Judgment : SUDESH BANSAL, J. 1. This is an appeal under Section 37 of the Arbitration and Conciliation Act, 1996 (hereinafter for short “the A&C Act”) against the final order dated 08.01.2015 passed by the District Judge, Jhunjhunu, dismissing appellant’s application under Section 34 of the A&C Act and affirming the arbitral award dated 09.05.2009. The arbitral award dated 09.05.2009 was passed by the Sole Arbitrator Sh. Altaf Ahmed, Senior Advocate, whereby and whereunder the claim of appellant- HCL was disallowed, while the counter claim, put forth by respondent/ non-claimant- BGL was allowed to the tune of Rs.10,79,80,044/- (Principal Amount- Rs.6,88,20,333/- + Interest Amount- Rs.3,91,59,711/-). Against the arbitral award dated 09.05.2009, HCL filed objections under Section 34 of the A&C Act, seeking to set aside the arbitral award and to allow its claim against BGL. The objections filed by HCL against the arbitral award are double folded, first- against allowing the counter claim of BGL and second- against disallowing the claim of HCL. The District Judge, Jhunjhunu, vide final order dated 08.01.2015, impugned herein, dismissed the objections, not on merits, but merely by observing that none of the objections, attract any of the grounds enumerated under Section 34 of the A&C Act. Hence, HCL has preferred this appeal thereagainst, praying to allow its application under Section 34 of the A&C Act and consequently, to set-aside the arbitral award and decree its claim against BGL. Note :- The term “HCL” stands for appellant- Hindustan Cooper Limited, which is a Public Sector Undertaking. The term “BGL” stands for respondent- M/s Bagwati Gas Limited, which is a limited company, incorporated under the Companies Act, 1956. 2. Heard learned Senior Counsels at length, appearing for and on behalf of respective parties so also scanned the record. 3. At the outset, it is noteworthy that objections of HCL under Section 34 of the A&C Act, were dismissed vide order dated 08.01.2015, it means, before introducing amendment to Section 34 of the A&C Act by Act No.3 of 2016 with retrospective effect w.e.f. 23.10.2015. Hence, objections of HCL are required to be considered within ambit & scope of Section 34 , as was existing prior to amendment w.e.f. 23.10.2015. It would be apropos to reproduce Section 34 of the A&C Act, prior to amendment w.e.f. 23.10.2015, which reads as under:- 34. Hence, objections of HCL are required to be considered within ambit & scope of Section 34 , as was existing prior to amendment w.e.f. 23.10.2015. It would be apropos to reproduce Section 34 of the A&C Act, prior to amendment w.e.f. 23.10.2015, which reads as under:- 34. Application for setting aside arbitral award - (1) Recourse to a Court against an arbitral award may be made only by an application for setting aside such award in accordance with sub-section (2) and sub-section (3). (2) An arbitral award may be set aside by the Court only if- (a) the party making the application furnishes proof that- (i) a party was under some incapacity; or (ii) the arbitration agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law for the time being in force; or (iii) the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or (iv) the arbitral award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration: Provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, only that part of the arbitral award which contains decisions on matters not submitted to arbitration may be set aside; or (v) the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, unless such agreement was in conflict with a provision of this Part from which the parties cannot derogate, or, failing such agreement, was not in accordance with this Part; or (b) the Court finds that— (i) the subject-matter of the dispute is not capable of settlement by arbitration under the law for the time being in force, or (ii) the arbitral award is in conflict with the public policy of India. Explanation- Without prejudice to the generality of sub- clause (ii), it is hereby declared, for the avoidance of any doubt, that an award is in conflict with the public policy of India if the making of the award was induced or affected by fraud or corruption or was in violation of Section 75 or Section 81. Explanation- Without prejudice to the generality of sub- clause (ii), it is hereby declared, for the avoidance of any doubt, that an award is in conflict with the public policy of India if the making of the award was induced or affected by fraud or corruption or was in violation of Section 75 or Section 81. (3) An application for setting aside may not be made after three months have elapsed from the date on which the party making that application had received the arbitral award or, if a request had been made under section 33, from the date on which that request had been disposed of by the arbitral tribunal: Provided that if the Court is satisfied that the applicant was prevented by sufficient cause from making the application within the said period of three months it may entertain the application within a further period of thirty days, but not thereafter. (4) On receipt of an application under sub-section (1), the Court may, where it is appropriate and it is so requested by a party, adjourn the proceedings for a period of time determined by it in order to give the arbitral tribunal an opportunity to resume the arbitral proceedings or to take such other action as in the opinion of arbitral tribunal will eliminate the grounds for setting aside the arbitral award. Note:- By way of Amendment, two new explanations, which are differently worded and sub-section 2A, have been introduced to Section 34 of A&C Act. However, the arbital award, if found in conflict with the Public Policy of India, can certainly be quashed and set aside within scope of even unamended provision of Section 34 of the A&C Act and the powers of appellate Court under Section 37 can be concurrently exercised, but not beyond the original scope of Section 34 . 4. The expression “Public Policy” used in Section 34 , has been subject matter of discussion and interpretation in catena of judgments. In the Oft-quoted landmark judgment of Hon’ble Supreme Court in case of ONGC Limited Vs. Saw Pipes Limited [ 2003 (5) SCC 705 ] , the concept of Public Policy was held to be concerned with public good and public interest and it was observed that the arbitral award, which is patently in violation to statutory provisions, cannot be held to be in public interest. Saw Pipes Limited [ 2003 (5) SCC 705 ] , the concept of Public Policy was held to be concerned with public good and public interest and it was observed that the arbitral award, which is patently in violation to statutory provisions, cannot be held to be in public interest. In a recent judgment, in case of Batliboy Enviornmental Engineers Limited Vs. Hindustan Petroleum Corporation Limited , [ (2024) 2 SCC 375 ] , the Hon’ble Supreme Court reiterated the expanded scope of term “Public Policy” as adopted in case of ONGC Limited (Supra). For ready reference Para Nos. 43 & 47 are being reproduced hereunder:- 43. Subsequently, in ONGC Ltd. v. Western Geco International Ltd. , [ (2014) 9 SCC 263 ] , a three Judge Bench of this Court observed that the Court, in Saw Pipes Ltd., did not examine what would constitute ‘fundamental policy of Indian law’. The expression ‘fundamental policy of Indian law’ in the opinion of this Court includes all fundamental principles providing as basis for administration of justice and enforcement of law in this country. There were three distinct and fundamental juristic principles which form a part and parcel of ‘fundamental policy of Indian law’. The first and the foremost principle is that in every determination by a court or an authority that affects rights of a citizen or leads to civil consequences, the court or authority must adopt a judicial approach. Fidelity to judicial approach entails that the court or authority should not act in an arbitrary, capricious or whimsical manner. The court or authority should act in a bona fide manner and deal with the subject in a fair, reasonable and objective manner. Decision should not be actuated by extraneous considerations. Secondly, the principles of natural justice should be followed. This would include the requirement that the arbitral tribunal must apply its mind to the attending facts and circumstances while taking the view one way or the other. Non- application of mind is a defect that is fatal to any adjudication. Application of