G.S. Kulkarni, J.

1. This appeal under Section 37 of the Arbitration and Conciliation Act, 1996 (for short “the Arbitration Act”) arises from the judgment and order dated 30 June 2005 passed by the learned Single Judge whereby the Appellant's petition under Section 34 of the Arbitration Act, challenging the Award of the Sole Arbitrator dated 4 July 2003 has been rejected. The learned Arbitrator allowed the claim made by the Respondent (original claimant) and rejected the counterclaim of the Appellant (original Respondent). Thus there are concurrent findings of two forums against the Appellants.

2. The factual antecedents in which the controversy arises may be illustrated by the following facts:-

The Respondent-claimant is a company incorporated in Australia having its principal place of business in Sydney. At the material time, it was represented in India through its representative M/s. Ensource Energy (India) Private Limited (for short “ENSOURCE”). The business of the Respondent was interalia of supplying non-coking coal. The Appellant (formerly known as Larsen & Turbo Ltd.) had entered into contract dated 18 September 1999, with the Respondent, for bulk purchase of 'Steaming non-coking coal', from the Respondent, which set out the terms and conditions of the said transaction. The coal to be supplied by the Respondent was of South African origin.

3. There is no dispute that under clause 4 of the contract the cargo size was agreed and that the cargo was to be discharged at the Appellant's jetty at Pipavav Port. The contract also provided for the discharge of the cargo at Chennai Port as also the cargo size for discharge at the said location. Clause 8 of the contract provided for “Timing” for five items of firm cargo and option cargo to be separately indicated at a later date. Clause 8 of the contract provided as follows:-

“8. Timing:

FIRM CARGO NO. LOADING AT LOAD PORT DISCHARGE PORT

(aa) AROUND 25th to 30th September, 1999 L & T JETTY-PIPAVAV

(bb) DECEMBER, 1999 CHENNAI PORT

(cc) FEBRUARY, 2000 L & T JETTY-PIPAVAV

(dd) APRIL, 2000 L & T JETTY-PIPAVAV

(ee) JULY, 2000 CHENNAI PORT

(ff) Option Cargo OPTION CARGO TO BE SEPARATELY INDICATED AT A LATER DATE

4. Clause 10 of the contract provided for issuance of an arrival notice at the discharge port, tendering of notice of readiness, commencement of laytime at discharge port, discharge rate, payment of demurrage/despatch, etc. The dispute between the parties arose under clause 10(v) relating to demurrage. It would be thus appropriate to reproduce clause 10(v) of the contract which reads as under:-

“10(v) Demurrage/Despatch:

At the discharging port, buyers shall pay demurrage to the Seller or Vessel owners through sellers if required, at the rate not exceeding US $ 8000.00 per day or pro-rata for part of the day and sellers shall pay despatch to buyers if earned, at a rate of 50% of demurrage rate, not exceeding US $ 4000.0 per day or pro-rata for part of the day.

All demurrage or despatch to be settled within 60 days after laytime statement submitted with supporting documents, like Notices of Readiness, Statement of Facts and Time Sheets.

Any disagreement over the laytime statement must be raised by the other party within 30 days after such statement is transmitted and received, otherwise, the statement is accepted as correct.” (emphasis supplied)

5. It is not in dispute that under the contract and in compliance with the schedule of shipment of cargoes incorporated in the contract, the Respondent shipped to the Appellant from the Port of Richards Bay, South Africa, five firm cargoes as under:-

Vessel Bill of Lading No. & Date Quantity M/T Discharge Port

Mv “Dakshineshwar” 1

10.10.1999 39206 Pipavav

mv “Rishikesh” 1

22.12.1999 37306 Chennai

mv “Dakshineshwar” 1

05.02.2000 39123 Pipavav

mv “Pataliputpra” 3 & 4

06.04.2000 13981 Pipavav

mv “Pataliputpra” 1

11.05.2000 36617 Chennai

6. The cargoes were discharged from the vessels by the stevedores appointed by the Appellant and the ‘statement of facts’ were