Delhi District Court
Amar Engineering Company Through Its ... vs Sarens Heavy Lift India Private Limited on 22 May, 2026
IN THE COURT OF SH. PULASTYA PRAMACHALA
DISTRICT JUDGE, (COMMERCIAL COURT)-01,
PATIALA HOUSE COURT, NEW DELHI
INDEX
Sl. HEADINGS Page Nos.
No.
1. Memo of Parties 2
2. Description of the Case 2
3. Case Set up by Petitioner 2-5
4. Grounds of Challenge 5-10
5. Reply of Respondent 10-13
6. Arguments of Petitioner 13-17
7. Arguments of Respondent 17-19
8. Appreciation of Arguments, Law & Facts 20-27
9. Decision 27
Digitally
signed by
PULASTYA
PULASTYA PRAMACHALA
PRAMACHALA Date:
2026.05.22
15:16:06
+0530
OMP (COMM.) No. 158/2025 (Pulastya Pramachala)
District Judge (Commercial Court)-01,
Page No.1 of 27 Patiala House Court, New Delhi
OMP (COMM) No. 158/2025
In the matter of: -
M/s. Amar Engineering Company
Through its Sole Proprietor: Sh. Amar Pal Singh,
Having its Head Office at: Amar House,
Plot No.1, Indupuram, Aurangabad,
Mathura-281005, U.P.
Email: [email protected]
...Petitioner
Versus
Sarens Heavy Lift India Pvt. Ltd.
Having its Registered Office at:
370, Mandawali Fazalpur,
Near Janta Cycle, Santi Marg Road,
East Delhi, Delhi-110092.
...Respondent
Date of Institution : 22.09.2025
Arguments heard on : 06.05.2026
Decided on : 22.05.2026
Decision : Petition is dismissed.
JUDGMENT
DESCRIPTION OF THE CASE
1. Present petition has been filed under Section 34 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as "the Act"), assailing the arbitral Award dated 26.06.2025 as passed by learned Sole Arbitrator Sh. Anupam Srivastava in arbitration no. DIAC/6038 D/03-23.
CASE SET UP BY PETITIONER
2. Briefly stated, petitioner i.e. M/s. Amar Engineering Company, is a proprietorship of its sole proprietor Mr. Amar Pal Singh, OMP (COMM.) No. 158/2025 (Pulastya Pramachala) District Judge (Commercial Court)-01, Page No.2 of 27 Patiala House Court, New Delhi engaged in the business of engineering contracts and works. Respondent i.e. Sarens Heavy Lift India Pvt. Ltd. is a company incorporated under the Companies Act, 1956, engaged in the business of heavy lifting and crane rental services.
3. It has been averred that petitioner engaged respondent under Letter of Intents (LOIs) dated 08.03.2022 and 02.04.2022, to provide/supply a 600 MT capacity crawler crane, for execution of a scheduled shutdown at GAIL's petrochemical plant located in Pata, District Auraiya, Uttar Pradesh, for the purpose of replacement of oil-water separator, heat exchangers and inspection of steam drum during shutdown of GCU-I. LOIs expressly provided for a hire period of one month from the date of commissioning and separately specified mobilisation and demobilisation charges and payment milestones. It has been further averred that crane was mobilised on 22.04.2022 and commissioning was completed on 29.04.2022. Petitioner further averred that the expected commissioning under the LOI was 09.04.2022, but respondent mobilised crane at the site only on 22.04.2022. It has been further averred that as a direct consequence of late mobilisation, petitioner suffered operational difficulties at the shutdown and incurred consequential costs.
4. It has been further averred that respondent raised invoices aggregating Rs.1,48,68,000/-. Out of which, petitioner paid Rs.89,41,569.60/- and deducted/claimed Rs.59,26,430.40/- as adjustments on account of actual losses and third-party payments, leaving a disputed balance. Respondent disputed these OMP (COMM.) No. 158/2025 (Pulastya Pramachala) District Judge (Commercial Court)-01, Page No.3 of 27 Patiala House Court, New Delhi deductions and issued a legal notice dated 26.09.2022, demanding alleged outstanding. Petitioner replied on 07.10.2022, furnishing detailed justification with supporting documents including correspondence with GAIL, shutdown schedules, and expense records.
5. It has been further averred that the principal dispute between the parties and the subject matter of the arbitration related to: - (i) whether respondent was entitled to full invoiced amounts; (ii) whether and to what extent petitioner was lawfully entitled to make deductions or set-offs for losses occasioned by delay; and
(iii) interest and costs.
