Delhi High Court
Mool Chand Shyam Lal vs The Food Corporation Of India And Anr. on 4 December, 1990
Equivalent citations: 1991(1)ARBLR151(DELHI), ILR1990DELHI475, 1991RLR45
JUDGMENT P.N. Nag, J.
(1) The petitioner in this petition under Section 20 of the Arbitration Act, 1940 has prayed that the respondent should be directed to file the Arbitration Agreement in the Contract viz-. Clause 15 Annexure 'A' of the Tender and thereafter order reference of the disputes and differences mentioned in Enclosure I to the Notice dated 14-6-1980 to Arbitration with the deletion of Items (g) and (h) therein.
(2) The petitioner which is a partnership firm duly registered under the Partnership Act, vide contract No. 10(1)1 78-C Xi, dated 5-1-78 agreed to supply of wheat flour (Maida)for export to Vietnam, subject to the terms & conditions contained in the contract. The petitioner on account of various reasons mentioned in the petition could not supply the wheat flour (Maida) within the stipulated period and wanted extension of time to enable them to complete the sullies of the contracted quantity of 2000 M. T. out of which supplies 1200 M. T. had already been supplied. In the meanwhile the prices of wheat were increased by the respondents. Consequently the petitioner also raised their claim in terms of the notice dated 14-6-1980 and also in this notice they enumerated various disputes in paragraph No. 19. Further the petitioner also referred to the arbitration clause 15 and requested the respondents to appoint an arbitrator in terms thereof to settle the disputes enumerated in paragraph No. 19 of the notice. At this stage, it may be stated that the petitioner has not referred to all the disputes enumerated in paragraph 19 of the afore-mentioned notice in the petition. However, certain disputes referred to in paragraph 19 of the notice do find place and reference in various paragraphs of the petition. For example, there is reference of claim (a) regarding the claim of refund of security deposit realised by F. C. 1. illegally encashing the bank guarantee on 27-3-1979- Rs. 30,000 in paras 2 and 13 of the petition. Similarly there is a reference of claim (g) and (h) regarding C. S. T. at 3% on a quantity of 2339.57 M. T. valued as Rs 37.68,867- Rs. 1,13,066.03 and interest on (g) above up to 31-5-80- Rs. 38,256.12 respectively ia the paragraph 17 of the petition. Paragraph 6 of the petition also refers to claim (i)i.e., 4% Sales-tax on 494.578 Mt of imported red wheat supplied by pa up to 31-8-78 (Rs. 6,18,222.50)-Rs. 24,728.90. This is not disputed by the learned counsel for respondent as well. The reference of aforementioned dispute in various paragraphs of the petition do indicate that disputes have been out of the terms of the contract, and these disputes can also be related to other disputes as well mentioned in the notice and can bo gathered from the petition. Since no arbitrator was appointed by the respondents, the present petition has been filed for appointment of the arbitrator to settle the disputes between the parties.
(3) The petition is opposed by Mr. Mac, learned counsel for respondents, vehemently on the ground that the petitioner has nut enumerated the various disputes in the petition and in the absence of which the application is not in accordance with the law. The disputes referred to in the notice dated 14-6-1980 (Enclosure ('1') is not a part of the pleadings and therefore, these disputes cannot be considered as the disputes which can be referred to the arbitrator. Strong reliance has been placed by him in case of M/s. Rai Bahadur Basakha Singh &Sons (Contractors) Pvt. Ltd. Vs. M/s. .Indian Drugs & Pharmaceutical Ltd. decided by Justice Sultan Singh of this Court wherein it has been held that where an applicat-'on for filing arbitration agreement does not contain the particulars of items of disputes to be referred, reference to arbitrator cannot be made. Plea that copies of notice and other documents accompanying the petition contain the particulars of dispute is not available as those documents do not form part of the petition. In the absence of such a pleading, the application cannot be said to be in accordance with law. In this case as already stated above, certain disputes, in fact have been referred to in the petition which also find mentioned in the notice and can also relate to other disputes referred to in the notice. However, in the case relied upon by the learned counsel for respondents, there appears to be no mention of disputes in the petition which are required to be referred to the arbitrator and therefore, this case is distinguishable. Since in this case there is a mention of disputes which have arisen out of the 479 agreement no cause on merits has been shown by the respondents against the appointment of arbitrator. I see no reason why the matter should not be referred to the arbitrator. In this connection, it is relevant to refer to M/s. Siddhu Construction Company Vs. Young Women's Christian Association of Delhi Arbitration Law Reporter page 231, (2) wherein Justice Mahesh Chandra has held that it is a rule of prudence and not a rule of law that details of dispute should be mentioned in the plaint. If the dispute can be gathered from the plaint, the requirement is satisfied. There is no specific from either in the Arbitration Act or in the Civil Procedure Code for describing the dispute in the plaint.
(4) In the present case at the cost of repetition it may be reiterated that from the petition it is apparent that disputes have arisen under the terms of agreement between the parties and certain disputes have been referred to in the petition and further other disputes referred to in the notice can be gathered from the plaint, the requirement of describing the details of the disputes in the petition are completely satisfied and. the matter therefore, required to be referred to the arbitrator. Reference may be again made another case M/s. P. C. Sharma & Co. Vs. Delhi Development Authority, Arbitration Law Reporter page 13, wherein this Court (3) has held that when the dispute between the parties is covered by .the arbitration agreement and no cause is shown why arbitrator should not be appointed,, disputes shall be referred to arbitrator under the agreement.
(5) Having regard to all the circumstances in view, T am of the opinion that disputes & differences have arisen between the parties out of the contract dated 5-1-1978 entered into between the parties and this agreement subsists and under Clause 15. all such disputes and differences are required to be referred to the arbitrator to be appointed by the respondents.
(6) I, accordingly, .therefore, direct the respondents to appoint an arbitrator in accordance with Clause 15 of the Arbitration Clause contained in the Agreement dt. 5-1-1978 and make an award in respect of the disputes mentioned in, the petition & in Enclosure T to the notice dated 14-6-1980 annexed with the petition. The respondents shall appoint the arbitrator within two months. Petition stands disposed of accordingly.