Rambilas Agarwal vs Indian Oil Corporation Limited

Arindam Mukherjee, J

The Court: Affidavit of service and the supplementary affidavit filed in A.P. No. 588 of 2019 are taken on record.

A.P. No. 566 of 2011 is an application for setting aside of an award dated 31st March, 2011 under Section 34 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as 'the 1996 Act'). The said application is pending after completion of affidavits for about 8 years.

A.P. No. 588 of 2019 is a post award application under Section 9 of the 1996 Act filed by the petitioner in setting aside the application (for the sake of this application he is referred to as the applicant). In the Section 9 application the applicant has, inter alia, prayed for removal of the outfits belonging to the respondent, Indian Oil Corporation Limited (in short "IOCL") from the premises wherefrom the retail outlet of IOCL was operated by the applicant. In the section 34 application the petitioner (applicant) has made an interlocutory application being G.A. No. 2166 of 2019 wherein it has prayed for expeditious hearing of the Section 34 application.

In the arbitration proceeding initiated by IOCL, the arbitrator has awarded a sum of Rs.37,42,900/- on account of damages in its favour. The claim of IOCL in its statement of claim at paragraph 24 towards damages has been partly allowed. The claim of Rs.5,00,000/- on account of damages for the assets and properties including storage tanks, signages and dispensing units that are lying at the site claimed by IOCL was not allowed as the arbitrator felt that those articles did not sustain any loss. The rejection of part claims on account of damages by the arbitrator has not been challenged by the respondent (IOCL). The challenge to the award is by the applicant who alleges that the respondent (IOCL) is not entitled to even Rs.37,42,900/- awarded to it on account of damages/compensation.

The properties and assets which are lying at the premises wherefrom the retail outlet was operated had been inventoried by an Advocate/Receiver appointed by an order dated 13th July, 2004 passed in an application filed by IOCL under the provisions of Section 9 of the 1996 Act. It will appear from a copy of the dvocate/receiver that in the presence of the applicant namely, Rambilas Agarwal and representatives of IOCL, the Advocate/Receiver conducted the inventory on 17th July, 2004. In course of inventory the following assets were found ;

"1. Duo Dispensing Pump -------------one in number.

Underground Tank ------ as described by the representative of the IOC, the capacity of the tank in approximately 20KL. There are two Iron outlet cover;

Main Signage on the north-west corner of the Petrol Pump with electrical fittings in the `inner side."

The inventory of the articles has not been disputed by either of the parties. It is, therefore, evident that such articles should be lying at the premises wherefrom retail outlet use to be operated.

Under the agreement, the applicant is required to return the equipments supplied by IOCL for operating the retail outlet at his own expenses. In the application under Section 9, the applicant has prayed for removal of the equipments lying at the premises wherefrom the retail outlet use to be operated, at his own expenses.

The award relates to a money claim which has remained unexecuted as a deemed money decree due to pendency of the setting aside application. The award though is prior to the amendment of the 1996 Act brought with effect from 23rd October, 2015 but the prevailing legal position mandates that an award relating to money even though published prior to the amendment is required to be secured.

Considering the facts and circumstances of the instant case, I think that no interim order in the Section 9 application filed by the applicant can be passed before the principal money claim in the award under challenge is secured. The applicant is directed to secure the sum of Rs. 37,42,900/- by way of Bank Draft/ Demand Draft/ Pay Order/ Banker's Cheque in the name of the Registrar, Original Side, High Court, Calcutta. Such Bank Draft/ Demand Draft/ Pay Order/ Banker's Cheque is to be deposited within a period of ten days from date, failing which the interim order passed in favour of the applicant hereunder will stand automatically vacated. The Registrar, Original Side is directed to encash the Bank Draft/ Demand Draft/ Pay Order/ Banker's Cheque and keep the money invested in a short term interest bearing fixed deposit with any nationalized bank immediately upon deposit of the same. The applicant shall inform the respondent and its Advocate on record about the deposit.

The respondent (IOCL) within seven days from receipt of the intimation from the applicant as to the deposit of Bank Draft/ Demand Draft/ Pay Order/ Banker's Cheque shall hold a joint inspection and ascertain whether the items as mentioned in the inventory held on 17th July, 2004 are lying at the site. It is submitted on behalf of the applicant that the respondent IOCL has taken away the dispensing pump as mentioned in serial (1) of the inventory list. This, however, disputed by the respondent (IOCL). In the event the applicant furnishes sufficient proof as to removal of the duo dispensing pump by the respondent (IOCL) IOCL, without prejudice to its right, will take back the items lying at the premises wherefrom the retail out use to be operated. In the event the dispensing pump is not available but has not also been removed by (IOCL), the amount on account of such duo dispensing pump will be recoverable by IOCL subject to further orders of this Court. The removable of the items shall be caused by the applicant at his expresses and IOCL shall render all necessary assistance.

On the applicants securing a sum of Rs. 37,42,900/- the award dated 31st March, 2011 shall remain stayed.

Let all the applications, being AP 566 of 2011, AP 588 of 2019 and GA 2166 of 2019 appear before the appropriate Bench on any day after 23rd December, 2019 subject to the convenience of such Bench.