ORDER :

PRAYER: Petition filed under Section 34 of the Arbitration and Conciliation Act, 1996, to (a) set aside the Award dated 29.03.2013 passed by the third respondent herein and consequently allow the claims made by the petitioner, and (b) alternatively remit the matter to the third respondent to decide the issue in accordance with the findings of this Court.

The petitioner, the first respondent and second respondent entered into a joint venture (the JV) by executing a Joint Venture Agreement dated 28.01.2002(the JV Agreement) for the purpose of participating in a tender floated by the Chennai Metropolitan Water Supply & Sewerage Board(the CMWSSB) for the Chennai Water Supply Augmentation Project-I Package III. Under the JV Agreement, the equity participation ratio of the three parties was: petitioner: 10%; first respondent: 70%; and second respondent: 20%. The first respondent was the lead partner of the JV and a power of attorney dated 30.01.2002 was executed by the other partners of the JV in favour of the first respondent. The JV was the successful bidder for the contract and a Letter of Award dated 31.10.2002 was issued in favour of the JV. Later, Package 8 was awarded to the petitioner as a subcontract and the parties entered into an agreement titled Key Terms to the Supplementary Joint Venture Agreement dated 13.03.2003 (Key Terms Agreement). Disputes arose between the three partners with regard to the petitioner's entitlement under the JV Agreement. Such disputes were referred for arbitration. The petitioner was the claimant and made claims for an aggregate sum of Rs.55,29,41,277/- under four heads of claims: a sum of Rs.81,67,273/- towards enabling costs with interest; a sum of Rs.3,99,74,004/- towards loss of profits due to reduction in scope of work; a sum of Rs.48,00,000/- towards loss of profits due to exclusion of the claimant from the operation and maintenance contract; and a sum of Rs.50,00,00,000/- towards compensation for loss of opportunity. In response, the first respondent filed a statement of defence and the petitioner/claimant filed a rejoinder statement.

2. The Arbitral Tribunal framed 16 issues upon consideration of the pleadings. Of these, in the present context, the two significant issues were: the second issue which related to rights and obligations inter se the JV members as well as in relation to the CMWSSB; and the fifth issue which related to whether the claimant continued to enjoy the rights as a JV partner de hors its status as one of the sub contractors. The claimant examined two witnesses as C.W.1 and C.W.2. Through those witnesses, Exs.C1 to C232 were marked. The respondents did not adduce oral evidence but exhibited 70 documents as Exs.R1 to R70. By arbitral award dated 29.03.2013 (the Award), the second and fifth issues were decided against the petitioner. Except for the claim towards enabling cost, all the other claims were rejected and the first and second respondents were directed to pay a sum of Rs.14,62,503/- to the petitioner on or before 30.04.2013, failing which the petitioner would be entitled to interest thereon at 18% per annum from 01.05.2013 till the date of payment. This amount was paid to the petitioner in compliance with the Award. The Award is assailed by the petitioner/claimant.

3. Oral arguments on behalf of the petitioner were advanced by Mr. Anirudh Krishnan, learned counsel, and on behalf of the first respondent by Mr. Harishankar Mani, learned counsel.

4. Mr. Anirudh Krishnan provided an overview of the JV Agreement. He pointed out that Clause 12.1 of the JV Agreement provides that the failure or delay by a party to exercise any power or right under the JV Agreement shall not operate as a waiver of such power or right. He also referred to the Key Terms Agreement. By drawing reference to Clauses 1.1, 1.3, 1.5, 4.1 and 6 thereof, he submitted that it envisaged a significant change in the nature of the JV but was subject to a condition precedent. As per Clause 10.3 of th