MTNL vs K.J. Construction Co - Appeal of Arbitration Award

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Mtnl (Mahanagar Telephone Nigam Ltd vs K.J. Construction Co on 4 March, 2026

2026:BHC-OS:7303-DB

      PDP                                                              5-APP-627-2013.doc

            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                 ORDINARY ORIGINAL CIVIL JURISDICTION

                            APPEAL NO. 627 OF 2013
                                     IN
                     ARBITRATION PETITION NO. 440 OF 2007
                                    WITH
                       NOTICE OF MOTION NO. 694 OF 2015

      MTNL (Mahanagar Telephone Nigam
      Ltd.)                                            .. Appellant

            Versus

      K. J. Construction Co.                           .. Respondent
                                        ...
      Mr. Sayeed Akhtar a/w Ms. Shifa Farooqui a/w Mr. Hamza Shaikh,
      Advocates for the Appellant.
      Mr. Aditya Pimple a/w Mr. Panjit Shetty a/w Ms. Avina Karnad i/by
      Argus Partners, Advocates for the Respondent.
                                        ...
                 CORAM : SHREE CHANDRASHEKHAR, CJ &
                            GAUTAM A. ANKHAD, J. DATE            : 4th MARCH 2026.

Per, Shree Chandrashekhar, CJ :-

Aggrieved by the decision in Arbitration Petition No. 440 of 2007
pronounced on 7th March 2013, the Mahanagar Telephone Nigam
Limited (in short, MTNL) has filed this Appeal under section 37 of the
Arbitration and Conciliation Act, 1996. By the said decision, the
award made on 8th September 2008 in favor of M/s. K. J.
Construction Co. was partly affirmed by a learned Single Judge of this
Court.

1. Pursuant to the Notice Inviting Tender and a Press Notice for the construction of a Telephone Exchange building at Cumballa Hill, Mumbai, the respondent-Company was awarded the contract for

PDP 5-APP-627-2013.doc

an estimated cost of Rs.11,29,19,310/-. The scheduled date of
completion of the work was 10th September 2001.

1. The dispute between the parties came before the sole Arbitrator in terms of clause 53 of the Agreement No. EE(C)S-I/MAZ/99- 2000/10 dated 26th April 1999. Before the Arbitrator, twenty-one claims were made by the respondent-Company which are as follows:-

Sr. Brief details of the claim Amount in Rupees Remarks
No.
1 Whether the Claimant is entitled 7,32,198.00 Arbitrator to decide
for interest @ 18% for delayed whether the claim
payment of bill. is justified and to
what extent.

2 Whether the Claimant is entitled
for additional rates for quantities -do-
executed beyond 25% and
interest @18% thereon.
(a) Cost of the work 22,00,000.00
(b) Interest on 2(a) 18,48,000.00
3 Whether the Claimant is entitled -do-
for additional items executed but
not paid.
(a) cost of the work 10,00,000.00
(b) Interest on 3(a) 6,60,000.00
4 Whether the Claimant is entitled
for additional costs involved on -do-
account of Time restriction by
RTO and police on the movement
of vehicles carrying construction
materials and concrete and
interest @18% thereon.
(a) cost of the work 35,00,000.00
(b) Interest on 4(a) 11,55,000.00
5 Whether the Claimant is entitled
for compensation due to -do-
abnormal increase in the prices
of steel and interest @18%
thereon.
(a) Due to abnormal 62,83,000.00
rise in price of steel.
(b) Interest on 5(a) 20,70,000.00
6 Whether the Claimant is entitled
for compensation due to -do-

PDP 5-APP-627-2013.doc

    abnormal increase in the prices
    of cement and interest @ 18%
    thereon.
         (a) Cement price                 28,00,000.00
         (b) Interest on 6(a)              9,24,000.00

