ORDER 1. The petitioner has challenged the money award dated 14th October, 2013 granting 4 claims of the respondent in the arbitration before the learned Arbitrator. 2. The parties entered into an agreement under which the petitioner herein was to use a dredger of the respondent herein for a period of 2 years from 1st November, 2006. At the time of the agreement, the dredger was already in the possession of the petitioner herein. Under the agreement the petitioner was to pay hire charges of net amount excluding the cost of operation, repairs, maintenance and renewal of spares, taxes and levies incurred by the petitioner herein to maintain the dredger in the same condition as on the date of the commencement of the hire of the dredger. 3. Under Clause 5 of the agreement on the expiration of the agreement on its termination the petitioner was to deliver back the dredger within 60 days of the expiry or the termination at his own costs at the place specified in the agreement in the same condition as on the date of commencement of hire including of the spare parts and tools provided with the dredger. 4. Under Clause 5 itself the petitioner was to obtain a certificate of an independent surveyor about the condition of the dredger and if the surveyor certified that certain repairs, renewal or replacement of the spares and machinery was required to put the dredger in working condition than the petitioner was to bear the costs of repairs, renewal or replacement. 5. Under Clause 12 of the agreement if there was any improvement of the dredger for its better and more efficient operation, it was to be discussed by the petitioner with the respondent to decide the sharing of costs and the consequent enhancement of the hire charges. Such improvement was to be effected after obtaining written approval from the respondent herein. 6. Under Clause 23 of the Contract the respondent was not to be liable for any defects in the dredger and it was recorded that the petitioner took inspection and was satisfied itself about its condition. 7. Consequently the condition of the dredger was stated to be satisfactory on the date of the agreement. The petitioner was to pay the hire charges agreed. If the petitioner required to make any repairs it may make at his own costs. 7. Consequently the condition of the dredger was stated to be satisfactory on the date of the agreement. The petitioner was to pay the hire charges agreed. If the petitioner required to make any repairs it may make at his own costs. If there was any improvement it had to be with the approval of the respondent. This would inter alia entail enhancement of hire charges. The petitioner agreed that the condition was satisfactory. Hence if the condition of the part of the dredger was not satisfactory or required repairs or improvement it was for the petitioner to make repairs or the improvements and the respondent was not liable for any defects in the dredger. 8. An inspection of the dredger was carried out prior to and after the agreement was entered into by the parties. A statement of stock of inventory of the dredger was initially made on 21st June, 2006. It showed that certain accessories at item Nos.99 to 102 were corroded and damaged. After the agreement was entered into another inspection was done on the statement of stock of inventory of the dredger on 18.11.2006 when the same condition has been reported for item Nos.99 to 102 which are some of the accessories. Consequently as per the terms of the contract the petitioner would be required to carry out the repairs, renewal or replacement keeping in mind that the petitioner was satisfied with the condition of the dredger and the respondent was not liable for the defects in the dredger. The dredger was, therefore, to be returned in good working conditions at the time of the expiration of the contract or upon its termination. 9. The contract was terminated by the respondent before the expiry of the contract. The notice of termination is shown to be dated 10th March, 2008. It is sent by email referring to the contract dated 27th October, 2006 which commenced from 1st November, 2006. During the period when the contract was in force, the petitioner herein is stated to have paid hire charges upto January, 2008. Consequently on the date of termination of the contract, the hire charges for February and March were not paid. Upon the termination of the contract, the respondent herein asked for release of the dredger and the associated equipments, machineries, spares and stores as per the contract terms and conditions. Consequently on the date of termination of the contract, the hire charges for February and March were not paid. Upon the termination of the contract, the respondent herein asked for release of the dredger and the associated equipments, machineries, spares and stores as per the contract terms and conditions. This would be under Clause 5 of the Contract under which the petitioner herein was to deliver back the dredger at his own costs at the place specified in the contract, in the same condition as it was at the time of the hire on 1st November, 2006 including the stores, spares, tools etc. Since the petitioner was to repair, renew or replace the dredger at his own costs, the part of the dredger was repaired, renewed or replaced would, therefore, also be liable to be returned so as to let the dredger be in satisfactory condition at the time of the return. 