Rajiv Shakdher, J.;—

1. By an order dated 22.11.2011 a Division Bench of this court which comprised of Sanjay Kishan Kaul, J and myself (Rajiv Shakdher, J) the captioned appeal was referred to a Larger Bench, to examine the issue as to whether the court while entertaining a petition under Section 34 of the Arbitration & Conciliation Act, 1996 (hereinafter referred to as the Arbitration Act) could issue notice restricted to some or one of the grounds on which the award of arbitrator is impugned. A Division Bench of this court in the case of Simplex Engineering & Foundry Works Pvt. Ltd. & Ors. vs Ministry of Railways & Anr. (2011) 184 DLT 640 has come to the conclusion that it is impermissible under the provisions of the Arbitration Act for a court to issue a notice limited to some or one of the grounds of challenge articulated in the petition filed under Section 34 of the Arbitration Act.

GENERAL BACKGROUND

2. For the sake of completion, we may also note that the initial judgment passed on 09.09.2011, in the Simplex case, was corrected on 18.11.2011, as a typographical error had crept in the last paragraph of the said judgment.

3. The issue before the Bench, therefore, is confined to an inquiry as to whether, in law, there is any impediment in the court issuing, what we would hereon refer to as, for the sake of convenience, limited notice, in a petition under Section 34 of the Arbitration Act.

3.1 The appeal in the instant case came to be filed, as a Single Judge of this court vide order dated 03.11.2009, had opined, (which is the order impugned in the appeal) that the issue which arose in the Section 34 petition was covered, according to the learned Single Judge, by a judgment of another Single Judge of this court in the case of Punj Lloyd vs National Highway Authority of India, passed in OMP No. 340/2008, dated 17.02.2009; which on being challenged by the appellant, was pending adjudication before the Supreme Court. The learned Single Judge, therefore, directed issuance of limited notice to await the judgment of the Supreme Court in the Punj Lloyd case. The petition was, however, adjourned “sine die” giving liberty to the parties to seek revival of the petition after the disposal of the said special leave petition.

3.2 This is how the matter travelled to the Division Bench and thereafter to the present Bench. In this reference, we are therefore not called upon to examine the merits of the case. However, only to provide a contextual framework of the issue at hand, we propose to touch upon the broad contours of the dispute.

FACTS OF THE CASE

3.3 It is noticed that the petitioner had awarded a contract to the respondent, which is a joint venture company between Oriental Structural Ltd. & GAMMON India Ltd. for four lanning and strengthening of existing two land sections from km. 199.66 in Agra to km. 250.50 of NH-2 to Makhanpur, in the State of U.P.

3.4 The contract was awarded on 26.03.2002, at a lump sum price of 328,49,37,824/-. Twenty percent (20%) of the contract price was payable in USD, at a fixed rate of exchange of 1 USD equivalent to Rs 48.09. Disputes arose between the parties qua the delay in execution of the first section of works carried out between 29.03.2002 and 30.06.2003. The respondent raised a claim for Extension of Time (in short E.O.T). The respondent sought extension, it appears initially, for a period of 236 days, on the ground that delay was attributable to the appellant. The reasons advanced by the respondent were with regard to delay in issuance of drawings and instructions, unforeseen physical obstructions and the failure to provide clear access to the site where works at hand had to be executed.

3.5 According to the appellant, even though permissible under the contract, no compensatory cost was sought by the respondent; though this claim could have been made, subject, however, to a timely notice being served upon the appellant under clause 53.1 of the conditions incorporated in the contract. It appear