Hrishikesh Roy, J. - Heard K.N. Choudhury, the learned Senior Counsel appearing for the appellant. Also heard Mr. K.L. Yadav, the learned Counsel appearing for the sole respondent.

2. This appeal is directed against the judgment dated 18.8.2005 (Page-13) in Misc.(Arbitration) Case No.5/2003, whereby the learned District Judge, Bongaigaon has rejected the appellant's application for settling aside the majority Award dated 29.4.2003 (Page-30) by rejecting the Appeal filed under Section 34 of the Arbitration and Conciliation Act, 1996, hereinafter referred to as "the Arbitration Act" .

Relevant facts.

3.1 The appellant Bongaigaon Refinary & Petrochemicals Ltd (BRPL) hereinafter referred to as "the Owner" invited tenders for detailed engineering, supply, fabrication, transportation, erection and testing etc. of 3 Nos. of LPG spheres on 21.6.1991. M/s Engineers India Ltd. (EIL) were appointed as Engineer-in-charge for the contract. The respondent M/s G.R. Engineering Works Ltd., hereinafter referred to as "the Contractor", was awarded with the work order by Letter of Intent (LOI) dated 18.4.1992.

3.2 It was agreed between the parties that the work will be completed within a period of 18 months starting from 18.4.1992. Originally the date of completion of the work was fixed as 17.10.1993, however, as per General Conditions of Contract (GCC), extension of time for completion of the work was permitted under certain specified circumstances. The work was completed eventually on 31.10.1994 with the delay of 379 days.

3.3 The respondent pleaded that although action for mobilization, execution and completion of the work was taken, yet the work could not be completed within the scheduled time due to the reasons beyond their control. In this regard the respondent submitted a letter dated 21.2.1995 to the resident engineer thereby requesting not to impose Liquidated Damage (L.D.) for non-completion of the work within the scheduled time.

3.4. After that on 22.2.1995 the respondent submitted a final bill to the Owner and further requested that the extension of contract completion period be accorded. On decision being taken by the Owner and communicated to the Engineer-in-charge, M/s Engineers India Ltd. (EIL) by letter dated 7.8.1996 informed the contractor that conditional approval to extension of the contractual period was granted by the Owner vide letter dated 5.8.1996 subject to levy of L.D. @2% of the total contract value.

3.5 After deduction of aforesaid 2% L.D, the contractor received a cheque for Rs.86,16,992/- on 4.12.1996 from the Owner. Subsequently the contractor vide letters dated 2.1.1997 and 28.2.1997 raised grievance against the deduction and requested for reimbursement of the deducted L.D. The Owner vide letter dated 7.4.1997 justified the imposition by stating that L.D. was deducted for delay of 14 days since the contractor failed to take measures to expedite the delivery of fabricated materials at site. Eventually, the dispute regarding recovery of L.D @2% was referred to the 3 member Arbitral Tribunal at the instance of the contractor.

The contention of the Owner before the Arbitral Tribunal

4.1 The levy of L.D. @ 2% and also the counter claim of Rs.2,43,34,412/- were justified by the Owner mainly on 2 counts i.e. under the GCC the Employer was vested with full power under Clause 4.4.0.0 to levy L.D. upto 10% of the contract value and also because of the delay on the part of the contractor in completing the work, the Owner suffered huge loss.

4.2. The Owner further contended that their decision is final and binding upon the contractor in terms of the Clauses 4.3.6.0 and 4.4.0.0 of the contract terms and in view of this the Owner submitted that this was not an arbitrable dispute.

4.3 Moreover since the payment against the final bill was received without protest by the contractor in full and final settlement on 5.12.1996, it was not open thereafter to the contractor to make any claim in respect of the final bill.

4.4. The dispute