mind is best done by recording reasons in support of the decision. As noticed above, Section 31(3)(a) of the A&C states that the arbitral award shall state the reasons on which it is based, unless the parties have agreed that no reasons are to be given. Application of mind is best done by recording reasons in support of the decision. As noticed above, Section 31(3)(a) of the A&C states that the arbitral award shall state the reasons on which it is based, unless the parties have agreed that no reasons are to be given. Sub-clauses (i) and (iii) to Section 34 (2) also refer to different facets of natural justice. In a given case sub-clause to Section 34 (2) and sub-clause (ii) to clause (b) to Section 34 (2) may equally apply. Lastly, is the need to ensure that the decision is not perverse or irrational that no reasonable person would have arrived at the same or be sustained in a court of law. Perversity or irrationality of a decision is tested on the touchstone of Wednesbury principle of reasonableness. At the same time, it was cautioned that this Court was not attempting an exhaustive enumeration of what would constitute ‘fundamental policy of Indian law’, as a straightjacket definition is not possible. If on facts proved before them, the arbitrators fail to draw an inference which ought to have been drawn or if they have drawn an inference which on the face of it, is untenable resulting in injustice, the adjudication made by an arbitral tribunal that enjoys considerable latitude and play at the joints in making awards, may be challenged and set aside. 47. We have extensively analysed the award, its patent flaws and illegalities which emanate from it, like the manifest lack of reasoning in arriving at the conclusions and the calculation of amounts awarded, which, in fact, amount to double or part-double payments, besides being contradictory etc. In view of our aforesaid reasoning, the award has been rightly held to be unsustainable and set aside by the division bench of the High Court exercising power and jurisdiction under Section 37 read with Section 34 of the A & C Act. (Emphasis is mine) 5. Recently, a Constitutional Bench, comprising five judges of Hon’ble Supreme Court, in case of Gayatri Balasamy Vs. ISG Novasoft Technologies Limited , [MANU/SC/0609/2025] decided a Reference on 30.04.2025, has taken a decision with a majority view, which has material bearing on the facets of present appeal. For ready reference, relevant portion of conclusion is being reproduced hereunder:- “85. Recently, a Constitutional Bench, comprising five judges of Hon’ble Supreme Court, in case of Gayatri Balasamy Vs. ISG Novasoft Technologies Limited , [MANU/SC/0609/2025] decided a Reference on 30.04.2025, has taken a decision with a majority view, which has material bearing on the facets of present appeal. For ready reference, relevant portion of conclusion is being reproduced hereunder:- “85. Accordingly, the questions of law referred to by Gayatri Balasamy (supra) are answered by stating that the Court has a limited power Under Sections 34 and 37 of the 1996 Act to modify the arbitral award. This limited power may be exercised under the following circumstances: I. when the award is severable, by severing the "invalid" portion from the "valid" portion of the award, as held in Part II of our Analysis. ………” (Emphasis is mine) It is noteworthy that although one of the Hon’ble Judge of Constitutional Bench, could not concur with the majority view that Award can be modified by the Court in exercise of its limited powers of the Court under Section 34 / 37 of the A&C Act, however, in respect of powers of Court to quash and set aside the portion of award, which is separable and independent and fall within foul of Section 34 , there was a consensus view of all that same lies within power and jurisdiction of the Court under Section 34 / 37 of the A&C Act. 6. Hon’ble Supreme Court in an another landmark judgment in case of Konkan Railway Corporation Ltd. Vs. Chenab Bridge Project Undertaking , [ (2023) 9 SCC 85 ] , referred by learned Senior Counsel for respondent, in Para Nos.14 & 15, the Apex Court held and observed as under:- “14. At the outset, we may state that the jurisdiction of the Court Under Section 37 of the Act, as clarified by this Court in MMTC Ltd. v. Vedanta Ltd. [ (2019) 4 SCC 163 ] , is akin to the jurisdiction of the court Under Section 34 of the Act. Scope of interference by a court in an appeal Under Section 37 of the Act, in examining an order, setting aside or refusing to set aside an award, is restricted and subject to the same grounds as the challenge Under Section 34 of the Act. 15. Scope of interference by a court in an appeal Under Section 37 of the Act, in examining an order, setting aside or refusing to set aside an award, is restricted and subject to the same grounds as the challenge Under Section 34 of the Act. 15. Therefore, the scope of jurisdiction Under Section 34 and Section 37 of the Act is not akin to normal appellate jurisdiction. It is well-settled that courts ought not to interfere with the arbitral award in a casual and cavalier manner. The mere possibility of an alternative view on facts or interpretation of the contract does not entitle courts to reverse the findings of the Arbitral Tribunal. In Dyna Technologies Private Limited v. Crompton Greaves Limited [ (2019) 20 SCC 1 ], this Court held: 24. There is no dispute that Section 34 of the Arbitration Act limits a challenge to an award only on the grounds provided therein or as interpreted by various courts. We need to be cognizant of the fact that arbitral awards should not be interfered with in a casual and cavalier manner, unless the court comes to a conclusion that the perversity of the award goes to the root of the matter without there being a possibility of alternative interpretation which may sustain the arbitral award. Section 34 is different in its approach and cannot be equated with a normal appellate jurisdiction. The mandate Under Section 34 is to respect the finality of the arbitral award and the party autonomy to get their dispute adjudicated by an alternative forum as provided under the law. If the courts were to interfere with the arbitral award in the usual course on factual aspects, then the commercial wisdom behind opting for alternate dispute resolution would stand frustrated. 25. Moreover, umpteen number of judgments of this Court have categorically held that the courts should not interfere with an award merely because an alternative view on facts and interpretation of contract exists. The courts need to be cautious and should defer to the view taken by the Arbitral Tribunal even if the reasoning provided in the award is implied unless such award portrays perversity unpardonable Under Section 34 of the Arbitration Act.” (Emphasis is mine) 7. Apart from above-referred, learned Senior Counsel for appellant, in support of present appeal, has also relied upon following judgments: (i) Kalanithi Maran Vs. Apart from above-referred, learned Senior Counsel for appellant, in support of present appeal, has also relied upon following judgments: (i) Kalanithi Maran Vs. Ajay Singh: , Special Leave to Appeal 14936/ 2024 decided on 26.07.2024 ; & (ii) Union of India Vs. M/s Madan Mohan Jain & Sons, [(2019) 1 WLC 781] In rebuttal, learned Senior Counsel for respondent has also relied upon following judgments:- (i) UHL Power Company Ltd. Vs. State of Himachal Pradesh , [ (2022) 4 SCC 116 ] (ii) MMTC Ltd. Vs. Vedanta Ltd. , [ (2019) 4 SCC 163 ] (iii) B K Muniraju Vs. State of Karnataka , [(2008) 4 SCC 451] ; & (iv) Bihar State Electricity Board, Patna Vs. M/s Green Rubber Industries , [ (1990) 1 SCC 731 ] Thus, umpteen number of judgments have been referred and relied upon by learned Senior Counsels for both the parties, but discussion of all would tantamount to multiplication of the principles of law as extracted hereinabove. The established legal principles, which have emerged after appreciating each of the case law, referred by both parties, are that there cannot be a quarrel about the ambit & scope of Section 34 of the A&C Act that same is narrower and confined to grounds incorporated therein. The scope of appellate Court under Section 37 of A&C Act, obviously, cannot be over and above the scope of Section 34 of A&C Act, but can be exercised concurrently. It is also certain that the arbitral award must not suffer from manifest lack of reasoning, which shocks the conscience of Court and should not be in conflict with the Public Policy of India, justice or morality. Keeping in mind such proposition of law and jurisdiction of appellate Court under Section 34 / 37 of the A&C Act, this Court is proceeding to deal with the present appeal on merits. 