Patel Engineering Ltd. v. Acron Developers Pvt. Ltd.

(ix) The DM provided Acron with an area statement of the project on 6th August, 2010.

(x) An email dated 3rd September, 2010 was sent by the

(xi) An email was sent on 14th September, 2010 by the Respondent to the DM informing of the stoppage of work due to third parties. This was followed by an email dated 30th October, 2010 to the same effect.

(xii) On 11th November, 2010, the Petitioner and the Respondent executed the contract in respect of the project. It was provided in the contract, that “the contract is not an item-rate-contract. The quantities mentioned in the BOQ are only indicative. The contractor has to verify the quantities from the drawings provided with the tender. Only a change in drawing will imply verification. The contract is a lump sum contract calculated on the rate per total built up area as quoted by the contractor”. Further, the contract sum for all 7 towers was for Rs.37,75,59,624/- and a total area of 4,45,443.[7] Sq. ft. (41,383.07 sq. mtrs.) was agreed upon.

(xiii) There were email exchanged between Respondent and DM with regard to the drawings to be forwarded; for electrical contractor to complete works at the earliest and for providing revised calculations of the built areas for the project.

(xiv) DM by email dated 12th May, 2011 rejected RA Bill 6A issued by the Respondent on the ground that the work had not yet been completed.

(xv) The Respondent by email dated 20th May, 2011 responded to

DM’s email / letter of rejections stating that the DM can verify the measurements as provided by it and the parties can also take joint measurements for the work completed by the Respondent.

(xvi) The DM by email dated 20th May, 2011 sent to the Respondent stated that payment can be made on the joint measurement of executed quantities only after the completion of total work. It was further stated that the stagewise payment based on the actual area taken by joint measurement will be released after the structure work completion of each tower.

(xvii) There were further emails exchanged between the Respondent and DM dated 15th June, 2011, 20th June, 2011 and 2nd July, 2011 regarding delay due to the plumbing and electrical contractors who are third parties. (xviii)The Respondent by email dated 25th July, 2011 sent to the DM resubmitted the detailed calculation of the increase in As Built Area for the Project.

(xix) The DM by email dated 27th July, 2011 sent to the Respondent requested it to send the concerned person for the area reconciliation so as to process the Respondent’s calculation for additional area.

(xx) By a letter dated 27th July, 2011 the Respondent submitting RA

(xxi) The Respondent by emails sent on 4th and 11th August, 2011

(xxii) The Respondent in an email dated 4th October, 2011 sent to

DM stated that the contract needs to be revalidated by extension of time. The DM in response email dated 4th October, 2011 stated that contract is work bound and not time bound and therefore, ‘a renewal is not necessary…”. (xxiii)The timeline to complete the project as per the contract came to an end on 22nd and 25th October, 2011. (xxiv)The Petitioner terminated the contract vide letter dated 22nd October, 2011 on inter alia the ground that the Respondent has failed to achieve the milestones to complete the project as stipulated in the contract.

(xxv) The Respondent responded to the termination letter dated 25th October, 2011 denying the allegations as contained in the termination letter and requested for a meeting to amicably settle the issues.

(xxvi) A Deed of Settlement was executed between the

Petitioner and Respondent on 31st October, 2011. It was recorded therein as under:- (a) It was recorded in recital 1 that “However, Acron failed to fulfil its part of the obligations and PEL was constrained to terminate the Agreement…”. (b) It was further recorded in Recital 2 of Deed of Settlement that “Acron requested for an amicable settlement and further requested for withdrawal of the termination Notice”.

(c) In Clause 2, it was recorded that “the Contract stood revived subject to the modifications as contained in the Deed of Settlement”.

(d) In Clause 5, it was recorded that the Respondent undertook to complete the project by 31st January, 2012 as per the milestones set out in Annexure 3. (e) Further in Clause 9, it was recorded that the Respondent may raise a bill every 15 days and the Petitioner shall pay the same within a period of 15 days from the date of submission. (f) In Clause 11, it was recorded that the Respondent’s fulfillment of its obligations within the time stipulated in the Deed of Settlement is of the essence. (g) In Clause 13, it was recorded that, except the modifications as contained in the Deed of Settlement, all other clauses of the contract, including the arbitration agreement, shall remain in full force.

(xxvii) There were emails sent from 3rd January, 2012 to 31st January, 2012 by the Respondent to DM, regarding the delay due to third parties i.e. plumbing and electrical contractors.

(xxviii) As per the Deed of Settlement, the timeline to complete the project came to an end on 31st January, 2012.

(xxix) A show cause notice was issued by DM to Acron stating that the Respondent has not completed the works as per the schedule and called upon the Respondent to clarify as to why the liquidated damages ought not to be imposed on it.

(xxx) The Respondent in the response to the Show Cause Notice on 17th February, 2012 stated that any delay was due to inter alia non-completion of works by other agencies and non-availability of kitchen granite slabs which were to be supplied by Patel Realty (India) Ltd. (“PRIL ”). The Respondent requested for extension of time till 31st May, 2012 for completion of works.

(xxxi) There were further emails exchanged between the

Respondent and DM regarding delay due to aluminum contractor as well as, delay due to pending work by various other third parties.

(xxxii) An email dated 17th April, 2012 was sent by the

Respondent to DM referring to a meeting of even date wherein timelines for completion of the project were agreed between the parties. The last date of hand over was set to 30th June, 2012.

(xxxiii) There were further emails sent from 14th May, 2012 till

(xxxiv) A notice dated 16th July, 2012 was issued by the Petitioner to the Respondent stating that the Respondent had committed to complete the project by 30th July, 2012 and there continues to be delay in around 11 activities by the Respondent. The Respondent was called upon to provide a proper plan as to how it was going to achieve the final target by 30th July, 2012.

(xxxv) The Respondent responded on 23rd July, 2012 to

Petitioner’s notice stating that all commitments made by the Respondent were based upon reciprocal promises to make timely payment of the RA Bills by the Petitioner. Further, owing to the slow progress of work by the other agencies appointed by the Petitioner, the Respondent’s work has been impacted.

(xxxvi) There were emails sent from 28th August, 2012 till 27th September, 2012 by the Respondent to DM, regarding the delay due to the plumbing contractor i.e. relatable to third parties.

(xxxvii) An email dated 26th October, 2012 was sent by the

Respondent to the Petitioner stating that the final cleaning of towers S10 and S11 was underway and providing timelines as agreed at meeting held on even date, for handover of the same. The last date of hand over was 3rd November, 2012.

(xxxviii) An email was sent by the Respondent to the Petitioner requesting for release of the delayed payments as the site was just a few days from handover.

(xxxix) The DM was no longer involved with the project from 30th November, 2012. According to the Respondent, the project was to be completed on 31st December, 2012.

(xl) The Respondent handed over the flats to the Petitioner’s representative Arsen Infra Pvt. Ltd. after rectification of the snags between February to March, 2013.

(xli) The Respondent submitted the final bill to the Petitioner in respect of the project on 24th August, 2013.

(xlii) An email dated 25th September, 2013 was sent by the

Petitioner to the Respondent requesting the Respondent to send its authorized person to meet with Petitioner’s employee for certification of the final bill.

(xliii) The Petitioner sent email dated 25th October, 2013 to the

Respondent providing it with the joint inspection list and requesting for the handover document along with the bill. It is the Petitioner’s contention that the Respondent abandoned the site in August, 2013.

