Delhi High Court
M/S Chintels India Limited vs M/S Bhayana Builders Pvt. Ltd. on 8 July, 2022
Author: Vibhu Bakhru
Bench: Vibhu Bakhru
IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 8th July, 2022
+ O.M.P.(COMM.) 445/2019
M/S CHINTELS INDIA LTD. ..... Petitioner
versus
M/S BHAYANA BUILDERS PVT. LTD. .... Respondent
Advocates who appeared in this case:
For the Petitioner : Mr Rajshekhar Rao, Sr. Adv. with Mr
Arshdeep Singh, Mr Kotla Harshavardhan,
Ms Mansi Sood, Mr Areeb Amanullah, Ms
Vishakha Gupta & Mr Shreedhar Kale, Advs.
For the Respondents : Mr. Saurabh Kirpal, Sr. Adv. with Ms.
Manmeet Kaur, Ms. Anjali Dwivedi & Mr.
Chandan Malav, Advs.
CORAM
HON'BLE MR JUSTICE VIBHU BAKHRU
JUDGMENT
VIBHU BAKHRU, J
1. The petitioner - M/S Chintels India Ltd.. (hereinafter 'Chintels') has filed the present petition under Section 34 of the Arbitration and Conciliation Act, 1996 (hereinafter the 'A&C Act') impugning an arbitral award dated 04.05.2019 (hereinafter the 'impugned award') delivered by the Arbitral Tribunal comprising of Mr. J.D. Pahuja, Mr. N.N. Chakraborty and Mr. Sant Bhushan Lal as the Presiding Arbitrator Signature Not Verified Digitally Signed By:Dushyant Rawal O.M.P.(COMM.) 445/2019 Page 1 of 18 Signing Date:08.07.2022 (hereinafter the 'Arbitral Tribunal'). The impugned award was delivered by majority with Mr. J.D. Pahuja rendering a partially dissenting opinion.
2. The impugned award was rendered in the context of disputes that have arisen between the parties in connection with a Contract (hereinafter the 'Contract') dated 09.12.2011.
Factual Context
3. The controversy in the present case arises in the following context:-
4. Tenders were issued by the petitioner for the works relating to Civil, Structure, Electrical Conduiting and Finishing Work for Chintels Paradiso, Sector-109, Gurgaon (hereinafter the 'Project') comprising of nine state-of-the-art modern towers with 542 apartments, which were to be constructed in two phases. Phase-I included construction of Towers D, E, F, G and H (hereinafter 'Phase-I') and Phase-II included construction of towers A, B, C and J (hereinafter 'Phase-II').
5. The respondent, M/s Bhayana Builders Pvt. Ltd. (hereinafter 'BBPL') submitted its bid for the Project and by a Work Order dated 09.12.2011, was awarded the works for Phase-II of the Project for a contract price of ₹41,55,83,100/-. In terms of the work order, time for completion of Phase- II of the Project was twenty-four months.
Signature Not Verified Digitally Signed By:Dushyant Rawal O.M.P.(COMM.) 445/2019 Page 2 of 18 Signing Date:08.07.20226. Prior to this, a contract between the parties for Phase-I was executed on 14.03.2011.
7. The impugned award was rendered in the context of disputes that have arisen between the parties in connection with the construction of Phase-II of the Project that was awarded to the respondent by the petitioner on 09.12.2011.
8. On 10.12.2011, the Contract was amended to a limited extent and Chintels undertook to provide reinforcement steel to BBPL free of cost and thus, the contract price was increased to ₹47,61,29,639/-.
9. Chintels claims that during the years 2011-12, that the progress with respect to Phase-II of the Project was slow and this was attributable to BBPL. On 22.01.2013, Chintels informed BBPL regarding the slow pace of Phase-II of the Project and sought for rectification of certain items.
10. The work in question was not completed within the stipulated time and BBPL sought for an extension of time to complete the same.
