D.M. Patnaik, J.
1. The above appeal is against the judgment dated 17.1.1994 of the Subordinate Judge, Bhubaneswar, dismissing the appellant's petition under Sections 30 and 33 of the Arbitration Act (hereinafter referred to as the 'Act') thereby refusing to make the award of the Arbitrator the rule of the Court.
2. The dispute relates to non-payment of the dues of the respondent-claimant arising under the contract of agency.
Pursuant to the acceptance of the lowest tender of M/s. Z. Engineer's Construction (P) Limited (hereinafter called the 'Agent'), floated by the Corporation (a Government of Orissa undertaking), the parties entered into a contract, the terms being that the claimant company would work as the liaisoning-cum-handling agent of the corporation for procuring 5545 Metric Tonnes of steel materials from the Steel Authority of India Limited from their Bhilai Steel Plant to the site at IB Thermal Power Transmission. It was agreed that for such liaisoning and handling work the Agent would be paid at the rate of Rs. 125/- per metric ton. The appointment was dated 9.11.1989 and the company was required to procure the materials by February, 1990 which was the period of contract. Several other terms and conditions were prescribed including the one that in case of breach of contract by the agent, the Contract could be prematurely terminated and further, in case of delay in delivery of materials, the agent will be liable for penalty at the rate of 5 per cent of the service charges.
3. It is the case of the Company that though it performed its part of the contract and procured for the Corporation 5080 metric tonnes of materials and that too within the stipulated time and was entitled to receive as service charges Rs. 6,35,652/- yet the Corporation did not make the payment. For such non-payment, the company moved the learned Sub-Judge under Section 20 of the Act for the Court's order to refer the matter for arbitration. That suit was decreed on 21.2.92 and thereafter the matter was before the Arbitration Tribunal. The Tribunal after notice and hearing the parties awarded the sum of Rs. 8,40, 571/- instead of Rs. 19,49,801/- as claimed by the Company When the Company wanted to make the award the rule of the Court, the Corporation filed an objection under Sections 30 and 33 of the Act which the Court dealt with by the impugned order dismissing the objection on merit.
The case of the Corporation is that, though it received the quantity of materials as claimed by the company, yet the latter was not entitled to any service charges since the procurement of such quantity was not for any service rendered. Rather it violated the various terms and conditions of the work-order.
4. Mr. R.K. Mohapatra, learned counsel though has advanced extensive argument, yet the whole of his contentions may be conveniently confined to the following points :
i) It is contended that under Clause 9 of the agreement, since the claim was for payment of the dues, the decision of the General Manager, Ib Thermal Power Station was final and the latter having rejected the claim, the reference for arbitration was illegal and so also the consequent award. This, according to Mr. Mohapatra, automatically excluded the application of Clause 10 of the agreement which provided that only legal disputes between the parties should be referred to the arbitration and not the present one which is a factual dispute. The reference and the award being illegal, the learned counsel contends that the award should be set aside holding the same to be invalid otherwise' and prescribed under Section 30(c) of the Act. Mr. Mohapatra. to support his above point relies on the case of She Union of India v. Shri Omprakash, reported in AIR 1976 SC 1745.
ii) the Company did not perform any service for procuring the material and the Arbitrator committed gross error putting the burden of proving this fact on the Corporation.
iii) Though an average 1000 metric ton materials were expected to be received every month, in the month of November, 1989 a total quantity of 3195 metric-tonnes were received at one lost causing great inconvenience for the Corporation to handle the stock.
iv) The Company did not procure the rolling programme from the Steel Authority of India as per the agreement and this affected the Construction activities carried on by the Corporation.
v) The Agent did not establish an office at Jharsuguda for facilitating the liaisoning and co-ordinating work though required under the agreement.
5. Mr. P. Mohanty, learned counsel for the Company, on the other hand countered the argument of Mr. Mohapatra also by advancing extensive argument. However, the learned counsel confined his argument submitting that the Corporation stand in challenging the ward of the Tribunal is barred by the principles of estopped and acquiesence since the Corporation having participated in the proceeding before the Tribunal without objection cannot challenge the award of the Tribunal at this stage. In support of such argument Mr. Mohanty has relied on the decisions reported in (1987) 4 SCC 217, Prasan Roy v. Calcutta Metropolitan Development authority, and (1996) 3 SCC 568, Union of India v. G. S. Atwal and Co.