(xliv) On 12th November, 2013, an email was sent by the

(xlv) The Respondent invoked Arbitration dated 18th November,

(xlvi) An Arbitration Petition No.62 of 2014 was filed by the

Respondent under Section 9 seeking relief that the Petitioner be restrained from invoking the bank guarantees; from selling or otherwise creating any third party rights in the subject property; or in the alternative be directed to deposit a sum of approximately Rs.15 Crores before this Court. This Court declined ad-interim reliefs in the said Petition on 28th November, 2013.

(xlvii) The Petitioner invoked the Bank Guarantees provided by the Respondent amounting to a total of Rs.[2] Crores on 28th November, 2013.

(xlviii) The Petitioner responded to the invocation notice on 2nd December, 2013 stating that the Final Bill submitted by the Respondent is arbitrary and its authenticity needs to be ascertained and calling upon the Respondent to discuss the matter so that the dispute can be amicably settled.

(xlix) On 24th December, 2013, Mr. Anil Nagrath, the Architect appointed by the Respondent provided his computation of the area constructed by the Respondent.

(l) The defect liability period i.e. 12 months from 31st December,

(li) The Respondent submitted the final bill on 4th January, 2014

(lii) The Petitioner and the Respondent appointed their nominee arbitrators on 23rd April, 2014 and 27th March, 2014 respectively.

(liii) Statement of Claim was filed by the Respondent on 11th August, 2014 raising claims of Rs.22,81,23,681/-.

(liv) The Statement of Defence was filed by the Petitioner on 17th December, 2014.

(lv) The Petitioner filed its counter claim raising claims of

(lvi) The deposit order was passed by this Court on 21st August,

2015 in the Section 9 Petition filed by the Respondent whereby the Petitioner was directed to deposit a sum of Rs.11 Crores with the Prothonotary and Senior Master of this Court. It is pertinent to note that pursuant to several Orders passed, including Contempt Petition filed by the Respondent, the Petitioner deposited the amount in tranches with the final deposit made by 1st February,

2019.

(lvii) The issues were framed by the Tribunal on 25th September,

2015.

(lviii) The impugned Award was passed by the Arbitral Tribunal on 1st February, 2020 in terms of which the certain claims of the Respondent were allowed and the Petitioner’s counter claims were rejected. A dissenting opinion was provided by the Petitioner’s nominee Arbitrator, Shri R.G. Kulkarni.

(lix) The captioned Section 34 Petition was filed by the Petitioner along with Interim Application (L) No.8620 of 2020 for stay on 10th December, 2020.

(lx) A consent minutes of Order dated 12th February, 2021 was tendered by the parties in terms of which the award was stayed subject to the Respondent being permitted to withdraw the deposited amount of Rs.11 Crores along with interest, without security. Accordingly, the Interim Application (L) No.8620 of 2020 came to be disposed of. It is pertinent to note that the Respondent has withdrawn the deposited amount along with accrued interest amounting to Rs.12,41,80,617/-.

(lxi) The Interim Application (L) No.6786 of 2021 filed by the

3. Mr. Venkatesh Dhond, the learned Senior Counsel appearing for the Petitioner has submitted that the impugned Award is patently illegal and / or perverse. It is in manifest disregard of the facts on record and settled law. It is also contrary to the terms of the contract which governed the parties.

4. Mr. Dhond has submitted that the Impugned Award’s factual findings, and its legal conclusions are so irrational and manifestly flawed that no reasonable person properly instructed in the law and the facts on record, could possibly have arrived at the same. The majority view on the matter as a whole, travels far beyond the scope of the reference, and do not represent a possible view.

5. Mr. Dhond has submitted that the findings on the Deed of Settlement are perverse, inasmuch as only allegations of coercion (made to avoid said Deed) were those of “lawful act” coercion. He has further submitted that no evidence in support of such allegations, or which could clear the high bar for proving such coercion, was led. He has submitted that not only this, but after the Respondent alleging coercion, and the Tribunal accepting the allegation, both relied upon Deed itself to seek and to grant relief. He has submitted that this is unheard of in law.

6. Mr. Dhond has submitted that the original contract contained a specific provision [General Conditions of Contract (“GCC”) of Clause 1/3.20] making time of the essence. It was so contended even in the Statement of Defence. He has submitted that the original contract came to an end on 22nd October, 2011 and the Petitioner terminated the contract on that date.

7. Mr. Dhond has submitted that pursuant to a request by the Respondent the termination was revoked and a Deed of Settlement was executed by and between the parties on 31st October, 2011 and it was also agreed before the Tribunal that time was of the essence under the same.

8. Mr. Dhond has referred to the Recitals and Clauses of the Deed of Settlement. He has in particular referred to the Recital which states, “However, Acron failed to fulfill its part of the obligations and PEL was constrained to terminate the Agreement vide Notice dated 22nd October, 2011”. He has further referred to the Recital, “on the request of Acron to withdraw the letter dated 22nd October, 2011 (termination letter) and for the following settlement in Order to continue the Agreement and to allow Acron to complete all the unfinished work within the extended period, subject to certain additional terms and conditions proposed by the PEL and agreed to by Acron”. He has referred to Clauses 6, 11 and 12 of the Deed of Settlement. He has submitted that the express terms of the Deed of Settlement (including its recitals) were that; (a) Acron had defaulted in discharging its obligations under the Original contract; (b) it was on the express and specific request of Acron to revoke the notice of termination and revive the original contract and on Acron’s solemn assurances to complete the work within the extended time given to them, that PEL withdrew the notice of termination, and the original contract was revived with additional terms as expressly incorporated in the Deed of Settlement.

9. Mr. Dhond has submitted that despite this the Tribunal allowed Acron / the Respondent to wriggle out of the consequences of the Deed of Settlement on the specious plea that it was compelled to enter into the same under coercion or financial duress. No evidence whatsoever of such coercion or duress was produced by the Respondent before the Tribunal. He has referred to the conclusions on this score which are in paragraphs 82 and 83 of the Impugned Award.

10. Mr. Dhond has submitted that mere averments in pleadings as such the Statement of Claim do not and cannot constitute evidence. Nevertheless these form the basis of the Tribunal’s findings on coercion.

11. Mr. Dhond has submitted that perhaps aware that accepting the plea of economic coercion without any semblance of evidence in support would render its finding vulnerable, the Tribunal has referred to paragraph 42 on page 20 of the Affidavit of Evidence of Mr. Velmurugan (CW[2]) and records that the contents of the said paragraph constitute evidence of coercion. He has submitted that mere perusal of the paragraph shows that all that CW[2] referred to was an alleged overdraft facility availed of not by the Respondent, but by an alleged sister concern in Goa. The letter of the bankers dated 9th August, 2011 referred to by the Tribunal is one from the Citizen Credit Cooperative Bank Ltd. again addressed not to the Respondent but to one Acron Infra Projects Pvt. Ltd.

12. Mr. Dhond has submitted that in paragraph 42 of the Affidavit of Evidence of CW[2] there is not even an assertion making any grievance against the Petitioner as being the cause for the Respondent to avail of such overdraft facility.

