Sanjay Kishan Kaul, J.

1. Indian Petrochemical Corporation Ltd (for short, IPCL) entered into a distributorship agreement (hereinafter referred to as the said agreement) with the respondent on 13.01.1991 for the execution of which the respondent/distributor maintained a depot in Varanasi where it traded various goods produced by IPCL. The said agreement was renewed on a yearly basis. It is stated that in 1997, certain loopholes arose in the said agreement due to failure in exercising of due control on financial management by the petitioner in relation to various customers. Certain sale proceeds which were to be recovered by IPCL were not recovered by them in time but goods continued to be supplied to such customers. It is claimed that IPCL passed on its liabilities to the respondent.

2. It is stated that there were certain categories of consignment from IPCL which were handled by the respondent and IPCL had dispatched material to customers falling within the said categories and that when sale proceeds against such customers were not recovered the same were imposed/shown as arrears payable by the respondent even though it was not covered by the agreement.

3. It is stated that the agreement dated 1.10.1997 was renewed by a circular dated 04.12.1998 wherein in the schedule, certain products were included which were not part of the schedule items of the previous agreements. It was alleged by the respondent that huge amounts were shown as dues payable by the respondent against such products. The respondent claimed that it had brought these errors to the notice of IPCL but IPCL stopped the supply of goods after June 2000 and the distributorship agreement was also not renewed.

4. The respondent filed a civil suit being suit no. 1783/2000 against the regional manager, financial controller, sales manager, and director marketing of IPCL for a permanent injunction against the invocation of certain bank guarantees and also the relief of a direction to the said officers of IPCL to dispatch goods as per the dispatch schedule issued and payment debited. The bank which had issued the said bank guarantees was also made a party. In the said suit, an application under Section 8 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the said Act) was filed for reference of the disputes to arbitration in terms of the rules of the Indian Council of Arbitration. The existence of the arbitration clause in the agreement was not in controversy. The said suit was disposed of vide order dated 29.10.2001 in terms whereof, all the disputes between the parties including disputes raised in the plaint in the said suit were to be referred to arbitration in accordance with the rules 20 and 21 of the Indian Council of Arbitration.

5. An arbitral tribunal of three arbitrators adjudicated the disputes. The claimant i.e. respondent herein preferred 14 claims praying for the relief of renewal of the said agreement as also payment of Rs. 6,49,16,428.55 and other compensation and reliefs sought in the petition. The arbitral tribunal in a detailed award dated 31.08.2005 running into about 140 pages found the petitioner liable to pay to the respondent a sum of Rs. 3,36,50,615/- along with pendente lite and future interest on the said amount @ 10 per cent per annum besides costs. The present petition has been filed challenging the said award.

6. It may be noted that under a scheme of amalgamation between IPCL and M/s Reliance Industries Ltd. stated to be approved by the Gujarat High Court in C.P. 93/2007 on 16.08.2007, IPCL was merged into Reliance Industries Ltd. Reliance Industries Ltd. was thus substituted as the petitioner vide order of this court dated 11.09.2007.

7. IPCL has stated in the present petition that Claim A raised by the respondent deals with MOU Customers with respect to whom the tribunal has held that the customers were outside the agreement between IPCL and the respondent and was a separate contract. It is alleged that the arbitral tribunal acted in ignorance of clause 15 (a) of the said agreement where under the respondent was responsible for collection of payments from all customers. The said clause is as under:

15 (a) It is clearly understood that the distributor shall act as Del credre Agent for the company vis--vis customers/buyers in respect of money due to the company from such customers/buyers on account of sales effected by the company through the distributor irrespective of whether such sales take place out of stocks held by the company at its works or warehouses, or out of stock held by the distributor on behalf of the company at his warehouse.

8. It was averred that this aspect had been raised before the tribunal. A reference was made to the award wherein it has been recorded in para 61 that respondent has referred to various clauses of the said agreement and contended that the respondent was a consignment stockist for the sale of products of the petitioner. It was open to the respondent to sell the products at a lower price but the difference in actual and account prices were to the account of the respondent. It was also contended before the arbitral tribunal that the MOU was entered into by the petitioner with select customers referred to as MOU Customers in the whose selection the respondent had no role. The respondent was also not party to the MOUs. The Tribunal found that the MOU sales were covered by separate agreements between the respondent and MOU customers and the respondent could not be held answerable for sales to any other party under different and separate agreements and cannot be fastened with the liability arising out of such sales. The contention of IPCL based on clause 15 (a) that the distributor shall be a del credre agent was not found tenable by the tribunal.