11. Chintels agreed to grant an extension of time upto 27.10.2014 without the imposition of any liquidated damages. Chintels claims that one of the conditions for granting extension of time was that BBPL was required to operate a batching plant for cement production by 01.08.2013, however, BBPL failed to do so within the stipulated time and did so on 16.10.2013. Phase-II of the Project was not completed within the extended time period Signature Not Verified Digitally Signed By:Dushyant Rawal O.M.P.(COMM.) 445/2019 Page 3 of 18 Signing Date:08.07.2022
12. Thereafter, the parties, to resolve the disputes pertaining to the quality and the delay issues in the Project, exchanged a draft agreement titled "ADDENDUM TO THE CONSTRUCTION DATED 14th MARCH 2011." However, the said draft agreement was never executed between the parties.
13. Chintels removed various item of works pertaining from the scope of work awarded to BBPL and engaged other contractors to perform the said work. This was communicated to BBPL by an e-mail dated 23.04.2014.
14. In February 2017, bank guarantees furnished by BBPL were invoked as it claimed that BBPL had failed in its contractual obligations.
15. BBPL issued a notice dated 24.03.2017 and invoked the Arbitration Clause as contained in the Contract and sought reference of the disputes to arbitration. The Arbitral Tribunal was constituted and entered into reference on 30.12.2017.
Arbitral Proceedings
16. Before the Arbitral Tribunal, BBPL filed its Statement of Claims and raised a total of eleven claims. A tabular statement of the claims raised by BBPL is set out below:
Signature Not Verified Digitally Signed By:Dushyant Rawal O.M.P.(COMM.) 445/2019 Page 4 of 18 Signing Date:08.07.2022 Claim No. Particulars Claimed amount
Claim No.1 Non-payment of final bill ₹5,87,380/-
Claim No.2 Loss of profit for illegal ₹3,18,51,707/-
withdrawal of finishing
items from the scope of
work of the claimants
Claim No.3 Loss of overhead and profit ₹5,34,04,464/- (during
due to delay in decisions contract period)
due to under production ₹5,76,00,674/-
(beyond contract
period)
₹2,03,94,397/-
(overstaying at site
beyond date of
completion)
Claim No.4 Non-payment (balance) of
RA bills and refund of hold ₹1,15,89,925/- (Non-
amount payment of RA bills)
₹1,67,17,564/- (Refund
of hold amount/debit
amount raised)
Claim No.5 Scrap generated from steel
upto 2.5% ₹80,42,560/-
Claim No.6 Scrap generated from steel
beyond 2.5% ₹25,82,710/-
Claim No.7 Interest on delayed ₹12,98,000/-
payment of RA bills
Claim No.8 Interest on various amounts
claimed from date of
accrual upto 30.09.2016
Claim No.9 Encashment of bank ₹2,40,03,031/-
guarantees
Claim No.10 Pre-suit and pendente lite
interest at the rate of 18%
per annum from
30.09.2016
Claim No.11 Cost of arbitration
Signature Not Verified
Digitally Signed
By:Dushyant Rawal O.M.P.(COMM.) 445/2019 Page 5 of 18
Signing Date:08.07.2022
proceedings
17. Chintels filed its Statement of Defence and also raised certain counter-claims. A tabular statement of the counter-claims raised by Chintels is set out below:
Counter-Claim No. Particulars Claimed Amount Counter-Claim No.1 Liquidated damages at ₹1,31,22,326/-
the rate of 5% of contract value Counter-Claim No.2 Cost of rectification ₹4,33,094/-
work on behalf of claimants Counter-Claim No.3 Cost of material lift ₹73,35,057.14/-
Counter-Claim No.4 Loss due to delay in ₹18,00,75,074/-
civil structural work (Float cost due to non-completion of milestone) ₹6,03,50,850/-
(penalty payable to customers due to delay in possession of flat) Counter-Claim No.5 Loss of goodwill ₹25,00,00,000/-
18. By the impugned award, the Arbitral Tribunal partly allowed the Signature Not Verified Digitally Signed By:Dushyant Rawal O.M.P.(COMM.) 445/2019 Page 6 of 18 Signing Date:08.07.2022 claims of BBPL. The Arbitral Tribunal awarded a sum of ₹5,87,380/- along with interest at the rate of 9% per annum from 01.07.2017 till realization in regards to the non-payment of Final Bill (Claim No.1); a sum of ₹3,18,51,707/- for Claim No.2; a sum of ₹1,01,81,992 /- for loss of overhead and profit due to delay in decisions due to under production beyond the contract period in satisfaction of Claim No.3; a sum of ₹81,28,750/- in satisfaction of Claim No.4; a sum of ₹2,40,03,031/- along with interest at the rate of 9% per annum from 04.02.2017 till its realization in regards to Claim No.9. Future interest at the rate of 9% p.a, if the awarded amount was not paid within ninety days of the impugned award.
