JUDGMENT

TEJAS KARIA, J

1. The Appellant has filed the present appeal under Section 37 of the Arbitration and Conciliation Act, 1996 (‘the Act’), being aggrieved by the judgment dated 03.10.2023 passed in OMP (COMM.) No. 405/2023 by the learned Single Judge of this Court (‘impugned judgment’).

2. The impugned judgment has dismissed a petition under Section 34 of the Act and upheld the award dated 16.06.2023 whereby the learned Sole Arbitrator has awarded ₹33.69 plus ₹9.83 crores alongwith interest in favour of the Respondent herein.

3. The learned Single Judge, by way of impugned judgment, has held that in view of substantial evidence and observations made by the learned Tribunal, there is no ground to interfere with the award under Section 34 of the Act.

FACTUAL BACKGROUND:

4. The present dispute arises out of the invitation for bid vide Notice Inviting E-Tender (‘NIT’) dated 13.04.2016 in respect of survey, planning, supply, installation, testing, commissioning, integration with existing core network and Operation & Maintenance for five years of 2G GSM BSS Network in uncovered villages of Arunachal Pradesh and Karbi Anglong and Dima Haso, districts of Assam alongwith radio V-SAT backhaul. The said bid was invited by Appellant pursuant to calling upon by Universal Services Obligation Fund (‘USOF’), Department of Telecommunication, Government of India, in 2014.

5. Pursuant to the NIT, the Respondent as the bidder carried out pre-bid testing and technical evaluation of its equipment during the period from 17.10.2016 to 24.03.2017.

6. On 25.04.2017, the Respondent was found to be a successful L1 bidder and, thereafter, Respondent entered into price negotiations and agreed to grant discount of 11% on the quoted price of all OPEX Items. 7. As the villages of Arunachal Pradesh, where the work was to be done were some of the remotest villages of the country with no connectivity and with poor road network, the terrain was one of the toughest to execute the project. Further, the area of this village was nearing China border and was hit by insurgency. Hence, Respondent undertook pre-planning and preparation during the course of finalization of the bid.

8. On 01.03.2018, the Appellant directed the Respondent to initiate all preparatory actions and to give unequivocal and unconditional acceptance for field test with live traffic (‘FTL’) for three months. In response, the Respondent on 15.03.2018 accepted the additional field test requirement and sought the issuance of the Advance Purchase Order (‘APO’).

9. On 21.03.2018, APO was issued by the Appellant which was unconditionally accepted by the Respondent. The Respondent also submitted Performance Bank Guarantee (‘PBG’).

10. Upon allocation of sites, the Respondent started deployment of resources in the target area and performed all project related works as per the requirements of the tender and testing mandate of the Appellant. However, the Appellant did not issue the advance purchase order and ultimately withdrew the APO on 10.02.2020, after a delay of about four years. The Respondent claimed the loss and damages suffered due to withdrawal of APO by invoking arbitration under clause 36 of the APO. It is the case of the Appellant that on 11.09.2019, USOF informed the Appellant that DCC (Digital Communication Commission) had decided to float a fresh tender on the 4G technology and accordingly, USOF on 04.12.2019, terminated the agreement signed between USOF and the Appellant w.e.f. 11.09.2019. In view of the termination of the agreement between USOF and BSNL, under which the tender was floated, and the Respondent was found to be L1, the APO placed upon the Respondent had to be withdrawn and the PBG for ₹29.73 crores was returned to the Respondent. The learned Arbitral Tribunal passed the award on 16.06.2023 holding that there was no enforceable contract between the parties and withdrawal of the APO by the Appellant cannot be said to be arbitrary. Accordingly, the learned Arbitral Tribunal