C.S.KARNAN, J The claimant in O.P.No.30 of 2003 on the file of this Court is the appellant herein.
2. The appellant has claimed in the said O.P that he entered into a consignment agency agreement on 05.07.1995 with the first respondent, who is a manufacturer of steel tube fittings both black and galvanised at Calcutta and that the said agreement stipulates that the price of the goods to be sold by the appellant shall be set out as per the despatch advices and the price at which goods to be sold continued to be the subject matter of discussions even after two years of correspondence. According to the appellant, he had invested a sum of Rs.16,13,470/- in connection with the business with the first respondent. On his letter dated 03.05.1996 to the first respondent, the appellant has specified the minimum requirement and the minimum range regarding supply by the first respondent. The supply of item between 11.07.1996 and 16.09.1996 by the first respondent is not to the demand and satisfaction of the appellant. Therefore, the appellant by letter dated 03.01.1997, taking into account ground reality, has revised his inventory of stock to be held by him for the commencement of consignment agency business and sent a fresh list of stocks to be transferred to the first respondent before commencement of the same at Coimbatore. The first respondent was keeping quiet for 1-1/2 years and thereafter asked the appellant by letter dated 16.01.1997 to commence the business with the available stock. Therefore the appellant called upon by letter dated 05.02.1997 the first respondent to send back the declaration Form-F and collect the materials. The first respondent by letter dated 10.02.1997 claimed that the appellant's decision to call off the agency agreement was a unilateral one and wanted him to continue business with the available stocks. This led to the appellant for moving this Court in O.P.No.467 of 1997 for appointment of Arbitrator and Mr.Justice A.Abdul Hadi was appointed as Arbitrator on 14.07.1998. The appellant submitted his claim before the Arbitrator on 18.09.1998, since the respondents have chosen to remain exparte. Therefore, they have filed before this Court, Application Nos. 2277, 2278, 2279 and 2280 of 1999 for removal of Arbitrator, for direction to return the excess fee, to stay all further proceedings and for an interim injunction restraining the Arbitrator from giving away the keys of the godown to the appellant. Aggrieved against the dismissal of all those applications by this Court by common order dated 18.04.2001, the first respondent has filed Appeals in O.S.A.Nos.395 to 397 of 2001 which were also dismissed on 28.02.2002. This led to the first respondent filing Special Leave Petition and finally, the Arbitrator had proceeded with the enquiry. An Advocate Commissioner was appointed and he took inventory of the entire stocks. The first respondent moved the Arbitrator for return of the keys of the godown and the same was granted by the Arbitrator on 06.10.2001. The first respondent has approached Court in CMA.No.1497 of 2001 challenging the order dated 06.10.2001. The said CMA was dismissed on 31.01.2002. The respondents therefore moved the Supreme Court in SLP No.4457 of 2002 and obtained order of stay of order dated 06.10.2001, however, there was a direction for the sale of the goods through an Advocate Commissioner.
3. According to the appellant, after the proceedings were over before this Court and the Supreme Court, the first respondent did not appear and therefore, finally after several hearings, he was set exparte by order dated 08.06.2002. Therefore, the evidence of the appellant was recorded by the Arbitrator and arguments of the Appellant's counsel was heard and orders were reserved by the Arbitrator. To the shock and surprise of the appellant, by order dated 09.08.2002, the Arbitrator dismissed his claim petition but allowed a portion of the counter claim of the first respondent. Even though the appellant has paid the fee of Rs.10,000/- to the Arbitrator, he had imposed upon him a cost of Rs.1500/- for his delay and non-participation in the proceedings. However, while the first respondent remained exparte by order dated 08.06.2002, he was given time to make up payment in arrears within a stipulated time and then participate in the proceedings. Inspite of it, the first respondent did not comply with the request of the Arbitrator. But, the second respondent granted a decree in favour of the first respondent, who has not substantiated his claim by participating in the proceedings. Even though the Arbitrator directed that the costs and expenses to be shared equally, he has fixed only a sum of Rs.5000/- as Arbitral fee for the first respondent, whereas he has collected Rs.10,000/- from the appellant, shows the prejudicial mind of the Arbitrator. The award is in total ignorance of the provisions of Tax Statutes. The appellant, therefore, has prayed for setting aside the award dated 09.08.2002.