19. The counter-claims raised by Chintels were rejected by the Arbitral Tribunal.
20. Aggrieved by the impugned award, Chintels has filed the present petition.
Submissions
21. Mr. Rajshekhar Rao, learned senior counsel appearing for Chintels, has assailed the impugned award, essentially, in respect of the following four claims:
(a) An amount of ₹5,87,380/- awarded against Claim No.1 on account of non-payment of Final Bill;
(b) An amount of ₹3,18,51,707/- awarded against Claim No.2 on account of loss of profits for withdrawal of finishing Signature Not Verified Digitally Signed By:Dushyant Rawal O.M.P.(COMM.) 445/2019 Page 7 of 18 Signing Date:08.07.2022 items from the scope of work awarded to BBPL;
(c) An amount of ₹1,01,81,992/- awarded against Claim No.3 on account of loss of profit and overhead in completion due to delay in providing drawings; and
(d) An amount of ₹81,28,750/- awarded against Claim No.4 on account of non-payment of RA Bills and refund of hold amount / debit amount.
22. The present petition was heard along with OMP(COMM) 444/2019 captioned Chintels India Limited vs Bhayana Builders Private Limited - the application filed by Chintels under section 34 of the A&C Act impugning an arbitral award dated 03.05.2019 delivered by the Arbitral Tribunal in respect of the disputes relating to Phase-I of the Project. Mr. Rao adopted his submissions advanced in that petition in regard to the impugned award in respect of Claim Nos.2 & 3, which were similar to claims (claim nos. 2 and 4) allowed by the Arbitral Tribunal in respect of disputes relating to Phase-I.
23. He submitted that no claim for loss of profits for removing any items from the scope of work awarded to BBPL was sustainable because in terms of Clause 2.6 of the Contract, Chintels had an unqualified right to increase and decrease BBPL's scope of work. He further submitted that it was expressly provided that the Contractor (BBPL) would not be entitled to make any claim, inter alia, on account of loss of anticipated profits, loss due to loading etc. Thus, the impugned award is contrary to the terms of the Contract. Insofar as the award entered against Claim No.3 (Loss of Profits and Overheads) is concerned, he contended that Signature Not Verified Digitally Signed By:Dushyant Rawal O.M.P.(COMM.) 445/2019 Page 8 of 18 Signing Date:08.07.2022 the said claim was premised on the ground that Chintels was responsible for delay in execution of works, however, the Arbitral Tribunal had not returned any findings to the said effect but proceeded to compute the loss for overheads during the extended period on notional basis.
24. Insofar as the award entered against Claim No.1 (Non-payment of Final Bill) is concerned, Mr. Rao contended that the Arbitral Tribunal had failed to appreciate the evidence on record. He contended that the challenge to award against non-payment of Final Bill was in similar terms as Chintels' challenge to the arbitral award dated 03.05.2019 rendered by the Arbitral Tribunal in respect of disputes arising from the contract between the parties relating to Phase-I.
