Ministry Of Health & Family Welfare vs Nagarjuna Construction Ltd on 9 April, 2026

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    Delhi High Court

    Ministry Of Health & Family Welfare vs Nagarjuna Construction Ltd on 9 April, 2026

    Author: Jasmeet Singh

    Bench: Jasmeet Singh

                            $~J
                            * IN THE HIGH COURT OF DELHI AT NEW DELHI
    
                                                                   Judgment reserved on: 16.12.2025
                                                                Judgment pronounced on: 09.04.2026
    
                            + O.M.P. (COMM) 337/2017
                            MINISTRY OF HEALTH & FAMILY WELFARE
                                                                                     ...Petitioner
    
                                                               Through: Ms. Pratima N Lakra(CGSC),
                                                               Ms. Kanchan Shakya, Mr. Shailendra
                                                               kumar Mishra, Mr. Chanakya Kene,
                                                               Ms. Mansi, Advs.
    
                                                      versus
                            NAGARJUNA CONSTRUCTION LTD.                              ...Respondent
    
                                                               Through: Dr. Amit George, Ms.
                                                               Rupam Jha, Mr. Adhishwar Suri, Ms.
                                                               Ibansara Syiemlieh, Mr. Dushyant
                                                               Kishan Kaul, Mr. Vaibhav Gandhi,
                                                               Ms. Medhavi Bhatia, Mr. Kartikay
                                                               Puneesh, Mr. Bhrighu Pamidighantam,
                                                               Advs.
    
    
                              CORAM:
                              HON'BLE MR. JUSTICE JASMEET SINGH
    
                                                         JUDGMENT
    

    1. This is a petition filed under Section 34 of the Arbitration and
    Conciliation Act, 1996, (“the Act”) seeking to challenge the Arbitral
    Award dated 08.05.2017 (“Award”) passed by the learned Sole
    Arbitrator in the matter of “M/s Nagarjuna Construction Ltd. v. Ministry
    Of Health & Family Welfare”.

    Digitally Signed
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    FACTUAL BACKGROUND

    SPONSORED

    2. The petitioner, namely Ministry of Health & Family Welfare (respondent
    in the Arbitral Proceedings) invited bids for the execution of the works
    of construction of medical college and hostel complex at AIIMS,
    Bhopal.

    3. The contract was awarded vide a letter of notification dated 13.04.2010,
    to the respondent company namely NCC Limited, formerly known as
    M/s Nagarjuna Construction Co. Ltd. (Claimant in the Arbitral
    Proceedings) for the works including preparing designs and construction
    of Medical College & Hostel Complex at AIIMS, Bhopal, Package-I.

    4. Pursuant thereto, a contract with value of Rs. 147,89,73,233/- was
    executed between the parties on 21.05.2010 (“Contract”), with
    scheduled completion period of project being 15 months i.e., from
    27.05.2010 to 26.08.2011.

    5. During the execution of works under the Contract, some disputes arose
    between the parties and the respondent company vide its letters dated
    07.11.2014 and 13.12.2014 requested for appointment of Arbitrator by
    invoking arbitration Clause and also filed a petition under Section 11 of
    the Act on 07.04.2015 before this Court. However, during the pendency
    of the proceedings, the Director (PMSSY), Ministry of Health and
    Family Welfare PMSSY Division vide its order dated 29.05.2015
    appointed Dr. Y.P.C. Dangay as the Sole Arbitrator to adjudicate
    disputes between the parties.

    6. The respondent filed its Statement of Claim (“SOC”) before the
    Arbitrator on 06.07.2015, to which the petitioner filed its written
    statement along with counter claim on 18.02.2016. Thereafter, on
    04.04.2016, the respondent filed rejoinder to the written statement and
    counter claim.

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    7. During the Arbitral proceedings, the Arbitrator also visited the site for
    assessment of the status of work on 27.08.2016, 28.08.2016, 26.11.2016,
    27.11.2016 and 16.04.2017.

    8. The Arbitrator passed an interim award dated 30.12.2016, directing the
    release of amount of Rs. 2,95,79,465/- for the Claim No. 1 in favour of
    the respondent and also, directing the respondent to complete the
    remaining works by the end of the year.

    9. Thereafter, the Arbitrator passed a final Award dated 08.05.2017,
    allowing most of the claims as raised by the respondent except Claim No.
    11, and rejecting all the counter claims filed by the petitioner. The
    petitioner being aggrieved by the Award has filed the present petition.
    SUBMISSIONS ON BEHALF OF THE PETITIONER
    General Contentions

    10. Ms. Lakra, learned CGSC for the petitioner, submits that the Award is in
    violation of the public policy of India and is patently illegal for reasons
    apparent on the face of record. The scope of public policy is wide in
    nature and cannot be restricted in its interpretation. Reliance is placed on
    DDA v. Manohar Lal1 and Oil & Natural Gas Corporation Ltd. v. SAW
    pipes Ltd.2

    11. It is submitted by the learned counsel that the Arbitrator has failed to take
    into consideration, the deficiency/delays on part of the respondent by
    failing to comply with the directions issued by the Arbitrator during
    hearings. Despite this non-compliance by the respondent, the Arbitrator
    failed to observe this fact in his Award that there existed wilful delays on
    part of the respondent. These kinds of awards are not only perverse but
    also against the public policy of India, and against the interest of

    1
    2006 SCC OnLine Del 46.

    2

    AIR 2003 SC 2629.

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    Government of India as they will encourage contractors to raise fake
    claims by quoting extremely low rates for getting government projects
    and then attempt to get unfair advantage by placing reliance on such
    awards.

    12. The Arbitrator has exceeded the jurisdiction conferred to it, has acted in
    violation of the terms of the Contract, and has not taken into
    consideration vital evidence and contentions. Thus, it is liable to be set
    aside under Section 34(2)(a)(iv) and Section 34(2)(b)(ii).
    Attribution of Delays and associated claims for prolongation.

    13. The Arbitrator has failed to correctly appreciate the issue of delay
    attribution as it has not taken into consideration a vital report dated
    21.04.2017 prepared by the superintending engineer, wherein the
    incomplete status of work was clearly stated. The respondent was bound
    by Section 37 of the Indian Contract Act, 1872 (“Contract Act“), to
    perform its promise or to offer to perform the same, however in the view
    of this report it is clear that the respondent violated section 37 of the
    Contract act and the Arbitrator has failed to take into consideration this
    material evidence. Reliance is placed on Aboobker Latif v. Reception
    Committee of the 48th INC3.

    14. It is also submitted that the Arbitrator failed to read the contract as a
    whole, leading to an erroneous interpretation of the relationship between
    the parties to the contract and the non-application of principle laid down
    in Ramnath International Construction Pvt. Ltd. v. Union of India4
    concerning employer-contractor agreements, wherein it was held that if
    the contractor sought and obtained extensions for delay attributable to
    either party, he would not be entitled to claim any compensation for such

    3
    AIR 1937 BOM 410.

    4

    (2007) 2 SCC 453.

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    delay. Reliance is also placed on Unity Realty and Developers Ltd. v. BW
    Highway Star Pvt. Ltd.5

    15. The Arbitrator had awarded the claim Nos. 6, 7, 8, and 9 by exceeding
    his jurisdiction and in ignorance of the terms of the Contract, which
    clearly stipulated that compensation is not payable on account of delay.
    Reliance is placed on Ramnath International Construction Pvt.
    Ltd.
    (Supra). It is also submitted that the respondent filed inflated claims
    as the respondent claimed Rs. 35.09 crores under this head, but only Rs.
    3.2 crores were held admissible by the Arbitrator. Additionally, the delay
    in project was attributable to the respondent only.

    16. The Arbitrator awarded compensation under Claim Nos. 5, 6, 7, 8, 9, and
    12 in ignorance of the terms of the Contract, i.e. Clause No. 6(a), 6(b),
    40(h), 40(p)(ix) of the special conditions of the contract. Thus, the Award
    is in clear violation of the statutory mandate as encapsulated under
    Section 28(3) of the Act, whereby the Arbitrator is required to take into
    consideration the terms of the contract and trade usages as well. The
    Arbitrator has clearly acted beyond its jurisdiction conferred by the terms
    of the Contract. Reliance is placed on Associated Engineering Co. vs.
    Govt. of Andhra Pradesh6
    .

    Claim No. 1: Release of wrongfully withheld amount from RA Bill-33
    & 34.

    17. Ms. Lakra, further states that the Arbitrator did not properly distinguish
    between regular extension of time (“EOT”) and provisional EOT. In
    construction contracts, as a regular trade practice provisional extensions
    are given to keep the contract running and avoid major disruptions.
    However these provisional EOT‟s do not imply that the delay is

    5
    2009 SCC Online Bom 1509.

    6

    (1991) 4 SCC 93.

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    condoned/admitted. In the instant case, even after regular extensions up
    to 12.10.2012, the petitioner issued provisional extensions to keep the
    contract alive and explicitly reserved the petitioner‟s right to claim
    compensation under Clause No. 2 of the GCC for the respondent‟s
    delays. The Arbitrator while awarding this Claim No. 1 in the interim
    Award ignored this standard practice of granting provisional EOT‟s and
    acted in non-compliance of Section 28(3) of the Act.

    18. Additionally, the rescheduling of milestones were not required as
    rescheduling is only required up to the regular extension period i.e.
    ending on 12.10.2012. However, the recovery of withheld amount was
    made in March 2013 because the respondent defaulted in achieving
    milestone Nos. 4 and 5. The Arbitrator substantiated his Award on the
    ground that milestones were not rescheduled in accordance with the new
    timeline after grating of EOT‟s, and overlooked the fact that delays
    beyond 12.10.2012 were attributable to the respondent only.
    Claim No. 2: Reimbursement of increase in taxes and duties under
    Clause 38 of GCC of contract (VAT, Entry Tax and Central Excise).

    19. With respect to Claim No. 2, it is submitted that the finding of the
    Arbitrator is based on wrong interpretation of Clause No. 38 of the
    General Conditions of Contract (“GCC”). The reasoning of the
    Arbitrator is patently illegal as the Arbitrator held that non-compliance
    with the provision for notice does not mean that the statutory increase in
    taxes duly paid by the petitioner will not be reimbursed. When a
    contractual term stipulated that a claim needed to be lodged within a
    specific time, non-compliance should lead to an adverse inference. Thus,
    the Arbitrator by allowing this claim despite non-compliance by the
    respondent has favoured the respondent in an unjust manner.
    Claim No. 3: Reimbursement of increase in taxes and duties under
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    Clause 20 and 19B iv (b) of GCC of contract (Minimum Wages Act).

    20. It is submitted that the Arbitrator erred in applying the provision
    contained in Clause No. 38 of the GCC while adjudicating the Claim No.
    3, as the respondent itself has not substantiated this claim under Clause
    No. 38 of the GCC.

    21. Further, the Arbitrator has erred in holding that the present contract is
    similar to the CPWD contracts and that the respondent has rightly
    quantified its claim as per Clause No. 10 CC of the CPWD contract in
    which labour component for escalation is fixed at 25%. However, in the
    present case Clause No. 10CC of the CPWD was inapplicable as the
    stipulated completion period for the project was 15 months only, and
    Schedule F provided that Clause No. 10CC is only applicable when the
    stipulated period extends beyond 24 months.
    Claim No. 4: Extra items of work claimed under Clause 12 of GCC
    and Clause 22, 23 of SCC.

    22. Learned Counsel, apropos the Claim No. 4 submits, that the Arbitrator
    has not considered the contention of the petitioner that the dispute qua
    Claim No. 4 i.e. extra items, survives only for ready mix concrete (RMC)
    item, as the issue concerning grit plaster was already discussed during the
    site visit on 26.11.2016 and was duly approved by the petitioner. Thus,
    the Arbitrator has erred in again awarding the claimed amount without
    discussing the detailed breakup and the basis of the rates claimed by the
    petitioner.

    23. She further submits that the Arbitrator has wrongly interpreted agreement
    item No. 3.8 and DSR Item No. 5.33, wherein it was clear that the cost of
    making and placing concrete were included in the quoted rates. The extra
    claim raised by the respondent was false because in this project, the
    concrete was made directly at the site and this fact was admitted by the
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    respondent during arbitral proceedings. The Arbitrator still compared and
    relied upon DSR Item No. 5.37 on the ground that the respondent also
    executed the work having scope similar to DSR Item No. 5.37, which is
    item for ready-mix concrete made in fully automatic plant somewhere
    else and then transported to the site in transit mixture for a lead of about
    10 kms. This “upto 10 km lead” is a substantial cost factor, it assumes
    extra cost for making and transportation to the site. The same was not
    applicable in the present case, as the concrete was made on site. Thus, the
    finding of the Arbitrator had allowed undue benefits to the respondent on
    the basis of this misinterpretation and has disregarded the scope of
    agreement item No. 3.8 and DSR item No. 5.33.

    24. Additionally, the Arbitrator has ignored the contention of the petitioner
    that these specific claims for extra items were not raised in terms and
    compliance of Clause No. 12 of the GCC during the execution of those
    items.

    Claim No. 5: Revised rates for individual items of work the quantities
    of which had exceeded beyond limit.

    25. She further contends that with respect to the Claim No. 5, the Arbitrator
    has misinterpreted the terms of the contract and in an unjustified manner
    awarded market rates for items deviating more than 30% of the BOQ
    quantity because the respondent was well aware of the fact that Clause
    Nos. 12.2 and 12.3 applies only after deviation exceeds the threshold of
    30% of trade work or 100% of foundation work as the case may be, and
    still the respondent did not claim this amount under Clause No. 12.4.
    Thus, directly raising this claim before the Arbitrator is unjustified. Also,
    there are inherent inconsistencies in findings of the Arbitrator as at one
    specific section of the Award, the Arbitrator used the word “Trade” to
    mean “building trade” and while allowing claim No. 5 he stated the same
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    word to be vague and proceeded to award rates applicable to individual
    BOQ items instead of BOQ subheads as contended by the petitioner
    during the arbitral proceedings.