6. It has been further averred that aggrieved by inaction of the petitioner herein, respondent herein (Sarens Heavy Lift India Pvt. Ltd., claimant before Tribunal) had issued a notice under Section 21 of the Act for appointment of Arbitrator. Having received no response to the same, respondent herein filed an Arbitration Petition under Section 11(6) of the Act, for appointment of Arbitrator, which was allowed by Hon'ble High Court of Delhi, vide order dated 17.02.2023, referring the present dispute to DIAC. The Tribunal was constituted vide communication dated 24.11.2023 by DIAC. Thereafter, Mr. Anupam Srivastava, was appointed as Sole Arbitrator. Respondent filed its Statement of Claim on 17.05.2023 before DIAC. Petitioner filed its Statement of Defence on 03.10.2023. Respondent filed its rejoinder on 03.02.2024. Tribunal framed issues for adjudication and conducted evidence, but it did not allow witness of M/s. KSR OMP (COMM.) No. 158/2025 (Pulastya Pramachala) District Judge (Commercial Court)-01, Page No.4 of 27 Patiala House Court, New Delhi Cranes and Nimbus Logistics vide order dated 13.07.2024.
7. It has been further averred that the Tribunal awarded claimant principal sum of Rs.52,75,553.88/- plus interest (pre-reference @6% from 20.06.2022, pendente-lite and future @8%). Documentary evidence demonstrating these consequences (inter office memos, third-party invoices and payment memorandum) was placed before the Tribunal.
8. It has been further averred that Tribunal found a 13 days delay in mobilisation, but held that time was not the essence of the contract. The Tribunal accepted in principle petitioner's entitlement to claim compensation under Section 55, 73 of Indian Contract Act, but disallowed most of petitioner's major deduction heads, allowing only limited deductions (KSR Cranes and partial TDS).
GROUNDS OF CHALLENGE
9. Aggrieved by the arbitral award dated 26.06.2025, petitioner preferred present objections under Section 34 of the Act, inter alia, on the following relevant grounds: -
i. That the Tribunal accepted delay and the legal principle, entitling petitioner to un-liquidated damages, yet rejected major deductions without reasoned findings and this internal contradiction amounts to patent illegality.
ii. That material documentary and corroborative evidence of actual losses (credit notes, third party invoices and inter office memos) was either ignored, treated inconsistently or rejected on OMP (COMM.) No. 158/2025 (Pulastya Pramachala) District Judge (Commercial Court)-01, Page No.5 of 27 Patiala House Court, New Delhi untenable grounds.
iii. That Tribunal failed to properly assess quantum, where it accepted petitioner's right to compensation in principle.
iv. That ld. Arbitrator effectively nullified the consequences of delay, contrary to Sections 55 and 73, which amounts to a clear error of law, when time is not the essence. That ld. Arbitrator allowed petitioner to claim damages on account of 13 days delay applying the ratio of McDermott International Inc. v. Burn Standard Co. Ltd. (2006) 11 SCC 181, and such misapplication cannot be sustained and squarely falls within the scope of judicial review under Section 34 of the Act.
v. That without reasoned findings, ld. Arbitrator disallowed most material deduction heads claimed by petitioner. That acceptance of a legal principle followed by denial of its necessary consequence without explanation, is patent illegality appearing on the face of Award.
vi. That Tribunal did not carry out a proper inquiry as to prejudice, and thereafter proceeded to treat the cost imposed by GAIL inconsistently, at times giving it evidentiary weight and at other times discounting it without reasoned findings. That the Tribunal failed to permit petitioner to adduce admissible corroborative proof and left unexplained its rejection of major heads (Nimbus Logistics).
vii. That Tribunal ignored the contractual back-to-back liability structure, whereby deductions imposed by GAIL, were to be passed down to the respondent. That by disregarding clause 4 of OMP (COMM.) No. 158/2025 (Pulastya Pramachala) District Judge (Commercial Court)-01, Page No.6 of 27 Patiala House Court, New Delhi subcontract, Award rewrites the contract and imposes liability without basis, which amounts to patent illegality and renders the Award contrary to public policy. (Ref. Bawana Infra Projects Ltd. v. Union of India, (2023) 2 HCC (Del)) viii.That Tribunal erred in awarding interest under Section 31(7) of the Act contrary to contract, acted in violation of Section 28(3) of the Act, which mandates adherence to the terms of contract. That Award unjustly enriches respondent by granting it not only inflated claims, but also interest on those claims, despite respondent's breach having caused loss to petitioner.
ix. That despite the Tribunal categorically found that respondent was in delay of 13 days in mobilisation/commissioning of the crane, it awarded respondent full mobilisation and monthly hire charges and granted interest, as if no delay existed. That the Tribunal failed to apply the necessary legal consequences of its own finding and to correlate the finding with contemporaneous documents showing petitioner's consequential losses.
x. That Tribunal committed error in diluting the importance of timelines in commercial contracts by citing Welspun Specialty Solutions Ltd. v. ONGC, (2022) 2 SCC 382 and also reaffirmed that "time is essence" is to be deduced from the contract itself and the commercial context. That Tribunal gravely erred in placing reliance and interpretation of Hon'ble Supreme Court's decision as passed in Welspun (supra) to justify rejection of petitioner's deductions.