7 Whether the Claimant is entitled -do-
for refund of WCT (Work
Contract Tax) deducted from
bills and interest @ 18%
thereon.
(a) Unauthorised recovery 30,80,000.00
from third escalation bill
against WCT.
(b) Interest on 7(a) 6,55,000.00
(c) WCT tax on RMC 26,00,000.00
increased from 1.4.01,
from 3% to 15.3%
(d) Interest on 7(c) 18,72,000.00
(e) Interest @18% per To be
annum on WCT calculated
amounts for the period
between recovery and
reimbursement.
8 Whether the Claimant is entitled 3,40,800.00 -do-
for interest @18% on delayed
refund of S.D.
9 Whether the Claimant is entitled -do-
for refund of unauthorised
recovery against steel without
giving proper notice and interest
@18% thereon.
(a) for 11.5 MT steel 2,69,100.00
(b) interest on 9(a) 1,45,310.00
10 Whether the Claimant is entitled 16,416.00 -do-
for refund of recovery of
premium of CAR policy for
extended period of contract.
11 Whether the Claimant is entitled -do-
for refund of recovery of BEST
deposit and interest @18%
thereon
(a) amount recovered 2,16,000.00
(b) Recovery of interest 75,085.00
against electricity
connection.
12 Whether the Claimant is entitled 5,22,865.00 -do-
for refund of unauthorised
recovery from second escalation

PDP 5-APP-627-2013.doc

    bills.

13 Whether the Claimant is entitled 18,48,000.00 -do-
for interest @ 18% p.a. For the
delayed payment of escalation
bill.
14 Whether the Claimant is entitled 35,00,000.00 -do-
for payment due to lass suffered
on account of unauthorised
disconnection of power supply
(a) idling charges.
15 Whether the Claimant is entitled 55,85,470.00 -do-
for payment of damages on
account of idling of labour
16 Whether the claimant is entitled 55,85,470.00 -do-
for payment of damages on
account of
idling/under utilized machinery,
tools and plants
17 Whether the claimant is entitled 27,92,736.00 -do-
for payment of damages on
account of underutilized over
heads
18 Whether the claimant is entitled 67,02,570.00 -do-
for payment of damages due to
underutilization of shuttering,
scaffolding.
19 Whether the claimant is entitled 1,11,70,940.00 -do-
for payment of lost opportunity
20 Whether the claimant is entitled To be -do-
for interest @18% on the claim calculated
amount from 1.12.05 till the date
of actual payment
21 Whether the claimant is entitled 5,00,000.00 -do-
for the payment of legal cost.

1. Upon perusal of the Hindrance register produced by the respondent-Company, the learned arbitral Tribunal held that the respondent-Company shall be entitled for compensation. The respondent-Company was held entitled for compensation on account of delay in payment of the final bill and failure to return the security deposit on time. The Arbitrator further held that the recovery of works

PDP 5-APP-627-2013.doc

contract tax was unjust and beyond the scope of the contract. As
regards the escalation in price of steel, the said claim was granted
considering the contract stipulated that the respondent-Company
shall be entitled in case of price escalation. The Arbitrator granted
claims with respect to idle labour and machinery charges and car
insurance because the delay was not attributable to the respondent-
Company. The Arbitrator referred to the decisions of the Hon'ble
Supreme Court in " Secretary, Irrigation Department, Government of
Orissa & Ors. v. G. C. Roy " AIR 1992 SC 732 and "Manalal
Prabhudayal v Oriental Insurance Co. Ltd " 2006 (3) Arb. LR 364 (SC)
and held that there is no prohibition on award of interest. The
Arbitrator fixed the rate of interest at 9% simple interest per annum
considering the prevailing rates of interest. The Arbitrator allowed the
following claims:-

(i) Interest for delayed payment of bills;

(ii) Additional rates for quantities executed beyond 25% and interest
thereon (cost of work and interest thereon);

(iii) Additional items executed but not paid and interest thereon;

(iv) Additional costs involved on account of time restriction by Road
Transport Officer (RTO) and the police on the movement of vehicles
carrying construction materials and concrete and interest thereon;

(v) Compensation due to abnormal increase in the price of steel and
interest thereon;

(vi) Refund of work contract tax deducted from bills and interest
thereon (unauthorised recovery from third escalation bill against WCT);

(vii) Interest on delayed refund of Security Deposit;

(viii) Refund of recovery of premium of CAR policy for extended period
of contract;

(ix) Interest for delayed payment of escalation bill;

(x)Damages on account of idling of labour;

(xi) Damages on account of idling/ underutilized machinery, tools and
plants;

(xii) Damages on account of underutilized overheads; and

(xiii) Interest on the claim amount from 1 st December 2005 until actual
date of payment.