    26. Schedule F (Package-I), provides for deviation limit of 30% of the trade
    upto which the BOQ rates were payable and were already paid with
    respect to several deviated items, yet the Arbitrator failed to consider
    these contractual provisions and the petitioner‟s specific submissions.
    The petitioner further submits that the respondent‟s quantification was
    erroneous and unsupported by proper justification and did not even take
    into consideration the Bhopal cost index. For the sake of argument, even
    if any claim was maintainable, the Arbitrator did not scrutinise itemwise
    rates or the petitioner‟s objections, thereby vitiating the entire
    quantification process. In these circumstances, by effectively
    disregarding and rewriting the terms of the contract beyond the scope of
    reference, the Award is liable to be set aside in the interest of justice.
    Claim No. 10: Loss on locked up deposits Bank Guarantees due to
    Prolongation of Contract.

    27. Ms. Lakra, submits that with respect to Claim No. 10, the Arbitrator has
    acted in violation of Clause No. 1(ii) of the GCC which provides that the
    petitioner is not liable to pay any interest/charge on account of the
    performance guarantee.

    Claim No. 12: Escalation Amount on material payable due to
    prolongation ofcontract.

    28. The Arbitrator with respect to Claim No. 12 has acted in violation of the
    terms of the Contract as the respondent has preferred the claim because
    of escalation of materials, being fully aware of the fact that contract does
    not allow such escalation claims.

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    29. It is also submitted that the Arbitrator in the Claim Nos. 13 and 14
    awarded loss of interest on the amounts claimed under Claim Nos. 2, 3,
    4, 5, 10 & 12 at the rate of 10% per annum, the same is in violation of
    law as settled by the Hon‟ble Supreme Court in the case of Union of
    India v. M/s Krafters Engineering & Leasing Pvt Ltd.7, and the terms of
    the contract as the contract does not provide for grant of interest.
    SUBMISSIONS ON BEHALF OF THE RESPONDENT

    30. Dr. George, learned counsel for the respondent, submits that the delays in
    execution of the Contract are not attributable to the respondent as the
    Arbitrator has returned categorical findings by placing reliance on the
    records i.e. hindrance register maintained and signed by the petitioner
    itself. Reliance is placed on Delhi Agricultural Marketing Board v. HR
    Builders.8

    31. It is also submitted that the contents of the hindrance register were
    neither challenged by the petitioner in the present petition nor in the
    defence before the Arbitrator. It was only at the stage of oral arguments
    that this objection was raised by the petitioner.

    32. He further submits that the Claim No. 2 concerning the reimbursement of
    Rs. 38,10,057/- towards increase in taxes and duties under Clause No. 38
    of the GCC was rightly adjudicated by the Arbitrator. The petitioner
    raised the identical contention of absence of notice in terms of Clause
    No. 38 (iii) of the GCC before the Arbitrator as well and the same was
    rejected by the Arbitrator on the ground that the clause provided for the
    notice to be given but default of such notice is not in itself a ground to
    attract adverse consequences so as to reject a claim otherwise due.

    7

    (2011) 7 SCC 279.

    8

    2019 SCC Online Del 8538.

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    Reliance is placed on Mahesh Bansal v. Executive Engineer9 and Union
    of India v. Associated Construction Co.10
    to state that the decision of the
    Arbitrator is in consonance with the settled position of law.

    33. With respect to Claim No. 3, it is submitted that the challenge of the
    petitioner is baseless as the Arbitrator had adjudicated the claim in
    consonance with Clause Nos. 20 and 38 of the GCC. Clause No. 20 of
    the GCC provided that the respondent was bound to comply with the
    Minimum Wages Act, 1948 and Clause No. 38 states that any further tax
    or levy imposed by the statute and duly paid by the respondent shall be
    reimbursed to it. The Arbitrator rightly allowed this claim of the
    respondent with respect to the additional expenditure towards payment of
    minimum wages as amended from time to time. Reliance is placed on
    Union of India v. Saraswat Trading Agency and Ors.11 and Associated
    Construction Co. (Supra) to submit that the stand of the Arbitrator is in
    consonance with the settled position of law.

    34. Apropos the Claim Nos. 6, 7, 8, and 9, it is submitted that the Arbitrator
    has awarded these claims with detailed reasoning on fact and law. The
    petitioner has challenged these claims on the ground that the terms of the
    contract does not provide for compensation, in fact the special conditions
    of contract specifically preclude grant of compensation. However, as per
    the provisions of the Contract Act more particularly Section 53, 54, 55
    and 73, in case of failure of performance, promises, and breach, the party
    at fault is liable for compensation for the losses suffered by the other
    party. In a judgment of this Court titled Union of India v. Vishva Shanti
    Builders (India) Pvt. Ltd.12
    , it was held that despite a clear condition

    9
    1995 SCC Online Del 333.

    10

    2016 SCC Online Del 4679.

    11

    (2009) 16 SCC 504.

    12

    (2024) SCC Online Del 5018.

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    under the contract barring compensation, the compensation cannot be
    said to be barred when the extensions were granted due to fault of the
    other party. Reliance is also placed on K.N. Sathyapalan v. State Of
    Kerala & Anr.13
    ANALYSIS AND FINDINGS

    35. I have heard the learned counsels for the parties and perused the material
    and documents placed on record.

    Scope of Interference Under Section 34 Of The Act

    36. The scope of interference under Section 34 of the Act is now clearly
    established. The Court is not required to sit in appeal as an Appellate
    Court over the Award, and it can neither reappreciate the evidence nor
    reinterpret the terms of the contract, when the view already taken by the
    Arbitrator is a probable and possible one. Judicial intervention with the
    Award is permissible only on limited and specific grounds, as
    encapsulated under Section 34 of the Act. The Court is not
    required/empowered to reappreciate evidence or substitute its own view
    with that of the Arbitral Tribunal. It is a settled position of law that
    Section 34 of the Act, embodies the principle of minimal judicial
    interference, thereby preserving the foundational precept of the Act, the
    finality and efficacy of Arbitral Awards. The Hon‟ble Supreme Court has
    recently observed this scope of interference in the judgment of
    Consolidated Construction Consortium Ltd. v. Software Technology
    Parks of India14
    , the relevant paragraphs of which reads as under:

    “46. Scope of Section 34 of the 1996 Act is now well
    crystallised by a plethora of judgments of this Court.
    Section 34 is not in the nature of an appellate provision. It

    13
    (2007) 13 SCC 43.

    14

    (2025) 7 SCC 757.

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    provides for setting aside an arbitral award that too only on
    very limited grounds i.e. as those contained in sub-sections
    (2) and (2-A) of Section 34. It is the only remedy for setting
    aside an arbitral award. An arbitral award is not liable to
    be interfered with only on the ground that the award is
    illegal or is erroneous in law which would require re-
    appraisal of the evidence adduced before the Arbitral
    Tribunal. If two views are possible, there is no scope for the
    court to re-appraise the evidence and to take the view other
    than the one taken by the Arbitrator. The view taken by the
    Arbitral Tribunal is ordinarily to be accepted and allowed
    to prevail. Thus, the scope of interference in arbitral
    matters is only confined to the extent envisaged under
    Section 34 of the Act. The court exercising powers under
    Section 34 has per force to limit its jurisdiction within the
    four corners of Section 34. It cannot travel beyond Section

    34. Thus, proceedings under Section 34 are summary in
    nature and not like a full-fledged civil suit or a civil appeal.
    The award as such cannot be touched unless it is contrary
    to the substantive provisions of law or Section 34 of the
    1996 Act or the terms of the agreement.”

    37. At the outset, Dr. George, learned counsel for the respondent, states that
    the present petition is sans merit as the petitioner has failed to plead or
    establish any specific permissible ground under Section 34 of the Act.
    The Award is a detailed Award substantiated by the evidence available
    on record and the same does not suffer from any vices as enumerated
    under Section 34 of the Act warranting interference by this Court. The
    findings of the Arbitrator are plausible and therefore cannot be interfered
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    with under the Section 34 jurisdiction. Reliance is placed on Associate
    Builders v. DDA15and Delhi Airport Metro Express (P) Ltd.
    v. DMRC16.

    38. With the above scope of Section 34 of the Act in mind, I shall now deal
    with the rival contentions.

    Attribution of Delays

    39. The petitioner‟s challenge to the Award with regards to several claims
    can be distilled into one core controversy i.e. the findings on attribution
    of delays and prolongation of contract, which are pertinent for the entire
    Award and especially for decisions on Claim Nos. 6, 7, 8, and 9.

    40. It is the case of the petitioner that the Arbitrator has erred in attributing
    the delays in execution of works under the contract to the petitioner. The
    Arbitrator has failed to take into consideration the pertinent facts and
    evidence which show that in fact the delays were attributable to the
    respondent.

    41. It is contended by the petitioner that despite recording the objection of
    the petitioner in page No. 13 of the Award that the respondent had not
    completed the work by December 2016 as directed by the interim Award,
    the Arbitrator has ignored this contention and also a vital report dated
    21.04.2017 of the superintending engineer, wherein the status of work
    was shown as incomplete. The Arbitrator also visited the site on many
    instances and directed the respondent to complete certain works before
    31.12.2016. Despite, all these contentions and evidence pertaining to the
    attribution of the delay on part of the respondent, the Arbitrator did not
    give any findings on these arguments in the Award. It is also stated that
    the Award is passed without taking terms of the contract into
    consideration and these kind of awards confer undue benefits on

    15
    (2015) 3 SCC 49.

    16

    (2022) 1 SCC 131.

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    contractors from government department and consequently the Award is
    against public policy and the interest of the Country.

    42. Per contra, the respondent contends that the Arbitrator has correctly
    relied on hindrance registers in giving his findings on the issue of delay.
    The specific delays mentioned in the hindrance register are attributable to
    the petitioner for several reasons as stated therein including the delays
    duly noted at Serial Nos. 20 and 21 of the Hindrance register on the
    ground of delay in receipt of drawing for stone flooring over terrace and
    works being carried out by other agencies engaged by the petitioner. The
    respondent has also drawn my attention to the paragraph Nos. 17 and 18
    of the judgment of the Hon‟ble Division Bench of this court in the case
    of Delhi Agricultural Marketing Board (Supra), which read as under:

    “17. The Hindrance Register is a document which is
    maintained at the work site and is signed by the officers of
    the employer and the contractor. It records the events which
    occur contemporaneously in relation to the hindrances that
    may be faced by the contractor from time to time in the
    execution of the work. It is a document which is a log of the
    communications which take place between the employer and
    the contractor in relation to the events leading to hindrance
    in the execution of the work.

    18. The extension of time that may be considered by the
    Engineer-in-Charge necessarily would have to rely upon
    records, such as the hindrance register: In the present case,
    the Arbitrator has found that the Hindrance Register
    recorded hindrances for as many as 563 days, whereas the
    actual delay in completion of the work was only 502 days.
    That being the position, the finding returned by the learned
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    Arbitrator fixing the responsibility for delay in completion
    of work, in our view, is completely justified.”

    (Emphasis Supplied)

    43. The Arbitrator apropos this issue has critically examined the multiple
    EOT‟s duly approved by the petitioner and also noted that many extra
    items pending since 2013 were only settled after directions from the
    Arbitrator, and because of many pending issues the time for contract was
    delayed by almost three times of the scheduled completion time. The
    Arbitrator duly considered the submissions of the petitioner and observed
    that the petitioner was directed to produce the hindrance register despite
    which the petitioner never disputed the entries in this register. The
    Arbitrator went on to observe that the hindrance register is maintained at
    site by the petitioner, duly signed by the engineers of the petitioner and
    by the consultants engaged by the petitioner only. The relevant portions
    of the Award reads as under:

    “14.3.2 Many pending extra items were pending since 2013
    which were settled and paid on the directions of this Tribunal
    during the proceedings. As is ascertained barring two extra items
    for rest of the items the rates were settled during the Arbitration
    proceedings. Because of many pending issues, the project
    execution, as it appears had lost the track for long. Though the
    time stipulation of 15 months was made, with the prolongation of
    the Contract by more than three times of the stipulated period,
    the time has been set at large by various defaults of the
    Respondent.

    14.3.3 The written submissions made by the Respondent latest on
    10-4-2017 were carefully examined. The Charts produced do not
    have any material significance to the issue on delays since both
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    the parties have argued and admitted that there are delays and
    when the work is incomplete the value executed on comparison
    with the original period will be less.

    14.3.4 The Tribunal has asked the Respondent to produce the
    hindrance register maintained at the site by the Respondent
    which has been relied by the parties. The Respondent has not
    made any allegation either in arguments or written submissions
    of possibility of forging of the register which itself is produced by
    Respondent during the proceedings.

    14.3.5 The Respondent pointed out few discrepancies in the
    written submissions made dt: 21.4.2017 in the hindrance
    register. As can be seen the hindrance register is the record
    maintained by the Respondent signed by the Respondent
    Engineers and the Consultants engaged by the Respondent.
    Neither during the pleadings nor during the arguments, the
    discrepancies alleged are pointed out which appear an
    afterthought. Moreover, the hindrance register is Respondent’s
    document which is admitted by them.

    14.3.6 The Claimant had in fact pointed out few factual
    discrepancies in actual dates of removal of hindrances as
    recorded in the Hindrance register produced by the Respondent
    during the proceedings. This was by way of filing a written
    statement submitted by the Claimant which was not challenged
    by the Respondent.

    14.3.7 Considering the material evidence on record, the Tribunal
    is of the opinion that the delays are not attributable to the
    Claimant and the reasons mentioned in various EOT
    applications are legitimate as found from records.”

