The Court emphasized the limited scope of correcting errors within the jurisdiction of the arbitral tribunal and the importance of evidence and jurisdiction in assessing claims under the relevant contract clause.

1. The Court : Sufficient grounds have been made out as to why the appellant was not represented on January 5, 2017, when the appeal and the connected application under Section 5 of the Limitation Act, 1963 were dismissed for default. The order dated January 5, 2017 is recalled and GA No.3754 of 2016 and APO No.348 of 2016 are restored to the file.

2. The restoration application, GA No.397 of 2017, is allowed as above, but without any order as to costs.

3. In view of the good grounds shown in the application under Section 5 of the Act of 1963, the marginal delay in preferring the appeal is condoned and the appeal is taken up on merits.

4. The appellant, who was engaged for refurbishing the waiting halls at nine railway stations, challenges an order under Section 34 of the Arbitration and Conciliation Act, 1996 setting aside a portion of the amount awarded by the arbitral tribunal. By the order impugned dated November 3, 2016, the claim on the relevant head has been reduced from Rs.23.10 lakh to Rs.8.93 lakh.

5. It is evident from the award that in course of the reference before the tribunal, fresh measurements were directed to be taken. The tribunal desired that to the extent the railways agreed with the contractor as to the claim, the same should be recorded and a separate column should be made in course of the measurement, noting the non-agreed issues. The measurement was carried out according to such directions. The tribunal found that the claim of the contractor included claims for at least four other stations that were not within the scope of the work. The tribunal deducted a sum of about Rs.1.53 lakh on such account and allowed the balance claim of the contractor on the ground that the work of the total value as claimed by the contractor was found to have been done, but the railways claimed that a part of such work had not been done by the contractor but had been executed by some other agency.

6. The arbitral tribunal noticed that there was an order of this Court restraining the balance work to be done or completed by any agency other than the contractor herein. The arbitral tribunal noticed the date of completion of the work and came to a conclusion that such part of the work which the railways claimed had been completed by another agency had, in fact, been executed by the contractor herein.

7. The arbitral tribunal also dealt with the contention of the railways that the additional payment which the contractor sought and which was denied by the railways was in respect of excepted matters. The tribunal referred to the relevant clause 45 of the general conditions governing the contract and opined that the circumstances had not arisen for such matter to be regarded as an excepted matter.

8. It is necessary, at this stage, to notice the discussion in the award on such aspect of the contractor’s claim:

“Sr DEN/East vide his undated letter raised the plea that non-agreeable measurements are ‘excepted matter’ in term of Clause 63 of GCC read with Clause 6 of the GCC and as per rulings of SC in case between GM/NR Vs. Sarvesh Chopra, tribunal cannot consider these. After reading these documents, the arbitrators are of the view that the documents do not substantiate the presumption of Respondent that payment for non-agreed measurements as ‘excepted matter’. At the first place the whole of Clause 45 is not excepted matter. Only Clause 45(a) is an excepted matter in terms of clause 63 of GCC. As far as non-agreeable measurements are concerned, these measurements are taken for the first time after this AT was constituted and upon its directions. Thus the situation contemplated under Clause 45(a) has never reached as far as the measurements are concerned. Thus the Respondent’s plea cannot be given any cognizance. From the details given by Respondent it is observed that these non-agreeable works were executed either from 19/10/00 to 03/3/03 when the Claimant’s contract was effective or in the period when Court’s injunction was effec