JUDGMENT :

[Goutam Bhaduri, J.]

1. The instant appeal is against the judgment dated 19.02.2018 passed by the Commercial Court (District Level) Raipur whereby the arbitral award dated 12.02.2017 passed by the Sole Arbitrator u/s 34 of The Arbitration and Conciliation Act, 1996 was affirmed.

2. The brief facts of the case are that on 30-10-2006, a Notice Inviting Tender (NIT) for construction of rehabilitation poleless activities and associated works in external plant of Raipur City was invited and thereafter in the month of November, 2006 the bids were opened and the tender work was awarded to M/s. S.D. Construction Ambikapur for Rs.1,09,13,400/-. Subsequently, the contract agreement was executed between the appellants and respondent S.D. Construction on 11.06.2007. The contract period was extended from time to time. Firstly it was extended from 11.06.2008 to 10.092008, thereafter from 11.09.2008 to 10.12.2008 and lastly from 11.12.2008 to 31.01.2009.

3. The respondent S.D. Construction claimed the amount for enhanced estimated cost, but since it was in dispute, the money was not released with respect to balance payment, as such, the arbitration clause was invoked by the respondent. Since the arbitrator was not appointed, consequently on application being filed u/s 11(6) of the Arbitration and Conciliation Act, 1996 (for short the “Act of 1996”), the sole arbitrator was appointed by this High Court vide order dated 13.03.2013 for resolution of dispute between the parties. Pursuant to the arbitration proceedings, the statement of claim was filed by the respondent and thereafter, reply thereto was filed by BSNL/appellants herein on 07.02.2014. In the meanwhile, the arbitrator laid down the process of business and the affidavit was initially filed by the claimant/respondent on 10.10.2014. Thereafter, the final affidavit was filed on 05.08.2015 in lieu of examination-in-chief and reliance is placed on it. The appellants sought for production of documents from the claimant contractor on 02.01.2016 and also filed an application on 08.05.2016 seeking opportunity to cross-examine the claimant witnesses. The learned sole arbitrator rejected the application of the BSNL/appellant and subsequent thereto, the affidavit of respondent was filed on 15.07.2016. Thereafter, the arbitral award was passed on 12.02.2017. Being aggrieved by the arbitral award, it was challenged by the BSNL before the Commercial Court wherein the impugned order dated 19.02.2018 was passed by the Commercial Court. Hence this appeal.

4. (a) Mr. Sandeep Dubey, learned counsel appearing for the appellant would submit that the Letter dated 02.04.2009 on which the entire award is based which was filed as Annexure C-6 along with the memo of application does not conform the fact that the additional work was carried out. Referring to the order sheet dated 08.05.2016 of the Sole Arbitrator, the learned counsel for the appellant would submit that production of document sought for was wrongly disallowed merely on the ground that the respondent contractor is not in hold. He would submit that in order to process the work done and to prepare the bills for the works to be done, certain norms are required to be followed, but the reliance which has been placed by the arbitrator on bills is the outcome of reply against RTI application of one Balchand, therefore, the same cannot be admitted to that of work done by the respondent contractor. Referring to the letter Annexure A-6, learned counsel submits that in such letter, the contractor admitted the fact that only Earnest Money Deposit (EMD) and Security Deposit (SD) are required to be returned, therefore, having given the letter, it would operate as an estoppel against the contractor to raise any further claim. The other letters dated 03.09.2010, 09.08.2011, 20.09.2011 and 10.07.2012 were referred to by the counsel to show that all these letters would only speak about the refund of Security Deposit and Earnest Money Deposit.

4(b) It is furt