ORDER :

[Chandra Dhari Singh, J.]

I.A. 1623/2023 (Delay in filing the additional affidavit)

1. This is an application filed on behalf of petitioner under Section 151 of the Code of Civil Procedure, 1908 for condonation of delay in filing the additional affidavit.

2. During the arguments, learned counsel appearing on behalf of the petitioner submitted that the additional affidavit has been filed vide Diary No. 94610/2023 on 20th January, 2023, but the same is not on record. The copy of the same has been taken on record.

3. For the reasons stated in the application as well as the aforesaid submission, the delay of four days in filing the additional affidavit is condoned.

4. The application is disposed of.

O.M.P. (COMM) 9/2019 & I.A. 322/2019 (Delay)

1. The instant petition under Section 34 of the Arbitration and Conciliation Act, 1996 (hereinafter “the Act”) has been filed for assailing the award dated 11th June 2018 passed by the learned Sole Arbitrator.

2. The respondent, being a successful bidder against the tender dated 18th August 2010, entered into a contract with the petitioner vide contract dated 25th April 2011. The scope of work under the contract included earthwork in formation in cutting/ filling and blanketing work from proposed Jhalawar railway station to Kalisindh Thermal Power Plant including supply of approved blanketing material, protection work/retaining wall/side drains work, supply of P-way material (except supplied by IRCON free of cost) from approved sources, supply and stacking of ballast, and P-way linking/ installation including laying of track, level crossings, point and crossings, glued joints and providing of various indicator boards. The completion certificate was issued by the petitioner to the respondent claimant on 10th June 2015 after making the final bill payment on 9th May 2015.

3. During the pendency of the work, the respondent demanded resolution of his grievance relating to delayed handover of the hindrance-free work site and thus, wrote a letter for the mutual settlement to the petitioner seeking compensation in accordance with Clause No. 72.0 of the General Conditions of Contract (hereinafter “GCC”). The Mutual Settlement Committee vide its letter dated 23rd September 2013 declared the failure of resolution of the said dispute.

4. The respondent further invoked the Arbitration Clause vide notice dated 11th November 2013 in accordance with Clause No. 72.0 of the GCC and subsequent to proceedings before the Rajasthan High Court and the Hon’ble Supreme Court, a Sole Arbitrator was appointed to resolve the disputes between the parties. The Sole Arbitrator passed the impugned award dated 11th June 2018 which has been challenged by the petitioner in the instant petition.

5. The monetary break-up in the impugned award challenged by the petitioner has been reproduced as below:

a. Rs. 2,19,56,901 (Rupees Two Crores Nineteen Lakhs Fifty Six Thousand Nine Hundred and One) is awarded towards the alleged additional earth filling activity;

b. Rs. 7,99,88,338 (Rupees Seven Crores Ninety-Nine Lakhs Eighty-Eight Lakhs Three Hundred Thirty-Eight) towards the alleged loss of profit calculated on the basis of the Hudson Formula;

c. Rs. 5,59,62,979 (Rupees Five Crores Fifty-Nine Lakhs Sixty-Two Thousand Nine Hundred Seventy-Nine) towards interest (both pre-reference and pendente lite) on the amount awarded.

6. Mrs. Vibha Datta Makhija, learned senior counsel for the petitioner submitted that the impugned award passed by the learned Sole Arbitrator is liable to be set aside as it has been passed by paying no heeds to the evidence led by the petitioner herein. It is submitted that the learned Sole Arbitrator has erred in rejecting the challenge raised by the petitioner to the maintainability of the claims on the ground that the same has not been filed by a duly authorised person and that the Special Power of Attorney (hereinafter “SPA”) dated 1st November, 2011 does not warrant its signatory to file a claim pe