JUDGMENT :

M.R. Shah, J.

1. Feeling aggrieved and dissatisfied with the impugned judgment and order dated 14.08.2018 passed by the High Court of Delhi at New Delhi in FAO(OS) No.112 of 2018 by which the High Court has partly allowed the said appeal, the Indian Railway Construction Company Limited (hereinafter referred to as “IRCON”) has preferred the present appeal.

2. The brief facts leading to filing of the present appeal in nut-shell are as under:

2.1 That, an Agreement was entered into between IRCON and the respondent – M/s. National Buildings Construction Corporation Limited (hereinafter referred to as “NBCC”), whereby the respondent was awarded the work of construction of Railway Station cum Commercial Complex at Vashi, Navi Mumbai at a cost of Rs.3042.91 lakh, to be constructed within a period of 30 months from 05.04.1990. NBCC failed to complete the work in time. Thereafter, the supplementary agreements were entered into between the parties. As the provision for grant of advances had exhausted, NBCC approached IRCON with modified programme for completion of works and sought for additional financial aid on certain terms and conditions. IRCON in consultation with CIDCO, agreed to grant advance as a special case against Bank Guarantee. Accordingly, a supplementary Agreement dated 17.12.1991 was entered into between the parties providing for special advance of an amount of Rs. 68 lakhs bearing interest at the rate of 18% per annum on furnishing of Bank Guarantee. In terms of the supplementary Agreement dated 17.12.1991, a special advance of Rs.68 lakhs was also given to NBCC. As there was delay in the work of NBCC and the work was practically abandoned and came to a standstill, IRCON served on NBCC a notice dated 21.02.1994 terminating the contract relying upon Clause 60.1 of the Agreement.

2.2 That, thereafter, after some litigation before the Delhi High Court, the NBCC invoked the arbitration clause. The Arbitral Tribunal was constituted. The Arbitral Tribunal passed the award dated 04.11.2011. That the Arbitral Tribunal rejected the NBCC’s claim for refund of two security deposits i.e. Claim Nos.33 and 34. While holding so, the Arbitral Tribunal held that though termination with reference to Clause 60.1 was bad in law, but justified the termination with reference to Clause 17.4 of the Contract and consequently rejected the NBCC’s claim for refund of two security deposits i.e. claim Nos.33 and 34. The Arbitral Tribunal also partly allowed Counter Claim No.3 in favour of IRCON. Counter Claim No.3 was relatable to the counter claim of IRCON for a total of Rs.3,65,38,806/- towards interest on various advances given to NBCC, more particularly, with regard to two specific advances being (1) Special Advance and (2) Advance against hypothecation of equipment.

2.3 Feeling aggrieved and dissatisfied with the award passed by the learned Arbitral Tribunal and insofar as relating to Claim Nos.33 and 34 and the Counter Claim No.3 which were in favor of IRCON, the NBCC approached the High Court by filing an application under Section 34 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as “Arbitration Act”). The application under Section 34 of the Arbitration Act was confined to the aforesaid three claims/counter claims respectively viz. Claim Nos.33 and 34 and Counter Claim No.3 only.

2.4 By the judgment and order dated 03.03.2017, the learned Single Judge of the High Court set aside the rejection by the learned Arbitral Tribunal of Claim Nos.33 and 34 of NBCC to the extent it concerned the return of security deposit amounts i.e. Rs.5,57,486/- + Rs.60,85,840/- by observing and concluding that once the Arbitral Tribunal found that the termination with regard to Clause 60.1 was not justified, it was not open for the Arbitral Tribunal thereafter to consider the termination under Clause 17.4 justifying forfeiture of the security deposits. The learned Single Judge of the High Court also set aside the award passed by the learn