25. Lastly, Mr. Rao submitted that an award of ₹81,28,750/-, awarded in favour of BBPL against non-payment of RA Bills (Claim No.4), was unintelligible. He submitted that there is no reasoning in the impugned award as to how the Arbitral Tribunal has arrived at the said figure. He contended that the amount awarded could also not be related to the Statement of Claim filed by BBPL. He submitted that the said amount was awarded against 45th and 46th RA Bills, however, the said bills reflected that an aggregate amount of ₹19,73,000/- was due against the said bills. He submitted that there was no discussion or reasoning to support the said award and the same is thus liable to be set aside.
26. Mr. Saurabh Kirpal, learned counsel appearing for BBPL, countered the aforesaid submissions. He adopted the submissions made by him in respect of Claim Nos.1, 2 and 4, as awarded by the Arbitral Signature Not Verified Digitally Signed By:Dushyant Rawal O.M.P.(COMM.) 445/2019 Page 9 of 18 Signing Date:08.07.2022 Tribunal, in respect of Contract relating to Phase-I (subject matter of OMP(COMM) No.444/2019). Insofar as, Claim No.4 is concerned, he submitted that there were documents on record, which reflect the calculation of the amount of ₹81,28,750/-.
Reasons & Conclusions
27. The Arbitral Tribunal has allowed the claim (Claim No.2) made by BBPL for anticipated profits in respect of item of works that were removed from BBPL's scope of work and awarded to the other contractor. A similar claim was also allowed by the Arbitral Tribunal in respect of disputes arising in connection with the contract between the parties relating to Phase-I, which is the subject matter of challenge in OMP (COMM) No.444/2019. By the judgement rendered in OMP(COMM) No.444/2019, this Court has held that the award of loss of anticipated profits is contrary to express terms of Clause 26.2 of the contract, therefore the said award is liable to be set aside. For the sake of brevity, the reasons and discussions regarding the said claim are not repeated in this judgment. For the reasons stated in the judgment dated 08.07.2022 in OMP(COMM) No.444/2019, the award entered in respect of Claim No.2 (Loss of profit for withdrawal of finishing items from the scope of work) is also liable to be set aside.
28. Similarly, the amount of ₹1,01,81,992/- awarded in respect of Claim No.3 for the loss of overheads during the extended period is in similar terms as BBPL's Claim No.4 in respect of the contract relating to Phase-I. This Court has found that the said award is unsustainable Signature Not Verified Digitally Signed By:Dushyant Rawal O.M.P.(COMM.) 445/2019 Page 10 of 18 Signing Date:08.07.2022 principally for the reason that the same is not supported by any reasons or material. For the sake of brevity, the said reasons and discussions are not reiterated in this judgment. The amount awarded against Claim No.3 is thus liable to meet a similar fate. For the reasons as stated in the judgment dated 08.07.2022 rendered in OMP(COMM) No.444/2019, the award with respect to Claim No. 3 is also liable to be set aside.
29. Insofar as, Claim No.1 is concerned, this Court finds that Chintels' challenge to the impugned award against Claim No.1 (Non- payment of the Final Bill) does not fall within any of the grounds as set out in Section 34 of the A&C Act and is, therefore, liable to be rejected. The Arbitral Tribunal had awarded the said amount after appreciation of material placed on record. It is well settled that it is impermissible for the court to re-appreciate the evidence and supplant its opinion over that of the Arbitral Tribunal. The Arbitral Tribunal is the final adjudicator of the quality and quantity of the evidence and unless it is established that the said decision is perverse and vitiates the impugned award on the ground of patent illegality, the arbitral award cannot be interfered with. In the present case, this Court finds sufficient material on record to support BBPL's Claim No.1. The Arbitral Tribunal has also found that there was no justification for withholding the amount of ₹5,87,380/- from the Final Bill which was on account of use of AAC block to construct the partition wall instead of bricks. Accordingly, Chintels' challenge to the amount awarded against Claim No.1 is rejected.
