O R D E R

(This case has been heard through video conference)

The challenge has been made to the award passed by the Sole Arbitrator dated 30.01.2017.

2. The brief facts leading to the filing of this Original Petition is as follows :-

The respondent is a Public Limited Company incorporated under the Companies Act. It has entered into an agreement with the petitioner on 21.06.1972 for sale and purchase of Carbon-di-oxide. The agreement was subsequently renewed from time to time and a fresh agreement was entered into between the petitioner and the respondent/claimant on 30.12.1993 for the period of 10 years with effect from January 1994. From the year 1994, invoices have been raised by the respondent/claimant on the basis of quantities raised by the petitioner on proper payment of excise duty, which was levied. Based on the above practice, the petitioner has made the payment as per the agreement without any default on the basis of practice availed in a way upon which payment of excise duty and other statutory duties levied as contemplated under the agreement. In the said situation, the said practice was continued for more than 22 years from the year 1994. Further, the respondent viz., claimant herein started raising invoices on the basis of flow meter installed by the petitioner from 10.10.2001, which was not agreed by the respondent/claimant. As the dispute has been raised by the respondent/claimant claiming invoices for the supply of products on the basis of flow meter recordings during negotiations between the parties, the petitioner had suddenly stopped supplying of gas from 31.12.2002, though the contract was expired only in the month of December 2003. Due to sudden stoppage of supplying gas had lead to huge loss to the respondent/claimant. Accordingly, the matter has been referred to arbitration as per the Clause 11 of the agreement claiming the following damages :-

(a) directing the respondent to pay a sum of Rs.378.24 lacs towards damages arising from the breach of the agreement dated 30.12.1993 together with interest at 18% on the amount so ascertained by the Hon'ble Arbitrator from the date of award till the date of payment.”

3. The respondent took a stand before the learned Arbitrator that clause 16 of the Agreement envisages that settlement of any dispute by reference to arbitration, only if the dispute is as to the interpretation of the agreement. The present dispute raised by the petitioner is with regard to the recovery of money for the goods sold and delivered. Therefore, it is not arbitrable as per clause 16 of the contract. It is his further contention that the invoices raised only based on the measurement of the goods sold on the basis of flow meter installed by the claimant. It is also his further contention that there was a negotiation, in which the claimant has agreed to pay the amount, however, they failed to pay the amount. Therefore, the supply of product was stopped. However, the same has been projected as if the contract was terminated. They have also pleaded counter claim for recovery of a sum of Rs.57,19,294.98/- towards differential amount.

4. The learned Arbitrator had framed the following issues :-

“1. Whether the dispute raised by the claimant is within the ambit of the Arbitration clause?

2. Whether the respondent had committed any breach of contract and whether the claimant is entitled to Rs.378.24 lakhs as claimed by the claimant?

3. Whether the claimant is entitled to interest at the rate of

18% per annum?

4. Whether the claimant had committed any breach of the contract and whether the respondent is entitled to counter claim of Rs.93,83,684/-?

5. Whether the respondent is entitled to interest at the rate of

18% per annum?

6. Whether the claim made by the claimant is sustainable in terms of the clause 11 of the agreement dated 30.12.1993?

7. To what other reliefs the parties are entitled to?

Both the parties have adduced oral as well as documentary evidence. It is to be noted that prior to the present Arbitra