10. The petitioner was to return the dredger within 60 days of the termination of the contract. This would be by 9th May, 2008. The petitioner long delayed the return. The petitioner did not pay hire charges during the period it kept the dredger with itself after the termination of the contract and failed to return. There has been certain correspondence between the parties by way of several emails on that count. Inspection of the dredger was taken. Later on 21.06.2008 the dredger was taken away by the respondent itself from the place where it was used by the petitioner. The petitioner did not return the dredger in terms of Clause 5 of the agreement at the place specified in the contract. The respondent took the dredger at another place. The respondent claimed that it incurred transportation charges. The respondent also claims that all the renewed and repaired stores and spares of the dredger were not given and the respondent incurred costs of certain accessories for putting back the dredger in the same condition and hiring it out to the another party as also incurred operational costs for the dredger. 11. The learned Arbitrator has granted 4 claims of the respondent. 12. The learned Arbitrator has granted the hire charges from February to June, 2008 when the dredger remained with the petitioner without payment of hire charges. 11. The learned Arbitrator has granted 4 claims of the respondent. 12. The learned Arbitrator has granted the hire charges from February to June, 2008 when the dredger remained with the petitioner without payment of hire charges. The learned Arbitrator has also granted transportation charges to the respondent who took away the dredger from the place where it was employed by the petitioner to a different location. The learned Arbitrator has also granted a part of the operational costs claimed by the respondent for the months of July and August when the dredger was not given for hire to another party. The learned Arbitrator has further granted costs of 2 accessories which had to be fitted by the respondent for the subsequent hire. The petitioner herein defended the claim of the respondent and made a counterclaim for maintaining the dredger from the date of termination of the contract on 10th March, 2009 until repossession, for loss due to premature termination, for additional expenses to hire another dredger and interest @ 24% p.a. from the date of premature termination until payment. 13. The learned Arbitrator has dismissed the counterclaim of the petitioner herein as being barred by the law of limitation. 14. The petitioner has challenged each of the 4 claims which came to be awarded by the learned Arbitrator on separate and distinct grounds. These would have to be considered separately. 15. The contract subsisted from 1st November, 2006 until 10th March, 2008 when it was terminated. The petitioner would contend that the termination was premature. The termination of the contract would be premature if the petitioner performed all the obligations under the contract and yet the respondent terminated it before expiry of the period of the contract. If the petitioner defaulted in any of the terms and conditions, the respondent would be entitled to terminate the contract and which termination cannot be taken to be “premature”. 16. The respondent claimed hire charges from February, 2008, the commencement of the period of default to June, 2008 when the dredger was ultimately obtained @ Rs.3 lacs p.m. being the contractual rate making an aggregate of Rs.15 lacs. The petitioner admittedly paid hire charges till January, 2008. The hire charges from February, 2008 were not paid. The respondent claimed to use the dredger itself. This would include hiring the dredger to another party to pay the hire charges. The petitioner admittedly paid hire charges till January, 2008. The hire charges from February, 2008 were not paid. The respondent claimed to use the dredger itself. This would include hiring the dredger to another party to pay the hire charges. Upon default of the payment of hire charges the termination would be in order. The learned Arbitrator has considered this aspect. 