1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, APPELLATE SIDE NAGPUR BENCH, NAGPUR FIRST APPEAL NO. 566 OF 2007 M/s Murli Agro Products Ltd. Thr. Chief Finance Officer Vs. M/s Larsen & Tourbo Ltd. MumBai & Ors. Office Notes, Office Memoranda of Coram, appearances, Court orders or directions and Registrar's orders Court's or Judge's orders Shri Nitin Lalwani Adv. for appellant. Shri Rohit Joshi Adv. for respondents. CORAM: C. L. PANGARKAR J. Dated: 30 th JULY, 2009. This appeal is preferred against the order passed by the District Judge on an application under Section 34 of the Arbitration and Conciliation Act, 1996. The appellant has entered into a contract of supply of Soya Food Products to the respondents. There were two contracts for supply of 1500 MT of Soya Food Products. The first contract was dated 19.03.1993 and the second was dated 27.03.1993. It is the contention of the appellant that the appellant had dispatched the 2 goods to the respondent in respect of the first contract. The respondent contended that there was shortage of the goods . It is not in dispute that the entire quantity was supplied. It was agreed between the parties that upon delivery of the goods 90% of the price could be paid immediately. 5% price would be paid upon delivery and checking of the samples and rest of the 5% was to be paid after checking of the samples and the delivery of the goods. It is the contention of the appellant that although the entire quantity was delivered price thereof was not paid. Appellant therefore laid a claim before the respondent. Respondent did not accept the request of the appellant to compensate the appellant. On the other hand it is alleged that the appellant cancelled the second contract and refused to supply the goods under the second contract. Appellant had filed a civil suit before the Civil Judge for the recovery of the amount of price payable to the appellant which was due. According to the appellant it is not in dispute that appellants withdrew that suit. In the meanwhile the respondent had approached the Arbitrator for claiming damages for non performance of the second contract. Respondent claimed total damages of Rs. 7 lac which is called as risk purchase clause. When hthis claim was filed by the respondent before the Arbitrator the 3 appellant also made a counter claim. Both the claims were considered by the Arbitrator and the Arbitrators found that the respondent was entitled to recovery of sum of Rs. 3,09,750/-. Since there was a counter claim it seems that the Arbitrators gave a set off of Rs. 1,87,057/- to the appellant and directed the appellants to pay a balance of Rs. 1,22,693/-. When this award was passed the appellant approached the District Judge. The District Judge has considered the submissions and he found that the award passed by the Arbitrator does not suffer from any infirmity and he confirmed the award and dismissed the application. Learned counsel for the appellants submits that the counter claim of the appellants is not at all considered by the Arbitrator. The appeal has been preferred only on the ground that the counter claim as was submitted by the appellant was not considered by the arbitrators. The submission to me does not appear to be correct. After having gone through the record before the Arbitrator it is apparent from the letter dated 10.06.1993 that the appellant had agreed to receive sum of Rs. 1,87,057/- towards the satisfaction of his entire claim. It is on account of such letter that Arbitrators had 4 given credit of this sum to the appellant and had directed the appellant to pay the balance. In the circumstances it cannot be said that the Arbitrator did not consider the counter claim of the appellants. The learned District Judge has also considered this aspect. I do not find that there is any reason to interfere with the order passed by the District Judge or Arbitrator. There is no substance in the appeal. The same is dismissed in limine. JUDGE svk 5 6 7