9. Learned senior counsel for the petitioner referred to clauses 11,15, 16 and 17 of the said agreement which are as under:

11. The distributor undertakes to post directly to the officer of the company as may be indicated by the company from time to time, a true and correct account of sale as well as that of stocks on such forms as may be prescribed by the company from time to time in this behalf at such intervals as may be directed by the company from time to time. Such account shall adequately list out of the sales of each consignment of the said products and shall be duly supported by copies of the invoices.....

15. The distributor shall be liable to the company for realization and payment of price of the said products or any part or parts thereof from their own customers/buyers and the company does not assume any liability whatsoever in this regard. The company shall subrogate any litigation filed at the request of the distributor for recovery of dues from customers and provide all reasonable assistance to the distributor in such litigation... Should the distributor fail or otherwise neglect to remit the sales proceeds as aforesaid, the company shall be entitled to enforce the bank guarantee in full or in part as the case may be and realize the amount due to it along with the interest charges as fixed by the company. The Distributor shall not in any way create any impediments in such enforcement of the bank guarantee... .... ... ... ... ..

16. For the services rendered by the Distributor under the contract the company shall pay to the Distributor, a service charge of Rs. 375/- (Rupees Three Hundred Seventy Five only) per metric tonne of Rs 500/- Rupees Five Hundred only per metric tonne of Indothene, Indothene HD, Koylene, Koylene CP, Indovin, Imported Low Density Polyethylene (LDPE), Imported Polypropylene (PP) and Linear Low Density Polyethelyen (LLDPE) depending on the quantum of sale of the said products by the distributor (consignment stockiest) and after the company has received the sale proceeds unless parties hereto otherwise decide.

17. The distributor shall sell the products as per the distributorship norms/supply policy communicated to them from time to time...... ......

10. Learned counsel for the petitioner contended that the respondent was issuing consignment invoices for selling goods on consignment sales basis and the commission was the same for all sales made on consignment sales basis both to MOU customers and other customers. In this behalf, a reference was made to an invoice issued by the respondent to one Maya Industries.

11.A reference was also made to an MOU between the petitioner and one M/s Suresh Raj Packaging Pvt. Ltd Ltd. Clause 16 of the said MOU states that the supplies would be made through the respondent. It has also been stated in clause 13 that in the event of limited availability, supplies would be made on priority to MOU customers.

12. Learned senior counsel for the petitioner also referred to the ledger account maintained by the respondent of one Venus Extrusions (P) Ltd wherein discounting of various letters of credit has been shown. It was thus contended that the MOU supply was covered by letters of credit.

13. A reference was made to a letter dated 19.06.2000 of the respondent addressed to the petitioner regarding rectification of accounts. The respondent had raised the issue of Regional Products Dispatch Advice (for short, RPDA) sales which were effected directly between IPCL and M/s Venus Extrusions. It has been stated that the goods were not routed through the respondent and the payments were being made directly to the petitioner and that in respect of the bouncing of cheques, a criminal case was filed by IPCL against the said party. It is thus claimed that the respondent was not involved in any way. It was contended that the distributor decided on the reliability and credit worthiness of customers. wherein it has been stated with regard to M/s Suresh Raj Packaging that the party is dependable and has been a customer of good reputation and that the due amounts are expected to be cleared within a year. It has also been stated that as the recoveries were being made at regular intervals, the same should not be recovered from the respondent on a lump sum basis.

14. It was submitted by the petitioner that the MOU sales procedure was introduced in 1993-1994 and was applicable uniformly across the country. The MOU is not a binding contract and only creates certain rights regarding discounts. MOU sales fall within the normal sales conducted by the distributor and the consignment invoice was raised by the distributor. Such sales were also reflected in the turnover for sales tax returns. The petitioner averred that the respondent worked within the framework of company policy till June 2000 and the fact that the respondents owe money to the petitioners is reflected in the balance sheets of the respondent till May 2000. It was contended that it is only subsequently that the respondent disputed sales to MOU customers on the ground that sales to MOU customers were outside the scope of the said agreement and MOUs were separate contracts between the petitioner and such customers.

