TMI Blog2021 (12) TMI 614X X X X Extracts X X X X X X X X Extracts X X X X ..... he details of expenditure beyond May, 2007 will be submitted during the course of hearing. It is specifically stated that expenditure incurred up to May, 2007 works out to ₹ 1,03,50,263/. Therefore, the amount awarded by the Arbitrator cannot be said to be in excess of the claim - the Arbitrator was justified in awarding the amount beyond the aforesaid periods and till the additional traffic was diverted due to the closure of Palwal Aligarh Road - the Arbitrator was justified in awarding the amount beyond the aforesaid periods and till the additional traffic was diverted due to the closure of Palwal Aligarh Road. The contractor was entitled to the loss on account of the additional expenditure incurred for maintenance of the road due to increase in the traffic because of the closure of the Palwal Aligarh Road and diversion of the traffic to the present road. Therefore, by no stretch of imagination it can be said that there was rewriting the terms of the contract as submitted on behalf of the appellant. The award passed by the Arbitrator awarding the amount/compensation at ₹ 45,000/per km per month up to January, 2008 under claim Nos.1 and 8 is hereby confirmed - Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pment Authority as the sole Arbitrator to adjudicate upon all the disputes between the parties. That the contractor submitted various claims including claim Nos. 1 and 8. For the purpose of deciding the present appeals, claim Nos.1 and 8 are relevant. The sole Arbitrator awarded a total sum of ₹ 1,51,95,400/with respect to claim Nos.1 and 8. 4. Feeling aggrieved and dissatisfied with the award declared by the learned Arbitrator, the appellant preferred an application before the Court under Section 34 of the Arbitration and Conciliation Act, 1996, which came to be dismissed against which the appellant State preferred an appeal under Section 37 of the Arbitration and Conciliation Act, 1996 before the High Court. By the impugned judgment and order the High Court has dismissed the said appeal. Hence, the State of Haryana has preferred the present appeals. 5. Shri Shyam Divan, learned Senior Advocate has appeared on behalf of the State appellant and Shri Ranjit Kumar, learned Senior Advocate has appeared on behalf of the respondent No.1 contractor. 5.1 Shri Shyam Divan, learned Senior Advocate appearing on behalf of the appellant submitted that the appellant has alr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 57,96,000/( approx.) has been awarded for claims arising between 19.05.2007 to 31.07.2008 (calculated as amount for maintenance of road @ ₹ 45,000/per kilometre (km) per month). It is submitted that it was not permissible for the Arbitrator to exceed the scope of the reference beyond the date upon entering reference and as a consequence the award is liable to be set aside. 5.4.3 Learned senior counsel appearing on behalf of the appellant has relied upon the decisions of this Court in the cases of Indian Aluminium Cables Ltd. v. Haryana State Electricity Board, 1996 (5) SCALE 708 (para 2) and MSK Projects India (JV) Ltd. v. State of Rajasthan Anr. (2011) 10 SCC 573 (para 15), in support of his above submissions that as the Arbitrator exceeded the scope of reference and hence the award is liable to be set aside. 5.5 In so far as the ground No.3 is concerned namely, the Arbitrator has rewritten the contract with respect to the amount payable which was specified in the contract, it is submitted that the Arbitrator has rewritten the terms of the contract by directing the appellant to pay the compensation to respondent No.1 contractor at the rate of ₹ 45,000/per km ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Arbitrator was beyond the scope of reference. It is submitted that as such cause of action to claim the additional amount arose due to overexpenditure owing to maintenance of road due to diversion of traffic from Palwal Aligarh Road to the present road which continued even beyond 06.03.2006 and/or 23.04.2007 and 19.05.2007. It is submitted that the amount awarded by the Arbitrator under claim Nos.1 and 8 cannot be said to be exceeding the scope of reference. 7.2 It is further submitted that even the award passed by the Arbitrator to make payment at ₹ 45,000/per km per month cannot be said to be rewriting of the contract with respect to the amount payable which was specified in the contract. It is urged that at the time when the contract was written/entered into between the parties the contract rate of ₹ 1,000/per km per month was agreed against the design of 3364 PCUS per day. However, after the contract was entered into and the contractor acted as per the contract there was diversion of traffic from Palwal Aligarh Road to the present road and the heavy traffic of 24418 PCUS per day was plying on the road as against the design of 3364 PCUS per day and therefore the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 07 works out to ₹ 1,03,50,263/. Therefore, the amount awarded by the Arbitrator cannot be said to be in excess of the claim. 9.2 Now so far as the submission on behalf of the appellant that the Arbitrator exceeded the scope of reference while awarding an amount beyond 19.05.2007 the date on which the High Court appointed the sole Arbitrator is concerned, the same has no substance. The case on behalf of the appellant that the Arbitrator ought to have restricted the claim either up to 06.03.2006 the date on which the contractor invoked the arbitration clause or 23.04.2007, the date on which the High Court appointed the sole Arbitrator or at least up to 19.05.2007 the date on which the Arbitrator entered into reference, is concerned, it is required to be noted that the claim made by the Arbitrator was till the traffic was diverted which was up to January, 2008. Therefore, the Arbitrator was justified in awarding the amount beyond the aforesaid periods and till the additional traffic was diverted due to the closure of Palwal Aligarh Road. 9.3 Now the submission on behalf of the appellant is that by awarding ₹ 45,000/per km per month the Arbitrator has rewritten ..... X X X X Extracts X X X X X X X X Extracts X X X X
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