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Mr. Ajay Krishna Chatterjee, learned senior Advocate would submit that Clause 2.1, 2.4 & 4 of Invitation to Tender does not create any obligation on the part of the Petitioner but are relatable to an eligibility criteria to participate in the tender process and therefore, the Arbitral Tribunal have wrongly interpreted those provisions to be a part of an obligations requiring strict adherence by the Petitioner. It is, further submitted that Clause 5 of Invitation to Tender clearly indicates that the estimated quantities reflected under Clause 4 thereof are only for the purpose of finding out the value of the tender and the Petitioner is no way responsible and / or liable for actual quantity of work. Mr. Chatterjee vehemently submits that the general terms and conditions, forming part of the agreement, were not considered by the Arbitral Tribunal. By refering Clauses 8.3 and 8.7 of general terms and conditions, Mr. Chatterjee contends that the plain and simple reading of the aforesaid clauses would give a sufficient indication that the Respondent would not claim for any item of work in the contract and the Petitioner does not give any guarantee about the definite volume of work to be entrusted upon the Respondent at any time or even through out the tenure of the contract. According to Mr. Chatterjee, the Prohibitory Clause (8.3) and Non Guarantee Clause (8.7) have to be construed in such perspective and conveying the intention that non providing the definite volume of work does not give right to the Respondent to claim such which the Arbitral Tribunal omits to consider. In other words, it is submitted that the Arbitral Tribunal have ignored and overlooked the aforesaid Clauses and proceeded simply on the other Clauses of the Invitation to Tender which are merely the Eligibility Clauses, not conferring any right to claim such definite quantity of work during the period of an agreement. By referring Section 28(3) of the Arbitration and Conciliation Act, 1996, Mr. Chatterjee submits that though the Arbitral Tribunal is required to decide in accordance with the terms and conditions and further taken into account the usages of the trade applicable to transaction but where there is an absolute prohibition in the agreement, the principle of business efficacy cannot be imported in the contract. He impugned the award allowing the claim for wrongful detention of the machinaries that unless the payment is made to the provider of the cranes the claim is prematured. It is, thus, submitted that though the bills issued by the cranes were produced before the Arbitral Tribunal but in absence of any proof of payment, the Arbitral Tribunal should not have allowed such claims. On the claim of outstanding bills and interest, Mr. Chatterjee would contend that the Arbitral Tribunal could not have presumed an admission solely on the ground that no dispute is raised thereupon. Mr. Chatterjee, learned Senior Advocate appearing for the Petitioner attacks the award as the Arbitrators have proceeded beyond the terms of the contract. According to him, the Arbitrators are confined to act within the boundaries of the contract and cannot travel beyond it and if traveled, such award is liable to be set aside having acted in escess of the jurisdiction. In support of the aforesaid contentions, the reliance is placed upon a judgment of the Supreme Court in case of Associated Engineers Company -Vs- Government of Andhra Pradesh & Anr. reported in AIR 1992 SC 232. It is succinctly argued that the terms of the contract should be interpreted by providing plain and simple meaning of the words incorporated therein without adding or subtracting any words into it as held in case of Central Bank of India Limited vs Hartford Fire Insurance Company Limited Reported in AIR 1965 SC 1288.
Mr. Kundu fervently submits that Section 28(3) of the Act empowers the Arbitral Tribunal to decide the dispute in terms of the contract by taking into account the usages of the trade applicable to the transaction. It is, thus submitted that the principal of business trade or business efficacy can be a factor in interpreting commercial document for the purpose of upholding the contract rather to invalidate it. In support of the aforesaid contentions, the reliance is placed upon a judgment of the Supreme Court in case of The Union of India -v- M/s. D.N. Revri And Co. & Ors reported in (1976)4 SCC 147 and a judgment of this Court in case of Dwarakadas & Co. -Vs- Daluram Goganmull reported in AIR 1951 CALCUTTA. 10.

" 42.3. ( c) Equally, the third subhead of patent illegality is really a contravention of Section 28(3) of the Arbitration Act, which reads as under:
"28. Rules applicable to substance of dispute. -(1)-(2) (3) In all cases, the Arbitral Tribunal shall decide in accordance with the terms of the contract and shall take into account the usages of the trade applicable to the transaction."

This last contravention must be understood with a caveat. An Arbitral Tribunal must decide in accordance with the terms of the contract, but if an arbitrator construes a term of the contract in a reasonable manner, it will not mean that the award can be set aside on this ground. Construction of the terms of a contract is primarily for an arbitrator to decide unless the arbitrator construes the contract in such a way that it could be said to be something that no fair-minded or reasonable person could do.