13. Mr. Dhond has referred to the Respondent’s case of duress and which is unlawful threat of payment by the Petitioner to one of the Respondent’s supplier; unlawfully withholding payment from the Respondent; the Petitioner’s consultant’s turning down of Respondent’s request to reduce Bank Guarantee amount for reasons that were “incorrect and contrary to the contract terms” and termination of the contract by the Petitioner on 11th November,

2010.

14. Mr. Dhond has submitted that the Respondent acknowledged that, due to “several issues” between the parties, it was “contemplating initiating legal proceedings” against the Petitioner.

15. Further, the Respondent had called for an amicable settlement and had agreed to complete the work in December 2011 only if a sum of Rs.[2] Crore was released at once. It had also said that it would revalidate Mobilization Guarantees for a lesser amount and upon the first termination, it had requested for a settlement for “closing and concluding our legal relationship”.

16. Mr. Dhond has submitted that the Respondent has relied upon the Deed of Settlement to support its claims and the Tribunal relied upon it to grant relief to the Respondent. He has referred to the Award at paragraphs 40, 55 and 62 to 63 in this context. The Tribunal itself states that the Deed of Settlement was signed to “maintain good business relations”, “purely out of practical business sense”.

17. Mr. Dhond has submitted that given all of the above, the findings of the Tribunal refusing to give effect to the Deed of Settlement are perverse.

18. Mr. Dhond has placed reliance upon the judgment of the Privy Council in Pao On & Ors. Vs. Lai Yiu Long & Ors.[1] The Privy Council has held that for coercion which is stated to have resulted from perfectly lawful acts, the threshold or bar to be cleared to establish the same is extremely high. There must be present some factor that could, in law, be regarded as a coercion of his Will sufficient to vitiate a party’s consent. It is material to enquire 1 (1979) 3 WLR 435 at 450-451 whether, the person alleged to have been coerced did or did not protest; whether at the time he was allegedly coerced into making the contract, he did or did not have an alternative course open to him such as an adequate legal remedy; whether he was independently advised; and whether after entering the contract he took steps to avoid it.

19. Mr. Dhond has submitted that the aforementioned Privy Council judgment had been relied upon by this Court in Balaji Pressure Vessel Ltd. Vs. Bharat Petroleum Corporation Ltd[2]. at paragraph 12. The said judgment has not been dismissed though appealed from and the SLP therefrom before the Supreme Court has been dismissed on 5th August, 2019. This Court has held that in considering duress in a contractual situation in simple commercial pressure is not good enough. The pressure so as to constitute duress must be such that the victim must have entered the contract against his will, must have had no alternative course open to him, and must have been confronted with coercive acts by the party exerting the pressure. In other words, the pressure exercised by the other party must be such as the law would not regard legitimate.

20. Mr. Dhond has submitted that the Respondent in the present case has even relied on the allegedly ‘coerced’ Deed of Settlement to obtain relief. This was despite the fact that it was not its case that only parts of the Deed were the result of coercion. The whole of it allegedly was. He has submitted that the Arbitral Tribunal has not only failed to recognize this, it has replicated the Respondent’s approach in making the impugned Award.

21. Mr. Dhond has relied upon the judgment in the case of S.K. Jain Vs. State of Haryana & Anr.[3] paragraph 8, where it is held that, the very “concept of unequal bargaining power has no application in case of commercial contracts”.

22. Mr. Dhond has further relied upon the judgment of the Courts of England in Times Travel (UK) Ltd. and Anr. Vs. Pakistan. It has been held therein that the Common Law doctrine of duress to include lawful act economic duress by drawing on the rules of equity in relation to undue influence and treating as ‘illegitimate’ conduct which, when the law of duress was less developed, had been identified by equity as giving

4 (2021) 3 WLR 727 @727. rise to an agreement which it was unconscionable for the party who had conducted himself or herself in that way to seek to enforce.

23. Mr. Dhond has submitted that in view of the well settled law on the Common Law doctrine of duress, the factors which constitute duress have not been met in the present case.

24. Mr. Dhond has submitted that the Respondent has selectively relied upon Deed of Settlement which is impermissible. He has placed reliance upon the decision of this Court in Ranjit Vardichand Jain Vs. Nirmal Gagubhai Chhadwa & Ors.[5] at paragraphs 76-78. He has submitted that to allow one party to selectively rely upon a document and to disallow the other from relying upon the entirety of the same document, is other than being perversity in itself, a failure to meet any Tribunal’s ingrained obligations; ensuring ‘parties shall be treated with equality’ and no party is ‘otherwise unable to present his case”. He has placed reliance upon Sections 18 and 34(2) (a) (iii) of the Arbitration and Conciliation Act, 1996 in this context.

25. Mr. Dhond has submitted that the claim of the

Respondent for additional built-up area has been allowed dehors the terms of the parties contract, and in the face of several clear admissions by Respondent’s Chief Witness.

26. Mr. Dhond has submitted that there is a distinction between ‘constructed area’ and ‘built up area’. He has submitted that the Respondent in the present case was in a position to ascertain (a) amount of construction and / or (b) what the built up area would be. The contract itself identified with fair certainty what such built area would be per building, per floor, apart from other facilities like lifts, overhead water tanks, lift machine rooms, staircases, balconies etc. The Respondent was in no element of doubt on two things namely (a) it would be paid not with the reference to the construction actually put up i.e. the area actually constructed but with reference to built up area; and (b) the co-relation between the built up area and the construction actually put up i.e. the actual area that it was required to construct. It was in this context that the Respondent was required to quote a rate. He has submitted that this is akin to a situation where the gross and net figure are both known, but the parties quote with reference to the net figure. In such a case, a person who quotes with reference to a net figure is going to be paid on net basis, and cannot, subsequently, use a rate for net and multiply it with the gross amount of work.

27. Mr. Dhond has submitted that since there was no material change between the tender drawings and construction drawings, the Respondent was only entitled to be paid for the built up area (which did not materially change).

28. Mr. Dhond has submitted that the Respondent initially made a claim for work citing that this consisted of new elements that were absent in the tender drawings. This was demolished in cross examination. The Respondent then tried to recover the same amount by referencing it to the area actually constructed without giving any weightage to the mode of measurement as provided in the contract, when all that it was entitled to, and did receive, was for the built up area it actually constructed.

29. Mr. Dhond has submitted that the elements that the Respondent identified as constituting “excess built up area” were present in the tender drawings as well. There was no real / material difference between the tender drawings and the GFC drawings. He has submitted that as long as the Respondent built as per the tender drawings / GFC drawings it could not demand anything more. It could only claim more where it could demonstrate that the work it did was different than that shown in the drawings. He has submitted that the entire theory propounded with reference to additional built up area being constructed by reason of elements which materialized only in the GFC drawing was dishonest.

30. Mr. Dhond has submitted that submissions of the Respondent on claim for additional built area is contrary to the Respondent’s pleaded case and its evidence and should have been rejected by the Tribunal at the threshold. The Tribunal in taking cognizance of this, has committed a grave error which has resulted in a serious violation of natural justice and / or a miscarriage of justice that ought to shock the conscious of this Court. He has placed reliance upon the judgment of the Supreme Court in Ssangyong Engineering and Construction V/s. National Highways Authority of, paragraphs 35, 70 and 76.

