S. Ravindra Bhat, J. - (1.) THIS appeal under Section 37 of the Arbitration Act, 1996 is directed against the order of the Learned Single Judge dated 08.01.2014. The impugned judgment set aside the award of an Arbitral Tribunal dated 24.02.2013. The question concerns a claim for compensation by, the appellant (hereinafter PCL), which essentially turned on the interpretation of the contract terms concluded on 20.09.2001 between it and the respondent (hereinafter NHAI).
(2.) THE facts necessary to decide this case are that in February 2001, NHAI invited bids for the work of four landing and strengthening of the existing two lanes between Km. 320 and Km. 398.75 on NH -2 in the State of Jharkhand (hereafter referred to as the 'subject work'). The documents in the Notice Inviting Tender (hereafter NIT) included inter alia a Bill of Quantities (hereafter BOQ) that specified the various items of work and the corresponding quantities that required to be executed under each particular item of the BOQ. PCL, a Joint venture undertaking, submitted a bid for the subject work on 14.05.2001. After due consideration of the bid submitted by PCL, and on finding the same to be the most competitive, NHAI accepted the bid of the appellant by letter dated 31.07.2001. Pursuant thereto, a formal agreement for the subject work was executed by the PCL and NHAI on 20.09.2001. Pcl was executing the various items as had been stipulated in the BOQ and had been receiving payments towards the same in the various Interim Payment Certificates. However during the execution of the work, it so emerged that NHAI had omitted certain items in the BOQ aggregating in value to Rs. 19,16,83,938.60/ - These items remained non -operable throughout, and were never instructed to be operated even till issue of Taking Over Certificate for the whole of the works or any stage thereafter. The Contract in question contains specific provisions dealing with variations that might occur during the execution of the work and also provides for the pricing of such variations. Aggrieved by the omission of the BOQ items, and claiming entitlement to be compensated in terms of contractual provisions, Pcl, by its letters dated 04.04.2008 and 22.09.2008 raised the issue of and called upon the Engineer to initiate the necessary variation order for the same and compensate it for the financial loss suffered by it. In response to the second letter NHAI replied by a communication dated 03.11.2008 rejecting the Pcl's claim. After receiving no response to its letter -dated 04.02.2009 insisting upon the justification of its claim, Pcl invoked the dispute resolution procedure as contained in the contract. Consequently, a three -member arbitral tribunal was constituted to adjudicate the dispute between the parties.
(3.) THE two principal claims before the Arbitral Tribunal, aside from interest and costs, were pertaining to (i) the refund of labor cess, and (ii) loss of profit and overheads on omitted items. Subsequent thereto, the Tribunal made an award dated 24.02.2013 partially allowing PCL's claims. Aggrieved, NHAI approached this Court by means of a petition under Section 34 of the Act.;