8. Before coming to merits of the appeal, firstly, it is necessary to recapitulate the factual matrix, in brief, to understand the genesis of dispute and background of passing the arbitral award. 8.1 A composite Notice Inviting Tender (NIT) dated 02.08.1990 was floated by HCL, inviting tenders for supplying of different quantities of oxygen in two phases. 8. Before coming to merits of the appeal, firstly, it is necessary to recapitulate the factual matrix, in brief, to understand the genesis of dispute and background of passing the arbitral award. 8.1 A composite Notice Inviting Tender (NIT) dated 02.08.1990 was floated by HCL, inviting tenders for supplying of different quantities of oxygen in two phases. In response thereto, BGL made an offer, which came to be accepted by HCL, vide Letter of Intent dated 31.12.1991 and finally, an agreement dated 15.05.1992/ 05.06.1992 was entered into between HCL and BGL. Through this agreement, BGL agreed to supply upto 120 TPD (tons per day) oxygen for the Khetri Nagar Copper Complex (KCC) of HCL. It is to be noted that pursuant to same LOI, another agreement to supply 50 TPD oxygen was also entered into between the parties, but since the present dispute between parties, pertaining to the agreement for supplying of 120 TPD oxygen, and arbitral award so also the objections thereagainst, too are confined to this agreement only, which was entered into between parties for supplying upto 120 TPD oxygen by BGL to KCC of HCL, therefore, this Court is focusing on this agreement only. 8.2 As per agreed terms and conditions under the written agreement, BGL installed an Oxygen Gas Producing Plant to produce Liquid Oxygen (LOX) and Gaseous Oxygen (GOX) of adequate quantity, with provision of sufficient captive reserve quantity to be supplied and sold to HCL for using the same in its smelter and converter plant in the Copper Complex, situated at Khetri Nagar. The oxygen generating plant of BGL started its production and supply w.e.f. 01.01.1996. 8.3 The dispute arose between parties when at one point of time for the period during 17.11.1999 to 25.02.2000, BGL could not supply the adequate quantity of oxygen from its 120 TPD capacity plant, as per requirement of HCL for running its smelter & converter plant, and breach of terms of agreement happened. 8.4 On account of non-supply of requisite oxygen, HCL raised a claim of Rs. 8.4 On account of non-supply of requisite oxygen, HCL raised a claim of Rs. 618.01 lakhs against BGL for penalty & pre- determined liquidated damages and in counter, BGL put forth claim of Rs.711.38 lakhs against the HCL under various heads, including repairing charges of air compressor, which allegedly broke down due to not allowing overhauling period by HCL within a period of two years, as agreed in the agreement; also claimed minimum off-take guarantee on liquid oxygen, power tariff rebate etc. In order to mutually settle the dispute, meetings between concerned Officials of parties, were held, and although HCL agreed to deduct an amount of Rs.83,39,000/-, which was agreed to be owed by HCL and payable to BGL and reduced its claim only for approx Rs.5.34 Crore, however, dispute could not be resolved amicably, hence the arbitration agreement, incorporated in Clause 12 of the agreement, was invoked and a Sole Arbitrator Sh. Altaf Ahmed, a Senior Advocate, was appointed by the Chairman of HCL, to adjudicate and settle such dispute of parties, through arbitration. 8.5 Thus, in such backdrop of facts, the Arbitration Tribunal of Sole Arbitrator came to be constituted under the instruction of the Chairman of HCL, to which BGL agreed upon and under such backdrop of facts, the dispute which arose between parties, came up before the Sole Arbitrator, Sh. Altaf Ahmed, a Senior Advocate. For ready reference, Clause 12 of the agreement, which deals with arbitration and arbitration agreement between parties, is being reproduced hereunder:- “12.0 Arbitration: Except where it has been provided otherwise a dispute or difference arising out of or in connection with the work or any operation covered by the contract and any dispute or difference arising out of or in connection with the agreement entered into between HCL and BGL including any dispute or difference relating to the interpretation of the agreement or any clause thereof shall be referred to sole arbitration of a person appointed by the Chairman of HCL and the provisions of the Arbitration Act 1940 and the rules thereunder and any amendment thereto from time to time shall apply. No objection shall be taken on the ground that the arbitrator so appointed is an employee of the HCL and that he has or had to deal with the matters to which the agreement or the reference related or that in the course of his duties he had dealt with or expressed views on all or any of the matters covered by the reference. The award of the arbitrator shall be final, conclusive and binding on all the parties to the contract. The arbitrator shall be competent to decide whether any matter of dispute or difference referred to him falls within the purview of arbitrations as provided for above. (Emphasis Supplied) 8.6 After constitution of the Arbitration Tribunal of Sole Arbitrator, both parties made their respective claims and counter claims against each other and submitted their pleadings. After completion of pleadings and during course of hearing, the Arbitrator summarized the respective claims of both parties separately, by showing different heads under which each party made its claims against another party. For ready reference respective claims, put forth by the parties, and as summarized by the Arbitrator, are being reproduced hereunder:- Claims of HCL: Penalty for non-supply of oxygen from 50 TPD, 120 TPD plants, floor charges etc. Rs.6,18,01,000/- Amount due to BGL Rs.83,39,000/- Net amount Rs.5,34,62,000/- With interest at 24% w.e.f. 13.08.2000 till the actual payment. [Ref: Para 16 of the Statement of Claim of HCL read with Annexure- D and Para 19 of the said Statement of Claim] In addition to above, HCL also made a prayer, by way of amendment, to raise a claim of damages to the tune of Rs.10 Crores. Such prayer of amendment to add claim of damages, was allowed by the Arbitrator, hence in the claims of HCL, claim of damages of Rs.10 Crores was also added. Claims of BGL: (a) Claim under Minimum Off-take guarantee on liquid oxygen Rs. 1,58,96,288/- (b) Claim for H.T. rebate of power tariff Rs. 24,47,968/- (c) Claim for reimbursement of repair charges of air compressor which broke down and also claim under minimum off-take guarantee for the period plant remain closed Rs. 4,97,93,077/- (d) Claim under minimum off-take guarantee for the period disconnection power supply by the Electricity Board on account of non-payment of bills of the Claimant Rs. 24,47,968/- (c) Claim for reimbursement of repair charges of air compressor which broke down and also claim under minimum off-take guarantee for the period plant remain closed Rs. 4,97,93,077/- (d) Claim under minimum off-take guarantee for the period disconnection power supply by the Electricity Board on account of non-payment of bills of the Claimant Rs. 1,91,54,278/- (e) Claim for reimbursement of Late Payment Surcharge paid to Rajasthan State Electricity Board for the delay in payment of electricity bills. (92 contract part only) Rs.64,58,318/- (f) Claim for reimbursement of deduction made for conversion factor on liquid oxygen. (92 contract part only) Rs.24,97,751/- (g) Claim for refund of penalty recovered for reported short-fall in liquid oxygen supply (92 contract) Rs.6,83,000/- Total Rs.9,69,30,680/- With interest at 18% from the date when the said amount became due. a) Interest on item (a) above Rs.69,60,213/- b) Interest on item (b) above Rs.10,27,920/- c) Interest on item (c) above Rs.54,02,207/- d) Interest on item (d) above Rs.20,78,108/- e) Interest on item (e) above Rs.32,92,865/- f) Interest on item (f) above Rs.4,34,297/- g) Interest on item (g) above Rs.1,71,207/- Total Interest Claimed Rs.1,93,66,817/- GROSS CLAIM (Principal amount and the interest as above) Rs.11,62,97,497/- 8.7 In support of respective claims of both parties, they adduced their evidences, oral as well as documentary, as also submitted written submissions before the Arbitrator. 