D.K. Seth, J.
1. The award made by the Arbitrator in the dispute between the parties, was made rule of the Court after rejecting the appellants' application under Section 30 of the Arbitration Act, 1940 (1940 Act), by a judgment dated 10th of May, 2000 passed in T.S. No. 74 of 1987 by the learned Civil Judge (Senior Division), 3rd Court, Howrah. Against this decision the present appeal has been filed by the Food Corporation of India (FCI). In the award, the claim of the respondent/claimant was allowed and the counter-claim of FCI was denied altogether.
2. One of the grounds taken before this Court is the point of limitation. It appears from Clause 41 at page 84 of the Paper Book (PB) that the scope of arbitration was related to 'all disputes and differences arising out of or any way touching or concerning this Agreement whatsoever (except as to any matter the decision of which is otherwise expressly provided for in the agreement) shall be referred to the sole arbitration of any person appointed by the Managing Director of the FCI'. It further provided 'that any demand for arbitration in respect of any claims for the agent under the Agreement, shall be in writing and made within one year of the date of termination or completion (expiry of the period) of the Agreement and where such demand is not made within that period, the claim/s of the Agent be deemed to have been wiped and absolutely barred and the corporation shall be discharged and released of all liabilities under the Agreement in respect of those claims'. The agreement was alleged to have been terminated by the claimant through a notice of termination by a letter dated 2nd November, 1991 (Exhibit-6) in terms of the agreement. The said notice was due to take effect from 2nd January, 1992. The FCI accepted the termination through its letter 6th September. 1993. The Arbitrator had held that the agreement stood terminated with effect from 2nd of January, 1992.
3. The acceptance of the termination would be relevant for two purposes. First, whether the claims up to 2nd January, 1992 or 6th September, 1993 would be governed by the terms of the agreement. Inasmuch as, if the agreement is deemed to have been terminated on 2nd January, 1992, the claims till that date would be governed by the terms of the agreement. Those claims arising after 2nd January, 1992 would be governed by Section 70 of the Contract Act without being confined to the terms of the agreement. If 6th September, 1993, the date on which the termination was accepted by FCI, is taken to be the date of termination of storing agency, in that event, claims up to that date would be governed by the terms of the agreement and any claim beyond that period would not be governed by the terms of the agreement, but by the general principles of contract. Secondly, this date has another relevance having regard to Clause 41 of the Agreement providing for demand for arbitration in respect of any claim to be made in writing within one year of the date of termination or completion of the Agreement. Inasmuch any claim raised after one year from this date 'shall be deemed to have been wiped and absolutely barred and the corporation shall be discharged of all liabilities under the Agreement in respect of those claims'.
4. It appears that the original claim petition was filed on 30th of May, 1990. The claim petition was amended on 19th June, 1996 and again on 7th of July, 1997. The second question of limitation would arise as to whether the claims raised through amendment dated 19th June, 1996 and 7th of July, 1997 are barred by limitation. Mr. Anindya Mitra, learned senior counsel for the claimant/respondent, had pointed out that the point with regard to limitation was never taken either before the Arbitrator or in the application for setting aside the award before the learned trial Court. Therefore, for the first time, the question of limitation cannot be raised before the Appellate Court. The period of limitation for applying for setting aside the award is 30 (thirty) days from the date of the notice of the award. After the 30 (thirty) days expire, no ground can be taken for setting aside the award. He relied on the decisions in National Project Construction Corporation Ltd. v. Aroma Universal 2001(1) CLJ 399 and The State of West Bengal v. L.M. Das, : AIR1976Cal406 .
5. The decision in National Project Corporation Ltd. (supra) was in respect of a non-speaking award. The Division Bench had held that the question of limitation in the said case was dependent on the starting point of limitation, which was a question of fact or a mixed question of law and fact. Therefore, it could not be argued before the Appellate Court. This seems to be distinguishable in the present case where the Court is in session of a first appeal and is supposed to go into the question of facts as well, when there are materials available on the record to examine the question of limitation, a question hitting at the root of the jurisdiction of the Arbitrator.
