The Court held that the petitioner failed to establish that the impugned Award suffered from patent illegality or contravened the fundamental policy of Indian law or public policy of the country. The Court further held that the Arbitral Tribunal had the jurisdiction and power to grant and bestow an interest while passing the Award, given the absence of any preceding agreement between the parties concerning said interest.

JUDGMENT

Chandra Dhari Singh, J.

1. The instant petition under Section 34 of the Arbitration and Conciliation Act, 1996 (`the Act' hereinafter) has been filed against the final Award dated 11th September, 2020 whereby the Arbitral Tribunal allowed the claims filed by the respondent/claimant.

FACTUAL MATRIX

2. The petitioner is a special purpose vehicle established in 2006 under the erstwhile Companies Act, 1956, for the purpose of planning and development, mobilizing financial resources, building, maintaining, and operating dedicated freight corridors and is under the administrative control of the Ministry of Railways.

3. The respondent/claimant is an unincorporated joint venture referred to as Tata-Aldesa Joint Venture (`Tata-Aldesa JV' hereinafter) comprising of Tata Projects Limited having office at Secunderabad, India and Aldesa Constructions, a private company incorporated in accordance with the Spanish Laws, having its registered office in Spain.

4. The petitioner undertook a project pertaining to "Design and Construction of Civil, Structures and Track Works for Double Line Railway involving formation in Embankments/Cuttings, Ballast on formation, Track Works, Bridges, Structures, Buildings including Testing and Commissioning on Design-Build Lump Sum Basis for Bhaupur- Khurja Section of Eastern Dedicated Freight Corridor" which was split into three contract packages divided into three lots namely Lot No. 101 for 135 kms, No. 102 for 102 kms and No. 103 for 106 kms.

5. The petitioner invited bids for the aforesaid three contract packages and 14 pre-qualified bidders visited the work site for inspection. The respondent/claimant submitted its bid for Lot No. 103 and was duly awarded the contract vide notification dated 24th January, 2013. Consequently, an agreement dated 08th March, 2013 was entered into between the parties and the deadline for the completion of work was decided to be 21st April, 2017.

6. Thereafter, the respondent/claimant wrote a letter dated 17th July, 2013 seeking clarification from the petitioner regarding the applicability of the size of boxes to be used for crossing roads below railway tracks for the preparation of design, drawing, and execution in accordance with the Contract Agreement. In the said letter, the respondent/claimant also stated that the requirements sought by the petitioner were `variations' which might result in additional time and costs. The petitioner responded to the said letter stating that the respondent/claimant had been handed over the clearances obtained from the State Public Works Department (`PWD' hereinafter) and can approach their office for any explanations or modifications relating to clearances. In the said response letter, the petitioner clarified that the submission of the plan, profile, and drawing should not be delayed owing to the issuance of approvals from the PWD. The response letter further noted that the Contract Agreement was a design and build contract and the respondent was required to build and design the alignment profiles and Roads under Bridges (`RUBs' hereinafter) in accordance with the terms of the Contract Agreement.

7. On 21st November, 2013, a final list of RUBs was executed by the parties and the same was incorporated in the alignment plan and the profile of the respondent/claimant. Thereafter, the respondent/claimant sent the alignment plan and profile to the petitioner for approval with the note that variations in cost and time relating thereto would be sent later.

8. The Engineer appointed by the petitioner rejected the claim with respect to increase in number and change in sizes of RUBs by the PWD vide letter dated 30th May, 2014. It also stated that the General Arrangement Drawings ("GADs") provided as part of the bidding document were indicative and were to be finalized after validation of the survey in compliance with the provisions of applicable Codes which cannot be considered a reason for any significant increase in the quantities.