Rathnakala, J.

1. The judgment and decree passed by 6th Additional City Civil Court, City Civil Judge, Bangalore on his file in Arbitration Suit No. 119 of 2006, dated 17-10-2008 is under attack in this appeal. By the impugned judgment, the learned Court dismissed the suit filed by this appellant/plaintiff under Section 34 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the Act) came to be dismissed.

2. The plaintiff had filed the said suit to set aside the award passed by the Arbitrator on 5-8-2006.

3. Briefly stated:-

The appellant's predecessor by name M/s. Fletcher Pioneer (India) Private Limited (the previous company since purchased by the appellant, hereinafter for short the appellant) entered into a rock processing/crushing agreement dated 10-4-2002 with Delta Constructions Systems Limited (hereinafter for short the Delta) as per Ex. C. 17, dated 10-4-2002 for crushing of feed rock supplied by the appellant into small pieces. As per the agreement, the actual quantity of feed rock to be crushed in three years was 4,80,000 m.ts. But the actual quantity crushed was 196497 m.ts. Thus there was a short fall of 283503 m.ts of feed rock to be crushed. The agreement came to an end by efflux of time. By virtue of arbitration clause in the agreement, the Delta initiated arbitration proceedings and made as many as 6 claims as under:-

Claim 1(1) : Final bill of settlement Rs. 3,87,726.87 towards non-payment of processed rock of 4192.095 metric tons - Rs. 3,52,128/- was awarded on the basis of agreed rate to process the feed rock at Rs. 84/- per metric ton.

1(2) Rs. 10,59,682.74 towards rehandling charges of the feed rock (rejected).

1(3) Rs. 1,30,000/- towards reimbursement of licence fee and electric power consumed by the appellant.

Rs. 1,08,000/- was awarded.

Claim 2(1) Rs. 1,52,38,286.25 as compensation for the loss incurred on account of expenses incurred including overheads, reduced productivity from the machinery and equipment deployed and expected profit but not reimbursed - Rs. 1,30,41,000/- was awarded.

Claim 2(2) Rs. 204.88 lakhs towards loss on account of encashment of bank guarantee but rejected.

Claim 3 : Interest at the rate of 18% p.a. towards past, pendente lite and future.

Awarded 12% p.a. with effect from 1-10-2005 till payment.

Claim 4 : Cost of Arbitration at Rs. 7,22,851.86. Awarded Rs. 2,00,000/-(lump-sum)

4. The appellant made counter claim as follows:-

Counter claim 1 : Rs. 70,000/- towards money advanced to the respondent-Delta (since admitted by Delta, this amount was held to be adjusted against the amount awarded against RMC ready works).

Counter claim 2 : Rs. 36,00,000/- towards liquidated damages under Section 74 of the Contract Act, 1872 - Rejected.

Counter claim 3 : Rs. 3,43,744/- towards feed rock supplied and not handed over - Rejected.

Counter claim 4 : Rs. 3,53,475/- towards amount advanced for mobilisation on return basis but not returned - Rejected.

Counter claim 5 : Money paid by mistake towards rehandling charges of crushed feed rock Rs. 11,51,904/- Rejected.

Counter claim 6 : Interest on the amount awarded by the Arbitrator at 12% (rejected) and cost rejected. Thus, by giving set off to the amount due by respondent-Delta to the appellant Rs. 1,34,31,128/- with 12% p.a. is awarded with effect from 1-10-2005, to be payable by the appellant herein. The original suit filed by the appellant challenging the award under Section 34 of the Act before the City Civil Court in A.S. No. 119 of 2006 has been dismissed.

5. Sri G.K.V. Murthy, for the appellant submits, the Arbitrator has awarded un-liquidated damages, though there was no such clause in the Arbitral agreement and granting interest at the rate of 12% p.a. much against the rate of interest which was in vogue at the relevant point of time as per notification of RBI, is without jurisdiction. As such there was no provision made in the arbitration agreement stipulating un-liquidated damages to the extent of short supply of agreed qu