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    (Emphasis Supplied)

    44. I am of the view that the reliance placed by the Arbitrator on hindrance
    register is well founded, and reasoned, as the petitioner has never
    disputed the contents of the hindrance register before the Arbitrator or
    even before this court until the stage of oral arguments. The petitioner
    only pointed out few discrepancies before the Arbitrator which were
    categorically dismissed by the Arbitrator by terming them as an
    afterthought. Again raising such crucial objection at such a belated stage
    of oral arguments of Section 34 proceedings is nothing but an
    afterthought. A perusal of the hindrance register shows that it is a
    contemporaneous record maintained at site and duly signed by the
    representatives of the petitioner and the consultant engaged by them, thus
    it can be said that the petitioner had knowledge of the delays, and its
    causes and the same cannot be attributed to the respondent for no
    reason/fault on its part. The relevant portions of the hindrance register
    (Typed Copy) showing signature of consultant and engineers are
    reproduced as under:-

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    S. Nature of Item of work Date of start Date of Overlapping if Net Sign of Weightage Net Sign of Remarks
    No. hindrance which could not of hindrance removal of any hindrance A.E. of this affected PM/EE of
    be executed due hindrance in days hindrance days residing
    to this hindrance officer
    18 Details of cold Due to non- 07.12.2011 31.03.2012 114 days 114 days Nil
    rooms and availability of and cont.

                   kitchens       in   the     details     of
                   hostels             provisions to be
                                       left in the dining
                                       halls             and
                                       kitchens for the
                                       services          and
                                       equipments,
                                       these      portions
                                       cannot             be
                                       finished and so
                                       the     completion
                                       of      hostels     is
                                       affected
    
    
                                       Affected areas -
                                       all hostels
    
    
             19    Extended            Due to existence         07.12.2011      31.03.2012        114 days         114 days                               Nil
                   development         of sewer pond                            and cont.
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                    and    work    of   and             non
                   services around     channelization of
                   the building        nallas      passing
                                       around          the
                                       building,       the
                                       work             of
                                       sewer/water
                                       supply and other
                                       services were in
                                       the    limits   and
                                       scope            of
                                       package-1
                                       cannot           be
                                       completed and so
                                       the progress is
                                       affected.
    
    
                                       Affected areas -
                                       Medical college
                                       and college of
                                       Nursing
    
    
             20    Delay in receipt    Delay in water        23.11.2011   04.05.2012   163 days   163 days   Nil
                   of drawing for      proofing work.
                   kota       stone
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                    flooring         and    Affected          area
                   terrace      water      Medical College,
                   proofing                College             of
                                           Nursing         Ayush
                                           block              and
                                           Library Building
    
    
             21    Delay of civil          Delay               in    27.01.2012   30.09.2011              613 days   613 days
                   work       due     to   complete         work                  and cont.
                   work of other           of block „A‟ of
                   agencies in main        service building
                   service building        as      well        as
                   & library.              Ground floor and
                                           terrace of library
    
    
                                           Affected area :
                                           Service building
                                           and             library
                                           building
    
    
             22    Delay of civil          Delay      in     civil   14.03.2012   30.09.2013   565 days   565 days   Nil
                   work       due     to   work               and                 and cont.
                   work of other           finishing        work
                   agencies         near   near hostel and
                   hostels          and    other buildings.
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                    other buildings
                                      Affected area: -
                                      Hostel and other
                                      building
    
    
             23    Details of cold    Due       to      non     24.05.2012   30.09.2013   494 days   494 days   Nil
                   rooms        and   availability        of                 and cont.
                   kitchen       in   the     details     of
                   hostels            provisions to be
                                      left in the dining
                                      halls             and
                                      kitchens for the
                                      services          and
                                      equipments,
                                      these       portions
                                      cannot              be
                                      finished and so
                                      the     completion
                                      of      hostels      is
                                      affected.
    
    
                                      Affected area: all
                                      hostels
    
    
             24    Heavy      rains   Delay      in     civil   06.06.2012   24.09.12     88 days    88 days    Nil
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                    during 2012          work             and                                         (Rain
                                        finishing        was                                         effected
                                        due to the heavy                                             days only)
                                        rains
    
    
                                        Affected        area:
                                        hostels and other
                                        buildings
    
    
             25    Modifications        Delay in        final   01.07.2012   30.09.2013   456 days   456 days     Nil
                   desired by the       finishing       work                 and cont.
                   Director in O.T      in Ayush block
                   room Autoclave
                   room          and
                   flooring        in   Affected        area:
                   Ayush building.      Ayush block.
    
    
    
    
             26    Delay in receipt     Finishing       work    01.07.2012   30.09.2013   456 days   456 days     Nil
                   GFC      drawings    of      first   floor                and cont.
                   for    work     of   elevation         on
                   atrium        and    atrium side
                   mumty           in   Affected        area:
                   nursing college      Nursing college.
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    45. The objections of the petitioner qua the non-consideration of report of
    superintending engineer dated 21.04.2017, site visits and status of
    incomplete work, were considered by the Arbitrator and were found
    irrelevant in view of better evidence in the form of hindrance register.

    The same is evident from the paragraph Nos. 14.3.2, 14.3.3 and 14.3.4 as
    reproduced above.

    46. The respondent has correctly relied on Delhi Agricultural Marketing
    Board
    (Supra) highlighting the significance of hindrance registers.
    Also,
    a Coordinate Bench of this Court in a recent judgment titled as Airport
    Authority of India v. URC Construction17
    , reiterated the position that
    hindrance registers hold substantial evidentiary value in construction
    contract disputes. The relevant paragraph No. 89 of the aforesaid
    judgment reads as under:

    “89. It is a settled principle that site records i.e. Hindrance
    Registers often hold greater evidentiary value regarding the
    actual impact of weather on specific construction activities
    like concreting or earthwork than general meteorological
    data.”

    (Emphasis Supplied)

    47. Additionally, the Arbitrator is the master of quality and quantity of
    evidence and his reasoning when substantiated by the material evidence
    cannot be said to be perverse, patently illegal or against public policy,
    just because another view is plausible.

    48. Therefore, on the issue of attribution of delays, the reasoning and
    findings of the Arbitrator rests on legitimate contemporaneous evidence
    17
    2026 SCC OnLine Del 534.

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    and the said Award cannot be said to be vitiated on the grounds under
    Section 34 of the act merely because a report or some contentions of the
    petitioner are not discussed in detail in the Award. This court under
    Section 34 of the act cannot weigh evidence or reappreciate the same.
    Claim Nos. 6, 7, 8, AND 9: Additional expenses due to prolongation of
    contract for various reasons.

    49. Claim Nos. 6, 7, 8, and 9 pertain to the claims raised by the respondent
    before the Arbitrator for compensation arising from prolongation of the
    Contract period, covering idling of resources such as plant, machinery,
    labour, etc. These claims collectively forms a substantial portion of the
    relief sought by the respondent i.e. an amount of about Rs. 35.08 crore,
    out of which an amount of about Rs. 3.2 crores was awarded vide the
    Award. These claims are predicated on the arbitral finding that the delays
    are primarily attributable to the petitioner, justifying damages.

    50. The primary contention raised by the petitioner, apropos these claims is
    that the Arbitrator exceeded its jurisdiction by granting compensation
    despite clear bar contained in the terms and conditions of the Contract. It
    is contended by the petitioner that the respondent in terms and conditions
    of the Contract is only entitled to extensions and not compensation. The
    petitioner has relied on Ramnath International Construction Pvt. Ltd.
    (Supra) to support its contention that when there is a contractual
    stipulation prohibiting compensation in case of extension of time, the
    same cannot be awarded by the Arbitrator.

    51. The Award of these claims is contended by the petitioner to be in
    violation of Clause Nos. 6(a), (b) and 40(h), (p)(ix) of the Special
    Conditions of the Contract, as they bar any claims for delays and only
    allows remedy of extension of time. The relevant clauses read as under:

    “Clause 6: Disruption of Progress
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    (a) The Contractor shall give adequate but not less than 4
    weeks written notice to the PC whenever planning or
    progress of the works is likely to be delayed or disrupted
    unless any further drawing or order, including a direction,
    instruction or approval, is required to be issued by the PC.

    The notice shall include details of the drawing or order
    required explaining why and by when it is required and of
    any delay or disruption likely to be suffered if it is late .

    (b) If by any reason of any failure or inability of the PC to
    issue within 4 weeks any drawing or instruction for which
    notice has been given by the Contractor in accordance with
    Sub-clause 1 and the Contractor suffers delay when the PC
    shall after due consultation with the Contractor recommend
    to the Client any extension of time under respective clause.
    Notwithstanding anything stated above, the Contractor shall
    not be eligible for any financial compensation arising out of
    the above.

    Clause 40 Miscellaneous

    (h) Delay in starting the work
    No compensation shall be allowed for any delay caused in
    the starting of the work on account of acquisition of land,
    encroachment or in the case of clearance of works, on
    account of any delay in according sanction to estimates in
    issue of drawings, decisions etc. however, the extension of
    time shall be granted as per relevant conditions of Contract.
    ….

    (p) Miscellaneous

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    (ix) No idling charges or compensation shall be paid for
    idling of the Contractor’s labour, staff or P&M etc. on any
    ground or due to any reason whatsoever.”

    52. The respondent contends that these claims awarded under several heads
    for additional expenses during the period of prolongation, are based on
    detailed reasoning and despite presence of the aforesaid clauses, where
    the delays are attributable to one party i.e. the petitioner, the respondent
    is entitled to compensation/damages under Section 53, 54, 55 and 73 of
    the Contract Act. The respondent to support his contention has placed
    reliance on Vishwa Shanti Builders (India) Pvt. Ltd. (Supra) and K.N.
    Sathyapalan (Supra).

    53. The Arbitrator in the Award has categorically observed that the
    principles of compensation apply in case of prolongation of Contract
    arising due to breach as the delays were attributable to the petitioner
    only. The relevant portions of the Award read as under:

    “6.1.6 The Claimant submitted that, as per section 53,54,55
    and 73 of the Indian Contract Act, 1872, under
    circumstances of failure in performance, promises and
    breach on part of the Respondent, the Respondent is liable
    for compensation for the losses suffered by Claimant as a
    consequence of the said lapses of the Respondent. The
    Claimant argued that as per sections of Indian Contract
    Act, 1872
    which clearly provides that when one party who
    has been compelled to incur loss due to the failure of the
    other party, such party is entitled for compensation.
    6.1.7 The Claimant cited following case laws in support of
    this claim:

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    i. The Hon’ble Supreme Court in the case of K.N.
    Sathyapalan (Dead) by LRs. Vs. State of Kerala and
    Anr. (2007) 13 SCC 43
    ii. The Hon’ble High Court of Delhi in National
    Highways Authority of India Vs. Hindustan
    Construction Company Ltd.
    2016 (2) Arb. LR 1 (Delhi)
    (DB).

    6.1.8 The Claimant submitted that ordinarily parties would
    be bound by the terms agreed upon in the Contract but in
    the event of one of the parties is unable to fulfill its
    obligations under the Contract which has direct bearing,
    the Arbitrator is vested with the authority to compensate the
    injured party for the extra cost incurred by him as a result
    of failure of the other party. The Claimant has also
    submitted that in the light of various Court Judgments, the
    aggrieved party needs to be compensated on account of
    delay in completion of work due to breaches committed by
    the other party.

    ….

    6.2.1 The Respondent referred Contract Clauses 6 of SCC,
    Clause 40(a),(b),(h),(p) of SCC and submitted that various
    reasons like delays due to rainfall, cold weather etc. for
    which holding Respondent liable is beyond any logical
    sense. The Respondent had argued that despite clearance of
    the said hindrances, the Claimant has miserably failed to
    complete the works within the justified extension granted to
    it. This irresponsible act of the Claimant has resulted in
    delay in creation of required infrastructure for this
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    prestigious institute, as argued by Respondent. It is clarified
    also that after considering all hindrances the competent
    authority has decided to grant interim regular extension of
    time for completion of work up to 18 th July 2012 only. The
    Respondent argued that as the rest of the delay up to point
    of consideration lies on part of the Claimant, the burden of
    delay should also be borne by the Claimant only.
    ….

    6.3.2 The Claimant has worked out the expenses on actual
    audited account basis for showing the costs incurred as per
    their books of accounts on machinery, manpower and
    various overheads. These costs were claimed in the
    prolonged period extending from contractual completion
    from August 2011 to till May 2015 for nearly 60 months.
    6.3.3 In Construction Contracts, the Courts have also
    upheld the principles of compensation in case of
    prolongation of contracts arising due to breach. For
    quantification of overheads application of formula is also
    recognized by Indian courts and Hudson’s formula is more
    popular having judicial acceptability. This formula is based
    on the practice that contractors do add the overheads as
    percentage loaded to the direct costs to arrive at bid costs.
    As per CPWD standard practice, 15% is allowed towards
    Contractor’s profit & overheads on the analysis of rates for
    the items. In building trade, the site, general office & other
    overheads may be to the tune of at least 5 to 8% even as per
    the CPWD practice. Generally the contractor recovers the

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    costs incurred on resources deployed including overhead
    costs from the turn over achieved.

    Award:

    Towards Claims No. 6, 7, 8 and 9, the claimant has totally
    claimed of Rs. 35,08,71,374/- under various heads of
    machinery hire charges, manpower costs, site overheads &
    establishment costs and head office, regional office
    expenses in the prolongation period.

    The average monthly turnover which is lost due to
    prolongation of work is assessed as Rs. 7.5 Cr. in above. An
    under recovery of 1% expenses per month on lost turnover
    summing up all types of overheads and expenses claimed
    under Claims number 6,7,8 and 9 is judged genuine and
    reasonable. Thus for 43 months prolongation from
    Sept.2011 to up to March2015, a compensation of Rs. 7.5
    Lakhs per month that is 1% of Rs. 7.5 Crores is awarded.
    Thus a total of Rs. 3,22,50,000/-, is awarded towards claim
    numbers 6, 7, 8 and 9.”

    (Emphasis Supplied)

    54. A perusal of the arbitral Award and written statement dated 18.02.2016
    filed by the petitioner before the Arbitrator, makes it clear that the
    petitioner raised this identical contention even before the Arbitrator as
    well. Raising this contention again in a Section 34 jurisdiction is nothing
    but reiteration of the same pleadings before this Court. The Award is well
    reasoned, based on correct application of principle of law, and passed
    after taking into consideration all the material evidence placed on record.

    Thus, the Arbitrator has rightly adopted a plausible view by making a
    categorical finding that in construction contracts the courts have applied
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    principles of compensation in cases of breach of contract. The Arbitrator
    has not awarded these claims in lump sum rather the Arbitrator has also
    made categorical formula based technical finding.