31. Mr. Dhond has submitted that the Tribunal by totally ignoring and making no reference to the complete change of case of the Respondent, constitute perversity. The Tribunal has further 6 (2019) 15 Supreme Court Cases 131. committed a serious error in accepting the Respondent’s case and disregarding the terms of the contract, pleadings of the parties, and evidence before it.

32. Mr. Dhond has further submitted that, the Tribunal’s findings and its acceptance of the Respondent’s claim of additional built up area in the sum of Rs.4,33,60,124.70, plainly constitutes ‘patently illegality’ within the meaning of Section 34(2) (a) of the Arbitration and Conciliation Act, 1996. He has placed reliance upon the judgments of Supreme Court in Patel Engineering Ltd. Vs. North Eastern Electric Power Corporation Ltd.,[7] paragraphs 3, 4, 13 and 16 – 22; State of Chhatisgarth & Anr. V/s. Sal Udyog Pvt. Ltd.[8] paragraphs 1, 4, 6, 14-17, 23 and 24 and judgment of this Court in Interocean Shipping (India) Pvt. Ltd. Vs. Oil and Natural Gas paragraphs 1-3, 17, 24-26, 30 and 33.

33. Mr. Dhond has submitted that in so far as the other claim of the Respondents namely for an amount of INR 1,10,59,673/- for additional work done at site beyond what has been certified by the Respondent Viz. Claim No.1 (04), the Petitioner admitted to an amount of INR 52,41,930/-. The Tribunal has awarded an amount to the tune of INR 86,10,441/- and thus the disputed difference under this claim is of INR 33,68,511/-.

34. Mr. Dhond has submitted that the claim of various additional items of work purportedly executed by the Respondent which were billed by it under the supplementary final bill dated 4th January, 2014, admittedly was not certified by the consultant. He has submitted that in the absence of that certification by the consultant, it was incumbent upon the Respondent to prove the exact quantity of the concerned item of work purportedly executed as well as the rate that it was claiming in respect of the said work.

35. Mr. Dhond has submitted that the Tribunal while awarding the claim of Rs. 28,15,413/- for the Respondent using Kota stone for the staircase, has relied upon evidence of CW[4] and rate analyzing at C-198 (colly) at pages 822-839, Volume C-7. He has submitted that the observation of the Tribunal in this context is demonstrably perverse in as much, firstly, no such rate analysis was produced. The document to which reference has been made by the Tribunal is a mere statement of calculations set out in tabular form. This is neither been signed, authenticated nor certified by any person, much less by the Respondent’s witness CW[4]. He has submitted that even if the Respondent had in fact produced a rate analysis such a rate analysis could not have constituted evidence by any stretch of imagination because a rate analysis too is merely a notional breakup of a rate claimed by the Respondent whereas its individual components and the costing thereof is still required to be proved by the requisite bills, invoices, master rolls, invoices for hiring of machinery, etc.

36. Mr. Dhond has made submissions with regard to Claim No.5 of the Respondent in the Statement of Claim which is for an amount of Rs.2,85,21,280/- towards alleged additional expenditure incurred by it as a result of alleged delay caused by the Petitioner resulting in overstay of the Respondent at the site beyond the schedule date of completion viz. 22nd October, 2011. He has submitted that the Tribunal has relied upon evidence of CW[4] which though having referred to alleged accounts of the Respondent, no such accounts were produced in evidence. He has submitted that save and except for reference to Annexure CA – 10 of the Statement of Claim, CW[4] did not make reference to any other documents in support of the Respondents Claim No.5. He has submitted that insofar Annexure CA-10 to the Statement of Claim is concerned that even a cursory perusal thereof would show that it was merely a list of certain items and various amounts claimed against them set out in a tabulated form not unlike particulars of claim annexed at the end of a Plaint in a money Suit. He has submitted that such particulars of Claim as Annexure CA-10 does not and cannot constitute ‘evidence’. He has submitted that the Tribunal in awarding such claim on no evidence whatsoever, is perversity, as understood in Ssangyong Engineering and Construction Co. Ltd. (Supra).

37. Mr. Dhond has submitted that the Tribunal has recklessly granted Respondent’s claim No.6 which was for alleged additional expenditure for alleged prolongation of use of machinery, tools, plant and other construction equipment beyond the period of deployment originally contemplated under the contract. An amount of Rs.74,90,758/- which had been claimed by the Respondent and awarded in its entirety by the Tribunal.

38. Mr. Dhond has submitted that the Tribunal in awarding Claim No.6 has relied upon Annexure CA-11, CA-12 and CA-13 which are nothing but notional calculations and particulars put in a tabulated form and which were unsigned, uncertified and unauthenticated by any person. He has submitted that the Tribunal inspite of total absence of evidence has awarded the said claim.

39. Mr. Dhond has submitted that the Tribunal in awarding Claim No.6 has relied upon paragraphs 43 and 44 of CW-4’s Evidence Affidavit which is in the nature of secondary evidence within the meaning of Section 63 (5) of the Indian Evidence Act, 1872 and could only be given under the circumstances that could satisfy Section 65(g) of the Act. He has submitted that the witness was wholly incompetent under either of those sections. He has placed reliance upon the judgments of the Delhi High Court in Fortuna Skill Management Pvt. Ltd. Vs. Jaina Marketing and Associates10 paragraphs 30 and 31 and Fortuna Skill Management Pvt. Ltd. Vs. Jaina Marketing and Associates11 paragraphs 37 and 38.

40. Mr. Dhond has submitted that the Respondent has raised a claim for interest on alleged delayed payments in respect of the alleged additional area allegedly constructed. The claim for interest on delayed payments was under the two separate heads viz. Claim No.7 and Claim No.8. Claim No.8 is for interest on delayed payment against the additional area allegedly constructed. The said claim has been awarded by the Tribunal for an amount of Rs.64,33,292/-. He has submitted that for the reasons mentioned regarding additional built up area, this claim ought to have failed. He has submitted that the impugned Award to the extent that it awards this claim is in violation of the terms of the contract and is thus liable to be set aside.

41. Mr. Dhond has referred to the terms of the contract namely payment will be made based on joint measurements of laid quantity at site after completion of total work carried out by the contractor. He has submitted that the terms of the contract further provided that no claim for interest or damage will be accepted by the DM with respect to any money, which may be in its possession, owing to any dispute, difference or misunderstanding between the DM and the contractor. He has submitted that the terms of the contract were thus clear and unambiguous inasmuch as firstly, the contractor was to raise its interim bills in terms of the agreed payment schedule. If the contractor was desirous of claiming any additional amount towards construction of any allegedly additional area, the payment regarding the same was to be made only after joint measurements were recorded after the final completion of work. He has submitted that the Petitioner was not bound to entertain, much less release any payment in respect of such bills until the final recording of measurements after the entire completion of work, as per express terms of the contract. He has accordingly submitted that the Respondent could not claim interest from the Petitioner by alleging that payments of such bills were delayed.

42. Mr. Dhond has submitted that the Claim of interest under Claim 8 was in respect of amounts which were in dispute between the Respondents and DM and hence, the claim was barred by the provisions of Clause 1/6.9.[1] of the contract. He has submitted that on this ground also, the Impugned Award granting such a claim is in violation of the express terms of the contract between the parties and liable to be set aside.

43. Mr. Dhond has submitted that the Petitioner has raised a total of 12 heads of claim in its counter claim before the Arbitral Tribunal. Out of 12 heads, Nos.1, 2, 9 and 11 were for damages. Each of these heads have been rejected by the Arbitral Tribunal.