4. The first respondent has filed a counter and contended that the appellant did not complain about the award before the Supreme Court in SLP.No.4457 of 2002 and he admitted that the award has been published that the Arbitrator has considered the case on merit taking into account the statement of defence and the documents referred to therein, the proof affidavit of the appellant and the documents relied on by him and there is no merit in the O.P.
5. Learned Judge along with O.P. took up Application No.4973 of 2003 filed by the appellant to raise additional grounds in the O.P and Application No.4141 of 2005 filed by the first respondent for a direction for return of the goods by the appellant and disposal of them by common order dated 13.6.2006 by holding that this Court cannot re-appreciate the evidence to take a different view as this Court is not an Appellate Court, that engrossing the award on a Stamp Paper subsequently will not amount to re-writing the award that the award dated 09.08.2002 is admittedly an ex parte award and the Arbitrator need not come to a conclusion that whatever said by the appellant was decreed to have been accepted by the first respondent, and thus dismissed the O.P and other applications. It is the correctness of this order that is challenged before us by the claimant in the O.P.
6. The appellant himself appeared in person and argued before us. He also filed written arguments in extenso.
7. The first point that has been urged by the appellant before us is that the award dated 09.08.2002 is ex facie illegal and invalid. According to him the award was originally published by the Arbitrator on 09.08.2002 and 3-1/2 months thereafter i.e. on 23.11.2002 the Arbitrator engrossed the same award on Stamp Paper by making addition as follows:
"This Award was passed on 09.08.2002, but since the stamp paper (or Rs.150/- as per the relevant Article of the Stamp Act) was furnished by the respondent only today (23.11.2002), the Award is engrossed in the stamp paper and signed by me today. The award in manuscript originally signed on 09.08.2002 is attached along with this Award engrossed on the stamp paper and signed as stated above. In the circumstances, the expression "within a month from today" stated in the Award originally signed on 09.08.2002 (while giving a finding under Issue No.6), shall mean "within a month from 23.11.2002.
/sd/ Justice A.Abdul Hadi 23.11.2002 Draft of Rs.1500/- brough by the respondent, payable to the claimant as costs, is asked to be sent by the respondent to the claimant.
/sd/ Justice A.Abdul Hadi 23.11.2002."
In other words, the submission of the appellant is that once the Arbitrator has passed the award on 09.08.2002, he become functus officio and he cannot thereafter make deletion, addition or correction in the award and thus having made addition, the award is ex facie illegal. We find there is force in the said submission. Learned Judge, while referring the Judgment of the Supreme Court holding that the Arbitrator after making the award, becomes functus officio and a Division Bench Judgment of the Patna High Court that the Arbitrators have no jurisdiction subsequent to re-write the original award, has held after extracting the addition made by the arbitrator, has held that he has only engrossed the same award on a Stamp Paper and only explained the meaning of the word "within a month from today" under the heading Original Issue No.6 by expressing that it means within a month from 23.11.2002. We do find it difficult to accept this finding of the learned Judge. The reason assigned by the Arbitrator that Stamp Papers were furnished to him by the first respondent only on 23.11.2002 and therefore he engrossed the same on the Stamp Paper with addition is highly deplorable.
5. In the result, the appeal is allowed thereof setting aside the order of the learned Judge dated 11.06.2006 in O.P.No.30 of 2003. The parties are at liberty to approach for appointment of fresh Arbitrator. Consequently, connected Miscellaneous Petition is closed. There will, however, be no order as to costs.
mra