Sanjay Kishan Kaul, J.

1.The respondent was awarded contract for supply of tents and the petitioner carried out the risk purchase at the cost of the respondent and recovered the amount by adjusting the same against amount due to the respondent from other contracts. This gave rise to dispute between the parties and in view of the existence of the arbitration clause between the parties, the matter was referred to the Sole Arbitrator Shri Ram Bahadur. Shri Ram Bahadur rendered and ex parte award which was set aside by this Court by an order dated 18.10.2001 remitting the matter for reconsideration. Therefore Shri Brijendra Singh Meena, Additional Legal Adviser of the Government of India was appointed as the Sole Arbitrator by the Director General of supplies & Disposals. Shri Meena entered upon a reference and made and published the award dated 28.12.2004 upholding right of the petitioner to recover the amount of risk purchase and rejecting the counter claim of the respondent.

2. Learned counsel for the respondent, conscious of the limitations of the powers of this Court under Sections 30 and 33 of the Arbitration Act, 1940 (hereinafter referred as "the said Act"), confines the submissions to the error apparent on the race of the record on account of non-consideration of the plea of the respondent, absence of reasons and the award being contrary to law.

3. Learned counsel for the respondent has drawn the attention of this Court to the counter statement of facts to point out the pleas raised by the respondent. The dispute apparently starts from the stage when the respondent having submitted one sample as per specification for approval from the inspector as per the terms of the contract, received a response after about one month whereby the inspecting authority intimated the respondent that the detailed procedure for inspection will be intimated on hearing from the authority at Jabalpur and trial samples would be inspected after formulating the inspection procedure/parameters. It may be noticed that the supplies had to be made within five months of the approval of the samples. The respondent approached the Chief Inspector of Vehicles, Jabalpur soon thereafter. On 23.3.1988 the respondent received a communication from the Senior Quality Assurance Officer, Mumbai, informing them to get their capacity to manufacture cover waterproof assessed from them. The contention of the respondent was that this was totally de hors the contract since if the capacity of the respondent had to be assessed, the same should have been done prior to entering into contract and at least no provision was made in the contract for such assessment of capacity. On a protest from the respondent, the petitioner thereafter informed that instructions had been issued to the concerned authority to accept the tested advance sample and that the delivery period would be re-fixed after the approval of advance sample. Thus according to the respondent the petitioner by their own conduct showed that time was not essence of the agreement and that the breach was committed by the petitioner.

4. The matter did not rest at this since the terms and conditions of contract were sought to be amended as per the plea of the respondent in terms of the letter of the petitioner dated 28.4.1988. The petitioner is stated to have issued a letter dated 9.6.1988 being another amendment letter making approval of two advance samples as a condition precedent to the commencement of bulk manufacture. This was again stated to be a variation of the original terms of the contract and the respondent did not agree to the same. The respondent made a representation dated 2.8.1988 pointing out alleged breaches of the petitioner and stating that they treated acceptance of contract as cancelled without financial repercussion on either side.

5. The aforesaid facts have been set out to show that the controversy which had arisen before the arbitrator was whether the petitioner had sought to vary the original