JUDGMENT :

Sanjib Banerjee, J.

(Prayer: Appeal under Order XXXVI Rule 1 of the Original Side Rules read with Clause 15 of the Letters Patent against the judgment dated 30.4.2019 passed by the learned Single Judge on O.P.No.228 of 2014.

1. The appeal is directed against an order dated April 30, 2019 passed under Section 34 of the Arbitration and Conciliation Act, 1996, rejecting the challenge to an arbitral award dated November 23, 2013.

2. The matter pertains to a project undertaken and completed in or about the year 2008 for the construction of two segments of the Ramanathapuram Bypass road adding up to slightly over 10 kilometre. The respondent contractor initiated the arbitral reference upon claiming, inter alia, the wrongful withholding of performance security, money payable under the bills raised by the contractor, loss of profit on account of delay and the like. The arbitral tribunal consisted of three members. It is the majority view which was assailed as such majority view found a substantial amount, in excess of Rs.9.44 crore together with interest, to be due and owing from the appellant herein. The original contract was valued at a little over Rs.35 crore.

3. The appellant questions the award made under two heads of claim: the wrongful withholding of payment to the tune of Rs.84,55,380/- and the loss assessed due to overhead and profit to the extent of Rs.3,90,99,700/-. These two items are covered by the first head of claim of award and the first item under the fifth head, respectively.

4. It is recorded that no challenge has been thrown in the present appeal in respect of the three other heads on which sums in excess of Rs.4.62 crore, Rs.75,000/- and Rs.5.68 lakh were awarded by the arbitral tribunal on account of release of performance security, revised rate for box culvert and refund of recovered interest on mobilisation advance, respectively.

5. It appears from the judgment and order impugned that a rather general challenge was fashioned in the proceedings under Section 34 of the Act and the court found that the matters had been appropriately dealt with by the arbitral tribunal. The arbitration court found that it was a techno commercial arbitration, since various technical aspects went into the consideration of the matter, particularly engineering and design defects complained of and the assessment thereof.

6. As to the first head of claim pertaining to the withholding of the sum in excess of Rs.84 lakh, the appellant says that it was on account of the defective work on a section of the stretch pertaining to a bridge. Certain cracks or other defects may have been noticed and it is the appellant’s case that despite the contractor being obliged to remove the defect within a period of one year of it being pointed out, as envisaged in the contract, no endeavour was made by the contractor here to address the defect or attempt to rectify the same. The appellant says that since the appellant had to take steps, inter alia, by engaging another contractor to take care of the defective workmanship of this contractor, considerable sums were expended and there was no basis to the arbitral tribunal absolving the contractor of the liability on such count.

7. The discussion on such aspect is found in paragraph 9.3 and thereafter in the majority award. The substance of the dispute was that the contractor claimed that it was an anomaly in the design of the bridge that led to what the employer perceived to be a fault and the contractor was required to make the construction in accordance with the design supplied by the employer. The correspondence in such regard have been noticed and re-produced in the award and it appears that upon the disputes arising between the parties herein, expert opinion was sought from the Indian Institute of Technology, Chennai. The report of the IIT has been copiously referred to in the award and, on the expert assessment of the specialised arbitral tribunal, it appeared that the fault lay in the design and not i