ORDER
S. Rajeswaran, J.
1. This O.P. has been filed under Section 34 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as ‘the Act’) to set aside the award dated 28.6.2002 passed by the 2nd respondent declaring the same as null and void, consequently to grant a permanent injunction restraining the 1st respondent from in any way invoking the bank guarantee bearing No. 6/99 dated 6.11.1999 issued by the 3rd respondent and to appoint a fresh impartial arbitrator conversant with the laws, on the subject to re-hear the matter.
2. The petitioner is carrying on the trade of printing and publishing telephone directories for the Bharat Sanchar Nigam Ltd. (hereinafter called BSNL) on contract basis as its principal business. On 7.10.1999 the petitioner entered into a contract with the 1st respondent for printing and supplying of Madurai SSA Directory for 5 consecutive years commencing 2000 issue. The first telephone directory to be printed and supplied to 1st respondent became due to be published in the year 2001 on account of various delays on the part of the 1st respondent. The petitioner delivered about one lakh copies of the directories and was making preparations for printing further copies. The petitioner had already furnished bank guarantee for a sum of Rs. 10 lakhs issued and guaranteed by 3rd respondent bank.
3. While so, on 21. 5 2001 the 1st respondent issued, s press statement defaming the petitioner and making it appear that the petitioner would not deliver the said copies of telephone directories and the petitioner might be subjected to legal action. The public at Madurai and other clients of the petitioner who read the press statement reacted by withdrawing their advertisement in the directory refusing to pay amounts due by them to the petitioner and they went, on to issue legal notice to the petitioner. This resulted in the petitioner closing down the Madurai branch and suffering huge loss. The petitioner could not continue the business and therefore initiated arbitration proceedings to enquire into this issue and to find if the contract could be performed further. Fearing untimely encashment of the bank guarantee, the petitioner approached this Court for an interim stay in Application No. 527/2001. This Court in and by order dated 8.11.2001 directed the petitioner to keep the bank guarantee already given alive till the disposal of the arbitration proceedings.
4. The 2nd respondent was appointed as arbitrator by Telecom Board on 15.3.2002. The petitioner received an intimation from the 2nd respondent fixing the date of 1st hearing on 21.6.2002 at his office at Trivandrum. The petitioner attended the hearing on that date and the petitioner obtained the copy of the reply to the arbitration petition filed by the 1st respondent.
5. The petitioner prepared draft issues and sent it by courier on 27.6.2002 which was received by the 2nd respondent arbitrator on 28.6.2002. But, on 17.7.2002 the petitioner received an award dated 28.6.2002 from the 2nd respondent arbitrator even before there was a proper hearing, but only with one sitting. Aggrieved by the award dated 28.6.2002, the petitioner has filed the above O.P. under Section 34 of the Act, 1996.
6. The petitioner raised the following grounds to assail the award dated 28.6.2002:
1) The 2nd respondent has failed to consider the main issue namely, the press statement of the 1st respondent and subsequent frustration of the contract.
2) The 2nd respondent is a Junior, Officer of the 1st respondent and he has not conducted the arbitration in an impartial manner.
3) The 2nd respondent has despatched the award on 16.7.2002 after 17 days after it was passed.
4) The draft issue sent by the petitioner were not at all referred to by the 2nd respondent in the award.
7. The 1st respondent entered appearance through its counsel and filed a counter statement.
8. It is stated by the 1st respondent that the petitioner delivered only 98,650 copies instead of total quantity of 2,46,809 copies and the petitioner had abruptly stopped further supplies of copies.. The 1st respondent did not give any press statement and he only replied for a question raised by a press reporter in connection with the issue of telephone directories. On 21.6.2002, the Asst General Manager (Commercial), Madurai attended the arbitration on behalf of the 1st respondent and the petitioner did not ask for second hearing and therefore there is nothing wrong if the award was finalised by the 2nd respondent on 28 6.2002. As per the terms and conditions of the agreement, the arbitrator is to be appointed by the Member, Telecom Board and the petitioner has not raised any objection before the arbitrator about his impartiality or independency etc. The award is a reasoned one addressing the main issues involved in the disputes and the petitioner has not raised any ground that would come under the purview of Section 34 of the Act, 1996 warranting interference by this Court.
9. Heard Mr. K. Venkatapathy, the learned Senior Counsel for the petitioner and the learned Additional Central Govt. Standing Counsel for the 1st respondent. I have also gone through the documents filed in support of their submissions.
