Andhra HC (Pre-Telangana)
Food Corporation Of India, ... vs Tolani Shipping Co. Ltd., Bombay on 15 February, 2000
Equivalent citations: 2000(2)ALD709, 2000(2)ALT554, 2000(69)ECC780
JUDGMENT
1. This civil miscellaneous appeal has been filed by the Food Corporation of India against the order of the Principal Subordinate Judge, Visakhapatnani, in OP No.349 of 1988 dated 19-3-1994 in confirming the award of the umpire for payment of Rs.1,70,945-80 ps., along with interest at the rate of 12% p.a., from the date of the decree to the date of the realisation payable by the appellant to the respondents.
2. The brief facts of the case are that the respondent-M/s. Tolani Shipping Company Limited, Bombay, by a Charter Party dated 11-3-1983 chartered their vessel M.V. Prabhu Satram to the appellant-the Food Corporation of India. Disputes arose between the parlies under the said Charter Party which were in pursuance of the Clause 56 of the Charter Party referred to the arbitration. The respondent claimed a sum of Rs. 1,70,945-86 ps., along with 18% interest p.a., towards demurrage earned by their vessel at the load port, Port Land, United States of America and towards the demurrage earned at the discharge port, Visakhapatnam. The demurrages earned at the load port calculated at Rs.43,972-22 ps. and demurrage earned at the discharge port calculated at Rs. 1,03,494-44 ps. The demurrage earned at Port Land, USA has not been disputed but only the dispute has been raised with regard to the amounts of the demurrage earned at the discharge port at Visakhapatnam. The contention of the appellant before the arbitrator, Court below and before this Court is that the vessel arrived at Visakhapatnam Port and the import manifest was delivered on 15-6-1983 and the ship was anchored at berth on 17-6-1983 and the notice of readiness was served on the appellant on 17-6-1983 itself, but the Customs clearance was granted and ship was granted inward entry on 27-6-1983 and since the notice of readiness was given on 17-6-1983 itself, the claim of Ihe respondent claiming the compensation of lay time commenced from 24 hours after 17-6-1983 but not 27-6-1983. The contention of the appellant that the lay time commenced only 24 hours after 27-6-1983 when the inward entry was granted has not been accepted by the umpire and the Court below. The umpire and the Court below by considering the relevant provisions of the Customs Act, notifications, rulings of English Courts and the Bombay High Court held that the notice of readiness tendered by the respondent on 17-6-1983 is valid and the amounts of demurrage earned as claimed by the respondent was justified. The only question fallen for consideration before the umpire and the Court below was whether the notice of readiness tendered by the respondent on 17-6-1983 was valid and the said question was answered in favour of the respondent.
3. The learned Counsel for the appellant argued that the lower Court erred in holding that the calculation of lay time for assessing the demurrage commences from 'prior entry' of vessel instead of 'final entry' after the inward entry was granted by the Customs authority under Sections 30 and 31 of the Customs Act and the said decision of lower Court is contrary to the provisions of the Customs Act. It is further argued that the lower Court erred in relying upon an unreported decision of the Bombay High Court in arbitration proceedings No.38/88 and erred in not following the English decisions. There is no ground in the grounds of appeal as to how the umpire misconducted himself or the proceedings and no specific ground has been taken stating that the umpire committed a legal misconduct. The umpire by a well reasoned award dated 11-8-1990 after considering the English decision with reference to the provisions of the Customs Act and the notifications issued thereunder and the clauses of the Charter Party, independently considered the point raised before him as per the practice, customs and the notifications and the actual facts and situation at the relevant point of time, held that the term 'entry inwards' bearing in clause 39(c) of the Charter Party can only mean that the entry by the person incharge of the conveyance at the Customs House by way of prior entry, and therefore, confirmed the claim of the respondent with regard to the lay time calculated for the discharge port and arrived at Rs. 1,03,494-44 ps., as demurrage accrued to the vessel. As already stated the appellant has not disputed or raised any objection with regard to the sum of Rs.43,972-22 ps., towards demurrages earned at the load port, Port Land, USA, for the vessel. There is also no dispute with regard to the retention amount of Rs.23,479-20 ps., due by the appellant to the respondents and thus tlie award was made directing the appellant to pay a total sum of Rs. 1,70,945-86 ps., along with interest at the rate of 12% p.a.
