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TMI Blog2017 (4) TMI 1155X X X X Extracts X X X X X X X X Extracts X X X X ..... ills were raised by the appellant – Kamrup Industrial Gases Ltd., indicating payments claimable by the appellant. The bills raised also denoted the amounts deducted on account of the sale proceeds of the gases which the appellant could sell in the open market. For the reasons recorded above, we are satisfied, that the impugned order passed by the High Court deserves to be set aside. The same is accordingly set aside. We hereby affirm the determination recorded by the Arbitrator in his award, dated 18.4.2004. The civil appeal is allowed, in the above terms. - Civil Appeal No. 4249 of 2007 - - - Dated:- 11-4-2017 - CJI. Jagdish Singh Khehar, Dr. D.Y. Chandrachud And Sanjay Kishan Kaul, JJ. JUDGMENT Jagdish Singh Khehar, CJI. 1. An agreement dated 21.04.1965 was executed between the appellant-Kamrup Industrial Gases Ltd., and the respondent-Diesel Locomotive Works, Varanasi, for setting up a plant for manufacture of Oxygen gas and Acetylene gas, at the site of the Diesel Locomotive Works, at Varanasi. It is not a matter of dispute, that the aforesaid contract required the Diesel Locomotive Works, to lift a minimum of 18,000 cubic meters of Oxygen gas, and 2,500 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led to interest at the rate of 3% (Three Percent) per annum on the unpaid bills, being sum of ₹ 8,72,235.16P as pendente lite interest from March 6, 1989 till the deed of this Award. The claimant shall also be entitled to further interest at the rate of 6% (Six Percent) per annum on the said sum of ₹ 8,72,235.16P from the date of the Award till the date of decree or realization whichever is earlier; (6) As regards Claim No.6, the claimant will be entitled to ₹ 4,00,000/- (Rupees Four Lakhs) as costs of and incidental to these proceedings. 3. The Diesel Locomotive Works being dissatisfied with the award, approached the Calcutta High Court (hereinafter referred to as the High Court), under Sections 30 and 33 of the Arbitration Act, 1940. By an order, dated 19.04.2005, a learned Single Judge of the High Court, upheld the award, dated 18.04.2004. 4. Dissatisfied with the impugned award, dated 18.04.2004, as well as, the order passed by the learned Single Judge, dated 19.04.2005, the Diesel Locomotive Works preferred a further appeal under Section 39 of the Arbitration Act, 1940. A Division Bench of the High Court, by an order dated 27.04.2007, acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... drawn to the above proceedings, wherein it is inter alia recorded as under : Mr. Debal Banerjee, Counsel appearing for the Claimant, submits that the following set of documents have been formally disclosed on behalf of the Claimant and filed before the Learned Arbitrator on 10.8.89 :- 1) Statement for Production and Sale of Oxygen and DA Gas at IGL, Varanasi Branch during 1973, 1974, 1975. 2) Do- Certified by Auditors 3) Certificate from Inspector of Central Excise for Oxygen Gas cleared to IGL, Varanasi Branch on payment of Excise Duty for the Year 1973, 1974, 1975. 4) Annual Report Profit Loss A/c of IGL the years 1973, 1974, 1975. 5) Plant Reports showing daily production, Sale and Blow off of Oxygen and DA gas in IGL, Varanasi during July and August, 1973. 6) Letter written by IGL to DLW for upliftment of oxygen and DA gas and blow off of balance quantities of gases during the years 1973, 1974 and 1975. 7) Statement of Procurement, invoices, Performa invoices, store receipts etc. for purchase of Calcium Carbide by IGL, Varanasi Branch during 1973, 1974 and 1975. Mr. Banerjee further submits that the Xerox copies of the same s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned counsel for the appellant invited this Court s attention to the following observations, recorded in the impugned order, wherein, the High Court observed as under: The learned Arbitrator in the 190th Sitting appears to have framed the following amongst other issues. Did the claimant blow off the gases on DLW s account as alleged in their statement of facts? Surprisingly there is no such case made out by the Supplier in its Statement of Facts. Mr. Dasgupta, learned Advocate appearing for the Supplier was given time to find out the necessary pleading. He candidly confessed that no such pleading is there in the Statement of Facts. 11. The above factual finding of the High Court, has also been assailed by the appellant. We may notice, that it was also the submission of learned counsel for the Diesel Locomotive Works, that based on the agreement executed between the parties, the appellant had to inform the Diesel Locomotive Works, before Kamrup Industrial Gases Ltd., exercised the choice of emptying its cylinders (by blowing off the gases). In this behalf, it was the submission of learned counsel for the respondent- Diesel Locomotive Works, that no such i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Blown Off Statement and Closing Stock of the Claimant-Company. The Plant Reports are internal documents of the claimant, produced and proved by A.N. Jha in these proceedings. The other documents on which the claimant relies with regard to their case of blowing off of the gases are various bills submitted by the claimant in respect of the gases, both lifted and unlifted quantitites, made on the respondent. The claimant s Counsel has contended that though these bills were duly served on the respondent in accordance with Clause 7 of the Agreement, no objections were raised regarding the accuracy and/or contents of the said bills. (emphasis is ours) 13. Having perused the documents furnished by the appellant, at the asking of the Diesel Locomotive Works, and having perused the findings recorded with reference to the statement made by Shri A.N. Jha, before the Arbitrator (extracted above), we are satisfied, that on each occasion, before the shortfall of the gases were blown off, the appellant duly informed the Diesel Locomotive Works, and in that view of the matter, it is not possible for us to concur with the findings recorded by the High Court, that due intimation was not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt called one M. Singh as their only witness. The said M. Singh was the Senior Clerk working in the Stores Department of the respondent at the relevant time. He did not belong to the F.A. C.O. Department of the respondent and had no knowledge of affairs of the said F.A. C.O. Department. No one from the said F.A. C.O. Department or the General Manager s Office has been called by the respondent to contradict the deposition of Jha. Further, the respondent did not produce Receipt Register from the F.A. C.O. Department to controvert the evidence of Jha although the respondent s witness, the said M. Singh, deposed that the respondent maintained Receipt Registers at the relevant time. The respondent has adduced no evidence to rebut the testimony of Jha that the bills had been served on the respondent. I accept the evidence of Jha on this point. (emphasis is ours) Interestingly, there was no rebuttal to the assertions made by Shri A.N. Jha, before the learned Arbitrator. 14. For the reasons recorded above, we are satisfied, that the impugned order passed by the High Court deserves to be set aside. The same is accordingly set aside. We hereby affirm the d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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