10. In the claim petition filed, the following reliefs have been prayed for:
a) find that the Opposite Party has failed to give advance information for supply of sufficient No, of copies and hence the Claimant has not violated the terms of the Contract, that in view of the Opposite party’s hurried action of press release with damaging allegations against from the Advertisers resulting in a huge loss to the claimant and that the Opposite Party is liable to compensate the Claimant for the same.
b) Order that for the future years, the terms of the contract should be modified so as to enable the Claimant to deliver the entire required No. of copies in time.
c) Order that the Claimant is not liable to pay any amount by way of penalty or otherwise and hence the Opposite Party cannot claim any penalty etc. from the claimant either by way of encashing the Bank Guarantee or otherwise.
d) Order payment of an amount, to be decided by this Hon’ble Arbitrator, to the Claimant for the loss and damages suffered by the Claimant due to the press statements made by the Opposition Party.
e) And pass such further or other orders as this Hon’ble Arbitrator may deem fit to pass.
11. By the award dated 28.6.2002 the 2nd respondent had rejected the entire claim and directed that the performance bank guarantee shall be forfeited and the agreement amount of Rs. One lakh paid by the petitioner shall be refunded by the 1st respondent.
12. The 2nd respondent arbitrator found that the petitioner supplied only 98,650 copies of the directories against more than 2 lakhs copies intended. Since the quantities of the directories were insufficient when compared with the total number of customers, the 1st respondent did not commence the release of the directories to the public. The 1st respondent extended a month’s time, to the petitioner to supply the balance of 1,48,159 copies of directories from 22.5.2001, but the petitioner issued a show cause notice claiming a total damage of a sum of Rs. 1,12,26,300/-.
13. The 2nd respondent arbitrator after going through the letter dated 11.4.2000 sent by the petitioner observed that this letter was issued as a notice indicating the petitioner’s readiness to withdraw from the contract. The second respondent arbitrator has also referred to the fact that after supply of 98,650 copies of directories the petitioner was explaining about the escalation of cost in printing further directories and the financial crisis faced by the petitioner. The 2nd respondent arbitrator has also held that the petitioner being a reputed publisher would be well aware of the variation of cost and price of materials in advance while signing the agreement. Insofar as the press statement is concerned, the 2nd respondent arbitrator after going through the press news observed that what was expressed in the press news is the actual status of the directory issued to the public and the contents of the news was not in the view of making any damage to the petitioner. But the 2nd respondent arbitrator was also of the opinion that the petitioner could have taken immediate steps to supply the committed quantity of directories so as to commence release to the public by the 1st respondent instead of taking averments against the contract itself. The 2nd respondent arbitrator finally held that the decision taken by the petitioner to withdraw from the contract and not completing the work for the 1st issue of directories does not seem to be in order.
14. Section 34 of the Act, 1996 imposes certain conditions while an award is challenged before this Court and an award cannot be interfered with if no grounds are made out as mentioned under Section 34 of the Act, 1996.
15. The award of the 2nd respondent arbitrator is a reasoned one addressing the issues involved in the dispute. It is true that draft issues sent by the petitioner were received by the 2nd respondent arbitrator on the same day when the award was made ready. But that does not mean that the award is liable to be set aside on that score only. An award cannot be set aside on the ground that issues were not framed by the arbitrator as per the draft issues sent by the claimant. If the award is a reasoned one and the arbitrator arrives at a conclusion on the basis of the evidence, the same cannot be interfered with.
16. An attempt was made by the learned Senior Counsel for the petitioner that no opportunity was given to the petitioner before the arbitrator to present their case. But the 2nd respondent arbitrator permitted the parties to submit their written submissions and only thereafter on the basis of pleadings and accompanying documents proceeded to pass an award. Insofar as the impartiality and independency of the arbitrator is concerned, it is not in dispute that the 2nd respondent arbitrator was appointed as per the relevant clauses in the agreement. Even otherwise such contention should have been raised before the 2nd respondent arbitrator himself and without doing so the petitioner cannot be permitted to make such objections before this Court after suffering an sward. The fact that the 2nd respondent arbitrator took 17 days to send the award after passing the same on 28.6.2002 is not relevant for the purpose of assailing the award.
17. In the result, I do not find any grounds made out by the petitioner to set aside the award under Section 34 of the Act, 1996 and therefore the O.P. is dismissed for devoid of merits. No costs.