    55. The reliance placed by the petitioner on Ramnath International
    Construction Pvt. Ltd.
    (Supra) is misconceived and unfounded, as that
    decision was based on a very widely worded condition of the contract,
    namely Clause No. 11, which reads as under:

    “11. Clause 11 of the General Conditions of Contract
    relates to time, delay and extension. We extract below the
    portions of clause 11 relevant for our purpose:

    11. Time, delay and extension.–(A) Time is of the essence
    of the contract and is specified in the contract documents or
    in each individual works order.

    As soon as possible, after contract is let or any substantial
    work order is placed and before work under it is begun, the
    GE and the contractor shall agree upon the time and
    progress chart. The chart shall be prepared in direct
    relation to the time stated in the contract documents or the
    works order for completion of the individual items thereof
    and/or the contract or works order as a whole. It shall
    include the forecast of the dates for commencement and
    completion of the various trades, processes or sections of
    the work, and shall be amended as may be required by
    agreement between the GE and the contractor within the
    limitation of time imposed in the contract documents or
    works order. If the work be delayed:

    (i) by force majeure, or

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    (ii) by reason of abnormally bad weather, or

    (iii) by reason of serious loss or damage by fire, or

    (iv) by reason of civil commotion, local combination of
    workmen, strike or lockout, affecting any of the tradesmen
    employed on the work, or

    (v) by reason of delay on part of nominated sub-contractors,
    or nominated suppliers which the contractor has, in the
    opinion of GE, taken all practicable steps to avoid, or
    reduce, or

    (vi) by reason of delay on the part of contractors or
    tradesmen engaged by the Government in executing work
    not forming part of the contract, or
    ***

    (viii) by reason of any other cause, which in the absolute
    discretion of the accepting officer is beyond the contractor’s
    control;

    then in any such case the officer hereinafter mentioned may
    make fair and reasonable extension in the completion dates
    of individual items or groups of items of works for which
    separate periods of completion are mentioned in the
    contract documents or works order, as applicable.

    ***
    (B) If the works be delayed:

    (a) by reason of non-availability of government stores in
    Schedule B or

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    (b) by reason of non-availability or breakdown of
    government tools and plant listed in Schedule C;

    then, in any such event, notwithstanding the provisions
    hereinbefore contained, the accepting officer may in his
    discretion, grant such extension of time as may appear
    reasonable to him and the same shall be communicated to
    the contractor by the GE in writing. The decision so
    communicated shall be final and binding and the contractor
    shall be bound to complete the works within such extended
    time.

    (C) No claim in respect of compensation or otherwise,
    howsoever arising, as a result of extensions granted under
    Conditions (A) and (B) above shall be admitted.”

    (Emphasis Supplied)

    56. The Hon‟ble Supreme Court treated the above stated Clause as a specific
    consent by the contractor to accept only extension of time in full
    satisfaction of any delay claims. The relevant paragraph of the judgment
    reads as under:

    “18. In spite of having held that both were responsible for
    the delay and having noticed the arguments based on clause
    11(C) of the General Conditions of Contract, the Arbitrator
    proceeded to award damages on the ground of delay on the
    reasoning that the contractor is entitled to compensation,
    unless the employer establishes that the contractor has
    consented to accept the extension of time alone in
    satisfaction of his claim for delay. As rightly held by the

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    High Court, which decision we have affirmed while
    considering Question (i), clause 11(C) of the General
    Conditions of Contract is a clear bar to any claim for
    compensation for delays, in respect of which extensions
    have been sought and obtained. Clause 11(C) amounts to a
    specific consent by the contractor to accept extension of
    time alone in satisfaction of his claims for delay and not
    claim any compensation. In view of the clear bar against
    award of damages on account of delay, the Arbitrator
    clearly exceeded his jurisdiction, in awarding damages,
    ignoring clause 11(C).”

    (Emphasis Supplied)

    57. However, in the present case, the Clause Nos. 6(a), (b), 40(h) and
    40(p)(ix) are narrow in nature and are not structured as comprehensive
    clauses covering all prolongations caused by breach of the either party
    i.e. the petitioner or respondent, the Arbitrator here has found the delays
    to be attributable to the petitioner alone on the basis of hindrance
    registers, and has not disregarded the contractual clauses but has
    consciously reconciled them with Sections 53, 55 and 73 of the Contract
    Act while awarding damages.

    58. Additionally, the judgment of Ramnath International Construction Pvt.

    Ltd. (Supra) is distinguishable from the factual backdrop of the present
    case as from a perusal of the paragraph No. 18 of the judgment as
    reproduced above, the delays were attributable to both the parties, which
    was not the case in the instant petition. A Coordinate Bench of this Court

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    in Simplex Concrete Piles (India) Ltd. v. Union of India18, also made
    the following observations:

    “19. In my opinion, if I look at the issue from both the micro
    and macro positions, keeping in focus the intendment of
    legislation called the Contract Act, then, the judgment in the
    case of Asian Techs Ltd. can be said to laying down a law
    which would further the object and purpose of the Contract
    Act
    . I must hasten to add that I am still doubtful whether I
    am entitled to decide the aspect that out of two decisions of
    Supreme Court, which one is to prevail, therefore, my
    observations are strictly in terms of the limited parameters
    of the facts of the present case required to decide the aspect
    of the entitlement or the disentitlement to damages in view
    of the provisions of Section 55 and 73 of the Contract Act. I
    would with all due respect to the learned senior counsel for
    the petitioner, would not venture further and would leave it
    finally for a larger Bench of this court or the Supreme Court
    itself to consider whether at all there is any conflict between
    the judgments of Ram Nath International and Asian Techs
    Ltd and if there is a conflict, the ratio of which of the two
    judgments ought to prevail. I am therefore, deciding this
    case, to make things very clear, only on the basis of the
    decision that contractual clauses which prohibit the
    entitlement to rightful damages of a person is clearly hit and
    are void by virtue of Section 23 of the Contract Act.”

    18

    2010 SCC OnLine Del 821.

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    59. For the said reasons, the findings of the Arbitrator are sound, reasonable
    and based on a plausible view. Hence, no interference with the same is
    warranted under Section 34 of the Act.

    Claim No. 1: Release of wrongfully withheld amount from RA Bill-33
    & 34.

    60. The Arbitrator vide interim award dated 30.12.2016 has awarded Rs.

    2,95,79,465/- apropos the Claim No. 1 towards the amount withheld
    from the respondent‟s running account bills, without interest which was
    decided later by the Arbitrator at the time of final Award. The Award is
    based on the finding that the withholding of amount for non-achievement
    of milestone Nos. 4 and 5, was wrong as pursuant to the EOT‟S
    milestone Nos. 4 and 5 also needed to be rescheduled. It was further held
    by the Arbitrator that milestone Nos. 1, 2, and 3 were rescheduled
    pursuant to the EOT‟s and hence there was no reason for not
    rescheduling milestone Nos. 4 and 5.

    61. Notably, the findings of the Arbitrator in award of Claim No. 1 in the
    final Award is a reproduction of the findings made in the interim award
    dated 30.12.2016 wherein the claim was adjudicated except the interest
    component which was adjudicated to be paid in the final Award.

    62. The petitioner raises two fold contentions with respect to Claim No. 1,
    firstly that the Arbitrator failed to distinguish between a regular
    extension and a provisional extension. In construction contracts,
    provisional extensions, are granted merely to keep the contract alive and
    does not mean that the delay of the contractor is condoned or admitted.
    In the present case despite regular extensions, provisional extensions
    were granted while explicitly reserving the right to levy compensation
    for delays under Clause No. 2 of the GCC. Secondly, rescheduling of
    milestone applied only upto regular EOT i.e. granted upto 12.10.2012
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    and recovery in March 2013 for persistent non-achievement of milestone
    Nos. 4 and 5 was valid, rendering this claim of the Award violative of
    Section 28(3) of the Act.

    63. The Arbitrator apropos this Claim observed that as per Clause No. 5 of
    the GCC, Schedule F, the original milestones in the Contract were meant
    to be mutually decided between the parties and as per Clause No. 5.4 of
    the GCC, the milestones were required to be adjusted by the Engineer in
    Charge when extensions of time were granted. However, in the instant
    factual matrix, the petitioner granted several EOT‟s but never
    rescheduled milestone Nos. 4 and 5 in accordance with the new
    timelines. The Arbitrator categorically went on to hold that the amount
    was withheld by the petitioner based on the originally agreed milestones,
    which are irrelevant in light of the several EOT‟s granted by the
    petitioner without rescheduling the said milestones. Additionally, the
    Arbitrator held that the delays were attributable to the petitioner even
    beyond the period of regular EOT. The relevant portions of the Award
    read as under:

    “Finding of the Tribunal:

    1.6 I have carefully considered the above arguments of both
    the parties, the documents and evidence produced before
    me.

    1.7 In clause 5 of GCC, Schedule ‘F’ Page 107 of the
    Contract, (Page 85 of CV -1) it is stipulated that Mile
    stone(s) will be mutually decided on award of work. Also as
    per clause 5.4 of GCC Engineer-in-charge has to determine
    the EOT and reschedule the Milestones for completion of
    work. In the instant case though the Engineer-in-charge

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    granted EOT but had not rescheduled the milestones. From
    the records placed before me it is seen that the Respondents
    had withheld sum of amount Rs.2,95,79,465/- from the RA
    Bills of 33 & 34 of the Claimants. Also it is evident from the
    hindrance register filed by the Respondents that some of the
    hindrances which were persisting beyond the period of
    regular EOT i.e. 18.07.2012. Such hindrances were
    continuing all along.

    1.8 As can be seen from the records, withholding of above
    referred amount was initiated based on originally agreed
    mile stones stipulated in the agreement well before the
    determination of EOT. It was imperative upon the parties to
    agree on rescheduling the milestones on granting of EOT.

    Because of this the original agreed schedule for milestones
    have lost their relevance. Furthermore the dispute between
    the parties is only regarding non achievement of 4 th, 5th
    milestones. Since milestones 1st , 2nd, 3rd were achieved
    within the extended period, which is not denied by the
    Respondents. Hence, there is no dispute between the parties
    on achieving the first three milestones.

    AWARD:-

    After deliberating in detail and considering all the
    submissions of parties, documents and evidence filed, the
    Tribunal awards that the withheld amount of Rs.
    2,95,79,465/- on account of non achievement of milestones
    from the Claimants bill shall be refunded to the Claimants.

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    The Claimants have claimed interest @ 15 % P A for the
    above claim amount separately under Claim no.13. From
    the records placed before me I find that the amount was
    withheld while releasing payments for 33,34th RA bills on
    18-2-2014.

    The Tribunal Awards the simple interest at a rate 12% per
    annum on the above amount to be refunded from the date of
    recovery i.e.l8.2.2014 to the date of the award.”

    64. The relevant Clause No. 5 of the GCC reads as under:

    “Clause No. 5.1 of GCC

    As soon as possible after the contract is concluded, the
    contractor shall submit a Time and Progress Chart for each
    mile stone and get it approved by the Department. The
    Chart shall be prepared in direct relation to the time stated
    in the contract documents for completion of items of the
    works. It shall indicate the forecast of the dates of
    commencement and completion of agreement between the
    Engineer-in-Charge and the Contractor within the
    limitations of time imposed in the Contract documents, and
    further to ensure good progress during the execution of the
    work, the contract shall in all cases in which the time
    allowed for any work, exceeds one month (Save for special
    jobs for which a separate programme has been agreed
    upon) complete the work as per mile stones given in
    Schedule ‘F’.

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    Sl. No. 13 amendment no 1 to tender document:

    Five (5) Mile Stone(s) will be mutually decided on award of
    work based on the work programme submitted by
    contractor. The amount to be withheld for non-achievement
    of each mile stone· will be 1% of the tendered value.

    Clause No. 5.4 of GCC

    In any such case the Engineer-In-charge may give a fair
    and reasonable extension of time and reschedule the
    milestones for completion of work. Such extension shall be
    communicated to the Contractor by the Engineer-in-charge
    in writing within 3 months of the date of receipt of such
    request. Non application by the Contractor for Extension of
    time shall not be a bar for giving a fair and reasonable
    extension by the Engineer-in-charge and this shall be
    binding on the contractor.”

    65. I am in full agreement with the view of the Arbitrator that once extension
    is granted in view of Clause No. 5, the originally fixed milestone
    becomes irrelevant and any withholding cannot be allowed on the basis
    of not achieving the earlier fixed milestones. The reasoning adopted by
    the Arbitrator is cogent, correct and based on interpretation of Clause
    No. 5 of the GCC, which mandates rescheduling of the milestones in
    cases of grant of EOT. The view taken by the Arbitrator is not only a
    plausible view but also a reasonable one which is substantiated by
    contractual terms and evidence available on record.

    66. The findings of the Arbitrator are based on plausible interpretation of

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    Clause No. 5 of the GCC, which cannot be reinterpreted/reappreciated
    by this Court under Section 34 of the Act. Thus, no ground warranting
    interference by this Court is established.

    Claim No. 2: Reimbursement of increase in taxes and duties under
    Clause 38 of GCC of contract (VAT, Entry Tax and Central Excise).

    67. Claim No. 2 pertains to reimbursement of a sum of Rs. 38,10,057/‑
    towards increase in taxes and duties during the currency of the Contract,
    claimed by the respondent under Clause No. 38 of the GCC. The
    Arbitrator has allowed this claim, holding that once the statutory levies
    were in fact increased and duly paid by the respondent (contractor) in
    relation to the works, the petitioner (employer) was bound, under the
    Contract, to reimburse the same.