8.8 Learned Arbitrator, firstly, considered the claims made by the BGL on merits, in his first part of judgment and allowed the claims put under heads- (a), (b), (c) and (g), whereas claims of BGL made under heads- (d), (e) and (f) were rejected (see from the tabulation of claims of BGL, referred above). The total amount of claims made under head- (a), (b), (c) and (g), comes to the tune of Rs.6,88,20,333/- which was allowed by the Arbitrator in favour of BGL along with 7% interest thereupon. The amount of interest reaches to the tune of Rs.3,91,59,711/-, hence total awarded amount of claim passed by the Arbitrator in favour of BGL is principal sum of Rs.6,88,20,333/- + interest amount of Rs.3,91,59,711/-, totalling Rs.10,79,80,044/- (in words- ten crores seventy nine lakhs eighty thousand and forty four only). In the later part of judgment, the claims made by the HCL were also considered on merits, but were disallowed by the Arbitrator and final award was passed on 09.05.2009. In the later part of judgment, the claims made by the HCL were also considered on merits, but were disallowed by the Arbitrator and final award was passed on 09.05.2009. 8.9 HCL, feeling aggrieved by the arbitral award dated 09.05.2009, filed objections thereagainst by way of filing application under Section 34 of the A&C Act before the District Judge, Jhunjhunu. 8.10 The objections, raised by HCL, were presented within prescribed timeline and required to be considered on merits, but instead of deciding the objections on merits, same were dismissed by the District Judge in a very casual and cavalier manner, vide order dated 08.01.2015, simply observing that none of the objection fall in any of the ground envisaged under Section 34 of the A&C Act. 8.11 The final order dated 08.01.2015 passed by the District Judge, Jhunjhunu, is under challenge in the present appeal. 9. This Court, while coming on merits of the order impugned, finds it desirable and necessary, to look into the nature of objections, so raised by and on behalf of HCL against the arbitral award, by way of moving application under Section 34 of the A&C Act and simultaneously, it would be convenient to consider claim- wise as to how and in what manner, such objections have been considered by the District Judge on merits, to avoid repetition of facts and to maintain brevity of judgment. 9.1 For better understanding and clarity to deal with the objections of HCL, same may be segregated in two parts; Part A and Part B. The objections, which are against disallowing claims of HCL, are being narrated herein, in nutshell, and considered under Part A and the objections of HCL, against allowing claims of BGL made under heads- (a), (b), (c) and (g), are being narrated hereunder, in brief, under Part B and would be appreciated claim-wise. Note : It is a necessary to note here, that it is an undisputed and admitted fact that BGL although submitted its reply to the objections filed by HCL, but did not submit its own objections against disallowing of its claims made under heads- (d), (e) & (f), hence that part of arbitral award, to the extent of disallowing the claims of BGL under heads- (d), (e) and (f), has attained finality. 9.2 Part A:- The objections against the arbitral award dated 09.05.2009 to the extent of disallowing claims of HCL, have been detailed out in Para Nos. 40 to 43 and Grounds XXXVII to XLV of the application under Section 34 of the A&C Act. In nutshell, HCL raised objections that it was an admitted case of BGL that “Liquid Oxygen Backup System” was not set up by BGL, which was essentially required to establish as per Clause 3 of Section I and Clauses 9.4 & 11(b) of Section II as well as according to various other clauses of the agreement. Further, it was also pointed out that apart from above, failure on the part of BGL to supply requisite quantity of liquid oxygen, occurred due to non- establishing adequate number of storage tanks, with maximum capacity of evaporation system and reserve capacity for maintaining continuous supply of liquid oxygen. Hence, there was a clear breach of agreed terms & condition of contract by BGL, yet the Arbitrator committed blunder in not allowing the legitimate claim of HCL under the head of pre-determined liquidated damages. It has, in categorical and specific terms, been objected by HCL in the application (Para No.43), that disallowing its claim for sum of Rs.534.62 lakhs alongwith interest under the predetermined penalty amount and damages, suffered by HCL, due to non-supply of liquid oxygen by BGL as also denying to award consequential damages to the tune of Rs.10 Crores, is basically because of biased approach of the Arbitrator; Unfair & unjust consideration of the claim of HCL by the Arbitrator; And arbitral award to such extent, stands against the public policy as also suffers from non-consideration of material evidence and non- appreciation of the explicit breach of the terms & conditions of the agreement by the BGL. Conclusion of this Court:- In the opinion of this Court, having looked upon the nature of objections of Part A, so raised by HCL in relation to disallowing its claim by the Arbitrator, same at least deserve to be considered on merits within scope of Section 34 of the A&C Act. The objections were made within limitation and touch the grounds enumerated in Section 34 of the A&C Act, they could not have been thrown out or rejected, at threshold, merely by saying that same do not attract any of the grounds prescribed under Section 34 of the A&C Act. The objections were made within limitation and touch the grounds enumerated in Section 34 of the A&C Act, they could not have been thrown out or rejected, at threshold, merely by saying that same do not attract any of the grounds prescribed under Section 34 of the A&C Act. This Court is of the considered view that the District Judge, Jhunjhunu, committed manifest illegality in rejecting such objections of HCL without adjudicating its objections on merits and in a cursory as well as slipshod manner, recording its observation in a cavalier manner that the objections do not attract any of the grounds incorporated under Section 34 of the A&C Act. Hence, rejection of objections of HCL of Part A i.e. against disallowing its claim by the Arbitrator, is ex facie bad in law and is virtually non-exercise of jurisdiction by the District Judge, which cannot be appreciated nor can be countenanced. 9.3 Part B:- Before summarizing the nature of objections raised by HCL against allowing claims of BGL made under heads- (a), (b), (c) and (g), referred in tabulation, indicated hereinabove, it would be apropos to observe here first that the District Judge, Jhunjhunu, while deciding the objections of HCL, has focused only on the statutory grounds, which are incorporated under Section 34 of the A&C Act, and has not dealt with the objections on merits, rather simply observed that none of the objections attract any of the grounds incorporated under Section 34 of the A&C Act. Further, it appears on the face value of the order impugned that the District Judge, arbitrarily and beyond its jurisdiction, applied its mind in interpreting Clause 2.4 of the agreement and took a new view of its own. For ready reference, Clause 2.4, as mentioned in Section II of the agreement, reads as under: “2.4 Once in two years, for major shut-down overhaul of Smelter Plant, there may be a stoppage for about 55 days at a stretch during which period no oxygen will be consumed by the HCL for process operation. Prior intimation will be issued by HCL. BGL will not charge anything for this period. Prior intimation will be issued by HCL. BGL will not charge anything for this period. BGL will also plan the maintenance/overhaul of their plant during the same period to avoid penalty for non-supply of gas in case they take maintenance of their plant in a situation when Smelter Plant is ready to take the gas.” 9.4 While giving a new view on interpretation of Clause 2.4 of the agreement, it has been opined by the District Judge that because HCL did not opt to avail overhauling period of 55 days within two years, by keeping its smelter plant shut down, which was mandatorily required, same resulted in break down of machinery of the BGL’s Oxygen Gas Producing Plant, and therefore, the Arbitrator is justified in allowing the claim of BGL and the arbitral award does not suffer from any kind of infirmity, which entails quashing/ setting aside the award, within scope of Section 34 of the A&C Act. 9.5 Now in order to ascertain as to whether the objections