xi. That Tribunal ignored the mandatory nature of shutdown OMP (COMM.) No. 158/2025 (Pulastya Pramachala) District Judge (Commercial Court)-01, Page No.7 of 27 Patiala House Court, New Delhi timelines and treated the LOI as if it were a flexible supply contract. Such reasoning misapplies Section 55 of Indian Contract Act. That by disregarding the express commissioning date and the commercial context, Tribunal violated Section 28(3) of the Act.
xii. That Tribunal ignored material evidence produced by petitioner such as GAIL's credit notes. That the Tribunal gravely erred in accepting respondent's contention that invoice no.4501/15/U2/0206 (for Rs.21,35,139.88) had been "inadvertently raised and thereafter cancelled" by issuance of Credit Note dated 31.05.2022 (Ex.C-9). That respondent never proved that the so-called "wrong invoice" was ever issued to or received by petitioner. That in absence of proof of issuance of impugned invoice, the credit note itself is legally untenable and void. That the Tribunal by presuming its validity, has ignored the express provisions of Section 34 of CGST Act. That Tribunal's reliance on said credit note to reject petitioner's contention, is patent illegal, which amounts to non-application of mind. That Tribunal erred in holding that the credit note dated 31.05.2022 was issued merely to cancel a mistakenly raised invoice bearing no.4501/15/U2/0206.
xiii.That Tribunal disregarded commissioning reports, log sheets and oral evidence showing that the crane was deployed for less than the contracted one-month period. That instead of appreciating the reduced period of actual use, Tribunal gave blanket effect to Clause 8 of LOI, without considering the admitted 13 days delay OMP (COMM.) No. 158/2025 (Pulastya Pramachala) District Judge (Commercial Court)-01, Page No.8 of 27 Patiala House Court, New Delhi in mobilisation and petitioner's corresponding losses.
xiv. That by treating witness CW-1/Mr. Arindam Gon competent to verify the claim and tender foundational evidence, Tribunal ignored basic principles of evidence and authorised representation, leading to procedural irregularity under Section 34(2)(a)(iii) of the Act.
xv. That ld. Sole Arbitrator has acted in complete contradiction, in selective appreciation of evidence by applying different yardsticks to similar heads of claims.
xvi. That Tribunal did not consider that respondent not only delayed mobilisation by several days, but also unilaterally sought to alter the agreed payment terms, thereby frustrating the contractual understanding. Even after eventual mobilisation, the crane released on 29.04.2022 was not removed till 28.06.2022, exposing the petitioner to avoidable site charges, manpower costs and substantial deductions by GAIL. Consequently, petitioner was subjected to recoveries aggregating to Rs. 59,26,335.56 towards late mobilisation of cranes and trailers, loading charges and credit note adjustments.
xvii. That ld. Sole Arbitrator has erroneously concluded that "time was not the essence of the contract", despite the admitted delay of 13 days, and in doing so ld. Sole Arbitrator has selectively accepted and rejected analogous claims resting on identical evidentiary foundations. Such contradictory reasoning demonstrates an inconsistent and irreconcilable approach which renders the Award perverse, arbitrary and legally unsustainable.
OMP (COMM.) No. 158/2025 (Pulastya Pramachala)
District Judge (Commercial Court)-01,
Page No.9 of 27 Patiala House Court, New Delhi
xviii. That impugned Award is vitiated as Tribunal has adopted diametrically opposite and inconsistent stands on issues which are identical or materially similar, thereby applying two different standards within the same adjudication. On one hand, Tribunal has treated certain contractual stipulations and contemporaneous correspondence as binding, while deciding one issue, whereas while dealing with another issue arising from the same contract and on identical terms, has disregarded or refused to apply the same reasoning.
xix. That Tribunal has also failed to appreciate and give due weight to the testimonies and documentary evidence led by the petitioner, including contemporaneous Emails, log sheets and express confirmations by respondent's representatives, which directly established breach and resultant loss. That selective disregard of such evidence, without assigning any cogent reasons, constitutes non-consideration of material evidence and amounts to denial of natural justice.
xx. Prayer has been made to set aside the Award in question. It has been also prayed that petitioner be declared to be entitled to deductions/set-offs on account of delay attributable to respondent, including but not limited to the heads related to GAIL PRS deduction, Nimbus Logistics charges, and other consequential losses as placed on record before Tribunal.
REPLY OF THE RESPONDENT/CLAIMANT
10. Reply was filed on behalf of respondent denying all the allegations, averments and contentions made by petitioner except OMP (COMM.) No. 158/2025 (Pulastya Pramachala) District Judge (Commercial Court)-01, Page No.10 of 27 Patiala House Court, New Delhi admission of respondent. In the reply, respondent took preliminary objections that impugning Award is devoid of merit, based on a misconceived reading of law, raises frivolous, ill- conceived, baseless grounds and therefore, same is liable to be dismissed in limine at its very threshold with exemplary cost. The interpretation of terms of contract is prerogative of ld. Arbitrator and court cannot substitute its own view u/s. 34 of the Act.
11. It has been further replied that petitioner has failed to make any justifiable averments with respect to patent illegality or the fundamental policy of Indian Law and devoid of such averment, the present petition is liable to be dismissed.
