abs IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ARBITRATION PETITION NO. 47 OF 2008 M/s Sandy Sales Pvt. Ltd. .. Petitioner V/s M/s Jaideep Industries .. Respondent Mr.S.K. Sthalekar for the petitioner. CORAM : D.G. KARNIK, J. DATE : 3RD JUNE 2008 P.C. P.C. P.C. : 1. The matter was dismissed for default in the morning. In the afternoon session, learned counsel for the petitioner mentioned the matter and requested that the matter may be restored and heard on merits. Request is granted and the order passed in the morning dismissing the petition in default is recalled and set aside. 2. Heard. 3. By this petition, the petitioner challenges the - 2 - award dated 29th December 2006 passed by the arbitral tribunal allowing the claim of the respondent of Rs.83,799/-. 4. The respondent sold goods (cloth) worth Rs.83,799/- to the petitioner. The petitioner did not pay the price. According to the petitioner, the goods were defective and therefore it was not liable to pay the price. The dispute between the parties were referred to the arbitration in accordance with the agreement and by the impugned award, the claim of the respondent was allowed. 5. The agreement between the parties provided that if there was any defect in the goods, the petitioner would inform the same within 7 days. The petitioner did not inform about the alleged defect within 7 days. The arbitral tribunal recorded a finding to that effect. The finding is a possible finding of fact and is not open for challenge in a petition under section 34 of the Arbitration and Conciliation Act. 6. Learned counsel for the petitioner invited by attention to the evidence of Mr.Manojbhai, respondent’s agent, and submitted that bare perusal of his evidence would show that the finding of fact that the goods were - 3 - not defective, is perverse and therefore needs to be set aside. The evidence of Manojbhai shows that the petitioner complained to Manojbhai about the defects in the goods. Manojbhai visited and noticed that the cloth was cut by the tailors and therefore no complaint would be entertained. Cutting of cloth for preparation of garments, in my view, amounts to acceptance of goods. Section 42 of the Sale of Goods Act reads as under:- "42. Acceptance 42. Acceptance 42. Acceptance.- The buyer is deemed to have been accepted the goods when he intimates to the seller that he has accepted them, or when the goods have been delivered to him and he does any act in relation to them which is inconsistent with the ownership of the seller, or when, after the lapse of a reasonable time he retains the goods without intimating to the seller that he has rejected them." In view of section 42 of the Sale of Goods Act, cutting of cloth by the petitioner for the purpose of making garments was clearly an act done by the petitioner which has been inconsistent with the ownership of the respondent. If at all the petitioner had rejected the goods, it ought not to have cut the cloth for making garments. There is no merit in the contention that the - 4 - goods were defective and rejected. 7. No other point was urged. 8. In the circumstances, there is no merit in the petition, which is hereby dismissed summarily. (D.G. KARNIK, J.)