The burden of proof lies with the appellant to substantiate claims of loan repayment and tea supply, and the court will uphold the award if the evidence does not support the appellant's claims.

I.P. Mukerji, J.

1. This is an appeal under Section 37 of the Arbitration and Conciliation Act, 1996.

2. An award was made by Mr. Bhaskar Sen, Bar at Law and Senior Advocate on 4th July, 2014. It was in relation to disputes between the parties that had arisen out of their agreement dated 1st April, 2005. It contained an arbitration clause which is as follows:

“In case of any dispute arising relating to this agreement the same shall be referred to arbitration of O.P. Jhunjhunwalla, Solicitor & Advocate, whose decision shall be binding on both the parties.”

3. It appears that the mechanism provided in that clause did not work. On an application under Section 11 of the said Act, on 31st March, 2010, this Court appointed Mr. Sen as the sole arbitrator.

4. His award of 4th July, 2014 was challenged before this Court in an application under Section 34 of the said Act. On 26th June, 2015 a learned Single Judge of this Court dismissed the application.

Hence this appeal.

5. The appellant is the owner of a tea garden by the name of “Tonganagaon”. On 1st April, 2005 an agreement was executed between the parties. A very special feature of this agreement was that the admission of the appellant that they owed Rs. 65 lakhs to the respondent was recorded therein. The appellant was to supply green tea leaves of specified “fine percentage”. The payment for these items would be made by the respondent on a weekly basis after deduction of Re.1/- per kg., from April, 2005. This would be only partial repayment of the outstanding loan of the appellant. The minimum quantity of green tea leaves to be supplied by the appellant was 15 lakh kgs. at the prevailing market price between March, 2005 and December, 2005, March, 2006 to December, 2006, March, 2007 to December, 2007 and 20 lakh kgs. of the same tea for the period of March, 2008 to December, 2008. In case of low production alternative provisions were made. In default, the appellant was required to return the outstanding amount with interest as provided in the agreement.

6. According to the appellant, they were repaying this loan by supply of tea to the respondent. The tea was not paid for by the respondent. They alleged that they had supplied a total quantity of 11,35,327 kgs. of green tea leaves. Its value was, at the prevailing market rate of Rs. 8/- per kg., Rs. 90,82,616/-. Not only the loan advanced by the appellant stood repaid, Rs. 25,82,616/- became payable by the respondent.

7. According to the respondent, the appellant neither supplied any green tea leaves nor repaid any part of the loan. As a result of this, Rs. 71,50,000/- was due and outstanding on account of principal and part interest and Rs. 32,59,197/- on account of further interest as on the date of filing of the Statement of Claim, the total claim aggregating to Rs. 1,04,09,197/-. The appellant on 10th January, 2007 purported to make payment of this sum of Rs. 71,50,000/- by a cheque drawn on Union Bank of India, Tinsukia Branch. It was dishonoured for insufficiency of funds.

8. The respondent's case was during March, 2005 to October, 2005, it did receive 11,35,327 kgs. of green leaves but not from the appellant. They received it from one Shankar Traders under an independent contract. They paid Shankar Traders for this supply.

9. Meanwhile, the respondent initiated proceedings against the appellant under Section 138 of the Negotiable Instruments Act, 1882 in respect of the dishonour of the said cheque.

10. On this dispute the parties went to arbitration.

11. The learned arbitrator entered upon the reference on 30th April, 2010. 41 sittings were held. The arbitration ended on 24th November, 2013. The award was made and published on 4th July, 2014.

12. The learned arbitrator passed the following award:

“I also hold that the respondent has not been able to prove that they had supplied 11,35,327 kgs. of green tea leaves for the value of Rs. 90,82,616/- to the claimant. I do not find any material to hold that the respondent had discharge