15. Learned counsel for the petitioner referred to the plaint filed in suit no. 1783/2000 wherein one of the reliefs prayed for is restraining the officers of the petitioner from debiting dues from the account of the respondent (plaintiff therein) as recoverable from customers outside the distributorship agreement. The order dated 29.10.2001 directed the reference of all the disputes between the parties including disputes raised in the plaint of the suit. It was contended that there was only one such case with regard to payment to the petitioner by one Swastik Tubes Pvt. Ltd after the termination of the agreement. The respondent had sent a legal notice to the said Swastik Tubes Pvt. Ltd under Section 434 (1) (a) of the Companies Act, 1956.

16. A reference was made to the conclusions of the arbitral tribunal as regards their contention that the respondent was a del credre agent. The arbitral tribunal has observed that insofar as del credre agents are concerned, the essence of the matter is that extra commission is paid to such agents to stand guarantee for due performance of his part of the contract by the principal debtor and a demand on the principal debtor is made before the principal debtor is made liable. It was found that in the present case, there was no plea of any extra remuneration being agreed upon between the petitioner and respondent by way of del credre commission. The tribunal was of the view that it cannot be implied from the commission paid under the said agreement for sale of stock through the distributor that the amount included extra remuneration for acting as a del credre agent. It was also observed that there was no plea or anything to show that any demand was made on M/s Venus Extrusion before liability of the respondent was sought to be enforced. The provision made in the RPDA scheme was that distributors cheques will be deposited if the cheques deposited by customers on due dates bounce. It was found that there is nothing to show that the procedure was followed and the condition precedent for enforcement of the respondents liability was followed. The finding was thus reached that the petitioners contention based on clause 15 (a) of the said agreement was not tenable.

17. Learned counsel for the petitioner contended that if the MOU customers were under independent contracts as found by the tribunal, the disputes would not be arbitrable under the present contract and thus no award could have been made for the payment of money to the respondents on this account.

18. It was contended that the respondents had shown the debts of the alleged MOU customers as their own debts which have been duly reflected in the books of accounts. The total claim made by the respondent included M/s Venus Extrusions. It was contended that the respondent, in a statement filed with the Central Bank of India claimed the debts as their own debts and had pledged with the bank an authorization through POA for the recovery of the amounts in case of default. Reference was made to the said list of sundry debtors which shows Venus Extrusion (P) Ltd. as a debtor to the tune of Rs. 45,85,493.13. It was also submitted that the respondent had made statements before statutory authorities including registrar of companies showing the debts as their debts. Learned counsel contended that this was opposed to public policy. It was also contended that the respondent cannot be permitted to approbate and reprobate. The arbitral tribunal has observed with regard to the aspect of the book debts that transactions between the respondent and third parties like the bank in matters such as hypothecation of book debts is not relevant and any such transaction going to the extent as perpetuation of fraud would not create any liability enforceable against the respondent by the petitioner and cannot be determinative of the inter se rights and liabilities of the parties in respect of the MOU sales.

19. The petitioner also submitted that while the last hearing of the Tribunal was held on 5.01.2004, the award was made after 1 years on 31.08.2005 while under the arbitration rules, it was to be made within two weeks. It was contended that this has resulted in the arbitral tribunal giving an award opposed to the public policy of India as enunciated by the Supreme Court in O.N.G.C. Ltd. v. Saw Pipes Ltd. AIR 2003 SC 2629 [LQ/SC/2003/517] .

20. Learned counsel contended that there were certain errors in the award including arithmetical errors. It was pointed out that claim B1 was awarded twice over. Further, details of the invoices under the MOU sales were not directed to be produced despite an application by the petitioner. And the officials of the Central Bank of India were not permitted to be examined and even re-examination of the witnesses of the respondent on the question of hypothecation of debts was also not permitted.

21. The petitioner also alleged that there are discrepancies between the interim award and the final award and that the reasons given for the dismissal of the counter claim in the interim award is different from the reasons applied in the main award on the arbitrability of claims.

