ORDER

Captioned 'Original Petition' ('OP' for the sake of brevity) is an application under Section 34 of 'The Arbitration and Conciliation Act, 1996 (Act No.26 of 1996)', which shall hereinafter be referred to as 'A and C Act' for the sake of brevity, assailing an 'arbitral award dated 05.03.2016' (hereinafter 'impugned award' for the sake of brevity), made by a Sole Arbitrator, who constituted the 'Arbitral Tribunal' ('AT' for the sake of brevity) which made the impugned award.

2. The entire lis pertains to a contract awarded by Southern Railway to 'Best Cast Constructions Pvt. Ltd.,' (hereinafter 'contractor'

for the sake of convenience). Suffice to say that this contract was inter alia for doubling of track between Shornur and Mangalore – Cannanore – Mangalore Section : Construction of Major Bridges with Pile foundation and Earthwork for approaches, 1) 14 spans of 12.19 M, PSC, Girder opposite to existing Bridge No.1162 at km 804/8-13 and 2) 1 span of 15.00M PSC Girder to existing Bridge No.11653 at km 804/17-805/1.

3. Southern Railway floated a tender on 15.07.1998, a formal agreement was entered into on 28.06.1999 (this formal agreement shall hereinafter be referred to as 'said contract' for convenience) and 24 months from the date of Letter of Acceptance (22.05.1999) is the time fixed for completion of said work. In other words, work had to be completed by 21.05.2001. This Court is informed that contractor had done another work for Southern Railway, which was treated as a targeted one, on completing the targeted work satisfactorily, said work was awarded to contractor and this is the reason for the gap between the date of acceptance of tender and the issue of Letter of Acceptance. However, it is not necessary to dilate further on facts owing to the thoroughly professional approach taken by the two learned counsel before me in the light of the limited supervisory jurisdiction of a Section 34 Court.

4. Ms.K.Aparna Devi, learned counsel for contractor (claimant before AT and petitioner in captioned OP) and Mr.P.T.Ramkumar, learned Standing Counsel for Southern Railway (Respondents before AT and Respondents in captioned OP also) were before me. Respondents before AT, who are also respondents in captioned OP, shall be referred to as 'Southern Railway' for convenience.

5. Regarding lis between contractor and Southern Railway, suffice to say that said work was affected by south west monsoon and Southern Railway taking the position that contractor has not achieved the requisite target, terminated said contract. This termination was assailed as unjust by the contractor. This is the crux and gravamen of the lis.

6. After long and protracted proceedings, a former Hon'ble Judge of the Supreme Court of India was appointed as sole Arbitrator, who constituted the AT.

7. Several issues ranging from whether time was essence of the contract, whether the parties are governed by price variation formula, whether the termination is valid were thrashed out in the lis before AT. To be noted, as many as 15 issues were framed by AT and the same have been captured in Paragraph 13 of the impugned award.

8. Notwithstanding the above position, as already alluded to supra, both the learned counsel before me took a very professional approach and submitted that captioned OP turns only on two short points. To be noted, this is notwithstanding very many grounds raised in the OP. 9. Learned counsel for contractor who opened the submissions, submitted that only two points are being urged and they are a) vitiation amounts and b) Sales Tax, which according to the contractor has been paid and which the contractor is entitled to be reimbursed.

10. To put it in statutory parlance, it was submitted that the challenge is predicated on 28(1)(a) and 28(3) of A and C Act. In other words, it has not taken into account the terms of the contract i.e., said contract in this case, is learned counsel's say.

11. Let me deal with the two points. With regard to vitiation amount, releva