12. It has been further replied on behalf of respondent that the surrounding circumstances supports the finding that the time was not of essence of the contract and there is no infirmity in the impugned Award. It has been further replied that the Tribunal did not allow the deduction made by petitioner inter-alia on the ground of failure to prove the loss. There was no delay in completion of work under the contract, thus, petitioner was not at all entitled to deduct any amount on account of delay. It has been further replied that Tribunal did not allow the claim with respect to Nimbus on account of failure to prove the loss. The Tribunal has rightly observed that a voluntary act of issuing of credit note cannot entitle the petitioner to claim that amount in the form of unliquidated damages especially when no evidence with respect to any such demand being made by GAIL, had been OMP (COMM.) No. 158/2025 (Pulastya Pramachala) District Judge (Commercial Court)-01, Page No.11 of 27 Patiala House Court, New Delhi produced by the petitioner. It has been further replied that petitioner did not put respondent to notice specifying that in the event of commissioning beyond 09.04.2022, it would be claiming damages on account of any loss due to the same. It has been further replied that there was no dispute that the crane was commissioned on 22.04.2022 and as such prior event explaining as to why the crane got delayed loses its significance more so, because respondent nowhere pleaded about any excuse or obstruction preventing it from deploying the crane on 09.04.2022 except to the fact that LOI-2 dated 02.04.2022 was issued only on 09.04.2022. It has been further replied that the contract between the parties or the correspondences exchanged between the parties do not specify any specific time period for shutdown, therefore, recoveries made by petitioner was illegal and baseless. The failure of petitioner in proving quantum of loss and documents, led to rejection of the deductions by the Tribunal.
13. It has been further replied that contract between the parties had three payment components: - (i) mobilization cost/charges; (ii) hiring rental and (iii) de-mobilization cost/charges. Same also included GST @ 18% and overall calculation of the entire contractual amount along with GST aggregated to Rs. 1,48,68,000/-. Out of these, rental was barely Rs.45 lacs plus GST @18% and rest of the amount were expenses to be borne by the respondent for mobilization and de-mobilization of the crane.
14. It has been further replied that Tribunal did not make an error in accepting contention of respondent that invoice no.
OMP (COMM.) No. 158/2025 (Pulastya Pramachala) District Judge (Commercial Court)-01, Page No.12 of 27 Patiala House Court, New Delhi 450/15/U2/0206 for Rs. 21,35,139.88/- had been inadvertently raised and thereafter, cancelled by issuance of credit note dated 31.05.2022 of equal amount. Respondent produced and proved the invoice no. 4501/15/U2/0206 dated 29.05.2022 and credit note bearing no. 4501/16/U2/0029 dated 31.05.2022, both for an amount of Rs. 21,35,139.88/- through its witness. The afore-said stand was also supported by Emails dated 09.06.2022 and 01.07.2022 issued by respondent, mentioning therein that credit note was issued against wrongly raised invoice and petitioner never rebutted the stand of respondent in his Emails.
15. It has been further replied that GAIL agreement contained PRS clause and contract amount, which petitioner failed to disclose before the Tribunal during cross-examination. Petitioner failed to produce any document issued by GAIL disclosing levy of PRS of deducted amount. It has been further replied that petitioner failed to disclose patent illegality or any infirmity in the Award. It has been further replied that the Tribunal has passed a detailed and reasoned Award, which does not require any interference. It has been further replied that petitioner could not identify a single instance, where the Tribunal ignored vital evidence or violated principles of natural justice. Prayer has been made for dismissal of the present petition with exemplary cost.
WRITTEN ARGUMENTS OF PETITIONER
16. A written argument was filed on behalf of petitioner, reiterating the above-mentioned plea. Apart from that, it has been mentioned that the Tribunal applied different evidentiary OMP (COMM.) No. 158/2025 (Pulastya Pramachala) District Judge (Commercial Court)-01, Page No.13 of 27 Patiala House Court, New Delhi standards to identical categories of claims (KSR allowed, Nimbus rejected; Ex. DW-1/4 accepted, Ex. DW-3/2 and DW- 3/4 ignored). As held in Delhi Airport Metro Express Ltd. v. DMRC, (2022) 1 SCC 131, complete disregard of critical evidence amounts to perversity. Applying the three-part test from Associate Builders v. DDA, (2015) 3 SCC 49, (approved in Ssangyong Engineering & Construction Co. Ltd. v. NHAI, (2019) 15 SCC 131, the findings on GAIL PRS and Nimbus deductions are based on no evidence (ignoring what was on record) and constitute disregard of vital evidence (Ex. DW-3/2, DW-2's testimony).
