The central legal point established in the judgment is the significance of the arbitrator's interpretation of contract terms and the relevance of the parties' conduct in determining the outcome of claims under the Arbitration and Conciliation Act.

JAYANT NATH, J.

1. This order is passed in continuation with the order dated 31.1.2018. I have heard learned counsel for the respondent. The contents of the order dated 31.1.2018 are somewhat repeated herein for the sake of continuity of the order.

2. This petition is filed under Section 34 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the Act) seeking to set aside a part of the Award dated 15.11.2017 passed by the learned Arbitrator.

3. The brief facts which come out from the petition are that the petitioner is a Central Public Sector Enterprise for the Government of India. It had invited bids for the Civil and Structural Works of Linear Low Density Polyethylene and High Density Polyethylene Unit of the petitioner’s petrochemical complex in Dibrugarh, Assam. The respondent emerged as L1 bidder and its bid was accepted. Letter of acceptance dated 08.02.2010 was issued by the petitioner to the respondent. Engineers India Ltd. was the Engineer-in-Charge for the contract. It is pleaded that the date of commencement of the contract was 17.12.2009 and the time for completion was 18 months. The contract completion date was 16.06.2011. 75% of the original time schedule of the contract applicable for claiming price variation/escalation for Structural Steel and Reinforcement Bar as provided in Clause 44 of the Special Conditions of the Contract was said to be 30.01.2011. The actual date of completion of the contract was 30.10.2013.

4. By the consent of the parties, Mr. S.M. Chopra, Former ADSJ was appointed as a sole Arbitrator. The learned Arbitrator has now given his Award dated 15.11.2017.

5. As per the Award two of the claims of the claimant/respondent have been accepted, namely, claim No.1 for Rs.41,90,393/- and claim No.2 whereby the parties have been directed to carry out a joint measurement for the subject matter of the bill in question failing which the bill submitted by the respondent for a sum of Rs.6,47,066/- was to be accepted.

6. I have heard learned counsel for the parties.

7. Learned counsel for the petitioner has made two submissions. Firstly, he submits that the Award of Rs.41,90,393/- under claim No. 1 is totally contrary to Clause 44 of the Special Conditions of the Contract. As per Clause 44, escalation could be claimed for structural Steel and Reinforcement Bar only if the purchase order was made within 75% of the time schedule and the material is delivered before the expiry date of the Contract. He pleads that under the Contract, the petitioner had to give drawings for the said Structural Steel and Reinforcement Bar. Where the drawings have been given after 30.01.2011 (being the relevant 75% time schedule), the petitioner has accepted the escalation bill of the respondent. However, where the drawings were given prior to 30.01.2011, the bills for escalation have been disallowed. He submits that in all the cases, the purchase orders were placed after 30.01.2011. Hence, he pleads that the award of Claim No. 1 is totally erroneous and against the provisions of the contract and is hit by Section 28 of the Act.

8. He further submits that as far as claim No. 2 is concerned, this is related to construction of RCC pavement. He points out that the consultant i.e. Engineers India Ltd.(EIL) had on 22.07.2011 informed the respondent that the RCC pavement is not required any further. He also submits that after the final bill was submitted, the respondent have woken up to submit a bill for this work which EIL had already requested them to not to carry out. As the bill was belated and after the final bill had already been processed, EIL vide its communication dated 02.04.2015 refused to process the bill inasmuch as the final measurement of the contract had been completed and recommendations had been sent to the petitioner for closure of the contract.

9. Learned counsel for the respondent submits that as far as claim No.2 is concerned the work was done by the respondent in December 2011. He submits th