4. The learned Principal Subordinate Judge, Visakhapatnam, also considered the contentions of Ihe appellant in detail and after considering the relevant provisions of the Customs Act, notifications and the judgments of the English decisions and while distinguishing the English decisions relied upon a judgment of the Bombay High Court in the case of Food Corporation of India v. Great Eastern Shipping Company Limited, in Arbitration Petition No.38/88 against which an appeal was preferred in Appeal No.316 of 1989 which was also confirmed by a Division Bench of the Bombay High Court by order dated 24-2-1992 holding that an award cannot be set aside unless there is an error apparent on the face of the award or the arbitrator misconducted or acted mala fide. It is not permissible for the learned single Judge to examine several contentions both of facts and law on record, while exercising the jurisdiction under Section 30 of the Arbitration Act. The enquiry under the provisions of Section 30 of the Arbitration Act is extremely limited and it is not permissible to agitate several questions of fact and law.
5. The award of the arbitrator is a speaking and well considered award and which has been rightly confirmed by the lower Court and considering any of the contentions of the learned Counsel for the appellant, I have no hesitation to hold that the arbitrator is not guilty of legal misconduct and submissions of the learned Counsel for the appellant are without any merit and the charge of the legal misconduct against the arbitrator is without any substance.
6. The learned Counsel for the respondent cited several decisions. Some of them are as follows : Ms. Hindustan Tea Co. v. M/s. K. Sashikanth & Co., , State of Orissa v. Dandsi Sahu, , Purl Construction Pvt. Ltd v. Union of India, , M/s. Sudarsan Trading Co. v. Government of Kerala, , Gujarat Water Supply and Water Sewerage Board v. Unique Erectors (Gujarat) Pvt. Ltd., and Food Corporation of India v. Joginderpal Mohinderpal, . In the case of M/s. Hindustan Tea Co., it was held by the Supreme Court that under law, the arbitrator is made the final arbiter of the dispute between the parties, the award is not to challenge on the ground that the arbitrator has reached a wrong conclusion or has failed to appreciate the facts. In the case of Food Corporation of India, the Supreme Court held that it is not necessary for the Court to examine the merits of the award with reference to the materials produced before the arbitrator and the Court cannot sit in appeal over the views of the arbitrator by examining and re-examining the materials. In the case of Puri Constructions Pvt. Ltd, the Supreme Court held that when the Court is called upon to decide the objections raised by a party against an arbitration award, the jurisdiction of the Court is limited, as expressly indicated in the Arbitration Act and it has no jurisdiction to sit in appeal and examine the correctness of the award on merits. In the case of M/s. Sudarsan Trading Co., it was held by the Supreme Court that if on a view taken of a contract, the decision of the arbitrator on certain amounts awarded, is possible view though perhaps not the only correct view, the award cannot be examined by the Court. In the case of Gujarat Water Supply and Sewerage Board (supra), it was held by the Supreme Court that the Court cannot interfere with the reasonableness as such of an award unless the award is per se preposterous or absurd. It is difficult to come to an exact definition of the word 'reasonable'. Reason varies in its conclusion according to the idiosyncrasy of the individual and the time and the circumstances in which he thinks. In the case of State of Orissa v. Dandasi Sahu, it was held by the Supreme Court that it is well settled that when the parties choose their own arbitrator to be the Judge in dispute between them, they cannot, when the award is good on the face of it, object to the decision either upon law or on facts. Therefore, when the arbitrator commits a mistake either in law or in fact in determining the matters referred to him, where such mistake does not appear on the face of the award and the documents appended to or incorporated so as to form part of it, the award will neither be remitted nor set aside.
7. Thus, on considering rival contentions, I do not see that there is any legal misconduct on the part of the arbitrator and the learned Principal Subordinate Judge rightly upheld the award of the arbitrator under Section 30 of the Arbitration Act.
8. Accordingly, the appeal fails and it is dismissed without costs. The decree in terms of the award subject to the modification as regards interest directed by the Principal Subordinate Judge, Visakhapatnam, on the decretal amount at the rate of 12% from the date of the decree of the Court of the Principal Subordinate Judge, Visakhapatnam i.e., 19-3-1994 till the date of realisation is confirmed.