17. It has been further mentioned that the Tribunal relied on unchallenged testimony of CW-1 to award interest, treated silence in cross-examination as waiver of substantive defences, and failed to consider the contractual terms under Section 31(7)
(a) of the Act. The Award records no reasoning for why the three rejected deduction heads were disallowed while allowing the KSR deduction on identical evidentiary footing. It has been further mentioned that Section 31(3) of the Act, mandates that the arbitral award "shall state the reasons upon which it is based." The selective disregard of testimony and documentary evidence led by the petitioner, including contemporaneous emails, log sheets, and express confirmations by the respondent's representatives, without assigning any cogent reasons, constitutes a clear violation of Section 31(3) of the Act. This also amounts to denial of natural justice and failure to consider material evidence, OMP (COMM.) No. 158/2025 (Pulastya Pramachala) District Judge (Commercial Court)-01, Page No.14 of 27 Patiala House Court, New Delhi vitiating the Award under Section 34(2)(a)(iii) and Section 34(2A) of the Act.
18. It has been further mentioned that the Award in question compels petitioner to pay the full contractual amount to a party admittedly in breach, including interest thereon, while disallowing legitimate deductions evidenced by third-party documents. This violates the doctrine of unjust enrichment and the principle that no party shall benefit from its own wrong.
19. It has been further mentioned that Section 28(3) of the Act mandates that the Arbitral Tribunal shall decide the dispute in accordance with the terms of the contract. The LOI-II (Ex. C-3) expressly fixed 09.04.2022 as the projected commissioning date; the LOIs contained no provision for interest; and the contractual structure of a one-month hire period from commissioning inherently required timely mobilisation. It has been further mentioned that the Tribunal disregarded these express contractual terms by: - (i) holding that time was not of the essence despite the express commissioning date in a shutdown contract; (ii) awarding interest in the absence of any contractual stipulation; and (iii) enforcing the "minimum one month's hire"
clause, literally without considering that the delay reduced the effective period of service. It has been further mentioned that in a shutdown contract, "one month's hire" must mean one month of effective and timely availability. By ignoring these contractual realities, the Tribunal violated its statutory mandate under Section 28(3) of the Act.
OMP (COMM.) No. 158/2025 (Pulastya Pramachala) District Judge (Commercial Court)-01, Page No.15 of 27 Patiala House Court, New Delhi
20. It has been further mentioned that both Welspun Speciality Solutions Ltd. v. ONGC, (2022) 2 SCC 382 and McDermott International Inc. v. Burn Standard Co. Ltd., (2006) 11 SCC 181, properly applied, support the petitioner's case and the Tribunal misconstrued these authorities to shield the defaulting respondent from the natural consequences of its delay.
21. It has been further mentioned that the Tribunal refused to permit petitioner to call corroborative witnesses of M/s KSR Cranes and Nimbus Logistics and permitted de-exhibition of the Nimbus invoice, while accepting oral testimony alone for KSR; and treated GAIL documents of identical provenance inconsistently, thereby causing material prejudice to the petitioner and denying a fair opportunity to establish its deductions. It has been further mentioned that refusing the witness, then penalising for lack of proof, is a denial of petitioner's right to present its case, violating Section 18 of the Arbitration Act (equal treatment of parties).
22. It has been further mentioned that impugned Award dated 26.06.2025 is vitiated by patent illegality apparent on its face (Section 34(2A)), perverse appreciation of evidence, non- application of mind, violation of fundamental policy of Indian law (Section 34(2)(b)(ii)), procedural irregularity (Section 34(2)
(a)(iii)), violation of Section 31(3) (mandate for reasoned award), and violation of Section 28(3) (mandate to decide in accordance with contractual terms). The Award is internally contradictory, inconsistent in its treatment of evidence, and contrary to both the contractual terms and settled principles of law.
OMP (COMM.) No. 158/2025 (Pulastya Pramachala) District Judge (Commercial Court)-01, Page No.16 of 27 Patiala House Court, New Delhi
23. In support of the contentions, petitioner placed reliance upon certain case laws, which are as under: -
i. Ssangyong Engineering (supra). ii. Associate Builders (supra).
iii. ONGC Ltd. v. Western Geco International Ltd., (2014) 9 SCC
263.
iv. McDermott International (supra). v. Welspun Speciality (supra). vi. Delhi Metro Rail Corporation Ltd. v. Delhi Airport Metro Express Pvt. Ltd. (2024) 6 SCC 357.
vii. Sujit Kumar Jaiswal v. The Managing Director, Dalmia Research International Pvt. Ltd., 2026 SCC OnLine 1961.
24. Reliance was placed upon the case of Sujit Kumar Jaiswal (supra), to highlight the observations of Hon'ble High Court of Delhi that: -
"77. Consequently, the refusal to permit the examination of material witnesses, when viewed in conjunction with the summary and unreasoned rejection of the Petitioner‟s Application seeking the examination of such witnesses, effectively resulted in a negation of the Petitioner‟s Agreement, which leads this Court to conclude that the Petitioner was effectively prevented from proving his case, which is against the basic notions of justice causing perversity going to the very root of the matter, and thereby rendering the Impugned Award subject to judicial interference."