    68. The petitioner has challenged the findings of the Arbitrator apropos the
    Claim No. 2 only on the ground that the respondent failed to lodge the
    claim within 30 days time period as stipulated under Clause No. 38 of the
    GCC. The same contention was also raised by the petitioner before the
    Arbitrator. The findings of the Arbitrator in favour of the respondent on
    this contention are stated to be patently illegal, perverse and unjust.
    Clause No. 38 of the GCC reads as under:

    “Clause 38: Conditions for reimbursement of levy/taxes if
    levied after receipt of tenders
    i. All tendered rate shall be inclusive of all taxes and levies
    payable under respective statutes. However, pursuant to the
    constitution (46th amendment Act, 1982), if any further tax
    or levy is imposed by statute, after the last stipulated date
    for the receipt of tender including extensions if any and the
    contractor thereupon necessarily and properly pays such
    taxes/levies, the contractor shall be reimbursed the amount
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    so paid, provided such payments, if any, is not, in the
    opinion of the superintending engineer (whose decision
    shall be final and binding on the contractor) attributable to
    delay in execution of work within the control of the
    contractor.

    ii. The contractor shall keep necessary books of accounts
    and other documents for the purpose of this condition as
    may be necessary and shall allow inspection of the same by
    a duly authorized representative of the Government and/or
    the Engineer-in-charge and further shall furnish such other
    information/document as the Engineer-in-charge may
    require from time to time.

    iii. The contractor shall, within a period of 30 days of the
    imposition of any such further tax or levy, pursuant to the
    constitution (Forty Sixth Amendment) Act 1982, give a
    written notice thereof to the Engineer-in-charge that the
    same is given pursuant to this condition, together with all
    necessary information relating thereto.”

    (Emphasis Supplied)

    69. Per contra, the respondent argues that the petitioner has only reiterated
    the same contentions as raised before the Arbitrator, and the Arbitrator
    has already in a detailed and reasoned manner adjudicated these
    contentions of the petitioner. The respondent to substantiate the decision
    of the Arbitrator has placed reliance on Mahesh Bansal (Supra) and
    Associated Construction Co. (Supra), where courts have upheld
    reimbursement of statutory levies despite procedural lapse of furnishing
    notice, so long as the substantive liability under the contract stood
    established.

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    70. The Arbitrator with regards to the Claim No. 2 has noted that the
    petitioner has neither disputed the admissibility of the claim nor the
    quantification of it, but has only raised a defence limited to the ground
    that the claim was not lodged within 30 days. The Arbitrator referred to
    the Clause No. 38 of the GCC to hold that the said Clause provides for
    the notice to be given, but it does not stipulate that if notice is not given,
    the otherwise legitimate dues will not be reimbursed. Thus, in absence of
    any specific bar, the amounts paid in accordance with revised taxes are
    bound to be reimbursed. The relevant operative portions of the Award
    read as under:

    “2.3.1 In Clause 38 of GCC it is stipulated that pursuant to
    the Constitution (46th Amendment Act, 1982), if any further
    tax or levy is imposed by Statute, after the last stipulated
    date of receipt of tender including extensions if any and the
    contractor thereupon necessarily and properly pays such
    taxes/levies, the contractor shall be reimbursed the amount
    so paid. Further the contractor is required to keep the
    necessary records for the purpose of seeking
    reimbursement.

    ….

    2.3.3 From the records placed before me it is seen that the
    Claimant had paid such increase in taxes time to time
    during execution of work and requested the Respondent for
    reimbursement of the same as per the provisions of the
    Contract and based on the supporting documents provided
    to it.

    2.3.4 As can be seen from the record, the Respondent
    neither disputed the admissibility of claim under this clause
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    nor the quantification of the reimbursement of the taxes
    filed by the Claimant. But only submitted and argued in
    their submissions that the claim was not lodged within 30
    days. Furthermore, the dispute between the parties is only
    regarding limitation of claim and the only objection taken
    by the Respondent is that notice as required under Clause
    38 of GCC had not been served on the Respondent before
    making this claim. As can be seen the above Clause
    provides that notice had to be given but that by itself is no
    ground to reject the claim if otherwise found due. Clause 38
    of GCC does not stipulate that if notice is not given then
    statutory increase in taxes paid by the contractor would not
    be reimbursed. However, the work is in progress and the
    Claim is of progressive in nature. In the absence of any bar
    that the Claimant having paid the revised taxes which is
    calculated based on the actual paid challans, this claim
    appears justified.

    Award: An amount of Rs. 38,10,057/- is awarded to the
    Claimant against this Claim towards reimbursement of
    taxes and duties paid.”

    (Emphasis Supplied)

    71. In this view of the matter, the line of reasoning followed by the
    Arbitrator cannot be characterised as perverse or patently illegal. Clause
    No. 38 (iii) of the GCC as reproduced undoubtedly embodies a
    stipulation regarding notice within a certain period, but the same Clause
    does not in any possible way provide that failure to comply with the
    provision concerning notice within 30 days shall result in nullifying that
    right of reimbursement or the same will render the claim for otherwise
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    legitimate dues as non-maintainable. Treating such a stipulation of notice
    as directory rather than mandatory and in the absence of an express
    stipulation, the interpretation of the Arbitrator is a plausible construction
    of the Contract. It cannot, therefore, be said that the Arbitrator has
    ignored the terms of the Contract or exceeded the jurisdiction. The
    Arbitrator has interpreted Clause No. 38 and has made a finding which is
    also in consonance of the judgments of this Court.

    72. The respondent to substantiate the decision of the Arbitrator has correctly
    placed reliance on Associated Construction Co. (Supra), wherein a
    Coordinate Bench of this Court relied on Mahesh Bansal (Supra), to
    hold that mere non-compliance with provision for notice is not in itself a
    ground to invalidate a claim otherwise valid and when the Arbitrator
    bases his decision on evidence based formula/methodology/admitted
    amount, the same should not be interfered under Section 34 jurisdiction.

    The relevant paragraphs of Associated Construction Co. (Supra) read as
    under:

    “31. It is not disputed by the petitioner that almost a similar
    controversy has already been adjudicated upon by this
    Court in the case titled as Mahesh Bansal v. Executive
    Engineer (FCD
    . 1) (1995) 34 DRJ 249. Single Judge of this
    Court in the said case was concerned with a similar claim
    for labour escalation under a similar clause as in the
    present case, and proceeded to deal with the objections to
    the arbitral award in the said case as under:

    “8. So far as Claim No. 3 is concerned, the claimant had
    claimed increase in the cost of labor due to increase in
    labor wages on account of Delhi Administration

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    Notification. Minimum labor rates were quoted at the time
    the lenders were submitted. These rates were revised w.e.f.
    1st June, 1984 by Delhi Administration. Hence the petitioner
    was duly bound to pay the revised wages to his labor. The
    only objection taken by the respondent is that notice as
    required under Clause 10(c) had not been served on the
    respondent before making this claim. Secondly record had
    not been produced to substantiate the same. Both these
    objections have been turned down by the Arbitrator
    primarily on the ground that the respondent submitted a
    statement showing the amount of work done after 1st June
    1984 i.e. exhibit „R-11‟. He also look into consideration the
    labor component from exhibit „R11‟ which worked out to be
    23.5% as per the norms of C.P.W.D. Therefore, he
    concluded that the petitioner would be justified to claim
    escalation as worked out on the basis of exhibit „R-11‟ while
    absorbing 10% and, therefore, concluded that award of Rs.
    3,620.00 would be just as against the claim of Rs.
    20,700.00. So far as serving of notice is concerned,
    admittedly Clause 10(c) provides that notice had to be given
    but that by itself is no ground to reject the claim if otherwise
    found due. Clause 10(c) does not stipulate that if notice is
    not given than statutory increase in labor wages paid by the
    contractor would not be given. In the absence of any bar,
    the Arbitrator was within his right to conclude that the
    contractor having paid the revised wages which he
    calculated on the assumed labor component of 23.5%; as
    per the norms of the C.P.W.D. and therefore, relying on the
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    document filed by the respondent exhibit „R-11″ he
    calculated the escalation of the labor component and
    awarded the amount. I see no reason to interfere in the
    same.”

    32. A reading of the aforesaid judgment would show that
    similar objections to the award have been raised by the
    petitioner in the present case have been repelled. The
    approach taken by the Arbitrator in the present case is
    similar to the approach that has been upheld by this Court
    in the aforesaid case.

    33. It appears from the record that the Arbitrator has
    gone strictly by the admitted amount of work done in the
    present contract by the petitioner and extracted the labor
    component from the same. As already noted hereinabove,
    the Arbitrator has thus based his formula/methodology only
    on the relevant statutory notifications evidencing the
    increase in minimum wages and RAR bills, to evidence the
    work actually executed, which have admittedly been
    certified by the petitioner itself at different stages of the
    work.

    34. It is not the case of the petitioner that the subject
    contract provide for a different formula to be applied in
    order to arrive at the quantification of the escalation due. It
    is the petitioner who had appointed the Arbitrator, who is
    not only a technical person but is also incidentally a serving
    officer of the petitioner. The very purpose behind the
    appointment of technical persons as Arbitrators is that they

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    may use their expertise and experience in the field to be able
    to resolve technical and trade-specific disputes between the
    parties. Once such a technical and factual determination
    has been carried out, it is not open to the petitioner to make
    a grievance about the same merely because the said
    determination was not to its liking. Single Judge of this
    Court in the case of P.C. Sharma and Co. v. Delhi
    Development Authority
    in CS(OS) No. 2057A/1996 decided
    on 2nd July, 2010 in this regard has opined as under:

    “…The respondent DDA had the choice to appoint an
    Arbitrator and appointed a technical person rather than a
    legal person. The sole purpose of appointment of a technical
    rather than a legal person as an Arbitrator is to take benefit
    of the special knowledge of the Arbitrator relating to the
    matters in dispute.”

    35. In light of the above, the challenge by the petitioner
    to the findings of the Arbitrator under Claim No. 5 has no
    force and this Court is not inclined to interfere with the said
    findings.”

    (Emphasis Supplied)

    73. The Arbitrator‟s view is both possible and reasonable and interference is
    unwarranted. Accordingly, the award on Claim No. 2, granting
    reimbursement of increased taxes and duties under Clause No. 38 of the
    GCC, rests on a tenable interpretation of the Contract.
    Claim No. 3: Reimbursement of increase in taxes and duties under
    Clause 20 and 19B iv (b) of GCC of Contract (Minimum Wages Act).

    74. The Claim No. 3 pertains to reimbursement of additional expenditure

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    incurred by the respondent on account of increases in statutory payments
    of minimum wages and other statutory obligations. The respondent has
    substantiated this claim by relying on Clause No. 20 of the GCC, which
    obliges the respondent to comply with the Minimum Wages Act, 1948,
    and other labour laws, read with Clause No. 19B(iv)(b) of the GCC. The
    Arbitrator accepted the contentions of the respondent and allowed the
    claim.

    75. Apropos this Claim, the petitioner has raised two-fold contentions.

    Firstly, the Arbitrator has committed grave error by basing his decision
    on Clause No. 38 of the GCC, despite the fact that the respondent itself
    has not claimed the amount under Clause No. 38 of the GCC. Secondly,
    the respondent relied on Clause 10CC of CPWD contracts for
    quantification and the same was treated as correct by the Arbitrator.

    76. Additionally, the petitioner also relies upon paragraph No. 3, Volume IV
    of “Preamble to Bill of Quantities” to contend that the rates quoted are
    not amenable to change for any reason, the paragraph No. 3 reads as
    under:

    “3. Rates quoted shall be firm and shall not be subject to
    any price variation due to increase in labour wages, cost of
    material etc., or any other price variations due to any
    reason whatsoever whether during the stipulated period of
    execution or during the extended period of completion if
    any.”

    77. At this stage, it is pertinent to see Clause No. 20 and 19B(iv)(b) of the
    GCC and the same read as under:

    ” Clause 19B Payment of wages:

    Payment of wages:

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    (iv.)…

    (b). Under the provision of Minimum Wages (Central)
    Rules, 1950, the contractor is bound to allow to the labours
    directly or indirectly employed in the works one day rest for
    6 days continuous work and pay wages at the same rate as
    for duty. In the event of default, the Engineer-in-Charge
    shall have the right to deduct the sum or sums not paid on
    account of wages for weekly holidays to any labours and
    pay the same to the persons entitled thereto from any money
    due to the contractor by the Engineer-in-Charge
    Concerned.

    In the case of Union Territory of Delhi, however, as the all
    inclusive minimum daily wages fixed under Notification of
    the Delhi Administration No. F. 12(162) MWO/
    DAB/43884-91, dated 31.12.1979 as amended from time to
    time are inclusive of wages for the weekly day of rest, the
    question of extra payment for weekly holiday would not
    arise.

    ….

    CLAUSE 20 Minimum Wages Act to be complied with
    The Contractor Shall comply with all the provisions of the
    Minimum Wages Act, 1948 and Contract Labour
    (Regulation and Abolition) Act, 1970
    , amended from time to
    time and rules framed thereunder and other labour laws
    affecting contract labour that may be brought into force
    from time to time.”

    (Emphasis Supplied)

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    78. From a perusal of the Clause Nos. 19B(iv)(b) and 20 of the GCC, it is
    clear that together both of these clauses cast a mandatory and a
    continuing obligation on the respondent to comply with the payment of
    statutory wages as revised from time to time.

    79. The Arbitrator while dealing with this claim has relied on the Clause No.
    38 of the GCC, which provides that if any tax or levy is imposed after the
    last stipulated date of receipt of tenders, and the respondent has duly paid
    the same, the respondent shall be reimbursed the amount so paid.

    80. The Arbitrator in this regard made a factual observation that the claimant
    had in fact paid minimum wages increased from time to time to the
    labour engaged, and had claimed reimbursement from the petitioner. The
    respondent had produced supporting documents evidencing such
    payments. He further noted that the claimant had quantified its claim by
    adopting the labour component and formula analogous to Clause No.
    10CC of the CPWD contract, treating the present Contract as similar in
    structure. The Arbitrator granted actual expenditure incurred/actual
    payments made to labour in this Claim. The relevant portions of the
    Award read as under:

    “3.3.1 In Clause 38 of GCC it is stipulated that pursuant to
    the Constitution (46th amendment Act, 1982), if any further
    tax or levy is imposed by Statute, after the last stipulated
    date of receipt of tender including extensions if any and the
    contractor thereupon necessarily and properly pays such
    tax/levies, the contractor shall be reimbursed the amount so
    paid. From the records placed before me it is seen that the
    Claimant had paid properly such increase in Minimum
    Wages to labour engaged from time to time during
    execution of work and requested the Respondent for
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    reimbursement of the same as per the provisions of the
    Contract and based on the supporting documents provided
    to it.