17. It is contended on behalf of the petitioner that the petitioner claims to have sent an email to the respondent with regard to the termination notice on 25th April, 2008. The email shown by the petitioner is unlike any other. It makes reference to the dates 25th April, 30th April & 5th May for attention of the officer of the respondent. The CC shows interpolation including the date 25th May. The email makes reference to a telephone call regarding redelivery of the dredger. It shows that the petitioner was ready for any kind of inspection of the dredger on or before 27th May, 2008 at the site of the petitioner. It warns the respondent that if the inspection was not carried out before the date mentioned by the petitioner, it would start dismantling the equipments and deliver it to the respondent at the earliest. This is a strange email. The respondent would contend that it is interpolated and was in fact sent on 25th May, 2008 fixing the time for inspection on or before 27th May, 2008. This would stand to reason. An email is sent for what could be done in next about 2 days. An email is not expected to be sent for what was warned to be done in the next one month and 2 days! 18. In view of such a strange claim and the interpolation the parties were directed to produce the entire chain of emails. The petitioner claims that it is not available with it. The respondent produced it before the Court. Of course, it does not have to be considered for its genuineness by this Court. The learned Arbitrator has sufficiently considered the entire chain of correspondence more specially the emails on and after 24th April to accept the claim of the respondent for the hire charges payable from February to June when the defaults were made and the dredger was ultimately returned. The learned Arbitrator has sufficiently considered the entire chain of correspondence more specially the emails on and after 24th April to accept the claim of the respondent for the hire charges payable from February to June when the defaults were made and the dredger was ultimately returned. The emails do show the chain of correspondence between the parties with regard to the inspection of the dredger including its equipments and accessories and its redelivery to the respondent. The delivery was effected on 21st June, 2008. Even as late as on 19th June the petitioner offered the crane at the site for moving the dredger on the Saturday after that date. The respondent reverted to state that it could arrange the crane on the same day. The dredger was ultimately taken by the respondent itself on 21st June, 2008. This correspondence would be material for considering even the other claims and shall be seen presently. 19. For the claim of hire charges it was the contention of the petitioner herein that the petitioner was to deliver the dredger within 60 days and hence had no liability to make payment of the hire charges for 60 days after the notice of termination. This is a wondrous argument. It would mean that if the notice of termination was not given, the petitioner would pay the hire charges but if after defaults committed by the petitioner, if notice of termination is given, the liability for payment would come to an end even if the petitioner does not return the dredger as per its obligation under Clause 5 of the agreement. In fact the petitioner could have returned the dredger from the very next date after the termination and once it was returned the petitioner would incur no liability for the payment of hire charges. Since it was not returned until 21st June, 2008, the petitioner was liable to pay hire charges until that date and the grant of hire charges from the date of defaults until the date of the return of the dredger could be the only possible conclusion upon seeing the rights and obligations of the parties under the agreement. 20. The respondent herein claimed Rs.6.14 lacs as transportation cost of the dredger incurred by it in place of the petitioner who was required to be incur it under the contract. 20. The respondent herein claimed Rs.6.14 lacs as transportation cost of the dredger incurred by it in place of the petitioner who was required to be incur it under the contract. As per Clause 5 of the agreement between the parties the petitioner was to deliver back the dredger to the respondent at his own costs at the place stated by the respondent upon expiration or termination of the contract. The emails considered by the learned Arbitrator would show how the petitioner sought to bind time. It was only on 25th May that the petitioner offered inspection on or before 27th May. Ultimately the respondent itself went to the site where the dredger was used by the petitioner to take it away. The petitioner was to deliver back the dredger at his own costs. The petitioner incurred no transportation costs for the delivery of the dredger to the respondent. The respondent instead incurred transportation costs for taking back the dredger. The learned Arbitrator has considered this aspect fully including the actual place where the dredger was being used by the petitioner and where it was taken by the respondent. The learned Arbitrator has considered that the distance between the place where the dredger was being used by the petitioner and the place in the contract where the dredger was to be delivered was in fact longer than the place where the respondent transported the dredger upon taking delivery and consequently incurred lesser transportation costs than the petitioner would have incurred had the petitioner complied