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Judgment
Vipin Sanghi, J.—The present appeal is directed against the order dated 01.11.1999 passed by the learned Single Judge whereby the appellant�s application being I.A. No. 10658/98 u/s 34(3) of the Arbitration and Conciliation Act (the Act) seeking condonation of delay in filing objections (under Section 34 of the Act) to the arbitral award dated 21.05.1998 has been dismissed, and consequently OMP No. 267/98 being objections u/s 34 of the Act have also been dismissed.
The award itself records that the parties agreed that the proceedings to be treated as under the Act.
The impugned order reveals that none appeared for the petitioner when the application for condonation of delay of 21 days was taken up for consideration by the Court. Once again, none has appeared for the appellant. Since the delay was less than 30 days which is condonable by the Court, we have proceeded to examine the award on our own on merits by condoning the delay and setting aside the order of the learned Single Judge of dismissal for default.
The respondent was engaged as a milling contractor for conversion of wheat into atta, flour, suji and gram by the appellant vide agreement dated 2.8.1991 for a period of three years w.e.f. 30.11.1991. A large quantity of brans, jute bags and gunny wrappings in which wheat was being supplied and its products was to be packaged was supplied to the respondent. These got accumulated at the respondent�s premises for which the respondent was made responsible under Clause 9(a) of the agreement. The appellant was not taking back these bags and it continued to remain stored at premises of the respondent. Despite repeated notices, these bags were not taken back. Evidently, the respondent disposed of these bags. The appellants made a claim towards cost of the bags for Rs. 33,28,934/-. The learned Arbitrator after taking note of the notices sent by the respondent calling upon the appellant to remove the bags lying at their mill and the fact that these bags were disposed of for Rs. 1,33,600/- by the respondent, allowed the claim of the appellant only to the extent of Rs. 1,33,600/-. The following counter-claims of the respondent were also allowed:
The claim of the Respondent for Rs. 21 lacs for closure of mill from 1.12.94 upto 30.6.95 because of non-lifting of stock is allowed for Rs. 2.5 lacs per month from 1.1.95 till 30.5.95 aggregating Rs. Fifteen lacs for the aforesaid reasons.
The claim of the Respondent for security staff for watch and ward of claimant�s stock at Rs. 12,000/- per month is allowed for the period claimed and therefore allows the sum of Rs. 84,000/- as claimed by the Respondent.
The rent claimed by the Respondent for keeping in their godown for the period from 1.12.94 till 30.10.95 at Rs. 50,000/- per month is allowed for the aforesaid reason but since Respondent has only claimed Rs. 3,50,000/- I allow only Rs. 3,50,000/-.
The claim of the Respondent for insurance stock is allowed for Rs. 6,000/- as claimed by the Respondent and proved by the Respondent.
The cost of jute twine malethene and celphose tablets provided by the Respondent on loan basis is allowed and claim of Respondent for Rs. 2,95,000/- in this regard is payable by the claimant as admitted by the Claimant.
The claim of Respondent of refund of earnest money of Rs. 1 lac and last bill of Rs. 1,83,464/- is allowed an being payable by the claimant and not denied by the claimant during hearing.
The learned Arbitrator also awarded interest at the rate of 18 per cent from 1.7.1995 when notice was issued to the appellant till the actual payment.
The award shows that the learned Arbitrator has returned a finding of fact that the respondent had put the appellant to repeated notice for removal of the bags and despite these notices, bags were not removed. The respondent was not obliged to continue to store the bags at its premises for an indefinite period as the contract was for milling and not for storing bags which was only incidental to milling and once the milling contract was over the question of keeping these bags did not arise. They were required to be lifted by the appellant as soon as possible. On the facts and circumstances the learned Arbitrator thought it fit that it was reasonable for the respondent to store the goods for one month only. According to him no explanation was furnished by the claimant as to why the stores were not removed immediately even after notice dated 16.07.1995 served upon them. For these reasons the counter-claims of the respondent were allowed.
It is not clear how the appellant could state that the Arbitrator has erred in allowing the claim of the appellant to the extent of Rs. 1,33,600/- and how the Arbitrator has erred in allowing the aforesaid counter-claims of the respondent. Consequently, we find no merit in this appeal, which we have proceeded to consider on merits on the assumption that the delay of 14 days should have been condoned by the learned Single Judge. Dismissed.