Prathiba M. Singh, J. - (1.) The present petition under Section 34 of the Arbitration and Conciliation Act, 1996 challenges the award of a three member Arbitral Tribunal (hereinafter "Tribunal") dated 24th February, 2011.
(2.) Brief background of the dispute is that the National Highways Authority of India ("NHAI") awarded the contract "Four laning and strengthening of the existing two lane section between Km 317 and Km 65 on NH-2 in U.P. and Bihar". The total value of the contract was Rs.3,96,47,901/-. Agreement dated 28th March, 2002 was entered into between the parties and the contract contained three separate sections i.e. Section I to be completed within eight months, Section II to be completed in 24 months and Section III to be completed within 36 months. The date of commencement was 31st March, 2002. Various disputes arose between the parties. The Respondent - M/s PCL-SUNCON (JV) (hereinafter "Contractor") raised Claim Nos.1 & 2 in respect of the following: "Claim No.1 - Claim for repayment of recovery made from IPC bills No.33 and amount not paid for subsequent work done at Tack Coat over Dense Graded Bituminous Macadam. (Latest details would be submitted along with rejoinder) - Rs.1,14,10,716/- (provisional) Claim No.2 - Payment for extra work done of levelling Pad/Foundation concrete and filter media for Re retaining wall Rs. 67,89,030.00" Claim No.1
(3.) The question in this claim is as to whether the Tack Coat was required to be used in the lane of the road. The contention of the NHAI is that the Tack Coat was not mandatory and was also not approved by the Engineerin-Charge. According to the NHAI, the Tack Coat was not a Bill of Quantities (BOQ) item as well. The Tribunal, however, after considering the contractual clauses, held that the use of Tack Coat is a good engineering principle, though it is not mandatory. The Tribunal held that if overlaying of the bituminous layer is not done within a period of two days, then the Tack Coat ought to be considered to be mandatory.;