of Part B i.e. which were raised by HCL against allowing claims of BGL, fall or not within the scope of Section 34 of the A&C Act? And whether such objections require consideration on merits?, this Court feels it just & necessary, to refer the precise nature of such objections and simultaneously, the claim-wise conclusion of this Court thereupon, is being recorded hereunder:- (I). First Claim of BGL under the head of “Minimum Off-take Guarantee on Liquid Oxygen”, mentioned in Clause (a) of the tabulation, is in relation to non-lifting minimum 60% of contractual quantity of liquid oxygen by HCL and on that count, BGL claimed amount of shortfall of liquid oxygen, for the period 1996 to 2000. (i) Learned Arbitrator arrived at a conclusion that on construction of the terms of contract, as a whole, intention of parties was that the minimum off-take guarantee would be available to BGL, to the extent of 60% of demand by HCL, comprising 2700 Nm 3 /hr of gaseous oxygen and 900 Nm 3 /hr of liquid oxygen and accordingly, the claim of BGL for Rs. 1,58,96,288/- as detailed out in Annexure P-9 & P6, attached with the counter claim of BGL, was allowed by the Arbitrator in favour of BGL and against HCL. (ii) Against allowing such claim in favour of BGL, HCL raised objections narrated in Para Nos. 1,58,96,288/- as detailed out in Annexure P-9 & P6, attached with the counter claim of BGL, was allowed by the Arbitrator in favour of BGL and against HCL. (ii) Against allowing such claim in favour of BGL, HCL raised objections narrated in Para Nos. 22 & 23 so also in Grounds I to XVI, of the application under Section 34 of the A&C Act. (iii) Gist of such objections is to the effect that the debit notes submitted by BGL to HCL from year 1996 to 2000 for alleged failure of HCL to lift/ off-take 60% production of oxygen, could not be put together and could not have been considered as a composite claim, rather the claims should have been segregated year-wise and claim of each year should have been considered separately, taking into consideration the Law of Limitation on claim of each year. The objection is apparently clear and explicit that the Arbitrator has considered such claim, belonging to year 1996 to 2000, as a composite claim and has not adhered to the Law of Limitation. If the Law of Limitation would have been applied, the claim of such period goes beyond the period of 3 years and can be termed as stale claim, which is irrecoverable, due to being barred by time-limit. (iv) Another objection of HCL was in respect of drawing a wrong inference of Clause 2.1 of Section I of the agreement by the Arbitrator. The precise and specific objection of HCL is that the Clause 2.1 does not create an obligation of compulsive nature and secondly, the contract nowhere puts a compulsive nature of obligation upon HCL, to lift minimum 60% of oxygen, separately, gaseous oxygen (GOX) as well as liquid oxygen (LOX) both. (v) Under Grounds VI, VIII, XI, XIII and XV, stated in application under Section 34 of the A&C Act, specific objections taking resort to Section 73 of the CONTRACT ACT read with its explanation, stating inter alia that awarding such claim in favour BGL against HCL is highly illegal, against the public policy of India and being patently illegal, were taken. (vi) In the first blush, objections of HCL against allowing claim of BGL under head of “Minimum Off-take Guarantee of Liquid Oxygen”, seem to be within scope of Section 34 of the A&C Act, but having looked upon the findings of the Arbitrator, it may not be held that the Arbitrator allowed such claim of BGL in ignorance of Law of Limitation and the relevant provisions of CONTRACT ACT . The plea taken by the HCL to repudiate BGL’s claim was considered by the Arbitrator on merits and conclusion was drawn that minimum off-take guarantee would be available to BGL to the extent of 60% of the demand of HCL, comprising GOX and LOX and consequently, BGL’s claim under this head was allowed. If, in the light of objections raised by the HCL under Section 34 , the arbitral award to the extent of allowing BGL’s claim under the present head is set-aside, same would mean exercising of appellate jurisdiction, which is not permissible within scope of Section 34 of the A&C Act. Conclusion of this Court on Claim (a) of BGL:- (vii) Although this Court finds it difficult to affirm the approach of District Judge, Jhunjhunu to summarily dismiss the objections of HCL, yet taking into consideration the reasonings assigned by the Arbitrator in the arbitral award to allow BGL’s claim of Rs.1,58,96,288/- under head “Minimum Off-take Guarantee on Liquid Oxygen”, the award cannot be held to be suffering from unpardonable perversity, hence is not liable to be set aside. II. Second Claim of BGL, indicated in Clause (b) of tabulation, pertains to claim for High Tension Rebate of Power Tariff. Such claim was allowed by the Arbitrator, placing reliance on Clause 5.7 of Section II of the agreement, which provides “any rebate/ exemptions/ subsidy etc. given by the State/ Central Government or any other Government Bodies will not be passed on to HCL”. (i) The objection raised by HCL against allowing of such claim, was fundamentally based on word “not” used in Clause 5.7 (referred hereinabove) stating inter alia that this word has not been juxtaposed in Clause 5.7. Thus, indirectly, HCL put to challenge the correctness of Clause 5.7 itself in its true form and sought to delete word “not” from this Clause, in order to give its real meaning. Thus, indirectly, HCL put to challenge the correctness of Clause 5.7 itself in its true form and sought to delete word “not” from this Clause, in order to give its real meaning. (ii) This Court also prima facie finds that apparently, such objection certainly does not fall within any of the grounds, incorporated in Section 34 of the A&C Act. Learned Arbitrator, before allowing such claim, has addressed all corners of facts & law, including the plea of limitation, plea of waiver of the right by BGL to claim rebate in tariff, and after having considered the legitimate right of BGL to get such rebate of High Tension Power Tariff, allowed such claim. The objections, so raised by HCL against allowing such claim, virtually tantamounts to assailing such claim on merits, which is not permissible within scope of Section 34 of the A&C Act. It is trite law that jurisdiction under Section 34 of the A&C Act is not akin to appellate jurisdiction. Conclusion of this Court on Claim (b) of BGL:- (iii) Hence, this Court reaches to an unequivocal conclusion that the District Judge, Jhunjhunu, has not committed any illegality or jurisdictional error in not interfering with the arbitration award, to the extent of allowing such claim of granting rebate in H.T. tariff in favour of BGL, while exercising its jurisdiction under Section 34 of the A&C Act. Thus, in respect of such claim, arbitration award has rightly been affirmed as valid by the District Judge, Jhunjhunu. III. Third Claim of BGL, indicated in Clause (c) of tabulation referred hereinabove, pertains to “Claim for reimbursement of repair charges of Air Compressor, which broke down and also claim under Minimum Off-take Guarantee for the period, plant remained closed.” (i) At the outset, claim under this clause can be segregated in two parts: (a) reimbursement of expenses incurred by BGL for repairing of its air compressor; and (b) claim of damage suffered by BGL under Minimum Off-take Guarantee for the period, during which its own oxygen plant remained closed. (ii) Here it would be apropos to take note of the undisputed fact that oxygen plant of BGL remained closed from 17.11.1999 to 01.02.2000 and again from 12.02.2000 to 25.02.2000. (ii) Here it would be apropos to take note of the undisputed fact that oxygen plant of BGL remained closed from 17.11.1999 to 01.02.2000 and again from 12.02.2000 to 25.02.2000. (iii) It is further noteworthy that for the same period, indicated in above Clause (i)(b), where BGL is claiming damages under Minimum Off-take Guarantee qua HCL, HCL also claimed penalty against BGL for closure of oxygen plant. Thus, on this count, claim of BGL and claim of HCL, are rival claims to each other in respect of the similar period i.e. 17.11.1999 to 01.02.2000 and 12.02.2000 to 25.02.2000, during which the oxygen plant of BGL remained closed and non-operative, due to breakdown of its Air Compressor. Hence, both rival claims i.e. BGL’s claim under Sub-Clause (i)(b) under Minimum Off-take Guarantee and HCL’s claim of penalty, due