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31. So, with the help of these two decisions, he would argue that this Court cannot disturb the interpretations made by learned Arbitrator, which is nothing, but, substituting the view of this Court, which is not permissible under Section 34 of the Act.

Com.A.S.39/2018

32. He would further argue by relying upon the decision in the case of MMTC Ltd., Vs. Vedanta Ltd., reported in (2019) 4 SCC 163, that the Court under Section 34 of the Act cannot sit in Appeal to review the observation made by learned Arbitrator and learned counsel for the defendant No.1 also cites decision in the case of Sangyong Engineering and Construction Company Ltd., Vs. National Highways Authority of India, reported in 2019 SCC Online 677, which further reaffirms the position of law regarding construction of the terms of the contract, which is primary duty of the Arbitrator and not the Court sitting under Section 34 of the Act. With the help of the above decisions, he would argue that the plaintiff having made several claims before Arbitral Tribunal for the alleged additional work done and computed all such claims entirely in terms of quantity, but, the contract between the parties, did not recognise any claim for additional work in terms of quantity. In terms of contract between the parties, claim for additional work could only be entertained, when there was change in the scope of work in terms of area, volume, length Com.A.S.39/2018 or number. It was not the case of the plaintiff before Tribunal that the scope of work had undergone a seachange and the plaintiff had not computed any of the claims in terms of area, volume, length or number. Learned Arbitrator has given proper reasons to arrive at conclusion that the scope of work, does not include the one which has been canvassed by the plaintiff. He refers to the reason assigned by learned Arbitrator and according to him, the reasons are just and proper and those reasons cannot be interfered by this Court as an Applet Court. Since, it is a lump sum contract and the plaintiff having accepted the terms and conditions of the contract agreement, on the basis of lump sum contract, then, there is no scope for claiming anything beyond +/- 15% relating to pilling, civil, structural work, due to variations in dimension loading data. According to learned counsel for the defendant No.1, the claimant has to consider tender specification and the line diagram given along with notice inviting tender and based on this, the claimant had to prepare basic engineering, drawing and arriving at the claims for Com.A.S.39/2018 quotation. Keeping in view of the lump sum nature of the contract that the design and drawings is in the scope of claimant, so that claim can be entertained under any circumstances. On the other hand, by considering the request, the defendant No.1 by way of amendment Nos. 1, 2, 3, has raised the value of construction and price of contract up to 126 crores from 112 crores. Therefore, everything has been considered by the defendant No.1 regarding volume of work, quantity and deviation in the work. The plaintiff having accepted the terms and condition, now cannot claim the work more than 126 crores and the estimate given by him that he is entitled to 233 crores and odd, is nothing, but, exaggeration and there is no basis for it. Clause No. 3.6 at Page NO. 004 specifically says supply of materials within THE scope of tenderer and when the supply of all materials is within the scope of the tenderer any quantity of materials which may be required for satisfactory and successful execution of the work is the responsibility of the tenderer, except the supply of steel to the extent of 5000 MT, etc. In this regard, he drew the Com.A.S.39/2018 attention of the Court to clause No.10, 11 of tender document. Regarding the claim under the head of quantity, he would argue that as and when the plaintiff completed the work and raised the invoices, the same has been paid by the defendant no.1 and as per the letter given by the plaintiff, the defendant No.1 has recovered the amount pertaining to steel supplied in excess of 5000 MT. In this regard, he drew the attention of the Court Ex.P7 to P9. By reading Ex.P7 to P9, it is clear that tender quantity is not given remotely contemplated or provided for in the contract between the parties and any reference to quantity is unknown to contract of this nature. In the said regard, he has also referred to cross-examination of PW1, to question No. 82 and he would further argue that the plaintiff has miserably failed to demonstrate before the Tribunal that tender quantities were prescribed in the contract and agreed upon by the parties and therefore the column No.3 in Ex.P222 is explained the financial imagination of the plaintiff and defendant is not bound by the same. He refers to various documents, though they are not required to be Com.A.S.39/2018 considered by this Court as the scope is very limited, but, to understand the case better, this Court refers to various documents produced by both the parties and also the reason assigned by learned arbitrator in his award. According to learned counsel for the defendant, the production of pour cards is not sufficient, as it is meant for maintaining quality check and not the quantity and further regarding structural steel, he would argue that it was made known to the plaintiff that defendant No.1 would supply only 5000 MT and extra steel must be purchased by the plaintiff out of the tender amount and for that it cannot claim excess amount as contended in the claim statement.