The court upheld the learned Single Judge's ruling that claims not disclosed under the contract clauses and issues related to 'No Claim' certificates are non-recoverable, emphasizing the importance of procedural compliance in arbitration.

JUDGMENT :

P. VELMURUGAN, J.

1. All these Original Side Appeals are arising out of the common order dated 10.12.2019 passed by the learned Single Judge in O.P.Nos.87 & 88 of 2014, 168 of 2015 and 446 of 2016 and hence they are disposed of by this common judgment.

2. The appellant herein initiated arbitration proceedings based on the four agreements entered into between the appellant and the first and second respondents viz. Railways. The appellant is the successful bidder in the tender called for by the Railways and the Railways issued respective Letters of Acceptance to the appellant in respect of 4 related works in connection with the doubling of track between Shoranur and Mangalore and Cannanore-Uppala sections and the scope of work, as between these 4 work orders, was similar but not identical. Disputes arose between the appellant and the Railways in relation to the execution of these works, which were the subject matter of separate arbitrations before a common Arbitrator, namely, the third Respondent. In each of the arbitrations, the appellant made claims under the following heads:

(i) final bill

(ii) refund of security deposit with interest

(iii) loss of profit with interest

(iv) idle labour

(v) idle machinery and equipment

(vi) overheads

(vii) 20% increase in rates for the work that was completed during the extended period

(viii) labour amenities

(ix) costs

3. All the four arbitrations were disposed of by a separate Arbitral Award, which were challenged by the Railways in O.P.Nos.87 & 88 of 2014, O.P.No.168 of 2015 and O.P.No.446 of 2016, before this Court. The Railways in the abovesaid Original Petitions challenged the Award in respect of idling of men and machinery, overheads, 20% increase in rates for work done during the extended period, loss of profits and pre-reference and pendente lite interest.

4. The learned Single Judge, by a common order dated 10.12.2019, allowed all the four Original Petitions by setting aside the respective Awards in part, in respect of award amounts against the claims for idling of men and materials, overheads, enhanced rate of 20% during the extended period, loss of profits and pre-reference and pendente lite interest. Aggrieved over the said order, the claimant is before this Court with the present Original Side Appeals.

5. The learned counsel for the appellant would contend that the learned Single Judge failed to appreciate the fact that all the findings of the learned Arbitrator are based on the facts pleaded by the appellant and the Railways and the oral and documentary evidence. Hence the said findings of the facts by the learned Arbitrator cannot be interfered with on a petition filed under Section 34 of the Arbitration and Conciliation Act, 1996 (in short “the Act”).

5.1 The Railways had never pleaded Clause 43(1) of General Conditions of Contract before the learned Arbitrator and raised the same only in the petitions under Section 34 of the Act. In the absence of any specific challenge to the calculation of loss arrived at by the appellant, the interference of the learned Single Judge, is not sustainable. The learned Arbitrator awarded overheads for the expenditure for the salary paid to the supervisory staff such as the engineer, supervisors and watchmen employed as per the terms of the contract and the learned Judge ought to have called for the records of the learned Arbitrator and considered the same in a proper manner.

5.2 The delay occurred due to non supply of PSC Sleepers in time by the Railways and the learned Arbitrator discussed the same and analysing the evidence adduced before him and the pleadings, rightly came to the conclusion that the delay in executing the work by the appellant was only due to the default on the part of the Railways. The learned Arbitrator in his award has stated that no other objection has been taken except reference to Clause 16(2) in the course of argument by the learned counsel for the respondent, which would amply prove that the Railways never ever raised the