Rajiv Shakdher, J.

1. This is a petition filed under Section 34 of the Arbitration and Conciliation Act, 1996 (in short the Act) to assail the award dated 24.02.2013.

2. The petitioner has challenged the findings returned with respect to three claims. The fourth claim, which relates to cost of arbitration, is obviously not challenged because the arbitral tribunal has not awarded any amount in respect of the same to the respondent. The respondent is the original claimant before the arbitral tribunal. The petitioner herein evidently had raised no counter claim.

3. Insofar as claim No.1 is concerned, which pertains to dispute No.7, as between the parties, as told to me, was decided in favour of the respondent in view of the fact that it was covered by a judgment of the Division Bench of this Court dated 14.08.2013, passed in FAO(OS) No.366/2013 titled M/s National Highways Authority of India vs. M/s Gammon-Atlanta (JV). This aspect was recorded by me, in my order dated 30.09.2013.

4. Therefore, all that I am required to consider is: the petitioner’s objection to claim No.2, which I am told pertains to dispute No.8; and claim Nos. 3(a), 3(b) and 3(c), which relate to: “past”, “pendente lite” and “future interest”.

5. Under claim No.2, the arbitral tribunal has awarded a sum of Rs.2,29,50,919/-. In respect of past period (which is the pre-reference period), interest has been awarded at the rate of 12% p.a. compounded monthly; as per the terms of clause 60.8 (b) of Conditions of Particular Application (COPA), whereas for pendente lite and the period post the date of the award, it has been granted at 12% simple.

6. With the aforesaid preface in place, let me first deal with the grievance of the petitioner vis-à­is claim No.2.

6.1 This claim has arisen on account of the fact that during the execution of the work, certain items of the Bill of Quantities (BOQ) were omitted. According to the respondent, the omission of BOQ items resulted in loss of overheads and profits. The claim, thus, pertained to reimbursement sought on that account. Though the petitioner claims that the respondent was responsible for not executing the BOQ items in issue, from the material retrieved at site, the respondent takes a completely different stand, which is that no specific directions were issued in that behalf.

6.2 It is not in dispute, though, that the respondent vide letter dated 04.04.2008 called upon the engineer appointed to issue, the necessary variation order, under clause 52.1 of the General Conditions of the Contract (GCC). The respondent sought a variation order, valued at Rs.20,14,58,749/-.

6.3 The loss claimed towards overhead and loss of profit was a percentage point of the said value. The arbitral tribunal awarded 8% for loss of overheads and 10% qua loss of profit (including loss of profit on overhead charges). The cumulative figure awarded was Rs.2,29,50,919/-.

6.4 In the context of the above, it requires to be noticed that it is also not in dispute that the engineer, vide letter dated 03.11.2008, indicated to the respondent, that no variation order could be issued at that stage, as the contract was in the process of execution. In other words, stand taken by the engineer was that the request made for issuance of a variation order at that point in time was pre-mature.

6.5 The respondent, appears, to have carried its grievance to the Dispute Resolution Board (in short the DRB) under sub-clause 67.1 of COPA. The DRB apparently came to the same conclusion; which is how, the matter got referred to the arbitral tribunal. Pertinently, though the petitioner took a preliminary objection with regard to the arbitral tribunal not having jurisdiction in the matter as no decision was rendered by the DRB, the arbitral tribunal rejected the petitioner’s preliminary objection under Section 16 of the Act. The grievance vis-à­is the rejection of the preliminary objection has not been pressed before me, on behalf of the petitioner.

SUBMISSIONS OF COUNSELS

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