Judgment (Per Arun R. Pedneker, J.):

1. By the present Commercial Arbitration Appeal, the Appellants are challenging the Award dated 02.02.2019, passed by the sole Arbitrator and the order dated 12.04.2022, passed by the learned District Judge in Commercial Civil Miscellaneous Application No.53 of 2019 under Section 34 of the Arbitration and Conciliation Act, 1996, thereby, dismissing the application filed by the Appellants.

2. Heard Mr. Amit A. Yadkikar, learned counsel for the Appellants, Mr. J. N. Singh, learned counsel for Respondent No.1 and Mr. A. R. Kale, learned AGP for Respondent No.2.

FACTS:

3. Brief facts leading to the filing of this commercial appeal are noted below:-

The Appellant floated a tender for work of repair, renovation and restoration of 19 minor irrigation tanks in District Beed, Maharashtra. The estimated value of the work was Rs.29,55,47,811/-.

The offer of the respondent / claimant being the lowest i.e. 0.11% below the estimated cost was accepted and the claimant was called upon for negotiations and, ultimately, it was agreed that the cost shall be 0.50% below the estimated cost.

It is stated in the claim petition that there were further negotiations and the estimated costs of the work was accepted for Rs.29,40,70,072/- and, accordingly, after completing the necessary formalities, the agreement bearing no.B-1/23 was executed between the parties and work order dated 17.11.2006 came to be issued by the Executive Engineer Jayakwadi Irrigation Division No.3 / Appellant No.3 herein to the claimant / Respondent No.1 herein. The same was to be completed by 16.11.2007.

Due to prolongation of work for about 3 years from the due date of completion, dispute arose and, accordingly, the claimant issued notice under Clause 30(1) of the General Conditions of Contract for settlement of disputes to Superintending Engineer on 16.02.2009. The Superintending Engineer failed to address the issue, as such, an appeal under Clause 30(2) of the General Conditions of Contract was preferred to the Chief Engineer on 01.10.2011 which was also not decided. Thereafter, under Clause 30 (3) of the General Conditions of Contract, further, appeal was filed before the Secretary, Water Resources Department, on 31.10.2011, which was also not addressed. As such, the contractor issued statutory notice under Section 80 of the CPC on 19.12.2011. Thereafter, Special Civil Suit No.26 of 2012 was filed in the court of Civil Judge Senior Division, Beed for recovery of the dues with interest. In the year 2016, Special Civil Suit No.26 of 2012 was transferred to the Commercial Court and registered as Special Civil Suit No.6 of 2016. On 24.08.2017, the Commercial Court with consent of the parties referred the dispute to arbitration as per Section 89 of the CPC.

The Appellants submits that only the Advocate for Appellants had consented for referring the claim to arbitration without the consent of the party. However, the Appellants proceeded with the arbitration.

On 27.12.2017, original claimant filed statement of claim before the sole arbitrator and raised claims as under:

a) claim no. 1 - For loss of Business profit at Rs. 698.59/- Lakhs contending that the claimant contractor anticipated business profit at 15% of the contract value, however because of absolute breach of contract on the part of the respondents the claimant could not earn the business profit as anticipated and would have earned if the contract work would have been allowed to be executed and completed. -Rejected

b) Claim no. 2 - for Rs. 494.98/- lakhs towards loss of overhead, contending that because of breach of contract committed by the respondents the execution of the work was prolonged and the claimant was required to spent more amount towards over - head charges as specified in Annexure no. 2 - Partly allowed of Rs.67.35 Lakhs

c) Claim no. 3 - for Rs. 621.82/-lakhs, the losses due to reduction in the productivity of men, machineries and equipments, contending that the claimant h