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31. Mr. Dwarkadas has submitted that the admitted documents and correspondence between the parties establish that RCF was in full control and operating the GTGs (atleast) from April RJ-CARBP 394.2023 with IAL-23263-23.doc 2018 onwards. He has placed reliance upon the e-mails exchanged between parties from 12th April, 2018 till 24th February, 2019 in this context.

32. Mr. Dwarkadas has submitted that the correspondence shows that RCF had made a warranty claim in December, 2018 indicating that it had taken over the GTGs. By Letters dated 30 th November 2018, 15th February, 2019 and 7th March 2019, Thermax repeatedly called upon RCF to issue PAC. He has also placed reliance upon the pre-arbitration correspondence between the parties including the letter dated 18th May, 2019 of RCF stating that they had followed instructions of Siemens and the Operating and Maintenance manual thereby admitting that RCF was solely operating the GTGs in the month of February 2019, i.e. prior to issuance of PAC. Thermax in its Letter dated 18th May, 2019 informed RCF that the GTGs were in commercial operation since February/March 2018 and had clocked 7644 and 7827 operating hours prior to breakdown during which the units were solely operated by RCF. Further, in its annual report for the financial year 2018-19, RCF had made a categorical statement that the GTGs have been commissioned and had resulted in energy savings to RCF. RCF had also claimed depreciation in respect of GTGs RJ-CARBP 394.2023 with IAL-23263-23.doc for the financial year 2018-19 commencing on 1st April 2018.

86. Mr. Dwarkadas has submitted that RCF in its Reply to Counter Claim, alleged that PAC was issued on 7 th March 2019 after a delay of 444 days and RCF had incurred huge losses due to delayed performance of contract by Thermax. He has relied upon the emails exchanged between the parties which show that RCF itself admitted that the communication qua the main steam line being ready was made only in February, 2018. As per the Baseline Schedule, RCF was required to provide the main steam line by 30 th August 2017, however, as is evident, the same was made available by RCF only in February, 2018. Thus, there was a delay of approximately 162 days on the part of RCF in providing the said main steam line.

144. Mr. Mehta has dealt with the contention of Thermax viz. that the claim of RCF to damages / compensation was beyond the scope of Agreement titled as "Notice to proceed" dated 2nd July 2019 entered into between Thermax and RCF in relation to repairs and reinstatement from GTGS. He has submitted that this contention is misconceived. Notice to Proceed is a clear and unambiguous document and therefore, required to be construed on the basis of the terms contained therein. He has submitted that it is clear from the terms of the Notice To Proceed that it was only concerned with the repairs and restoration of the GTGs and was issued by RCF in view of the provisions of Clause 17 of the SCC and pursuant to an arrangement agreed to between RCF and Thermax with regard to the repairs and restoration of the GTGs. The Notice To Proceed had no bearing on the right of RCF to claim damages from Thermax for the loss suffered by RCF on account of the failure of the GTGs.

176. The material on record also establishes that at the relevant time of breakdown of GTG-1, this could have been avoided, if the plant had been shutdown immediately by RCF on instructions of Siemens. It has been admitted by RCF's witness (CW-1) during his cross-examination that it is possible to shutdown the plant within half an hour. The only reason given by RCF for failure to immediately shut down GTG-1, which would have prevented its breakdown, was that on previous occasions also RCF had taken 24 - 48 hours to shutdown the plant. This overlooks the fact that Siemens by its email RJ-CARBP 394.2023 with IAL-23263-23.doc on 21st March 2019 at 13:27 hours, had categorically instructed RCF to "stop the unit immediately and wash it" . The argument that RCF had stopped the plant within 24-48 hours of the Instructions of Siemens on prior occasions could not be applied to a situation where RCF was categorically informed to stop the unit "immediately" to "prevent same events as that of GTG-2" . The learned Arbitrator has not considered this aspect of the matter in the Award.