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24. In the facts of present case, the claim made is undisputedly to be liquidated damages. The parties have agreed for a specific rate to assess the damages. However, before embarking on the amount of damages, the liability per se has to be determined. The said exercise of determining liability is now seized up before the arbitrator. Unless the liability is determined, it cannot be said that petitioner has an actionable claim. Petitioner though having raised demand claiming demurrage charges in July, 2021 itself, has kept quiet till 2024 without initiating any legal steps. Even respondents merely denied the statement of facts to be unsigned by one of the parties, and first invoice was never communicated CGR, J to 1st respondent and so also second invoice, which stand is taken only after issuance of notice of arbitration. This Court, therefore, is of the opinion that the liquidated damages so claimed now by petitioner unless are determined qua liability, there cannot be any actionable claim in favour of petitioner. Even the judgment in Ultratech Cement case, while explaining the concept of demurrage ultimately concluded that in a given case the parties may commercially understand a demurrage clause as a fixed charge and accordingly consider and discharge their obligation albeit the underlying legal position explained therein and that the same would certainly depend on facts and circumstances of each of the case. Therefore, in the present case, the contention of petitioner has to be tested from perspective of the covenants under the contract which exercise definitely would be clearly outside the scope of present application rather it be left to the arbitrator. Further the petitioner has also taken a plea that since the respondents have not raised any objection regarding issuance of notice of readiness for the purpose of unloading the cargo and based on the same, indeed cargo came to be discharged, the doctrine of waiver would kick in for the respondents to raise any dispute at this point of time and CGR, J in support has relied on Glencore Grain Ltd v Flacker Shipping Ltd; The Happy Day12. The said judgment was rendered in appeal arising out of an interim final arbitration award. Such plea is required to be considered based on pleadings and evidence on record which can only be appreciated in the arbitration proceedings. Without rendering any specific finding on the foundational facts, no conclusion can be arrived. Having said that petitioner has since raised the demand at very first instance itself, basing on notice of readiness, which was not disputed by respondents, it has sufficiently demonstrated prima facie case. Balance of convenience: