JUDGMENT :

GS Patel, J.

1. The Section 37 Appeal is by the original claimant in arbitration, Skipper Foods Private Limited (“Skipper Foods”). It challenges an order dated 2nd March 2006 of a learned Single Judge of this Court (DK Deshmukh, J) allowing the Section 34 Petition filed by the present Respondents, Hindustan Unilever Limited (“HUL”) against an arbitral award of 6th July 2005. HUL was the respondent in arbitration.

2. Skipper Foods received an award in damages in the amount of Rs.32,74,800/- with interest at 10% per annum. The dispute between the parties arose under an Agreement dated 10th May 1994. That Agreement did contain an arbitration clause. Brooke Bond Lipton India Limited (“BBLI”), now amalgamated with HUL, intended to market and sell ice-cream under the brand name Dollops. BBLI entered into an Agreement with Skipper Foods to manufacture ice-cream.

3. Ms Jain for Skipper Foods would have it that the contract in question, properly read, and especially if seen with later correspondence makes it clear that BBLI (and now HUL) had guaranteed a minimum purchase or off-take of Skipper Foods’ ice-cream production. This minimum was, she maintains, 50,000 litres per month. Because there was such a minimum purchase guaranteed, Skipper Foods modified and upgraded its manufacturing facility and expanded its capacity. Despite this BBLI placed orders for very small quantities. Only 10% of this quantity, if that, was ever taken up. There was thus a breach of the Agreement. Skipper Foods was put to loss to the extent of what it had spent on upgrading and expanding its manufacturing facility. Therefore, Skipper Foods said in arbitration, it had suffered loss and hence its claim for compensation for this breach of contract.

4. In its statement of claim, Skipper Foods did not plead an oral Agreement in regard to this minimum quantity. It did not say that the 10th May 1994 agreement was only part of the contract between the parties or that the contract comprised the 10th May 1994 agreement to be read with other documents, correspondence or otherwise. To the contrary, Skipper Foods maintained even in arbitration that the minimum guarantee obligation on BBLI arose under the 10th May 1994 agreement. Indeed, we have the gravest doubts whether Skipper Foods could even have pleaded any such oral agreement contrary to the terms of the written contract. But that need not detain us, since there was no such pleading of an oral agreement after the written agreement.

5. On an analysis of the contract, we find Ms Jain’s submission not to be well-founded. The contract actually says the reverse. It provides for obligations on the part of Skipper Foods. A copy of the contract is available in the paper-book from page 55 onwards. Recital (iv) at page 56 notes Skipper Foods’ representation to BBLI that it had the capacity to manufacture to BBLI’s requirements during the period of the agreement. In itself, this defeats the case placed by Skipper Foods. But there is more. Skipper Foods further represented that it would be in a position to manufacture and supply uninterruptedly BBLI’s requirements for three years from the date of the agreement. This is not a commitment by BBLI to a minimum guaranteed off-take. It is a commitment by Skipper Foods to meet BBLI’s supply requirements. Skipper Foods assured BBLI of an optimum utilization of its facility and promised to use its facility for other purchasers only after meeting BBLI’s requirements. If anything this clause is entirely against the present Appellant. Clause (iv) at page 56 is reproduced below. “Manufacturers” is Skipper Foods. “Purchasers” is BBLI.

“(iv) The MANUFACTURERS have represented to the PURCHASERS that they have capacity to manufacture to the requirements of the PURCHASERS during the period of this Agreement for marketing and sales of Ice Cream of various varieties as per specifications/recipes of the PURCHASERS. The MANUFACTURERS have further represented that they would be in a position to ma