IN THE HIGH COURT OF BOMBAY AT GOA APPLN. FOR APPOINTMENT OF ARBITRATOR NO. 18 OF 2009 CHOWGULE AND COMPANY PVT LTD THROUGH DIRECTOR AND COMPANY SECRETARY R. B. BILGUCHE ... Applicant Versus THE GENERAL MANAGER TITAGARH WAGONS LIMITED ... Respondent Mr. S. D. Lotlikar, Senior Advocate with Mr. H. Kankonkar, Advocate for the applicant. Mr. S. M. Singbal, Advocate for the respondents. Coram:- S. J. VAZIFDAR, J. Date:- 9th April, 2010 P.C. An affidavit in reply filed on behalf of the respondent is taken on record. 2. This is an application under Section 11 of the Arbitration and Conciliation Act, 1996 for appointment of an arbitrator on behalf of the respondent. There is no dispute that a contract dated 20.2.2006 was entered into between the parties. The contract was for supply by the respondent to the applicant of wagons, on the terms and conditions stated therein. Clause 15 of the agreement pertains to arbitration. 3. The wagons were supplied. However, the applicant's case is that there was a delay in supply of the wagons, and as a result thereof the applicant had suffered losses. The applicant, therefore, raised a claim for the recovery of liquidated damages, in accordance with Clause 8 of the said contract. 4. For the purpose of this application, it is not necessary to consider the merits of the disputes between the parties. I, therefore, refrain from referring to the correspondence which has been annexed in support of the application and the affidavit-in-reply. Suffice it to note that the same discloses the dispute pertaining to the alleged delay in supply of the said wagons. 5. Shri Singbal, the learned Counsel appearing on behalf of the respondent submits that the applicant is not entitled to maintain the claim in view of the fact that the wagons were supplied albeit belatedly and the payment for the same has also been made by the applicant. 6. Whether the applicant has waived its right, either expressly or impliedly to claim liquidated damages, is a question of fact pertaining to the merits of the dispute. That it is for the arbitrator to decide. For instance, in a letter dated 5.5.08, the applicant has expressly stated that it agreed to extend the date of delivery of the wagons subject to its right to recover the liquidated damages under the contract. Whether or not that was so, is for the arbitrator to decide. 7. By a letter dated 22.1.2009, the applicant appointed an arbitrator and called upon the respondents to agree to his appointment as a sole arbitrator. 8. In this view of the matter, the application is allowed with the modification that Mr. G. D. Kamat, Retired Chief Justice of Gujarat High Court is, hereby, appointed as a sole arbitrator. It is agreed by Mr. Lotlikar that the respondents may also raise all their claims/counter claims before the learned Arbitrator. It is so ordered and the reference is accordingly made with respect thereto, as well. 9. The application is, accordingly, disposed of. There shall be no order as to costs. The operation of this order is stayed upto and including 14th May, 2010. S. J. VAZIFDAR, J. ssm.