K. Vijay Gopal Vs Oil and Natural Gas Corp. Ltd., & Another

2.DR J K JASSAL SOLE ARBITRATOR GENERAL MANAGER, (HR) /ONGC LIMITED, CAMBAY SUB ASSET, OFFICE OF THE SUB ASSET MANAGER, P.O. KANSARI388 630 VIA ANAND, GUJRAT.

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...RESPONDENT(S):

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Appeal Under Section_____against orders

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IA NO: 1 OF 2011(CMAMP 2425 OF 2011

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Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to condone the delay of 16 days in filing the Appeal and pass

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IA NO: 4 OF 2011(CMAMP 52992 OF 2011

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Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased

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Counsel for the Appellant:

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1.KASIM NAGASAIM

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Counsel for the Respondent(S):

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1.D S SIVADARSHAN

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The Court made the following:

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HON’BLE SRI JUSTICE RAO RAGHUNANDAN RAO AND

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HON’BLE SRI JUSTICE T.C.D. SEKHAR

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CMA No.33 OF 2016

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JUDGMENT:- (Per Hon’ble Sri Justice T.C.D. Sekhar)

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The present Civil Miscellaneous Appeal is filed under Section 37 of the Arbitration and Conciliation Act, 1996, aggrieved by Judgment dated 01.07.2011 passed in AAOP No.7 of 2008, on the file of Principal District Judge, East Godavari at Rajahmundry.

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The appellant/claimant entered into contract bearing No.AGP/TPT/900/2001, dated 23.011.2001 for supply of boat with crew for operational purpose of it at Vodalarevu for a period of four (04) months i.e., 06.10.2001 to 05.02.2002. After the expiry of the said contract and on verbal instructions of the 1^st respondent representatives the contract was extended for a further period subject to the same terms and conditions and the rate as agreed earlier a letter of consent dated 01.02.2002 was issued to the appellant. Thereafter, the 1^st respondent prepared a fresh contract bearing No.KGP/TPT/900/2001, dated 03.05.2002 for supply of boat for a period of eight (08) months from

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08.02.2002 to 07.10.2002, which was signed by the appellant on 14.05.2002.

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It is further case of the appellant that, he received notice dated 26.06.2002 from the 1^st respondent that the boat services are not required for a period of two (02) months from 01.07.2002 to 31.08.2002 and thereafter the boat services were not utilized by the 1^st respondent during the remaining period of contract from 01.09.2002 to 07.10.2002. In view of the same, the appellant claimed standby charges during the period when the services were not utilized from 01.07.2002 to 07.10.2002 as the 1^st respondent refused to pay the said amount. Pursuant thereto, the appellant claimed an amount of Rs.4,64,555/- before the Arbitrator for the period when de-hiring clause of the contract was invoked by the 1^st respondent. The Arbitrator/2^nd respondent after hearing the parties passed award dated 15.08.2008, directing the 1^st respondent to pay an amount of Rs.4,64,555/- to the appellant. Aggrieved by the said award, the 1^st respondent preferred petition in AAOP No.7 of 2008 under Section 34 of the Act before the Principal District Judge, East Godavari at Rajahmundry. The learned District Judge by impugned order dated 01.07.2011 allowed the petition by setting aside the Arbitration Award dated

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15.08.2008 signed on 18.08.2008 by the 2^nd respondent herein. Questioning the said order the present appeal is filed.

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Heard counsel for the petitioner and counsel for the respondent No.1.

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It is the specific case of the appellant that the 1^st respondent that the 2^nd agreement dated 14.05.2002 was entered into by duly extending the contract to supply of boat with crew for operational purposes subject to the same terms and conditions and rate as agreed in contract bearing No.AGP/TPT/900/2001, dated 23.11.2001 for a further period of eight (08) months. In view thereof, the 1^st respondent is precluded to deny the standby charges claimed by the appellant during the period when the services were not utilized from 01.07.2002 to 07.10.2002. It is further contended that the de-hiring clause is deliberately included in the extended contract though such clause was not found place in the earlier contract. Since the contract is extended based on the same terms and conditions, the inclusion of de-hiring clause is erroneous.

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On the other hand, the counsel for the respondent would submit that the 2^nd contract entered into between the parties vide No.KGP/TPT/900/2001, dated 03.05.2002 is an

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independent contract and clause No.2.2 at page No.3 of the agreement dated 14.05.2002 includes rehiring clause, by taking into consideration of the same, the learned District Judge set aside Award dated 15.08.2008.

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On perusal of the record it is clear that before the 2^nd agreement dated 15.05.2002 was entered into, the 1^st respondent addressed letter dated 03.05.2002, while extending the contract for a period of eight (08) months from 08.02.2002 to 07.10.2002, it is clearly mentioned therein that the boat may be de-hire at any time at the sole discretion of ONGC by giving three (03) days notice in writing. No compensation/claim will be entertained in this regard. Thereafter, the appellant entered into agreement dated 14.05.2002 with eyes wide open. On perusal of the said clause in letter dated 03.05.2002, it is clear that the 1^st respondent had got discretion of de-hiring by giving three days notice and in such an event the appellant is not entitled to claim any compensation in that regard. Though, all the terms and conditions are similar to that of earlier contract, except the clause relating to de-hiring, admittedly the 2^nd agreement dated 14.05.2002 is an independent agreement and therefore the appellant cannot compel the 1^st respondent to pay the standby charges for the period to which the

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boat was de-hired. Further, the parties entered into the said agreement accepting the said condition of de-hiring which is also apparent on perusal of letter dated 03.05.2002. Therefore, it is not open to the appellant to contend that the 2^nd agreement dated 14.05.2002 is the extension of earlier agreement dated 23.11.2001. Further, the original agreement dated 23.11.2001 was expired and thereafter the 2^nd agreement was entered into between the parties wherein, de-hiring clause was inserted to which the appellant has given consent.

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From the above, it is clear that the claim of the appellant is not valid in view of specific clause of de-hiring the boat under agreement dated 14.05.2002. Having considered the contentions of both the parties, the learned Principal District Judge, rightly allowed the petition of the 1^st respondent by set aside the award dated 15.08.2008.

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