KAMRUP LNDUSTRLAL GASES LTD. versus UNION OF INDIA

Citation: [2017] 3 S.C.R. 345 · Decided: 11-04-2017 · Supreme Court of India · Bench: J.S. KHEHAR · Disposal: Appeal(s) allowed

Judgment (excerpt)

[2017] 3 S.C.R. 345 
KAMRUP lNDUSTRlAL GASES LTD. 
v. 
UNION OF INDIA 
(Civil Appeal No. 4249 of2007) 
APRlL 11, 2017 
[JAGDISH SINGH KHEHAR, CJI, 
DR. D.Y. CHANDRACHUD AND 
SANJAY KISHAN KAUL, JJ.j 
A 
B 
Arbitration Act,1940 - ss. 29, 30, 33 and 39 - Contract 
between appellant and respondent requiring the respondent to lift C 
a minimum quantity of oxygen and acetylene gas, per month - As 
per the contract if the respondent could not lift the minimum 
postulated quantity, the appellant would sell the unutilized balance 
amount of gas in the open market - Howeve1; if the appellant could 
not sell the said unutilized gas, it would blow off the same and 
recover the proceeds thereof from the respondent -Appellant alleged D 
short lifting of gases by respondent and claimed payment for the 
gases allegedly blown off - Plea of respondent that in terms of the 
contract the appellant had to inform the respondent before blowing 
off the gases, however, no such intimation was ever extended to it -
Appellants claim allowed by arbitrator - Jn appeal by respondent, 
E 
Single Judge of High Court upheld the award - Appeal by 
respondent allowed by Division Bench - On appeal, held: In terms 
of the .findings recorded by the m:bitrator based on the evidence 
adduced by appellant, it is clear that on each occasion, before the 
shortfall of the gases were blown off, the appellant duly informed 
the respondent - Relevant bills were duly furnished to the respondent 
F 
indicating payments claimable by the appellant - The bills raised 
also denoted the amounts deducted on account of the sale proceeds 
of the gases which the appellant sold in the open market - There 
was no rebuttal from respondent to these assertions made by 
appellant before the arbitrator - Award passed by the arbitrator G 
affirmed-Appellant entitled to interest@ 9% on the awarded amount 
from the date the award was decreed. 
Allowing the appeal, the Court 
HELD: 1.1 Having perused the documents furnished by 
the appellant, at the asking of the respondent, and the findings 
H 
345 
346 
SUPREME COURT REPORTS 
[2017] 3 S.C.R. 
A recorded with reference to the statement made by appellant's 
witness before the Arbitrator it is clear, that on each occasion, 
before the shortfall of the gases were blown off, the appellant 
duly informed the respondent, and in that view of the matter, it is 
not possible to concur with the findings recorded by the High 
Court, that due intimation was not furnished by the appellant to 
B the respondent - before carrying on the exercise of emptying 
their cylinders, by blowing off the unlifted gases. It is also relevant 
in this behalf to make a reference to the determination recorded 
by the Arbitrator, again based on the statement of the appellant's 
witness that on different occasion, relevant bills were raised by 
C the appellant indicating payments claimable by the appellant. The 
bills raised also denoted the amounts deducted on account of the 
sale proceeds of the gases which the appellant could sell in the 
open market. According to appellant's witness, all the bills were 
duly furnished to the respondent. Interestingly, there was no 
D rebuttal to the said assertions made by the appellant before the 
learned arbitrator. [Para 13][353-E-H; 355-BI 
E 
F 
1.2 Accordingly, the determination recorded by the 
Arbitrator in his award, is affirmed. The list of dates reveal, that 
on 1.9.2006 the Calcutta High Court decreed the award dated 
18.4.2004. In consonance with Section 29of the Arbitration Act, 
1940,the appellant is awarded post decretal interest at the rate 
of 9%, on the awarded amount with effect from 1.9.2006. [Para 
15) [355-B-D] 
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4249 
of2007. 
From the Judgment and Order dated 27.04.2007 of the Division 
Bench of the High Court at Calcutta in A. P. 0. No. 257 of 2005 in 
Award Case No. 12 of2004 in G. A. No. 53 of2005. 
Gourab Banerji, Sr. Adv., Kaushik Mandal, Sahil Tagotra, 
G Debojyoti Bhatacharya, Subhro Mukherji, ChiraranjanAddey, Advs. for 
the Appellant. 
H 
R. S. Suri, Sr. Adv., Ms. Vimla Sinha, Ms. Sushma Verma, Ravi 
Shankar, Raj Bahadur Yadav, (For Mrs. Anil Katiyar), Advs. for the 
Respondent. 
KAMRUP INDUSTRIAL GASES LTD. v. UNION OF INDIA 
347 
The Judgment of the Court was delivered by 
A 
JAGDISH SINGH KHEHAR, CJI 1. An agreement dated 
21.04.1965 was executed between the appellant-Kammp Industrial Gases 
Ltd., and the respondent-Diesel Locomotive Works, Varana

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