6. In L.M. Das (supra), it was held by a Division Bench of this Court that it is a settled law that the service of a notice under Section 14(2) of the Arbitration Act, 1940 as prescribed by rules of the Calcutta High Court is not essential for the purpose of making an application for setting aside of an award and that an application if made after 30 (thirty) days from the date the petitioner was orally informed about the filing of the award in Court, would be time barred, since there is no distinction between a formal and informal notice in this behalf under the Limitation Act. It had relied on Nilkantha Sidmmappa Ningashetti v. Kashinath Somanna Nigashetti, : [1962]2SCR551 . In the said case, the award was filed on June 5, 1969 and the applicant came to know of it on June 16, 1969. Therefore, the application was held to be time-barred since the petitioner had come after July 17, 1969. This case points out that if on facts there are materials to hold that the limitation had set in, the Court has every right to adjudicate the question of limitation. In this case, we are concerned with the question whether the claim itself was time barred. If the claim becomes time barred, the Arbitrator could not assume jurisdiction in respect thereof.
7. These two decisions deal with the limitation for making the application under Section 30 of the 1940 Act. Here, in this case, admittedly, the application under Section 30 of 1940 Act was made within time. The question of limitation relates to a ground to support such application. Once the application is within time, the ground of limitation cannot be denied. There is distinction between the limitation for making the application and taking limitation as a ground therein. Thus, these decisions do not help Mr. Mitra.
8. Section 3 of the Limitation Act being applicable in an arbitration proceeding by reason of Section 40 of the 1940 Act, even if the question is not taken or set up, the Arbitrator is duty bound to examine the question of limitation. This section cast a liability on the Arbitrator to ascertain whether it was barred by limitation or not. If in the process of such ascertainment, the Arbitrator fails to note the question of limitation in its proper perspective, such question even if not raised before the Arbitrator or before the learned trial Court, still then it can be raised before the first Appellate Court where facts can be assessed and when there are materials available on record and the question was gone into as an issue in the award and the trial Court had occasion to deal with the same. Having regard to the issues framed, it cannot be said that the question was not at all raised. The issue of limitation is an issue of jurisdiction. If a claim is barred by limitation, then the Arbitrator cannot assume jurisdiction in respect of such claim by reason of Section 3 of the Limitation Act, even if it is not raised.
9. Having regard to the present context, we are concerned with two kinds of limitations. One with regard to the question as to whether the claimant could have incorporated the claims by way of two successive amendments, one on 19th June, 1996 and the other on 7th of July, 1997, which were not part of the original claim petition filed on 30th May, 1990. This question has been dealt with by the learned Arbitrator at page 279 of the Paper Book. The other with regard to the provision provided in Clause 41 of the Agreement.
10. The claims as specified, find incorporated in the award (p. 229 of PB). We may deal with each item as hereafter. Claims incorporated by amendment on 19th June, 1996 are as hereunder:
Sl. No.
Nature of Claim
Amount
Annexure
1.
Storage commission billwith effect on and from 01.08.90 to 17.02.93
Rs. 1,43,902.65
'X1'
2.
Labour charge (wheat)delivery to other District w.e.f. 1.4.77 to 30.9.91
Rs. 3,71,851.50
'X2'
3.
Labour charge (rice)delivered to other District w.e.f. 1.11.76 to 3.4.96
Rs. 2,43,082.50
'X3'
4.
Labour charge (wheat)(trucks Rly. Sliding) from 1.6.75 to 31. 3. 92
Rs. 22,35,305.60
'X4'
5.
Labour charge (rice)(truck loaded Howrah Rly. Siding) from 1.6.75 to 31. 3.91
Rs. 21,18,660.40
'X5'
6.
Labour charges (forloading stock with truck placed by pvt. party) from 01.08.90 to 30.11.1992
Rs. 43,229.50
'X6'
7.
Standardisation from 1.8.90to 21.10.92 (as per order of the D.M.
Rs. 35,448.87
'X7'
8.
Jute twice from 1.6.75to 31.10.91
Rs. 3,24,486.17
'X8'
9.
