JUDGMENT
S.K. Agarwal, J.
1. This order will dispose of objections filed under Section 34 of Arbitration and Conciliation Act, 1996 (for short “the Act”) against the award dated 13th October, 1998.
2. In pursuance of the arbitration agreement dated 21th May, 1993, MMTC Ltd. (respondent No.1) appointed Justice K.S. Sidhu (Retd.); and petitioner M/s. Chadha Jewellers appointed Mr. Nirmal Singh, Advocate as the arbitrators. The two arbitrators acting in accordance with the provisions of Section 11(3) of the Act, appointed Justice N.C. Kochhar (Retd.) as the third arbitrator to decide their disputes and make the arbitral award, in respect of disputes arising under and out of or relating to the contract dated 21st May, 1993. The tribunal, required the parties to enter appearance and submit their respective statement of claims with supportive documents. MMTC Ltd.-respondent No.1 appeared and filed statement of claim duly supported with documents. Petitioner was duly served but did not file the statement of defense despite several hearings. On the basis of the statement of claim, the Tribunal framed the following issues:-
“1. Whether the claimant delivered to the respondent six Kilos of gold in all in terms of the contract between the parties?
2. Whether the claimant is entitled to claim from the respondent a sum of Rs. 51,52,684/- (Fifty One Lakhs, Fifty Two Thousand Six Hundred and Eighty Four Only) as per calculations given in para 6 of the statement, or what amount, if any?
3. To what amount of interest, if any, is claimant entitled?
4. Whether the Claimant committed a breach of contract thereby subjecting the respondent to suffer loss?
5. If issue No.4 is answered in favor of the respondent, what amount of damages, if any, the respondent is entitled to recover from the Claimant?”
3. The claimant filed copies of documents in support of its claim and also filed affidavit by way of evidence. On 28th April, 1998, the claimant brought original documents for admission/denial but the objector (petitioner), who was present in person refused to admit or deny the documents on the ground that his counsel had advised him not to admit or deny any document in his absence. The Tribunal acting under Section 24 of the Act formally decided that the proceedings shall be conducted on the basis of documents and other materials, on hearing oral arguments of both sides. On the application of MMTC Ltd. statement of claim was permitted to be amended. Notice of amendment application of the statement of claim was sent to the petitioner, who avoided receiving the notice. The Tribunal felt satisfied and for the reasons recorded in the order dated 25.8.1998 held that petitioner was duly served. The petitioner was proceeded ex parte. Amended statement of claim with supportive documents and materials filed by claimant was taken on record. Notice for appearance was sent again to the objector by speed post with copies of amended statement of claim and the documents. The petitioner M/s. Chadha Jewellers avoided to receive the same. The Tribunal after considering the pleadings of the parties and other documents and material on record held that pursuant to the contract between the parties the claimant lent to the petitioner 4 kg. of gold on 21.5.1993. The petitioner agreed to repay the loan in gold by repurchasing equivalent quantity from the claimant at a later date at a price prevailing at the time of repurchase plus foreign suppliers commission at the rate of U.S. Dollar 0.25 and delivery charges at the rate of 1.20 within a period of 90 days. He also agreed to pay interest at actuals as paid by the claimant to the suppliers at the rate of 2.75% on the quarterly average London fixing price for the borrowing period plus two days. He also agreed to pay to the claimant income tax payable at the applicable rate from time to time in advance and service charges at the rate of 0.8% on CIF value. The Tribunal held that in addition to the aforementioned loan of 4 kgs. of gold, the claimant delivered another 2 kgs. of gold to the objector’s agent on 8.6.1993 on the same terms and conditions. Thus the total quantity of gold loaned to the respondent was alleged to be 6 kgs. of gold. The respondent converted 2 kgs. of gold, out of 4 kgs. borrowed by him on 21.5.1993 and exported it on 8.6.1993 vide invoice No.CHA/02/93-94 dated 31.5.1993. The claimant, in whose name the export had been made, had to call the consignment back because the foreign buyer refused to retire the documents by making payment to the bankers of the claimant and for that reason, the claimant did not seek the recovery of the price of 2 kgs. of gold which it had received back in February, 1994. The claimant sought recovery of Rs. 54,15,570/- as per the details given in the statement of claim along with interest as per terms and conditions contained in the contract between the parties along with interest for the remaining quantity of 4 kgs. of gold, actually delivered to the respondent and not exported by him, the claimant sought recovery of the price of the gold at the rate prevailing at the material time and other charges in accordance with the agreement between the parties.
