OCD-1 IN THE HIGH COURT AT CALCUTTA COMMERCIAL APPELLATE DIVISION ORIGINAL SIDE APO/71/2020 WITH AP/810/2010 WEST BENGAL HOUSING BOARD VS THE CIVCON CONSTRUCTION PVT. LIMITED BEFORE:

The Hon’ble JUSTICE DEBANGSU BASAK -AND-

The Hon’ble JUSTICE MD. SHABBAR RASHIDI For the Appellant : Mr. Shounak Mukhopadhyay, Adv.

Ms. Shrayashee Das, Adv.

Mr. Paritosh Sinha, Adv.

Mr. Tridibesh Dasgupta, Adv.

Mr. Rohan Kumar Thakur, Adv.

For the Respondent : Mr. Shiv Shankar Banerjee, Adv.

Ms. Arijita Ghose, Adv.

Mr. Siddhartha Chamaria, Adv.

HEARD ON : 02.12.2025 DELIVERED ON : 02.12.2025 DEBANGSU BASAK, J.:-

1. Appeal under Section 37 of the Arbitration and Conciliation Act, 1996, is directed against the judgment and order dated March 17, 2020 passed in AP/810/2010.

2. By the impugned judgment and order, learned Single Judge refused to set aside the award dated September 30, 2010.

3. Learned advocate appearing for the appellant, draws the attention of the Court to the terms and conditions of the contract entered into between the parties and particularly, the arbitration clause. According to him, there are certain matters which are excepted in terms of the arbitration clause.

4. Learned advocate appearing for the appellant draws the attention of the Court to the statement of claim as also the statement of defence and counter-claim. He submits that, out of 22 claims, the arbitrator allowed 11 claims being claim nos.1, 5, 6, 7, 8, 9, 11, 13, 19, 21 and

22.

5. Learned advocate appearing for the appellant refers to discussions with regard to the claims as made in the award. He contends that, claim nos.1 and 5 were allowed by the arbitrator ignoring the express terms of the contract. He submits that, the respondent is not entitled to any claim under those two heads. In respect of claim nos.6, 7, 8 and 9, learned advocate appearing for the appellant submits that, some of the claims were allowed without giving any reasons and that, claim nos.8 and 9, in particular, were not arbitrable.

6. Learned advocate appearing for the appellant submits that, the arbitrator proceeded to award claim nos.11 and 13 without any evidence. So far as the claim nos.19, 21 and 22 are concerned, he submits that, they are largely incidental to the earlier claims. If the earlier claims are disallowed, claim nos.19, 21 and 22 should also be disallowed.

7. Learned advocate appearing for the appellant submits that, the formal work order was issued on September 11, 2002. The date of completion of the contract was October 3, 2003. Work was actually completed on May 22, 2004. He submits that there are correspondence exchanged between the parties where the appellant called upon the respondent to complete the work within the stipulated time and in default, inform the respondent that the appellant will invoke the liquidated damages clause. He refers to the liquidated damages clause in the contract. He points out that, the learned arbitrator proceeded to disallow the counter-claim only on the basis of the arbitrator not allowing one of the claims of the claimant.

8. Learned advocate appearing for the appellant submits that, since the contract was of 2002 and the date of completion of the contract was October 3, 2003 with the work being completed on May 22, 2004, the arbitration, is governed by the provisions of Section 34 of the Act of

1996 as it stood then without the amendments.

9. Learned advocate appearing for the appellant draws the attention of the Court to the impugned judgment and order. He submits that, in paragraphs 15 and 16 of the impugned judgment and order, learned Single Judge noted the provisions of Section 34(2-A) of the Act of 1996 and proceeded to deal with the challenge under Section 34 of the Act of 1996 on such basis. He draws the attention of the Court to the fact that, Section 34(2-A) was introduced to the Act of 1996 by way of an amendment with retrospective effect from October 23, 2015, even then, since the date of completion of the contract was on May 22, 2004 and the disputes an