The main legal point established in the judgment is the importance of adhering to the terms of the contract, the 'Entire Agreement Clause', and trade usages in arbitration proceedings.

JUDGMENT

Najmi Waziri, J. In FAO(OS) (COMM) 14/2021 and FAO(OS) (COMM) 111/2021, Indeen Bio Power Limited (`Indeen') has impugned under section 13(1) of the Commercial Courts Act, 2015 (`CCA') read with section 37 of the Arbitration and Conciliation Act, 1996 (`the Act') the order of the learned Single Judge dated 04.01.2021 passed in O.M.P. (COMM.) No 440 of 2020, allowing the respondent's petition under section 34 of the Act which set aside the Arbitral Award dated 20.05.2020.

2. Mr. Hiroo Advani, the learned Advocate for Indeen submitted that the impugned order has erred inasmuch as i) it has re-appreciated the evidence led before the learned Arbitrator; and ii) the delay in preparation of the Final Business Plan ('FBP') was occasioned entirely because of M/s EFS Facilities Services (India) Pvt. Ltd. ('EFS'), (earlier known as Dalkia India Private Limited ('DIPL')). A Project Development Agreement ('PDA') was entered into between DIPL and Indeen on 02.05.2010 for setting up an 8 MW Master Residue Biomass Plant at Chandli, Tehsil Devli, District Tonk, Rajasthan. A Synchronization and Coordination Agreement ('SCA') was signed between DIPL and Indeen on 08.09.2011. It along with some other documents such as a Supply Contract Agreement, a Service Contract Agreement and a Works Contract Agreement, all undated, became the subject of interpretation.

3. The controversy revolves around the aforenoted five documents. Dispute arose between the parties regarding the project, which got referred to Arbitration. A claim was brought forward by Indeen. By the Arbitral Award dated 20.05.2020, Indeen has been awarded the following reliefs:

"Claim 1-Loss of revenue in power generation-INR 11.37 crores

Claim 2-Costs for Price Escalation-INR 4,33,57,100/- along with pendente lite interest @ 8% per annum and post pendente lite interest @9% per annum."

4. The reason for the learned Arbitrator to award loss of revenue in power generation to the tune of Rs.11.37 crores was based on a Reference Business Plan (`RBP'), which was a part of the Project Development Agreement (`PDA') but not part of SCA. EFS contended that there could be no reason for granting the award because RPB was not included in the `Entire Agreement Clause' of SCA dated 08.09.2011. No finding was rendered by the learned Arbitrator on this ground. The learned Arbitrator had come to the finding that the exception in Clause 11.4 of the SCA will apply. EFS had argued before the learned Single Judge that great prejudice had been caused to it by referring to a document, which was not a part of the `Entire Agreement Clause..

5. On being impugned under S.34 of the Act, the award was quashed and set it aside, with liberty to Indeen to re-agitate its claims before the Arbitral Tribunal and in case it is so re-agitated, the Arbitral Tribunal would reconsider the claims of Indeen, in accordance with law, keeping in view the observations made in the impugned order.

6. EFS says that reference was made by the learned Arbitrator to the RBP, but the said document could not be relied upon because the SCA represented the 'Entire Agreement.' Indeen says that RBP and FBP have not lent any weight to the claim. The claim was not posited on them, there are only individual pieces of evidence, the said documents were merely referred to; there was no cross-examination of the two witnesses of the claimants who deposed apropos quantification of claims; it was never Indeen's case that either the RBP or the FBP was part of the SCA. Therefore, the argument of 'Entire Agreement' has no application to the facts of this case.

7. The impugned judgment has referred to the dicta of High Court of Singapore in CRW Joint Operation v. PT Perushaan Gas Nagara (Persero) TBK, (2011) SGCA 33, which has held as under:

"The significance of the issues that were not dealt with has to be considered in relation to the award as a whole. For example, it is not difficult to envisage a situation in which the issues that were overlooked