WRITTEN ARGUMENTS OF RESPONDENT
25. Written submission/argument was filed on behalf of respondent as well, reiterating the plea already taken in the reply. Apart from said plea, it has been mentioned that once petitioner failed to OMP (COMM.) No. 158/2025 (Pulastya Pramachala) District Judge (Commercial Court)-01, Page No.17 of 27 Patiala House Court, New Delhi quantify its loss, it cannot claim damages as a matter of right even if there is delay and Tribunal was justified in not allowing the deductions made by petitioner. It has been further mentioned that petitioner was aware about fact that respondent would not be able to commission the crane by 09.04.2022, despite that it did not put respondent to notice, since it was well aware that the work was to be executed within one month hiring period. It has been further mentioned that respondent did not have back-to- back contract and its contract did not contain any provision to entitle the petitioner to deduct such LD/PRS. It has been further mentioned that the conduct of petitioner in allowing respondent to commission the crane beyond 09.04.2022 in itself demonstrate that there was no urgency of work. It has been further mentioned that interpretation of contract, documents, communications and the facts provided under Award, is a reasonable interpretation, which could be sustained as being a plausible view and the same falls within domain of Ld. Arbitrator. It has been further mentioned that Ld. Arbitrator accepted legal principle laid down in Section 73 and disallowed petitioner's deductions for extra payment made to M/s Nimbus Logistics, due to failure of petitioner in proving the same. The purported invoice of M/s Nimbus Logistics was voluntarily de-exhibited by petitioner due to non-production of original. It has been further mentioned that deduction shown to be made under Inter-office Memos dated 04.06.2022 and 02.07.2022, is on account of GAIL's construction equipment and petitioner could not prove that the said deduction was due to any act/omission of the respondent. It has been OMP (COMM.) No. 158/2025 (Pulastya Pramachala) District Judge (Commercial Court)-01, Page No.18 of 27 Patiala House Court, New Delhi further mentioned that the Tribunal is duly empowered to grant interest if there is no agreement to the contrary in the contract i.e. interest barring clause. In the present case, since there was no clause barring interest, the Tribunal was fully justified to award pre-reference, pendente lite and future interest. It has been further mentioned that as per contract a TDS @ 2% was deductible from the entire contractual value of Rs. 1,26,00,000/- (exclusive of GST) and the Tribunal allowed TDS only to the extent of payment made by petitioner and as such there is no infirmity.
26. In support of the contentions, respondent placed reliance upon certain case laws, which are as under: -
i. Associate Builders (supra). ii. Ssangyong Engineering (supra).
iii. Sutlej Construction Limited v. Union Territory of Chandigarh, (2018) 1 SCC 718.
iv. UHL Power Company Limited v. State of Himachal Pradesh, (2022) 4 SCC 116.
v. Somdatt Builders-NCC-NEC (JV) v. NHAI, (2025) 6 SCC 757. vi. Jan De Nul Dredging India Pvt. Ltd. v. Tuticorin Port Trust, 2026 INSC 34.
vii. Welspun Specialty (supra).
viii. McDermott International (supra).
ix. Murlidhar Chiranjilal v. Harishchandra Dwarkadas and Anr., AIR 1962 SC 366.
x. Interstate Construction v. NPCC Ltd., 2025 INSC 699.
OMP (COMM.) No. 158/2025 (Pulastya Pramachala) District Judge (Commercial Court)-01, Page No.19 of 27 Patiala House Court, New Delhi APPRECIATION OF ARGUMENTS, FACTS & LAW
27. The crux of the legal principles explained by superior courts in respect of ambit of Section 34, is that Arbitrator is a Judge of the choice of the parties and his decision, unless there is an error apparent on the face of the award which makes it unsustainable, it is not to be set aside by the Court, even if the Court of law could come to a different conclusion on the same facts. The Court cannot reappraise the evidence and it is not open to the Court to sit in appeal over the conclusion of the Arbitrator. It is not open to the Court to set aside a finding of fact arrived at by the Arbitrator and only grounds on which the award can be set aside are mentioned in the Arbitration Act. Where the Arbitrator assigns cogent grounds and sufficient reasons and no error of law or misconduct is cited, the award will not call for interference by the Court in exercise of the power vested in it.
28. In Associate Builders v. Delhi Development Authority, (2015) 3 SCC 49, Court held that an award could be said to be against the public policy of India, inter alia, in the following circumstances:-
"1. When an award is, on its face, in patent violation of a statutory provision.
2. When the arbitrator/Arbitral Tribunal has failed to adopt a judicial approach in deciding the dispute.
3. When an award is in violation of the principles of natural justice.
4. When an award is unreasonable or perverse.
5. When an award is patently illegal, which would include an award in patent contravention of any substantive law of India or in patent breach of the 1996 Act.
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6. When an award is contrary to the interest of India, or against justice or morality, in the sense that it shocks the conscience of the Court."