22. It was submitted that the finding that clause 28 of the distributorship agreement was directory and did not exclude the operation of clause 29 is contrary to the contractual provisions as clause 29 expressly states that it is to operate subject to the provisions of clause 28. The said clauses are as under:

28. Notwithstanding anything contained in these presents any disputes including any rights and liabilities that may arise at any time hereinafter between the company and the distributor in relation to and in connection with the matter namely:

A).........

B).........

C) Financial liabilities of the distributor. The same shall be first discussed between the parties with a view to finding a solution. Provided, however, any statement or certificates relating to stock transfers, quantity and value of sales effected by the distributors, remittances made by the distributor and received by the company and debit/credit notes affecting the balance of the distributors account duty signed by an officer of the company shall be conclusive and binding on the distributor and shall not be within the scope of discussion or arbitration as mentioned in Clause 29 hereunder:

29. Subject to clause 28 above, all disputes or difference arising between the parties out of or relating to the construction, meaning and operation or affect of the contract or the breach thereof shall be settled by arbitration in accordance with the Rules of Arbitration of the Indian Council of Arbitration and the award made in pursuance thereon shall be binding on the parties. The venue shall be such place of business of the company as may be chosen by the company.

23. Learned counsel for the respondent on the other hand contended that clauses 8 and 15 of the said agreement show that the rights and liabilities of the respondent arising out of the said agreement between IPCL and respondent was with regard to the respondents own customers and not the MOU customers. It was pointed out that clause 8 of the agreement shows that the respondent could sell at the products at prices lower than the list price but the difference would be to the account of the respondent. Clause 15 of the said agreement recognizes the concept of own customer/buyer of the respondent.

24. It was contended by learned counsel for the petitioner that the MOU customers were being given interest free credit for up to thirty days which facility was not available to the respondents own customers. Again the facility of priority in supplies which was given to MOU customers was absent in the distributorship agreement. The respondent was not even a signatory to the MOUs.

25. Learned counsel referred to a letter dated 11.10.1999 addressed by the Sales Manager of IPCL to the respondent to contend that for the MOU customers, the petitioner was monitoring supplies. It is stated in the said letter that keeping in view the availability of PP/PPCP during October 1999 and the track record of customers against MOU, the customer-wise plan is being prepared at the petitioners end and would be communicated to the respondent for strict compliance.

26. Learned counsel referred to the cross examination of Mr. Rajiv Soni, Deputy Finance Manager of the petitioner who has admitted the statement formed a part of the letter dated 11.08.2000. Further learned counsel referred to admission/denial of documents by the petitioner (respondent therein) where the letter dated 11.08.2000 has been shown as admitted. Along with the said letter a statement was sent by the respondent regarding the arrears due from various MOU customers. Learned counsel for the respondent thus contended that the petitioner cannot now say that the said letter is of no evidentiary value.

27. It was submitted by the respondent that the interpretation given by the arbitral tribunal that the MOU sales were covered by separate agreements to which the respondent was not a party and the distributorship agreement was confined to the rights and liabilities arising out of transactions relating to the sale of products of the company by the respondent to its own customers is the only possible interpretation and in any even is a plausible interpretation and is thus not open to challenge. Learned counsel for the respondent submitted that there was direct dealing between IPCL and its MOU customers with regard to the credit facilities extended to such customers and even payments from such customers were received directly by IPCL. Thus, the liability of such customers could not be debited to the respondent. In support of his contentions, learned counsel referred to various communications between the MOU customers and petitioner and the respondent and IPCL. The letter dated 20.01.1998 on behalf of Venus Extrusion (P) Ltd addressed to IPCL seeks enhancement of credit facilities from the petitioner. Similarly, a letter dated 03.08.1999 from Swatick Tubes Ltd again addressed to IPCL seeks release of the credit note by them on account of having lifted PVC resin. The respondents also placed reliance on a letter dated 10.07.2000 written on behalf of the respondent to IPCL raising the issue of non payment of amounts due by various customers in lieu of the sale of various products by IPCL and pointing out that such customers have been getting fresh stocks from IPCL before making payments for the old stock. Learned counsel further referred to the notice sent by the petitioner dated 17.08.1999 under section 138 of the Negotiable Instruments Act, 1881 in respect of certain cheques that had been issued by M/s Venus Extrusions Pvt. Ltd and were returned with the endorsement of insufficient funds. It was submitted that a criminal complaint and proceedings before the BIFR were filed. A reference was made to the reply of M/s Venus Extrusions to the notice under Section 138 of the Negotiable Instruments Act wherein it has been stated at para 3 that in April 1998, the scheme (RPDA) was stopped and due to sudden stoppage of credit facilities, M/s Venus Extrusions faced difficulties. It is stated that it was agreed that the overdue amounts would be adjusted by taking only 80 per cent of the material against payment made by M/s Venus Extrusions and adjusting 20 per cent value of each bill against the arrears.

