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9.12 Having thus rendered its findings relating to the admissibility of a new rate for the work of construction of the remainder of the Faizabad bypass using earth from the respondent's borrow area, instead of fly-ash, the Arbitral Tribunal itself worked out the rate at which payment could be made to the respondent thereagainst, and, on that basis, awarded an amount of Rs. 4,48,94,388/- against the said FAO(OS) 192/2017 & FAO(OS) 195/2017 Page 22 claim.

9.13 The learned Single Judge, in the impugned judgement, endorsed the findings of the Arbitral Tribunal, to the effect that in order to save additional cost to itself, the appellant had altered the scope of the work, and directed the respondent to construct part of the Faizabad bypass embankment using earth from its borrow area instead of fly- ash. The original work, as stipulated in the contract, clearly envisaged construction of the embankment using only fly-ash. Obviously, therefore, the direction to use borrow earth could not be regarded as a variation, but resulted in an entirely new item of work, deserving payment at a new rate. The invocation, by the appellant, of Clause 52.2 of the GCC, to argue that no change in rate was admissible unless the item accounted for more than 2% of the contract price whereas, in the present case, the contract price had increased by less than 2%, was found to be without substance, for the simple reason that Clause 52.2 applied only in the case of change in the quantity, and not to a case where the scope of work was itself altered. The view of the Arbitral Tribunal was, therefore, found to be plausible, and not, deserving of interference, applying the law laid down in NHAI v. ITD Cementation India Limited (2015) 14 SCC 21.

11.3 The learned Single Judge found that this aspect of the matter stood covered by the judgment of the Supreme Court in NHAI v. ITD Cementation India Limited (supra). It is also noted, in para 16 of the impugned judgment, that this part of the impugned award was "very fairly" not pressed by the learned senior counsel appearing for the appellant, Mr. Adarsh B. Dial.

11.4 Ms. Gunjan Sinha Jain, appearing for the appellant, has no quarrel, with the finding of the learned Single Judge that the merits of her client's case, qua this claim, are covered against it; she, however, takes exception to the observation, in the impugned judgement, that the decision which covers her client is NHAI Vs. ITD Cementation India Limited Ltd (supra). She submits that, in fact, the judgement which covers her client, as regards this claim, is not NHAI v. ITD Cementation India Limited (supra) but the judgment of a predecessor FAO(OS) 192/2017 & FAO(OS) 195/2017 Page 29 Division Bench of this Court in NHAI v. Gammon-Atlanta, 2013 (4) Arb LR 61 (Del). Apparently, the reason for Ms. Jain wanting this aspect clarified by us is that the decision in NHAI v. Gammon- Atlanta (supra) is presently under challenge before the Supreme Court, whereas NHAI v. ITD Cementation India Limited (supra) is a judgement of the Supreme Court itself.

11.5 Having examined the decisions of NHAI v. ITD Cementation India Limited (supra) and NHAI v. Gammon-Atlanta (supra), we find substance in the submission of Ms. Gunjan Sinha Jain, to the extent that, on facts, the dispute indeed appears to be covered against her client, on merits, by the Division Bench judgement of this Court in NHAI v. Gammon-Atlanta (supra). A reading of NHAI v. ITD Cementation India Limited (supra) reveals that the controversy before the Supreme Court therein did not deal with an issue where the statute had been enacted prior to the cut off date, and became capable of implementation and enforcement thereafter. The Supreme Court, in that case, was concerned with the question of whether additional cost, owing to change of seigniorage fee had, or had not, been taken into account in the indexing of inputs while providing for price adjustments in the contract. The contention of NHAI, in that case, was that the said levy having already been factored into the indexing price formula, no further payment to the contractor was justified. As against this, we find that the decision of this Court in NHAI v. Gammon-Atlanta (supra) directly dealt with a controversy parallelizing that involved in the present case.

FAO(OS) 192/2017 & FAO(OS) 195/2017 Page 30 11.6 As regards the specific grievance urged by Ms. Jain at the Bar, we note that the learned Single Judge has not specifically stated that, on facts, the present claim is covered by the decision in NHAI v. ITD Cementation India Limited (supra). It appears that the impugned judgement has upheld the award of the Arbitral Tribunal on merits, and the reference, to NHAI v. ITD Cementation India Limited (supra) was probably intended to underscore the position that no case for interference existed, given the limited playing field that Section 34 of the 1996 Act provides, with which proposition there can possibly be no cavil.