The main legal point established in the judgment is the principle that there cannot be any variance between pleading and proof, and the requirement for evidence to support the quantification of claims.

Pradeep Nandrajog, J.

1. OMP No. 392/2001 and OMP No. 393/2001 which laid a challenge to two awards dated 27.7.2001 and 28.7.2001 were disposed of by passing a detailed judgment dated 25.1.2006 in OMP No. 392/2001 and a short order passed in OMP No. 393/2001. The two awards pertain to agreements No. 1/EE/DD-VIII/86-97 and No. 41/EE/DD-VIII/86-97. The awards were challenged qua claim No. 9 by filing objections under Section 34 of the Arbitration & Conciliation Act 1996.

2. Learned Counsel for the parties conceded that both contracts were pari materia and spanned around the same time and nature of disputes were near identical, and in any case, pertaining to claim No. 9 raised by the Respondent, where sums awarded by the learned Arbitrator are ' 14,28,801/- in award dated 27.7.2001 and ' 15,14,800/- in award dated 28.7.2001, the legal issue which arises for consideration with respect to the challenge to the award is the same.

3. Undisputably, both contracts had a clause numbered 10CC which stipulated that price increase in cost of labour and material would be recompensed to the contractor on the formula prescribed in the clause and suffice would it be to note that in the decision pronounced by a Division Bench of this Court reported as 1999 (1) Arb.L.R. 88 DDA v. U. Kashyap which was followed by another Division Bench in the decision reported as 2001 (II) AD (Del) 116 DDA v. K.C. Goel and Company, with reference to the decision of the Supreme Court reported as 1991 (2) Arb.L.R. 180 Associated Engineering Company v. Govt. of A.P. and Anr. it was held that where the contract specifies the method to recompense the contractor for escalation in the price of material and labour, the same would hold good even during the extended period of work. Same view has been followed by another Division Bench of this Court in the judgment reported as 2000 (7) AD (Del) 743 DDA v. S.S. Jetley.

4. Learned Counsel for the parties were not in dispute that as per said decisions it was clear and that there was no scope for any argument that where a contract got prolonged beyond the stipulated date of completion, irrespective of who was at fault, price escalation towards material and labour had to be determined and paid as provided in the contract and in the instant case pertaining to the two contracts, the same had to be as per the formula prescribed in Clause 10CC of both contracts.

5. With reference to the decision reported as 2006 (11) SCC 181 McDermott International Inc. v. Burn Standard Company Ltd. and Ors. as also the decision in K.C. Goel's case (supra), learned Counsel for the parties conceded that a claim for damages, other than a claim for recompense on account of contract being prolonged, could be entertained by an Arbitrator, but the said claim for damages would require adjudication on proof of damages (not including the cost incurred towards material and labour on actual basis for the reason said escalation was agreed to between the parties as per contract to be determined as per an agreed formula), and on proper pleadings.

6. Mercifully and fortunately for us, learned Counsel were not at variance with the legal principles and lest the reader of our decision is left wondering as to what then are we adjudicating, we highlight that we are adjudicating whether the principle of law, well recognized, that there cannot be any variance between pleading and proof as held in various decisions, only one which we highlight being the decision reported as 2004 (6) SCC 341 M. Chinnaswamy v. K.C. Palanisamy and Ors. would be applicable before an Arbitrator in the context of an arbitration under the Arbitration & Conciliation Act 1996 keeping in view the law laid down by the Supreme Court in the decision reported as AIR 2003 SC 2629 ONGC Ltd. v. Saw Pipes Ltd.

7. We extract the reasoning of the learned Arbitrator pertaining to claim No. 9 (noting that it is pari materia in both awards) and since learned Counsel for the parties had argued with reference to