Godown rentestablishment charge from 4.1.92 to 31.05.96
Rs. 37,38,357.36
'X9'
10.
Interest onunpaid/outstanding storage commission bill against D.O.W.C. from 1.4.90 to 31.05.96
Rs. 4,91,181.78
'X10'
11.
Interest onunpaid/outstanding storage commission bill against storage losses from 1.4.90to 31.05.96
Rs. 22,389.86
'X11'
12.
Interest on storagecommission bill from 1.1.95 to 31.12.95
Rs. 51,804.96
'X12'
13.
Compensation fornon-shifting of FCI's food grains from that rented godown of the petitionerfrom 1.1.92 to 31.5.96 passed still continuing
Rs. 1,12, 24, 365.00
'X13'
Total
Rs. 2,10,62,062.14
11. Item No. 1 relates to a period till 17th February, 1993. A claim, admittedly, could have been Included in the original claim filed on 30th of May, 1990. But, then it could have prospectively included the said amount in the 30th May, 1990 claim as continuous and future claim. But this was not done. Till 19th June, 1996, no steps having been taken and the said period being a period in excess of three years from 17th of February, 1993, the claim appears to be barred by limitation and cannot be allowed in view of Section 3 of the Limitation Act, which applies to arbitration proceedings by reason of Section 40 of the 1940 Act (43 of the 1996 Act). The Arbitrator had found that the arbitration agreement stood terminated on 2nd of January, 1992. If this is accepted, then also the claimant could not claim storage commission charge for the period after 2nd of January, 1992. That apart, in view of Clause 41 of the agreement, the claim related to the period till 2nd January, 1992 was wiped and absolutely barred and FCI was released and discharged of the liabilities, Thus, the claim is barred by limitation.
12. Item No. 2 relates to the period 1st April, 1977 till 30th of September, 1991, which is equally barred by limitation. Item No. 3 could be admissible only for the period after 19th of June, 1993 and all claims before that period stand barred by limitation, if not included in the statement of claim within the period of limitation. Item Nos. 4, 5, 6, 7 and 8 being for a period prior to 19th of June, 1993, the same are barred by limitation and cannot be included in the claim after the period of limitation had expired. The claims with regard to item Nos. 10, 11, 12 and 13 could be admissible only for the period that related to claims arising after 19th of June, 1993, the rest were barred by limitation. These claims having not been raised within 2nd of January, 1993 or latest by 6th of September, 1994 in writing. The claim was wiped out.
13. By amendment dated 7th of July, 1997, the following claims were introduced;
'Subsequently during continuance of the arbitration proceeding the claimant submitted further claim of Rs. 36,41,634.00 on 7.7.97 against bills claiming compensation for wrongful with holding the rented godown (72,776.08 sft. @ 4/- per sft. for 12 counts.
Rs. 34,93,248.00
Bill claimingreimbursement of establishment cost during 1.6.96 to 31.5.97
Rs. 1,12,658.00
Labour charge fordelivery of sub-standard stocks Rs. 2/- per bag
Rs. 35.728.00
____________________
Total
Rs. 36,41,634.00'
14. The claimant had claimed compensation for wrongful withholding of the rent of the godown without specifying the period for which the claim is being made. The claim for the period prior to 19th June, 1993 cannot be admissible being barred by limitation, but there is no specification therefor.
15. Pointing out to paragraph 102 (p. 135 of PB) the counsel for the appellant contends that the cause of action has been mentioned to have arisen on 16th of June, 1987. But this relates to the application under Section 8 of the 1940 Act, which would not be relevant or material for the purpose of or determining the question of limitation after the reference is made. It is also contended that the initial claim made on 30th May, 1990 was also barred by limitation. But this proposition seems to be misconceived. Inasmuchas the limitation would be governed by Clause 41 of the Agreement. In terms thereof no claim raised after 2nd January, 1993 could be entertained by the Arbitrator. In the statement of claim, it has not been averred that the account was running and continuous even after termination of the agreement. That apart, under Section 70 of the Contract Act, a claim outside the agreement cannot be asked for in the arbitration,--is a contention raised by Mr. Ghosh on behalf of the appellant. This proposition does not seem to be sound having regard to the scope and ambit of Clause 41 of the agreement incorporating the arbitration clause. Unless it is found that the account was running and continuous, the question of limitation cannot be avoided. There is no such finding in the award by the learned Arbitrator nor the claimant has made any such claim anywhere.
