whether an actual performance test was conducted because Goyal MG has chosen to adopt the lower burden of proving that a deemed performance test in terms of Article 15(B)(b) was conducted. Therefore, this Court finds it unnecessary to go into the question of whether Ex. RW 1/23 was forged. However, it notes that when both parties have access to the relevant documents and the ability to call the relevant witnesses or experts, then the Tribunal may choose on which party the burden of proof should be imposed upon. Therefore, the arbitrator could have legitimately required Jayaswal to prove forgery by examining Mr. Sudhir Bhat or a handwriting expert, given that it contested the veracity of the document. Moving on to the next question of whether a deemed performance test was conducted in August 2006, this Court finds no error in the award and impugned order in placing reliance on Annexure C-1 to Jayaswal‟s Statement of Claim. This document was submitted by Jayaswal, and constitutes an admission on Jayaswal‟s part that during August 2006, the plant satisfied three out of the four production parameters listed in Article 15A of the Lease Agreement. Annexure C-1 shows that the plant was operating at 100% production capacity, there was no excess power consumption and the oxygen produced was 99.5% pure. It is true that Annexure C-1 to the Statement of Claim does not indicate whether the plant satisfied the delivery pressure requirement of 30Kg/Cm2 (g) under Article 15A. That, however, is by itself insufficient to set aside the arbitral award, particularly in appeal under Section 37. There is, significantly, nothing on record to show that Jayaswal contemporaneously objected to low delivery pressure in August 2006. In fact, delivery pressure was brought up for the first time by Jayaswal in its letter dated 27.09.2012. Here, Jayaswal complained that the old oxygen compressor could not