44. Mr. Dhond has submitted that in so far as counter claim 1 which was claim for liquidated damages under Clause 1/3.21 of the Contract, he has submitted that the Petitioner was entitled to recover a sum of Rs.1,88,77,981/- for the period from 31st July, 2012 to 31st December, 2012. Out of the said sum, the Petitioner had recovered Rs.40,00,000/- by making deductions from the Respondent’s running Bill Nos. 22, 23 and 24. This left outstanding a sum of Rs.1,48,77,981/-.

45. Mr. Dhond has submitted that Clause 11 of the Deed of Settlement specifically makes time of the essence of the contract. The Deed of Settlement required the work to be completed on or before 31st January, 2012. The Petitioner had given the Respondent extension beyond the period specified in the Deed of Settlement i.e. till 30th July, 2012. No extension beyond 30th July, 2012 was expressly sought or expressly granted. The Respondent however continued work till 31st December, 2012 and made promises to complete the work. The Petitioner however, did not terminate the contract, nor did the Petitioner call upon the Respondent to stop work. The Tribunal has found that, after 31st January, 2012 time ceased to be of the essence and / or was put at large.

46. Mr. Dhond has referred to the findings of the Tribunal on the counter claim 1. He has submitted that the findings are perverse and patently illegal. The Tribunal has in the first set of findings, held that there was no lawful notice under Section 55 of the Contract Act. There is an alternative finding that the Petitioner has waived its right to levy liquidated damages at the rate of 5% of the contract value as per Clause 1/3.21. There is a finding that the Petitioner was responsible for the delay that resulted in the Respondent having to stay at site until 31st December, 2012 and therefore, cannot claim damages from the Respondent on that score.

47. Mr. Dhond has submitted that these findings are untenable. He has placed reliance upon Section 55 of the Indian Evidence Act, 1872 which provides that effect of failure to perform at fixed time, in contract in which time is essential. He has submitted that from a plain language of the Section it means that: (a) in the case of a contract of which time is intended to be of the essence, a promisor’s failure to perform his promise within the time specified renders the contract voidable at the option of the promisee; (b) in the case of a contract of which time is not intended to be of the essence, the promisor’s failure to perform his promise within the time specified does not render the contract voidable, but entitles the promisee to claim damages for the delay and (c) where the contract was voidable under (a), and the promisee, rather than avoid it, [under (a)], accepts performance at a later time, his right to seek damages [under (b)] is subject to his giving the promisor notice of his intention to seek such damages at the time that he accepts performance.

48. Mr. Dhond has submitted that the Tribunal has clearly misconstrued the requirement noted in paragraph 9(c) as one for a ‘notice to make time...as of essence of contract’, rather than one merely notifying the promisor of the promisee’s intention to claim damages. That is all that Section 55’s plain terms require and that is all that the letter dated 16th July, 2012 in fact did. He has placed reliance upon the judgment of this Court in ONGC Vs. Soconord OCTG & Anr.12 paragraphs 49 – 53 in this context.

49. Mr. Dhond has submitted that the alternative finding of the Tribunal on alleged ‘waiver’ is also equally untenable. He has relied upon the judgment of the Supreme Court in All India Power

Engineering Federation & Ors. Vs. Sasan Power Ltd. & Ors.13 at paragraph 21, where the Supreme Court has reiterated the oft-stated principle that waiver is “the intentional relinquishment of a known right”, but that this implies, “unless there is a clear intention to relinquish a right that is fully known to a party, a party cannot be said to waive it”. He has submitted that applying this principle to the facts in the present case, the Tribunal’s finding on waiver is perverse.

50. Mr. Dhond has submitted that the Tribunal in finding that the Petitioner was responsible for delay until 31st December, 2012 has relied upon mere ipse-dixit of CW[1] on delay in supplying drawings and contradicts the express provisions of the contract between the parties. He has submitted that the finding on delay in making payments is an impossible one, since delay in making payments makes a payor liable to pay interest, not to be held liable for the payee’s failure to complete its work on time. Further, the findings on delay due to obstructions also contradict an express term in the parties’ contract. The delay in supply of granite is based on no evidence whatsoever. He has submitted that the finding that the Petitioner was responsible for the delay until 31st December, 2012 is legally unsustainable.

51. Mr. Dhond has submitted that the Respondent’s case on delay during the original term of the contract was that the delay was because of the Petitioner and not the Respondent. He has submitted that the Respondent has alleged that the delay was in issuing drawings by the Petitioner which has found favour with the Tribunal. He has submitted that this is legally perverse as the question of “delay” was not part of the Petitioner’s case. The Respondent wished to prove delay, and in order to prove it, wished to rely upon certain state of facts. The Petitioner was not asked either by the Respondent or the Tribunal to produce any old drawings or “details of more area”. There was no suppression by the Petitioner or any “admission” of delay. The Tribunal’s findings on adverse inference against the Petitioner for not producing the drawings and to hold the delay was on the Petitioner’s account is perverse and contrary to settled law. He has placed reliance upon the decision of the Supreme Court Standard Chartered Bank Vs. Andhra Bank Financial Services Ltd. and Ors.14 at paragraph 49 – 53 in this context.

52. Mr. Dhond has accordingly submitted that the impugned 14 (2006) 6 Supreme Court Cases 94. Award suffers from perversity and is patently illegal and accordingly requires to be set aside.

53. Mr. J. P. Sen, the learned Senior Counsel appearing for the Respondent has submitted that in so far as Claim No.1 (1) on completion of works, there was no delay attributable to the Respondent and delay was attributable only to the Petitioner. All works were duly completed by the Respondent and for which reliance has been placed on the documents on record. Further, reference is made to the dates and events. He has submitted that after considering the evidence and documents on record, the Tribunal rightly came to the conclusion that the work had been completed by the Respondent.

54. Mr. Sen has submitted that there is no tenable ground in the captioned Petition challenging the finding of the Tribunal. The findings of the Tribunal are arrived at after going through the evidence before it and the Tribunal has arrived at not only a plausible but also a correct conclusion. He has submitted that in a Section 34 Petition, the evidence cannot be re-appreciated. He has placed reliance upon the decision of the Supreme Court in Associate Builders Vs. Delhi Development Authority15, paragraphs 32, 52 and 56; Maharashtra State Electricity Distribution Co. Ltd. Vs. Datar, paragraphs 45 – 90; Ssangyong Engineering and Construction Co. Ltd. Vs. National Highways Authority of India (NHAI)17, paragraphs 36, 37 and 38; State of Jharkhand Vs. HSS, paragraphs[6] & 7.1; Delhi Airport Metro Express Pvt. Ltd. Vs. Delhi Metro Rail Corporation Ltd.19, paragraphs 28, 29 to 32 and Netaji Subhash Institute of Technology Vs. M/s. Surya Engineers & Anr.20 paragraphs 54, 66, 67 & 69.

