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6. Notwithstanding the above, for the sake of completeness, I have heard Mr Balbir Singh, the learned senior counsel appearing for the petitioners on merits as well.

7. The impugned award was made in the context of the disputes between the petitioners and Jindal Steel and Power Limited, the respondent, (hereafter 'JSPL'). The sole arbitrator was appointed by an order dated 08.01.2016 passed by the Supreme Court in Special Leave to Appeal (C) No. 30818/2015. The subject disputes referred to the sole arbitrator arose between the parties in connection with the Coal Purchase Agreement dated 27.08.2013 (hereafter 'CPA') and the Amended Coal Purchase Agreement dated 12.09.2013 (hereafter 'amended CPA') entered into between JSPL and the petitioners. In terms of the CPA, petitioner no. 1 (hereafter 'GNCL') undertook to supply 50,000 MT of NRE Australian Hard Coking Coal of the agreed specifications from mines at Australia (hereafter referred to as 'the product') between the period 01.09.2013 to 31.03.2014. JSPL claimed that it had made an advance payment of `24.75 crores in terms of the CPA, which was also secured by pledge of certain shares held by the petitioners in Bharat NRE Coke Limited. JSPL claimed that thereafter the petitioners demanded additional advance which was agreed to and on 12.09.2013, the amended CPA was executed. In terms of the said amended CPA, GNCL undertook to supply 65,000 MT of the product instead of 50,000 MT as agreed under the earlier CPA. JSPL also agreed to enhance the advance from `24.75 crores to `39 crores.

8. It is JSPL's case that GNCL failed to adhere to its obligation under the CPA and/or the amended CPA and supplied only one rake of 3514.080 MT of the product. JSPL alleged that it sent several communications to GNCL, however, despite persistent requests and reminders, GNCL failed to perform its contractual obligations. JSPL's principal claim before the arbitrator was thus essentially for refund of the balance amount of advance paid, which was computed at `36,89,15,520/- after adjustment on account of the value of the product received. JSPL further claimed interest at the rate of 30% per annum compounded monthly on the balance advanced in terms of the amended CPA, which was computed at `35,95,41,460/-. In addition, JSPL also claimed liquidated damages in terms of the amended CPA being the difference in the base price of the product as per the amended CPA and the price at which JSPL had procured the remaining quantity from the market. The base price under the amended CPA was `8000 per MT and JSPL claimed that the price for coal procured from the market was `10,897.80 per MT. Accordingly, JSPL claimed the liquidated damages of `17,81,73,898.976/- being the difference in the base price and market price (`2897.80 per MT being the difference between `8,000 and `10,897.80) for 61485.920 MT of the product, which GNCL had failed to supply. JSPL also claimed costs and pendente lite interest.

14. Mr Balbir Singh contended that the impugned award is perverse and is liable to be set aside. He submitted that merely because GNCL had not participated in the arbitral proceedings would not render the award immune from challenge under Section 34 of the Act. He earnestly contended that the arbitrator had failed to consider the averments made by the petitioners in the suit filed before the Calcutta High Court being CS (OS) 227/2014. He submitted that it was the petitioners' case that the performance of the amended CPA was frustrated by hindrances caused by JSPL. He submitted that GNCL had entered into agreements (dated 11.05.2007 and 04.11.2007) with two Australian Companies - Wollongong Coal Limited (formerly known as Gujarat NRE Coking Coal Limited) and Wongawilli Coal Pty Ltd. (formerly known as Gujarat NRE Wonga Pty Ltd.) - for purchase of the product. He submitted that JSPL was always aware that GNCL was to source the product from the said Australian Companies. He stated that JSPL had acquired control over the Australian Companies and had prevented the supply of the product to GNCL and thus, disabled GNCL from performing the amended CPA. He submitted that the arbitrator had grossly erred in ignoring the aforesaid allegations/averments.

16. In my view, the contentions advanced by Mr Singh are inconsiderable and without merit. There is no dispute that GNCL had accepted the advances as claimed by JSPL. It is also not disputed that GNCL had failed to supply the product as contracted. On these admitted facts alone, JSPL would be entitled to refund of the advances made. It is also not disputed that the arbitrator has the discretion to award interest and thus the interest awarded, cannot be questioned in these proceedings.

17. The damages awarded by the arbitrator are also as contemplated under the CPA/amended CPA. JSPL had led evidence to prove that it had purchased the undelivered quantity of product from the market at a higher price. It had led evidence to indicate that JSPL had received quotation from various parties to procure the short supplied coal; the price quotation received from BHP Billiton was selected and in order to minimise the losses, JSPL had procured the coal from BHP Billiton.