JUDGMENT

I.A. 1606/2019 (Application by the respondent under Section 34(4) of the Arbitration and Conciliation Act, 1996)

1. By way of this application, the respondent in O.M.P(COMM.) 212/2018, Air Liquide North India Private Limited, invokes Section 34(4) of the Arbitration and Conciliation Act, 1996 [“the Act”] to seek an adjournment for a fixed period of time, in order to give the Arbitral Tribunal an opportunity to resume the arbitration proceedings to eliminate the ground for setting aside the arbitral award, relating to non-consideration of the petitioner’s documents.

A. Facts

2. The facts in which the application has been filed are as follows:-

A. The parties entered into a Sales and Purchase Agreement dated

14.12.2009/19.12.2009, whereunder the respondent was to supply Liquid Oxygen and Liquid Nitrogen to the petitioner.

B. Disputes arose between the parties and an arbitrator was appointed by this Court vide order dated 21.01.2015 in ARB. P. 410/2013. The respondent raised various claims before the learned arbitrator, including claims of ₹41,73,747/- under a debit note dated 11.08.2011/16.08.2011 and a claim of ₹1,87,62,502/- under a debit note dated 07.11.2012/19.10.2012 with interest thereupon. The petitioner disputed those claims and also filed a counter-claim of ₹5,39,79,500/-.

C. During the course of proceedings before the learned arbitrator, the petitioner sought to file documents enumerated as Annexures A-1 to A-60.1 The documents were taken on record by an order of the learned arbitrator dated 05.12.2015, subject to payment of costs.2 The learned arbitrator further recorded that

1Annexure26(colly)ofthepetitioner’slistofdocuments. 2Annexure25(colly)ofthepetitioner’slistofdocuments.

the documents in any case would have to be proved in accordance with law.

D. Affidavits of evidence were filed by the parties and recording of the statement of the claimant’s [respondent herein] witness commenced. At this stage, the learned arbitrator passed the following order on 25.01.20163: -

“The Tribunal had started recording the statement of the Claimant’switness.However, aftersomecross examination, it was agreed between the parties that there is no need of recording any oral evidence and the matter can straight awaybefixed forarguments.Itisalsoagreedthatwhatever oralevidencewasrecordedtodaywillnotberead.

While fixing dates, it was noticed that the venue at the Delhi International Arbitration Centre is not available till middle ofMarch-2016.Parties,therefore,agreedthatmattermaybe fixedforargumentsintheofficeofArbitralTribunal.

In view of the above, the matter will come up for arguments on 25.02.2016 at 3PM, 29.02.2016 at 5PM and on 03.03.2016at 3PM for arguments inthe office ofthe Arbitral Tribunal at A-27, Defence Colony, New Delhi. The E-mails placed on record by the parties will be read without any formal proof. It will be appreciated if the parties file a brief synopsisoftheirrespectivecaseatleastthreedaysbeforethe datefixedforarguments.”4 E. The learned arbitrator unfortunately passed away, following which this Court appointed a substitute arbitrator by order dated

25.05.2017 in O.M.P.(T)(COMM.) 19/2017.

F. The learned arbitrator formulated eight issues for his consideration, of which issue No. 4 is reproduced below5: -

3Annexure28ofthepetitioner’slistofdocuments.

4Emphasissupplied.

5Page8oftheawardinannexure-1ofthepetitioner’slistofdocuments.

“4. Whether the Respondent proves that the Claimant by price under cutting and soliciting clients was in fundamental breachofthecontractbetweentheparties.”

G. After hearing the parties, the learned arbitrator passed the impugned award dated 02.02.2018, by which a sum of ₹2,29,36,249/- has been awarded in favour of the respondent herein, alongwith interest and costs.

3. One of the grounds of challenge raised by the petitioner herein pertains to the failure of the learned arbitrator to consider the additional documents filed by the petitioner in Annexures A1 to A60.

The issue has been dealt with by the learn