    3.3.2 As can be seen from the record, the Claimant had
    quantified its claim as per Clause 10 CC of the CPWD
    contract as the present contract is also similar to CPWD
    contracts in which the labour component for escalation is
    adopted as 25%. The Claimant has submitted the actual
    expenditure incurred/ actual payments made to labours in
    support of above claim. These are the records maintained
    during execution and certified. Further the subject contract
    was also prolonged for reasons not attributable to the
    Claimant and grant of extension of time by the Respondent
    to this effect was also in place. In the light of above
    judgments cited the court held that when the state has
    agreed to reimburse the increased wages than those
    prescribed or notified at the time of inviting tenders, it is
    obligatory to reimburse such costs.

    Award:

    In view of the above findings, an amount of Rs.
    1,44,71,999/- as against the claim of Rs. 6,98,63,141/- is
    awarded on this Claim towards reimbursement of minimum
    wages of labour, based on records produced .”

    (Emphasis Supplied)

    81. The first objection of the petitioner that the Arbitrator has substantiated
    the Award on Clause No. 38 without jurisdiction is misconceived and
    unfounded. The fact that the respondent, in its SOC, stressed on Clause
    Nos. 20 and 19B(iv)(b) rather than Clause No. 38 does not mean that the
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    Arbitrator was barred from referring to Clause No. 38 as the more
    specific reimbursement provision while giving its findings. The
    Arbitrator has not granted the claim by relying on something alien to the
    Contract, it has merely located the correct clause that gives effect to the
    same substantive right as the respondent claimed. Moreover, the
    Arbitrator while noting the submissions of the respondent has also noted
    a reference to Clause No. 38 of the GCC, the relevant portion of the
    Award reads as under:

    “3.1 Claimant’s Submissions:

    3.1.1 The Claimant submitted that as per Clause 20 of GCC,
    the Claimant should comply with all the provisions of the
    Minimum Wages Act, 1948 and the Contract Labour Act,
    1970
    during execution of contract.

    3.1.2 The Claimant submitted that as per Clause 38 (iii) of
    GCC if any further tax or levy is imposed by statute after the
    last stipulated date of receipt of tender including extensions
    if any, and the Contractor thereupon necessarily and
    properly pays such taxes/levies, the Contractor shall be
    reimbursed the amount so paid.”

    (Emphasis Supplied)

    82. Be that as it may, the Arbitrator being the master of the quality and
    quantity of the evidence, the appreciation of the terms of the contract is
    the sole prerogative of the Arbitrator.

    83. The second objection raised by the petitioner qua this claim is the
    quantification of claim as per Clause No. 10CC of CPWD despite the
    subject Contract not being same as CPWD contract. This objection is a
    mere reiteration of the objection already raised before the Arbitrator and
    duly adjudicated by him. The Arbitrator in the present case has only
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    made a reference to the Clause 10CC of CPWD but has not relied on it,
    the Arbitrator relied on the actual records for the purpose of allowing and
    awarding the claim.

    84. Third objection as regards to amenability of quoted rates to change in
    view of paragraph 3 of the Preamble to BOQ, this particular objection
    was also raised before the Arbitrator. I am of the view that this Clause
    cannot be read in isolation and the same requires a comprehensive
    reading along with other provisions of the Contract. Merely because
    Arbitrator did not refer this particular Clause of the Contract in his
    Award, the same cannot be used as a ground to assail the Award, when
    the view taken by the Arbitrator is plausible view and based on cogent
    reasons and evidence.

    85. Moreover, the reliance placed by the respondent on the judgment of
    Associated Construction Co. (Supra) is also well founded, as the dispute
    adjudicated in that matter squarely substantiates the decision of the
    Arbitrator in the present matter. The findings of the Arbitrator with
    respect to quantum of the Claim are based on actual expenditure
    incurred. Thus, the same does not warrant any interference by this Court.
    The relevant paragraphs of the aforesaid judgment are already
    reproduced in the paragraph No. 72 of this judgment.

    86. To my mind, the view taken by the Arbitrator is a correct view based on
    appreciation facts, which cannot be reappreciated by this Court under
    Section 34 of the Act. Thus, there is no ground established by the
    petitioner for warranting interference with the Award.
    Claim No. 4: Extra items of work claimed under Clause 12 of GCC and
    Clause 22, 23 of SCC.

    87. The Claim No. 4 pertains to the additional items/substituted items
    executed during the execution of works by the respondent, in accordance
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    with the instructions of the petitioner. These extra items of work were
    claimed under Clause No. 12 of the GCC and Clause Nos. 22 and 23 of
    the Special Conditions of the Contract.

    88. The Claim No. 4 majorly relates to the payment for two extra executed
    items, the first one being washed stone grit plaster with marble chips and
    the second one being laying in position the ready-mix concrete (RMC),
    and the petitioner has assailed the Award on three broad grounds:

    i. That the extra items must be claimed in strict compliance of
    Clause 12, more specifically Clause No. 12.2 of the GCC.
    ii. That the dispute survived only with respect to the RMC as the grit
    plaster issue had already been approved during the site visit on
    26.11.2016 and paid. The same fact had already been conveyed to
    the Arbitrator vide petitioner‟s written arguments submitted during
    the arbitral proceedings.

    iii. That the RMC was already covered by agreement item No.
    3.8/DSR item No. 5.33, and the Arbitrator has erred in relying
    upon item No. 5.37 of the DSR.

    89. From a bare perusal of the submissions and findings recorded by the
    Arbitrator, it is clear that the petitioner has only reiterated its arguments
    which were contended before the Arbitrator. The relevant portions of the
    Award read as under:

    “4.1 Claimant’s Submissions:

    4.1.1 The Claimant submitted that during the execution of
    works there were additional items/ substituted items which
    were executed as per the directions/Instructions of the
    Respondent. The Claimant submitted that for these extra
    items of works it had submitted its rates along with detailed
    rate analysis in accordance to contract clause 12 of GCC.

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    The list of extra item for which the rates are not finalized by
    the Respondent are listed at page 93 of SOC.

    4.1.2 The Claimant submitted that during the proceedings
    as per the directions of AT, the Respondent finalized the
    rates for almost all aforesaid extra items except for only two
    items pending/disputed. One such item is Washed stone grit
    plaster at sl.no.6 of the list of extra items at page 93 of SOC
    and the other is Providing and laying in position Ready Mix
    Concrete (RMC) at Sl.no.7 of the list of extra items at same
    page.

    4.1.3 The Claimant submitted that the external plaster is to
    be washed stone grit plaster with ordinary stone chips of 10
    mm nominal size. But the Claimant has executed the work
    as per the drawings/ details for finishing works issued by
    the Respondent at a later date during execution of work,
    which envisages that the grit plaster with marble chips
    instead of ordinary stone chips. As the marble chips are
    much costlier in comparison to ordinary stone chips the
    Claimant has submitted the extra item along with rate
    analysis for extra costs towards costlier marble chips,
    which is a substituted item.

    4.1.4 The Claimant pleaded that the difference in market
    rates for ordinary-stone and marble is huge. The Claimant
    also argued that the rate quoted at the time of submission of
    bid was based on stone chips only as per item nomenclature
    intender. The Claimant argued that during execution the
    claimant was asked to execute the item with marble chips

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    and hence it is legitimately entitled for above claim of extra
    item of grit plastering using marble chips.

    4.1.5 The Claimant during arguments on 21.11.2016
    submitted a revised rate analysis as per then prevailing
    market rate for the above extra item along with copy of
    invoices to support the actual procurement rate of marble
    chips and other materials for finalization of rates. The
    Claimant submitted that the revised rate is Rs. 398.81 per
    sqm. whereas it is being paid a rate of Rs. 266.66 per sqm.
    And it is entitled for difference of rate of Rs.l32.15.
    4.1.6 The Claimant submitted that another extra item
    beyond the scope of work executed was of Ready Mixed
    Concrete (RMC) which was not covered under BOQ item
    provided in the contract. The Claimant argued that the
    Respondent had wrongly incorporated the item from DSR
    (Delhi Schedule of Rates) which does not cover the scope of
    RMC. The DSR item under which the scope of work
    executed for RMC is covered under DSR item no. 5.37.
    4.1.7 The Claimant submitted that the Claimant has used
    Ready Mixed Concrete manufactured in fully automatic
    Batching plant and transported the same to job site by
    transit mixers in accordance to contract clause 40, para
    P(ii) of Special conditions of contract (SCC). For such an
    item the rate is catered against item no.5.37 of DSR. The
    Claimant argued that the item in BOQ under which this was
    being paid which does not cover the scope of RMC.
    4.1.8 The Claimant submitted that the scope of work for
    RMC also includes transit mixer for transporting RMC to
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    site of work, having continuous agitated mixer which was
    not covered under the scope of BOQ item 3.8. The Claimant
    submitted that as the work was executed by the Claimant in
    accordance to contract clause 40(P)(ii) of SCC and with
    similar description of work as per DSR item 5.37, the
    Claimant has claimed the RMC as substituted item. Hence
    the Claimant as rightly claimed the aforesaid substituted
    item as per the terms of the agreement as pleaded by
    Claimant. The Claimant has submitted the photographs as
    evidence of deploying RMC plant and Transit mixers for
    executing concrete by RMC against the Respondent’s
    arguments that no RMC plant was deployed. The Claimant
    submitted that it submitted a rate analysis for substituted
    item of RMC for Rs. 4932.69 per Cu.m. and the payment
    with BOQ rate of Rs. 4695.94 per Cu.m is being paid by the
    Respondent. The Claimant argued that it is entitled for the
    difference of these rates.

    4.2 Respondent’s submissions:

    4.2.1 The Respondent submitted that as per Clause 12 of
    GCC the Contractor may seek extra rate within fifteen days
    of receipt of order or occurrence of items claim rates,
    supported by proper analysis for the work. But the Claimant
    was neither serious in raising the claims or submitting the
    required details within 15 days of occurrence as per
    contract clause and taken his own arbitrary time in
    submitting the claims in the arbitrary format.
    4.2.2 The Respondent submitted that the valid claims are
    being scrutinized and processed soon after receiving the
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    desired supporting details from the Claimants and valid
    claims are approved by the competent authority. But the
    Claimant has unnecessarily pressurizing the Respondents by
    claiming arbitrary claims in terms of extra items like using
    RMC plants instead of BMC plants and extra payments of
    sand stone cladding on DSR items against BOQ rates etc.
    4.2.3 The Respondent submitted that the major part of the
    claimed extra item consists of use of marble chips in Grit
    plaster amounting to Rs.62.17 lac and use of RMC plants in
    RCC work amounting to Rs. 84.17 lac. It is mentioned that
    these claims were raised much after the occurrence of these
    items at site and also without any supporting base.
    4.2.4 The Respondent submitted that the item of grit plaster
    is always done in a particular combination using various
    type and colour of stone chippings in particular grading.

    The work is being executed based on approved design and
    colour combination of stone chippings which includes
    marble chips also. The Claimants claim for additional
    amount for using marble chips is denied as the same is also
    covered under broad category of stone chips as per
    agreement item no 11.13 which states “top layer 15mm
    cement plaster 1:0.5:2 (1 cement : 0.5 coarse sand : 2 stone
    chipping 10 mm nominal size)”.

    4.2.5 On the extra rate for RMC, the Respondent submitted
    that the concrete was actually prepared using automatic
    Batch Mix Concrete Plants and shifted to various location
    of work sites using transit mixers in lieu of direct pumping
    as specified in agreement item. The Respondent argued that
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    the Claimant used the transit mixer for his own convenience
    and that was neither forced by the Respondents nor
    beneficial for the progress of work. Also the Respondent
    argued that the Claimant executed the RCC work using this
    system and the Respondent allowed this to avoid any
    hindrance in work. The extra claim is based on another
    DSR item in which concrete is brought from fully automatic
    RMC plants being owned by third party and approved for
    construction by the Client.

    4.2.6 The Respondent vide its written submissions of
    arguments dt: 10-4-2017 sent few invoice copies of which
    are already submitted by Claimant and on record.
    4.2.7 The Respondent submitted that as there is no deviation
    from agreement items there should not be any extra claim
    permitted and hence the claim of the claimant is denied.
    4.3 Findings of the AT:

    4.3.1 This Arbitral Tribunal observes that the BOQ item
    no.13. 72 for “washed stone grit plaster” consist of ordinary
    stone chips of 10 mm nominal size and not with marble
    stone chips. On being questioned it is ascertained that
    nowhere in the tender documents usage of marble chips in
    the grit plaster was mentioned. Obviously the bidders do
    quote for this BOQ item is considering stone chips only. The
    Respondent’s instruction to use marble chips in place of
    stone chips on the later date of execution of work is a
    deviation to this BOQ item and hence a new rate to be
    decided as per the terms of the contract. The Claimant is
    entitled for above claim of extra item of grit plastering using
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    marble chips. The Claimant on 21.11.2016 submitted a
    revised rate analysis based on the actual procurement of
    marble chips and other materials. The copy of the same has
    been received by the Respondent. The quantity is not
    disputed as it is being paid under BOQ item.
    4.3.2 With regards to other item of Ready Mix Concrete, the
    Tribunal observers that in the given BOQ item of contract
    the nomenclature of BOQ does not includes transit mixer
    for transporting concrete to site of work, having continuous
    agitated mixer. The Contract BOQ item stipulates as
    follows:

    “Providing and laying in position machine hatched,
    machine mixed and machine vibrated design mix cement
    concrete of specified grade for reinforced cement concrete
    work including pumping of concrete to site of laying but
    excluding the cost of centering…… as per IS: 9103 ……. as
    per direction of Engineer-in-charge”.