PDP 5-APP-627-2013.doc

1. The sole Arbitrator made the award dated 8 th September 2007 in the following terms:-

"17. In view of above, a total amount of Rs.2,21,60,533/- towards Claim
No.1 to Claim No.21 is awarded. The claim wise amount is summarized as
under: -
Claim No. Claim amount Claim amount Award
referred (Rs) as per claim amount (Rs)
statement (Rs)
1 7,32,198/- 47,27,341/- 6,64,048/-
2a 22,00,000/- 40,87,218/- 18,38,862/-
2b 18,48,000/- 26,41,957/- 7,67,234/-
3a 10,00,000/- 11,86,417/- 5,02,974/-
3b 6,60,000/- 7,93,822/- 1,69,697/--
4a 35,00,000/- 35,00,000/- 5,76,000/-
4b 11,55,000/- 12,07,500/- 99,360/-
5a 62,83,000/- 36,49,749/- 23,32,358/-
5b 20,70,000/- 29,42,937/- 11,81,113/-
6a 28,00,000/- 23,08,322/- NIL
6b 9,24,000/- 19,54,254/- NIL
7a 30,80,000/- 39,23,779/- 39,23,779/-
7b 6,65,000/- 10,63,118/- 5,21,938/-
7c 26,00,000/- 7,53,942/- NIL
7d 18,72,000/- 5,41,409/- NIL
7e To be 2,35,102/- NIL
calculated
8 3,40,800/- 2,40,795/- 1,19,955/-
9a 2,69,100/- 2,41,584/- NIL
9b 1,45,310/- 1,60,399/- NIL
10 16,416/- 16,416/- 16,416/-
11a 2,16,000/- 80,000/- NIL
11b 75,085/- 3,314/- NIL
12 5,22,865/- 0 NIL
13 18,48,000/- 0 91,576/-
14 35,00,000/- 7,50,000/- NIL
15 55,85,470/- 59,19,341/- 34,98,608/-
16 55,85,470/- 11,170,946/- 17,04,750/-
17 27,92,736/- 55,85,473/- 11,36,500/-
18 67,02,570/- 0 NIL
19 11,170,940/- 11,170,940/- NIL

PDP 5-APP-627-2013.doc

    Total (1-19)             67,359,960/-     7,08,56,075/-             1,91,45,169/-
            20                   To be             To be                 30,15,364/-
                              calculated        calculated
             21               5,00,000/-        5,00,000/-                   NIL
        G.Total                                                         2,21,60,533/-

1. The respondents shall pay above amount awarded to the claimants
   within 30 days from the date of this award towards final settlement of all the
   claims which have been referred to me for adjudication failing which the
   award amount shall attract a simple interest @ 9% per annum from the date of
   award.

2. The above award is declared on this day of 8 th September 2007 at
   Mumbai and I have signed each page of the award including annexure-1."

3. Aggrieved thereby, the MTNL preferred the Arbitration Petition
   No.440 of 2007 which came to be partly allowed by the judgment
   dated 7th March 2013. The respondent-Company has not laid a
   challenge to a part of the judgment by which the award made in its
   favor on eight specific claims has been set aside.

1. The specific claims which were granted under the impugned award and challenged before the learned Single Judge can be broadly listed as under :-

a) Payment of additional costs due to time restrictions by the Authorities;

b) Damages on account of idling machinery, labour and plants and under
utilisation of the overheads;

c) Additional rate for quantities beyond 25%;

d) Recovery of Work Contracts Tax;

e) Compensation for escalation in the price of steel and interest on
delayed payment thereof;

f) Interest 18% p.a. on the delayed payment as well as interest on the
delayed return of security deposit;
g) Payment of additional items ;
h) Grant of interest for the amount awarded.
8. A learned Single Judge of this Court partly set aside the award
dated 8th September 2007 to the extent the Arbitrator had awarded
the claims under the claim nos. 2a, 2b, 4a, 4b, 15, 16 and 17. While

PDP 5-APP-627-2013.doc

examining the legality of the award dated 8 th September 2007, the
learned Single Judge referred to the decisions in " Oil & Natural Gas
Corporation Ltd. v. Saw Pipes Ltd. " (2003) SCC 705, "G.C. Roy" and
"M/s. Bombay Ammonia Pvt. Ltd. v. Union of India " AIR 1987 Delhi
148, and held that the compensation towards payment for additional
cost with interest on account of time restriction by the Road
Transport Officer (RTO) and on the movement of vehicles were not
covered under the contract. The learned Single Judge referred to the
relevant stipulation in the contract vide clause 3.3 and held that the
respondent-Company having visited the site and acquainted itself
with the site condition is not entitled for compensation on account of
restriction on movement of vehicles. The learned Single Judge
interfered with the compensation granted to the respondent-Company
on account of (i) damages for idling machinery, labour and plants and
under utilisation of the overheads, (ii) additional rate for quantities
beyond 25% and (iii) recovery of work contracts tax.

1. The learned Single Judge approved the grant of compensation to the respondent-Company under the head nos.1, 3a, 3b, 5a, 5b, 7a, 7b, 8, 10 and 13. The learned Single Judge held that the scope of section 34 of the Act of 1996 is confined to the situation where the Arbitrator travels beyond the terms of the contract or the findings rendered by the Arbitrator are perverse or without any reason. The learned Single Judge further held that the decision of the Arbitrator if confined within the terms of the contract is not liable to interference under a petition under section 34. The operative portion of the order dated 7th March 2013 passed by the learned Single Judge is extracted below:

"18. In view of the above position, the Arbitration Petition is disposed
by setting aside the award of the Arbitrator granting claim Nos. 2a,

PDP 5-APP-627-2013.doc

2b, 4a, 4b, 14, 15, 16, 17. Rest of the award stands confirmed. The
grant of interest @ 9% p.a. is confirmed, and the interest 9% p.a. will
be chargeable on the amounts claims which have been upheld, and
the final amount due will have to reworked accordingly."
10. Mr. Sayeed Akhtar, the learned counsel for the MTNL contends
that the award of compensation by the Arbitrator for the price of steel
must be based on the date when the contract was entered into
between the parties and the price of steel could not have been
ascertained by the Arbitrator as on the date of the award. The
learned counsel for the MTNL further submits that if this claim
awarded to the respondent-Company is found unsustainable, then
the amount of interest awarded thereon shall also be liable for
interference. The learned counsel for the MTNL has further submitted
that the Arbitrator erroneously referred to another contract for
awarding interest on the claims made by the respondent-Company.
On the other hand, Mr Aditya Pimple, the learned counsel for the
respondent-Company supported the findings in the impugned
judgment and sought dismissal of the present petition.

1. The Arbitration and Conciliation Act, 1996 has been enacted on the pattern of the United Nations Commission on International Trade Law and the Model Law on International Commercial Arbitration. The object behind the Act is to promote resolution of dispute through arbitration. Section 5 of the Act provides that no judicial authority shall intervene with an award prepared under this Act notwithstanding anything contained in any other law for the time being in force, except as provided under Part I of the Act. This legislative intent is further manifest in the limited grounds under section 34(2) of the Act to assail the arbitral award.

PDP 5-APP-627-2013.doc

1. Having regard to the object behind the Act, the learned Single Judge rightly held that the interference with the arbitral award can be on a very limited ground where the Arbitrator travels beyond the terms of the contract or makes an award where no evidence is produced before him. As regards the appellant's objection that the Arbitrator has taken a wrong value of the price of steel, a perusal of the award indicates that the Tribunal has noted the appellant's admission wherein the rate of steel was quantified at Rs. 2,382.80 per quintal (Rs.23, 827/- per metric tonne) and also the evidence that on 13th January 2000, the appellant awarded a separate contract to the third party @ Rs 23,000/- per metric tonne. The Tribunal rejected the respondent's claim of wastage and quantified the rate at Rs. 23,100/- per metric tonne. The learned Single Judge has held that the rate fixed by the Tribunal was not grossly unrealistic and was a matter of fact-finding exercise. The learned Single Judge in the impugned judgment considered the admission of the appellant as well as terms of the agreement and held as under:

(iii) Though the Petitioner itself admitted at Exhibit C-119 that the
increased price of steel as Rs.23,827 per metric tonne, the Arbitrator
granted the rate Rs. 23,100/- per metric tonne. The Arbitrator under
the terms of the agreement and terms of the reference was entitled to
this view and merely because another view regarding rate is possible,
the award in respect of this claim cannot be interfered with.
Considering the rate quoted by the Petitioner itself, the fixation of
market rate also does not appear to be grossly unrealistic. Arriving at
a relevant market rate is a pure fact finding exercise and if the
Arbitrator has taken into consideration the relevant parameter, the
finding cannot be disturbed as it will be exercising appellate
jurisdiction. Once the finding of the Arbitrator that the Petitioner was
entitled for compensation due to escalation in the price of steel is
upheld, then the grant of interest @ 9% p.a. on the said amount will
have to held as fair and proper."

1. It is settled law that arbitral Tribunal is the master of quantity and quality of evidence. The learned Single Judge rightly held that the

PDP 5-APP-627-2013.doc

Arbitrator has taken a reasonable view in the matter and the findings
of fact in respect to the claims allowed cannot be disturbed. In our
view, this Court cannot undertake an independent assessment on the
merits of the awarded claims approved by the learned Single Judge
and re-appreciate the evidence on record. The discussions on the
claims approved by the Court indicate that the Arbitrator has duly
considered the evidence on record and assigned reasons for arriving
at his conclusions. The view taken by the Arbitrator is a plausible
view which has been upheld by the learned Single Judge. No case has
been made out for interference within the limited jurisdiction under section 37 of the Act. In " National Highways Authority of India v.
Hindustan Construction Co. Ltd. " (2024) 6 SCC 809, the Hon'ble
Supreme Court while dealing with the contours of an appeal filed
under section 37 has held :

"10. ...In this case, we are dealing with concurrent findings arrived
at by the Arbitral Tribunal, the learned Single Judge in a petition
under Section 34 of the Arbitration Act, and the Division Bench in
appeal under Section 37 of the Arbitration Act. In this case, we are
concerned with the construction of the terms of a contract between
the parties. In Parsa Kente Collieries Ltd. v. Rajasthan Rajya Vidyut
Utpadan Nigam Ltd., in paras 9.1 and 9.2, this Court held thus :

(SCC pp. 244-45, para 9)
"9. ... 9.1. In Associate Builders, this Court had an occasion to
consider in detail the jurisdiction of the Court to interfere with
the award passed by the arbitrator in exercise of powers under Section 34 of the Arbitration Act. In the aforesaid decision, this
Court has considered the limits of power of the Court to interfere
with the arbitral award. It is observed and held that only when
the award is in conflict with the public policy in India, the Court
would be justified in interfering with the arbitral award. In the
aforesaid decision, this Court considered different heads of
"public policy in India" which, inter alia, includes patent illegality.
After referring Section 28(3) of the Arbitration Act and after
considering the decisions of this Court in McDermott
International Inc. v. Burn Standard Co. Ltd., SCC paras 112-113
and Rashtriya Ispat Nigam Ltd. v. Dewan Chand Ram Saran,
SCC paras 43-45, it is observed and held that an Arbitral

PDP 5-APP-627-2013.doc

         Tribunal must decide in accordance with the terms of the
         contract, but if an arbitrator construes a term of the contract in a
         reasonable manner, it will not mean that the award can be set
         aside on this ground. It is further observed and held that
         construction of the terms of a contract is primarily for an
         arbitrator to decide unless the arbitrator construes the contract in
         such a way that it could be said to be something that no fair-
         minded or reasonable person could do. It is further observed by
         this Court in the aforesaid decision in para 33 that when a court
         is applying the "public policy" test to an arbitration award, it does
         not act as a court of appeal and consequently errors of fact
         cannot be corrected. A possible view by the arbitrator on facts
         has necessarily to pass muster as the arbitrator is the ultimate
         master of the quantity and quality of evidence to be relied upon
         when he delivers his arbitral award. It is further observed that
         thus an award based on little evidence or on evidence which does
         not measure up in quality to a trained legal mind would not be
         held to be invalid on this score.

