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2019 (11) TMI 372

..... elow have recorded the concurrent findings that the appellant Contractor has failed in carrying out the work as per the terms and conditions of the contract and the learned Arbitrator has rightly allowed the detention and forfeiture of the equipments of the contractor and disallowed the counter claim No.4 of the appellant. Similarly, the counter claim No.5 which was for the damages for the alleged detention and use of hand trolleys has been rejected and thus, the counter claim Nos.4 and 5 have been rightly disallowed by the learned Arbitrator. There are no reason warranting interference with the award passed by the Arbitrator and the impugned judgment and this appeal is liable to be dismissed. Appeal dismissed. - CIVIL APPEAL NO. 655 OF 201 .....

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..... rformance of the appellant was not found satisfactory particularly, in regard to Export loaded Container No.TRIU-4991702x40 , which was illegally detained by the appellant and the appellant failed to transport the container to the Port at Navi Mumbai. The said container was handed over to the appellant on 06.11.2001 from the Inland Clearance Depot, Varanasi and did not reach its destination, JNP, Navi Mumbai within the stipulated time period i.e. upto 16.11.2001. When the exporter, M/s Bhola Nath Industries pressed for early recovery of the container and also raised claims towards compensation for loss of the container, the respondent-Corporation started inquiries and issued several notices to the appellant for recovery of the container and .....

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..... ds illegal detention of the fork lift) were decided against the appellant. It was held by the Arbitrator that the termination of the contract is legal and justified and in view thereof, the respondent had the right to forfeit the security deposit. As to the claim of the appellant towards alleged detention of the fork lift and hand trolleys, the Arbitrator held that the detention of the equipments is right and justified. The Arbitrator held that it is seen from Clause 5(g) of the tender conditions of the contract that the respondent has the right to demand the balance due when sufficient sum is not available to cover the full amount recoverable from security deposit and other dues. In view of the heavy claim amount of M/s Bhola Nath Industri .....

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..... nt and the claim of the respondent-Corporation, the learned Single Judge of the High Court found no infirmity in the reason recorded by the learned Arbitrator while rejecting counter claim No.4. Counter claim No.3 was allowed to the extent that in case the bank guarantee furnished by the respondent-Corporation is discharged, the appellant would be entitled to refund the security deposit in the sum of ₹ 4,30,284/-. The appeal filed by the appellant under Section 37 of the Arbitration and Conciliation Act was dismissed vide the impugned judgment affirming the order of the learned Single Judge. 8. Before the Supreme Court, the appellant has only pressed counter claim Nos.3 and 4. Mr. Aniket Jain, learned counsel for the appellant has con .....

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..... appellant for retaining the container till their dues are paid by the appellant and the case is still pending and therefore, the learned Arbitrator has rightly upheld the act of the respondent-Corporation in forfeiting the security deposit. 10. We have carefully considered the contentions of both the parties and perused the impugned judgment and the award passed by the learned Arbitrator and the order of the learned Single Judge and other materials on record. 11. The Export loaded Container No.TRIU-4991702x40 was handed over by the Manager, ICD, Varanasi to the appellant on 06.11.2001 for delivery of the container at JNP, Navi Mumbai; but the appellant had failed to transport the container to the destination port and only with the intervent .....

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..... 0 of 2002 before the High Court of Allahabad in which a direction was issued to the trial court to dispose of the application afresh. It was thereafter, the trial court released the container on furnishing a bank guarantee of rupees ten lakhs by the respondent-Corporation. The trial court released the container only on furnishing of bank guarantee of rupees ten lakhs. It is stated that the said civil suit is still pending in the Ghaziabad Court and is at the stage of recording evidence. 13. Insofar as the allegation of detention of fork lift and hand trolleys, the respondent-Corporation has stated that after finalisation of the arbitration case between the respondent-Corporation and the appellant, all the dues as per the order of the Arbitr .....

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..... 5. Thus, even before filing of the objection petition under Section 34 of the Act, the appellant has received the full payment due and payable to him as per the arbitral award dated 18.03.2005. According to the respondent-Corporation, the appellant has not disclosed the receipt of the money at the time of filing the petition under Section 34 of the Act. 15. The learned Arbitrator and the Courts below have recorded the concurrent findings that the appellant Contractor has failed in carrying out the work as per the terms and conditions of the contract and the learned Arbitrator has rightly allowed the detention and forfeiture of the equipments of the contractor and disallowed the counter claim No.4 of the appellant. Similarly, the counter cla .....

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