The court's decision emphasizes that it cannot interfere with the interpretation of contract clauses and evidence unless found to be unreasonable or perverse.

NAVIN CHAWLA, J.

1. This petition under Section 34 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the ‘Act’) has been filed by the petitioner challenging the Arbitral Award dated 27.04.2012 passed by the Arbitral Tribunal adjudicating the disputes that had arisen between the parties in relation to the ‘Allahabad Byepass Project Construction of road from KM 198.000 to KM 242.708 construction package: ABP-3 contract agreement No: ABP/3 dt.04.11.2004 (Reference No.3)’.

2. In the petition, the petitioner had challenged the Award of Claim nos.1, 4, 5, 6, 7 and 8. This Court by its order dated 11.09.2012 rejected the challenge of the petitioner in respect of claim nos.1 and 8 and thereafter issued notice confined only to claim nos.4,5, 6 and 7.

3. Claim nos.4 and 5 pertain to issue of Entry Tax as well as increase in royalty. Learned counsel for the petitioner fairly submits that these issues are now no longer res integra and are covered by the judgment of the Supreme Court in National Highways Authority of India v. ITD Cementation India Limited (2015) 14 SCC 21, against the petitioner.

4. As far as the claim no.6 is concerned, the said claim was for the refund of the amount deducted by the petitioner from the bills payable to the respondent on account of use of Grade 43 Cement in place of Grade 53 Cement during the execution of the work.

5. Admittedly, the respondent had used Grade 43 Cement as approved by the Engineer appointed for the project.

6. The Engineer by its letter dated 12.12.2006 called upon the respondent to stop using Grade 43 Cement and instead use only Grade 53 Cement in accordance with and as stipulated in Clause 1006 of the Supplementary Technical Specifications (STS). The relevant extract from Clause 1006 of STS is reproduced as under:

“1006 CEMENT

Add the following at the end of this clause,

Manufactures test certificate shall be submitted to the Engineer by the Contractor for every consignment of cement. The certificate should cover all the tests for chemicals, requirements, physical requirements and chloride content as per the provisions of IS: 12269.

Independent tests of samples drawn from the consignment shall be carried out at the site laboratory or in an independent laboratory approved by the Engineer, immediately after delivery. The following properties shall be tested.

(i) Settling Time

(ii) Compressive Strength

The cost of the tests shall be borne by the Contractor. In case the cement is stored beyond 90 days from the date of delivery at site, the following tests shall be carried out at the site laboratory before the cement is used.

(i) Settling Time

(ii) Compressive Strength

Lot size for independent testing of cement at site shall be the quantity received at site on any day subject to a maximum of 500 tones.”

7. Learned counsel for the petitioner submits that the above specification clearly mandates that the respondent shall use only Grade 53 Cement in the construction. Admittedly, the respondent has used Grade 43 Cement and therefore, made unjustified profit by cost saving. The petitioner was, therefore, entitled to make the deduction of such amount. She further submits that the respondent had agreed to such deduction and produce invoices and other materials for determination of the exact figure of the same. However, as the respondent failed to give these details, the petitioner arrived at the figure of Rs.71,04,640/- as a fair amount to be deducted from the amounts payable to the respondent.

8. On the other hand, learned senior counsel for the respondent submits that Clause 1006 of the STS merely requires the respondent to produce a certificate clearing all the tests for chemical requirements, physical requirements and chloride content as per provisions of IS:12269. On being asked by the Engineer, the respondent had not only produced such certificate from the manufacturer but also the cement used by the respondent had been sent for testing to an independent laboratory, Shri Ram Ins