55. Mr. Sen has submitted that in so far as Claim 1(2) for non tender items there is no dispute over this claim.

56. Mr. Sen has submitted that regarding Claim No.1 (3) for additional built up area, the contract itself provided that, the Respondent was required to construct the area 4,45,443.[7] Sq.ft. (equivalent to 41,383.07 Sq. mtrs.). Further, the contract provided for certain deductions to be made for the purposes of calculating the payable area of the contract, as per Annexure III thereof. The contract 15 (2015) 3 Supreme Court Cases 49. 16 (2018) 3 Supreme Court Cases 133. 17 (2019) 15 Supreme Court Cases 131. 18 (2019) 9 Supreme Court Cases 798. 19 (2022) 1 Supreme Court Cases 131. 20 OMP (Comm.) 48 of 2020 and I.A. No.1401 of 2024. also provided for the rates per square feet agreed to be paid to the contractor.

57. Mr. Sen has submitted that realizing this is a construction contract and eventually the areas as first stated may increase or decrease, an omnibus clause was incorporated in the contract which inter alia provided that the Respondent will be paid at the agreed rates for the area which is actually constructed. He has submitted that this is also reflected in the LoA’s which LOA’s have been incorporated in the contract by reference.

58. Mr. Sen has submitted that the aforementioned term in the contract stands to good reason because the Respondent being a contractor is entitled to receive money for the work actually done. If the work actually done exceeds the area set out in the tender, then the Respondent will not be paid for any additional work carried out by it. Therefore, the Petitioner will be permitted to unjustly enrich itself.

59. Mr. Sen has submitted that admittedly no joint measurements were taken by the parties after completion of the works. Therefore, the evidence had to be led by the parties as regards the quantum of area actually constructed by the Respondent.

60. Mr. Sen has referred to the evidence on record of the RW-3, Architect in employment of the Petitioner and the Respondent’s Witness (CW-5, Architect) as to the area constructed. The reason for the difference in the payable area between the two witnesses is due to the additions and deductions made by them to the profile area.

61. Mr. Sen has submitted that taking into account the contractual provisions and the evidence led by the parties, the Tribunal came to the conclusion that the Respondent is liable to be paid for the (a) additional area of 50,395.31 Sq. ft. (4,681.87 Sq. mtrs.) which was constructed by it; and (b) at the contractual rate of Rs.860.40 per sq. ft.

62. Mr. Sen has submitted that the conclusions arrived at by the Tribunal is on the basis of relying upon the contractual provisions contained in the Contract which provided that the Respondent would be paid for actually executed quantities. The Tribunal has relied upon the letter dated 12th May, 2011 and DMs letter dated 20th May, 2011 to buttress the finding. He has referred to paragraphs 15, 34, 58 (c-3) to (c-9) to 58(c-10) of the Award in this context.

63. Mr. Sen has submitted that the Tribunal has considered each addition and deduction made by the parties’ witnesses to the constructed area and accordingly arrived at its finding that the Respondent had constructed an extra area of 50,395.31 sq. ft. (4,681.87 Sq. mtrs.).

64. Mr. Sen has submitted that the findings are based on appreciation of evidence on record. It is impermissible for the Petitioner to question the merits of the findings and seek reappreciation of the evidence. He has submitted that the law is well settled that an Arbitral Tribunal is the master of the evidence and findings of fact arrived at by an arbitrator is on appreciation of the evidence on record and are not to be scrutinized as if the Court was sitting in Appeal. He has submitted that even assuming that the Section 34 Court may take a view different from that in the Award, nevertheless that is not a ground for setting aside an Award. He has placed reliance upon State of Jharkhand (Supra) and Maharashtra State Electricity Distribution Co. Ltd. (Supra).

65. Mr. Sen has made submissions with regard to Claim No.1 (4) which is for the non-tender items for the project amounting to Rs.1,10,59,673/-, the details of which formed part of the Final Supplementary Bill dated 4th January, 2014 submitted by the Respondent to the Petitioner. Out of the claimed amount of Rs.1,10,59,673/-, the Petitioner admitted to the fact that an amount of Rs.52,41,930/- stood due to the Respondent for this claim. The Tribunal awarded a sum of Rs.86,10,441/- to the Respondent towards this claim.

66. Mr. Sen has submitted that the main disputed item by the Petitioner is the amount claimed for Kota works for staircase done by the Respondent amounting to Rs.31,31,493/-. The Petitioner contended that as per items 4.[6] and 4.[7] of the BOQ provided with the contract, the staircase work was to be done in Epoxy Paint and not Kota. Further, it was due to bad quality work done by the Respondent that Kota stone was used in lieu of Epoxy Paint. Therefore this sum according to the Petitioner was not payable.

67. Mr. Sen has submitted that as per Annexure III, Milestone 2 of the Deed of Settlement, the same provided for ‘kota for steps’. He has submitted that Kota work was carried out at the instance of the Petitioner, as agreed in the Deed of Settlement. The Petitioner’s contention that the Respondent had carried out poor quality of work due to which kota was provided in lieu of epoxy paint is belied by the Deed of Settlement and unsupported by any documentary evidence whatsoever.

68. Mr. Sen has submitted that the Final Bill included with it measurement sheets which provided the total quantity of Kota used for the staircase in each tower. He has relied upon the evidence of the Respondent’s witness i.e. CW-4, who has personally verified the quantities of such works executed and also the rates adopted for its payment in the final bill submitted by the Claimant. He has submitted that there was no cross examination by the Petitioner on the evidence led by CW-4 in this regard.

69. Mr. Sen has submitted that considering evidence on record, the Tribunal has awarded a sum of Rs.28,15,413/- to the Respondent for the Kota work done by it after deducting the rate of Epoxy Paint as provided for in the Contract BOQ.

70. Mr. Sen has submitted that as regards the other nontendered items for which claims were allowed by the Tribunal, the Petitioner had admitted to the fact that such work was executed by the Petitioner but contested either the quantum of work done or the rate charged by Respondent for the same. He has submitted that the Tribunal considered evidence on record including documentary support filed by the Respondent with the final bill and the evidence of CW-4, whilst granting the same.

71. The Tribunal’s conclusions are based on appreciation of the evidence on record and hence it is impermissible for the Petitioner to question the merits of these findings and seek reappreciation of the evidence. He has submitted that the law is well settled that an Arbitral Tribunal is the master of evidence and the same cannot be scrutinized as if the Court was sitting in Appeal.

72. Mr. Sen has submitted that in so far as Claims 1(5) to 1(7) relating to service tax, the Petitioner has not disputed its liability for payment and there is no ground of challenge in the Section 34 Petition raised as regards the Tribunal’s findings on these claims.

73. Mr. Sen has submitted that with regard to claims 1(8) to 1(11) regarding extra over basic rate there is no ground of challenge in the Section 34 Petition raised as regards the Tribunal’s findings on these claims.

74. Mr. Sen has submitted that as regards Claims 1(12) and 1(13) i.e. material supplied by PRIL there is no ground of challenge in the Section 34 Petition as regards the Tribunal’s findings on these claims.

75. Mr. Sen has submitted that regarding Claims 2 and 4, these claims were rejected by the Tribunal.

76. Mr. Sen has submitted that Claims 3, 5 and 6 are regarding delay. He has submitted that, it was the case of the Petitioner before the Tribunal that the project was delayed by the Respondent and that this fact has been allegedly admitted by the Respondent in a recital recorded in the Deed of Settlement dated 31st

77. Mr. Sen has submitted that it was the case of the Respondent before the Tribunal that the project was delayed due to various circumstances beyond its control and for no fault of the Respondent. He has referred to the main cause of delay attributed by the Respondent, during the contract period i.e. upto 22nd October, 2011 being delay in issuing of drawings; delay due to obstructions by third parties and delay by the Petitioner in making payments. He has submitted that the main cause of delay attributed by the Respondent post execution of the Deed of Settlement was due to delay in supply of kitchen granite; delay due to obstruction by third parties; delay in issuance of certain drawings and delay by the Petitioner in making payments. He has submitted that the Tribunal upon considering the submissions of the parties and evidence on record came to the conclusion that the delay in completion of the project was not attributable to the Respondent.

