IMPORTANT POINT
The Arbitral Tribunal exceeded its authority by not adhering to the express terms of the contract, leading to a finding of patent illegality.

JUDGMENT :

PRAVEER BHATNAGAR, J.

1. The appellant has preferred the appeal against the order dated 11.03.2019 passed by the Commercial Court No. 4, Jaipur, in which the Objection Application preferred by the State against the claimant was rejected and the award passed by the Tribunal dated 29.03.2013 was confirmed.

2. It is vehemently argued that the conclusion suffers from patent illegality as the Tribunal has transcended the Express Terms enumerated in the Bid Document and Contract, and no such obligation was cast upon the appellant to issue the Notifications above in any of the contractual documents. Learned counsel has referred to the conditions elucidated in the Project Report Pre-Bid Meeting and Contract entered into. To bolster the arguments, it is furthermore contended that, on the contrary, the conditions enumerated in the above-referred documents impose liability upon the claimant to assess its estimation of the traffic flow. The pre-bid meeting explained such aspects well before entering into the contractual liability. The Tribunal, despite the express terms, went beyond it.

3. The learned Counsel also argued that the law of limitation hopelessly bars the claim as the contract was executed in 2000, and the claim for damages was initiated by serving notice for the arbitration in 2009. The legal point can be raised at any time, and even the court can ask Suo Moto to examine whether the claim is barred by limitation.

4. The appellant also contended that despite the knowledge that the claimant has suffered losses and condition number 6 of the agreement dated 19.08.1998 pertinently stipulates that the contract may be extended for a year, the claimant did not endeavour to seek an extension and handed possession of the project to the appellant, this amounts to a waiver of the claim.

5. Learned counsel for the appellant fervently points out that apart from the above, the computation of damages claimed is patently illegal, and the claimant has belied the project cost.

6. Learned counsel for the claimant justifies the findings arrived at by the Tribunal. It is argued that the letters issued by the appellant to the notifying authority substantiates that the said issuance of the Notifications for diverting the vehicular traffic flowing from the Khurd and Salawas to Sikar was imperative for the claimant. The necessity clause of the project report mentions explicitly that to avoid the traffic flow towards Sikar, it is essential to build a bye-pass. The learned counsel has drawn our attention to section 9 of the Contract Act, which stipulates that insofar as the proposal or acceptance of any promise is made in words, the promise is said to be expressed. Insofar as such proposal or acceptance is made otherwise than in words, the promise is said to be implied. A similar Notification was issued for the traffic flowing to and fro towards Jaipur-Bikaner. The appellant issued the notification in the claimant's instance. Learned counsel has drawn our attention towards the estimation report annexed to the claim.

7. The claimant's learned counsel argued that the claim for damages was within the Limitation as per Section 21 and Article 55 of the Limitation Act. Before the expiry of the contractual period, the claimant couldn't assess the total damages or claim damages at regular intervals in continuity with the contract. The tribunal has dealt with the said issue elaborately, and that cannot questioned in an appeal filed appeal under section 37 of the Act.

8. The learned counsel contended that striving for an extension for a further period is also misconceived, as the claimant suffered a considerable loss and was not assured of recovering the project cost as prescribed in the extension clause. Likewise, the extension clause was not unilateral and can be expanded subject to the appellant's affirmation.

9. The methodology of computing the award amount cannot be questioned, and that cannot be grounds to unsettle the claim as settled by the Apex Court in