JUDGMENT

PRATEEK JALAN, J.

1. By way of this petition under Section 34 of the Arbitration and Conciliation Act, 1996 [hereinafter, "the Act"], the petitioner assails an arbitral award dated 21.04.2018, by which a three-member Arbitral Tribunal has adjudicated disputes between the parties under a Contract Agreement dated 04.11.2004 [hereinafter, "the Contract"].

A. Facts

2. The Contract was awarded by the respondent-National Highways Authority of India [hereinafter, "NHAI"] to the petitioner for construction of part of a road known as the "Allahabad Bypass Project". BCEOM-LASA JV [hereinafter, "the Engineer"] was nominated by NHAI as the Engineer under the Contract. According to the petitioner, work under the Contract was substantially completed by 15.10.2009 and notice was given to the Engineer for taking over the work on 15.11.2009. The Engineer issued Taking Over Certificate under Clause 48.1 of the General Conditions of Contract [hereinafter, "GCC"] on 11.12.2009. By a communication dated 15.11.2011, the Engineer enumerated a list of pending work to the petitioner prior to issuance of the Defects Liability Certificate.

3. A joint meeting was held on 25.11.2011 with regard to the remaining work to be completed. The petitioner agreed to complete the remaining work and remedy the defects. The minutes of the aforesaid meeting contain specific provisions with regard to claims for additional costs due to reduction in scope of chain link fencing and crash barrier. The consequence of these provisions is the subject matter of controversy in this petition and they will be dealt with in detail later in this judgment.

4. The Engineer issued the Defects Liability Certificate on 12.01.2012, under Clause 62.1 of the GCC. Pursuant thereto, the petitioner submitted supporting documents for draft final bill on 25.04.2012. On 06.05.2013, the Engineer issued Interim Payment Certificate No. 57 [hereinafter, IPC No. 57] against the statement submitted by the petitioner, wherein it determined the amount due to the petitioner. It recommended payment of a sum of Rs. 1,98,30,849/-against the petitioner's final bill.

5. It appears from the record that the respondent, thereafter, by a communication dated 20.06.2013, pointed out certain discrepancies to the Engineer, which resulted in a report of the Engineer dated 12.08.2013, stating that the Defects Liability Certificate was issued after joint inspection on 05.01.2012 and that IPC No. 57 was issued after detailed measurement of each item. The record reveals that a meeting was thereafter held between the Engineer and the respondent on 09.04.2014, pursuant to which the Engineer issued a letter dated 06.05.2014, revising IPC No. 57 downwards. Significantly, the petitioner was admittedly not party to the documents and meetings dated 20.06.2013, 12.08.2013, 09.04.2014, and 06.05.2014.

6. Unaware of these developments, the petitioner sent to the respondent a letter dated 28.09.2015, demanding payment of the amount due in terms of the Engineer's certification dated 06.05.2013 [original IPC No. 57]. The petitioner relied upon Sub-Clauses 60.8(a)(i), 60.8(b) and 60.11 of the Conditions of Particular Application [hereinafter, "COPA"]. As the said letter failed to elicit a response, the petitioner issued a notice under Sub- Clause 67.1 of COPA on 05.05.2016. The matter was referred to the Dispute Review Board [hereinafter, "DRB"] under Sub-Clause 67.1 of COPA, but the DRB did not make any recommendations within the stipulated period. The petitioner, therefore, invoked arbitration by letter dated 14.10.2016.

7. Before the Arbitral Tribunal, the petitioner raised a claim of Rs. 1,98,30,849/- along with interest thereupon, and also sought release of retention bank guarantees and compensation for costs incurred in renewal thereof.

8. In its defence, the respondent relied upon the modification of IPC No. 57 by the Engineer on 06.05.2014 and stated that consequently, the petitioner was liable to repay the sum of Rs. 46,28,483/