PRADEEP NANDRAJOG, J.

1. Limited challenge was made by the appellant to an award dated February 16, 2015 passed by the learned sole Arbitrator. Counter claim by the respondent for damages in sum of Rs.1,38,58,650/-(Rupees One Crore Thirty Eight Lacs Fifty Eight Thousand Six Hundred and Fifty only) awarded by the learned Arbitrator was challenged. The appellant was unsuccessful in the challenge to the award. Vide impugned decision dated May 06, 2015 OMP No.291/2015 filed by the appellant under Section 34 of the Arbitration and Conciliation Act, 1996 has been dismissed.

2. It is not in dispute that the appellant had indented for 1075 quintals of onion seeds with the respondent and only 394 quintals were lifted. 681 quintals remained un-lifted. Agreed price was Rs.300/-per kg.

3. Parties are not at variance that if there is a breach of contract for sale of movable property, the measure of damages for the seller is the difference in the market price of the goods on the date when the buyer defaulted and the agreed sale price; subject to the parties agreeing in the contract as to what would be the measure of damages. By measure of damages we mean that if the parties have agreed in the contract to determine the damages in a particular manner, the damages have to be determined in the manner agreed to.

4. The principle of law concerning damages not being in dispute, the relevant fact which we need to note is that as per the appellant the measure of damages were determinable as per the schedule to the agreement, clause

3.3 whereof read as under:-

“the liquidated damages payable by the dealer to NSC is 3% of the cost of seal not accepted/lifted at the general sale price applicable at the time of supply.”

for the reason clause 20 and 21 of the main contract read as under:-

“20. If the Dealer fails to either lift the quantity allotted within 15 days of NSC’s intimation or to suggest a schedule of supply as envisaged in clause 18. NSC may in its discretion cancel the allotment and dispose of the relevant quantity of seed in any other manner and treat such lapses on the part of the Dealer as shortfall in lifting the committed quantities, for which the Dealer is liable to pay to NSC liquidated damage as per clause 21.

21. The Dealer would be free to restrict the ultimate purchase of seed to extend of only 60 per cent of the quantity originally indented or the full quantity allotted by NSC whichever is less. If the Dealer fails to lift/accept the quantity allotted by NSC or 60 per cent of the original indent whichever is less the Dealer shall pay to NSC liquidated damage at the rate prescribed in the Schedule.”

5. The argument of the appellant is simple. If it failed to lift the allotted quantity of onion seeds, as per clause 20, it became liable to pay liquidated damages as per clause 21, as per which clause in turn the liquidated damages were to be at the rate prescribed in the schedule.

6. The damages claimed by the respondent, which have been awarded by the learned Arbitrator are based on the price realized by the respondent after selling 681 quintals onion seeds in the market, which was Rs.34,05,000/-(Rupees Thirty Four Lacs and Five Thousand only). As per contract price the appellant was to pay Rs.2,04,30,000/-(Rupees Two Crores Four Lacs and Thirty Thousand only) and was entitled to a discount of 15.5% i.e. Rs.31,66,650/-(Rupees Thirty One Lacs Sixty Six Thousand Six Hundred and Fifty only). Net amount payable by the appellant would be Rs.1,72,63,350/-(Rupees One Crore Seventy Two Lacs Sixty Three Thousand Three Hundred and Fifty only). Subtracting Rs.34,05,000/-(Rupees Thirty Four Lacs and Five Thousand only) i.e. the sum realized by sale, damages awarded are Rs.1,38,58,650/-(Rupees One Crore Thirty Eight Lacs Fifty Eight Thousand Six Hundred and Fifty only).

7. Case pleaded by the respondent before the Arbitrator was that as per clause 18