16. These two aspects of the question of limitation Involved in the present case may be crystallised in the following manner. The Arbitrator had found that the agreement was terminated on 2nd of January, 1992. This has not been disputed by any of the parties. Therefore, the claims for the period till 2nd of January, 1992 would be governed by the provisions contained in the agreement itself, particularly, Clause 41 thereof respecting limitation. Any claim for the period till 2nd January, 1992, if not included in the original statement of claim and unless it is in respect of a claim already made and is in the nature of continuous one, without a demand raised within one year from 2nd January, 1992, would be barred by limitation. So far as the claims for the period after 2nd of January, 1992 would be governed by Section 70 of the Contract Act and not by the terms of the agreement, the limitation provided in Clause 41 of the agreement would not be applicable. On the other hand, the provisions contained in the Limitation Act applicable to an arbitration proceeding by reason of Section 40 of the 1940 Act would govern the period of limitation, which is three years from the date when the claim arose. Unless it is a running and continuous account, the same can not avoid the mischief of the period of limitation of three years. Now these questions are apparent on the face of the record to the extent that these were not taken into account and considered by the Arbitrator. The question of limitation would decide the question of jurisdiction of the Arbitrator. Therefore, this is a question which requires examination and is a ground within the meaning of Section 30 of the 1940 Act under which an award can be set aside. Having regard to each of the claim, the question is required to be ascertained.
17. It is necessary to deal with the erudite argument made by the learned counsel for the respective parties in respect of other contentions. The learned advocate for the appellant contended that the amended claims could not be referred to the arbitration under Section 40 of the 1940 Act since the new Act has come into force on 25th June, 1996. The period of claim being related to a period after 25th January, 1996 cannot come within the purview of the 1940 Act. Section 85 of the 1996 Act saves the applicability of the 1940 Act. Notwithstanding repeal of the said At, the 1940 Act shall be applicable in relation to arbitral proceedings commenced before the 1996 Act come into force unless otherwise agreed to by the parties. But, however, the new Act would be applicable in relation to all arbitral proceedings on or after 25th January, 1996. In this case, the arbitration proceedings had commenced before 25th January, 1996. Therefore, the repeal of the 1940 Act will not affect the proceedings in respect of the applicability of the 1940 Act. There is nothing to show that the parties had agreed otherwise. It was so held in Thyssen Stahlunion GMBH v. Steel Authority of India Ltd., : AIR1999SC3923 .
18. Before we consider the questions on merits as has been sought to be argued by the learned counsel for the respondent, we must keep in mind that the scope of appeal arising out of an arbitration proceeding has certain limitations. An appeal arising out of an order passed under Section 30 of the 1940 Act is limited to the scope of the examination as contemplated under Section 30 of the said Act. Within the scope and ambit of the said Act, Section 30 permits examining award only on the question of jurisdiction of the Arbitrator and as to the question whether there is any misconduct on his part in course of the carriage of the arbitration proceedings. The three grounds permissible under Section 30 in Clauses (a), (b) and (c) are the only grounds on which the Appeal Court can direct its investigation. In the present case, Clause (b) is inapplicable. We are concerned with Clauses (a) and (c). After the award is made rule of the Court, an appeal is permissible against such an order only on the ground that the decree is in excess of or otherwise not in accordance with the award as circumscribed by Section 17 of 1940 Act. Thus, in the present case, the scope is confined to Clauses (a) and (c) of Section 30. No ground has been pleaded that the decree is in excess of the award or not in accordance with the award. The Court is not supposed to act as a Court of appeal from the award of the Arbitrator (Tulsiram v. Jhankar Lal, AIR 1936 Nagpur 197). The power of the Appellate Court is limited to the consideration of the specific ground upon which an appeal is allowed. If an appeal is filed under Clause (6), the Appellate Court will consider whether there has been a reference, whether there has been an award and whether any grounds under Section 16 and 30 have been proved (Moungtun U v. Maung Po Shok, AIR 1923 Rangoon 199; Tulsiram (supra); Abdullah Khan v. Bahram Khan, AIR Peshwar 69). But a ground of law, which goes to the validity of the proceeding, can be taken for the first time at any stage. Questions of law relating to construction of the arbitration agreement and construction of the provisions of the Act can be raised for the first time when no investigation of facts is necessary and the relevant materials are on record. (Sunil Mukherjee v. Union of India, : AIR1978Cal37 ).
