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TMI Blog2021 (12) TMI 614X X X X Extracts X X X X X X X X Extracts X X X X ..... s per the contract entered into between the parties. The contract was for Rs. 5,26,59,688/. That as per the design calculation data, the specifications as prepared by the appellant department were meant for 3364 traffic intensity PCU (Passenger Car Unit)/day. The contract was up to 31.05.2010. That on 05.03.2005 due to the closing of the Palwal Aligarh Road on account of the construction of the railway bridge, the entire traffic was diverted from Palwal Aligarh Road to the present road. That due to this diversion of traffic from Palwal Aligarh Road, heavy traffic of 24418 PCUS per day was plying on the road as against the design of 3364 PCUS per day, which damaged the road. That according to the contractor - respondent No.1 herein, he was required to do heavy repair by incurring additional expenditure. Disputes arose between the parties. A legal notice was served upon the appellant making the claims. Disputes were not resolved and therefore respondent No.1 - contractor invoked the arbitration clause as per clauses 24 & 25 and approached the High Court for appointment of an arbitrator in exercise of power conferred under Section 11 (6) of the Arbitration and Conciliation Act, 1996. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve awarded the sum/amount in excess of the amount claimed. 5.3.1 It is submitted that the differential amount of Rs. 48,45,137/is in excess of claim and to that extent the arbitral award is invalid and liable to be set aside. Reliance is placed on the decision of this Court in the case of ONGC Ltd. v. OffShore Enterprises Inc., (2011) 14 SCC 147 (para 16). 5.3.2 It is submitted that as held by this Court in the cases of Associate Builders v. Delhi Development Authority, (2015) 3 SCC 49 (para 36) and J.C. Budhraja v. Chairman, Orissa Mining Corpn. Ltd. & Anr., (2008) 2 SCC 444 (para 3132), making an award in excess of claim is clear cut an act exceeding the jurisdiction and amounts to a misconduct of the Arbitrator. 5.4 Now, so far as ground No.2 namely, that the Arbitrator exceeded the scope of reference, it is contended that the Arbitrator cannot exceed the scope of reference. 5.4.1 It is submitted that the contractor invoked the arbitration clause on 06.03.2006. The High Court appointed the sole Arbitrator on 23.04.2007 and the Arbitrator entered upon reference on 19.05.2007. It is urged that by allowing the claims for a period beyond 19.05.2007, the Arbitrator exceeded the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e time period of additional traffic. It is contended that the aforesaid is wholly impermissible. 6. Making the above submissions, it is prayed to allow the present appeals. 7. Shri Ranjit Kumar, learned Senior Advocate appearing on behalf of respondent No.1 - contractor, has vehemently contended that the award passed by the Arbitrator cannot be said to be (i) in excess of claim; (ii) exceeding the scope of reference and (iii) rewriting the contract with respect to the amount payable which was specified in the contract, as submitted on behalf of the appellant. It is submitted that in the statement of claim the contractor specifically stated that the amount has been worked out up to the month of May, 2007 and the details of expenditure beyond May, 2007 will be submitted during the course of hearing. It is therefore submitted that it cannot be said that claim Nos.1 and 8 were restricted to Rs. 1,03,50,263/only. It is urged that on appreciation of the evidence on record the Arbitrator has awarded Rs. 1,51,95,400/for claim Nos.1 and 8, which in any case cannot be said to be beyond the amount claimed in the statement of claim. 7.1 It is next contended that it also cannot be said that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of traffic from Palwal Aligarh Road to the present road, the contractor was required to incur additional expenditure on the maintenance due to increase in the traffic and plying the additional commercial vehicles. Therefore the contractor claimed the amount towards additional expenditure for maintenance which was due to increase in the traffic and plying more commercial vehicles. On appreciation of evidence the Arbitrator has determined the loss at Rs. 45,000/per km per month (claim Nos.1 and 8). 9.1 The case on behalf of the appellant that as in the statement of claim, the claimant claimed an amount of Rs. 1,03,50,263/under the claim Nos. 1 and 8 and the Arbitrator has awarded Rs. 1,51,95,400/, the same is in far excess of amount claimed and therefore the award is in excess of amount claimed has no substance. When the statement of claim submitted by the contractor is seen, it is specifically stated by the claimant that the amount of Rs. 1,03,50,263/has been worked out up to May, 2007 and the 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 Rs. 1,03,50,263/. Ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or counsel appearing on behalf of the appellant are applicable to the facts of the case on hand as the same are not of any assistance to the appellant. 9.5 However, at the same time Shri Divan, learned Senior Advocate, appearing on behalf of the appellant is justified in submitting that the Arbitrator ought not to have awarded an amount of Rs. 45,000/per km per month beyond the time period of additional traffic. The Arbitrator has awarded the loss/amount at Rs. 45,000/per km per month up to 31.05.2010 i.e. till the end of the contract which is wholly impermissible diversion of the additional traffic ceased to exist w.e.f. January, 2008. Therefore, the Arbitrator ought not to have awarded any amount beyond the above time period beyond January, 2008. To that extent the award passed by the Arbitrator can be said to be perverse and to that extent the present appeals are required to be allowed. 10. In view of the above and for the reasons stated above, the present appeals are allowed in part. The award passed by the Arbitrator awarding the amount/compensation at Rs. 45,000/per km per month up to January, 2008 under claim Nos.1 and 8 is hereby confirmed. The award passed by the Arbitra ..... X X X X Extracts X X X X X X X X Extracts X X X X
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