to non supply of oxygen by BGL, which indeed has been discussed in this judgment under Part-A, in preceding Para No.9.2, can be considered and decided simultaneously, as same would not only be convenient to understand, but also would be helpful to maintain brevity of the judgment and avoid repetition of facts in respect of rival claims of both parties. (iv) BGL’s claim under head- (c) of the tabulation, which has been segregated in two parts, indicated in Clause (i) and HCL’s claim (referred in Part-A), are fundamentally based on alleged breach of Clause 2.4 of the Agreement. For ready reference Clause 2.4 reads is under:- “2.4 Once in two years, for major shut-down overhaul of Smelter Plant, there may be a stoppage for about 55 days at a stretch during which period no oxygen will be consumed by the HCL for process operation. Prior intimation will be issued by HCL. BGL will not charge anything for this period. Prior intimation will be issued by HCL. BGL will not charge anything for this period. BGL will also plan the maintenance/overhaul of their plant during the same period to avoid penalty for non-supply of gas in case they take maintenance of their plant in a situation when Smelter Plant is ready to take the gas.” (v) Arbitration Tribunal, while giving interpretation to above Clause 2.4, in the light of pleadings of parties and case law referred by respective parties, finally reaches to the conclusion that the HCL is liable for breakdown of Air Compressor of the oxygen plant of BGL, due to not availing the period for maintenance/ overhaul to its smelter within two years and abruptly allowed the claim of BGL for reimbursement of repairing charges of its Air Compressor and Off-take Minimum Guarantee of oxygen. (vi) Thereagainst, HCL raised objections in Para Nos. 27 to 30 (A-K) & 31 and in Grounds XXVI to XL. (vii) A bare perusal of these objections reveal that same have been raised within parameters of the ground (ii), (iv) of Clause (a) and (i) & (ii) of Clause (b) of Section 34 of the A&C Act. (viii) Thus, it is, prima facie, wrong on the part of District Judge, Jhunjhunu to reject such objections in a cursory manner just by observing that none of objections attract any of the ground enumerated under Section 34 of the A&C Act. (ix) The District Judge, before passing order impugned, has not considered even the precise nature of objections, put forth by HCL in its application under Section 34 , whereas the objections, in explicit terms and words, state that the claim of BGL in respect of reimbursement of repair charges of its Air Compressor, is beyond the scope of Agreement, so also cannot be the subject matter of dispute in the arbitration proceedings. The objection further states that the arbitral award, allowing the BGL’s claim under Minimum Off-take Guarantee and disallowing HCL’s claim for penalty, is in conflict with the Public Policy of India. (x) In this way, apparently, the order impugned suffers from grave jurisdictional error and manifest illegality as far as dismissing the objections of HCL against allowing the claim of BGL under Clause (c) of the tabulation, referred hereinabove. (x) In this way, apparently, the order impugned suffers from grave jurisdictional error and manifest illegality as far as dismissing the objections of HCL against allowing the claim of BGL under Clause (c) of the tabulation, referred hereinabove. (xi) Taking note of the interpretation of Clause 2.4, extended by the sole Arbitrator and the objections filed thereagainst by HCL as well as the manner in which the claim of BGL under Clause (c) of tabulation has been allowed and the claim of HCL under Part-A, has been disallowed by the Arbitrator, and the manner in which the objections filed by the HCL thereagainst, have been dismissed by the District Judge, Jhunjhunu, this Court deems it just and proper, in the interest of justice, to consider the objections of HCL on merits, instead of remanding the matter to District Judge to consider the objections afresh. For the sake of convenience, the objections have been divided in two parts as under:- (a) The objection against allowing BGL’s claim for the reimbursement of the repairing charges of its Air Compressor of the oxygen plant, which has been indicated in Sub-clause (i)(a) hereinabove. (i) Under the head of reimbursement of expenses, incurred by BGL for repairing of its Air Compressor, which allegedly broke down as a result of breach of Clause 2.4 of the Contract by HCL, a total amount of Rs. 1,84,22,260/- has been awarded by the Arbitrator in favour of BGL, against HCL. Allowing such claim of BGL by Arbitrator is just an outcome of the interpretation of Clause 2.4 drawn by Arbitrator, holding that Air Compressor of Oxygen plant broke down due to not availing the maintenance/ overhaul period by HCL, once in two years and thereby HCL breached Clause 2.4. (ii) The issue before the District Judge was that even if the interpretation to Clause 2.4 as made by Arbitrator, is accepted as it is, then also a question arises as to whether non-adherence to Clause 2.4 of agreement by HCL, entails him liable for reimbursement of the expenses, incurred by BGL for repairing of Air Compressor of its oxygen plant or not? (iii) It is noteworthy that there is no penal Clause stipulated in the agreement, for breach of Clause 2.4 of the Agreement. (iv) In the objections under Section 34 , in Para Nos. (iii) It is noteworthy that there is no penal Clause stipulated in the agreement, for breach of Clause 2.4 of the Agreement. (iv) In the objections under Section 34 , in Para Nos. 30(g), (k) & 31 and under Grounds XXVII and XXVIII, it has specifically been averred by the HCL that such claim of BGL is out of contract and Arbitrator could not have entertained such claim in the Arbitration proceedings. The Arbitrator had erroneously entered into a “non issue” as “an issue” and travelled beyond its jurisdiction, while allowing such claim for reimbursement of repairing charges in favour of BGL. (v) In the opinion of this Court, such objections, apparently fall within grounds enumerated under Section 34 (2)(a)(ii)(iv) and Section 34 (2)(b)(i)(ii) of the A&C Act, because in the agreement, admittedly there is no Clause for reimbursement of repairing charges incurred by one party to get machinery of its plant repaired from other party, even in case of breach of any of the condition including condition No. 2.4 of the agreement. (vi) Hence, it can be held that the District Judge, miserably failed to ponder over its attention to such an aspect that the objections of HCL against allowing the BGL’s claim for reimbursement of repairing charges of Air Compressor of its oxygen plant, fall within the scope of Section 34 . Since the objections are available on record, which obviously fall within the ambit and scope of Section 34 and the reasoning, assigned by the District Judge to dismiss such objections, is not liable to be countenanced and this Court has concurrent jurisdiction to entertain and decide the objections under Section 34 on merits, while exercising its appellate jurisdiction under Section 37 of the A&C Act. For such reasons, the objections against allowing BGL’s claim of reimbursement of repairing charges of its Air Compressor of oxygen plant are being considered and decided on merits by this Court, instead of remanding such objections to the District Judge, Jhunjhunu, for deciding afresh. Conclusion of this Court on such objections in respect of part of Claim (c) of BGL : (vii) Indisputably, as per terms and conditions of the agreement, HCL is under obligation to maintain, repair the machinery of its Smelter plant by incurring its own expenses and simultaneously, BGL is also under exclusive responsibility to maintain and get repairing of its plant and machinery of oxygen plant. (viii) Indisputably, there is no contract or understanding between the parties to claim reimbursement of maintenance/ repairing charges of its plant against other party and agreement is silent on that point. (ix) It is well established that the points, which are not included in the subject matter of the Agreement, cannot be treated to be subject matter of Arbitration and the Arbitration proceedings should be confined to the terms and conditions of the Agreement. (x) Thus, even if, prima facie, the interpretation to Clause 2.4 as made and observed by the Arbitrator is accepted as it is and HCL is held to be liable for guilt of non-observance of the condition of Clause 2.4 or liable for breach of Clause 2.4, then also by