P. KALAIYARASAN, J.

1. This Original Side Appeal is directed against the order of the learned single Judge of this Court, dated 11.01.2012 passed in O.P. No. 457 of 2009, under Section 37 of the Arbitration and Conciliation Act, 1996.

2. The facts leading to this appeal in brief are as follows:-

(i) The Government of India by Kerosene (Restriction on use and fixation of celling price) Order, 1993, introduced the parallel marketing system in respect of imported kerosene and furnace oil. The Chennai Port Trust (herein after referred to as "CPT"), the appellant herein called for tender by notification, dated 17.05.1995 for lease of about six acres of land inside the port area for creation of tankage facilities for storage of kerosene and furnace oil to be handled under the parallel marketing arrangement. The appellant, Port Trust approved the first respondent, namely M/s. South India Hydrocarbon and Terminals Ltd., as the successful tenderer, subject to certain conditions by their communication, dated 19.08.1995. The first respondent was called upon to enter into an agreement by the appellant's letter, dated 15.02.1997 and an agreement of lease, dated 05.01.2000 was entered into between the appellant and the first respondent.

(ii) Differences arose between the parties in reference to the claim of lease amount, "minimum guarantee throughput" and the usage of tanking facility to be created leading to the cancellation of agreement by CPT by communication, dated 28.05.2001. The Arbitration clause in the agreement between the parties was invoked for resolving the differences. The Arbitral Tribunal passed an award, dated 09.08.2002 holding that cancellation of the agreement, dated 05.01.2000 was not justified and therefore, the termination is unsustainable. The Tribunal further directed the Port Trust to issue a fresh demand on the basis of Rs.20/- per sq.m to the first respondent herein to pay the same within reasonable time and on such payment to hand over possession. It was also made clear that in default in such payment, the termination will be held proper. It was further declared that the lease rent is only Rs.20/- sq.m per month.

(iii) As far as three other prayers, namely (i) condition that area allotted/storage tanks are to be used for storage of kerosene and furnace oil only in Article III(e)(2) and e(26) be deleted; (ii) Article III(e)(2) and e(26) to be substituted by "wherever any land has been given for tank farm, any form of liquid cargo may be permitted to be handled in such tank farm, either after modification of the tanks or without modifications as the case may be subject to feasibility of handling such product in the port" and (iii) conditions under Articles III(e)(4) that only consignments directly in the name of Lessee shall be stored be deleted, the Tribunal directed both the parties to settle the issues by negotiation. For one another prayer, the Tribunal directed to delete guaranteed productivity minimum guarantee throughput in Article IV, subject to condition that the said clause be kept under suspended animation for one year and then be reviewed among the parties.

(iv) Following the directions in the above said Award passed by the previous Arbitral Tribunal on 09.08.2002, both the parties negotiated the matter but failed to reach any settlement. Therefore, the first respondent invoked the Arbitration clause on 08.08.2006 and this Court, by order, dated 08.09.2006 in O.A. No. 654 of 2006, directed the Arbitration Proceedings be commenced and completed. Thus, with respect to the three subjects which failed in negotiation along with other issues came before the Arbitral Tribunal consisting of three Retired Judges of this Court, as per the order of this Court.

(v) According to the first respondent, as per the Award, a sum of Rs.1,63,52,000/- as claimed by the CPT was paid by the first respondent on 22.10.2002, but CPT without handing over the possession of the land, issued a letter, dated 07.03.2003, raising th