78. Mr. Sen has submitted that it was in light of the findings of the Tribunal that it held in paragraph 31 of the Award that “not much importance should be given to” the recital in the Deed of Settlement as sought to be so heavily relied upon by the Petitioner as the same are “formal recitals….which are usually found for maintaining good relations as long as the work is completed and full payment is received”.

79. Mr Sen has submitted that it is trite law that evidence can be led to explain any recital of statement in a document. He has placed reliance upon Hindu Public Vs. Rajdhani Puja Samithee21, paragraph 20 and Manickathamal Vs. Nallsami Pillai22, paragraphs 5, 6 & 8.

80. Mr. Sen has submitted that in so far as Claim No.(3) is concerned, as per Clause 3 of the Deed of Settlement, the Respondent was to furnish four performance guarantees of Rs.50 lakh each amounting to a total of Rs.[2] Crores to the Petitioner. Further, under Clause 6 of the Deed of Settlement, the Petitioner was conferred a right to terminate the contract and invoke the Bank Guarantees, if the Respondent failed to achieve the Milestones set out in Deed of Settlement.

81. Mr. Sen has submitted that it is an admitted position that after execution of the Deed of Settlement, the Petitioner did not terminate contract and time was extended to complete works by the Respondent from time to time. He has submitted that therefore, the invocation by the Petitioner of the Bank Guarantees on 28th November, 2013 i.e. after all the works were completed and snags were attended to by the Respondent, was unjustified and not in accordance with the Deed of Settlement.

82. Mr. Sen has submitted that it has therefore, been held by the Tribunal that the invocation of Bank Guarantees by the Petitioner was wrongful and the Tribunal has correctly granted this claim to the Respondent.

83. Mr. Sen has submitted that regarding Claim Nos.[5] and 6, it is the case of the Respondent that due to the delay caused to the project, for no fault of the Respondent, the Respondent was required to incur additional expenditure during the extended period of contract amounting to Rs.2,84,60,550/- as per the details provided in Annexure C-10 of the Statement of Claim. Further, the Respondent was required to incur additional expenditures for retaining its machinery, tools and other construction equipments at the site during the extended period of Contract, which caused loss to extent of Rs.74,90,758/- to the Respondent (Claim 6) as per details provided in Annexures C-11 to C-13 of the Statement of Claim.

84. Mr. Sen has referred to the evidence of CW[2] and CW[4] on these claims. He has submitted that there is no cross examination by the Petitioner on this claim whatsoever. It is settled law that in the absence of questions being put to a witness, a party cannot seek to discredit the witnesses testimony. He has relied upon Laxmibai Vs. Bhagwantbuva23, paragraph 40 in this context.

85. Mr. Sen has submitted that considering the evidence, the Tribunal has correctly granted these claims in favour of the Respondent; especially given the fact that it came to the conclusion that the delay was not attributable to the Respondent. He has submitted that the findings of the Tribunal are not only plausible but also a correct view of the matter and merits no interference in a Section 34 Petition.

86. Mr. Sen has submitted that regarding Claims 7 and 8 which are for interest due to delayed payments made by the Petitioner towards (a) running accounts bills and (b) payments for additional constructed area, these claims are based on Clause 1/6.6.[1] of the Contract and Clause 9 of the Deed of Settlement. These Clauses provide that RA Bills are required to be paid by the Petitioner to Respondent within specified time period.

87. Mr. Sen has submitted that the Petitioner has incorrectly relied upon Clause 1 /7.6.[9] of the contract. He has submitted that the said Clause provides that there would be no claim for interest in respect of amounts which are lying in the possession of the DM due to any dispute between the DM and the Contractor. He has submitted that no instance of any such dispute has been referred to by the Petitioner. He has submitted that since no amounts were lying in the possession of DM and the Petitioner having demonstrably failed to make payment of the RA bill within the stipulated time, the Respondent was entitled to claim interest on the delayed payment.

88. Mr. Sen has submitted that the Respondent had proved that it had constructed an additional area beyond what was contemplated in the Contract but the Petitioner failed to make payment of the same. Accordingly, the Respondent has rightly claim for interest, in respect of Claim No.8, on the sum due to it for such additional constructed area.

89. Mr. Sen has submitted that based on evidence on record, the Tribunal correctly came to the finding that Claim Nos. 7 and 8 regarding interest ought to be granted. As regards, Claim No.8, the Tribunal reduced the claim amount proportionately in view of its findings as to the quantum of the additional area constructed by the

90. Mr. Sen has submitted that regarding Claim Nos.[9] and 10, namely for (i) pendente lite interest due against outstanding amounts payable by the Petitioner to the Respondent based on RA bills and Final Bills, and (ii) future interest on the Award sum, there are no oral submissions made by the Petitioner contesting the claims.

91. Mr. Sen has submitted that regarding Claim No.11, costs, there are no oral submissions made by the Petitioner contesting the claim in the present proceedings.

92. Mr. Sen has submitted that all 12 counter claims have been rejected by the Tribunal. During the course of arguments in the present proceedings the Petitioner has only contested the rejection of one of its Counter Claims i.e. Counter Claim No.1 for liquidated damages. The Petitioner’s Counter Claim No.1 was premised on the allegation that the Respondent was responsible for delays caused to the project and the Respondent failing to complete the works at site. The Petitioner claim damages at the 5% of the contract sum as per Clause 1/3.21.[1] of contract.

93. Mr. Sen has relied upon the findings of the Tribunal concurring with the Respondent’s submission that the delays caused to the project are attributable to the Petitioner and not the

94. Mr. Sen has submitted that in view of such findings the Tribunal has rightly rejected the Petitioner’s claim for liquidated damages.

95. Mr. Sen has submitted that the Tribunal has found that the Petitioner failed to produce the best evidence in defense of the Respondent’s allegations that the Petitioner failed to timely provide GFC drawings. He has submitted that the Tribunal has relied upon the evidence on record to arrive at such finding. He has submitted that it is settled law that, if the party fails to produce evidence, which it could produce to prove a particular fact that it asserts, then the fact of non production of the same ought to be presumed as the evidence being unfavourable to it and adverse inference with respect to the same ought to be drawn. He has relied upon Section 114 (g) of the Evidence Act in this context.

96. Mr. Sen has submitted that the Tribunal has rightly come to finding that the Respondent has proved its case on delay and that the Petitioner failed to produce its best evidence to disprove the same. The findings of the Tribunal cannot be faulted; especially in the scope of Section 34 Petition.