no stretch of imagination, the BGL’s claim for reimbursement of repairing charges of its Air Compressor of oxygen plant, cannot be treated to be part & parcel of the Agreement and also cannot be the subject matter of Arbitration proceedings. (xi) In such view of the matter, the BGL’s claim for reimbursement, certainly is out of contract and beyond the scope of Arbitration, hence, the arbitral award to the extent of allowing BGL’s claim of reimbursement to the tune of Rs. 1,84,22,260/- is liable to be set aside, being beyond the scope of Arbitration. (xii) The objection of HCL u/s. 34 of the A&C Act, against allowing such claim of BGL by the Arbitrator is liable to succeed and in exercising of jurisdiction under Section 34 /37 of A&C Act, the arbitral award, to this extent, is liable to be set aside. (xiii) The District Judge, committed manifest illegality, perversity and jurisdictional error in not allowing such objections of HCL and affirming the award, allowing BGL’s claim of reimbursement. (xiv) This Court reaches to a firm conclusion that BGL’s claim for reimbursement of repairing charges of Air Compressor of its oxygen plant, is independent & separable claim from other claims of BGL, and has arbitrarily been allowed by the Arbitrator. Neither any substantive evidence to support such claim was discussed nor any substantive reasoning was assigned by the Arbitrator to entertain and allow such claim of BGL, hence, it is hereby held that BGL’s claim of Rs. Neither any substantive evidence to support such claim was discussed nor any substantive reasoning was assigned by the Arbitrator to entertain and allow such claim of BGL, hence, it is hereby held that BGL’s claim of Rs. 1,84,22,260/- under the head of reimbursement of repairing charges of its Air Compressor, is beyond the scope of agreement and arbitration, consequently, the arbitral award to the extent of allowing such claim of BGL is against Public Policy of India, hence is hereby liable to be quashed and set aside. (b) The objection against allowing BGL’s claim under Off-take Minimum Guarantee of Liquid Oxygen indicated in Clause (i)(b) and against disallowing the HCL’s claim for penalty qua BGL. (i) Admittedly, oxygen plant of BGL remained closed and non-operative during period from 17.11.1999 to 01.02.2000 and again from 12.02.2000 to 25.02.2000. Due to closure of oxygen plant, BGL miserably failed to supply gaseous as well as liquid oxygen in adequate and required quantity to HCL, hence, the Smelter plant of HCL also could not function accordingly and HCL also suffered pecuniary losses. (ii) The HCL put forth its claim to the tune of Rs.534.62 lakhs along with interest and unliquidated damages to the tune of Rs.10 crores against BGL, on account of closure of oxygen plant of BGL during above period. Per contra, BGL, for the similar period, claimed the cost of GOX and LOX, which could not be sold by BGL to HCL under the head of Minimum Off-take Guarantee to the tune of Rs. 3,13,70,817/-. The BGL clubbed this claim with its claim of reimbursement of Air Compressor charges under Clause (c) of the tabulation, but same is separate claim and severable part of claim of BGL. (iii) Arbitrator has allowed the BGL’s claim but has disallowed the HCL’s claim under its award dated 09.05.2009, whereagainst the HCL submitted objections under Section 34 of A&C Act. (iv) The nature of objections of HCL against disallowing its claim, has already been discussed under Part-A in Para No. 9.2 of the present judgment and this Court has reached to the conclusion that the dismissal of objections of HCL by the District Judge, is ex facie bad in law and cannot be countenanced. (iv) The nature of objections of HCL against disallowing its claim, has already been discussed under Part-A in Para No. 9.2 of the present judgment and this Court has reached to the conclusion that the dismissal of objections of HCL by the District Judge, is ex facie bad in law and cannot be countenanced. (v) As far as the nature of objections of HCL, against allowing the BGL’s claim of Minimum Off-take Guarantee of Liquid Oxygen is concerned, objection in Ground XXIX of the application under Section 34 , is very specific. The gist of objection is that Arbitrator adopted biased approach and followed an imaginary claim and impractical calculation, without any supportive evidence of BGL. (vi) In the opinion of this Court, considering the nature of objection, same obviously fall within the scope of Section 34 of the A&C Act and is liable to be considered on merits. (vii) The District Judge committed serious error in not adverting to the true nature of objection of HCL against allowing BGL’s claim of Minimum Off-take Guarantee and dismissing such objections in a slipshod manner. This Court does not approve and affirm the order of District Judge, Jhunjhunu to the extent of dismissing HCL’s objection against allowing such claim of BGL. Conclusion of this Court on BGL’s partial Claim under Clause (c) and HCL’s Claim:- (viii) Admittedly, BGL’s claim of not lifting minimum guaranteed 60% of oxygen by the HCL, is on account of breach of Clause 2.4 by the HCL. (ix) It is admitted case of BGL on record that BGL could not supply LOX from its 120 TPD oxygen plant to HCL on certain occasions, due to non-running of its 120 TPD oxygen plant (reference of minutes dated 26.11.1999, signed by both the parties, which finds place at internal page No.124 of arbitral award, would be suffice). (x) Thus, it is apparent that it is a case of closure/non- operation of BGL’s 120 TPD oxygen plant, due to which, the minimum guaranteed 60% of oxygen could not be supplied by BGL to HCL. (xi) Indisputably, oxygen plant of BGL remained closed/non-operative from 17.11.1999 to 01.02.2000 and again from 12.02.2000 to 25.02.2000. (xii) During such period, smelter plant of HCL was in operation. (xi) Indisputably, oxygen plant of BGL remained closed/non-operative from 17.11.1999 to 01.02.2000 and again from 12.02.2000 to 25.02.2000. (xii) During such period, smelter plant of HCL was in operation. (xiii) Indisputably, it is not a case of BGL that HCL refused to lift/consume the minimum guaranteed 60% of oxygen or the smelter plant of HCL was non-operative or closed during above period. (xiv) Hence, apparently, BGL’s claim of minimum off-take guarantee qua HCL is on account of closure of its own 120 TPD oxygen plant. (xv) It is a further admitted case of BGL that period of two years, stipulated in Clause 2.4, was not sacrosanct between parties. (xvi) As per record, HCL chose overhauling of its smelter plant, in terms of Clause 2.4 in the month of June-July of 1996 and next maintenance within period of two years therefrom, becomes due in month of June-July of 1998. (xvii) During this period of two years, BGL never made any request to HCL for overhauling/ maintenance need of its oxygen plant. The first letter of BGL is of dated 22.02.1999 i.e. after a period of about expiry of eight months from June-July 1998. (xviii) Such admission by counsel for BGL and reference of letter of BGL dated 22.02.1999, find place at internal Page No. 148 of the Arbitral Award. (xix) It is further undisputed that in past as well, the shut- down of both plants was not taken strictly within a period of two years, although both parties acted in tandem, to avail the period of overhauling of their respective plants. (xx) The Arbitrator, in clear breach to the admitted case of BGL and contrary to its own view of interpretation of Clause 2.4, which finds place at internal Page Nos.78-79 of the Arbitral Award, assumed by its own that BGL suffered disadvantageous position and prejudiced, due to not availing the period of maintenance by HCL for overhauling of its smelter plant, once in a two year w.e.f. June- July 1996. (xxi) Such inference drawn by the Arbitrator, noted in bottom of Page No.78 and in beginning of Page No.79 of the arbitral award, is not only self contradictory to the view of Arbitrator, but also suffers from grave perversity and patent illegality. (xxi) Such inference drawn by the Arbitrator, noted in bottom of Page No.78 and in beginning of Page No.79 of the arbitral award, is not only self contradictory to the view of Arbitrator, but also suffers from grave perversity and patent illegality. (xxii) At one hand, the Arbitrator opined that period of two years as stipulated in Clause 2.4, is not sacrosanct and on the other hand, treated such period as mandatory for HCL, while holding the HCL guilty for breach of Clause 2.4. (xxiii) This Court finds that learned