PETITION UNDER SECTION 34 OF THE ARBITRATION AND CONCILIATION ACT, 1996 AGAINST THE FIRST PARTIAL AWRAD DATED 01.10.2018, PASSED BY THE LEARNED SOLE ARBITRATOR 1. This petition u/s 34 of Arbitration and Conciliation Act is against the order dated 01.10.2018 passed by the Arbitral Tirbunal holding that counter claim of respondent filed on 07.07.2018 cannot be rejected, as not maintainable. The impugned order accordingly rejected the application u/o 7 R 11 CPC as not maintainable. Dismissal of counter claim was sought as barred by limitation and therefore, hit by Order 7 R 11(d) CPC. Petitioner was claimant before the Arbitral Tribunal in which respondent had filed a counter claim on 07.07.2018. Facts are briefly stated. Petitioner entered into discussion with respondent for purchase of Oxygen Nitrogen Plant and placed an order and accordingly Performa Invoice dated 05.11.2012 was raised by the respondent signed by both the parties mentioning the terms and conditions of supply. Admittedly total consideration was USD 4,35,000/­, rate of conversion of one USD was Rs. 54.60 and thus, total sale consideration was Rs. 2,37,51,000/­ and as per clause 5 of the Performa Invoice 25% i.e. Rs. 59,37,750/­ was to be paid in advance. Rs. 5,00,000/­ was to be paid at the time of signing of the Performa Invoice dated 05.11.2012, further Rs. 5,00,000/­ was to be paid before OMP (COMM) No. 20/18 Web Overseas Limited Vs. Universal Industrial Plants Manufacturing Company Private Limited Page No. 2 of 24 08.11.2012, Rs. 37,50,200/­ was to be paid by 19.11.2012. 5% of total invoice amount i.e. Rs. 11,87,550/­ was to be paid before 05.01.2013. 2. Remaining 75% to the tune of Rs. 1,78,13,250/­ was to be paid prior to dispatch when the goods were ready. First installment of Rs. 5,00,000/­ was paid on 05.11.2012 and second installment to be paid by 08.11.2012 was paid around 17/20.11.2012. Third installment of Rs. 37,50,200/­ to be paid by 19.11.2012 was also delayed and respondent extended the period for making this payment till 30.11.2012. Petitioner was requested for extension of further time till third week of January 2013 by sending an email on 26.12.2012. A sum of Rs. 5,00,000/­ in the meanwhile was paid by the petitioner on 07.12.2012 and again a sum of Rs. 5,00,000/­ further was paid on 10.12.2012. In the email dated 26.12.2012, Mr. Gaurav Seth, Director of petitioner had requested for extension and was willing to accept a reasonable and affordable increase in price and was also understanding that delivery of the machine will be delayed due to delayed payment. The said email was replied vide email dated 27.12.2012 extending the period for making the payment upto third week of January and it was also stated that there will be an increase in price. As petitioner did not make the payment, respondent vide letter dated 05.02.2013 informed petitioner that respondent company has already invested to the tune of over Rs. 1 crore towards manufacturing of the plant as per ordered OMP (COMM) No. 20/18 Web Overseas Limited Vs. Universal Industrial Plants Manufacturing Company Private Limited Page No. 3 of 24 contract and despite information for making the payment by 20.01.2013, there was again delay in payment as per terms of the contract and they were unable to buy the bought out components and materials to complete the manufacture of the plant and unable to process the order any further and in case manufacturing of the ordered plant which is 100% tailor made is scrapped, the investment made by the respondent to the tune of over Rs. 1 crore towards manufacturing of the pl