4. I have heard learned counsel for the parties and have been taken through the record. Law with regard to the powers of the Court to review the arbitral award is well settled. The Court has no right to review the award of the Arbitrator or to act as the Court of appeal to consider the correctness of the award on facts. It cannot reappreciate the evidence and examine the correctness of the conclusions arrived by the Arbitrators. The Court should approach the award with a desire to support it if that is reasonably possible, rather than to destroy it. Reference in this regard can be made to the Apex Court decision in Bijendra Nath v. Mayank, , Trustee Port of Madras v. Engg. Contn. Corpn., and N. India Erectors v. O.N.G.C., JT (1997)2 SC 633.
5. Learned counsel for petitioner argued that the award is based on no evidence since the original documents were neither filed nor produced on record and the award made on the basis of copies of documents is liable to be set aside. Perusal of the award as well as arbitral record reveals that the petitioner and his counsel were given opportunity to examine and inspect the original documents, attested copies of which were placed on record by the claimant before the Arbitral Tribunal. The Tribunal permitted the petitioner to inspect the original record at the chamber of the Presiding Arbitrator but the petitioner’s counsel did not agree. On 28.4.1998 original documents were put up before the petitioner whenever he appeared in person. He refused to carry out any admission/denial stating that his counsel had instructed him not to admit or deny any signatures/documents in his absence. After giving several opportunities to the petitioner to inspect, admit or deny the original documents, the Tribunal decided the disputes on the basis of materials and evidence available on record as provided under Section 24 of the Arbitration & Conciliation Act, 1996. In view of this, I find no merit in the contention that the original documents were not produced.
6. Learned counsel for the petitioner next argued that the petitioner was proceeded ex parte and after the statement of claim was amended no service was effected on the petitioner before permitting the amendment. This argument is against the record. After the amendment application was moved, notice was sent to the petitioner but he refused to accept the same. This contention again is without any merit.
7. Learned counsel for petitioner also argued that there was no dispute with regard to the contract No.M-254 which was a separate contract and the same was beyond the jurisdiction of the arbitral tribunal. The statement of claim clearly refers to both the contracts and is duly supported by documents. There is no merit in this submission and the same is rejected.
8. Learned counsel for petitioner argued that the misconduct of the Arbitrators is manifested by the fact that value of the gold had never been more than Rs. 5,000/- per 10 gms. at any time and the award holding that petitioner is liable to pay Rs. 47,83,042/- towards 4 kgs. of gold is bad in law and against the principles of natural justice. I have gone through the Award. Relevant portion of the Award reads as under:
“…..In fact, while admitting and denying documents under advice of his counsel, the respondent made a half-hearted denial in respect of the transaction of delivery, dated 8.6.1993 in respect of 2 kgs. of gold. The denial is based on the plea that Ram Singh, the recipient of delivery, had not been authorised to receive it on his behalf. We are satisfied on the basis of the documents before us that Ram Singh had been duly authorised by the respondent to receive the questioned delivery and that he had actually received it and passed it on to the respondent.
The documents annexure-C bearing the title “Hypothecation Agreement for Pre and Post Shipment Credit Advances” makes it quite clear that as per agreement between the parties interest is payable @ 15.5% per annum on the sum advanced by the M.M.T.C. and remaining due on such account. We therefore, decide that the respondent is 19;18H liable to pay interest to the claimant @ 15.5% on the amounts that we are awarding herein from 11.12.97 till payments.
In view of our findings on the interest against items no.3 and 7 of the claim of the claimant mentioned at page no.6 of the award, we hold that the respondent is liable to pay to the claimant a sum of Rs. 47,83,042 (Rupees forty seven lakhs eighty three thousand & forty two only).
In conclusion we hereby make our award directing the respondent to pay to the claimant a sum of Rs. 47,83,042 and an interest thereon @ 15.5% per annum from 11.12.97 till payment. We leave the parties to bear their own costs.”
In view of this finding, there is not merit even in this argument and the same is rejected.
9. Learned counsel for the petitioner lastly argued that the petitioner/objector M/s. Chadha Jewellers has been declared bankrupt, therefore, the Award is liable to be set aside. This objection is being noticed to be rejected. The effect of bankruptcy can be pleaded only during the execution proceedings.
For the aforesaid reasons, I find no merit in the objections and the same are dismissed. The award dated 13.10.1998 is made Rule of the Court.