By this petition filed under section 34 of the Arbitration & Conciliation Act, 1996 (for short “Arbitration Act”) the petitioner has impugned the arbitral award dated 26th November, 2011 and a clarificatory award dated 22nd February, 2012 passed by the learned arbitrator allowing some of the claims made by the respondent and dismissing the counter claims made by the petitioner. Some of the relevant facts for the purpose of deciding this arbitration petition are as under :-

2. The petitioner herein was the original respondent, whereas the respondent herein was the original claimant in the arbitral proceedings.

3. On or about 26th June, 1998, the petitioner issued a public invitation for pre-qualification of bids for the award of contract for the proposed work of modernization of the existing Marine Oil Terminal and berths/jetties J1, J2 and J3 at their multi-user and multi-cargo Marine Oil Terminal at Jawahar Dweep based in the Mumbai Harbour. The petitioner also arranged for pre-bid meetings and visits to the site of work which were attended by the respondent along with other prospective bidders. The petitioner had also sent replies to various queries asked by the bidder's numbering 117 to all the bidders together with addendum No.1.

4. On 17th January, 2000, the respondent submitted its bid comprising of technical and price bid to the petitioner aggregating to Rs.144,44,25,199/-. On 19th September, 2000, the petitioner issued its initial letter conveying acceptance of the bid submitted by the respondent. On 28th September, 2000, the petitioner issued a detailed Letter of Acceptance to the respondent. It is the case of the petitioner that in the said Letter of Acceptance issued by the petitioner, it was made clear that the bid price of the respondent would be inclusive of Customs and Excise Duties.

5. On 6th October, 2000, the parties entered into a full – fledged agreement in respect of the work covered under the said contract. The said agreement provided priorities of contract documents in a particular sequence. It is the case of the petitioner that the Invitation for Prequalification bids did not form part of the contract.

6. On 16th October, 2000, the petitioner issued a letter instructing the respondent to commence the work. The period of completion of work was stipulated as 32 months from the date of commencement, including the period of monsoon. The stipulated date of completion was thus 15th June, 2003.

7. It is the case of the petitioner that due to gross delay on the part of the respondent, the respondent applied for extension of time for delay upto 31st March, 2003, for delays during 1st April, 2003 to 10th December, 2003 and for delays during 11th December, 2003 to 10th June, 2004. The Engineer granted total extension of 177 days to the respondent. It is the case of the petitioner that the date of completion of the work thus stood extended to 9th December, 2003, the respondent however completed the work under the contract on 28th December, 2004. It is the case of the petitioner that in view of inordinate delays in execution of the work by the respondent, the petitioner deducted a sum of Rs.4,31,74,152/- as per the contract conditions by way of liquidated damages out of the moneys payable by the petitioner to the respondent under the concerned interim bills raised by the respondent.

8. On 29th March, 2004, the respondent filed Arbitration Petition (288 of 2004) under section 9 of the Arbitration Act in this Court in respect of the deduction of the liquidated damages made by the petitioner from the interim bills raised by the respondent. By an order dated 30th June, 2004, this Court directed the petitioner to deposit the said sum of Rs.1,41,82,944/- in this Court and directed to take steps for constitution of the arbitral tribunal to decide the dispute. This Court disposed of the said arbitration petition.