Parties cannot unilaterally claim additional compensation for extra work without obtaining prior approval; courts do not re-evaluate Arbitrator's factual findings.

JUDGMENT

Sanjeev Narula, J. (Oral):

I.A. 17497/2021 (u/Section 5 of the Limitation Act, 1963 r/w Section 151 of the Code of Civil Procedure, 1908 seeking condonation of delay in filing the present petition)

1. For the grounds and reasons stated therein and in view of the decision of the Supreme Court in Suo Motu Writ (Civil) No. 3/2020 titled In Re: Cognizance for Extension of Limitation (Reported as , the present petition is allowed and the delay of 458 days in filing the present petition stands condoned.

2. Accordingly, the application stands disposed of.

O.M.P. (COMM) 387/2021

3. The present petition under Section 34 of the Arbitration and Conciliation Act, 1996 [hereinafter "the Act"] seeks setting-aside of the arbitral Award dated 15th June, 2020 passed by Hon'ble Dr. Justice Mukundakam Sharma (Retd), former Judge of the Supreme Court [hereinafter "impugned Award"], whereby the Sole Arbitrator has partly allowed Petitioner's (Claimant in arbitration) claims.

4. The Parties -

4.1. The Petitioner viz. M/s. Innovators Fagade Systems Ltd. [hereinafter "IFSL"] is engaged in business of providing fagade and glass elevation, glazing, structural glazing, cladding works and other kind of steel and aluminum work in the buildings.

4.2. The Respondent viz. Airports Authority of India [hereinafter "AAI"] invited tenders on 01st September, 2011 for the work of "External ACP Cladding Check in Island and Glass canopy for New Integrated Passenger Terminal Building at NSCBI Airport, Kolkata" [hereinafter "Project"]

5. The Contract-

5.1. IFSL being the L-1 bidder was awarded the Project and formal Agreement dated 14th November, 2011 [being - Agreement No. AAI/KOL- Proj/SME(C)/Acp-Canopy/2011-2012/1] was executed between the parties [hereinafter "Contract"].

5.2. The scheduled date of commencement of the Project was 15th November, 2011 and date of completion was 14th May, 2012.

6. The Dispute and Arbitration -

6.1. IFSL commenced the Project but could not complete the same within the stipulated timelines and requested for extension from AAI. In response thereto, AAI wrote to IFSL seeking an undertaking that it would not claim any extra/additional amount in case extension was granted without levy of compensation. On receiving such an undertaking from IFSL, the Contract was extended.

6.2. Some of the claims of IFSL were not entertained by AAI and ultimately the matter was referred to arbitration by this Court. [ARB.P. 211/2017]

6.3. The Ld. Arbitrator, after hearing the parties and considering the material on record, passed the impugned Award on 15th June, 2020. In the said arbitration proceedings, IFSL partly succeeded.

6.4. IFSL impugns the Award qua rejection of the following claims: (a) Claim of Rs. 1,23,45,091/-towards extra aluminium consumption; [Issue No. (v) and Claim No. 3 as per the impugned Award] (b) Claim of Rs. 1,23,45,438/-incurred as overhead expenses due to prolongation of Contract [10% of certified work done]; [Issue No. (vi) and Claim No. 4 as per the impugned Award] and (c) Claim of Rs. 1,00,00,000/-towards loss of opportunity due to prolongation of Contract, [Claim No. 5 as per the impugned Award] which are taken up and analyzed separately.

CLAIM-WISE OBJECTIONS AND ANALYSIS

CLAIM NO. 3 - EXTRA ALUMINIUM CONSUMPTION

7. Mr. Naresh Jain, counsel for IFSL makes the following submissions:

(i) The Ld. Arbitrator committed patent illegality insofar it rejected the claim of Rs. 1,23,45,091/-towards extra aluminium consumption. The Ld. Arbitrator erred in considering irrelevant facts and evidence and thus, committed a miscarriage of justice.

(ii) The Ld. Arbitrator failed to decide the controversy as to whether the claim of IFSL towards extra al