6. Out of the five points advanced by Mr. Mohapatra, points 2, 3, 4 and 5 relate to factual aspects of the case and the Tribunal has given a finding in this regard after considering materials before it. In this connection In accept the argument of Mr. Mohanty that while dealing with the matter under Sections 30 and 33 of the Act the Court is not supposed to sit in appeal and reassess the evidence and find out their sufficiency or otherwise to sustain the finding arrived at by the Tribunal.
Law is well settled on this point (vide decision (1995) 5 SCC 531, Trustees of the Port of Madras v. Engineering Constructions Corporation), where it has been held that Court cannot interfere with the Tribunal's finding of fact. though it can interfere if there is an apparent error of law on the face of the award. In the case at hand the Corporation has admitted the factual aspect that it received 5080 metric tonnes of steel materials though it is alleged by them that about 3195 metric tonnes of materials should not have been delivered in the month of November alone and this was beyond the expectation to receive the materials in that quantity at a time. The other fact that the Agent co-ordinated and rendered service for which the Corporation received the steel materials is also a finding of fact. It may be pointed out that the Agent was supposed to render service to facilitate the procurement of the materials on behalf of the Corporation. In this process it must have exerted and put some amount of labour through its officers. The extent or the magnitude of labour employed for such service for liaisoning was not stipulated in the contract. For example, if on a single phone call by any of its officers, the materials could have been procured and delivered in time, it could not be said that the Agent has not rendered any service. I therefore do not feel it necessary to delve into that question which is intrinsically connected with the finding of facts arrived at by the Tribunal. I have no quarrel over the proposition laid down by the Apex Court in the case of Engineering Constructions (supra) but the same is not applicable to the facts and circumstances of the present case.
7. We may now examine the contention of Mr. Mohapatra that relates to the legality or otherwise of the reference and the consequent award. To appreciate this, Clauses 9 and 10 of the agreement are quoted below :
'9. In the event of any dispute of any nature regarding interpretation of the terms and conditions of the contract or modalities for execution of the contract, the decision of the General Manager, ITPS will be final and binding on you.
10. Any legal dispute, if arises, at any time under this contract shall be subject to the jurisdiction of the Arbitration Tribunal'
On a bare reading of Clause 9 of the agreement it is clear that the same would be applicable only during the subsistence of the contract and that too when question arises between the parties regarding interpretation of the terms and conditions of the contract or when the question arises as to how and in what manner the contract is to be executed. The present case does not bring out any such situation. Therefore, I am unable to accept the contention of Mr. Mohapatra that Clause 9 would be applicable to the present case and not Clause 10 which provides for arbitration.
Clause 10 is very much applicable since a claim of the Company is a legal dispute inasmuch as the claim is by the agent against the principal for its service rendered and this right to recover the dues from the principal is permissible under the Law of Contract. It has been laid down in the case of State of Rajasthan v. Puri Construction Company Limited, (1994) 6 SCC 485 cited by Mr. Mohanty that an error of law or fact committed by an arbitrator itself does not constitute misconduct warranting interference with the award. An award cannot be set aside merely on the ground of misreading, misconstruing or misappreciation of materials on record. It is only an erroneous application of law constituting the very basis of the award and improper, incorrect finding of fact, which without closer and intrinsic scrutiny demonstrable on the face of the materials on record amounts to legal misconduct
In the case at hand I have not been able to find out anything of this nature in the award. In the face of Clause 10 providing for arbitration it would be too much to engage oneself to make a more closer and intrinsic scrutiny to find out whether the reference should be made or not. For not doing this it cannot be said that the Arbitrator committed any legal misconduct. There is no error of law apparent on the face of the award. That apart the Corporation cannot be allowed to raise this at this stage since it participated in the proceeding before the Tribunal without any objection and suffered the award, vide decision in the case of Prasan Roy (supra) and G. S. Atwal (supra) cited by Mr. Mohanty.
8. So far as the impugned order of the learned Subordinate Judge is concerned, it is found that the Corporation did not press the point of misconduct on the part of the Arbitrator. The order being free from any infirmity, the same cannot be interfered with.
9. In the result, the appeal is dismissed, but in the peculiar facts and circumstances of the case parties to bear their own cost.