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21. It is next contended that the Tribunal failed to appreciate that the breaches set out in the Cure Notice dated 23.09.2013 were all material breaches of the respondent‟s obligations under the Supply Contract and thus, in any case the petitioner was entitled to terminate the contract under Article 17 of the Contract by giving a 21 days‟ notice to the respondent. It is submitted that the power under Article 17 cannot be taken away from the petitioner for terminating the contract by an erroneous interpretation of Article 6. It is also argued that the Tribunal has merely confused the power under Article 6 and Articles 14 and 17 of the Contract. Under Article 14, the petitioner has the power to levy Liquidated Damages due to delay in Provisional Acceptance Certification (PAC). The right of the petitioner under Article 6 and Article 14 are completely independent and separate from the right to terminate under Article 17 on account of „material breach‟, which is one of the grounds under Article 17. It is thus argued that the interpretation given by the Tribunal that the Contract could not be terminated till expiry of 12 weeks from the PAC date would make Article 6 of the Master Contract and Article 17 (1)(b) of the Supply Contract totally redundant and this could never have been the intention of the parties.

24. It is argued that the Tribunal fell into a grave error by holding that time was not of essence of the contract. The contract was a Turnkey / EPC Contract for Commissioning of a WHRPP and was required to be completed in a time bound manner. Further in Article 4 in Part B of the Service Agreement dated 19.03.2013, it was agreed between the parties that the time was of essence of the contract. The Tribunal erroneously placed reliance on the judgment in the case of Hind Construction Contractors vs. State of Maharashtra (1979) 2 SCC 70 without appreciating that it does not lay down that if time ceases to be of essence of the contract, termination cannot be resorted to by an innocent party. All that the judgment holds is that in case time is not of essence, then the innocent party may give a notice to the other party and terminate the contract. In the present case, despite Cure notice, the respondent failed to rectify the defects and was guilty of breaches. Reliance is placed on the judgment in the case of Arosan Enterprises Ltd. vs. Union of India (1999) 9 SCC 449, wherein three types of cases have been carved out where time is termed to be the essence viz where the parties expressly stipulate that the time must be complied with and two, where the circumstances of the contract or the nature of subject matter indicates a fixed date for completion of the contract. It is argued that the petitioner‟s case falls in the two classifications and even assuming the time was not of essence, then also the case would fall under the third category, where though time is not originally of essence of the contract, but if one party is guilty of undue delay then the other party can give a notice to perform the contract within a reasonable time, depending on the nature of transactions.

102. The Claimant however vide its communication dated 18.10.2013 terminated the Contract alleging material breaches on the part of the Respondent and not curing those breaches within the time granted in the cure notice. Before examining the sustainability or otherwise of the grounds stated for terminating the Contract, the Tribunal has to examine whether by terminating the Contract the Claimant had violated the time schedule agreed upon by the parties in the meeting held on 7.6.2013.

A bare perusal of the aforesaid provision indicates that the parties had clearly agreed that in the event of any delay in supply of Engineering and Equipment beyond the stipulated delivery schedule and corresponding delay in PAC due to reasons solely attributable to the seller, Liquidated Damages may be imposed under Article 14. The Article further stipulates that the Buyer may by written notice to the Seller terminate the contract by 12 weeks of delay, due to factors attributable to the Seller. It is thus clear that the right of the Buyer to terminate under Article 6 could arise only after the passage of 12 weeks from the PAC and this is exactly the interpretation given by the Tribunal. It can hardly be argued that no reasonable person would give the said interpretation. In my view, the interpretation of the Articles and the findings of fact rendered by the Tribunal is not only a possible, but a plausible view.