28. As regards claim B2 of the respondent, learned counsel submitted that the liability of Venus Extrusions Pvt Ltd, an MOU customer was to the extent of Rs. 74.97 lakhs as is reflected in the letter dated 19.06.2000 of the respondent addressed to IPCL. A letter dated 15.06.2000 of Venus Extrusions Pvt to IPCL states that a sum of about Rs. 50, 69, 089.25 excluding interest is yet to be paid to IPCL. It has also been stated therein that M/s Venus Extrusion is not in a position to get the cheques that were issued in favour of the petitioner and in favour of Madan Stores cleared. There was thus some financial difficulty being faced by Venus Extrusions. It was submitted that the arbitral tribunal had considered the letter dated 15.06.2000 and came to the conclusion that claim B2 of the respondent was to be allowed. In this behalf, reference was made to the award dated 31.08.2005 wherein the Tribunal has observed that the liability of Rs. 50.69 lakhs has been admitted by Venus Extrusion in clear terms and there is no specific denial of the fact that the amount in question was debited to the account of the respondent by the petitioner and no specific plea that the dues had been cleared by Venus Extrusion.

29. Learned counsel further referred to the letter dated 17.03.1998 on behalf of IPCL to M/s Venus Extrusions Pvt. Ltd. where under IPCL offered Venus Extrusion a discount over and above the MOU discount on lifting certain quantity of products

30. Insofar as Claim B1 of the respondent is concerned, it was pointed out that the tribunal has held in respect of RPDA sales that the RPDA policy was not followed by the petitioner and thus the amounts due under RPDA sales from Venus Extrusions could not be debited. Learned counsel referred to the award dated 31.08.2005, wherein it has been observed at para 88 with regard to the RPDA procedure that there is nothing to show that that procedure was followed or the conditions precedent for the enforcement of the respondents liability was satisfied.

31. Learned counsel also referred to Section 19 (4) of the said Act to contend that it is the arbitral tribunal which is to determine the weight of the evidence.

32. As far as clause 15 (a) was concerned, learned counsel submitted that the provision of the respondent acting as del credre agent was limited to only RPDA sales. The expression used in the clause is not own customers. In this behalf, the respondent placed reliance on the reply of the petitioner before the arbitral tribunal. It is stated there in that in regard to the RPDA claims, clause 15 (a) provides that the distributor would act as an del credre agent in regard to supplies made by the petitioner (respondent therein) to the customers. Learned counsel for the respondent also submitted that no extra commission was agreed or paid by the petitioner to the respondent in respect of MOU customers or other customers. It was pointed out that the arbitral tribunal had found that there was no pleading by the petitioner that any extra commission was agreed to between the parties in order for the respondent to act as a del credre agent.

33. As regards the question of whether the dispute under claim A was referable to arbitration, the submission of the petitioner was that the court had vide the order dated 29.10.2001 referred all disputes between the parties to arbitration. No plea has been raised before the arbitral tribunal that Claim A was not an arbitrable matter or that certain matters raised were excepted matters. This plea was only raised at a later stage and was rejected by the arbitral tribunal. Learned counsel also submitted that clause 28 of the distributorship agreement does not mention any accounts statement falling within the excepted matters. Learned counsel also submitted that if the MOU customers and RPDA customers are being alleged to be outside the distributorship agreement the question of the same being an excepted matter would not arise.

34. A consideration of the aforesaid submissions of learned counsel for the parties show that the primary objection raised by the petitioner is thus with regard to the question as to whether there was any distinction between the respondents own customers/buyers and MOU customers and whether the respondent was a del credre agent with regard to the customers under the RPDA scheme.