29. Hon'ble Supreme Court in case of Ssangyong Engineering & Construction Co. Ltd. v. National Highways Authority of India, 2019 SCC OnLine SC 677, held that under Section 34 (2A) of the Act, a decision which is perverse while no longer being a ground for challenge under "public policy of India", would certainly amount to a patent illegality appearing on the face of the award. A finding based on the documents taken behind the back of the parties by the arbitrator would also qualify as a decision based on no evidence inasmuch as such decision is not based on evidence led by the parties and therefore, would also have to be characterized as perverse. It was held that a finding based on no evidence at all or an award which ignores vital evidence in arriving at its decision, would be perverse and liable to be set aside on the ground of patent illegality.
30. In the case of OPG Power Generation Private Limited v.
ENEXIO Power Cooling Solutions India Private Limited and Anr., (2025) 2 SCC 417, while dealing with scope to interfere on the basis of reasoning and interpretation of terms of contract, Hon'ble Supreme Court observed as under: -
"80. We find ourselves in agreement with the view taken in Dyna Technologes, as extracted above. Therefore, in our view, for the purposes of addressing an application to set aside an arbitral award on the ground of improper or inadequate reasons, or lack of reasons, awards can broadly be placed in three categories:
OMP (COMM.) No. 158/2025 (Pulastya Pramachala) District Judge (Commercial Court)-01, Page No.21 of 27 Patiala House Court, New Delhi (1) where no reasons are recorded, or the reasons recorded are unintelligible;
(2) where reasons are improper, that is, they reveal a flaw in the decision-making process; and (3) where reasons appear inadequate.
81. Awards falling in Category (1) are vulnerable as they would be in conflict with the provisions of Section 31(3) of the 1996 Act. Therefore, such awards are liable to be set aside under Section 34, unless:
(a) the parties have agreed that no reasons are to be given, or
(b) the award is an arbitral award on agreed terms under Section 30.
82. Awards falling in Category (2) are amenable to a challenge on ground of impropriety or perversity, strictly in accordance with the grounds set out in Section 34 of the 1996 Act.
83. Awards falling in Category (3) require to be dealt with care. In a challenge to such award, before taking a decision the Court must take into consideration the nature of the issues arising between the parties in the arbitral proceedings and the degree of reasoning required to address them. The Court must thereafter carefully peruse the award, and the documents referred to therein. If reasons are intelligible and adequate on a fair reading of the award and, in appropriate cases, implicit in the documents referred to therein, the award is not to be set aside for inadequacy of reasons. However, if gaps are such that they render the reasoning in support of the award unintelligible, or lacking, the Court exercising power under Section 34 may set aside the award.
Scope of interference with the interpretation/construction of a contract accorded in an arbitral award
84. An Arbitral Tribunal must decide in accordance with the terms of the contract. In a case where an Arbitral Tribunal passes an award against the terms of the contract, the award would be patently illegal. However, an arbitral Tribunal has OMP (COMM.) No. 158/2025 (Pulastya Pramachala) District Judge (Commercial Court)-01, Page No.22 of 27 Patiala House Court, New Delhi jurisdiction to interpret a contract having regard to terms and conditions of the contract, conduct of the parties including correspondences exchanged, circumstances of the case and pleadings of the parties. If the conclusion of the arbitrator is based on a possible view of the matter, the Court should not intefere. But where, on a full reading of the contract, the view of the Arbitral Tribunal on the terms of a contract is not a possible view, the award would be considered perverse and as such amenable to interference.
Whether unexpressed term can be read into a contract as an implied condition
85. Ordinarily, terms of the contract are to be understood in the way the parties wanted and intended them to be. In agreements of arbitration, where party autonomy is the grund norm, how the parties worked out the agreement, is one of the indicators to decipher the intention, apart from the plain or grammatical meaning of the expressions used.
86. However, reading an unexpressed term in an agreement would be justified on the basis that such a term was always and obviously intended by the parties thereto. An unexpressed term can be implied if, and only if, the court finds that the parties must have intended that term to form part of their contract. It is not enough for the court to find that such a term would have been adopted by the parties as reasonable men if it had been suggested to them. Rather, it must have been a term that went without saying, a term necessary to give business efficacy to the contract, a term which, although tacit, forms part of the contract.
87. But before an implied condition, not expressly found in the contract, is read into a contract, by invoking the business efficacy doctrine, it must satisfy the following five conditions:
(a) it must be reasonable and equitable;
(b) it must be necessary to give business efficacy to the contract, that is, a term will not be implied if the contract is effective without it;
OMP (COMM.) No. 158/2025 (Pulastya Pramachala) District Judge (Commercial Court)-01, Page No.23 of 27 Patiala House Court, New Delhi
(c) it must be obvious that "it goes without saying";
(d) it must be capable of clear expression;
(e) it must not contradict any terms of the contract."
