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9.1. Mr.G.Masilamani, learned Senior Counsel appearing on behalf of TTA-JV in O.S.A.Nos.147 of 2021 and 85 of 2022, by taking this Court through the detailed project map and scope of the work and factual details of the contract relating to its time schedule etc., would submit that after filing the Arbitration Original Petitions for setting aside the award, the only contention raised by CMRL before the learned Single Judge during the oral arguments was that the Tribunal had relied on two unmarked documents after reserving the award without giving opportunity to them to comment on the said documents. Except for the said ground, no other ground was urged before the learned Single Judge. At the outset, he would submit that mere https://www.mhc.tn.gov.in/judis O.S.A.(CAD).Nos.147 of 2021, 85 and 79 of 2022 and 148 of 2021 non-affording opportunity to comment is different from 'unable to present the case', and therefore, the phrase in Section 34(2)(a)(iii) of the Act, has a distinct meaning in law. In this regard, it should be noted that the Tribunal summoned the said documents to the knowledge of CMRL. TTA-JV also furnished those documents to the knowledge of CMRL. In both E-mails, copies have been marked to the parties as well as their respective Counsels on record. After calling for the documents, the Tribunal passed the award only after 53 days. For all these 53 days, there was no demur on the part of CMRL and it kept quiet. As a matter of fact, the first award was passed on 07.05.2021 and even in the said award, it was seen that the said two documents were relied upon by the Tribunal. Thereafter, there was 23 days time gap in passing the second award. Even during the said period, absolutely, no objection whatsoever was raised in writing or orally before the Tribunal regarding the additional documents. The entire Arbitration process was a mammoth exercise and the award itself comprised of 861 pages after considering the voluminous evidence or documents adduced by the parties. The award is elaborate, unanimous, and well reasoned. The arbitrators chosen by the parties were experts in the field, having retired as Chief Engineers etc., with not less than 20 years of experience to their credit https://www.mhc.tn.gov.in/judis O.S.A.(CAD).Nos.147 of 2021, 85 and 79 of 2022 and 148 of 2021 and each of them are well qualified experts on the subject. The Tribunal did not rely upon any new document, on the other hand, only called upon to install Primavera Software, which is the software used by the parties and using the said software, analysed the very data which was entered into by TTA-JV on day to day basis during the working of the contract.

https://www.mhc.tn.gov.in/judis O.S.A.(CAD).Nos.147 of 2021, 85 and 79 of 2022 and 148 of 2021 9.6. Learned Senior Counsel, relying upon Section 4 of the Arbitration and Conciliation Act, 1996, would submit that CMRL, being a party which knew with the above procedure adopted by the Tribunal, never objected the same inspite of receipt of the E-mail and therefore, it should be deemed to have waived its rights. Again drawing the attention of this Court to Section 16(2) of the Arbitration and Conciliation Act, 1996, learned Senior Counsel would submit that objection to the action of the Arbitral Tribunal, traveling beyond the evidence and the mandate of the parties had to be mandatorily raised before the arbitrators, but, CMRL kept quiet. The learned Senior Counsel, drawing the attention of this Court to Section 32 of the Arbitration and Conciliation Act, 1996, would submit that the proceedings before the Tribunal would stand terminated only by passing of the award and therefore CMRL ought to have moved the Tribunal if it had got any objection whatsoever for seeking the soft copies of the Primavera Software and Rolling Programmes. Learned Senior Counsel would draw the attention of this Court to Section 34(2)(a), whereunder, by way of amendment, it was made mandatory that the ground mentioned in Section 34(2)(a)(i) to (v) shall be specifically met out on the basis of the record of the Arbitral Tribunal and not otherwise. In this case, on the available https://www.mhc.tn.gov.in/judis O.S.A.(CAD).Nos.147 of 2021, 85 and 79 of 2022 and 148 of 2021 record, it can be seen that the E-mail by the Arbitral Tribunal was marked to both the parties and there was no objection on behalf of CMRL to the same.

