IMPORTANT POINT
Setting aside arbitral award – Dissenting opinion would not receive level and standard of scrutiny which majority award which is under challenge is subjected to – A dissenting opinion cannot be treated as an award if majority award is set aside.

JUDGMENT

S. Ravindra Bhat, J.

All these appeals involve decision on a common question, with respect to the interpretation of a contract condition, which required the measurement of quantities used for payment for embankment construction with soil or with pond ash. The claimants (hereafter "the contractors") contended that the measure is one and the same, which is by taking a composite cross section as a whole of the embankment and determining the volume by the average end area method. However, the supervising engineer (hereafter "EE") adopted a method, whereby the area of the cross section was bifurcated to account for the area occupied by soil and pond ash for the determination of quantum of the embankment in two different items. The contractor urged that this was contrary to the technical specification (hereafter "TS") clause 305.8; the National Highways Authority of India (hereafter "NHAI") justified the EEs interpretation. Since there have been different outcomes in all these appeals, and the impugned judgments in some of them have relied upon the judgment of the Division Bench of the Delhi High Court, in CA 4658/2023¹[ Arising out of SLP No. 38162/2012, which was directed against the judgment of the Division Bench of the Delhi High Court dated 08.11.2012 in FAO (OS) No. 48/ 2012] (hereafter referred to as "the main judgment") the facts and decisions, in that appeal would be alluded to.

2. NHAI awarded, to the contractor the work of construction of the Allahabad by-pass project in U.P. by agreement dated 02.06.2004. The project was completed. However, certain disputes arose inter se the parties with reference to different areas of the contract; these were referred to arbitration. NHAI has an inbuilt resolution mechanism, i.e., a Dispute Resolution Board ("DRB") consisting of technical experts in the field, to which matters are first referred to. Since the contractor was not satisfied with the opinion of the DRB, in terms of the agreement, it could and, did invoke the arbitration. The disputes in the present case culminated in a reference to the arbitration of three technical persons, who after considering the rival viewpoints and the materials before them, made the award²[Award dated 30.03.2010]. The award was unanimous on most questions while, on others, there was a dissenting view of one of the arbitrators.

3. The contractor, aggrieved by both the unanimous view and the majority view preferred objections under Section 34 of the Arbitration and Conciliation Act, 1996 ("the Act"). A learned single judge rejected the petition³[By the order dated 30.11.2011]. The single judge was of the considered opinion that as far as measurement aspects were concerned, the tribunals majority opinion reflected a plausible and reasonable view that did not call for interference:

"26. As regards non-payment for, executed work of embankment which forms the subject matter of Disputes 2 and 4, this is purely a question of fact based on the measurement. There is no dispute in relation to the construction of the embankment that is covered under item 2. 02 (a) of the BOQ. In fact, NHAI has already paid HCC for the said construction. Clause 305.8 of the MORTHTS provides for measurement of the cross section of the embankment as one whole composite section and paid under item No.2.02(b). The decision of the majority members of the Arbitral Tribunal based on an analysis of the material before them was a possible view to take. Merely because another view as evidenced by the dissenting opinion is possible interference by this Court under Section 34 of the Act is not warranted."

4. NHAI appealed to the Division Bench, which set aside the decision of the learned single judge, and held that the tribunals majority view, and award, were based on an implausible interpretation of the contract. It was held, in the impugned order that:

"[..] On a conjoint reading o