    4.3.3 The DSR item under which the scope of work executed
    for RMC is covered under DSR item no. 5.37 which
    stipulates as follows:

    “DSR item no. 5.37 Providing and laying in position ready
    mixed M-25 grade concrete for reinforced cement concrete
    work, using cement content as per approved design mix,
    manufactured in fully automatic hatching plant and
    transported to site of work in transit mixer for all leads,
    having continuous agitated mixer, manufactured as per mix
    design of specified grade for reinforced cement concrete
    work including pumping of R.MC. from transit mixer to site
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    of laying, excluding the cost of centering…….. as per IS:

    9103 …… . as per direction of Engineer-in-charge. ”

    4.3.4 Since the Claimant executed the work of scope similar
    to DSR item no. 5.37 using automatic batching plant and
    transit mixer having continuous agitated mixer for
    transporting the RMC to site , the Claimant is entitled for
    the rate as per DSR item no. 5.37 as claimed . The quantity
    is not disputed as it is being paid under BOQ item.
    4.3.5 The quantification based on the revised rates is
    presented in pages 9109 and 9110 of Claimant’s
    submissions. This is amounting to total of Rs.1,18,89,226/-.
    Award:

    In the light of above findings the Claimant is entitled to
    payment for these extra items. In the considered opinion of
    Tribunal the Claim of the Claimant for payment ofthese
    extra items is justified. Accordingly I award
    Rs.1,18,89,226/- on this claim.”

    (Emphasis Supplied)

    90. The petitioner‟s challenge on the ground of non-compliance of Clause
    No. 12.2 of the GCC stating the claims as “afterthought” is misplaced.

    Most of the extra items were finalised during the proceedings, and that
    only these two items were pending. For approval of grit plaster, the
    respondent submitted revised analysis with invoices dated 21.11.2016.
    For RMC, a detailed rate analysis for the substituted item was submitted
    and considered but the same was disputed. Clause No. 12.2 of the GCC
    prescribes that, for substituted/extra items exceeding the specified limits,
    the contractor “may within fifteen days” claim revision of rates supported

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    by proper analysis, whereafter the Engineer‑in‑Charge is to fix rates on
    the basis of market rates. Clause No. 12.2 of the GCC reads as under:

    “12.2 Deviation, Extra Items and Pricing
    In the case of extra item (s), the contractor may within
    fifteen days of receipt of order or occurrence of the item(s)
    claim rates, supported by proper analysis, for the work and
    the Engineer-in-Charge shall within one month of the
    receipt of the claims supported by analysis, after giving
    consideration to the analysis of the rates submitted by the
    contractor, determine the rates on the basis of the market
    rates and the contractor shall be paid in accordance with
    the rates so determined…”

    91. The Arbitrator has considered similar Clause of the Contract namely
    Clause No. 38 of the GCC and held that these kind of Clauses are
    directory as no consequences for non-compliance are prescribed.
    Additionally, the invoices, were duly submitted by the respondent and
    there were no dispute to their authenticity. Thus, such non-compliance of
    a procedural requirement cannot render a valid claim wrong.

    92. Apropos the second ground i.e. the issue with regards to the grit plaster
    component already being approved and paid, is misconceived and cannot
    be used to assail the Award.

    93. The Arbitrator‟s reasoning qua the issue of grit plaster is that the
    Contract rate for “washed stone grit plaster” covered plaster using
    ordinary stone chips, and everyone bid on that basis, but later the
    department asked the respondent to use much costlier marble chips
    instead, which changed the item into a different, higher specification job.
    Since this was a deviation ordered by the petitioner, the Contract required
    a fresh rate to be fixed, and the respondent did submit a revised rate
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    analysis on 21.11.2016 with invoices for marble chips, which the
    department received, while the quantity of work itself was never
    disputed, so the Arbitrator treated the marble chip work as an extra item
    and granted the claim accordingly.

    94. Therefore, the challenge of the petitioner does not shake the reasoning of
    the Arbitrator, because what the Award has approved is the existence and
    quantum of a substituted item (marble chips) with a documented rate
    analysis, and not a second payment for work already compensated at
    BOQ. Moreover, the petitioner failed to place on record any evidence
    that the payment for the said item has been made twice. Hence, this Court
    cannot reappreciate the cogent quantification and analysis which is
    undertaken by the Arbitrator.

    95. The petitioner‟s challenge with respect to the RMC is also unfounded,
    misconceived and a mere reiteration of the contentions as raised before
    the Arbitrator, the Arbitrator followed a clear, stepwise analysis for
    adjudication, he first looked at the BOQ concrete item, which only covers
    normal machine mixed concrete pumped to the site and says nothing
    about using transit mixers. He then compared this with DSR 5.37, which
    specifically covers ready mix concrete made in an automatic plant and
    brought to site in transit mixers. Based on evidence such as photos and
    the respondent‟s explanation, he held that the respondent had actually
    used an RMC plant and transit mixers, so the work matched DSR 5.37
    rather than the simpler BOQ item. On that basis, he applied the DSR 5.37
    rate as a substituted rate but kept the quantity the same, as it was not in
    dispute. Thus, the Arbitrator has relied on evidence placed on record to
    conclude that the scope of work executed by the respondent is that which
    is covered by DSR 5.37. The view of the Arbitrator is plausible and
    based on reasons.

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    96. In these circumstances, the Award on Claim No. 4 is reasoned and
    evidence based. It does not disclose any perversity, patent illegality or
    disregard of the contractual terms, and accordingly, no interference is
    warranted under Section 34 of the Act.

    Claim No. 5: Revised rates for individual items of work the quantities
    of which had exceeded beyond limit.

    97. The Claim No. 5 pertains to the payment at revised rates for certain items
    where the executed quantities exceeded the contractual deviation limits
    prescribed under Clause No. 12 of GCC, which is 30% of the trade, and
    beyond this limit the respondent is entitled to seek revision of rates for
    particular trade/items i.e. the prevailing market rates. Under this
    mechanism, the original BOQ rate ceases to apply and the respondent can
    seek revision of the rates (market rates) for that particular item/trade.

    98. In this backdrop, the petitioner has challenged the Award of the
    Arbitrator apropos this claim on the ground that revised rates apply only
    for deviation of quantities beyond the deviation limit and the same needs
    to be claimed strictly as per the Clause No. 12.4, which was not claimed
    by the respondent despite being fully aware of the scheme of clause 12.
    Further, the Award apropos this claim is also assailed on the ground that
    the Arbitrator has inconsistently first used the word “trade” to mean
    “building trade” and then stated the word to be vague, to proceed to
    award the claim on flawed quantification without scrutinizing each item
    or applying the Bhopal Cost Index. The petitioner has relied upon a
    similar arbitral proceeding qua Package-1 of AIIMS Rishikesh to buttress
    its submission that the term “trade” refers to the subhead for allowing the
    market rate under clause 12 of the agreement. The relevant Clause No.
    12.4 reads as under:

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    “12.4 GCC: The Contractor shall send to the Engineer-in-

    Charge once in every three months, an upto date account
    giving complete details of all claims for additional payments
    to which the contractor may consider himself entitled and of
    all additional work ordered by the Engineer in Charge
    which he has executed during the preceding quarter failing
    which the contractor shall be deemed to have waived his
    right. However, the Superintending Engineer may authorize
    consideration of such claims on merits. ”

    99. At this stage it is important to peruse the relevant portions of the Award
    and findings, which read as under:

    “5.3 Findings of the AT:

    5.3.1 In the contract the Clause-12 is on
    “Deviations/Variations Extent and Pricing “.Under this sub
    Clause 12.2 is on “Deviation, Extra items and Pricing “. In
    this the terms and conditions are stipulated in subhead
    clause “Deviation, Deviated Quantities, Pricing”. This
    clause stipulates that in case the contract items exceed the
    limits laid down in Schedule – F, the contractor can claim
    revision of rates supported by the proper analysis of rates
    for the work in excess of the above mentioned limits. 5.3.2
    The Arbitral Tribunal observers that the provisions in the
    contract agreement for deviation limit under Clause -12 of
    Schedule F which reads as below: Clause 12:
    12.2 & 12.3
    Deviation Limit beyond which clauses
    12.2 & 12.3 shall apply for building work. 30% of
    trade
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    5.3.3 The word trade has a meaning based on the context of
    usage. The Dictionary meaning of trade refers to
    commercial activity. In general practice it relates to the
    business. For instance, when a phrase like “trade practice”

    is used, it refers to the practice prevailing in a particular
    kind of industry or trade.

    5.3.4 Looking from the said angle, the reference to “Trade”
    can only be construed as a reference to the construction
    work as a whole that is involved in the subject contract.
    What it matters most is how the parties understood and
    meant by the word “Trade” while entering in to contract
    with respect to deviation limits specified in schedule-F for
    operation of Clause -12. There is no definition of the word
    ‘Trade’ in the contract agreement or how it is structured for
    deviation in quantities. The Claimant’s arguments are that
    the deviation limit is on individual item quantities while the
    Respondent during arguments stated that the limit is
    applicable for group of subhead items in BOQ. It is clear
    that the issue is of interpretation. When any word/phrase
    built in any clause gives scope for multiple interpretations
    there seems to be an ambiguity which needs to be
    interpreted.

    Award:

    After carefully considering the facts, contractual provisions,
    evidence on record and the legal principles, the Arbitral
    Tribunal is of the view that deviation limit needs to be
    applied on item quantities individually. Hence this Claim is
    awarded in favour of the Claimant.

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    The abstract quantification of claim presented is for Rs.
    4,23,76,331/-in pages 863 to 875 of Claimant’s submissions
    CV-6 . The item quantities are not disputed. As can be seen
    from quantification details presented, for most of the
    deviated items beyond the limits, the rates are claimed
    based on DSR schedule rates pertaining to 2012, the period
    of execution of work. For some items of deviated quantities,
    market rates claimed for deviated quantities. Since there is
    no evidence submitted for market rates (MR), the revised
    rates cannot be considered for such items. Deleting such
    MR items, the quantification works out to Rs.4,10,11,761 /-.
    Hence an amount ofRs.4,10,11,761/- is awarded on this
    Claim.”

    (Emphasis Supplied)

    100. The first ground to assail this claim of the Award i.e. non-compliance of
    the Clause No. 12.4 of the GCC, is misconceived as the Arbitrator has
    already held similar Clause No. 38 of the GCC to be directory, the Clause
    No. 12.4 being similar in nature is also directory. Hence, the same cannot
    be used as a ground to defeat an otherwise substantive and legitimate
    claim.

    101. In the second ground regarding the interpretation of the term “trade”, the
    respondent argued that the term should be interpreted to mean individual
    BOQ items, while the petitioner wanted it to be interpreted as broader
    BOQ sub-heads. The Arbitrator categorically observed that the term is
    not defined in the contract and is ambiguous and both interpretations are
    tenable. However, the Arbitrator proceeded to apply it to individual item
    quantities by relying on facts, contractual provisions, evidence on record
    and the legal principles. The Arbitrator deduced this interpretation by
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    relying on evidence and making a finding as to how the parties
    understood the term before and during the execution of the Contract.

    102. To my mind, this reasoning of the Arbitrator strongly rooted in
    appreciation of evidence by the Arbitrator himself. The view of the
    Arbitrator is a plausible one supported by evidence and the same cannot
    be reappreciated by this court under Section 34 of the Act.

    103. The findings of the Arbitrator qua the quantification of the Claim are also
    cogent and reasonable. The respondent‟s computation was of Rs.

    4,23,76,331/‑, supported by detailed tables, and importantly the item
    quantities themselves were not disputed by the petitioner. For most of the
    excess quantities beyond the 30% limit, the respondent had based its
    revised rates on the DSR schedule for 2012. For some items it had
    claimed market rates without submitting corroborating evidence. The
    Arbitrator expressly refused to accept these unsupported market rates,
    and removed those items from the computation and arrived at Rs.
    4,10,11,761/‑, which it awarded.

    104. In this view of the matter, the quantification of claim by the Arbitrator by
    applying DSR 2012, is not merely approval of the claim as filed by the
    petitioner but there is proper application of mind on part of the Arbitrator
    thereby, rejecting the unsubstantiated market rates. The Arbitrator has
    made categorical cogent findings and the petitioner by way of raising this
    challenge to the Award more particularly this claim is trying to persuade
    this court for reappreciation of its evidence, which is not permissible
    under Section 34 of the Act.

    Claim No. 10: Loss on locked up deposits Bank Guarantees due to
    Prolongation of Contract.

    105. Claim No. 10 pertains to the loss caused due to locked up performance
    bank guarantee due to the prolongation of the Contract. The respondent
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    claimed that since the delay in execution is not attributable to it, the loss
    sustained by it like loss of interest, cost incurred on extension, etc. was
    payable.

    106. The petitioner‟s objection is that the Clause No. 1, specifically Clause
    No. 1(ii) of the GCC provides that the performance bank guarantee
    needed to be kept valid up to the stipulated date of completion plus 60
    days and thereafter the same needed to be returned without any interest.
    Thus, the petitioner is not liable to pay any interest/charges. The Clause
    No. 1(ii) of the GCC reads as under:

    “The Performance Guarantee shall be initially valid up to
    the stipulated date of completion plus 60 days beyond that.
    In case the time for completion of work gets enlarged the
    contractor shall get the validity of Performance Guarantee
    extended to cover such enlarged time for completion of
    work. After recording of the completion certificate for the
    work by the client, the Performance guarantee shall be
    returned to the contractor, without any interest.”

    107. The operative portions of the Award with respect to Claim No. 10 reads
    as under:

    “10.3 Findings of the AT
    10.3.1 ….

    10.3.2 As per the above provision in the contract the
    Claimant has to keep the Performance Guarantee valid till
    the completion of work plus 60days beyond that.
    I0.3.3 Since the contract period got prolonged due to
    reasons not attributable to Claimant against stipulated
    period of 15months,the Claimant is to be compensated for

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    the additional expenditure incurred on account of extension
    of BG in the extended period of contract as claimed.
    Award:

    After deliberating in detail and considering all the
    submissions of the parties, I am of the view that the
    Claimant is entitled for reimbursement of additional
    expenditure incurred on account of commission charges for
    extension of Performance BG in the extended period of
    contract.”

    108. The Award, notes that the bank guarantee was in fact kept alive beyond
    the contractually contemplated period solely because of prolongation not
    attributable to the respondent. In treating those additional charges as a
    compensable component for the delay in execution, the Arbitrator has
    only made a logical/reasonable/lawful conclusion. The same is supported
    by the observations made in the above sections of this judgment that
    compensation is not barred unless clearly prohibited by the contractual
    term. Therefore, the reasoning of the Arbitrator is well founded and does
    not disclose any patent illegality or any other ground warranting
    interference under Section 34 of the Act.

