Section 34 review of arbitral awards remains limited where trade practice, correspondence and waiver support risk-purchase damages.

A section 34 challenge to an arbitral award was rejected because the arbitrator had considered the contract, pleadings, correspondence, trade usage and evidence on risk-purchase damages, and no reappreciation of facts was permissible where some evidence supported the findings. The court also treated the seller's written communication asking the buyer to consider alternative sourcing as a waiver of the contractual notice requirement for risk purchase, inferred from conduct and contemporaneous correspondence. Post-award interest was not interfered with, as the arbitrator had adopted a commercial pre-award interest approach in an international dollar-denominated contract and had not granted the later interest sought.

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Issues: (i) Whether the arbitral award could be interfered with on the ground that the finding of breach and risk-purchase damages was contrary to the contract, pleadings, trade usage and evidence. (ii) Whether the contractual requirement of notice for risk purchase stood waived by the seller's correspondence and conduct. (iii) Whether the rejection of post-award interest was liable to be upheld.

Issue (i): Whether the arbitral award could be interfered with on the ground that the finding of breach and risk-purchase damages was contrary to the contract, pleadings, trade usage and evidence.

Analysis: The dispute arose from a long-term supply contract for hard coking coal. The buyer's case was that the seller failed to supply the contracted quantity and that the shortfall was met through risk purchase in the commercial sense applicable to the trade, namely by entering into long-term arrangements with other suppliers and factoring in the shortfall for the relevant supply cycle. The Court held that the pleadings, correspondence and evidence showed that both sides understood the claim as one for risk-purchase damages. It further held that hard coking coal transactions were governed by international trade practices and long-term supply arrangements, and that the arbitrator had considered the evidence, trade practice and the parties' correspondence. In proceedings under section 34, adequacy of evidence and reappreciation of facts were impermissible grounds for interference where some evidence supported the findings.

Conclusion: The challenge to the award on the ground that it was beyond the reference or contrary to evidence failed.

Issue (ii): Whether the contractual requirement of notice for risk purchase stood waived by the seller's correspondence and conduct.

Analysis: The seller had informed the buyer that it could not perform the contract in full and expressly asked the buyer to consider other sourcing options. The Court treated this correspondence as a waiver of the requirement of prior notice before risk purchase. It held that waiver of contractual rights could be inferred from the written communication and surrounding conduct, and that the buyer's invitations to the seller to participate in committee meetings and alternative supply discussions were consistent with giving an opportunity to mitigate the shortfall in the commercial setting of the transaction. The finding of waiver was treated as one of fact and interpretation of contemporaneous correspondence, not open to interference in the section 34 jurisdiction.

Conclusion: The finding that the risk-purchase notice requirement had been waived was upheld.

Issue (iii): Whether the rejection of post-award interest was liable to be upheld.

Analysis: The arbitrator had awarded pre-award interest at a commercial rate in the context of an international US dollar contract. The Court held that an award of post-award interest at the statutory rate would be inconsistent with the arbitrator's approach and the nature of the transaction. It agreed with the view that the claim for post-award interest had not been granted and that the arbitrator's later order did not warrant interference.

Conclusion: The rejection of post-award interest was sustained.

Final Conclusion: The arbitral award, as upheld by the Single Judge, was not shown to suffer from any ground warranting interference, and the connected challenge to post-award interest also failed.

Ratio Decidendi: In a section 34 challenge, an arbitral award cannot be set aside merely because another view of the evidence is possible where the arbitrator has considered the contract, the trade usage and the correspondence, and a contractual waiver may be inferred from clear written communication and conduct.

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