant controverter these allegations by filing reply to these objections.
4. The following issues were framed :
(1) Whether the award is liable to be set aside on the grounds mentioned in the objection petition, being I.A. 8905/937 (Inadvertently recorded for I.A. No. 4655/983.
(2) Relief.
5. The parties chose not to lead any evidence and sought permission to refer to the the Arbitration proceedings during the course of arguments. I have heard arguments advanced by learned counsel for the parties.
6. Learned Counsel for the petitioner submitted that the Arbitrator should have allowed the damages claimed by Union of India as per an order placed by Union of India in respect of similar stores on 18.7.1984 on M/s. Orissa Small Scale Industries Corporation at the rate of Rs. 84/- E.O.R. Cuttack. According to the learned counsel, if this counter-claim had been allowed, then the equal amount withheld by the department of Union of India would not have become payable to the petitioner claimant and R would have been squared off against the claim of the petitioner claimant. Learned counsel for the petitioner claimant, however, drew my attention to and authority of the Hon''ble Supreme Court in the case of
7. It may further be noted that neither any counter-claim was made by Union of India before the Arbitrator not before this court that after the breach committed by the petitioner claimant, the department of Union of India tried to procure the same stores from any other supplier F.O.R. Panipat. I called upon the learned counsel for Union of India to point out whether the stores which were to be supplied by the petitioner claimant were ultimately procured by the department or not. Learned counsel for Union of India is not at all aware of this position and, Therefore, it can be said that no damages at all were even suffered by Union of India against the breach of contract committed by the petitioner claimant. In the totality of the situation, Therefore, I am of he view that the award given by the Arbitrator is not liable to be assailed, even otherwise the alleged sufferance of damages by Union of India was a question of fact and the Arbitrator has given quite congent reasons for not allowing the counter-claim of Union of India. There is no error apparent on record. I, Therefore, do not find any merit in these objections and the award is not liable to be set aside for the grounds taken up in this I.A. The issues are accordingly decided.
8. Relief. The result Therefore, is that the objection petition is dismissed. The award is made a rule of the court. A decree sheet shall be drawn up in accordance with the award. The petitioner claimant shall also be entitled to interest @ 12% p.a. from the date of the decree till realisation. Both the suits are disposed of accordingly.