9.15. Learned Additional Solicitor General, taking this court to the analysis charts and tables, would submit that as a matter of fact, there are number of errors in the said data and had an opportunity been given to the parties, CMRL would have pointed out the same. As a matter of fact, in the petition under Section 34 of the Act, such errors have been pointed out. https://www.mhc.tn.gov.in/judis O.S.A.(CAD).Nos.147 of 2021, 85 and 79 of 2022 and 148 of 2021 9.16 Learned Additional Solicitor General of India, taking this Court to the said exercise of pointing out atleast two such errors in respect of delay in handing over High Court Station and its impact in respect of Mannadi Station, would impress upon this Court as to how risky the exercise was, in the absence of comments on behalf of CMRL. Learned Additional Solicitor General of India would submit that the impugned award has to be set aside on the principles of natural justice simply based on Vanilla principles inasmuch as the Tribunals did not give CMRL the opportunity on the evidence. The principles of natural justice is also enshrined in various provisions of the Arbitration and Conciliation Act, 1996, more specifically, in Sections 18, 24 and 26 of the Act which are also reiterated in Section 34 of the Act. Grave prejudice has been caused to CMRL on account of the said course adopted by the Tribunal. When it has to shell out huge amount if the extension of time is allowed, the same cannot be without even providing with proper opportunity to CMRL. Learned Counsel would contend that the entire exercise which is done in the award is that of investigation and not adjudication. If the Tribunal wants to use its expert knowledge and step into the role of that expert, then, it has to https://www.mhc.tn.gov.in/judis O.S.A.(CAD).Nos.147 of 2021, 85 and 79 of 2022 and 148 of 2021 take the necessary precaution which is specifically laid down by the Hon'ble Supreme Court of India in Ssangyong (cited supra) by providing proper opportunities to the parties. When the parties have let in oral and documentary evidence which are the relevant material, the Tribunal had chosen to ignore all the relevant material and pass an award entirely on the basis of irrelevant material, which are the unmarked documents and has created evidence. The impact of such an exercise is huge and 205 pages of its own findings and data is created. Most of the analysis borders on creation of new data and evidence. Several factors which are taken into account by the Tribunal for awarding extension of time was not even claimed by the claimant in EOT (I) and (II) presented to CMRL in the claim. Once the Tribunal found that 'deferred method process', on the basis of which the claim was made, the same is erroneous approach, hence it ought to have dismissed the claim. As a matter of fact, there are also several other perverse findings in the Arbitral Awards, especially when the entire issue got settled by way of Addendum to the agreement.

would be the material errors/grounds for challenging the Arbitral Award under Section 34(2)(a)(iii) of the Act. https://www.mhc.tn.gov.in/judis O.S.A.(CAD).Nos.147 of 2021, 85 and 79 of 2022 and 148 of 2021 12.2. The narrow compass of contention between the parties is that as per the learned Senior Counsel for TTA-JV, CMRL had remained silent on its own and was not prevented by external factors, and therefore, they cannot complain that it was unable to present its case, while according to the learned Senior Counsel for CMRL the burden is on the Tribunal to provide the opportunity and CMRL had no clue whatsoever so as to raise an objection. We have extracted the E-mail communication of both the Tribunals supra. Absolutely, nothing has been communicated by the Tribunals as to their internal deliberation or about the fact that they are going to conduct the exercise of analysing the data and drawing inferences / outputs being the experts in the field. That being the situation, when orders have been reserved, especially, on the previous occasion, at the time of marking of document in Ex.R.301, when the Tribunal had specifically given opportunities to both the sides, it cannot be expected of CMRL to rush to the Tribunal with an objection. It was expected of the Tribunal to comply with the principles of natural justice and when the Tribunal called for particulars, no possible knowledge of the purpose can be imparted on either party and now post facto, it cannot be alleged that CMRL remained silent. It can further be seen that after consideration of the evidence on record, the https://www.mhc.tn.gov.in/judis O.S.A.(CAD).Nos.147 of 2021, 85 and 79 of 2022 and 148 of 2021 Tribunal accepted the evidence of the claimant in respect of some of the factual aspects relating to the delay and rejected them with respect to other aspects. But, the Tribunal further found that taking into consideration the said factual aspects by itself will not entitle the claimant for an award as the said factual aspects have to be further factored in and worked out as per Critical Path Method and only then an award can be passed. No exception can be taken for the finding of the said Tribunal which was on merits. Further, the course adopted by the Tribunal, to proceed further without superficially rejecting the claim and to resort to the correct method, by itself cannot also be found fault with. The parties have, in this case, chosen to appoint well qualified domain experts as arbitrators. In this regard, it is relevant to quote paragraph No.53 of a judgment of the Hon'ble Supreme Court of India in Ssangyong (cited Supra), in which, certain passages from New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards – Commentary, edited by Dr.Reinmar Wolff (C.H. Beck, Hart, Nomos Publishing, 2012) is quoted with approval and the same reads as hereunder:-