mpt IN THE HIGH COURT OF JUDICATURE OF BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ARBITRATION PETITION NO. 437 of 2007 M/s.R.K. Mishra & Sons .. Petitioner versus Union of India .. Respondent ... Ms.Shilpa Kapil for the petitioner. Mr.Suresh Kumar for the respondent. CORAM : D.G.KARNIK, J DATED : 24th June 2008 P.C.: 1. Heard. 2. By this petition, the petitioner takes exception to the unanimous award dated 23rd July 2007 made by a three member Bench Arbitral Tribunal. 3. Learned counsel for the petitioner submitted that the finding recorded by the arbitral tribunal that the contract was terminated by the respondent on account of a breach by the petitioner, is erroneous and perverse. She invited my attention to the letters dated 29th January 2003 and 5th February 2003 written by the petitioner to the respondent in which it had asked for the drawings and submitted that as the drawings were not given by the respondent, the petitioner could not perform his part of the contract. This fact has not been considered by the arbitral tribunal and therefore the decision is perverse. The letters have been considered by the arbitral tribunal in its award (see page 44 and 45 of the compilation). After considering the letters, arbitral tribunal has held that the contract was terminated by the respondent for breach by the petitioner. That being a possible finding of fact cannot be challenged in a petition u/s.34 of the Arbitration Act. 4. Learned counsel for the petitioner then submitted that the arbitral tribunal erred in considering the counter claim made by the railways. In connection, she referred to a decision of the Division Bench of Andhra Pradesh High Court in K. Venkateshwara Rao Vs. Shri T. Seshachaalapathi & ors.., 1998(1) Arb.L.R. 540. That was the case arising under the provisions of Arbitration Act 1940 and not under the present Arbitration Act 1996. Secondly, in that case on facts it was held that the railways could not have asked for the arbitration of a counter claim as the arbitration clause did not permit the railway to refer its claim to arbitration. This was held on the basis of railways board’s latter dated 6th June 1990. The letter of the railways board dated 6th June 1990 is not filed in the present arbitration proceedings and there is no material on record to show that it applied in the present case also. There is nothing on record to show that the counter claim made by the railways was excepted from the arbitration clause in the present case. The decision of the Division Bench of Andhra Pradesh High Court does not lay down a general rule that in no case a counter claim made by the railway can be considered without the consent of the contractor. That would depend on facts and circumstances of each case. In the present case, it is not shown that the counter claim of the railway was not covered by the arbitration clause and hence not entertainable by the arbitral tribunal. 5. Learned counsel for the petitioner also relied upon the decision of this Court in State of Maharashtra Vs. M/s.S.N. Chawhan 1985 (1) Bom.C.R.579, I fail to see how the said case is relevant. 6. No other point was urged. There is no merit in the petition which is hereby rejected summarily. (D.G. KARNIK, J)