IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated 05.10.2021 CORAM:

THE HONOURABLE MR.JUSTICE N. SATHISH KUMAR Arb O.P(COM.DIV.)No.170 of 2021 and A.No.3513 of 2021

1.M/s.Bharat Sanchar Nigam Limited, Rep. By its Chief General Manager, Chennai Telephones, No.78, Purasawalkam High Road, Chennai – 600 010.

2. The Deputy General Manager (O&M)/STM, Bharat Sanchar Nigam Limited, Chennai Telephones, No.16, GST Road, Chrompet, Chennai – 600044. . . Petitioners Versus The RITES Ltd., (A Govt. of India Enterprises-Ministry of Railway)

Rep. By its Joint General Manager, No.758, Mount Chamber, 1^st Floor, Anna Salai, Chennai 600002. . . . Respondent PRAYER : Petition filed under Section 34 of the Arbitration and Conciliation Act, 1996 to set aside the arbitral award dated 20.03.2021 passed in O.P.No.905 of 2018 and A.F.No.79/2019 passed by the Hon'ble Mr.Justice K.Mohanram, Former Judge High Court, Madras, Sole Arbitrator, in its entirety and to direct the respondent to pay the costs. For Petitioners : Mr.S.Gopinathan For Respondent : Mr.Amalraj S.Penkilapatti

O R D E R

This original petition has been filed to set aside the arbitral award dated

20.03.2021 passed in O.P.No.905 of 2018 and A.F.No.79/2019 passed by the Hon'ble Mr.Justice K.Mohanram, Former Judge High Court, Madras, Sole Arbitrator, in its entirety and to direct the respondent to pay the costs.

2. For the sake of convenience, the parties are referred to by the rank in the Arbitral proceedings.

3. The claimant is a Public Sector Undertaking company incorporated under the Companies Act, 1956. The claimant has participated in the Tender floated by the first respondent (BSNL) vide its Tender Notification No:T/General/2000-01/1 dated 20/26.12.2000 calling for tenders from Public Sector Units for acting as “Consultancy” for the work of “Survey, Supervision, Tendering, Documentation etc. for execution of External Plant Work” throughout the jurisdiction of Chennai Telephones. After negotiations, the respondent selected the claimant as one of the Consultants and issued the Letter of Approval bearing No:DGM (O&M)/STM/2001-2002 dated 20.02.2001 favouring the claimant. Pursuant to the “Letter of Approval” dated 20.02.2001, the respondents and the claimant entered into an Agreement No-DGM (O&M) STM/Turnkey Proj/2000-2001 dated 30.03.2001 for executing the work of “Erection of DP and upgradation of Pillars in Chromepet Jagjivan Ram Nagar and Hasthinapuram Area of Chennai Telephones. The consultant/claimant shall receive consolidated payment from BSNL for each project/work for the executed quantities as recorded in the check lists signed by the Sub-Contractor, RITES and the officials of BSNL. The Claimant/RITES must make payment to the Sub Contractors of the work carried out. The Claimant with the help of the Sub Contractors completed the works to the satisfaction of the concerned officials of BSNL and submitted all its Bills strictly as per the 'Check-lists' and the Measurements recorded in the M-Book that were also signed by the concerned officials. However, the respondent has not paid the bills for sand billing and earth removal, whereas, they paid only for their items of work under the claimant's bill. Hence, the claimant referred the dispute claiming a sum of Rs.87,727/- as Principal sum due from the respondents and also prayed for Pendentelite interest.

4. Learned counsel for the petitioners submitted that eventhough the claimant had completed the work in March 2003, he has invoked arbitration in the year 2007. As per the contract, the arbitration ought to have been invoked within a period of 90 days from the date of receiving the intimation from Chennai Telephones that the Bill is ready for payment. Whereas the claimant did not make such a request and therefore the claimant is deemed to have waived its claim and barred by Limitation. In the disputed bill, the claimant has claimed excessively. Since there was no mention in the work order about sea-sand filling and excess earth removal, the sam