with its obligation under Clause 5 of the contract. Consequently the learned Arbitrator granted a lumpsum amount of the transportation costs only. The grant is strictly in terms of the contract. The petitioner would argue that the respondent did not take the dredger from where it was used by the petitioner to the place mentioned in the contract for the delivery but took it in another direction at a different place. Mr. Khandeparkar argued that the arbitrator had no inherent jurisdiction and authority to grant what the Arbitrator considered was fair and reasonable as held in the case of P. Radhakrishna Murthy Vs. National Buildings Construction (2013) 3 SCC 747 thus: 15. Mr. Khandeparkar argued that the arbitrator had no inherent jurisdiction and authority to grant what the Arbitrator considered was fair and reasonable as held in the case of P. Radhakrishna Murthy Vs. National Buildings Construction (2013) 3 SCC 747 thus: 15. The High Court has rightly held that the arbitrator is not a conciliator and his duty is to decide the disputes submitted to him according to the legal rights of the parties and not according to what he may consider to be fair and reasonable. Hence he argued that the Arbitrator had no jurisdiction to grant transportation costs for the shorter distance where the dredger was transported and consequently the transportation costs was not payable by the petitioner and could not have been granted. This argument wholly ignores the obligation of the petitioner which alone the learned Arbitrator considered in granting a lumpsum amount of Rs.6 lacs for transportation costs actually incurred by the respondent in place of the petitioner. 21. The respondent herein claimed Rs.90 lacs on account of operational loss incurred by the respondent due to non delivery of the dredger by the petitioner herein. The respondent entered into another agreement with another company on 6th September, 2008 for the hire of the dredger. The dredger was given without certain pipes being the stores and spares. The dredger could not be put into operation by the respondent or hired to another party until after certain purchases of spares were effected. The learned Arbitrator has considered that the respondent claimed hire charges from the petitioner herein till the delivery of the dredger. Hence they could not claim non operational loss for such period. The learned Arbitrator has granted the non operational charges of the hire only for the period after the dredger was returned on 21st June, 2008 till it was gainfully employed by the respondent by hiring it out to another party under the further hire purchase agreement dated 6th September, 2008. Consequently the non operational charges have been granted only in July and August, 2008 when the dredger remained idle. The grant is as per the terms of the agreement since the petitioner herein was bound to deliver the dredger in the same condition as it was under Clause 5 of the Contract including having undertaken the costs of repair, renewal and replacement as required of all the stores, spares, tools etc. The grant is as per the terms of the agreement since the petitioner herein was bound to deliver the dredger in the same condition as it was under Clause 5 of the Contract including having undertaken the costs of repair, renewal and replacement as required of all the stores, spares, tools etc. but failed to so deliver and constrained the respondent to incur charges for making it operational. 22. The further claim is for Rs.63 lacs for accessories which the petitioner herein failed to return to the respondent along with dredger. The respondent claimed that it had to purchase and install such accessories to put the dredger in operation. The learned Arbitrator has considered the oral evidence led in that behalf. It was admitted that those accessories were not returned and remained at the site of the petitioner. It is sought to be argued on behalf of the petitioner that the accessories were in damaged and corroded condition at the time the agreement was entered into and was accepted to be so by the respondent herein. The aforesaid two inspections taken on 21st June 2006 and 18th November, 2006 before and after the agreement was entered into between the parties showing the corroded and damaged items at serial Nos.99 to 102 is relied upon by the petitioner. However under Clause 23 of the contract despite that fact the petitioner has declared that it was satisfied with the condition of the dredger and the respondent is shown not to be liable for any defects in the dredger. Consequently if the petitioner had to make any improvement in the dredger it had to inform the respondent so that an enhancement of hire charges could be made. The petitioner claims to have made improvements by obtaining those accessories itself which it claims it was entitled to dismantle and not deliver to the respondent herein. This contention is seen to be misconceived because had the petitioner informed the respondent of the improvement it would have had to pay enhanced