97. Mr. Sen has accordingly submitted that the present Commercial Arbitration Petition ought to be dismissed with costs.

98. Having considered the submissions, the Petitioner has impugned the findings of the Arbitral Tribunal predominantly on the ground that the Tribunal had refused to give effect to the Deed of Settlement, where in the Recital it is recorded that the Respondent had failed to fulfil its part of its obligations. It is further recorded that the Petitioner was then constrained to terminate the agreement vide notice dated 22nd October, 2011. It is the Petitioner’s contention that the Tribunal has allowed the Respondent to wriggle out of the consequences of the Deed of Settlement on a plea that it was made to execute the said instrument by coercion or under financial duress, neither of which the Respondent produced even a shed of evidence. The Petitioner further contends that the findings of the Tribunal refusing to give effect to the Deed of Settlement is perverse.

99. In my view, this ground of challenge to the impugned award merits non acceptance in view of the Tribunal after considering the pleadings and the evidence on record coming to the conclusion that the delay in completion of the project was not attributable to the Respondent. Although, the Tribunal has referred to the pleadings of the Respondent / Claimant, wherein it was asserted by the Respondent had been coerced into entering into the Deed of Settlement by the Petitioner and there is an assertion of duress / coercion raised by the Respondent, this was not the basis for the Tribunal not giving importance to the Recital in the Deed of Settlement. The Tribunal has considered the aforementioned Recital in the Deed of Settlement as being a formal recital which is usually found for maintaining good relations as long as the work is completed and full payment is received.

100. The Supreme Court in Hindu Public (Supra) relied upon by the Respondent has held that the evidence can be led to explain any recital or statement in a document. In the said decision, it has been held in paragraph 20 as under:- “20. It is in the evidence of witnesses examined on behalf of the “Hindu Public” before the Assistant Commissioner that para (a) of the aims and objects was introduced along with paragraph (b) so as to ensure that the request for grant of lease of this very land was not rejected by the Government on the ground that land could not be leased exclusively for religious purposes. On this aspect, the Assistant Commissioner rejected the oral evidence as inadmissible as it contradicts the recitals in the deed of registration of the Society in view of Section 91 and 92 of the Evidence Act, 1872. In our view, this is not correct in law. Oral evidence could be adduced to show that the recitals in a deed were nominal or were not intended to be acted upon or that they were not meant to alter the existing state of affairs. Oral evidence could therefore, be adduced to show that the Society’s main concern was the celebration of the Durga Puja festivals etc. and that other activities were subsidiary. Therefore, the Deputy Commissioner was right in relying on this part of the oral evidence.”

101. The Supreme Court has placed reliance upon Sections 91 and 92 of the Evidence Act, 1872 which provides that oral evidence could be adduced to show that the recitals in a deed were nominal or were not intended to be acted upon or that they were not meant to alter the existing state of affairs.

102. This has also been held in Manickathammal & Ors. (Supra), relied upon by the Respondent. In paragraph 5, the Madras High Court has held that “There are cases and cases like the one in the instant case, whereunder if a genuine doubt is raised about truth of the recital then, Courts are not helpless but they are in a position to make a further probe into the truth or falsity of the recital and come to a conclusion”.

103. The Tribunal has carried out the aforementioned exercise of appreciating the evidence on record and thereafter deciding the issue as to whether the delay in completion of the project was attributable to the Respondent as recorded in the recital. The genuine doubt of the Recital was raised by the Respondent in the arbitral proceedings. It has been the Respondent’s contention that the delay was not attributable to it and was attributable to the Petitioner. It is after appreciating the evidence on record that the Tribunal has held in favour of the Respondent on the issue of delay in completion of the project.

104. The Tribunal has held that the Petitioner had not considered time to be of the essence of the contract, and this after considering that the Petitioner had upon execution of the Deed of Settlement not terminated the contract and instead from time to time extended the time to complete the works by the Respondent. The material on record shows that the Respondent completed the work at site after the timeline set in the contract and Deed of Settlement by attending to all snags pointed out by the Petitioner from time to time. There were delays which were attributable to third parties and not to the Respondent as borne out from the material on record. Accordingly, the Tribunal has held that the invocation of the Bank Guarantees by the Petitioner was wrongful and granted the Claim of the Respondent.

105. The Tribunal has also appreciated the evidence on record whilst granting the Claims in favour of the Respondent regarding additional expenditure incurred by the Respondent during the extended period of the contract and additional expenditure incurred for retaining its machinery, tools and other equipment at site during the extended period of contract. This upon finding that the delay is not attributable to the Respondent. There was no cross examination by the Petitioner on the claim of additional expenditure incurred by the Respondent. These findings of the Tribunal are not only a plausible but a correct view and in any event merits no interference in a Section 34 Petition.

106. It is well settled that in a Section 34 Petition, the evidence cannot be re-appreciated, particularly where the Tribunal has appreciated the evidence and come to a possible view. In Associate Builders (Supra) the Supreme Court has held in paragraph 33 that “A possible view by the arbitrator on the facts has necessarily to pass muster as the arbitrator is the ultimate master of the quantity and quality of evidence to be relied upon when he delivers his arbitral award”. A similar view has been taken in MSEDCL (Supra) at paragraph 51 and Ssangyong Engineering (Supra) at paragraph 38 as well as Delhi Airport Metro Express Pvt. Ltd. (Supra) at paragraph 29, which have been relied upon by the Respondent. The Petitioner by raising such grounds of challenge to the impugned award is treating the Section 34 Court as if it is a Court of First Appeal and which the aforementioned decisions relied upon by the Respondent militate against.

107. The Claims which have been raised by the Respondent on completion of works; for additional built up area; for non tender items; apart from the aforementioned Claim for delay are Claims which have been considered by the Tribunal after appreciation of evidence and thereafter finding in favour of the Respondent. Further, the Tribunal has interpreted the contract and which interpretation is a possible view which in no event can be disturbed by a Section 34 Court. Thus, it is not open for a Section 34 Court to go into the details of each Claim and / or consider whether the Tribunal has appreciated the evidence appropriately. This given the settled law that a Section 34 Court can only disturb the Award where there is a patent illegality on the face of the Award or perversity in the findings. This Court finds that neither of the aforementioned have been established by the Petitioner in their challenge to the Arbitral Award under Section 34 of the Arbitration and Conciliation Act, 1996.

108. The findings on interest and costs by the Tribunal in favour of the Respondent is also upon appreciation of the evidence on record viz. that the delay was not attributable to the Respondent. Hence these findings also call for no interference by a Section 34 Court.

109. I further find that the Tribunal having come to the conclusion that the delay was not attributable to the Respondent has rejected the counter claim of the Petitioner for liquidated damages and this too after appreciating of evidence and interpretation of contract which interpretation is a possible view, and hence this Court cannot interfere with such findings of the Tribunal.

110. I am also of the view that the finding on adverse inference to be drawn against the Petitioner for non production of the best evidence in defence, by upholding the Respondent’s claim that the Petitioner failed to timely provide the GFC drawings are on an appreciating of evidence. Further, it is settled law that where a party fails to produce evidence which could have produced to prove a particular fact that it asserts then that fact of non production of the same ought to be presumed as the evidence being unfavourable to it and an adverse inference with respect to the same ought to be drawn as per Section 114(g) of the Evidence Act.

111. I find no valid grounds of challenge to the impugned Award has been raised in the Petition by the Petitioner. This upon considering that the grounds of challenge do not fit within the parameters of the Section 34 of the Arbitration and Conciliation Act.

112. Accordingly, the Commercial Arbitration Petition is dismissed. There shall be no order as to costs. [ R.I. CHAGLA J. ]