[2025:RJ-JP:48154-DB] HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR D.B. Civil Miscellaneous Appeal No. 2549/2025 Union Of India Through Executive Engineer, Acd, Cpwd, Ajmer. ----Appellant Versus M/s Ess Kay Construction, Government Contractor, D/A/90, Janakpuri, New Delhi-110058 ----Respondent For Appellant(s) : Mr. Rahul Kamwar HON'BLE THE ACTING CHIEF JUSTICE MR. SANJEEV PRAKASH SHARMA HON'BLE MR. JUSTICE MANEESH SHARMA Judgment 27/11/2025 (ORAL) 1. The present appeal has been filed under Section 37 of the Arbitration and Conciliation Act, 1996 (for short ‘the Act of 1996’) assailing the order passed by the Commercial Court dated 11.03.2025, whereby it rejected the objections raised by the appellant under Section 34 of the Act of 1996 against the award passed by the Arbitrator dated 20.12.2022. 2. Brief facts are that on 09.07.2018, one NIT was issued by the appellant-department for the work of providing electrical installations and the unit dormitory at JNV Pachpahar, District Jhalawar against the balance work. On 20.08.2018, an acceptance letter was issued by the appellant to the claimant to submit PG within ten days. An NOC from mining department was required and the estimated cost of the work was Rs.2,25,46,166/- while the tendered amount was Rs.2,15,09,402/-. Work was to be [2025:RJ-JP:48154-DB] (2 of 5) [CMA-2549/2025] completed within one year and the date of start of work was 04.09.2018. Thus, the same was required to be completed by 03.09.2019. The contract was rescinded by the competent authority on 20.06.2019. Thereafter, the contractor raised an issue invoking Clause 25 of the General Clauses of the Agreement which provides for adjudication of the dispute through Arbitrator. The competent authority vide letter dated 14.09.2021, appointed one Mr. Rajendra Kalla as Sole Arbitrator, whereafter, the Sole Arbitrator examined the claim and after giving an opportunity to the appellant to lead the requisite evidence, passed an order dated 20.12.2022 granting an award of sum of Rs.85,62,569/- plus interest. Aggrieved by the said award, the appellant preferred objections under Section 34 of the Act of 1996 and as noticed above, the same were rejected. Hence, the appellant preferred the instant appeal. 3. It is the submission of the learned counsel for the appellant that the learned Commercial Court has failed to consider the law as settled by the Hon’ble Supreme Court from time to time, especially, in the case of Kalanithi Maran Vs. Ajay Singh & Anr., 2024 SCC OnLine SC 1876 as well as in the case of Unibros Vs. All India Radio, 2023 SCC OnLine SC 1366 . With respect to examining the aspects in relation to non-arbitral issues, learned counsel has relied on Clause 25 to submit that if there was any grievance relating to any instructions or disregard of demand by the Superintending Engineer, the contractor was required to file an appeal to the Chief Engineer, who afforded an opportunity and passed an order, as per Clause 25(i), if the contractor is dissatisfied with the decision of the Chief Engineer, the contractor [2025:RJ-JP:48154-DB] (3 of 5) [CMA-2549/2025] was required to give notice within 30 days from the receipt of the decision of the Chief Engineer for appointment of the Arbitrator. However, with regard to the issue as examined by the learned Arbitrator, no such process was adopted by the respondent and, therefore, the Arbitrator, who has been appointed by the Government, was not required to go into the said aspects. He further submits that Arbitrator has passed the award based upon the surmises and conjectures and the contract was rescinded merely on account of not following the time schedule. The opportunity was duly given and the Arbitrator ought to have considered the provisions of the general clauses relating to the aspects under Clause 3, wherein if there is a course adopted by the Engineer-in-charge as noticed, the contractor would have no claim for compensation for any loss. He further submits that learned Arbitrator as well as the Commercial Court have failed to consider that there was no occasion of granting damages for compensation. 4. We have considered the submissions. 5. We have noticed that the appellant had relied on the judgments passed by the Hon’ble Supreme Court in the case of Mitra Guha Builders (India) Company Vs. Oil and Natural Gas Corporation Limited, (2020) 3 SCC 222 to submit that the amount of compensation under Clause 2, cannot be referred to arbitration in terms of Clause 25. However, the learned Arbitrator has examined Clause 2, which stipulates the grant of justified extension of time in terms of Clause 5.4 and held that the decision of the Superintending Engineer, could not be said to be final in this clause. While in Mitra Guha Builders (India) Company [2025:RJ-JP:48154-DB] (4 of 5) [CMA-2549/2025] (supra), the decision of the Superintending Engineer was final and, therefore, it proceeded to hold that the judgment will have no application to the case and the claim was held to be arbitrary. The Commercial Court has also accepted the contentions, as decided by the learned Arbitrator. 6. We too find that each case has to be examined on its own merits and facts. No two cases, especially relating to arbitration, can be said to have similar facts and the circumstances of each case have to be examined. In the present case, taking into consideration that the Superintending Engineer, cannot be said to be the final decision maker, we would express that Mitra Guha Builders (India) Company (supra), where the facts were different, could not have been put in operation. 7. Clause 2 of the agreement specifically binds the appellant to pay compensation if the contractor is not given their fees to perform duties. 8. From the facts of the case, it is admitted that the work could not be completed as the site was not meant for it and the contract agreement has been wrongfully determined by the appellant. 9. In view thereto, it cannot be said that the award which has been passed is against the public policy. 10. The judgment cited at Bar in Kalanithi Maran (supra), would have no application to the facts of the present case. It is not that the Clause 2 is not part of the agreement and, therefore, the contentions, as examined in Kalanithi Maran (supra), were to be applied to the facts, as are available in the present case. Since the compensation is allowed to be paid, there is no occasion for disallowing the part of the award on that count. Similarly, we [2025:RJ-JP:48154-DB] (5 of 5) [CMA-2549/2025] notice that the claims relating to loss of profit, providing an opportunity, as held in the case of Unibros (supra), were required to be established. The respondent has successfully established that he has suffered loss on that account and, therefore, the award does not warrant any interference. The other judgments cited at the Bar namely, Sri Laxmi Hotel Pvrt. Ltd. Vs. Sriram City-(Civil Appeal No.13785/2025), OPG Power Generation Private Limited Vs. Enexio Power Cooling Solutions India Private Limited and Ors., (2025) 2 SCC 417 and State of Rajasthan Vs. Sanwariya Infrastructure Private Limited, 2024 SCC OnLine SC 2600, have also been considered by the learned Arbitrator. 11. In view thereto, no interference is called for and the appeal is accordingly, dismissed. Pending application(s), if any, shall also stand disposed of. (MANEESH SHARMA),J (SANJEEV PRAKASH SHARMA),ACTING CJ N.GANDHI/RAJAT/7