30. The last question to be addressed is whether the award of sum of Signature Not Verified Digitally Signed By:Dushyant Rawal O.M.P.(COMM.) 445/2019 Page 11 of 18 Signing Date:08.07.2022 ₹81,28,750/- in respect of Claim No.4 (Claim on account of non- payment of (Balance) running account bills and refund of hold amount / debit raised) is unintelligible and is liable to be set aside.
31. BBPL had claimed an amount of ₹1,15,89,925/- on account of non-payment of RA Bills and a sum of ₹1,67,17,564/- on account of refund of the hold amount / debit amount raised. The Statement of Claims in respect of these claims is not free from ambiguity. In its Statement of Claims, BBPL, besides referring to 45th and 46th RA Bills, has also referred to 40th and 41st RA Bills which pertain to contract relating to Phase-I. The claim made is not in clear terms.
32. The relevant extract from the Statement of Claims relating to Claim No.4 is set out below:
"78. The Respondent had not paid the Claimant the amounts due with respect to the RA Bills raised on it from time to time in terms of Clause 29.3, GCC of the Contract dated 14.03.2011. The Respondent has not made payments with respect to the 45th Running Account Bill dated 04.12.2015 for an amount of Rs.3,29,000/- and 46th Running Account Bill dated 21.01.2016 for an amount of Rs.16,44,000/- with respect to Phase II of the Project. The Respondent has raised frivolous issues in regard to payment of bill of the Claimant as excuse for delay in payment.
79. It is submitted that the amount of 5% Retention Money (Interest free) was to be adjusted from the RA Bills. The Respondent could not have invoked the Bank Guarantees when payments have not been made to the Claimant with respect to the RA Bills. The Respondent is seeking to defraud the Claimant by purposely not clearing the RA Bills. The Respondent is seeking to defraud the Claimant by purposely not clearing the RA Signature Not Verified Digitally Signed By:Dushyant Rawal O.M.P.(COMM.) 445/2019 Page 12 of 18 Signing Date:08.07.2022 Bills raised by the Claimant and further invoked the Bank Guarantees to the tune of Rs. 2.25 Crores in their favour.
80. That vide mail dated 05.04.2016, the Claimant reiterated to the Respondent that as held during the meeting on 31.03.2016, the Claimant refutes the factum of bad quality of concrete. The tests during executing and the tests in labs have met the stands as laid down in the contract. It was pointed out by the Claimant that the methodology adopted in taking samples of the cores were not in accordance with the IS code. That with respect to Phase I, the 40th and 41st R/A Bills [Pg. 606- 608, 612, 614, 616, Vol. No.4] were duly certified by the Respondent, however, the payment has not been to the Claimant made till date. The 45th and 46th bill with respect to Phase II has not been paid despite being approved. The Claimant wrote to the Respondent on 28.07.2016 [Pg. 300-303, Vol. No. 2] detailing the non- payment of RA Bills. To the utter shock of the Claimant instead of making the bona fide payments due from the Respondent, the Respondent deducted payments from the 40th & 41st RA Bills. The Claimant raised its various concerns and further requested the Respondent to clear the outstanding payments vide its e-malls dated 29.12.2015; 03.03.2016 & 05.03.2016 [Pg. 480; Pg.472-475, Vol. No. 3].
81. That vide e-mail dated 05.05.2016 [Pg No. 357, Vol. No. 2], the Claimant informed that the 41st RA Bill of Phase- 1 on 26.08.2015, 45th R/A Phase-2 on 04.12.2015, 46th R/A Phase-2 on 21.01.2016 and 47th R/A Phase-2 on 21.03.2016 were submitted to the Respondent. The pending certification of these bills was requested by the Claimant from the Respondent. Further a payment advice dated 03.03.2016 (Pg. No. 436-437, Vol. No.3] was sent by the Claimant to Respondent with respect to 41st RA Bill.