35. Insofar as the aspect of a distinction between MOU customers and the respondents own customers is concerned, it is clear that the respondent was not a party to the agreements entered into with the MOU customers. Such customers also received certain benefits such as extra discounts and priorities in the delivery of supplies as compared to other customers etc. As noted above, the MOU entered into between IPCL and M/s Suresh Raj Packaging clearly provides that in case of limited availability, priority was to be given to MOU customers. The payments for the goods sold to MOU customers were being made partly to the respondent and partly to IPCL. In fact on the bouncing of cheques in the case of M/s Venus Extrusion Ltd, a notice under Section 138 of the Negotiable Instruments Act,1881 was also sent on behalf of IPCL. Letters for the enhancement of credit facilities by M/s Venus Extrusions P Ltd and for the release of the credit note on account of lifting of the goods on behalf of M/s. Swatick Tubes was addressed to IPCL. Even the supply schedule with regard to MOU customers was being provided by IPCL as is apparent from the letter dated 11.10.1999. A perusal of the above shows that the MOU customers were a separate category of customers. The respondent was not a party to the agreements entered into with the MOU customers and it appears that such customers were basically dealing directly with IPCL in respect of payments. Even the supplies were being monitored by IPCL and such customers were being given certain benefits that do not appear to have been given to other customers. According to clause 15 of the distributorship agreement, the liability of the respondent for the realization and payment of the price of the products was with regard to their own customers/buyers. In view of the aforesaid, it really cannot be said that the view taken by the arbitral tribunal that MOU sales were separate sales and the respondent could not have been made liable in respect of the MOU sales is not a plausible view and thus the findings in this behalf cannot be faulted.

36. On the aspect of the respondent being a del credre agent, the contention of IPCL before the arbitral tribunal was that the distributorship agreement specifically provided that the recovery of sale proceeds was the sole responsibility of the respondent (claimant therein) and clause 15 (a) of the distributorship agreement further provided that in case of RPDA sales, the goods sold by IPCL to the customers on request from the distributor, the distributor would act as a del credre agent and would get commission for guaranteeing the recovery. The stand of the respondent was that RPDA sales were separate arrangements between IPCL and their customers and that clause 15 (a) of the agreement was added in the distributorship agreement in 1997 but had not been made operative. It was not pleaded before the tribunal that the condition precedent of the cheques deposited by the customers being dishonoured was satisfied, prior to their debiting the amount to the account of the respondent.

37. A perusal of clause 15 of the distributorship agreement shows as noted earlier, that the liability of the respondent for the realization and payment of price of the products was with regard to their own customers/buyers with respect to whom IPCL was not to assume any liability. While clause 15 (a) of the distributorship agreement states that the respondent was to act as a del credre agent in respect of customers or buyers in respect of money due to the company on account of money due to a company on account of sales effected by the company , it is apparent from the aforesaid the even the plea of the petitioner before the tribunal was to the effect that the respondent was a del credre agent in respect of sales under the RPDA scheme. The conditions that was required for invoking the liability of the respondent as a del credre agent had not been found to be fulfilled. There was nothing to indicate that any extra commission was paid to the respondent for acting as a del credre agent, which is as noted by the tribunal one of the conditions for a del credre agent. In fact clause 16 of the distributorship agreement reproduced hereinabove mentions service charges payable in respect of various products but no commission has been specified in respect of the respondent acting as a del credre agent. The receipt of the normal commission by the respondent in respect of such transactions would not mean that the respondent is acting as a del credre agent since that is the commission payable for all other transactions. It cannot be lost sight of that the petroleum products are stored by the respondent and other expenses incurred for which commission is paid. No extra commission has been paid which could support the claim of the petitioner that the respondent was acting as a del credre agent. In view of the aforesaid, the finding of the Tribunal that the contention that the agreement contains a general provision that the respondent will be a del credre agent cannot really be interfered with.

