JASMEET SINGH, J.

O.M.P. (COMM) 411/2022 & I.A. 16043/2022.

1. The present petition is filed under Section 34 of the Arbitration and Conciliation Act, 1996 (“1996 Act”) read with Section 10(2) of the Commercial Courts Act, 2015 challenging the Arbitral Award dated 27.04.2022, read with and modified by the order dated 26.07.2022 under Section 33 of the Act.

2. A total of 13 identical claims concerning 13 different trains (Rajdhani, Shatabdi and Duranto trains) of 3 contractors (“caterers”) were submitted before the same Sole Arbitrator and have been allowed. Out of the 13, 9 claim petitions pertaining to different contracts for Rajdhani, Duranto and Shatabdi Trains have been filed by M/s Brandavan Food Products (“BFP” or “respondent”), while 2 claim petitions each have been filed by R.K. Associates and Hoteliers Pvt. Ltd and Satyam Caterers Pvt. Ltd. for two catering contracts, each for Shatabdi Trains.

3. Though there are separate awards in all cases, the findings of the Ld. Arbitrator are recorded in the lead matter being “M/s Brandavan Food Products v. Indian Railway Catering and Tourism Corporation Limited” pertaining to Train No. 12423-24 (Dibrugarh Rajdhani), and impugned in O.M.P. (COMM) 411/2022 (“lead matter”). The remaining 12 awards are limited to computations and reasoning is adopted from the lead matter.

4. For the sake of convenience and brevity, the facts of O.M.P. (COMM) 411/2022 are quoted and are being adjudicated upon. Similar reasoning will be adopted in all other connected matters.

Brief Facts

5. The brief facts of the case are as follows:

6. Northern Railway published a tender on 27.05.2013 for “provision of catering services on Train No. 12423-24 (Dibrugarh Rajdhani)” for a period of “5+5” years. The tender document also prescribed the food items/beverages and other eatables which were required to be supplied to each passenger boarding the Train. The rates/tariffs for each service were also prescribed.

7. BFP participated in the tender process and submitted its bid for an amount of Rs. 35.63 crores for the Train on 27.06.2013. It was awarded the contract vide Letter of Award (“LOA”) dated 17.01.2014. BFP commenced the catering services in the said Train on 21.01.2014. A Master License Agreement (“MLA”) was also executed between BFP and the Northern Railway on 21.04.2014.

8. Prior to opening of the financial bid and award of license to BFP, the Ministry of Railways through the Railway Board issued a Commercial Circular No. 63 of 2013 dated 09.10.2013 (“CC 63/2013”) whereby the Railway Board, Ministry of Railways revised the menu and the tariff of the catering services. The circular also made provision for supply of Combo Meals which is a smaller meal containing lesser items and lesser quantities than those supplied in the Regular Meals, namely, in lunch and dinner. The Combo Meal was also priced at a lesser rate (Rs. 66.50/- for 1AC/2AC/3AC) than the Regular Meal (Rs. 129.50/- in 1AC and Rs. 112.00/- in 2AC/3AC). The second meal to be supplied to all the passengers in each of these Trains was to be a Combo Meal instead of a Regular Meal.

9. Since there was dissatisfaction amongst the passengers pertaining to the Combo Meal, the Railway Board issued another Commercial Circular No. 67/2013 dated 23.10.2023 (“CC 67/2013”) by which the Combo Meal services were discontinued, and in its place, Regular Meal services were restored. However, it was decided that for this service, the caterers would be reimbursed only at the price of the Combo Meal contained in CC 63/2013, and not at the price meant for Regular Meals. This was the first issue of controversy between the parties.

10. The Railway Board issued a further Commercial Circular No. 32/2014 dated 06.08.2014 (“CC 32/2014”) vide which all Licensees, including BFP, were required to supply Welcome Drinks to all passengers boarding the Train. However, no payments were made for supply of the Welcome Drinks. This was the second issue of controversy between the parties.

11. The dispute in the matters pertaining to Rajdhani and Duronto Trains is regarding recoveries on account of Combo Meals as well as Welcome Drinks, since the train journeys are of longer duration. However, in the matters pertaining to Shatabdi Trains, where the duration of the journeys in less and thus no regular second meal of the day is supplied, the dispute is only regarding recovery of amounts towards supply of Welcome Drinks.

12. While the initial contract was between BFP and the Northern Railways, the Ministry of Railways announced a new catering policy of 2017 under which it was provided that all mobile catering contracts awarded by the Zonal Railways shall be reassigned to the petitioner-IRCTC on the same terms and conditions. In order to give effect to this, a Tri- partite Agreement between Northern Railways, BFP and IRCTC was executed. Resultantly, the petitioner came into the picture since the original contract was assigned in favour of the petitioner. The earlier arrangement was continued and in place of Northern Railways, IRCTC stood substituted and the monthly bills for catering services were raised upon IRCTC and payments were received from IRCTC only.

13. BFP/the caterers made representations to the Indian Railways protesting against the non-payment on account of the aforementioned two services. Since the Indian Railways failed to make payments, BFP/the caterers were constrained to file 13 writ petitions before the Delhi High Court challenging the action of IRCTC. In the writ petitions, BFP/the caterers sought quashing of the two circulars in question, namely, CC 67/2013 and CC 32/2014. BFP/the caterers also sought recoveries of the monies. IRCTC was also party to the writ petitions.

14. The said writ petitions were dismissed by the High Court vide judgment dated 23.09.2019, granting liberty to BFP to initiate arbitration proceedings with regard to the claims. It was also noted that in case arbitration was initiated, the Arbitrator shall be free to decide the matters uninfluenced by any observation by the High Court.

15. After receipt of the judgment on 16.01.2020, BFP invoked the arbitration clause vide legal notice dated 24.01.2020. On 22.07.2020, the Arbitral Tribunal came to be constituted. The Ld. Arbitrator passed the Award on 27.04.2022. IRCTC filed an application under Section 33 of the Act seeking correction of certain typographical errors in the Award. Corrected Award was passed by the Arbitral Tribunal on 26.07.2022.

Impugned Award

16. The Ld. Arbitrator passed the Impugned Award in favour of BFP and against IRCTC.

17. As regards the first issue, the Ld. Arbitrator awarded Rs. 20,97,85,202/- to BFP, being the principal amount towards recovery of differential costs for the supply of Regular Meal. The claim prior to January, 2015 was held to be time barred and thus rejected to that extent.

18. As regards the second issue, the Ld. Arbitrator awarded Rs. 5,04,99,122/- to BFP, being the principal amount towards supply of Welcome Drinks from January, 2015 upto 31.03.2020. The claim prior to the said period was rejected as time barred.

19. The Ld. Arbitrator also awarded interest on the principal amounts payable only from January, 2018 onwards @ 6% simple interest per annum. He further awarded future simple interest @ 9% per annum on the total sum comprising of principal as well as interest, in case the amounts were not paid within a period of four months from the date of the Award.

20. Hence, the present petition.

Submissions (Petitioner).

21. The gist of the petitioner’s objections is as under:

22. At the outset, it is stated that the catering contract awarded by IRCTC to caterers is for the benefit of and is a service that is to be provided to the travelling passengers. Even though the charges as per the pre-fixed tariff is paid by IRCTC, the same is charged on the ticket of the passenger on actual basis. IRCTC passes on the actual tariff collected from the passenger to the caterers without retaining any amount for itself pursuant to an invoice raised by the caterer.

23. It is submitted that the Impugned Award vitiates the public policy principle that a party cannot approbate and reprobate. The respondent cannot take benefit of CC 63/2013 but avoid the rigors of CC 67/2013 which was an amendment to the prior circular (both issued by the Ministry of Railways prior to the award of contract) on the ground of the tariff being onerous; particularly when there is overall increase of 19% in the tariff for the two Regular Meals vis-a-vis the pre-bid tariff i.e., Rs. 150 for two Regular Meals versus Rs. 178.5 for two Regular Meals post CC 67/2013. Reliance is placed upon New Bihar Biri Leaves Co. v. State of Bihar, (1981) 1 SCC 537 (para 49).

24. It is submitted that the Impugned Award is vitiated by lack of jurisdiction. It is stated that BFP signed the MLA accepting the prices of Rs. 112 and Rs. 66.5 for two Regular Meals totaling to Rs. 178.5. Invoices were issued prior to and post the contract signing on the said basis for the two Regular Meals, however, the Ld. Arbitrator has modified the catering tariff expressly agreed by the parties in the contract. Reliance is placed upon PSA SICAL Terminals (P) Ltd. v. Board of Trustees of V.O. Chidambranar Port Trust Tuticorin, 2021 SCC OnLine SC 508 (paras 83-92).

25. BFP filed its bid with open eyes, accepted the LOA and entered into the contract knowing the catering tariff for the different meals, however, after 1.5 years, it raised a bald plea of purported coercion and the same was wrongly accepted by the Ld. Arbitrator without any evidence in support. It is stated that the plea of coercion was accepted by the Ld. Arbitrator on extraneous facts by holding in effect that there is a history of abuse of so-called dominant position by Government Department’s generally. The Ld. Arbitrator rendered this finding despite no evidence led by BFP and denial by IRCTC. It is submitted that no invoice for the full amount for the second Regular Meal and/or the Welcome Drink had been raised by BFP. Reliance is placed upon Double Dot Finance Ltd. v. Goyal MG Gases Ltd., 2005 SCC OnLine Del 118 (para 9) and Electrosteel Castings Ltd. v. UV Asset Reconstruction Co. Ltd., (2022) 2 SCC 573 (paras 7.2, 8, 8.1). Reliance is also placed upon Industrial Promotion & Investment Corpn. of Orissa Ltd. v. Tuobro Furguson Steels (P) Ltd., (2012) 2 SCC 261 (para 13).

26. It is stated that the contract between the parties was a pass-through of the catering charges collected from the passengers to BFP, and no amount was retained by the Railways or IRCTC. Hence, IRCTC could not have been saddled with liability of paying the purported differential charges towards second Regular Meal and Welcome Drink out of its own pocket. The Ld. Arbitrator overlooked this aspect while passing the Impugned Award, has gone beyond the terms of the contract between the parties and has created a de novo contract.

27. It is argued that the Ld. Arbitrator has erroneously rejected the plea of limitation and wrongly applied Section 14 of the Limitation Act, 1963 without jurisdiction. It is submitted that the Ld. Arbitrator has held that claims from January 2015 to March 2020 are within limitation, although BFP’s grievance and cause of action was CC 67/2013 dated 23.10.2013 and CC 32/2014 dated 06.08.2014, thus, on the date of filing of the Writ Petition, the relief claimed was barred by limitation.

28. It is further submitted that the Ld. Arbitrator has awarded BFP the charges for Welcome Drinks post CC 32/2014 on the premise that BFP would have in fact served such Welcome Drink to all passengers. Although, no evidence was led to establish the fact that every passenger was given and had consumed the Welcome Drink. Further, nor was any evidence led of the actual loss (nor the actual cost), if any, incurred in providing the Welcome Drink to the passengers so purportedly provided. It is stated that if it was known to BFP that the Welcome Drink is to be served without charges, then BFP having served such Welcome Drink cannot later turn back and claim charges on the ground of equity. It is further submitted that the Award overlooked that BFP was already making substantial additional gains pursuant to the increase in the tariff of the first Regular Meal.

29. It is stated that having agreed to such clauses, having acted upon and taken advantage of the changes made by the Railways, BFP could not have made its claim in the arbitration on the basis that such changes made by the Railways were unilateral and not binding. Overlooking this fundamental aspect and the conduct of BFP, the Ld. Arbitrator has held that CC 67/2013 and CC 32/2014 are not covered under the aforesaid Clause 8.1 of the Contract “since this is not an instance of change in catering tariff”. Thus, the Award has overridden express terms of the contract agreed to by BFP without any contemporaneous demur or protest whereby the Railways had the right to modify the catering tariff. Hence, it is stated, the Award violates Section 18 of the 1996 Act. Reliance is placed upon Indian Oil Corporation Ltd. v. Delhi Development Authority, 2016 SCC OnLine Del 2838 (para 14). Reliance is also placed upon Ramji Dayawala & Sons (P) Ltd. v. Invest Import, (1981) 1 SCC 80 (para 15) and Godhra Electricity Co. Ltd. v. State of Gujarat, (1975) 1 SCC 199 (paras 11-18).

30. It is submitted that after assignment of the catering contract to IRCTC, BFP first filed a Writ Petition being WP No. 11588/2017 in December 2017 seeking quashing of CC 67/2013 and CC 32/2014 and claiming consequential payment towards the second Regular Meal as well as for the Welcome Drink. This Writ Petition was dismissed on 23.09.2019. The Court did not pass any orders excluding the time taken in the writ proceedings for the purposes of the law of limitation. Thereafter, in January 2020, the arbitration was invoked where BFP did not make Railways a party, nor did it seek quashing of the aforesaid commercial circulars. It is submitted that the Ld. Arbitrator has ignored this and given contrary findings. Reliance is placed upon Bombay Intelligence Security (India) Ltd. v. Oil & Natural Gas Corporation Limited, 2015 SCC OnLine Bom 4738 (para 67).

31. In support of the argument that an award passed without evidence is perverse and liable to be set aside, reliance is placed upon State of Rajasthan v. Ferro Concrete Construction (P) Ltd., (2009) 12 SCC 1 (para 55) and NHPC Ltd. v. Jaiprakash Associates Ltd., 2023 SCC OnLine Del 3294 (paras 36-37).

32. In support of the argument that claims under principles of Section 70 of the Indian Contract Act, 1872 (“ICA”) cannot be made when an express contract exists, reliance is placed upon MTNL v. Tata Communications Ltd., (2019) 5 SCC 341 (paras 4-9). In support of the argument that for relying upon Section 65 of the Indian Evidence Act, 1872, original materials forming basis have to be accounted for, reliance is placed upon Jagmail Singh v. Karamjit Singh, (2020) 5 SCC 178 (paras 14, 17).

33. The petitioner has also objected against the interest awarded.

34. In support of its arguments, the petitioner has also provided a table setting out the relevant facts in relation to the Circulars issued, the bid date and the signing of contract. The same reads as under:

SL	DATE	PARTICULARS	RATE    OF MEAL-1 (2AC/3AC)	RATE    OF MEAL-2 (2AC/3AC)	TOTAL
1.	27.05.1999	Commercial Circular        No. 95/TG111/63/5 (@JCC/506- 508)	Rs.          75 (Regular Meal)	Rs.          75 (Regular Meal)	Rs. 150
2.	27.05.2013	Tender (@JCC/534- 648)	Rs.          75 (Regular Meal)	Rs.          75 (Regular Meal)	Rs. 150
3.	29.05.2013	Bid      by     BFP (Lead Matter)	Rs.          75 (Regular Meal)	Rs.          75 (Regular Meal)	Rs. 150
4.	09.10.2013	CC No. 63/2013 (@JCC/649- 653)	Rs.        112 (Regular Meal)	Rs.       66.5 (Combo Meal)	Rs.    178.5    (At    least 19% overall increase from Price as on date of Bid, despite the Regular Meal being reduced to a Combo Meal which was smaller in quantity than a Regular Meal)
5.	23.10.2013	CC No. 67/2013 (@JCC/654)	Rs.        112 (Regular Meal)	Rs.       66.5 (Regular Meal)	Rs. 178.5 (19 % overall increase from Price on the date of Bid)
6.	17.01.2014	Letter of Award (@JCC/745)	Rs.        112 (Regular Meal)	Rs.       66.5 (Regular Meal)	Rs. 178.5
7.	21.01.2014	Commencement of          Catering Services by BFP without     demur, protest             or reservation       of right and hence, clear acceptance	Rs.        112 (Regular Meal)	Rs.       66.5 (Regular Meal)	Rs. 178.5 (As Billed also)
8.	21.04.2014	Master    License Agreement (@JCC/993- 1015)	Rs.        112 (Regular Meal)	Rs.       66.5 (Regular Meal)	Rs. 178.5 (As Billed also)

Submissions (Respondent).

35. In response to the submissions made by the petitioner, the respondent has made the following counter-submissions, the gist of which is as under:

35.1. In response to the argument that BFP was aware about providing Regular Meal at Combo Meal prices and had yet accepted the LOA, it is stated that the bid came to be floated by IRCTC on 27.05.2013. BFP submitted its bid on 27.06.2013 i.e., before the issuance of CC 63/2013 dated 09.10.2013 and CC 67/2013 dated 23.10.2013. Hence, BFP was not aware that the circulars would be applicable to it. It is further submitted that the non-acceptance of LOA dated 17.01.2014 entailed the risk of financial losses including loss of security deposit as well as blacklisting/debarment of BFP from participating in the bidding process for similar future licenses of Railways for a period of one year.

35.2. In response to the argument that no case of coercion or protest was made out by BFP and no evidence was led to this effect, it is reiterated that non-acceptance of LOA by BFP entailed the risk of financial losses including loss of security deposit as well as blacklisting/debarment of BFP from participating in the bidding process for similar future licenses of Railways for a period of one year. It is stated that evidence of duress and coercion was already there in IRCTC’s own documents.

35.3. In response to the argument that no evidence was produced by BFP to prove how many Welcome Drinks were actually served by them, it is stated that the number of Welcome Drinks served was stated in the computation filed by BFP in its Statement of Claim (“SOC”) filed before the Ld. Arbitrator. The same was certified by a Chartered Accountant (similar to the computation given for Regular/Combo Meals), which was upheld by the Ld. Arbitrator.

35.4. In response to the argument that invoices produced by BFP have not been proved by it, and that IRCTC was not in possession of the original bills, it is submitted that the Indian Evidence Act, 1872 is not applicable to arbitration proceedings. Reliance is placed upon Millennium School v. Pawan Dawar, 2022 SCC OnLine Del 1390. It is further submitted that it is incorrect to state that IRCTC was not in possession of the original bills raised by BFP inasmuch as no payment would have been made by IRCTC without BFP submitting the bills in original. It is further submitted that illustration (g) of Section 114 of Indian Evidence Act, 1872 stipulates that the court may presume that evidence which could be produced, but is not produced before it, would be unfavorable to the person who withholds the same. It is submitted that in view of the same, failure of IRCTC to produce the original invoices (which were in its possession) would make way for the presumption that the same were detrimental to its case, and hence were not placed for consideration before the Ld. Arbitrator.

35.5. In response to the argument that the claims of BFP were barred due to waiver and estoppel, it is submitted that a) BFP issued several representations raising objections to the applicability of the commercial circulars; b) the bills raised by BFP at regular rates were not accepted by the Railways. Hence, BFP was constrained to raise bills at rates compliant with the commercial circulars; c) MLA Clause 21.6 stipulates that delay/omission by either party to exercise any of its rights would not be construed to be a waiver thereof; and d) the Ld. Arbitrator has dealt with the issue of waiver in the Impugned Award.

35.6. In response to the argument that reimbursement cannot be claimed by BFP as the passengers were not charged for the second Regular Meal or the Welcome Drinks, it is stated that BFP cannot be made to suffer a financial loss merely on this ground. It is further submitted that as per the letter dated 05.07.2019 written by IRCTC to the Ministry of Railways, it was acknowledged that licensees being paid at the rates prescribed for Combo Meals for providing Regular Meals was not justified.

36. In response to the IRCTC’s argument that the revised apportionment charges allegedly issued along with the LOA would be applicable to the Tender awarded to BFP (as the LOA was accepted by BFP without protest), it is submitted that assuming but not admitting the same, the said revised apportionment charges themselves stipulated that BFP was liable to provide Combo Meals and not the Regular Meals at the rates specified therein. Hence, upon IRCTC directing BFP to provide Regular Meals in place of Combo Meals, the reimbursement for the same ought to have been provided at the rates provided for Regular Meals as mentioned in the chart for the said revised apportionment charges. The same was also observed by the Ld. Arbitrator while passing the Impugned Award.

37. It is further submitted that the Ld. Arbitrator, while passing the Impugned Award, has rightly held that BFP’s failure to challenge CC 67/2013 and CC 32/2013 would not deprive BFP of its contractual rights or the dues accrued in its favor.

38. It is also stated that while passing the judgment/order dated 23.09.2019 in WP (C) No. 11548/2017, the Single Judge referred all the disputes to arbitration and the Arbitrator was directed to be uninfluenced by any observations. For the said reasons, no reliance can be placed on the judgment/order dated 23.09.2019.

39. It is submitted that the claims of BFP were not barred by limitation. It is stated that the Ld. Arbitrator, while passing the Impugned Award, rightly held that each invoice raised by BFP constituted a separate cause of action. It is further stated that the Ld. Arbitrator, while calculating limitation, has rightly excluded the period during which the aforementioned WP (C) No. 11549/2017 was pending for disposal before this Court.

40. It is argued that Clause 1.3.3 of the Tender floated by the petitioner- IRCTC as well as Clause 8 of MLA only provided for an alteration in the catering tariff on account of either a change in timetable of the trains or on account of change in the duration of trains. It is submitted that in view of the same, no unrestricted power was vested by the MLA to the Railways to direct the licensee to supply meals at an altered price or for no price whatsoever.

Analysis.

41. I have heard learned Solicitor General for the petitioner as well as learned senior counsels for the parties. For adjudicating the case at hand, it is relevant to reiterate the scope of Section 34 of the Act.

Scope of Section 34 of the Act.

42. The scope of examination of an arbitral award under Section 34 of the Act can be traced, more significantly so, in Associate Builders v. DDA, (2015) 3 SCC 49, Ssangyong Engg. & Construction Co. Ltd. v. NHAI, (2019) 15 SCC 131 and Delhi Airport Metro Express (P) Ltd. v. DMRC, (2022) 1 SCC 131. Reliance is also placed upon, inter alia, Dyna Technologies (P) Ltd v. Crompton Greaves Ltd (2019) 20 SCC 1; UHL Power Co. Ltd v. State of H.P. (2022) 4 SCC 116; South East Asia Marine Engineering & Constructions Ltd v. Oil India Ltd (2020) 5 SCC 164; Patel Engineering Ltd v. North Eastern Electric Power Corporation Ltd (2020) 7 SCC 167; PSA SICAL Terminals (P) Ltd. v. Board of Trustees of V.O. Chidambranar Port Trust Tuticorin, 2021 SCC OnLine SC 508; and Army Welfare Housing Organisation v. Sumangal Services (P) Ltd (2004) 9 SCC 619.

43. For the sake of brevity, the principles delineated in the aforesaid cases are summarised hereinafter.

44. The award can be set aside on the ground of patent illegality if: a) the view taken by the arbitral tribunal is impossible or such that no reasonable person could arrive at it; b) if the arbitral tribunal exceeds its jurisdiction by going beyond the contract, and adjudicating upon issues not referred to it; c) the finding of the arbitral tribunal is based on no evidence or it ignores material evidence. Rewriting of contractual terms by the Arbitrator is completely prohibited, and an Award which suffers from such perversity is liable to be set aside. The illegality must go to the root of the matter and does not include mere erroneous application of law or a contravention of law which is unrelated to public policy or public interest. If two views are possible, the Court will not interfere with the view of the arbitral tribunal if it has taken one of the two views. Reappreciation of evidence is also impermissible.

45. The award can also be set aside on the ground of it being in contravention with public policy of India, the scope of which includes:

a) fraud or corruption; b) violation of Sections 75 and 81 of the Act; c) any contravention with the fundamental policy of Indian law; d) violation of the most basic notions of justice or morality, so as to shock the conscience of the Court. The Court does not function as a Court of appeal, and errors of fact cannot be corrected. The arbitrator’s findings on facts must be accepted, as the arbitrator is the ultimate master of the quantity and quality of evidence in making the award.

46. It is also relevant to note that the Court cannot modify or rewrite the Award, and can only set it aside, post which the parties can re-initiate arbitration proceedings, if they so choose. However, partial setting aside is valid and justified, if the part proposed to be annulled is independent and can be removed without affecting the rest of the award. For this, reliance is placed upon McDermott International Inc. v. Burn Standard Co. Ltd., (2006) 11 SCC 181; S.V. Samudram v. State of Karnataka (2024) 3 SCC 623 and National Highways Authority of India v. Trichy Thanjavur Expressway Ltd. 2023 SCC OnLine Del 5183.

47. With this background, I will deal with the objections raised in this petition.

48. A perusal of the Impugned Award suggests that the Ld. Arbitrator has first dealt with the preliminary objections of the petitioner i.e. whether the claims were barred by limitation and/or waiver/estoppel. He has then proceeded onto the merits of the case and dealt with the issue of whether the respondent was liable to be reimbursed for the claimed amounts. Lastly, he has dealt with the computation of these claims. The Arbitrator has also dealt with certain smaller technical issues.

I. On Limitation.

49. The petitioner has challenged the Impugned Award stating that the Ld. Arbitrator has erroneously held that the claims were within limitation. It is stated, inter alia, that the time taken in the writ proceedings before the Hon’ble High Court could not have been excluded for calculation of limitation period; that Section 14 of the Limitation Act was wrongly applied; that the commercial circulars in question were never challenged before the Ld. Arbitrator, the dates of issuance of which (2013 and 2014) gave rise to the cause of action, and hence even on the date of filing of the writ petitions, the claims were barred by limitation.

50. Per contra, the respondent has argued that the Arbitrator has rightly held that each invoice constituted a separate cause of action; and that there was no infirmity with his findings pertaining to maintainability of claims despite lack of challenge to the commercial circulars and regarding applicability of Section 14 of the Limitation Act.

51. I have perused the Arbitral record. Ld. Arbitrator’s findings on the issue of limitation are contained in paragraphs 67 to 95 of the Impugned Award.

52. The Ld. Arbitrator has delved into a detailed discussion while rejecting the contention of the respondent that it could have raised a claim at any point in time during the subsistence of the contract because a) there was a mutual, open and running account between the parties; and b) this was a case of “continuing wrong”. As regards his findings on cause of action and maintainability of claims despite lack of challenge to commercial circulars are concerned, the relevant portions of the Impugned Award read as under:

“67. …The Respondent has vehemently argued that the claims filed by the Claimants are time barred. Though, the Respondent has not stated in clear terms as to what portion of the claims are time barred as admittedly, the arbitration notice was issued on 24.01.2020 and therefore, claims admittedly three years prior thereto cannot be treated as time barred. However, even though, the Respondent has not argued so but it is evident that the scope of this plea has to be with regard to the claim amounts for the period starting from various dates in the year 2014 upto January, 2017 i.e the amounts prior to three years from the date of invocation of the arbitration clause.

…..

73. I have considered the submissions advanced by both the parties. I am not convinced that the Claimants cannot succeed in their claims without first successfully challenging the commercial circulars and the apportionment charges. If the Claimants succeed in their contentions that the circulars are being wrongly applied to deprive them of their contractual rights or that, even otherwise, they are entitled to these amounts under the contract, in my view, they are well within their rights to institute these claims for recovery of amounts.

74. Further, it is true that the contract between the parties is still subsisting but it cannot be denied that the arrangement under the contract is that the Claimants are required to render services on daily basis in the trains being serviced by them and thereafter, raise bills at regular intervals. The Respondent is required to remit payments against these bills as and when the same is raised after duly verifying the amounts from the occupancy certificate and other relevant documents submitted along with the bills. Thus, to that extent, the submissions of the Respondent that the bill with respect to the services for a particular period, amounts to a separate and distinct transaction, appears to be correct.”

53. As regards the Arbitrator’s finding on exclusion of the time taken in writ proceedings and applicability of Section 14 of the Limitation Act is concerned, the same reads as under:

“84. However, I agree with the submission of Mr. Bishnoi that the Claimants are entitled to seek exclusion of the time period spent by them in prosecuting the writ petitions before the Delhi High Court.

…..

89. ….It is not denied that the writ petitions were filed in December, 2017. Though, the writ petition is dated 19.12.2017 but the first order of the Court in the writ petition is dated 22.12.2017 which is filed at Page No. 778 of Common Convenience Compilation, Volume-III. Thus, there can be no dispute about initiation of the writ proceedings on 22.12.2017. As examined by me earlier, the proceedings in the High Court came to an end by order dated 23.09.2019, a certified copy of which was received by the Claimant on 16.01.2020. Thus, it is reasonable to assume that the Claimant did spend time between 22.12.2017 till 16.01.2020 to prosecute their writ petitions.

90. The next question arises as to whether the Claimants are entitled to seek exclusion of time spent in the High Court in terms of Section 14 of the Limitation Act, 1963. I am conscious that Section 14 provides for exclusion of time spent by a party which is sincerely and bonafidely pursuing a remedy in another civil court of defective jurisdiction. However, this issue need not detain me as the Hon'ble Supreme Court has squarely answered the same in affirmative in one of the judgments cited by the Claimant.

91. Before noticing the Supreme Court judgment, I may indicate that the Claimants had filed writ petitions wherein prayers, inter- alia, were also made for recovery of monies due to them on accounts of the two services claimed herein. The Delhi High Court, in its judgment dated 23.09.2019 also found in Para 16 that what the petitioner was claiming is purely a money claim arising out of contractual obligation and that there are no issues of public law character raised in the present case. Thereafter, the Delhi High Court granted liberty to the Petitioners (Claimants herein) to take steps for appointment of an Arbitrator to look into the grievance of the Petitioner. The Court further ordered that in case such arbitration proceedings are initiated, the Ld. Arbitrator may adjudicate the disputes raised by the Petitioner uninfluenced by any observations made by this Court.

92. So, from reading of the judgment dated 23.09.2019 of the Delhi High Court, it is clear that the Court did not find the writ remedy to be an appropriate remedy and thus, relegated the Claimants to approach appropriate forum in the shape of taking steps for appointment of an Arbitrator.

93. Whether in the factual scenario highlighted above, the Claimant is entitled to seek benefit of Section 14 of the Limitation Act, 1963, has been dealt with by the Supreme Court in a similar situation in Rameshwar Lal Vs. Municipal Council, Tonk & Ors. (1996) 6 SCC 100. In this case, the Supreme Court held that the party was entitled to the relief of exclusion of time period spent in the High Court during which it was pursuing its writ petitions diligently and in a bona fide manner. The Hon'ble Supreme Court, being conscious of the language used in Section 14, yet granted this benefit to the party after finding that the High Court had declined to grant relief to the party by relegating the petitioner to a suit in a Civil Court and in such situation, the Petitioner cannot be left remediless. The Supreme Court excluded the time period spent in the High Court in prosecuting the writ petitions and further directed the Trial Court to dispose of the matter in accordance with law on merits.

94. Thus, applying the ratio of the aforesaid judgment, I agree that the Claimants are entitled to seek exclusion of time period spent in the High Court between 22.12.2017 and till 16.01.2020. There is nothing on record to suggest that the Claimants were not bona fide or diligent in pursuing the writ remedy. Though, the Claimants have cited other decisions as well but I don't feel the need to notice all of them given the fact that the Supreme Court judgment is clear and direct.

95. Admittedly, the Claimants invoked the arbitration clause on 24.01.2020 and by virtue of Section 21 of the Arbitration and Conciliation Act, 1996, the arbitration proceeding is deemed to have commenced on the said date. If the time period before the High Court is excluded, the claim can be said to have been instituted in around January, 2018. Given the fact that some time is required to make payment against the bills raised from January, 2018, I hold that the amounts claimed by the Claimants three years prior to January, 2018 i.e. from January, 2015 onwards would be within the period of limitation and all amounts claimed prior to the said period would be barred by limitation. Thus, I partly agree with the preliminary objection raised by the Respondent and hold that the Claimants are not entitled to seek recovery of amounts prior to January, 2015.”

54. I find no infirmity with the reasoning of the Ld. Arbitrator.

55. The Ld. Arbitrator has duly dealt with all the grounds raised by the petitioner before me. He has taken a view that there was no requirement for the respondent to have challenged the commercial circulars or the apportionment charges if BFP was able to prove that it was anyway entitled to recover the amounts under the contract, and the circulars were being misapplied to deprive it of the same. I find no infirmity with the same.

56. The Arbitrator has also returned a finding on cause of action, holding that each bill with respect to services for a particular period amounted to a separate and distinct transaction. These are questions of fact. Every bill constitutes a separate transaction and will have its own period of limitation. There is no infirmity in the finding of the Ld. Arbitrator and under Section 34 of the Act, this Court is not required to interfere with the same.

57. I am of the view that the Ld. Arbitrator has duly dealt with Section 14 of the Limitation Act and its applicability in the present case. The statutorily prescribed prerequisites for availing the benefit of Section 14 are: a) the party was pursuing another civil proceeding with due diligence and in good faith; b) against the same defendant; c) pertaining to the same matter in issue; and d) the failure of the prior proceeding was due to defect of jurisdiction or other cause of a like nature. The Hon’ble Supreme Court in M.P. Steel Corpn. v. CCE, (2015) 7 SCC 58 noted that “due diligence” and “good faith” in the context of Section 14 (Limitation Act) imply that the party seeking its advantages should not be found guilty of negligence, lapse or inaction. There should be no deliberate errors made with the intention of delaying the proceedings or causing inconvenience to the other party. If these ingredients are met, the time spent in pursuing previous proceedings is excluded for the purposes of computation of limitation. It is also settled law that this provision must be liberally construed and applied in a manner which furthers the cause of justice and does not leave the party remediless.

58. The Ld. Arbitrator has noted that in the present case, BFP had prayed before the Writ Court, inter alia, for recovery of monies due to them on account of the two services, which were claimed in the arbitration proceedings as well. The Single Judge had held that the relief sought by BFP did not concern public law and was purely a money claim arising out of contractual obligations, and accordingly permitted the respondent to raise its disputes before an Arbitrator. It also directed that the Arbitrator, if and when appointed, may adjudicate the disputes raised by BFP uninfluenced by any observations made by the Writ Court.

59. The Arbitrator has also noted that there was nothing on record to suggest that BFP was not pursuing the writ remedy in a diligent and bona fide manner. Even before me, there is no substantial averment by the petitioner regarding the Arbitrator ignoring any material facts or misapplying Section 14 of the Limitation Act. Hence, there is no reason to interfere with the finding of the Ld. Arbitrator.

60. The Ld. Arbitrator has also noted that the case was squarely covered by the judgment of the Hon’ble Supreme Court in Rameshwarlal v. Municipal Council, Tonk, (1996) 6 SCC 100, since in that case the Hon’ble Supreme Court granted the benefit of Section 14 (Limitation Act) to a party who was declined relief by the High Court. The High Court had relegated the party to the Civil Court, and the Hon’ble Supreme Court excluded the time period spent in prosecuting the writ petitions to ensure that the party is not left remediless. I find no infirmity with the finding of the Ld. Arbitrator in this regard.

61. Finding Section 14 (Limitation Act) to be applicable to the case and excluding the time period before the High Court, the Arbitrator held that the claim can be said to have been instituted in around January, 2018. Given some time is required to make payment against the bills from January, 2018, he held that the amounts claimed three years prior thereto i.e. January, 2015 onwards would be within the period of limitation and all amounts claimed prior thereto would be barred by limitation. Hence, the Arbitrator did partly agree with the preliminary objections raised by IRCTC and has denied the claims pre-dating 2015. The argument that even the writ petitions were barred by delay and laches is not relevant at this stage, as the Writ Court itself, despite noting the same, permitted BFP to initiate arbitration proceedings uninfluenced by the observations made by it. The Arbitrator has accordingly given a finding on the issue of limitation and the same, in my view, is neither perverse nor capricious so as to be termed patently illegal. The same is also based on sound legal reasoning.

62. For the said reasons, there is no need for interference with the findings of the Ld. Arbitrator to this extent.

II. On Waiver/Estoppel.

63. The petitioner has challenged the Impugned Award stating that the Ld. Arbitrator has erroneously held that the claims are not barred by waiver/estoppel. It is stated, inter alia, that BFP accepted the contract without any demur or protest; that prior to 2017, the licenses were with the Indian Railways for which IRCTC has no record, and after assignment of licenses to it in 2017, BFP did not raise objections with IRCTC; BFP submitted bills and were paid for it, the transactions cannot be reopened now; no evidence was led to prove that BFP was in a financially precarious situation or that there was any threat, coercion or duress; BFP cannot take benefit of CC 63/2013 and challenge CC 67/2013; and BFP could have surrendered its license.

64. Per contra, the respondent has argued, inter alia, that since the bid was submitted before the issuance of the Circulars, it was not aware that the same would be applicable to it; the non-acceptance of LOA entailed risk of financial losses including loss of security and blacklisting, hence, duress and coercion is evident from IRCTC’s own documents; it raised several representations objecting to the applicability of the commercial circulars and regardless, the MLA expressly stipulated that delay/omission by either party to exercise its rights would not amount to waiver.

65. Relevant portions of the Ld. Arbitrator’s findings on the issue of waiver and estoppel read as under:

“98. I do not agree that the Claimants can be non-suited on the ground that they waived or abandoned their rights to seek reimbursement for the costs suffered to make supplies. It is an admitted fact that tenders were issued prior to the Commercial Circular dated 23.10.2013 and even the bids were submitted prior to the this circular. Even though, from the record, it appears that the letter of award was issued later, but the Respondent did not seek any consent from the Claimants as regards to their willingness to supply regular meals at the price of the combo meal. I may observe that the present contracts are in the nature of commercial contracts where the parties have to incur costs for providing services and therefore, unless proved otherwise, it cannot be accepted that a party would agree to provide services and incur costs and not expect to be adequately reimbursed. To put it differently, in case a party is pleading waiver, estoppel and acquiescence, then the onus is on that party to establish the same as otherwise, in normal circumstances, given that the contract is of commercial nature for supply of services, a party is legitimate in expecting itself to be reimbursed for actual services rendered. Thus, I am unable to agree with the Respondent that merely because the Claimants raised the bills and accepted payments under those bills, would itself amount to an act of waiver or abandonment or relinquishment of their rights to seek reimbursement, if they are otherwise entitled to seek under the law.

99. A perusal of the pleading in the Statement of Defence in Para 4 read with its written submissions show that according to the Respondent, the claim is barred by waiver, estoppel and acquiescence as the Claimants have raised bills as per Commercial Circular No. 67/2014 and have duly received the payments for each individual bill. I do not feel that this plea alone is sufficient to establish waiver, estoppel and acquiescence of right by the Claimant, particularly when the Claimants have specifically pleaded in Para 16 of the SOC that they were coerced to raise the bills in accordance with Commercial Circulars issued by the Indian Railways and in case they failed to do so, no payments would have obtained by them. The Claimants have also stated that they were in a financially precarious situation because they needed regular funds to maintain day to day supplies in the trains. I have no reasons to disbelieve them. From the amounts sought before this Tribunal, it is clear that the Claimants incurred significant costs in providing those services for which reimbursement have been sought and I cannot persuade myself to believe that the Claimants being businessmen working on competitive margins, would willingly render services without expecting to be paid.

100. My view is further supported from the reading of the representation made by the Claimants to the predecessor of the Respondent, Indian Railways. One such representation dated 26.06.2015 evidently made through Indian Railway Mobile Caterer Association is annexed at Pages 716 to 718 wherein they highlighted that they were facing losses on account of these issues. Other letter dated 03.08.2016 and 23.08.2016 and 25.11.2016 are also relied upon by the Claimants to stress their counter argument that at no point, they gave up their rights to seek reimbursement.

101. Lastly, it is also clear that the Claimants approached the Delhi High Court in the year 2017 seeking various reliefs including reimbursement. Thus, it cannot be said that they were satisfied with the payments made by the Respondent and are thus stopped from raising these claims because if it was so, they would not initiate legal proceedings. Further, the plea that the Claimants have profited due to increase in the catering tariffs on 9.10.2013 since the bids were placed there to the raise, is also not supported by any evidence. Admittedly, the circular dated 09.10.2013 has also been issued by the Indian Railways on its own to revise the rates needed to set off the inflationary measures and further, to fix adequate catering rates. Hence, the Respondent cannot be permitted to contend that this has led to undue profits in favor of Claimants and thus, it can, as a matter of right, ask them to render services without making adequate payments.

102. I further agree with the submissions of the Claimants that a waiver, has to be not only conscious but also clear and express and it cannot be so lightly and casually construed that a party would so easily give up its contractual rights. In fact, the Claimant has invited my attention to Clause 21.6 of the Master License Agreement which itself provides that merely a delay or omission by either party to exercise any of its right under this agreement, will not be construed to be a waiver thereof. Thus, this contractual provision itself sounds a caution against a plea of waiver being casually and lightly invoked by a party against the other.

103. The Respondent has tried to draw quite a lot of mileage by contending that the Claimants were raising bills in terms of the Commercial Circulars and were being paid accordingly by the Respondent and thus, their grievance does not survive. The observations made by the Delhi High Court in the judgment dated 23.09.2019 were also cited and relied upon. However, in my view, the said observations cannot come to the aid of the Respondent since the High Court itself clarified in paragraph 17 that "In case such arbitration proceedings are initiated, the learned arbitrator may adjudicate the disputes raised by the petitioner uninfluenced by any observations made by this court.”

104. I may note that with regard to the regular meal supplied, the payment was being paid at the price of combo meal however, so far as the welcome drinks are concerned, the Claimants were not permitted to include the same in the bill given the stand of the Respondent that the same were to be supplied free of cost. The Claimants have invoked the plea of duress to contend that in case they did not act as per the dictate of the Respondent, they would not be paid which would have further compounded their losses.

105. I have no hesitation to find that the Respondent did enjoy a superior and dominant position in the contract. It is admitted that the Claimants have to pay their license fees as well as security deposits in advance which they paid. Their return on investment is in the form of payments regularly received from the Respondent against the regular monthly bills raised towards the periodic services rendered in the trains. Thus, the Claimants will not be in a position to adopt a cavalier stand against the Respondent given their status in the contractual arrangement. Owing this, it will be unfair to non-suit the Claimants only on the account that they raised the bills and received payments for the Respondent. The contractual arrangement is also such that the Claimants are required to make security deposits and pay license fees in advance which given the nature of contracts are significant and thus, it will not be fair to assume that the Claimants could have easily surrendered the contracts if they were not happy with the circulars given the stakes invested in these contracts. It also goes without saying that merely because a party is unhappy with certain actions of the other contracting party, it is not necessary that it must always surrender or opt out of the contract as the aggrieved can always take legal recourse to enforce its rights under the contract.

106. The Claimants have cited judgments of the Supreme Court wherein the Court have acknowledged that in some cases the Government Departments, do tend to throw their weights to brow beat small and vulnerable contractors….

107. In view of the reasons given above, I reject the contention of the Respondent that the Claimants are precluded from raising these claims on the ground of estoppel or waiver.”

66. A perusal of the Impugned Award shows that the Arbitrator has adopted the same reasoning to determine whether the respondent was entitled to reimbursement on account of both the second Regular Meal and the Welcome Drink. However, at this juncture, it is relevant to assess the two issues separately. Since separate amounts are awarded towards the two claims and since they are two different controversies, I am of the view that there is no overlap and the two portions of the Award can be easily incised.

Regarding Second Meal.

67. Before the Arbitrator, the respondent sought reimbursement at the rates specified in CC 63/2013 for supplying a second Regular Meal, which it was supplying at Combo Meal prices as per CC 67/2013 and CC 32/2014. The Ld. Arbitrator has erred in holding that the claim was not barred by waiver/estoppel, as this finding assumes that the respondent had a right in the very first place to claim these amounts. This is an illegality which goes to the root of the matter, hence the facts of this case require consideration by this Court.

68. At the outset, it is relevant to outline what constitutes waiver and estoppel. “Waiver” is an intentional relinquishment of a known right which the party would have otherwise enjoyed. The Hon’ble Supreme Court in Kalpraj Dharamshi v. Kotak Investment Advisors Ltd., (2021) 10 SCC 401 has explained what constitutes a “waiver”, as well as what differentiates it from “acquiescence”:

“119. For considering, as to whether a party has waived its rights or not, it will be relevant to consider the conduct of a party. For establishing waiver, it will have to be established, that a party expressly or by its conduct acted in a manner, which is inconsistent with the continuance of its rights. However, the mere acts of indulgence will not amount to waiver. A party claiming waiver would also not be entitled to claim the benefit of waiver, unless it has altered its position in reliance on the same.

…..

121. It has been held, that a waiver cannot always and in every case be inferred merely from the failure of the party to take the objection. Waiver can be inferred, only if and after it is shown that the party knew about the relevant facts and was aware of his right to take the objection in question. The waiver or acquiescence, like election, presupposes, that the person to be bound is fully cognizant of his rights, and that being so, he neglects to enforce them, or chooses one benefit instead of another.

….

127. Thus, for constituting acquiescence or waiver it must be established, that though a party knows the material facts and is conscious of his legal rights in a given matter, but fails to assert its rights at the earliest possible opportunity, it creates an effective bar of waiver against him. Whereas, acquiescence would be a conduct where a party is sitting by, when another is invading his rights. The acquiescence must be such as to lead to the inference of a licence sufficient to create a new right in the defendant. Waiver is an intentional relinquishment of a right. It involves conscious abandonment of an existing legal right, advantage, benefit, claim or privilege. It is an agreement not to assert a right. There can be no waiver unless the person who is said to have waived, is fully informed as to his rights and with full knowledge about the same, he intentionally abandons them.”

(emphasis supplied)."

69. Estoppel has been defined under the Indian Evidence Act, 1872 (pari materia to Section 121 of Bharatiya Sakshya Adhiniyam, 2023) as under:

“Section 115. When one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed, in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing.”

70. With these principles in mind, I will examine whether the Arbitrator has erred in observing that this was not a case of waiver/estoppel.

71. Admittedly, at the time the respondent bid for the Tender, the catering tariff was as per the 1999 Policy, as per which the respondent was to receive Rs. 150 for both Regular Meals (@ Rs. 75 each). Thereafter, CC 63/2013 dated 09.10.2013 was introduced and the respondent was entitled to a combined Rs. 178.5 (in 2AC/3AC/CC) for the supply of meals (including a first Regular Meal @ Rs. 112 and a second Combo Meal @ Rs. 66.5). Vide CC 67/2013 dated 23.10.2013, the second Combo Meal was replaced by a second Regular Meal, and the overall tariff remained the same i.e. Rs. 178.5 (in 2AC/3AC/CC) (i.e. first Regular Meal @ Rs. 112 and second Regular Meal @ Rs. 66.5). Post this, on 17.01.2014, the LOA was accepted by BFP. Catering services commenced on 21.01.2014. MLA was executed on 21.04.2014. Thereafter, CC 32/2014 dated 06.08.2014 was issued which affirmed that as per the aforementioned previous circulars, Regular Meal was to be served in place of Combo Meal at the tariff applicable for Combo Meal. The chain of events are discussed in more detail in the later part of this judgment, however, this brief summary suffices for the view I have taken under this sub-issue.

72. The above narration of facts suggests that before accepting the LOA and before entering into the MLA, the commercial circulars were already in circulation and in knowledge of the respondent. The respondent, thus, entered into contract with open eyes knowing that the rate of the first Regular Meal was Rs. 112 (in 2AC/3AC/CC) and the second Regular Meal was Rs. 66.5. Clauses 8.1 and 1.4 of the MLA (discussed in detail later) clearly stipulated that the petitioner had the right to modify/alter the catering tariff without consultation with the respondent. Hence, it cannot be said that the respondent had a right under the contract to claim the difference in rates specified in CC 63/2013 and CC 67/2013.

73. For the said reasons, reliance upon Clause 21.6 of the MLA cannot be made in this regard and the same has also been erroneously relied upon by the Ld. Arbitrator. The said clause reads as under:

“Unless otherwise expressly provided in this Agreement, a delay or omission by either Party to exercise any of its rights under this Agreement will not be construed to be a waiver thereof.”

74. The aforesaid clause covers those situations where there is a legitimate right of a party arising from the Agreement which has been hampered. In the present case, given the contractual terms between the parties and the guidelines which were in force, BFP had no legitimate right to make its claim. The Arbitrator’s reliance upon the representations of 2015-2016 and the writ proceedings instituted in 2017 to state that this was not a case of waiver is perverse since it is in blatant ignorance of the binding contractual terms between the parties. He has failed to consider that this was not a right which the respondent had in the first place.

75. Further, and importantly, for almost one and a half years i.e. from the commencement of services in 21.01.2014 till 22.05.2015 when the first representation was made by the Indian Railway Mobile Catering Association to the General Manager of Northern Railway, no objection was raised by the respondent regarding the change in apportionment charges. During this period, the respondent continued to raise bills in accordance with the commercial circulars and continued to receive payments without any demur/protest or reservation. For the sake of repetition, circulars were issued in 2013, LOA was issued in 2014 and the MLA was entered into in 2014, however, till 22.05.2015 there was no protest by the respondent.

76. The respondent has not been able to explain that why for a period of 1.5 years the respondent was providing two Regular Meals and was charging for the second Regular Meal at Combo Meal tariff. The Arbitrator’s finding that the bills were raised under duress, coercion and because the respondent was in a financially precarious situation is not supported by any evidence. The Arbitrator has erred in holding that because the petitioner had a dominant position in the contract, the respondent could not have easily surrendered the contract and had no other choice but to raise the bills and receive payments as per the commercial circulars. These are bald assumptions without any evidence to support the same.

77. The Arbitrator has merely considered the pleadings of the respondent in the SOC that the payments would have stopped had they not raised the bills in accordance with commercial circulars, and has held that “I have no reasons to disbelieve them”. He has, thus, based his reasoning on mere surmises and conjectures, and has observed that since significant amounts are sought, the respondent must have incurred huge losses. There is nothing on record to show the financial investment made by the respondent, or that the petitioner was not ready to accept the bills which did not comply with CC 67/2013 and CC 32/2014.

78. Before the Arbitrator, the respondent sought reimbursement at the rates specified in CC 63/2013 for supplying a second Regular Meal, which it was supplying at Combo Meal tariff as per CC 67/2013 and CC 32/2014. I am of the view that the Ld. Arbitrator failed to give due consideration to the fact that the respondent cannot claim benefit under CC 63/2013 and in the same breath seek to resile from CC 67/2013 on the ground of it being inequitable. The Arbitrator failed to notice that BFP could not have cherry-picked which guidelines/circulars of the petitioner they wanted to follow and which favoured them.

79. The Arbitrator has considered various hypothetical situations, but has failed to consider a situation where a contracting party enters into a contract with another party, executes the contract, receives the payments as per the contractual terms, and thereafter challenges the same on the plea of equity and on the ground that the other party enjoyed a superior and dominant position in the contract. This interpretation adopted by the Arbitrator is tantamount to making the objective of the Indian Contract Act (“ICA”) redundant, which gives legal enforceability to validly executed contracts, making the terms binding between the parties. The essence of ICA is to ensure that agreements between parties are enforced and are binding between them.

80. I have taken a view in Union of India v. Vishva Shanti Builders (India) (P) Ltd., 2024 SCC OnLine Del 5018 wherein I upheld the Arbitrator’s finding that the respondent therein had issued the No Claim Certificate (“NCC”), received final payment, and even then, the claims raised later were held to be arbitrable. However, the said case is distinguishable on facts. In that case, the contractor sent numerous letters to the State requesting release of its payments and apprising the State of its precarious financial situation. The contractor could only obtain the payments on signing the mandatory NCC. The contractor had immediately registered the protest on receiving the final payment. The Arbitrator therein had rightly held that this amounted to financial coercion/duress. This is not the present case. In the present case, knowing fully well the consequences flowing from the circulars, BFP entered into the contract without any protest, and after 1.5 years raised an objection for the first time.

81. The Arbitrator’s reasoning, while seeks to achieve an equitable outcome, completely ignores contractual terms which permitted the petitioner to change the tariff.

82. Hence, in a nutshell, I am of the view that the doctrine of waiver is irrelevant in the present case as, once BFP entered into the contract with the petitioner, it did not have any right to seek reimbursement of price difference for providing the second meal as per the charges stipulated in CC 63/2013. The conduct of the respondent, however, falls squarely within the definition of “estoppel”. The respondent signed the contract, which permitted the petitioner to change the tariff, the respondent acted upon the changed tariff introduced vide the commercial circulars namely CC 63/2013, CC 67/2013 and CC 32/2014, raised bills upon the changed tariff, accepted payments pursuant to those bills without demur or protest and only after 1.5 years, issued a letter of protest.

83. For the said reasons, in my view, the finding of the Ld. Arbitrator is erroneous, and the same goes to the root of the matter, thereby making it patently illegal.

Regarding Welcome Drink.

84. As regards this reasoning is adopted for the claim on Welcome Drink, I find no infirmity with the finding of the Ld. Arbitrator given one distinguishing factor, which is elaborated as under.

85. Vide CC 32/2014 dated 06.08.2014, all Licensees, including BFP, were required to supply Welcome Drink to all passengers boarding the Train. It has been noted that however, no payments were made for the same. The relevant clause of the circular reads as under:

“Welcome drink will be served to all passengers of AC Classes (IA/EC & 2A/3A/CC) on commencement of the journey. However, whenever the Breakfast is followed immediately after Welcome Drink then Frooti, the tetrapack drink hitherto being provided alongwith Breakfast will not be served. In case of service of subsequent Breakfast during any journey, drink/Aerated Drinks/ Chhach/Lassi/ in tetra pack will continue to be served.”

86. I am of the view that this cannot fall under the ambit of Clause 8.1 or 1.4 of the MLA, as even though the petitioner had the power to modify/alter the menu/tariff prices and set them as high or low as it pleases, it could not have asked the respondent to provide an additional item without intending to reimburse it for the same. I find force in the Arbitrator’s finding in paragraph 98 of the Impugned Award that “given that the contract is of commercial nature for supply of services, a party is legitimate in expecting itself to be reimbursed for actual services rendered” and in paragraph 99 that “I cannot persuade myself to believe that the Claimants being businessmen working on competitive margins, would willingly render services without expecting to be paid.”

87. Under this claim, the question is not of inadequate reimbursement, but rather of no reimbursement which is the point of difference. Such an interpretation falls foul of ethos of the ICA in as much as it lacks a very necessary ingredient which forms a valid and binding contract. As per Section 10 of ICA, a valid contract is one which is a) made by the free consent of parties; b) made by parties which are competent to contract; c) for a lawful consideration; d) with a lawful object. While the lawful object i.e. to provide Welcome Drink, exists; the element of lawful consideration is absent.

88. A contract and a contractual provision cannot, in my view, override the objective of law and purport an illegal outcome. This is a situation where Clause 21.6 of the MLA clearly applies, since BFP had a legitimate right arising out of the contract. The Arbitrator’s reasoning that the same could not have been waived off merely because BFP was raising bills and getting paid for it, is a plausible and reasonable finding. His observations in paragraph 105 of the Impugned Award that “merely because a party is unhappy with certain actions of the other contracting party, it is not necessary that it must always surrender or opt out of the contract as the aggrieved can always take legal recourse to enforce its rights under the contract” also stand under this claim. Hence, to this extent I find no infirmity with the reasoning of the Ld. Arbitrator.

III. On Recovery of Monies.

89. The Ld. Arbitrator has dealt with the issue of whether the respondent was entitled to recovery of monies, both for the Welcome Drink and price differential of the second Regular Meal, in paragraphs 109-126 of the Impugned Award.

90. The petitioner has broadly challenged the findings under this issue on the grounds that, inter alia, the Arbitrator by awarding the same has re- written the contract in that he modified the catering tariff expressly agreed to by the parties; having agreed to the contract and acted upon it, BFP could not have made a claim that the changes were not binding; the Tender and the MLA allowed the petitioner to change the catering tariff/menu of the train at any time and hence the Arbitrator’s interpretation of the Commercial Circulars as well as contractual provisions is perverse; given the nature of the contract, no amount was retained by the Railways or IRCTC hence it could now not be liable to pay out of its own pocket.

91. Per contra, the respondent has argued, inter alia, that the Ld. Arbitrator has rightly rejected such a broad interpretation of contractual clauses as alleged by the petitioner which vests it with unfettered power; that both the Tender Document and the MLA only provided for alteration in catering tariff on account of either a change in time table of the trains or on account of change in the duration of trains; that as per the petitioner’s own argument, payments had to be made as per the revised apportionment charges which clearly stipulated different prices for Combo Meal and Regular Meal, and the same was noted by the Ld. Arbitrator.

92. The answer to this question lies in determining whether the Arbitrator has merely interpreted the contractual clauses or has in effect re-written the agreed terms of contract between the parties. I will deal with the claim of the second Regular Meal and Welcome Drink separately.

93. The first contractual provision alleged by the petitioner in support of its stance that BFP was bound by all policy guidelines and instructions by the Railways is Clause 1.3.1 of the Tender Document, which reads as under:

“1.3.1 The Licensee shall be responsible for all catering services from pantry car on Train No. 12423/24 as per Policy, guidelines, instructions issued by Railway and other statutory regulations. This will include supply and service of fully cooked meals/food to passengers on demand viz. breakfast, lunch, dinner, snacks, tea, coffee etc. These meals/food will be prepared, packed and transported from the Kitchens set-up and located at or around the originating/terminating/en-route station(s) on Railway premises/non railway area authorised by railway administration to be set up by the licensee.”

94. The Arbitrator’s finding on Clause 1.3.1 reads as under:

“115. I do not agree with the broad proposition advanced by the Counsel for the Respondent. This Clause cannot be interpreted in such expansive manner thereby giving all rights to the Respondent of any nature which can then constitute a binding obligation on the Claimants. I feel that each policy guideline or instruction will have to be separately seen and examined to assess whether the same is consistent with the object and obligations to be performed by the parties, more so, by the Claimants. Thus, this Clause cannot clothe the Respondent with unilateral powers to issue any directions whatsoever which would then automatically deem to bind the Claimants. For instance, any instruction or policy guideline with regard to hygiene, cleanliness or relating to passenger's safety etc., would be viewed differently and possibly one may accept the contention of the Respondent that such policy guideline or instruction if not otherwise inconsistent with the contract, would have to be complied by the Claimants given the nature of their contract with the Respondent.

116. However, this cannot be logically stretched to mean that in case, the Claimants are directed to make supplies of certain services, then the Respondent would also reserve the right to decide as to whether the Claimants should be paid or not at all or should be paid at lesser rate than meant for such service. Let me further stretch this explanation to even assume that the Respondent has the right to even change from time to time, the supplies of services required to be rendered by the Claimants. So, in a particular train, the Respondent may direct that a particular eatable item or beverages may be discontinued for whatever reason, the Respondent feel proper. In such a situation, the Claimants will have to discontinue supply of such item or beverages or services and would therefore not be paid by the Respondent. In such situation, the Claimants cannot urge that the supplies should be continued or that they should be reimbursed or compensated since given the nature of their contract, they are going to be changes from time to time depending on multiple factors. However, it cannot be countenanced that if the Respondent direct the Claimants or other Licensees to render a particular service which leads to additional costs being incurred by the Licensees, then, even without their express consent, the Respondent can assume or assert that the Claimants will not be reimbursed such additional costs incurred by them on account of services rendered on the specific instruction of the Respondent.

117. Thus, I do not agree with the broad interpretation of Clause

1.3.1 as canvassed by the Respondent.”

95. Next, the petitioner has relied upon Article 8 of the MLA, especially Clause 8.1, to state that Railway reserved the right to change catering tariff/menu for the Train at any time after the award of the License. Relevant portions of Article 8 read as under:

“8.1 Railway reserve the rights to change catering tariff and menu for the Train at any time after the award of the License. In the event of any such change by the Railway, the Licensee shall maintain the same quality and hygiene standards for preparation, supply, and service of food/ meals to passengers on the Train as it were prior to such change.

…..

8.3 In the case of any revision in catering tariff, the Licensee shall be allowed to sell food/meals at the revised rates to the passengers. In this event, the licensee fee payable to Railway shall be increase on pro-rata basis/reassessment of the Sales or both, as the case may be.

….”

96. The Arbitrator’s finding on Article 8 reads as under:

“120. Once again, I am unbale to agree with the sweeping and overarching submissions made by the Respondent. In my view, the contracts cannot be interpreted in a manner which will make it inequitable for one of the contracting parties. I may note that Article 8 of the Master License Agreement deals with changes in menu, tariff and duration of train. Clause 8.2 provides that the Railways has a right to change the time table, frequency, halts and stoppages, routes, rake link, originating and/or terminating stations of the train and it further provides that the Licensees shall maintain the same quality and hygiene standards for preparation, supply and services of food/meals to such passengers despite such changes. Clause 8.3 also deals with revision in catering tariff, the Licensee shall be allowed to sell food/meals at the revised rates to the passengers and the Licensee shall be increased on pro rata basis/reassessment of sales or both, as the case may be.

121. An overall reading of this Article 8 makes it clear that there may be unforeseen contingencies, given the nature of contract between the parties, the supply of services required to be made in the trains whose frequency, time table, duration etc. may undergo changes from time to time and in order to cater to such contingencies, rights have been reserved in favor of Indian Railways to change catering tariff and menu. However, these Clauses cannot come to the aid of the Respondent in present case where admittedly, the supplies have been made and payments have either not been made or deficit payments have been made.

122. I also find that there has been no change in the catering tariff as such and therefore, the reliance of the Respondent on this Clause is not proper. Admittedly, the rates contained in Commercial Circular dated 09.10.2013 wherein the rates of both the regular meal as well as the combo meal are specified. The computation done by the Claimants is on the basis of the rates specified therein only. In other words, the Respondent's action to direct the Licensees to supply dinner and yet contend that while making payment, rates of combo meal will be considered, obviously cannot be an instance falling under Clause 8.1, since this is not an instance of change in catering tariff. In fact, the present factual scenario is one where the Respondent directed the Claimants to serve dinners for which a rate or price is specified and thus, the question is whether the Claimants are entitled to be reimbursed at the price of the regular meal or at any price lesser. Merely because the Respondent has chosen to reimburse them at the rate of combo meal would not bring this under Clause 8.1. Similarly, with regard to the services of welcome drink to the passengers, the same also cannot be treated to fall within the scope of Clause 8.1.

123. In fact, the Respondent's stand on merit is quite contrary to their own stand in letter dated 05.07.2019 written by IRCTC to the Ministry of Railways. In the said letter, it clearly brought out the inadequacy of tariff rates for the meals served on the trains and reasoned with the Railways for increase in the tariffs applicable for meals to be served in the train to the passengers. More particularly, it wrote about the anomaly with regard to payment being made at the price of the combo meal for supplies of the regular meal. It urged the Indian Railways to either restore the menu of this meal as combo meal or the tariff should be made similar to the normal meal. Clearly, the reasons stated in this letter support the contentions being made by the Claimants herein. Even on the interpretation of Clause 8.1, this letter makes it clear that reliance on this Clause is afterthought. In case the stand of the Respondent was correct that their action was supported by contractual provisions, then there was no need to make such recommendations to the Indian Railways. In fact, acting on the request of the Respondent, the Indian Railways decided, vide order dated 03.10.2019 that the Licensee would henceforth, be reimbursed at the rate of regular meal. The relevant portion of this letter is extracted herein below:

….

124. Thus, from the reading of the above letter which clearly highlights not only the inadequacy of the tariff for the various meals but also the anomaly with regard to the payment being made at the combo meal rates while actually the regular meals are being served, I am not inclined to agree that the Respondent's actions are governed by Contractual Clause 8.1.”

97. Lastly, the petitioner placed reliance upon Clause 1.4 of the MLA to state that Railway had the absolute right and discretion to change prices without any need for prior discussion with BFP. The same reads as under:

“1.4 It is agreed by the Licensee that the norms with regards catering changes payable to License for providing catering services to the passengers on the Train are also subject to the pre- determined prices as set forth in Annexure II of this Agreement. The Licensee also hereby confirms and acknowledges that Railway shall have the absolute right and discretion to change and modify the prices set forth in Annexure II without any need for prior discussion with the Licensee and the decision of Railway shall be strictly enforced by the Licensee during the Term of this Agreement.”

98. The Arbitrator’s findings on Clause 1.4 of the MLA reads as under:

“125. The Respondent next relied upon Clause 1.4 of the Master License Agreement which is found at Page 681 of Common Convenience Compilation, Volume-III. The Respondent more particularly, relied upon the part, “the licensee also hereby confirms and acknowledges that Railway shall have the absolute right and discretion to change and modify the prices set forth in Annexure-II without any need for prior discussion with the Licensee and the decision of the Railway shall be strictly enforced by the Licensee during the term of this Agreement”. The Counsel for the Respondent also produced the Annexure-II mentioned in this Clause. The said Annexure contains a set of revised apportionment charges for the train in question. In the revised apportionment charges, the services namely, whether lunch, evening tea, morning tea, breakfast, combo meal, dinner etc. required to be given to passenger station wise, is specified and in another column, the charges payable to the Licensee for the services to be rendered to passenger station wise, is also specified. Evidently, even in this revised apportionment charges submitted by the Respondent, one of the services mentioned is "CM" which refers to "Combo Meal". Thus, it proves that even as per Clause 1.4 read with the Annexure II, the liability of the Claimants was to supply Combo Meal and not the Regular Meal wherever it is specified in the Annexure-II. Thus, from this very Annexure-II cited by the Respondent, it is clear that the prices payable to the Licensee are calculated on the premise that a Combo Meal is to be supplied which is so specifically set out in the Column-“Services”. Hence, this Annexure-II does not support the case of the Respondent and in fact, favors the contention of the Claimants herein in as much as the liability was to supply Combo Meal and therefore, the reimbursement was to be made at the price of the Combo Meal. However, once the Respondent directed the Claimants to supply Regular Meal then obviously the reimbursement at the rate of Combo Meal will not be justified on the basis of this revised apportionment charges. Therefore, the Respondent's contention that this is a case governed by Clause 1.4 and therefore, falls within the absolute right and discretion of the Respondent to change and modify the prices, is again not correct. Again, at the cost of repetition, it is emphasized that the instant case is not the case of change or modification of the prices since the rates or prices contained in Circular dated 09.10.2013 remained unchanged.

126. Thus, I am of the view that so far as the entitlement of the Claimants is concerned, they are well within their right to seek recoveries of monies due and payable to them on account of having supplied Regular Meals and Welcome Drinks. Consequently, the Claimants claim to the extent that it seeks recovery of differential amount being the difference between the rate of Regular Meal and the Combo Meal for all the Regular Meals supplied in these trains is found to be justified. I also find that the Claimants' claim to seek recovery of monies for supply of Welcome Drinks is also legal and justified….”

Regarding Second Meal.

99. To my mind, the interpretation rendered by the Arbitrator is contrary to the terms of the contract and suffers from an illegality which goes to the root of the matter.

100. Even though the factual matrix has been discussed in brief hereinabove, the same requires a more detailed narration under this issue.

101. Before the concerned circulars, tariffs were determined as per the 1999 Policy as per which both the first as well as the second Regular Meal was priced @ Rs. 75 each i.e. Rs. 150 for both. BFP had submitted its bid on 29.05.2013 taking into account these rates. Post submission of the bid, the two circulars were introduced.

102. In CC 63/2013, it was clearly stated that the Board had decided to revise the menu and tariff to offset the effects of inflation. It also introduced the concept of Combo Meal in Rajdhani/Duronto Trains in place of second Regular Meal of the day. Vide the Circular, the overall tariffs were increased. The relevant portions read as under:

“The Menu & tariff of catering services for Rajdhani/Shatabdi/Duronto express trains was last revised in the year 1999. Rajdhani/Shatabdi/Duronto Express trains are the prestigious premier trains of Indian Railway. Since 1999, the cost of raw materials used for catering services has increased manifold due to inflation etc. A review of menu and tariff has been done through committees set up by the Board to determine the norms for apportionment of catering charges in the fares of Rajdhani/Shatabdi/Duronto express trains. Accordingly, based on the committee's recommendations, Board has decided to revise the menu and tariff which are given as under.

….

1.4 The concept of combo meal for Rajdhani/Duronto express trains has been introduced in place of regular second meal of the day where more than one meal services are provided. The third / following meal shall be the regular meal and the sequence of every alternate meal as combo meal shall be followed for the particular train. At one point of time only one type of meal will be served in the entire train.

…..

IA/EC
Type of service	Revised          catering charges to be disbursed to the licensee           without service tax.	Revised          catering charges to be included in fare (Inclusive of present service tax @8.66%.)
(1)	(2)	(3)
…..	……	…..
Lunch	129.50	145.00
…..	…..	…..
Dinner	129.50	145.00
Combo meals	66.50	75.00

2AC/3AC/CC
Type of service	Revised          catering charges to be disbursed to the licensee           without service tax.	Revised          catering charges to be included in fare (Inclusive of present service tax @8.66%.)
(1)	(2)	(3)
…..	……	…..
Lunch	112.00	125.00
…..	…..	…..
Dinner	112.00	125.00
Combo meals	66.50	75.00."

103. CC 67/2013 came by way of an amendment, which stated that based on feedback received from Zonal Railways, “a review of decision on revision of menu/tariff of catering services in Rajdhani/Shatabdi/Duronto Express Trains has been undertaken”. It modified CC 63/2013 to the extent that Combo Meal be deleted, and in its place, Regular Meal be reinstated. It also clearly stated that the changes “will be done without any increase in charges”.

104. A reading of the two circulars hence suggests that post CC 67/2013, the second meal was not to be a Combo Meal but rather a Regular Meal to be provided @ Rs. 66.5. Post CC 67/2013, the first Regular Meal was to be charged @ Rs. 129.5/Rs. 112, the second Regular Meal was to be charged @ Rs. 66.5.

105. Thereafter, the contract was awarded to BFP vide LOA dated 17.01.2014. Catering services commenced on 21.01.2014, and the MLA was executed on 21.04.2014. Post this, CC 32/2014 dated 06.08.2014 was issued which affirmed that “as per instructions issued vide CC 67/2013, regular meal (Lunch/Dinner) is to be served in place of Combo Meal (wherever applicable) at the tariff applicable for Combo meal.” This left no scope for ambiguity regarding the applicable rates for the second Regular Meal. Hence, before entering into the contract, BFP was aware of the position on tariffs, which was an overall increase from the pre-bid price i.e. from Rs. 150 to Rs. 178.5 (in 2AC/3AC/CC).

106. A combined reading of the above-mentioned clauses of Tender Document and MLA very clearly show that BFP was bound by any guideline/policy/instructions issued by the Indian Railways on catering tariff; that Railways had the absolute right to change/modify the tariff at any time after the award of the license; and that such change could be made unilaterally without the consent of BFP. Even if it is to be assumed that BFP could not have opted out of the bid due to financial constraints, Clause 1.3.1 of the Tender Document clearly states that BFP was bound by any change in guidelines/policy/instructions on catering tariff. Hence, even before entering into the contract, it can be assumed that BFP was aware of the consequences flowing from the contract. I am of the view that the Arbitrator has not given due consideration to this aspect.

107. The respondent’s reliance upon Clause 1.3.3 of the Tender Document and the Chart of Apportionment Charges does not find merit with this Court in view of the MLA, which clearly provides that the petitioner had the power to amend the tariff, which was done by way of CC 63/2013, CC 67/2013 and CC 32/2014.

108. The Arbitrator has held that the petitioner cannot assume such wide and unfettered powers under these contractual provisions since it would be “inequitable” for the other contracting party. This finding in itself is perverse. If interpretation of Arbitrator is to be sought, then the words “…regular meal (Lunch/Dinner) is to be served in place of Combo Meal (wherever applicable) at the tariff applicable for Combo meal” in CC 32/2014 become redundant. The Arbitrator is a creature of the contract and needs to remain within the confines of the contract. At the same time, contractual provisions are to be interpreted differently to legal provisions. If the ad idem of the parties is clearly expressed by way of contractual provisions, the Arbitrator need not interpret it on his own in order to make the terms more equitable.

109. A coordinate bench of this Court in Maruti Traders v. Itron India (P) Ltd., 2024 SCC OnLine Del 4897 has recently held as under:

“54. Before adverting to the findings of the learned Arbitral Tribunal regarding which not much is required to be said, it is necessary to emphasise that there is no equity in commerce. Commercial transactions between private parties, as a legal luminary once said, are red in tooth and claw. The principle of universal brotherhood of man does not apply to commercial relations. There is no compulsion on a person entering into a commercial transaction even to be fair, much less kind or equitable, and no Court can compel him to be so. The colour of money is all that matters.

55. A limited to duty to act fairly and equitably may, on occasion, be read into transactions in which the Government is a contracting party; but, even there, overarching pre-eminence has to be accorded to the contract, and its provisions.

56. The Court cannot, in commercial matters, grant relief on the principles of equity and fairness. The statute governs. Relief, if any, has to be granted within the four corners of the Contract Act, or any other statute which may apply, and not outside its peripheries. Howsoever, unfair the consequence, on the petitioner, of the respondent's actions may be, the petitioner is entitled to relief only if it can establish the existence of a right in contract, entitling it to relief. The ubi jus ibi remedium principle applies with full force in such cases. Every remedy has to be founded on a legal, existing, right.”

110. This case is squarely covered by the aforesaid decision. The Arbitrator has observed that the respondent ought to be “adequately compensated”, however, in doing so he has ignored express contractual provisions. Such a finding will be hit by the provisions of Section 34 of the Act.

111. The Arbitrator’s finding that this is not a case of change of tariff is also erroneous, because vide CC 63/2013 and 67/2013, the tariff in fact had been changed from Rs. 150 (pre-bid tariff) to Rs. 178.5. Post CC 67/2013, merely the concept of Combo Meal as the second meal was substituted by a Regular Meal. No changes were made to the tariffs pertaining to the second meal, which remained at Rs. 66.5. Hence, I am of the view that the Arbitrator’s interpretation, which is based on equity, is hence patently illegal as it contravenes the agreed terms between the parties. The Arbitrator failed to consider that the relief sought before him in effect rendered CC 67/2013 a nullity, despite the same not being in challenge before him. Cherry-picking of guidelines could not have been permitted.

112. The Arbitrator has also placed reliance upon a letter dated 05.07.2017 from IRCTC to the Ministry of Railways, urging correction of the anomaly with regard to payment being made at the price of Combo Meal for supplies of the Regular Meal, which was agreed to by the Indian Railways vide order dated 03.10.2019. Relevant portion of letter dated 05.07.2017 reads as under:

“Apart from the case of inadequacy of tariff of the above mentioned meal services there is a special case of Second Meal of the day in case of Rajdhani/Duranto trains. This service was introduced in 2014 as combo meal with the tariff of Rs. 66.50/- and reduced menu. But after the tenders were allotted and agreements executed, the menu of this Second Meal was changed and made similar to that of normal lunch/dinner. Instead of charging Rs. 112/- from passengers Railways continued to charge Rs. 66.50/-. Thus, IRCTC is getting only 66.50/-for this service whereas it is serving full meals to the passengers. This anomaly needs to be corrected with revision in rates of the second meals. Either, the menu of this meal should be restored as combo meal or the tariff should be made similar to the normal meal. As a matter of principle, the decided tariff of meals should be enhanced every year to offset the effect of inflation. This provision must be introduced at the time of revision of tariff. A particular month may be decided to undertake this exercise every year. It should be an automatic process based on the appropriate index without involving any human intervention.”

113. I am of the view that the reliance upon this letter is wholly misconceived. If anything, it proves the case of the petitioner that the effect of the Circulars was that second Regular Meal was to be reimbursed at Rs. 66.5. This was the express contract between the parties. In addition, the letter is an internal communication between IRCTC and Ministry of Railways and does not confer any right upon the respondent.

114. The Arbitrator has also noted that the anomaly was eventually corrected on 03.10.2019 by the Railway Board. Relevant portion of the letter dated 03.10.2019 reads as under:

“….In partial modification to Para 1.5 and Para 4.1 of CC No. 32/2014, following is advised with the approval of the Competent Authority:-

i. In reference to instructions vide Para 4.1 of CC No. 32/2014, it is advised that reimbursement of catering charges to service providers shall be made at the rate of regular meal tariff in place of combo meal tariff for service of regular meal as the second meal of the day. Passenger fare will accordingly be corrected by levying regular meal tariff for the actual service of regular meal.

ii. The above instructions will be implemented with prospective effect.

In view of above, Zonal Railways and IRCTC are advised to take necessary action in accordance with the above guidelines.

….”

115. These communications are only relevant insofar as they indicate the position with respect to tariffs. The legality of the position is backed by contractual provisions. BFP could not have claimed these amounts prior to 03.10.2019 merely on the plea of equity. Hence, I am of the view that the Arbitrator has traversed beyond the terms of the contract and has rewritten the same by granting the claims based on equity and without any concrete evidence. If the Arbitrator’s interpretation is sought, it will create havoc in contractual matters as the important ingredients of a contract being “enforceability of agreed terms” and “binding agreement” between the parties will be rendered nugatory. The interpretation given by the Arbitrator cries foul of provisions of ICA. Hence, it is not a case of interpreting but of rewriting.

116. For the said reasons, I am of the view that Award rendered by the Ld. Arbitrator towards recovery of differential costs for supply of Regular Meal is against public policy as it is violative of the provisions of the Indian Contract Act and hence is liable to be set aside under Section 34 of the Act.

Regarding Welcome Drink.

117. As already observed by me in paragraphs 84 to 88 of this judgment, the petitioner could not have asked the respondent to provide additional items without any consideration. It could not have sought shelter under contractual provisions to this extent, no matter how widely worded, as seeking an additional item without consideration cannot be said to be a valid agreement binding between the parties. Hence, I find no infirmity with the finding of the Ld. Arbitrator.

118. I find no infirmity with the finding of the Ld. Arbitrator in this regard that “it cannot be countenanced that if the Respondent direct the Claimants or other Licensees to render a particular service which leads to additional costs being incurred by the Licensees, then, even without their express consent the Respondent can assume or assert that the Claimants will not be reimbursed such additional costs incurred by them on account of services rendered on the specific instruction of the Respondent.” (paragraph 116 of the Impugned Award). In this regard, the interpretation of the Arbitrator is neither perverse, nor capricious, and is based on sound reasoning.

119. As regards the objection that IRCTC could not be saddled with the liability of paying the purported charges out of its own pocket, the same does not find merit with this Court. It was the petitioner who was the contracting party and the payments to be made to the respondent were to be made by the petitioner. The respondent had no privity of contract with the passengers of the Train(s).

IV. On Computation of Claims.

Regarding Second Meal.

120. Since I have already set aside the Award based on grounds of waiver/estoppel and merits of the case as regards this claim, I need not go into the question of computation. In view of my findings hereinabove, the challenge to the same is allowed. The amount awarded by the Ld. Arbitrator towards the recovery of differential costs for the supply of Regular Meal is set aside.

Regarding Welcome Drink.

121. The petitioner argued that no evidence was led by the respondent that all passengers were given and had consumed the Welcome Drink, nor was any evidence lead of the actual loss incurred in providing the Welcome Drink so purportedly provided.

122. The Arbitrator’s discussion on computation of claims is contained in paragraphs 127 to 157 of the Impugned Award. Relevant portions of the same read as under:

“139. While the Respondent hasadopted an approach to deny everything, it has not given any contrary computation though it could have done so while, at the same time, reserving its objections as to the overall entitlement of the Claimants. Respondent could have done so without prejudice since in such situation, if there was any error in the computation, the Respondent would be in a position to point out the same. However, the Respondent has not submitted any contrary computation based on its own records.

140. The next question which arises is as to whether the Claimants have adequately proved the claim computations. For this purpose, a scrutiny of the pleading as well as evidence is required to be done closely. In the lead case, in Para 47, the Claimants have given the number of regular meals supplied in AC-I/II/III. Similarly, in Para 49 it has specified the amounts due and payable to it towards Welcome Drink. The month wise number of regular meals and welcome drinks have further been specified in the charts annexed to the certificate of the Chartered Accountant in Vol.C-3 in all cases. A perusal of charts in all the cases show that number of meal and welcome drink supplied each month wise for the various years have been specified and these numbers have then been multiplied with the differential rate, with regard to first claim and with the rate of the welcome drink for second set of claims. Thus, it is clear that the Claimants have set out the numbers of the services rendered by it before this Tribunal. The Respondent, in its defense, has denied the same though no other contrary figures have been set up.

141. Though the Ld. Counsel for the Respondent is right in submitting that the Claimants are required to be prove their own case and onus lies on them, but in a case like the present one wherein the Claimants have discharged the initial burden by providing a quantification drawn from the bills, the originals of which are with the Respondent, the burden would then shift on the Respondent to prove that it is wrong. Such a plea may have some weight in favor of a party which is not having possession of the relevant record and documents but not in present case.

142. From the Affidavit of CW-1, the Chartered Accountant filed by the Claimants, it is clear that he has set out the claim amounts in Para 16. The same computation is also filed along with the SOC by way of a certificate of the same Chartered Accountant along with which, detail charts have been annexed wherein services, namely, number of Regular Meals as well as Welcome Drinks supplied each month wise for the various years in question, have been specified. These figures have though been denied as part of the general denial in the pleadings but given the fact that the Claimants have made supplies of the services in terms of the Commercial Circulars, then, the only question can be with regard to the numbers. In such a situation, since the Respondent has not given any contrary figure of the numbers of Regular Meal and Welcome Drinks supplied and in absence of contrary evidence, the Tribunal is inclined to accept the amounts computed by the Claimants.

….

156. One more contention of the Respondent which requires to be noticed is that it contends, by relying upon CC-32 of 2014 that the Welcome Drinks were to be supplied with a rider that whenever breakfast is followed immediately after the welcome drink, then fruity/tetra pack to be provided along with the breakfast were not required to be served. It states in its written submission that, thus, the said circular neutralized the effect of the service of welcome drinks. I may note that this plea has been taken vaguely without giving supporting factual details, particulars and evidence. It is not clear as to how, according to Respondent, it neutralizes the effect of service of welcome without explaining the number of welcome drinks in each train and also the breakfasts and the comparative cost analysis. From the averments made in para 30 of the written submissions wherein it is averred that "even otherwise, all the Shatabdi trains start in the morning followed by breakfast" shows that this situation does not arise in all the trains. This plea being factual should have been established by producing on record the facts and figures. The Respondent was required not only to plead the necessary facts but also prove the same by adducing evidence with regard to the numbers of breakfasts as well as the comparative cost. The Claimant, on the other hand in their written submission has taken the plea that they had supplied the welcome drink to all the passengers to avoid complaints as the commuters are unaware of these internal circulars. It may be pointed out that the written submission by the Respondent has been filed much after that of the Claimants. Be that as it may, I find that the Respondent has chosen not to plead set off or counter-claim and in absence thereof the supporting evidence with full details and particulars, this contention about neutralizing the effect of service of welcome drink, cannot be accepted.”

123. I find no infirmity with the Arbitrator’s findings. The Arbitrator has noted that the computation of Welcome Drinks was set out in the SOC and verified by the attached certificate of the Chartered Accountant. The Arbitrator has noted that if the petitioner was pleading that there was a set-off in the case of Welcome Drinks against the breakfast, it ought to have proved the same instead of raising a bald plea. Since no computations were raised by the petitioner to rebut the same, the Arbitrator awarded the claim as per the calculations filed by the petitioner. The Chartered Accountant, Mr. Jeetmal Khandelwal, appeared as CW-1, duly proved the consumption of Welcome Drink based upon the Occupancy Certificates and was cross examined. As per the Arbitrator, nothing contrary has come on record.

124. I find no infirmity with these findings. Once the onus of proof was validly discharged by the respondent, the onus shifted on the petitioner to deny the same by evidence, which was not led. It was upon the petitioner to show that the number of Welcome Drinks as stated by the respondent were not provided. The quality and quantity of evidence is within the domain of the Arbitrator. The quantification of the Welcome Drink supplied has been done and I find no reason to disbelieve the same, especially when the petitioner has not produced any evidence to the contrary. This Court in Section 34 jurisdiction is not required to reappreciate evidence, and hence, the amount awarded by the Ld. Arbitrator towards supply of Welcome Drinks is upheld.

125. As regards the objection that the Indian Railways should have been impleaded in the arbitration proceedings, the Ld. Arbitrator has already dealt with the same in paragraphs 158-156 (wrongly numbered, however corrected vide order dated 26.07.2022) of the Impugned Award, observing that since the Tripartite Agreement assigned the contracts to IRCTC, the objection does not have any merit. This finding does not require any interference by this Court.

V. On Interest.

126. As regards the awarded interest, the same has also been challenged by the petitioner on the ground that the same has been awarded mechanically, without examining whether any interest was due and payable at all. It is also stated that the post-award rate of interest is high and penal in nature, and is thus unreasonable.

127. The Arbitrator’s finding on interest is in paragraphs 160-162 of the Impugned Award, which reads as under:

“160. The Claimants have also claimed interest and have computed interest in the aforesaid computation charts. However, I am not inclined to accept the rate of interest computed and claimed by the Claimants.

161. Section 31 (7) of the Arbitration and Conciliation Act, 1996 provides that the Arbitral Tribunal can award interest at such reasonable rate 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. In the present case, I have held that the claim amounts from January, 2015 are within time period of prescribed limitation by applying Section 14 to exclude the time period spent in the High Court by the Claimants in prosecuting their writ petitions. The Claimants have not pointed out any contractual provisions providing for rate of interest for the amounts payable under the Master License Agreement. Considering the facts and circumstances of the case and also the fact that the Claimants initiated legal action for recovery of the amounts only in December, 2017 for the first time, I deem it fit to award interest on the principal amounts payable only from January, 2018 onwards@ 6% simple rate of interest per annum. Thus, the Claimants will not be entitled for interest prior to the said period.

162. The Respondent is given a period of four months from date of award to pay the awarded amounts towards principal as well as interest component as specified above. However, in case the amounts are not paid within a period of four months from the date of award, the Claimant shall be entitled to future simple interest @ 9% per annum in terms of Section 31 (7) (b) of the Arbitration and Conciliation Act, 1996 on the total sum comprising of principal as well as interest amounts as awarded abovefrom the date of award till the date of actual payment.”

128. I am of the view that the Arbitrator’s finding does not require any interference by this Court. In the absence of an express agreement between the parties to the contrary, the Arbitrator has the discretion to award or to not award the interest. Hence, the award on interest is solely within the domain of the Arbitrator (refer to Delhi Airport Metro Express (P) Ltd. v. DMRC, (2022) 9 SCC 286, para 17). The Arbitrator, deriving his powers from Section 31(7) of the Act, considered the facts of the case and awarded the interest only from January, 2018 onwards, since the respondent initiated legal action for the first time only in December, 2017. I find no infirmity with this reasoning.

Conclusion.

129. For the reasons stated hereinabove, the Award dated 27.04.2022 (corrected on 26.07.2022) is partially set aside. The award pertaining to the recovery of differential costs for the supply of the second Regular Meal to the tune of Rs. 20,97,85202 is set aside. The award towards the supply of Welcome Drink to the tune of Rs. 5,04,99,122 is upheld. The award on interest is upheld, however, only as applicable on the principal amount towards the supply of Welcome Drink.

130. The petition, along with pending applications, if any, is accordingly disposed of.

OMP (ENF.) (COMM.) 100/2023 & EX.APPL.(OS) 603/2023, EX.APPL.(OS) 1242/2023.

131. In view of the judgment passed in O.M.P. (COMM) 411/2022, the execution petition is partially allowed.

132. In accordance with the Award dated 27.04.2022 (corrected on 26.07.2022), the judgment-debtor is directed to pay to the decree- holder the awarded amount towards the supply of Welcome Drink to the tune of Rs. 5,04,99,122 along with awarded interest within 8 weeks from today.

133. The petition along with pending applications, if any, is disposed of in the aforesaid terms.

O.M.P. (COMM) 495/2022 & I.A. 21377/2022, I.A. 21380/2022, I.A. 21381/2022.

134. In view of the judgment passed in the lead matter being O.M.P. (COMM) 411/2022, the Award dated 27.04.2022 (corrected on 26.07.2022) is partially set aside. The award pertaining to the recovery of differential costs for the supply of the second Regular Meal to the tune of Rs. 4,21,06,183 is set aside. The award towards the supply of Welcome Drink to the tune of Rs. 75,48,931 is upheld. The award on interest is upheld, however, only as applicable on the principal amount towards the supply of Welcome Drink.

135. The petition, along with pending applications, if any, is accordingly disposed of.

OMP (ENF.) (COMM.) 96/2023 & EX.APPL.(OS) 595/2023,EX.APPL.(OS) 1245/2023.

136. In view of the judgment passed in O.M.P. (COMM) 495/2022 read with O.M.P. (COMM) 411/2022, the execution petition is partially allowed.

137. In accordance with the Award dated 27.04.2022 (corrected on 26.07.2022), the judgment-debtor is directed to pay to the decree- holder the awarded amount towards the supply of Welcome Drink to the tune of Rs. 75,48,931 along with awarded interest within 8 weeks from today.

138. The petition along with pending applications, if any, is disposed of in the aforesaid terms.

O.M.P. (COMM) 446/2022 & I.A. 18081/2022, I.A. 18084/2022.

139. In view of the judgment passed in the lead matter being O.M.P. (COMM) 411/2022, the Award dated 27.04.2022 (corrected on 26.07.2022) is partially set aside. The award pertaining to the recovery of differential costs for the supply of the second Regular Meal to the tune of Rs. 9,54,62,998 (Rs. 2,98,72,679 and Rs. 6,55,90,319 for Train Nos. 12235-36 and 12435-36 respectively) is set aside. The award towards the supply of Welcome Drink to the tune of Rs. 1,81,54,336 (Rs. 56,13,753 and Rs. 1,25,40,583 for Train Nos. 12235-36 and 12435-36 respectively) is upheld. The award on interest is upheld, however, only as applicable on the principal amount towards the supply of Welcome Drink.

140. The petition, along with pending applications, if any, is disposed of. OMP (ENF.) (COMM.) 94/2023 & EX.APPL.(OS) 591/2023, EX.APPL.(OS) 1243/2023

141. In view of the judgment passed in O.M.P. (COMM) 446/2022 read with O.M.P. (COMM) 411/2022, the execution petition is partially allowed.

142. In accordance with the Award dated 27.04.2022 (corrected on 26.07.2022), the judgment-debtor is directed to pay to the decree- holder the awarded amount towards the supply of Welcome Drink to the tune of Rs. 1,81,54,336 along with awarded interest within 8 weeks from today.

143. The petition along with pending applications, if any, is disposed of in the aforesaid terms.

O.M.P. (COMM) 447/2022 & I.A. 18085/2022.

144. In view of the judgment passed in the lead matter being O.M.P. (COMM) 411/2022 and since the award is only regarding the supply of Welcome Drink, the Award dated 27.04.2022 (corrected on 26.07.2022) is upheld and the petition is accordingly dismissed.

145. The petition, along with pending applications, if any, is disposed of. OMP (ENF.) (COMM.) 95/2023 & EX.APPL.(OS) 593/2023, EX.APPL.(OS) 1244/2023

146. In view of the judgment passed in O.M.P. (COMM) 447/2022 read with O.M.P. (COMM) 411/2022, the execution petition is allowed.

147. In accordance with the Award dated 27.04.2022 (corrected on 26.07.2022), the judgment-debtor is directed to pay to the decree- holder the awarded amount to the tune of Rs. 4,34,77,137 along with awarded interest within 8 weeks from today.

148. The petition along with pending applications, if any, is disposed of in the aforesaid terms.

O.M.P. (COMM) 500/2022 & I.A. 21499/2022, I.A. 21502/2022, I.A. 21503/2022.

149. In view of the judgment passed in the lead matter being O.M.P. (COMM) 411/2022, the Award dated 27.04.2022 (corrected on 26.07.2022) is partially set aside. The award pertaining to the recovery of differential costs for the supply of the second Regular Meal to the tune of Rs. 7,29,74,073 is set aside. The award towards the supply of Welcome Drink to the tune of Rs. 1,40,37,284 is upheld. The award on interest is upheld, however, only as applicable on the principal amount towards the supply of Welcome Drink.

150. The petition, along with pending applications, if any, is disposed of. OMP (ENF.) (COMM.) 97/2023 & EX.APPL.(OS) 597/2023, EX.APPL.(OS) 1246/2023

151. In view of the judgment passed in O.M.P. (COMM) 500/2022 read with O.M.P. (COMM) 411/2022, the execution petition is partially allowed.

152. In accordance with the Award dated 27.04.2022 (corrected on 26.07.2022), the judgment-debtor is directed to pay to the decree- holder the awarded amount towards the supply of Welcome Drink to the tune of Rs. 1,40,37,284 along with awarded interest within 8 weeks from today.

153. The petition along with pending applications, if any, is disposed of in the aforesaid terms.

O.M.P. (COMM) 502/2022 & I.A. 21515/2022, I.A. 21518/2022, I.A. 21519/2022.

154. In view of the judgment passed in the lead matter being O.M.P.

(COMM) 411/2022 (corrected on 26.07.2022) and since the award is only regarding the supply of Welcome Drink, the Award dated 27.04.2022 is upheld and the petition is accordingly dismissed.

155. The petition, along with pending applications, if any, is disposed of. OMP (ENF.) (COMM.) 91/2023 & EX.APPL.(OS) 585/2023, EX.APPL.(OS) 1239/2023.

156. In view of the judgment passed in O.M.P. (COMM) 502/2022 read with O.M.P. (COMM) 411/2022, the execution petition is allowed.

157. In accordance with the Award dated 27.04.2022 (corrected on 26.07.2022), the judgment-debtor is directed to pay to the decree- holder the awarded amount to the tune of Rs. 3,47,01,156 along with awarded interest within 8 weeks from today.

158. The petition along with pending applications, if any, is disposed of in the aforesaid terms.

O.M.P. (COMM) 504/2022 & I.A. 21567/2022, I.A. 21570/2022.

159. In view of the judgment passed in the lead matter being O.M.P. (COMM) 411/2022 and since the award is only regarding the supply of Welcome Drink, the Award dated 27.04.2022 (corrected on 26.07.2022) is upheld and the petition is accordingly dismissed.

160. The petition, along with pending applications, if any, is disposed of. OMP (ENF.) (COMM.) 99/2023 & EX.APPL.(OS) 601/2023, EX.APPL.(OS) 1248/2023

161. In view of the judgment passed in O.M.P. (COMM) 504/2022 read with O.M.P. (COMM) 411/2022, the execution petition is allowed.

162. In accordance with the Award dated 27.04.2022 (corrected on 26.07.2022), the judgment-debtor is directed to pay to the decree-holder the awarded amount to the tune of Rs. 2,26,40,710 along with awarded interest within 8 weeks from today.

163. The petition along with pending applications, if any, is disposed of in the aforesaid terms.

O.M.P. (COMM) 505/2022 & I.A. 21571/2022, I.A. 21574/2022, I.A. 21575/2022.

164. In view of the judgment passed in the lead matter being O.M.P. (COMM) 411/2022 and since the award is only restricted to supply of Welcome Drink, the Award dated 27.04.2022 (corrected on 26.07.2022) is upheld and the petition is accordingly dismissed.

165. The petition, along with pending applications, if any, is disposed of.

OMP (ENF.) (COMM.) 98/2023 & EX.APPL.(OS) 599/2023, EX.APPL.(OS) 1247/2023.

166. In view of the judgment passed in O.M.P. (COMM) 505/2022 read with O.M.P. (COMM) 411/2022, the execution petition is allowed.

167. In accordance with the Award dated 27.04.2022 (corrected on 26.07.2022), the judgment-debtor is directed to pay to the decree- holder the awarded amount to the tune of Rs. 4,57,23,843 along with awarded interest within 8 weeks from today.

168. The petition along with pending applications, if any, is disposed of in the aforesaid terms.

O.M.P. (COMM) 506/2022 & I.A. 21672/2022, I.A. 21674/2022, I.A. 21675/2022, I.A. 21676/2022.

169. In view of the judgment passed in the lead matter being O.M.P. (COMM) 411/2022 and since the award is only regarding the supply of Welcome Drink, the Award dated 27.04.2022 (corrected on 26.07.2022) is upheld and the petition is accordingly dismissed.

170. The petition, along with pending applications, if any, is disposed of.

OMP (ENF.) (COMM.) 93/2023 & EX.APPL.(OS) 589/2023, EX.APPL.(OS) 1241/2023.

171. In view of the judgment passed in O.M.P. (COMM) 506/2022 read with O.M.P. (COMM) 411/2022, the execution petition is allowed.

172. In accordance with the Award dated 27.04.2022 (corrected on 26.07.2022), the judgment-debtor is directed to pay to the decree- holder the awarded amount to the tune of Rs. 2,73,55,125 along with awarded interest within 8 weeks from today.

173. The petition along with pending applications, if any, is disposed of in the aforesaid terms.

O.M.P. (COMM) 517/2022 & I.A. 22276/2022, I.A. 22279/2022, I.A. 22280/2022.

174. In view of the judgment passed in the lead matter being O.M.P. (COMM) 411/2022 and since the award is only regarding the supply of Welcome Drink, the Award dated 27.04.2022 (corrected on 26.07.2022) is upheld and the petition under Section 34 of the Act is accordingly dismissed.

175. The petition, along with pending applications, if any, is disposed of.

OMP (ENF.) (COMM.) 90/2023 & EX.APPL.(OS) 583/2023, EX.APPL.(OS) 1238/2023.

176. In view of the judgment passed in O.M.P. (COMM) 517/2022 read with O.M.P. (COMM) 411/2022, the execution petition is allowed.

177. In accordance with the Award dated 27.04.2022 (corrected on 26.07.2022), the judgment-debtor is directed to pay to the decree-holder the awarded amount to the tune of Rs. 3,11,01,544 along with awarded interest within 8 weeks from today.

178. The petition along with pending applications, if any, is disposed of in the aforesaid terms.

O.M.P. (COMM) 45/2023.

179. In view of the judgment passed in the lead matter being O.M.P. (COMM) 411/2022 and since the award is only regarding the supply of Welcome Drink, the Award dated 27.04.2022 (corrected on 26.07.2022) is upheld and the petition is accordingly dismissed.

180. The petition, along with pending applications, if any, is disposed of.

O.M.P. (COMM) 46/2023.

181. In view of the judgment passed in the lead matter being O.M.P. (COMM) 411/2022, the Award dated 27.04.2022 (corrected on 26.07.2022) is partially set aside. The award pertaining to the recovery of differential costs for the supply of the second Regular Meal to the tune of Rs. 59,81,889 is set aside. The award towards the supply of Welcome Drink to the tune of Rs. 15,79,709 is upheld. The award on interest is upheld, however, only as applicable on the principal amount towards the supply of Welcome Drink.

182. The petition, along with pending applications, if any, is disposed of.

O.M.P. (COMM) 47/2023.

183. In view of the judgment passed in the lead matter being O.M.P. (COMM) 411/2022 and since the award is only regarding the supply of Welcome Drink, the Award dated 27.04.2022 (corrected on 26.07.2022) is upheld and the petition is accordingly dismissed.

184. The petition, along with pending applications, if any, is disposed of.

OMP (ENF.) (COMM.) 92/2023 & EX.APPL.(OS) 587/2023, EX.APPL.(OS) 1240/2023.

185. In view of the judgment passed in O.M.P. (COMM) 47/2023 read with

O.M.P. (COMM) 411/2022, the execution petition is allowed.

186. In accordance with the Award dated 27.04.2022 (corrected on 26.07.2022), the judgment-debtor is directed to pay to the decree- holder the awarded amount to the tune of Rs. 1,47,62,193 along with awarded interest within 8 weeks from today.

187. The petition along with pending applications, if any, is disposed of in the aforesaid terms.