82. That vide communications dated 8.12.2015, 18.12.2015, 22.12.2015, 04.01.2016, 15.01.2016, 28.01.2016, 22.02.2016, 20.04.2016, 21.03.2016, 10.05.2016, Signature Not Verified Digitally Signed By:Dushyant Rawal O.M.P.(COMM.) 445/2019 Page 13 of 18 Signing Date:08.07.2022 20.05.2016 & 30.05.2016 [Pg. No.382-400, Vol. No.2] the Claimant elaborated upon the status of pending payments against the various RA Bills by the Respondent with respect to both Phase I and Phase II in order to enable the Claimant to make payments to sub- contractors / third parties [Pg. No.488, 489, 490, Vol. No.3]. It was also stated that the pendency of RA Bills for certification and payment to the Claimant is in complete disregard of the contractual provisions regarding payment has created uncertainty of cash flow to the Claimant and same is having adverse effect on the progress of rectification work resulting into delay in execution work.
83. Vide e-mails dated 17.10.2016 & 26.10.2016 [Pg. No.213-214, 215, Volume 2], the Claimant informed the Respondent that they were willing to find an amicable solution to the differences but emphasis on checking and clearance of the Pending Bills for past 6 months which were sent back with baseless deductions. This led to losses to the Claimant every month. Vide mail dated 17.08.2016 [Pg. No.258, Vol. No.2], the Claimant informed the Respondent that they have been regularly cleaning the flats, hence they cannot debit the amount on account of cleaning. That the Claimant again called upon the Respondent vide mail dated 20.05.2013 [Pg. No.969, Vol. No.5] to pay the outstanding amount as the functioning was dependent upon the same.
84. It is submitted that the Claimant in reply to Respondent's email dated 15.03.2011 [Pg. No.1221, Vol.No.6] responded for input with regard to the supply of cement and steel to be done by the Respondent only.
That vide letter dated 11.08.2011 [Pg. No.1199, Vol. No.6], it was brought to the notice of the Respondent by the Claimant that the free supply of structural steel was the prerogative of the Respondent and the necessary amendment in the work order was required to be done.
85. That vide letter dated 13.09.2014 (Page No.128 to 134), the Claimant called upon Respondent for approval of Signature Not Verified Digitally Signed By:Dushyant Rawal O.M.P.(COMM.) 445/2019 Page 14 of 18 Signing Date:08.07.2022 extra items amounting to Rs.56,78,022/-. Similar intimations were sent on regular basis for approval of the extra items, but the same were never cleared.
86. In view of the above, the Claimant is entitled to the claim on account of Non-Payment (Balance) of RA Bills and Refund of Hold Amount / Debit Raised to the tune of Rs.2,83,07,489/-."
33. A plain reading of the above-quoted paragraphs from the Statement of Claims pertaining to Claim No.4 indicates that according to BBPL, 45th RA bill for an amount of ₹3,29,000/- and the 46th RA Bill for an amount of ₹16,44,000/- had not been paid. Thus, in aggregate an amount of ₹19,73,000/- against these two RA Bills were claimed as due and payable. In addition, BBPL had also claimed that certain unjustified deductions have been made, however, there is no breakup of the said deductions and it is difficult to discern from the Statement of Claim as to how the amount of ₹1,15,89,925/- on account of non- payment of RA Bills and the amount of ₹1,67,17,564/- on account of the hold amount / debit raised have been computed.
34. In its Statement of Defence, Chintels denied that it had not made payment against 45th and 46th RA Bills in respect of the Contract pertaining to Phase-II.
35. The impugned award records that the Arbitral Tribunal had directed the parties to reconcile the unpaid amount against RA Bills. The Arbitral Tribunal had recorded that in respect of 45th RA bill, Chintels had disputed release of ₹19,836/- but had agreed that the balance amount of ₹3,12,325/- was payable. Similarly, in respect of Signature Not Verified Digitally Signed By:Dushyant Rawal O.M.P.(COMM.) 445/2019 Page 15 of 18 Signing Date:08.07.2022 46th RA bill Chintels had not agreed to release of the retention money of ₹67,522/- but had agreed that the balance amount of ₹15,94,988/- was payable.