19. The learned cpunsel for the appellant had contended that Section 70 of the Contract Act has no manner of application in respect of claims outside the agreement of the arbitration proceedings. Section 70 of the Contract Act prescribes that anything done lawfully by a person for another person without intending to do so gratuitously and that other person enjoys the benefit thereof, then the latter is bound to pay compensation to the former in respect of the thing so done. In the present case, the contract having ceased from 2nd of January, 1992 whatever was done after the said date of termination would definitely come under Section 70 of the Contract Act. But the question is whether claim for compensation is in respect of such act could be brought within the scope and ambit of the arbitration or not. Such question is dependent on the interpretation of the arbitration clause. In this case, the arbitration clause has coined with very wide expressions conferring a very wide expanded amplitude. In this case all disputes and differences arising out of or in any way touching or concerning the agreement whatsoever, except as to any matter, the decision of which is otherwise expressly provided for in the agreement, shall be the subject matter of reference to arbitration. Therefore, if it is found that the claim arises out of or in any way touches or concerns the agreement, it would form the subject matter of arbitration with the exception of those cases for which expressed provision is provided for in the agreement. The learned counsel for the appellant had endeavoured to point out that in respect of some of the claims expressed provision is provided for in the agreement. We shall examine those questions in relation to the conditions contained in the agreement. But at the outset, it appears that all these claims are the consequences of the agreement, though ceased. Thus, these claims touch or concern the agreement. The non-obstante clause 'whatsoever' embraces even the claims concerning the agreement or in way touching the same.
20. It appears that the learned Arbitrator had rejected the entire counterclaim of FCI. The reasoning that has been given to reject the counter claim in respect of demurrage charges (D/C & W/C) raised by FCI does not seem to be perverse in view of the fact that there was no evidence to come to a definite conclusion in favour of FCI (p. 257-260 of PB). Our attention has also not been attracted to any such material to hold that the said finding is perverse. So far as the counter-claim with regard to the short delivery is concerned, it appears from the finding of the learned Arbitrator (p. 260-267 of PB) that there is neither any jurisdictional error nor perversity in it nor that the learned Arbitrator had mis-conducted or misdirected itself in arriving at the conclusion as it appears from the reasoning given in the award.
21. It appears from Clause 41 of the agreement that the arbitration was confined to matters other than those for which the decision was expressly provided in the agreement. Mr. Ghosh drawn our attention to various clauses of the agreement and had pointed out that the decisions have been expressly provided for in respect of the matters covered under the said provision and as such those were outside the purview of the arbitration. An Arbitrator derives his jurisdiction on the basis of the arbitration agreement between the parties. Clause 41 confines the arbitration with regard to all matters touching or concerning the agreement, excepting the matters in respect of which the decision is otherwise expressly provided for in the agreement.
