1 ARBP 60.08 kambli IN THE HIGH COURT OF JUDICATURE AT BOMBAY O.O.C.J. ARBITRATION PETITION NO.60 OF 2008 ... Maharashtra Metropolitan Ragion Development Authority ...Petitioner v/s. Unity Infrastructure Projects Ltd. ...Respondent ... Mr.Zal Andhyarujina i/b Little & Co. for the Petitioner. Ms.Rajani Iyer, Sr.Advocate with Mr.Vishal Kanade & Mr.Sanjay Kadam i/b Kadam & Co. for the Respondent. ... CORAM: D.K.DESHMUKH, J. DATED: 16th December, 2011 P.C.: 1. By this petition the Petitioner challenges the award made by the Arbitral Tribunal directing payment of certain amounts to the Respondent. Admittedly, the Respondent had entered into a contract with the Petitioner for carrying out certain works. 2. The award of the Arbitral Tribunal is based on interpretation of Clause 52.2 of the 2 ARBP 60.08 agreement between the parties, which was subsequently slightly modified. As per Clause 51 of the General Condition of Contract the Engineer is authorised to make any variation in the works that he may consider necessary and appropriate. The variations are as per Clause 50. The contractor cannot make any variation without instructions from the Engineer. But no instructions are necessary for increase and decrease in the quantity of any work, where such increase or decrease is the result of the quantities exceeding or being less than those stated in the BOQ (Bill of Quantities of the Contract). In the present case the Engineer by letter dated 24-6-2005 directed the Respondent- claimant to carry out the work as per the MCGM permission. Prior to this, the MCGM permission letter with the quantity increase had been brought to the notice of the Employers by the Claimant. The Employers did not issue any orders to stop the work due to quantity increase. The valuation of variation is to be done as per Clause 52 in case 3 ARBP 60.08 executed quantities vary by more than 25% of the quantities. Clause 52.1 has been subsequently modified by the parties. The award really turns on interpretation of this added variation in Clause 52.1. 3. The learned Counsel appearing for the Petitioner submitted that the interpretation put by the Arbitral Tribunal on Clause 52 of the General Conditions of Contract is erroneous. 4. I have perused the record. Perusal of the Award shows that the question of interpretation to be placed on the modified Clause 52.1 of the General Conditions of Contract is considered by the Arbitral Tribunal in paragraphs 13 and 14 of the Award. Paragraphs 13 & 14 read as under: “13. The Respondents argued at some length that the 2 percent mentioned in the above paragraph refers to the executed quanitity and not the quantity in the BOQ. They advanced legal 4 ARBP 60.08 arguments also. All of these are available on record. They have also pointed out that only a few items in the BOQ are individually more than 2% of the contract price, while a large majority account for less than 2%. The Claimants have traversed these arguments. The Claimants during arguments drew attention to the reply to query No.14 raised in the prebid meeting. 14. The AT notes that added third para extracted above notes that the words “any item contained in the contract” and “such item” are used in the first part of the said para while the words “the actual quantity of work executed under the contract” in the second part of the same para. The AT also notes that during the prebid meeting the issue of 2% had been specifically brought to the notice of the Employers who specifically maintained the clause as it was. The AT also accepts the plea of the Claimants that in case of possible two interpretation of a clause, interpretation of the party other than the one who drafted it wins. (Contra preferentum). For all these reasons the AT rejects the arguments of the Respondents and decides that the 2% limit mentioned in the additional third para extracted above refers to the quantities as mentioned in the BOQ and not the executed quantities.” 5. Perusal of the above paragraphs from the award shows that the learned Arbitrators have referred to query No.14 in the prebid meeting. 5 ARBP 60.08 That query and response to that query reads as under: Query Response 14.It is felt that quantities are No change is likely to vary plus or minus 25% envisaged in as mentioned in the BOQ but the existing individual item cost may not be provision in more than 2% of the contract the Bidding value. Therefore, 2% rider Documents of the contract price may please be deleted. 6. The learned Arbitrators, referring to this, have stated that the interpretation that is put on this clause was understood by the parties even in the prebid meeting, and therefore, it is clear that the Petitioner entered into the contract on this understanding of Clause 52.1 of the General Conditions of Contract. The Arbitral Tribunal has also dealt with, by referring to the query No.14 in prebid, to the argument of prejudice that is likely to result from the interpretation put by the Arbitrators on Clause 52.2 of the General Conditions of Contract. The Arbitral Tribunal in the present case consisted of 6 ARBP 60.08 persons who work in the field and are familiar with the work carried out. In my opinion, therefore, as there is no complaint that any valid aspect of the matter has been excluded from consideration by the Arbitrators and as the Arbitral Tribunal consisted of persons who have experience in the field and are familiar with the subject, it will not be appropriate for this court to interfere in its jurisdiction under Section 34 of the Arbitration Act. Petition, therefore, fails and is dismissed. No order as to costs. (D.K.Deshmukh, J.)