36. The Arbitral Tribunal then proceeded to hold that the main dispute was regarding consumption of steel. It appears the Arbitral Tribunal concluded that certain penal recoveries had been made regarding consumption of steel and had found that after reconciliation, the amount due was ₹81,28,750/- and therefore, has awarded the said amount. The relevant extract of the impugned award is set out below:
"....... Above documents before the tribunal indicates that net issue of steel after accounting for the waste steel returned is 9548.896 MT and steel as per consumption based on measurement is 9579.075 MT as per theoretical coefficient of steel per unit length. The variation between these two figures is minor.
This contract stipulates issue of steel free of cost by the respondents to the claimants for its execution on labor rate basis. The respondents intends to impose penal rate of recovery i.e. at twice their procurement cost of Rs.45,000/- per metric ton for waste steel that was returned by the claimant, because the quantity returned is beyond the permissible limit of variation. There is no notice to claimant in the-record for imposing this penal recovery. There is no mention of procurement cost of steel in the contract. The contract is also silent on whether the waste steel is required to be returned to respondents or can be taken away by the claimants after execution of work. The claimants have claimed for it under claim No.5. The respondents have sold the waste steel at Rs.32,000/-per MT as per their e-mail dated 30.10.2018.Signature Not Verified Digitally Signed By:Dushyant Rawal O.M.P.(COMM.) 445/2019 Page 16 of 18 Signing Date:08.07.2022
There is no justification for the respondents impose penal recovery after they had received back the balance steel. Besides this the quantity of steel issued and its theoretical consumption almost tally.
The claim for non-payment of (balance) of RA bills is- Rs.1,15,89,925/- and that for refund of hold amount/debit amount raised is-Rs.1,67,17,564/-
After reconciliation of figures the claim stands for Rs. 81,28,750.
Tribunal's award on this claim is Rs. 81,28,750."
37. This Court is unable to ascertain the reasons as to how the Arbitral Tribunal (Majority) has computed the figure of ₹81,28,750/-. This Court has also attempted to examine the documents in order to ascertain whether such a calculation could be readily ascertained. However, this Court is at a loss to understand either the breakup of the amounts claimed; or the reasons for the Arbitral Tribunal to arrive at the said figure; and as to how this amount is relatable to the claims made by BBPL. The copy of the 45th RA bill placed on record indicates that an amount of ₹3,29,886/- is payable. It also shows that an ad-hoc payment of ₹2,91,818/- has been paid and a sum of ₹38,048/- is outstanding. The 46th RA bill indicates that an amount of ₹16,44,059/- is payable. It also reflects that an ad-hoc payment of ₹11,67,828/- has been made and the net amount payable is reflected as ₹4,76,232/-.
38. In view of the above, there is merit in the contention that the award against Claim No.4 cannot be sustained as the same is unintelligible. This Court is also unable to fill in the gaps in the reasoning given to sustain the said award.
Signature Not Verified Digitally Signed By:Dushyant Rawal O.M.P.(COMM.) 445/2019 Page 17 of 18 Signing Date:08.07.202239. In view of the above, the impugned award to the extent the Arbitral Tribunal has awarded (i) an amount of ₹3,18,51,707/- towards loss of anticipated profits in respect of items removed from BBPL's scope of work (Claim No.2); (ii) an amount of ₹1,01,81,992/- towards overheads during the extended period (Claim No.3); and, (iii) an amount of ₹81,28,750/- towards amount outstanding against RA Bills and withheld amount/debits raised (Claim No.4) are set aside.
40. The petition is allowed to the aforesaid extent. The parties are left to bear their own costs.
41. The pending application(s), if any, stand disposed of.
VIBHU BAKHRU, J JULY 08, 2022 'gsr' Signature Not Verified Digitally Signed By:Dushyant Rawal O.M.P.(COMM.) 445/2019 Page 18 of 18 Signing Date:08.07.2022