The preponderance of law allows for the escalation of costs and that Clause 11(C) cannot fetter the right of an Arbitrator to pass such an award.

1. Both the civil revisions address the same issue on a point raised by the Union that an Arbitrator who renders an award against express terms of the contract between the parties ought to be taken as misconducting himself and the award passed against express contractual terms cannot be legally sustained and would require to be set aside. Both the cases arise out of a situation of assessment of damages for the delay caused to the contractor for completing the works, consequent on the inability of the Union to deliver the site or other circumstances that required extension to be given beyond the time which was contemplated for completion.

2. It is an admitted case that the contract period stipulated was one year for completion but they were extended from time to time by invoking a provision for extension under Clause 11A (vii) that allowed for an extension to be given for any other cause which was in the absolute discretion of the Accepting Officer that was beyond the contractor's control. The argument advanced is that the contract period was extended by the Union not on account of the contractor's default and there was a contractual term itself that provided as to how the matter will be dealt with. The relevant clause is reproduced as under:-

"11(C). No claim in respect of compensation or otherwise, however, arising, as a result of extensions granted under Conditions (A) and (B) above shall be admitted."

3. The contention is that in terms of Clause 11(C), the contractor was barred from raising any claim for compensation for delay in completion of works. There had been other claims as well but the entire focus of attention was only with reference to the claim for damages which was raised in claim No. 8 in C.R. No. 7294 of 2010 and claim No. 3 in C.R. No. 7510 of 2010.

4. I notice that there has been a cleavage of opinions with reference to the very same same Clause 11(C) by the decisions of the Supreme Court as well as by decisions of this Court. Two decisions of the Supreme Court have directly adverted to Clause 11 (C) which are: Ramnath International Construction Pvt. Ltd. Versus Union of India and another- AIR 2007 SC 509 and Oil and Natural Gas Corporation Versus M/s. Wig Brothers Builders and Engineers Pvt. Ltd.- 2010(13) SCC 377. In both these decisions, the point at issue was the liability of the Union to pay damages for delay caused in completion of works and a resort to Clause 11(C) was made to fend off a claim by the contractor. In the former decision, there had been a reference made to the judgment of the Supreme Court in Ch. Ramalinga Reddy Versus Superintending Engineer 1999(9) SCC 610 which was a Three Member Bench decision of the Supreme Court. In the latter decision in Oil and Natural Gas Corporation case (supra), the reference had been made to the judgment in Ramnath International Construction Pvt. Ltd. Versus Union of India and another- AIR 2007 SC 509. The decision in Ch. Ramalinga Reddy's case did not have Clause 11(C) itself but it was with reference to a claim for damages caused for additional work done and the Court was considering the effect of Clause 6 Part VII of the General Conditions of Contract which read as under:-

"No extra payment would be made for baling out water for dewatering. Having regard to these terms of the contract between the parties, it is difficult to accept the submission that the appellant had encountered hard rock due to tank nearby which had not been disclosed in the tender documents and that is why he was entitled to the extra rates as claimed. The High Court was right in pointing out that the contract expressly stated that no payment could be made on account of the lack of acquaintance of the contractor with the work site, he having been deemed to have satisfied himself in respect thereof before having quoted the rates. The arbitrator was bound by the contract between parties and to decide the claims referred to him in the light thereof. His award being found to be co