G.S. SISTANI, J.

1. This is an appeal filed under Section 37 of the Arbitration and Conciliation Act, 1996 read with Section 13 of the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 read with Section 10 of Delhi High Court Rules (hereinafter referred to ‘the Act’).

2. The challenge in this appeal is to the judgment of the learned Single Judge dated 10.08.2016 by which the objections to the Award filed by the appellant herein stand dismissed.

3. Some necessary facts which are required to be noticed for the disposal of this appeal are that the appellant had floated a tender for supply of bulk prilled/granular Urea on 17.09.2008. The tender of the respondent no.1 herein was accepted being the lowest. A Letter of Intent was issued on 25.09.2008 for supply of 3,00,000 Metric Tons (in short ‘MTs’) of Urea. As noticed by the learned Single Judge, State Trading Corporation (hereinafter referred to as ‘STC’) sought confirmation from Department of Fertilizers, Government of India (hereinafter referred to as ‘DOF’ for permitting STC the flexibility to place orders and receive shipment of 3,00,000 +/- 10% MTs of bulk prilled/granular Urea. The parties signed a Contract dated 01.10.2008 (hereinafter referred to as ‘the Contract’) for purchase of 3,00,000 +/- 10% MTs of bulk prilled/granular Urea. The agreed rate was US$ 685.50 PMT CFR. The goods were to be supplied latest by 15.10.2008. It is not in dispute that in terms of the Contract, the respondent furnished an irrevocable performance bank guarantee (hereinafter referred to as ‘PBG’) for a value of 3% of the total Contract value. Accordingly, the respondent no.1 furnished PBG to the tune of US$ 6,169,500/- which was subsequently increased to US$ 6,786,450 in order to include the tolerance quantity of +/- 10%.

4. It is also the case of the appellant herein that the price of the Urea had fallen to the extent that a tender was opened by STC on 15.10.2008 for US$ 359 PMT arising out of another independent tender. It is in this backdrop i.e. a fall of the price of the Urea, that certain discussions took place between the agent of the respondent no.1 and the appellant herein, including a representation by the agent of the respondent no.1 to the Minister of Chemical of Fertilizers to call upon STC to perform its contractual obligations.

5. It is the case of the appellant that pursuant to the discussions, a communication dated 24.10.2008 was addressed by the STC to the respondent no.1 wherein a request for accepting the price equivalent to the independent tender finalized on 15.10.2008 for the excess quantities loaded i.e. beyond 3,00,000 MTs of Urea was made. It is the case of the appellant that the agent of the respondent i.e. Everest Fertilizers confirmed and accepted the proposal and, thus, the parties i.e. the appellant and the respondent no.1 agreed for varying the conditions of the Contract and the Urea in addition to 3,00,000 MTs of Urea was, thus, to be shipped @ US$ 359 PMT.

6. The consistent stand of the respondent no.1 before the Arbitrators as has been reiterated before this Court has been that the Contract between the parties could not have been varied except in writing. The agent of the respondent no.1 had on the same date withdrawn the consent so given. The parties were ad-idem that Urea in excess of 3,00,000 MTs was to be supplied at the fixed rate in terms of the Contract which is evident upon the fact that the goods including the quantity over and above 3,00,000 MTs were shipped and they were accepted without any protest and demur. The terms of the letter of credit as agreed were neither varied nor amended and the amounts stood released in favour of the respondent no.1. In short, the terms of the Contract stood fulfilled and any attempt on part of the appellant to change the conditions of the Contract post conclusion of the Contract was unacceptable.

7. Additionally, it is the stand of the respondent no.1 that the communi