31. In the present case, I can find same objection has been represented several times. Major objections relate to findings given by ld. Arbitrator on the aspect of delay in commissioning and the damages claimed by petitioner for such delay. Petitioner has argued that ld. Arbitrator gave contradictory findings on this issue, in as much as, ld. Arbitrator accepted that there was delay, but it rejected claim of loss despite recognizing rights of petitioner to claim damages. On reading of Award, I can find that ld. Arbitrator dealt with all the contentions of both the parties and gave his reasons in support of his findings on this issue, be it question of delay imputed to respondent, or question of entitlement of petitioner for damages in law in absence of any contractual provision, or any loss being established on account of such delay. Para 20.5 of the Award deals with the claim of deductions made by petitioner due to delay, on the basis of deductions made by GAIL against petitioner. Ld. Arbitrator referred to principle of law underlying S.73 Contract Act and to case law, to observe that petitioner was under duty to take steps to mitigate the loss. On the basis of analysis of evidence, which included additional evidence/document Ex.DW3/3 (which was placed on record by petitioner subsequently through a summoned witness, though this document was generated in the office of petitioner itself), ld. Arbitrator held as under: -
"A voluntary act of issuing a credit note being Ex. DW3/3 OMP (COMM.) No. 158/2025 (Pulastya Pramachala) District Judge (Commercial Court)-01, Page No.24 of 27 Patiala House Court, New Delhi cannot entitle the Respondent to claim that amount in the form of unliquidated damages from the Claimant. This is particularly true when there is no evidence which proves that such a demand was made by GAIL. Further there is no evidence that the Respondent had taken all reasonable steps to mitigate the damages once the said demand was raised by GAIL, if at all."
32. By no stretch of legal imagination, such factual finding can be termed to be perverse. It is worth to mention that petitioner has not pleaded about or shown any such evidence from arbitral record, to say that same had not been mentioned and considered by ld. Arbitrator for returning his aforesaid findings.
33. In respect of rejection of claim of loss on account of payment made to Nimbus, my attention was taken to the order passed by ld. Arbitrator on 13.07.2024, vide which ld. Arbitrator rejected application of petitioner to summon the record of invoice from Nimbus. The said order records the admission of ld. counsel for petitioner that original invoice was in the possession of petitioner itself. On the basis of such fact and situation, summoning was not allowed. However, the examination in chief of DW1 (witness of petitioner) took place subsequently i.e. on 17.08.2024 and DW1 himself de-exhibited that invoice. It was not the case that such stand to de-exhibit the invoice was taken on the persuasion of Arbitrator, nor was there any objection from opposite party against exhibiting that invoice by DW1. Thus, it was a decision taken by petitioner's witness only, so as not to tender that document in evidence and to prove the same. Accordingly, neither it was a case of inequity on the part of ld. Arbitrator nor OMP (COMM.) No. 158/2025 (Pulastya Pramachala) District Judge (Commercial Court)-01, Page No.25 of 27 Patiala House Court, New Delhi was there unequal treatment to petitioner (as alleged in the objections). Ld. Arbitrator was obviously not supposed to look into a document, which was not tendered in evidence at all. Had it been the case that on tendering that document/invoice in evidence, opposite party would have taken any objection regarding its author, and then petitioner would have applied for summons from record/witness from Nimbus, then rejection of such application of petitioner, could have been a factor/substance worth to be looked into in this proceeding. However, that was not the case, hence, I do not find any merit in the objection against that finding as well.
34. Petitioner has also raised questions over findings given to reject the contentions of petitioner that "time was of essence". First of all, findings given by ld. Arbitrator on this issue is based on appreciation of evidence i.e. terms of contract and surrounding circumstances. In this proceeding, I am not supposed to make a reappreciation at all. Secondly, this issue had relevance for the question of entitlement of petitioner in law for unliquidated damages, only. Ld. Arbitrator had given findings that still in law petitioner was entitled for damages, as S. 73 Contract Act deals with both the situations. Therefore, rejecting the plea that "time was of essence" did not have any prejudicial effect for petitioner.
35. Next objection of petitioner is against award of interest.
However, it is not the case of petitioner that there was any contractual term between the parties, to bar claim of interest on any amount. In absence of any bar in the contractual terms, ld.
OMP (COMM.) No. 158/2025 (Pulastya Pramachala) District Judge (Commercial Court)-01, Page No.26 of 27 Patiala House Court, New Delhi Arbitrator was very much within his jurisdiction to award interest, be it pre-reference or post award. Other objections of petitioner, are merely in the nature of challenging the factual findings or to plea additional fact, to support the claim of loss and to justify the deductions made by petitioner. However, in my opinion, law does not permit this court to enter into that arena, in order to interfere with the Award.
DECISION
36. In view of my foregoing discussions, observations and findings, I find that petitioner has failed to establish any ground recognized u/s 34 of the Act. Hence, petition is dismissed.
File be consigned to record room after due compliance.
Digitally signed by PULASTYA PRAMACHALAPULASTYA PRAMACHALA Date:
2026.05.22 15:16:15 +0530 Pronounced in the (PULASTYA PRAMACHALA) Open Court on this District Judge (Commercial Court)-01, 22nd Day of May, 2026 Patiala House Court, New Delhi OMP (COMM.) No. 158/2025 (Pulastya Pramachala) District Judge (Commercial Court)-01, Page No.27 of 27 Patiala House Court, New Delhi