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Showing contexts for: printing contract in Maharashtra State Co-Operative Cotton ... vs Ralli Bros. And Coney Ltd. And Ors. on 11 July, 1991Matching Fragments
39. The learned Counsel for the petitioners has then submitted that in any event the impugned award is liable to be set aside on the ground that the arbitrators committed misconduct by ignoring the material part of the contract and also awarding damages, although there is no proof of actual loss suffered by the respondents. In a gross and rare case, it may be possible for the Court to infer misconduct on the part of the Arbitrators by looking at the contract, even where a contract is not incorporated in the award e.g. where the prohibitory clauses in the contract barring the claim are ignored by the Arbitrators. Having regard to the facts and circumstances of this case, it is obvious to me that there was a bona fide dispute between the petitioners and the respondents regarding the interpretation of the various clauses of the contract and the resolution of the said interpretational dispute was within the scope and ambit of the arbitration clause. I am definitely of the view that the award takes a reasonably possible view. It has been argued by the learned Counsel for the petitioners that the Arbitrators appear to have attached importance to the printed clauses in the contract and ignored the typed clauses of the contract specifically incorporated therein. The learned Counsel for the petitioners has also submitted that the view taken by the appellate arbitrators is an impossible view and the only possible view could be to reject the claim of the respondent No. 1. I totally disagree. It is not possible to accept this submission of the learned Counsel for the petitioners. When the parties specifically provide for closing of the contract or an extension of the contract in a certain situation and incorporate substantive as well as machinery provisions of the Bye-laws of the East India Cotton Association Ltd. in the contract, I do not find it possible to hold that the Arbitrators have misconducted themselves or the proceeding in awarding the amount of compensation in the light of invoicing back rates fixed by the Committee . While awarding compensation, the Arbitrators need not disclose their reasons in the award and the award cannot be set aside merely on the basis of a conjecture that compensation awarded could not have been awarded except as a wrong view of law. The petitioners never challenged the invoicing back rates in spite of due intimation . The petitioners have also submitted that the petitioners could not supply the goods to the respondent. No. 1 by reason of non-registration of the contract by the Textile Commissioner and by reason of the quota being not available. The petitioners have, therefore, submitted that the doctrine of frustration was clearly attracted and no amount could be awarded as compensation by the Arbitrators to the claimants. The learned Counsel for the petitioners has also made certain submissions on the interpretation and applicability of the force majeure clause in the contract. It was rightly held by this Court in the judgment of Brother Pendse, J., dated 12th/13th of November 1984 in Arbitration Petition Nos. 55, 57, 59, 61, 63, 65 and 67 of 1984, The Maharashtra State Co-operative Marketing Federation Limited v. Paul Reinhart A.C. Company incorporated under the laws of Switgerland & others, that it was for the Arbitrators to decide as to whether the petitioners were excused for non-supply of the goods and whether the said clause was applicable. One comes across voluminous legal literature and several reported judgments of the Hon'ble Supreme Court indicating that in a given case the seller may be liable to pay damages if the seller is unable to supply the goods because of Government alrestrictions. The liability of the contracting party would depend on the nature and extent of stipulations in the contract. It all depends upon the determination of the question as to whether the seller has taken the absolute responsibility to supply the goods under the contract and the wording of force majeure clause in the contract read with other clauses. Thus it is impossible to accept the submission of the learned Counsel for the petitioners that the impugned original award suffered from error of law apparent on the face of the record. It is all of an indirect attempt on the part of the petitioners to seek judicial review from this Court on merits of the controversy beyond the permissible limits. If the alleged error of law is to be discovered by a process of reasoning which is debatable, such an exercise is not permissible in a petition under section 33 of the Arbitration Act, 1940. In my judgment, the petitioners have been unable to prove the alleged misconduct or alleged error of law apparent on the face of the original award or any other infirmity. I am recording the above view as an alternate finding although I am not concerned with validity of original award in view of its supersession by the Appellate Award and my finding in respect thereof as a non-speaking award.
49. I record an alternate finding, though not absolutely necessary, that the original award does not disclose any error of law apparent on face of the award. The Court cannot be invited to enter the arena of adjudication of main dispute and decide the merits of the controversy. There is no merit whatsoever in Ground No. 6(a) incorporated in the petition by amendment. The impugned award is not based on proposition of law referred to in the said ground. It appears to me that the plea of the petitioners, with respect, is entirely conjectural and unsupportable in law. I do not find in the Appellate Award any proposition of law of the kind attributed to the Arbitrators in the above-referred ground of challenge. The challenge made is thus conjectural and is liable to be rejected. The learned Counsel for the petitioners has submitted that the Arbitrators have misconstrued the contract by not appreciating that Clause 10 of the contract was liable to be read with Clause 14(c) thereof and Clause 11 thereof was liable to be read with Clause 12.2 thereof. The learned Counsel submits that the typed clauses in the contract prevail over the printed contract and the award suffers from error of law apparent on the face of there record as the Arbitrators have misconstrued the contracts. The learned Counsel submits that in any event the award is perverse. The learned Counsel submits that the Arbitrators are guilty of misconduct. The learned Counsel submits that the Arbitrators could not award damages without proof of loss merely on basis of "invoicing back rates" fixed by East India Cotton Association. The learned Counsel submits that the grant of damages merely on basis of invoicing back rates amounts to misconduct on the part of the arbitrators as well as the Board. I disagree. There is no merit in any of these contentions. The Bye-laws of the Association were expressly made part of the contract. The Bye-laws of East India Cotton Association Ltd. are statutory bye-laws and are binding on the parties. The Arbitrators were bound to give effect to the Bye laws. In any event, there is no question of judicial review by the Court in relation to interpretation of contract or on the subject of proof of quantum of damages. The Arbitrators are not guilty of any legal misconduct. These matters were exclusively within the jurisdiction of arbitration. The jurisdiction of the Court to set aside the awards is circumscribed by the Arbitration Act, 1940. The petitioners have not been able to establish any of the grounds of challenge within the permissible range of section 30 of the Arbitration Act, 1940.