IMPORTANT POINT
The interpretation of a contract is within the scope and jurisdiction of the Arbitral Tribunal, and the interference is only warranted when the Tribunal has traveled beyond the terms of the contract or the interpretation shocks the conscience of the Court.

JUDGMENT :

Harish Tandon, J.

1. The appellant raises a seminal point on the scope of Section 37 of the Arbitration and Conciliation Act, 1996 in relation to an interpretation of a contract entered into between the parties.

2. A prelude to the dispute between the parties are succinctly jotted down in order to the determine the question raised in the instant appeal more particularly the nature of a contract. Indubitably, the appellant took a conscious decision to develop the Baratang Jetty and a detailed project report was prepared containing various components viz., dredging of sea bed in the channel at the mouth of Middle Strait Creek, Construction of 12 nos. Navigational Aids founded on RCC bored case in the situ piles, Construction of RCC Jetty on pile foundation connecting the shore with RCC piled approach, etc.

3. Pursuant to the Detailed Project Report (DPR) a Notice Inviting Tender was published and advertised together with a Request For Qualification (RFQ) on 3rd December, 2014 for the aforesaid purposes. The intending purchasers were further directed to submit their bid in accordance with Request for Proposal (RPF) and Draft Concessional Agreement in format attached thereto. The respondent submitted the bid as contained in the Notice Inviting Tender in the requisite format and was found the lowest bidder and a Letter of Acceptance was issued on 31st January, 2016 followed with an agreement signed by the parties on 10th March, 2016.

4. It is also not in dispute that the project was completed but the respondent claimed right under the concession agreement, which was denied by the appellant treating such agreement under the EPC project which raises a dispute to be resolved through the Arbitral Tribunal. For the purpose of record, prior to taking recourse to determination of dispute through an Arbitral Tribunal, the parties have to pass through the Dispute Resolution Mechanism which in fact was exhausted and ultimately, the Arbitral Tribunal was constituted consisting of three members in terms of the arbitration clause.

5. The claims are jotted down as under:-

Claim No.1 To declare that this Agreement dated 10th March, 2016 is in the nature of a concession agreement and consequently direct the respondent to hand over the project site for creating facilities and collect user fee/toll.

Claim No.1A: To direct the respondent to pay a sum of Rs.10,68,62,175/- towards difference in cost of project and grant provided.

Claim No.2: Claim towards compensation for the loss of revenue from the date of completion to the date of handing over of the site.

Claim No.3: Claim towards additional expenses incurred due to re-design in live load from 1T per Sq.Mt to 2T per Sq.mt.

Claim No.4: Claim towards interest on delay in release of Security Deposit collected against contract conditions.

Claim No.5: Claim towards damage to Pile by DSS vehicle ferry.

Claim No.6: Claim towards service tax and GST unpaid.

Claim No.7: Claim towards interest for the claims upto pre-reference period i.e., from 20.2.2018 to 15.2.2019.

Claim No.8: Claim towards interest for the period pending litigation and post award till realization of amount.

6. The appellant made counter claims in the following:

Claim No.1: Cost of Arbitration

(a) Arbitrator hearing

(b) Cost of Learned Counsel

(c) Travelling charges of the Department Officials, Counsel, Venue charges etc.

(d) Manpower (4 Officers, 2 Clerks, Cost of Typing, Stationery, Photostat, Binding)

Claim No.2: Interest on cost of materials issued to the claimant (R153).

Claim No.3: Payment made to the claimant due to oversight.

Claim No.4: Extra amount paid to the claimant due to change of depth of fascia beam and top level of jetty at approach.

7. Out of three members constituting the Arbitral Tribunal, two of its member jointly published the award whereas the third Arbitrator dissented with the view taken by the majority. The majority view of Arbitral Tribunal would reveal that the counter claim filed by the appellant was rejected in toto whe