Arbitrator adopted double standard as while allowing BGL’s claim against minimum off-take guarantee, treated the period of two years, stipulated in Clause 2.4, as mandatory and sacrosanct for HCL, whereas while disallowing HCL’s claim of penalty, followed the admission of counsel for BGL that period of two years stipulated in Clause 2.4, is not sacrosanct and was strictly not followed in past as well, as much as BGL itself did not make any request to follow the period of maintenance for its oxygen plant, within period of two years w.e.f. June-July 1996. (xxiv) Against such self contradictory and double standard approach of the Arbitrator, HCL submitted objections u/s. 34 of the A&C Act before the District Judge, Jhunjhunu that the Arbitrator adopted biased approach in allowing BGL’s claim of minimum off- take guarantee and disallowing HCL claim of penalty, based on breach of Clause 2.4. (xxv) Such objection, in the opinion of this Court, falls within scope of Section 34 of the A&C Act, to declare the arbitral award to the extent of allowing BGL’s claim, as against the Public Policy of India as much as suffering from grave arbitrariness, manifest perversity and patent illegality. (xxvi) Reasonings, followed by the Arbitrator, while disallowing HCL’s claim, also apply to the BGL’s claim of minimum off-take guarantee since respective claims by both the parties against each other, are based on the ground of breach of Clause 2.4, hence, it is arbitrariness on the part of Arbitrator in allowing BGL’s claim of minimum off-take guarantee and disallowing HCL’s claim for penalty. (xxvii) At the most, it can be observed that it was an unfortunate event that due to breaking down of air compressor, the oxygen plant of BGL remained closed and non-operative for the period from 17.11.1999 to 01.02.2000 and again from 12.02.2000 to 25.02.2000, but HCL cannot be held solely liable for such break down, hence accepting interpretation of Clause 2.4 as reciprocal promises by both the parties to undertake period of overhauling in tandem, HCL may not be saddled with the guilt of committing breach of Clause 2.4 and where the HCL’s claim of penalty in terms of Clause 9.1 of the agreement has been disallowed qua BGL, BGL’s claim of minimum off-take guarantee qua HCL also could not have been allowed by the Arbitrator. In this way, arbitral award is against the Public Policy of India. (xxviii) The District Judge has not upset the viewed interpretation of Clause 2.4 by the Arbitrator, but could not appreciate the true nature of objections of HCL, which in the opinion of this Court, fall within scope and ambit of Section 34 of the A&C Act, hence dismissing HCL’s objections against allowing BGL’s claim of minimum off-take guarantee, is not sustainable and this Court in exercise of its appellate jurisdiction with the aid of Section 34 , hereby allows such objections of HCL. (xxix) It is noteworthy that BGL’s claim of minimum off-take guarantee, falling in Part (i)(b) of this Clause, is severable from other claims of BGL and same is liable to be set aside separately. The arbitral award, in respect of disallowing HCL’s claim, is liable to be affirmed. IV. Fourth Claim of BGL indicated in Clause (g) of tabulation, referred hereinabove, pertains to “refund of penalty recovered by HCL from the payment of BGL, on account of short-fall of liquid oxygen.” (i) Under this clause, claim of BGL for Rs. 6,83,000/- has been allowed by the Arbitrator, assigning reasoning that Clauses 9.1(a) and 1.1(d) of the agreement, do not apply, however, HCL imposed penalty upon BGL for short-fall of liquid oxygen from 10.09.1999 to 16.10.1999. Allowing such claim is based on a letter of HCL, which is an admitted document. (ii) The objections filed by HCL against allowing such claim of BGL, are indicated in Para Nos. 33 to 39 and in Grounds XXVI & XXVII of application u/s. 34 of the A&C Act. Allowing such claim is based on a letter of HCL, which is an admitted document. (ii) The objections filed by HCL against allowing such claim of BGL, are indicated in Para Nos. 33 to 39 and in Grounds XXVI & XXVII of application u/s. 34 of the A&C Act. The gist of objection is that the Arbitrator allowed the claim, abruptly without appreciating the evidence on record. Conclusion of this Court in respect of Claim (g) of BGL:- (iii) This Court finds that the objections of HCL against the claim under Clause (g) of BGL, have rightly been observed to be beyond the scope & ambit of Section 34 of the A&C Act, hence, the District Judge has not committed any manifest illegality and jurisdictional error, in dismissing objections of HCL against allowing such claim in favor of BGL by the Arbitrator. Hence, impugned order to this extent does not call for any interference by this Court. 10. At the cost of repetition, it is hereby made clear that BGL’s claims under heads- (a), (b), (c) & (g), detailed out in tabulation referred hereinabove in Para No.8.6, are independent and separable claims from each other, hence this Court has considered each claim independently and separately. As far as HCL’s claim is concerned, same is just a rival claim to the partial claim of BGL under head- (c) regarding “Minimum Off-take Guarantee for Liquid Oxygen”, hence same has been discussed by this Court simultaneously. 11. For the discussions & enunciations, made hereinabove, final conclusion of this Court is as under:- I. Arbitral Award in respect of allowing BGL’s claim stipulated in Clause (a) of the tabulation under head “Minimum Off-take Guarantee on Liquid Oxygen” to the tune of Rs.1,58,96,288/- is hereby sustained. II. Arbitral Award in respect of allowing BGL’s claim stipulated in Clause (b) of the tabulation under head “H.T. Rebate of Power Tariff” to the tune of Rs.24,47,968/- is hereby sustained. III. Arbitral Award in respect of allowing BGL’s claim stipulated in Clause (c) of the tabulation under head “Reimbursement of repair charges of air compressor, which broke down and also claim under minimum Off-take guarantee for the period plant remain closed” to the tune of Rs.4,97,93,077/-, is hereby set-aside. IV. III. Arbitral Award in respect of allowing BGL’s claim stipulated in Clause (c) of the tabulation under head “Reimbursement of repair charges of air compressor, which broke down and also claim under minimum Off-take guarantee for the period plant remain closed” to the tune of Rs.4,97,93,077/-, is hereby set-aside. IV. Arbitral Award in respect of allowing BGL’s claim stipulated in Clause (g) of the tabulation under head “Refund of Penalty recovered for reported short-fall in Liquid Oxygen” to the tune of Rs.6,83,000/-, is hereby sustained. V. Arbitral Award in respect of disallowing HCL’s claim, is hereby sustained. 12. As far as awarding interest @ 7% per annum by the Arbitrator from 23 rd March 2001 till the date of passing of the Arbitral award i.e. 9 th May 2009 is concerned, this Court finds that in the agreement between parties, there is no stipulation for awarding interest. The Arbitrator has not assigned a single reason even for the namesake, to award interest on the claims allowed in favour of BGL. However, since HCL has not filed any objection independently against awarding interest, hence, arbitral award in respect of awarding interest @ 7% per annum on the BGL’s claims under Clauses (a), (b) and (g), is hereby sustained. 13. Before parting with, it is hereby noted that from record it appears that the appellant- HCL deposited amount of Rs.17,33,50,181/- (full decreetal amount with interest as per arbitral award) before the High Court, which has been disbursed to respondent- BGL on furnishing a bank guarantee of 50% of the deposited amount. If the bank guarantee so furnished by respondent has been renewed, appellant- HCL is at liberty to recover amount of Rs.4,97,93,077/- along with interest, which was calculated thereupon by HCL, while depositing such amount before the High Court. AND if, such amount is not possible to be recovered from the renewed bank guarantee of respondent, respondent shall pay such amount to the appellant within a period of sixty days from today, failing which same shall carry interest @ 2% higher than the current rate of interest, prevailing on the date of passing of this judgment w.e.f. 03.07.2025, in the light of Section 31(7)(b) of the A&C Act. 14. With the aforesaid, the present miscellaneous appeal stands party allowed. 15. Misc. application(s), if any pending, also stand(s) disposed of. 16. Record be sent back to the Court of District Judge, Jhunjhunu.