9.2. Similar is the view taken by this Court in NHAI v. ITD
Cementation (India) Ltd.4, SCC para 25 and SAIL v. Gupta
Brother Steel Tubes Ltd., SCC para 29."

(emphasis supplied)

1. This Court laid down the law regarding the scope of interference
   in a petition under Section 34 of the Arbitration Act in MMTC Ltd. v.
   Vedanta Ltd. Para 11 reads thus : (SCC pp. 166-67)

        "11. As far as [Section 34](https://indiankanoon.org/doc/1722761/) is concerned, the position is well-settled
        by now that the Court does not sit in appeal over the arbitral
        award and may interfere on merits on the limited ground
        provided under [Section 34(2)(b)(ii)](https://indiankanoon.org/doc/1722761/) i.e. if the award is against the
        public policy of India. As per the legal position clarified through
        decisions of this Court prior to the amendments to the 1996 Act
        in 2015, a violation of Indian public policy, in turn, includes a
        violation of the fundamental policy of Indian law, a violation of
        the interest of India, conflict with justice or morality, and the
        existence of patent illegality in the arbitral award. Additionally,
        the concept of the "fundamental policy of Indian law" would
        cover compliance with statutes and judicial precedents,
        adopting a judicial approach, compliance with the principles of
        natural justice, and Wednesbury reasonableness. Furthermore,
        "patent illegality" itself has been held to mean contravention of
        the substantive law of India, contravention of the 1996 Act, and
        contravention of the terms of the contract."
   

(emphasis supplied)

1. This Court, in UHL Power Co. Ltd. v. State of H.P. held that the jurisdiction of the Court under Section 34 is relatively narrow and the

PDP 5-APP-627-2013.doc

   jurisdiction of the appellate court under [Section 37](https://indiankanoon.org/doc/1656413/) of the Arbitration Act is
   all the more circumscribed. In the light of the limited scope for interference
   under [Section 37](https://indiankanoon.org/doc/1656413/) appeal, we will have to deal with the submissions."

1. As to award of interest, sub- section 7 of section 31 provides as under: -

"(7) (a) Unless otherwise agreed by the parties, where and insofar as
an arbitral award is for the payment of money, the arbitral tribunal
may include in the sum for which the award is made interest, at such
rate as it deems reasonable, 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.

(b) A sum directed to be paid by an arbitral award shall, unless the
award otherwise directs, carry interest at the rate of two per cent.
higher than the current rate of interest prevalent on the date of award,
from the date of award to the date of payment."

1. This is thus quite apparent that the Arbitrator can award interest unless the parties had otherwise agreed. In " Delhi Airport Metro Express Private Limited v. Delhi Metro Rail Corporation Limited "

(2022) 9 SCC 286, the Hon'ble Supreme Court held as under:-

"20. If clause (a) of sub-section (7) of Section 31 of the 1996 Act is given
a plain and literal meaning, the legislative intent would be clear that the
discretion with regard to grant of interest would be available to the
Arbitral Tribunal only when there is no agreement to the contrary
between the parties. The phrase "unless otherwise agreed by the
parties" clearly emphasises that when the parties have agreed with
regard to any of the aspects covered under clause (a) of sub-section (7)
of Section 31 of the 1996 Act, the Arbitral Tribunal would cease to have
any discretion with regard to the aspects mentioned in the said
provision. Only in the absence of such an agreement, the Arbitral
Tribunal would have a discretion to exercise its powers under clause (a)
of sub-section (7) of Section 31 of the 1996 Act. The discretion is wide
enough. It may grant or may not grant interest. It may grant interest for
the entire period or any part thereof. It may also grant interest on the
whole or any part of the money."
16. In the result, Appeal No. 627 of 2013 is dismissed. Notice of
Motion No. 694 of 2015 does not survive and stands disposed of
accordingly.

PDP 5-APP-627-2013.doc

1. The respondent-Company is permitted to withdraw the balance 50% amount which was deposited by the MTNL along with accrued interest thereon after deducting applicable charges.

[GAUTAM A. ANKHAD, J.] [CHIEF JUSTICE]

PRAVIN DASHARATH
DASHARATH PANDIT
PANDIT Date:
2026.03.26
12:02:09 +0530