    Claim No. 12: Escalation Amount on material payable due to
    prolongation of Contract.

    109. This claim pertains to price escalation due to the prolonged period of the
    Contract. The respondent claimed that it is entitled to such price
    escalation because there is substantial increase in burden due to the
    increased cost of construction material.

    110. The petitioner assails the Award of this claim on the ground that the
    claim is in violation of the terms of the Contract. Paragraph No. 3 of
    “preamble to the bill of quantities” stipulates that the quoted rates shall
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    not be subject to any variation whatsoever including the extended period,
    the relevant paragraph reads as under:

    “Rates quoted shall be firm and shall not be subject to any
    price variation due to increase in labour wages, cost of
    materials, etc., or any other price variations due to any
    reason whatsoever whether during the stipulated period of
    execution or during the extended period of completion if
    any.”

    111. The relevant portions of the Award with respect to Claim No. 12, read as
    under:

    “12.3 Findings of the AT :

    12.3.1 I have carefully considered the above arguments of
    both the parties, the documents and evidence produced
    before me.

    12.3.2 The date of commencement of the work was on
    27.05.2010. The time for completion was 15months and the
    schedule date of completion was 26.08.2011. In the Award
    against Claim no. 1, it has been held that the delay causes
    are not attributable to Claimant.

    12.3.3 This claim is for escalation amount on material due
    to prolongation of contract worked out in the prolonged
    period up to 42nd RA bill submitted (March 2015). The
    detail of claim has been given by the Claimant in CV -27 of
    the Statement of Claims.

    12.3.4 As can be seen from the records, as per terms of the
    contract Schedule F Clause 10CC is not applicable since
    the contract stipulated duration is 15 months. The Hon’ble
    Supreme Court in the case of Union of India Vs. Saraswat
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    Trading Agency and Ors. (2009) 16 SCC 504 has
    categorically held that escalation is a normal incidence in a
    prolonged contract and even in the absence of an escalation
    clause, such escalation is payable. The Claimant has
    worked out price escalation for materials following the
    formulae based methodology as per Clause 10(CC) of
    CPWD with base price and current indices of whole sale
    price indices published.

    12.3.5 It is a general industry practice that formula based
    price escalation provisions are commonly adopted in
    construction contracts to compensate for increase for rise in
    prices in materials. Generally for building contracts CPWD
    and such public departments provide formulae based price
    adjustment provisions popularly referred as escalation
    clauses. The formula based methodology do consist of
    component wise weightage for materials, labour based on
    the type of construction. For building works for the cement ,
    steel the escalation is considered separately and for rest of
    the construction materials under the head ‘other materials’
    a component of 30% to 40% provided for and around 25%
    considered as labour component.

    But the Claimant has claimed 75% component stating that
    for cement, steel he did not claim such escalation separately
    and included in this weightage component. Considering the
    facts on record 40% component for all materials portion put
    together is found genuine and justified. The quantification
    of formulae based escalation with 75% component
    weightage is not disputed. Thus the amount payable with
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    40% component weightage for materials can be calculated
    proportionately.

    Award:

    After deliberating in detail and considering all the
    submissions of the parties, I am of the view that the
    Claimant is entitled for price escalation on materials due to
    prolongation of contract. The Claim on escalation of
    materials is awarded with a component of 40% weightage
    in the formula exhibited. Thus the amount payable to
    Claimant towards price escalation on materials works out
    to Rs.6,21,69,860/-.”

    112. The Arbitrator recorded that the causes of delay were not attributable to
    the respondent, and that Claim No. 12 is confined to escalation in
    material costs during the prolonged period up to the 42nd RA bill i.e.
    March 2015. Thereafter, relying on the Hon‟ble Supreme Court‟s
    decision in Saraswat Trading Agency (Supra), the Arbitrator noted that
    escalation is a normal incident of a prolonged contract and that, even in
    the absence of a formal escalation Clause, a respondent can in principle
    be compensated where the contract period stands substantially extended
    for reasons not attributable to it.

    113. The petitioner‟s challenge to the quantification of claim by application of
    10CC of CPWD, is also misconceived. Despite, the scheduled timeline
    for execution of the Contract i.e. 15 months rendering Clause 10CC of
    CPWD inapplicable, the Arbitrator used this relevant formula based
    methodology as a fair quantification method for escalation for materials
    during the prolonged period, wherein delays were not attributable to the
    respondent. Additionally, the reduction of claimed 75% component to
    40% reflects reasoned approach which is based on industry practice.
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    Thus, no interference is warranted with this cogent reasoning of the
    Arbitrator.

    114. The reasoning of the Arbitrator is not in violation of the terms of the
    Contract and is supported by law. The Award of this claim is not
    suffering from any vice enumerated under Section 34 of the Act, thereby
    warranting interference.

    Claim No. 13 and 14: Interest on delay in payment of RA bills and
    Claim Nos. 2 to 12.

    115. The Claim No. 13 pertains to the interest on delayed payments of RA
    bills and the same was adjudicated by the Arbitrator with Claim No. 1 in
    the final Award. The relevant findings of the Arbitrator read as under:

    “AWARD:-

    After deliberating in detail and considering all the
    submissions of parties, documents and evidence filed, the
    Tribunal awards that the withheld amount of Rs.
    2,95,79,465/- on account of non achievement of milestones
    from the Claimants bill shall be refunded to the Claimants.
    The Claimants have claimed interest @ 15 % P A for the
    above claim amount separately under Claim no.13. From
    the records placed before me I find that the amount was
    withheld while releasing payments for 33,34 th RA bills on
    18-2-2014. The Tribunal Awards the simple interest at a
    rate 12% per annum on the above amount to be refunded
    from the date of recovery i.e.l8.2.20 14 to the date of the
    award.”

    116. The Claim No. 14 pertains to the payment of pendente lite interest on
    the claims raised by the claimant and adjudicated in the final Award

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    i.e., from Claim Nos. 2 to 12 at the rate of 10% per annum. In this
    regard the relevant portions of the Award read as under:

    “Claim No. 14:

    Loss of Interest on the Claimed amounts for Claims no.2
    to 12@ 10% per annum:

    14.1 Claimant’s Submissions: The Claimant submitted
    that it had been deprived of legitimate entitlements which
    were due to it at appropriate time. According to the law,
    any party which is deprived of the use of money has a
    right to be compensated for deprivation. The Claimant
    submitted that the Section 31 (7) of the Arbitration act
    empowers the Arbitrator to award past , pendent-lite and
    future interest also. The Claimant cited the case law of
    Indian Hume Pipe Co. Ltd Vs State of Rajasthan (2009),
    10 SCC 187 on the issue. The Claimant submitted that it
    claimed 10% interest on Claims no. 2 to I2 @ 10% PA
    from cause of action and future interest 18% P A.
    14.2 Respondent’s Submissions:

    The Respondent submitted that this claim is not
    admissible in view of the specific reference to the terms
    and conditions of the contract which have been referred
    by Respondent in refuting the Claims in SOD. Further the
    Respondent submitted that the interest claim is not
    justified and not agreed to.

    Award:

    I. A simple interest of 10% per annum, pendent-lite i.e.
    from date of invocation of arbitration, 13.I2.20I4 to the

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    date of the Award is awarded on the awarded amounts for
    Claims no. 2, 3,4,5, 10 and I2.”

    (Emphasis Supplied)

    117. The petitioner assails the award of pendente lite interest for Claim No. 2,
    3, 4, 5, 10, and 12 under Claim No. 14 and interest awarded on delay in
    payments of RA bills adjudicated under Claim No. 13, on the ground that
    the same is in violation of the judgment delivered by the Hon‟ble
    Supreme Court in the case of M/S Krafters Engineering & Leasing Pvt.
    Ltd.
    (Supra), and also in violation of the conditions of the Contract. The
    Contract does not contemplate award of interest and the same is liable to
    be set aside.

    118. It is pertinent to note that Section 31(7)(a) of the Act empowers an
    arbitral tribunal, unless otherwise agreed by the parties, to award interest
    at such rate as it deems reasonable, on the whole or any part of the
    amounts due, for the whole or any part of the period between the date on
    which the cause of action arose and the date of the award. Section
    31(7)(b)
    then provides that, unless the award otherwise directs, the sum
    directed to be paid by the award shall carry interest from the date of the
    Award to the date of payment. The relevant portions of Section 31(7) of
    the Act read as under:

    “(7) (a) Unless otherwise agreed by the parties, where and
    in so far as an arbitral award is for the payment of money,
    the arbitral tribunal may include in the sum for which the
    award is made interest, at such rate as it deems reasonable,
    on the whole or any part of the money, for the whole or any
    part of the period between the date on which the cause of
    action arose and the date on which the award is made.

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    (b) A sum directed to be paid by an arbitral award shall,
    unless the award otherwise directs, carry interest at the
    rate of two per cent. higher than the current rate of interest
    prevalent on the date of award, from the date of award to
    the date of payment.

    Explanation.–The expression “current rate of interest
    shall have the same meaning as assigned to it under clause

    (b) of section 2 of the Interest Act, 1978 (14 of 1978).”

    119. The decision of the Hon‟ble Supreme Court in UHL Power Company
    Ltd. v. State of Himachal Pradesh19
    reinforces the scope of arbitral
    discretion on interest and the limited scope for judicial interference.
    The
    arbitral tribunal there had granted pre-claim compound interest and future
    interest on the awarded amount, which the Division Bench of the High
    Court modified relying on State of Haryana v. S.L. Arora & Co20., the
    Hon‟ble Supreme Court relied on Hyder Consulting (UK) Ltd. v. State of
    Orissa21
    , to hold that the High Court‟s approach was erroneous and then
    restored the Arbitrator‟s award on interest expressly recognising that,
    unless prohibited by contract, an arbitral tribunal may grant compound
    interest. It is a settled position of law that a court cannot substitute its
    own view for that of the Arbitrator, so long as the Arbitrator‟s view is a
    plausible one.
    Also, the Hon‟ble Supreme Court in the case of Ferro
    Concrete Construction (India) (P) Ltd. v. State of Rajasthan22
    , traced
    down the changes in the power of the Arbitrator to award interest from
    the 1940 act and went on to summarise the current position of this power
    in the following words:

    19

    (2022) 4 SCC 116.

    20

    (2010) 3 SCC 690.

    21

    (2015) 2 SCC 189.

    22

    2025 SCC OnLine SC 708.

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    “13. From the above extracted paragraphs, the decision of
    the 3-judge bench in the First Ambica case (supra) can be
    stated as follows. The Arbitrator’s power to grant interest
    would depend on the contractual clause in each case, and
    whether it expressly takes away the Arbitrator’s power to
    grant pendente lite interest. This would have to be
    determined based on the phraseology of the agreement,
    clauses conferring powers relating to arbitration, the nature
    of claim and dispute referred to the Arbitrator, and on what
    items the power to award interest is contractually barred
    and for which period. Further, a bar on award of interest for
    delayed payment would not be readily inferred as an express
    bar to the award of pendente lite interest by the Arbitrator.

    14. We find that the position of law laid down in paragraph
    24 of Reliance Cellulose (supra) is in line with the position
    of law laid down in the First Ambica case. Both decisions
    emphasise the need for an express contractual bar on the
    payment of pendente lite interest to create a bar on the
    Arbitrator from awarding interest. They also emphasise that
    a bar on the Arbitrator’s power would depend on the
    phraseology of the contractual clause in that case….”

    120. It is a settled position of law that the Arbitrator being a creation of an
    agreement cannot exceed the limits of the agreement. Thus, if there is
    any provision contained in the contract which prohibits the award of
    interest then the Arbitrator cannot exceed its jurisdiction and go beyond
    the terms of the contract to award interest.

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    121. The petitioner however in the present case has challenged the Award of
    this claim without specifying any contractual Clause which specifically
    prohibits the award of interest by the Arbitrator.

    122. Therefore, the award of interest by the Arbitrator under this claim is well
    founded and in exercise of the statutory powers conferred upon the
    Arbitrator by the Act itself.

    Counter Claim Nos. 1 to 4

    123. The petitioner‟s challenge to the adjudication of its counter claims by the
    Arbitrator is bereft of reasoning and unsubstantiated by cogent evidence.
    The petitioner has not made any submissions before this Court so as to
    warrant interference on the limited grounds enumerated under Section 34
    of the Act and has merely made a fleeting contention that the counter
    claims were erroneously rejected by the Arbitrator. At this stage, it is
    pertinent to note that the counter claims raised by the petitioner are of the
    following description:

    Counter Claim Establishment cost for prolonged execution of works:

    No. 1 Rs. 19.32 Cr.

    Counter Claim Cost due to Alternate accommodation for Nursing
    No. 2 students due to non-completion of Nursing Hostel: Rs.

    0.32 Cr.

    Counter Claim Establishment cost for HVAC commissioning due to
    No. 3 delay in Package-I works: Rs. 1.40 Cr.
    Counter Claim Escalation being paid to other agencies due to delay in
    No. 4 completion of Buildings Rs. 2.47 Cr.

    124. Since, the delays leading to the prolongation of Contract were clearly
    held attributable to the petitioner, these co-related counter claims flowing
    from the same cause were rejected by the Arbitrator. This Court finds no
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    reason to interfere with the findings of the Arbitrator regarding
    attribution of delays in execution of works under the Contract and
    consequently, the findings of the Arbitrator qua the aforesaid
    counterclaims also deserves to be upheld. Moreover, the Arbitrator in its
    Award has recorded the submissions of both the parties with respect to
    counter claims and then made relevant findings. Additionally the
    Arbitrator also held that none of the counter claims were supported by
    any documentary evidence. Thus, no interference by this court is
    warranted.

    CONCLUSION

    125. For all the aforesaid reasons, and having found no ground within the
    confines of Section 34 of the Act to set aside the reasoned findings of the
    Learned Sole Arbitrator, I hold that the impugned Award does not suffer
    from perversity, patent illegality or any other recognised vice warranting
    interference.

    126. The petition is dismissed in the aforesaid terms, along with pending
    applications, if any.

    JASMEET SINGH, J
    APRIL 09th, 2026/SS

    Digitally Signed
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