Application for Setting Aside an Award and Interim Relief
Matter No. ……………… of 1999
In the High Court at Calcutta Ordinary Original Civil Jurisdiction
In the matter of:
The Arbitration and Conciliation Act 1996
In the matter of:
An application under section 34 of the said Act
In the matter of:
An Award dated 3rd July 1999 made and published by Mr. S. Roychoudhury, the Learned Sole Arbitrator
In the matter of:
Clarion Marketing Agency, carrying on business at 99 Chowringhee Road, Calcutta 700 071 within the said jurisdiction
1. Eastern India Publishers Ltd., a company registered under the Companies Act 1956 and carrying on business at
78 Mission Row, Calcutta 700 013 within the said jurisdiction
2. Mr. S. Roychoudhury residing at
5 Alipore Road, Calcutta 700 070 outside the said jurisdiction
The Hon’ble Mr. ……………………, Chief Justice and His Companion Justices of the said Hon’ble Court
The humble petition of Distributors Ltd. the petitioner above-named most respectfully
1. Your petitioner carries on business as distributor of and dealer in books and other publications.
2. The first respondent is the publisher of the book called Principles and Forms of Pleading. Under an agreement your petitioner was appointed the distributor of the said book and the first respondent agreed to deliver 10,000 copies of 1998 Edition of the said book.
3. The first respondent delivered 8,000 copies of the said books of the said edition which the petitioner distributed and sold and paid the sale price of the said books to the first respondent after deducting the agreed commission. There is no dispute so far as these 8,000 copies of the said book are concerned.
4. In breach of the agreement the first respondent failed to deliver the balance 2,000 copies in spite of requests on the plea that these had been sold out and there was no stock of the said publication.
5. Under the said agreement the disputes and differences were to be referred to respondent No. 2 for settlement of the dispute by arbitration.
6. The dispute was referred to the respondent No. 2 and your petitioner filed the statement of claim and the respondent filed the counter-statement of claim.
7. At the arbitration proceedings your petitioner gave evidence that if the balance 2,000 copies were delivered by the first respondent then your petitioner would have earned an income of
8. Your petitioner contended that your petitioner was entitled to receive the delivery of the said 2,000 copies of the said book from its next edition in addition to the agreed 10,000 copies of the next edition of the said book.
9. After hearing the parties the Learned Arbitrator gave an Award for Rs. 40,000 and interest at 10% per annum from the date of breach of agreement by the first respondent for not delivering 2,000 copies of the said book.
10. Your petitioner states that the said Award is invalid and could not be given effect to and is liable to be set aside as invalid.
11. The Learned Arbitrator acted beyond the scope of the agreement, did not consider the provisions of the Specific Reliefs Act and acted contrary to law applicable to the said arbitration proceedings and it contains decisions on matters not submitted to arbitration.
12. Your petitioner states that the said purported Award published by respondent No. 2 is bad, illegal, without jurisdiction and is a nullity. The said purported Award contains errors on the face of the Award, the respondent No. 2 misconducted the matters and/or the proceedings. The said purported Award is liable to be set aside on the grounds, inter alia, the following:
(i) For that the purported Award contains errors both of fact and of law.
(ii) For that the purported Award is invalid, illegal and without jurisdiction inasmuch as the Arbitrator did not grant the reliefs to the petitioner which the petitioner was entitled to under the contract.
(iii) For that the respondent No. 2 failed to adjudicate upon the main issue as to whether the respondent No. 1 was liable to deliver to the petitioner 2,000 copies of the next edition of the book in addition to the contractual 10,000 copies of the book.
(iv) For that the purported Award is vitiated by reason of violation of the principles of natural justice inasmuch as the petitioner was absent at two meetings though your petitioner’s Advocate appeared and the respondent No. 2 proceeded with the proceedings in spite of the absence of your petitioner.
(v) For that the Learned Arbitrator held the meetings behind the back of the petitioner.
(vi) For that the subsequent opportunity given to your petitioner did not cure the defects of hearing ex parte.
(vii) For that the Learned Arbitrator misconducted himself and/or the proceedings by purporting to curtail the scope of claim and confining the claim of your petitioner to monetary compensation.
(viii) For that the said Award is otherwise wrong both in fact and in law and is not a reasoned one.
13. Your petitioner will crave leave to refer to and rely on the proceedings, meetings and documents used before the Learned Arbitrator at the time of hearing of the application.
14 In the facts and circumstances your petitioner states that the said Award be set aside and cancelled and be taken off the file.
15. An Order of Injunction be issued restraining the respondents from taking any further steps or any step prejudicial to the petitioner.
16. This application is made within 30 days of the said Award.
17. The orders prayed for are necessary and unless they are passed your petitioner will suffer loss and will be prejudiced.
18. This application is made bona fide and in the interest of justice.
Your petitioner, therefore, humbly prays Your Lordships for the following orders:
(a) The purported Award be set aside and cancelled;
(b) An order of Injunction be passed restraining the respondents from taking any steps prejudicial to your petitioner;
(c) Ad interim orders in terms of prayers (a) and (b) above;
(d) Costs of and incidentals to this application be paid by the first respondent;
(e) Further orders be made and directions be given as to this Hon’ble Court may deem fit and proper.
And your petitioner as in duty bound shall ever pray.