Therefore, it is necessary to examine the claims made and referred to the various clauses of the agreement in order to find out whether the decisions in respect thereof have been expressly provided or not. From the original claims that were raised as would appear from page 45-47 of the Paper Book. So far as item Nos. 1, 4, 6, 8, 9, 11 and 12 thereof are concerned, the same do not seem to be disputable. Mr. Ghosh raised strong objection with regard to item No. 2 (p. 45 of PB) of the claims relying on Clauses 15 and 16 of the agreement (p. 70-71 of PB). Mr. Ghosh also disputes item No. 3 (p. 46 of PB) relying on Clauses 11 and 13 of the agreement (p. 68-69 of PB). According to him, these are matters for which decision is expressly provided in those respective clauses. He had also disputed item No. 5 and pointed out that the same is not admissible, but, however, he is unable to draw our attention to any of the clauses for which decision in respect thereof is provided. He had also disputed the claim in item No. 7 relying on Clauses 11, 13, 15 and 16 respectively on the ground that decision in respect thereof are provided therein. He has also disputed the claim in item No. 10. This claim does not seem to be admissible. It does not appear from any of the clauses of the agreement that such a claim can be lodged and brought within the purview of the agreement in the absence of any specific condition contained therein.
22. Now we may proceed to examine the jurisdiction of the Arbitrator, which had since been agitated even in the Trial Court having regard to Clause 41 of the agreement (p. 84 of PB). The agreement specifically provides for exception from the scope of arbitration in respect of the decisions in matters expressly provided for in the agreement. Therefore, the wide expanded amplitude of the arbitration agreement excepted the matters, decisions in respect of which are provided for in the agreement. This can be found out from the materials already on record and no investigation having regard to facts would be necessary for this purpose if it can be shown from the record that a particular claim falls within the exception. The matter is dependent purely on the construction of the agreement itself. Such an exercise is permissible to be undertaken by the Appeal Court.
23. The learned counsel for the appellant had pointed out that labour charges claimed in the statement of claim as well as by way of amendment falls within such exception. He referred to Clause 11 and Clause 13 of the agreement respectively (p. 68-69 of PB). Clause 11 prescribes an obligation on the agent for giving delivery of stocks stored in his godown to persons in such quantity and quality as directed. The agent was made responsible for obtaining proper receipt from such person taking delivery, certifying the weight of the delivery made. At the time of giving delivery, the agent is obliged to weigh at his own cost all the bags for delivery and also to load the stocks into the truck, cart or any other means to transport placed by the Corporation or the transport agent. Clause 13 emphasizes an obligation on the agent for dispatching stocks according to instructions issued in writing by the Manager and for unstacking, carrying and loading stocks on rail or steamer or any other means of transport in terms of such instructions. The agent is obliged to pay the cost of loading of such consignments in railway wagons, country boats or steamer or other transport at dispatching station. All costs incurred by the FCI is to be debited to the account of the agent and the FCI had a right to set off such charges against the dues of the agent.
24. Having regard to these two clauses, Mr. Ghosh has pointed out that the decision of the Manager in this regard shall be final and, therefore, it is outside the scope of arbitration. We are afraid that such a construction can be made out of these clauses. It is the decision of the Manager to enter into the godown and arrange for such dispatch. If there is a failure to carry out the instructions according to the programme, the decision of the Manager shall be final. Therefore, the finality of the decision of the Manager is confined only to the extent whether there has been a failure to carry out the instructions according to the programme for entering into the godown of the agent and arrange for dispatch. Therefore, this claim for labour charges cannot come within the excepted clause from the purview of arbitration. But, at the same time, it has to be looked into whether under these clauses the agent could lodge any claim and raise any dispute with regard thereto. If we look into the said two clauses, it appears that the responsibility was that of the agent to bear the cost of loading and unloading within the scope of the said two clauses. Therefore, by reason of express provision contained in Clause 11 and 13, the labour charges for the purposes mentioned therein are expressly barred from the purview of arbitration and cannot be claimed. If such a claim is gone into and allowed, in that event, the Arbitrator would be exercising jurisdiction not vested in him. Therefore, the labour charges claimed in item Nos. 3 and 5 cannot be allowed. The labour charges mentioned in item Nos. 2, 4, 5 and 6 having not been claimed in course of the arbitration proceeding within a period of three years from the date when the cause of action therefor arose, the same cannot be allowed. It appears that the period mentioned in those items includes period till 30th May, 1990, namely the date of filing the statement of claim. The claims in respect of the period till 30th May, 1990 could have been included in the statement of claim. But the same was not included until 19th of June, 1996. Even if the period subsequent to 30th May, 1990 is included in the claim, still then the limitation would not be saved if it is not within three years before 19th of June, 1996. Therefore, these claims were also outside the scope of jurisdiction of the Arbitrator, therefore, it was not open to him to entertain the said claims in view of the Section 3 of the Limitation Act. So far as the item No. 3 of the 19th June, 1996 amended claim Includes a period within three years from 19th of June, 1996. Therefore, the period prior to 2nd January, 1992 cannot be included within the said claim. Period after 2nd January, 1992 could be included in claim Nos. 4 and 6. Therefore, the labour charge in item No. 6 of the statement of claim is admissible in view of Clause 34 of the agreement, which provides for allowing remuneration for doing the jobs specified therein in connection with physical verification at the rate provided, if it is done within 2nd of January, 1992 and at a rate that might be allowed by the Arbitrator reasonably for the period after 2nd of January, 1992.
