The delay in fulfilling reciprocal promises under a contract can impact the allocation of responsibility for contractual breaches.

( 1 ) BADAR DURREZ AHMED, J. The respondent has filed an application under Section 30 of the arbitration Act, 1940 for setting aside the award made by the sole Arbitrator, mr K. D. Singh, Additional Legal Adviser to the Government of India, Ministry of law, Justice and Company Affairs, New Delhi. The award was made on 30. 03. 1993 in Arbitration Case No. 244-B/91 between the petitioner and the respondent.

( 2 ) THE relationship between the petitioner and the respondent was that the petitioner was to make supplies of paint to the respondent by virtue of a contract dated 06. 08. 1982. The only relevant clause of the contract is clause no. 12 which reads as under:-"the contractor hereby declares that the goods sold to the buyer under this contract shall be of the best quality and workmanship and shall be strictly in accordance with the specification and particulars mentioned in the clause of the contract there of and the contractor hereby guarantees that the said good would continue to conform to the description and quality aforesaid for a period of 12 months from the date of the delivery of the said goods to the Purchaser and that notwithstanding the fact that the Purchaser (Inspector) may have inspected and/or approved the said goods, if during the aforesaid period the said goods discovered not to conform to the description and quality aforesaid or have deteriorated the decision of the purchaser in that behalf will be final and conclusive the purchaser will be entitled to reject the said goods or such portion thereof as may be discovered not conforming to the said description and quality on such rejection and the goods will be at the seller s risk and all the provisions herein contained relating to rejection of goods etc. shall apply. " (underlining added)

( 3 ) THE petitioner had made two claims and the respondent had made three counter-claims. By the impugned award, only one claim of the petitioner has been allowed and the counter-claims of the respondent have been rejected. The entire focus of this application for setting aside the award is based upon the findings given in respect of the claim a whereby the petitioner had claimed a sum of Rs. 3,46,705/- from the respondent alongwith interest @ 21% per annum from 16. 05. 1989 till actual payment.

( 4 ) IT is the case of the respondent/objector that the said clause 12 of the contract specifically required that the paint supplied by the petitioner ought to have retained its quality for a period of 12 months from the date of delivery. The goods were despatched by the petitioner to the respondent on 10. 08. 1983 and the same were rejected within the period of 12 months by the respondent vide their rejection letter dated 28. 02. 1984. Therefore, according to the learned counsel for the objector / respondent, the petitioner was not entitled to any part of the claim inasmuch as the respondent had acted within the four corners of clause 12 of the contract.

( 5 ) MR Khorana, who appeared on behalf of the petitioner, submitted that the award has been passed based upon a correct appreciation of the facts and legal principles. He further submitted that, therefore, this court ought not to interfere with the award as passed. He further submitted that the paint quality had deteriorated because of the acts of omission and commission on the part of the respondent for which the respondents cannot hold the petitioner responsible. He says so because of the fact that the paint was offered for inspection as far back as on 26. 11. 1982 and it was, in fact, even cleared on 27. 01. 1983 by the national Test House, Calcutta. However, for some odd reason, the inspection certificate by the Assistant Inspector was only released after a delay of over six months on 22. 07. 1983. He further drew my attention to the letter dated 28. 02. 1984 by which the goods were rejected and in particular to the portion whereby a copy of the said letter was marked to DGSandd (I), New Delhi for information. The said endor

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