38. Clause 29 of the distributorship agreement provided for the reference of all disputes or differences arising out of or relating to the construction meaning, operation or effect of the distributorship agreement to arbitration subject to the provisions of clause 28 in which cases the matters were required to be first discussed by the parties with a view to finding a solution. In relation to certain matters such as statements or certificates relating to stock transfers, quantity and value of sales effected by distributors etc. it is stated that the matters shall be conclusive and binding and shall not be within the scope of discussion or arbitration. Insofar as the disputes referred to arbitration are concerned, a perusal of the order dated 29.10.2001 shows that the court had directed referral of all disputes between the parties including those disputes raised in the plaint in the suit to be referred to the tribunal. One of the reliefs prayed for in the suit was to restrain defendants nos 1-4 from debiting dues from the account of the plaintiff as recoverable from customers outside the distributorship agreement. Thus, it cannot really be said that the disputes as regards the MOU customers were not covered by the reference.

39. As far as the aspect of delay in giving the award is concerned, although there was a delay in making the award, the same would not of itself be a ground for setting aside the award though some calculation mistakes do seem to have crept in.

40. IPCL had filed a counter claim before the arbitral Tribunal which was decided by the arbitral tribunal vide an interim award dated 26.03.2003. The petitioner had claimed an amount of Rs. 750 lakhs against the respondent on account of sales tax for the assessment years 1998-99; 1999-2000 and 2000-2001. The tribunal found with regard to the order dated 29.10.2001 of the High Court referring the disputes to arbitration that even if the same is interpreted widely and future disputes are also held to be referrable to arbitration the disputes raised by the petitioner cannot be entertained in the absence of finality of the sales tax proceedings. It was found that the petitioner had challenged the assessment order for the year 1998-99 in a writ petition; had preferred an appeal against the assessment order for the year 1999-2000 and no demand had been raised insofar as the year 2000-2001 was concerned. Thus, the dispute as regards sales tax claims were held to be non arbitrable due to the fact that there was no finality in respect of the liability of the petitioner. The reasoning adopted can thus not be said to be contrary to the reasoning adopted in the final award.

41. Insofar as the contention of the petitioner that there is an arithmetic error in the award is concerned, learned counsel for the respondent accepted that there is an error in the computation of Claim B in the award as Claim B1 has been added twice over. The Tribunal has found at para 97 of the award that claim B2 of the respondent has been substantiated by means of various documents and evidence and thus deserved to be allowed and has further observed that the claimant is entitled to recover a sum of Rs. 117.16 lakhs which is in fact the total of claims B1 and B2. As regards claim B1, the respondent (claimant) had claimed an amount of Rs. 42.74 lakhs while under claim B2, the amount claimed was Rs. 74.97 lakhs. Both claims were allowed by the tribunal. However, the amount added under claim B 2 by the tribunal is Rs. 1,17,16,000.00. Claim B1 has thus appears to have been included twice over in the claim-wise conclusions arrived at para 146 of the award. The claims awarded by the arbitral tribunal are as under:

42. The award shows that the claims C1, C2 and claim D have been dis- allowed. In respect of claim E, F and H it was agreed by learned counsel for the parties that there was no dispute. Claims I to N have also been dis-allowed. Learned counsel for the petitioner did seek to challenge claim G on account of the fact that a sum of Rs.3,17,000/- have been deducted from the account of the respondent as service tax, but the amount is not supposed to be so deducted as the respondent has not deducted such amount from the consignee stockiest in other parts of the country. The basic contention of learned counsel for the petitioner is that credit has, in fact, been given to the extent of Rs.3,17,000/- for such service tax refund and in this behalf reference has been made to page 170 of Volume III of the record. Learned counsel for the respondent took time for the parties to reconcile the account and could not seriously dispute this fact but claimed that there would be interest element involved.

43. Learned counsel for the petitioner also contented that there was a delay in the filing of the award but in my considered view the same cannot be a reason for setting aside the Award though it appears that the same has caused some calculation mistakes to be corrected and the parties are ad idem that the same are certainly not correct. It is the case of the respondent that if the objections have to be dismissed, the amount payable under the award would be as under:

Amount to be paid by IPCL

44. From the aforesaid amount, it has already been held that claim G would not be admissible for the reasons referred to above and would have to be deducted. The result is that the total amount payable under the award would be Rs.1,59,60,048.00 and not Rs.3,36,50,615.00. The pendente lite and future interest would, however, remain at 10%.

45. The objection petition is accordingly disposed of modifying the award as aforesaid. Parties to bear their own costs.