25. Item No. 7 of the statement of claim standardization charge is also not admissible in view of Clause 15 and 16 of the agreement (p. 70-71 of PB). Clause 15 prescribes a responsibility of the agent to standardize slack bags including re-bagging at his own cost. Clause 7 of the 1996 amended statement of claim is not allowable till 2nd January, 1992 the date of termination of the agreement, but those after 2nd January, 1992 would definitely be admissible and as such within the jurisdiction of the Arbitrator. Clause 8 provides that the claimant had the responsibility of weighing 10% of the sound standard bags at the time of receiving delivery of consignments and 100% weighment of slack bags. If the difference between the weight taken and the invoiced weight exceed 0.5% in respect of 10% weighment, then 10% weighment is to be made in respect of whole stock. In cases where invoices were not received, the agent is to weigh all the bags of each consignment in the presence of an official authorised by the Manager to check such weighment. Thus, there could not be any dispute with regard to the standardization, which could be included within the arbitration clause since decision in respect thereof has already been provided for in the agreement itself.
26. So far as the godown rent is concerned in view of Clause 17 of the agreement, the same is not allowable to the claimant till the subsistence of the agreement. Once the agreement is terminated by reason of Section 70 of the Contract Act, such godown rent would be admissible to the claimant namely after 2nd of January, 1992. But any claim for the period prior to 2nd January, 1992 shall not be admissible as being clearly barred by the terms of the agreement coming within the exception provided in Clause 41.
27. Item No. 13 of the statement of claim amended on 19th of June, 1996 cannot be allowed if the claimant claims rent for the godown from 2nd of January, 1992, these two items cannot go together. Inasmuch as, he was claiming godown rent for non-shifting of the goods and then again claiming compensation therefor. The Arbitrator, therefore, was without jurisdiction to entertain this claim.
28. Thus, in our view, the appellant has not been able to establish any misconduct on the part of the Arbitrator. What we find is the absence of jurisdiction to entertain the respective claims as indicated hereinbefore. Therefore, the award allowing the claims of the plaintiff cannot be sustained. These require to be re-determined or recalculated in the light of the observation made in this judgment. We do not find any infirmity with regard to the part of the award rejecting/denying the claim of the FCI and as such are not inclined to interfere with that part of the award.
29. In the result, the appeal is partly allowed to the extent as indicated hereafter. The part of the award allowing the plaintiff/respondent's claim is hereby set aside. The part of the award denying the claim of the FCI is affirmed. The matter is remanded for arbitration to the Arbitrator, if available, who will examine each of the items, of the claim of the plaintiff mentioned in paragraphs 10, 11, 12, )?, 14, 21, 23, 24, 25, 26 and 27 as indicated in this decision in the light the observations made in this judgment and after hearing the parties in respect of the claims admissible within the scope and ambit of the different clauses of the agreement having regard to the facts and circumstances of the case and shall pass an award afresh with reasons within a period of three months from the date of receipt of a copy of this order and the records.
There will be no order as to costs.
Urgent xerox certified copy, if applied for, be supplied within 7 days. Xerox plain copy of the operative part of the order be given to the parties upon usual undertakings.
J. Banerjee, J.
30. I agree.