Point of Law : Arbitration - Since the claimant in this case has invoked section 60 of the Indian Contract Act, 1872, section 61 of the Indian Contract Act cannot be invoked.

JUDGMENT :

R.D. Dhanuka, J.

1. The appellant has filed this Appeal under Section 37 of the Arbitration and Conciliation Act, 1996 impugning the judgment dated 5th September, 2019 passed by the learned Single Judge, dismissing the Commercial Arbitration Petition No. 987 of 2018 impugning the Arbitral Award dated 9th June, 2018 passed by the learned arbitrator.

2. The appellant was the original claimant in the arbitral proceedings and the original petitioner in commercial arbitration petition whereas the respondent herein was the original respondent in the arbitral proceeding and also respondent in the commercial arbitration petition. For the sake of convenience, the parties are described as per their original status in the statement of claim before the learned arbitrator.

Some of the relevant facts for the purpose of deciding this appeal are as under :

3. It is the case of the claimant that on 30th October, 2020 offer was sent to the respondent for supply of steel material by the claimant. The claimant accordingly supplied the steel material to the respondent as per various purchase orders and as per the said offer. On 20th July, 2011, the respondent vide their email addressed to the claimant acknowledged the debt and admitted the liability to the extent of 15 lakhs allegedly due and payable to the claimant. According to the claimant, the steel material supplied to the respondent as per purchase order was amounting to approximately Rs.25 crores.

4. It is the case of the claimant that vide an email dated 5th January, 2012, the respondent acknowledged the debt and admitted the liability to the extent of Rs.1.5 lakhs allegedly due and payable to the claimant. The respondent paid an amount of Rs.3,74,30,757/- in trenches which were appropriated by the claimant against the old outstanding invoices on FIFO basis.

5. It is the case of the claimant that during the period between 2013-14, the respondent paid an amount of Rs.75 lakhs in installments which was appropriated by the claimant against old invoices on FIFO basis. It is the case of the claimant that on 30th June, 2013, the respondent issued a cheque for Rs.50 lakhs by way of part consideration for steel material supplied to them. On 30th July, 2013, the cheque issued by the respondent returned dishonored due to insufficient funds. On 29th August, 2013, the claimant issued a notice to the respondent and its Directors. In the year 2013, the claimant filed a Criminal complaint bearing No. 1154/SS/2013 under Section 138 of the Negotiable Instrument Act, 1881 in the Court of Learned Metropolitan Magistrate, 6th Court, Mazgaon, Mumbai. On 27th July, 2015, the respondent filed a Criminal Writ Petition bearing No. 2462 of 2015 in this Court.

6. On 5th February, 2014, 25th July, 2015 and 28th July, 2015, the respondent paid an amount of Rs.50 lakhs against the dishonored cheque in the said proceedings filed by the claimant under Section 138 of Negotiable Instrument Act. The said complaint was withdrawn by the claimant.

7. On 29th January, 2015, the claimant issued a statutory notice under Sections 433 and 434 of the Companies Act, 1956 calling upon the respondent to pay an amount of Rs.7,01,17,241.72/-towards principal and interest. On 11th March, 2015, the claimant filed a Company Petition bearing No. 465 of 2015 before this Court inter-alia praying for winding-up of the respondent-company.

8. On 25th May, 2015, the parties hold a meeting. It is the case of the claimant that the respondent has unequivocally admitted a sum of Rs.2,22,49,067/-as due and payable by them to the claimant as on 31st March, 2015. On 22nd November, 2015, this Court by consent of parties referred the entire dispute to the arbitration. During the period between 2016-17, both the parties entered upon the reference. The arbitral proceedings accordingly commenced. The claimant examined four witnesses who were cross-exam