JUDGMENT :

Shekhar B. Saraf, J.

1. The petitioner in the instant application [being A.P. 288 of 2020] under Section 34 of the Arbitration and Conciliation Act, 1996 [hereinafter referred to as ‘the Act’] is a statutory authority under the Major Ports Trusts Act, 1963. The Board of Trustees for Shyama Prasad Mookerjee Port, Kolkata (earlier known as the Board for the Port of Kolkata), inter alia, carries on the management and administration of the docks and also the lands of such port trust authorities.

2. The respondent is a joint venture company, M/s Universal Seaport Private Limited, incorporated for the purpose of executing a contract for the purpose of supply, operation and maintenance of various cargo handling equipment at berth no. 4B, Haldia Dock Complex at Kolkata Port Trust. The said respondent company is a consortium of M/s. Ocean Connection Pte. Ltd., M/s/ Seapol Ports Private Limited and M/s Euro Maritime Pte. Ltd.

3. The petitioner has challenged the Award [hereinafter referred to as ‘Award’] dated January 10, 2020, as further revised by an additional award dated March 14, 2020, passed by a Sole Arbitrator [herein after referred to as ‘Arbitrator’]. An application for stay of the Award [IA No. GA 1 of 2020 in A.P. No. 288 of 2020] was also filed. An Execution Application was filed by the Respondent, being E.C. 98 of 2022. All the applications are being conjointly decided.

Relevant Facts

4. The relevant facts for the determination of the dispute are as stated below:

a) The petitioner vide reference Tender Notification No. Ad/EQP/4B-HDC/2012 floated a tender (‘Tender’) for supply, operation and maintenance of various cargo handling equipment at a specified place that is berth no. 4B, Haldia Dock Complex at Kolkata Port Trust (‘KoPT’). The Tender was predominantly for the purpose of handling dry bulk cargo at Berth No 4B, Haldia Dock Complex (‘HDC’) at KoPT.

b) Clause 5.5 (all references to clauses must be understood to be references to the Tender, unless specified otherwise) pertaining to evaluation of price bid, provided that the tenderers are to submit their price bids as per format (Schedule of Rates) given by Appendix-XV of the Tender. It further stated that the rate to be quoted by the tender-applicants should be less than the ceiling rate of Rs. 52/-per ton. Failing the above mentioned criteria, any bid was bound to be summarily rejected. Lastly, it provided for the lowest bidder to be considered the successful tenderer and to whom the contract would be awarded.

c) The respondent was the successful bidder with the lowest bid of Rs. 51.91/- per ton. Accordingly, a long term agreement for 10 years, dated 22nd June, 2013 (‘Agreement’), was entered into between the petitioner and the respondent for the aforesaid purpose at the agreed contractual rate of Rs. 51.91/- per ton. The Agreement incorporated the Tender, besides other documents as part of itself. The Tender is relevant for determination of the said dispute.

d) The terms of the Tender provided for a general escalation clause (Clause 8.2.2.) as well as a price adjustment clause to be utilized for variation in fuel cost (Clause 8.2.1).

e) It must also be noted that clause 8.1 provided for determination of the rate for handling of break bulk cargo, which though not the predominant subject of the Agreement or Tender, may have arisen in certain circumstances. It is here that the Tender incorporated usage of Schedule of Rates (‘SoR’) issued by Tariff Authority of Major Ports (‘TAMP’) in order to dete