hire charges. In that case the petitioner may have been entitled to take back its improvement. This contention is seen to be misconceived because had the petitioner informed the respondent of the improvement it would have had to pay enhanced hire charges. In that case the petitioner may have been entitled to take back its improvement. That having not been done, the petitioner was governed by Clause 5 of the Contract under which any repair, renewal and replacement was to be at his own costs and would have to be delivered back to the respondent herein along with the dredger upon the termination or expiration of the contract. The learned Arbitrator has correctly considered the applicability of Clause 23 for the repairs and renewals as also Clause 12 with regard to the improvement. 23. Mr. Khandeparkar relied upon the judgment in the case of Zee Entertainment Enterprises Ltd. Vs. Klassic Studios & Films Pvt. Ltd. 2013(7) Bom.C.R. 357 to contend that the Court would have to consider the admissions of the parties and the evidence led to see whether the learned Arbitrator has considered the same. In that case the learned Arbitrator disallowed the claim which was held to be contrary to law and without considering the oral evidence. It was held that that was violation of the principle of natural justice. This case is entirely dependent upon what the parties have agreed in their contract which the learned Arbitrator must uphold and the evidence contained in the chain of emails as also admitted facts, all of which have been considered by the learned Arbitrator. 24. My attention has also been drawn to the judgment in the case of M/s. Chemipex Vs. M/s. Shlok Chemicals in Appeal No. 397 of 2012 dated 21.01.2013 of this Court in which the question of the time being of the essence of the contract under Section 55 of the Indian Contract Act, 1872 was considered. Certain compensation was given. The arbitrator did not give reasons for awarding claim of damages of Rs.4 lacs for which the award was set aside. The facts of that case are totally different and not applicable to the facts of this case. 25. The learned Arbitrator has further considered the oral evidence led by the witness which cannot be gone into by the Court in this petition. The facts of that case are totally different and not applicable to the facts of this case. 25. The learned Arbitrator has further considered the oral evidence led by the witness which cannot be gone into by the Court in this petition. Consequently the conclusion of the learned Arbitrator that the respondent was required to spend the amount claimed by the respondent for the purchase of those accessories cannot be faulted. 26. The petitioner herein made a counterclaim. The counterclaim has been dismissed as being barred by limitation. The learned Arbitrator has considered the limitation period in accordance with Article 55 of Schedule I to the Limitation Act which is in respect of the compensation for breach of contract as claimed by the petitioner herein. The period of limitation is 3 years from the date of the breach. The learned Arbitrator has considered that the time would start running when the breach occurred. The breach is stated to be upon the termination. The termination was complete on 10.03.2008. It was not a continuing breach and hence that date would determine the compensation claimed by either party under the contract. The learned Arbitrator has considered this question of law precisely upon the particulars of the claim of the petitioner herein. The petitioner has claimed Rs.10,000/for maintaining the dredger from the date of the termination until repossession. (It may be remembered that the petitioner claimed that the no hire charges were payable for the 60 days period that it had to return the dredger but which were returned much later. The contract provided Rs.10,000/to be the liability of the petitioner for the delay in delivering back the dredger. However the petitioner itself has claimed compensation of that amount.) It is, therefore, naturally claimed from the date of termination. The consequent claim is the loss claimed by the petitioner upon the premature termination and the additional expenses incurred by it by way of further loss and interest thereon. The cause of action for making these claims would arise from the date of the breach which the petitioner claims is the premature termination. 24. The counterclaim has been filed on 24th May, 2011 and thus seen is outside the 3 year period under the Limitation Act. The learned Arbitrator has, therefore, correctly considered this question of law to dismiss the counterclaim. 25. The award is, therefore, perfectly correct and needs no interference. 24. The counterclaim has been filed on 24th May, 2011 and thus seen is outside the 3 year period under the Limitation Act. The learned Arbitrator has, therefore, correctly considered this question of law to dismiss the counterclaim. 25. The award is, therefore, perfectly correct and needs no interference. Hence the petition is dismissed.