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TMI Blog2017 (4) TMI 1155X X X X Extracts X X X X X X X X Extracts X X X X ..... sal of the balance, which could not be lifted. However, if the appellant remained unsuccessful in the sale of the deficit amount of gas, Kamrup Industrial Gases Ltd., would have the liberty to empty their cylinders on buyer's account, namely, the appellant- Kamrup Industrial Gases Ltd., would blow off the unutilized balance, and recover the proceeds thereof, from Diesel Locomotive Works. 2. The appellant before this Court, raised an arbitral dispute, claiming payment/consideration, on account of non-lifting of the minimum quantum of gases, by Diesel Locomotive Works. By an order dated 13.08.1976, the Calcutta High Court appointed an arbitrator, in the matter. Various orders were passed by the Calcutta High Court thereafter, appointing different arbitrators. Eventually Shri D.P. Mukherji, was appointed (by the High Court, vide its order dated 22.09.1988) as the sole arbitrator, to adjudicate upon the dispute raised by the appellant-Kamrup Industrial Gases Ltd. The arbitral proceedings continued from 1982 to 2004. The arbitral award was finally rendered on 18.04.2004. The operative part of the arbitral award is extracted hereunder : "Having regard to my findings on the issues sett ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t herein - Kamrup Industrial Gases Ltd., and since the same were not produced before the arbitrator, an adverse inference was drawn by the High Court. The details of the documents sought from the appellant, have been described in the impugned order (dated 27.04.2007), which are as under : "i) Statement of daily production of Oxygen and D.A. Gas at their DLW Township Factory. ii) Statement showing the purchase of Carbide month wife during the period in question. iii) Actual Sale documents/Books for all sales to parties as well as to DLW during the period in question. iv) Profit and Loss Account and balance sheet for the period in question for their DLW Plant. v) Excise Inspector's reports for duty on such excisable commodities for the period in question." 6. With reference to the aforesaid documents, the High Court recorded its findings as under : "It is not in dispute that the aforesaid documents called for by the Buyer by its counter-statement were never produced before the learned Arbitrator. There is nothing in the award to show that any attempt whatsoever was made by the learned Arbitrator to have these documents produced before him." (emphasis is ours) A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d counsel for the appellant, more particularly because learned counsel for the respondent, could not dispute the factual position recorded in the proceedings conducted before the Arbitrator, on 16.08.1989. We therefore, hereby set aside the finding recorded by the High Court, to the effect, that the documents sought for by the buyer - Diesel Locomotive Works, were neither produced before the Arbitrator, nor provided to the respondent. 9. The next question, that arises for consideration is, whether the appellant was entitled to payment on account of short lifting of gases by the Diesel Locomotive Works. In this behalf, it has already been noticed hereinabove, that the Diesel Locomotive Works, would lift a minimum of 12,900 cubic meters of Oxygen gas, and a minimum of 2,500 cubic meters of Acetylene gas, per month. And whether or not they lifted the minimum quantity, the appellant herein - Kamrup Industrial Gases Ltd., would be entitled to payment for the same. Be that as it may, it is imperative to determine, before the appellant can be held to be entitled to claim the right of such payment, that the appellant - Kamrup Industrial Gases Ltd., had actually produced the gases in terms ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aimant on this topic is the evidence of their witness, A.N. Jha (Qs.195 to 225) wherein the said A.N. Jha has proved that the claimant had given intimation to the respondent about the balance quantity of gases that remained with the claimant unrealized and called upon the respondent to take supply of the same, otherwise, the claimant would blow off the said gases. The said statements are tendered herein as Exts.LLLLLLL, MMMMMMM and NNNNNNN. The said A.N. Jha was cross-examined by the respondent's Counsel, but his evidence on this topic has remained unshaken. Reference is made to Qs. 1044 to 1047 and Qs. 1370 to 1411 in cross-examination, put to the said A.N. Jha. The said A.N. Jha has proved that the said Blown off statements had been delivered by him personally to the responent's employees at the General Manager's Office. The said A.N. Jha has also deposed that the people at the General Manager's Office of the respondent refused to acknowledge receipt of the said statements on the copies of the Statements produced by the claimant and the copies of the said Statements were kept in the office of the claimant which they have produced in this Reference and which have been exhibited he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deducted on account of the sale proceeds of the gases which the appellant could sell in the open market. According to Shri A.N. Jha, all the bills were duly furnished to the Diesel Locomotive Works. Details in this behalf are extracted below: "The claimant had called one A.N. Jha (full name Amar Nath Jha) as witness. Jha was the Office Superintendent of the Claimant-Company in 1971 and was appointed as the Assistant Manager in 1972 and was posted at the claimant's factory at Varanasi during the relevant time. Jha had deposed that all the relevant bills with covering letters from the claimant were served on the respondent at the F.A. & C.O. Department of DLW at Varanasi by him personally and the receipt of the said bills were acknowledged by various officers of the said F.A. & C.O. Department of the respondent on the copy of the said bills (vide Qs. 32 to 75 in Examination-in-chief). The evidence of Jha in this respect had not been shaken in cross-examination by the learned Counsel for the respondent. With respect to bills for uplifted quantity of gas, the respondent's case is that they made part payments for the gas supplies at the contract rate but withheld payment of escalation ..... X X X X Extracts X X X X X X X X Extracts X X X X
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