Bank Of India vs Vadan Interiors Private Limited
- Neutral2025:BHC-OS:19909
Ratio decidendi
The rule this decision rests on
An arbitral award under Section 34 of the Arbitration and Conciliation Act, 1996 cannot be set aside merely because an alternative plausible view of the facts or interpretation of the contract exists; the award can only be disturbed if it is so manifestly perverse and implausible that no reasonable person could have arrived at the tribunal's conclusion. An arbitrator, as master of the evidence, has the authority to assess the quality and quantity of evidence presented, and where a party fails to challenge or counter expert evidence during arbitral proceedings, such failure precludes that party from mounting a challenge to the arbitrator's acceptance of that evidence in a Section 34 petition. Where a contractor has been kept mobilised at a work site beyond the originally contemplated contractual period due to delays attributable to the employer, and the scale of delay is substantial, compensation for additional overhead costs, material costs, labour costs, financing costs, and loss of profits may be awarded even in the absence of an express contractual provision for such compensation, relying on Section 55 of the Indian Contract Act, 1872 and the implied promise regarding the time within which deployment of resources was contemplated. A claim for loss of profits arising from delay is not automatically barred by the grant of compensation for escalation of material and labour costs; such a claim may be sustained where the claimant has adduced material showing that had payment been received timely, those funds could have been deployed in alternative projects to generate profit.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
CARBP.594.2019.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION IN ITS COMMERCIAL DIVISION
COMMERCIAL ARBITRATION PETITION NO. 594 OF 2019
Bank of India ...Petitioner
Versus
Vadan Interiors Private Limited ...Respondent
Mr. Karl Shroff a/w Rishikesh Soni, Shailesh Poria, Dinesh Pednekar, Nistha Gupta, i/b Economic Laws Practice, for the Petitioner.
Mr. Simil Purohit, Senior Advocate a/w Amrut Joshi, Yezad, Akshay Zantye, N.K. Sharma, Priya Rao & Sunil Sooden, i/b Ashish Suryavanshi, for Respondent.
CORAM : SOMASEKHAR SUNDARESAN, J. RESERVED ON : March 18, 2025 PRONOUNCED ON : November 3, 2025
JUDGEMENT:
Context and Factual Background:
1. This is a Petition filed under Section 34 of the Arbitration and
Conciliation Act, 1996 ("the Act") challenging an arbitral award dated ASHWINI JANARDAN January 7, 2019 ("Impugned Award") allowing certain claims made by VALLAKATI Digitally signed by ASHWINI JANARDAN VALLAKATI Date: 2025.11.03 15:02:50 +0530 Page 1 of 21 November 3, 2025 Ashwini Vallakati
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the Respondent, Vadan Interiors Pvt. Ltd. ("Vadan") against the
Petitioner, Bank of India ("BOI").
2. On March 9, 2012, BOI invited bids for the Interior and
Furnishing Works of its Corporate Office Building at the Bandra-Kurla
Complex ("Project"). The envisaged period of the contract was three
months in terms of the notice inviting bids and the General Conditions
of Contract ("GCC") governing the Project. However, the Special
Instructions to Bidders had indicated a timeframe of six months.
3. BOI awarded a Work Order to Vadan on March 30, 2012, which
provided that time was of the essence and work was to be completed in
three months. The parties executed an agreement dated April 11, 2012
("Agreement"), which provided at Clause 10 that Vadan would complete
the work within 22 months from the date of the Work Order.
4. The actual agreed length of time for completing the work became
the core issue in the disputes between the parties. Vadan would claim
that the agreed position between the parties and all activity including
the bidding and planning was on the basis of a three-month work period
and that the reference to 22 months in the Agreement was evidently an
inadvertent error. BOI would contend that the Agreement contained a
specific provision and that could not be ignored. Therefore, whether the Page 2 of 21 November 3, 2025 Ashwini Vallakati
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timeframe was three months or 22 months was the foundation of the
controversy before the Learned Arbitral Tribunal.
5. Had it been a three-month period, the Completion Date would
have been June 30, 2012. Had it been a 22-month period, the
Completion Date would have been January 31, 2014. Work actually
commenced on or about April 11, 2012 and was completed on August 31,
2014. The claims of cost over-runs are related to whether there has
been a time over-run and if so, to what extent.
6. Vadan would point to multiple facets of delay on the part of BOI -
delay in handing over the work front; changes in designs; varying
instructions on specific floors; delay in interface with other contractors;
piecemeal work; additional work etc. Vadan led evidence by witnesses
while BOI did not lead evidence. The Learned Arbitral Tribunal heard
the parties, reviewed the record, appreciated the evidence, and rendered
the Impugned Award.
7. The claims awarded are summarised below:
(a) Additional overhead cost for the extended period of
25 months beyond June 30, 2012 (the contract completion
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deadline) and until August 31, 2014, when it was actually
concluded: Rs. ~1.95 crores;
(b) Additional cost due to increase in material: Rs.
~49.23 lakhs;
(c) Additional cost due to increase in cost of labour --
Rs. ~32.82 lakhs;
(d) Additional expenditure by way of finance charges --
Rs. ~32.27 lakhs;
(e) Loss of profit and earning capacity - Rs. ~5.60
crores;
(f) Interest at 12% per annum pre-award award and at
9% per annum post-award; and
(g) Costs - Rs. 12 lakhs.
8. The challenge to the Impugned Award is premised on the ground
that it is not a product of a judicial approach; suffers from non-
application of mind; is based on no evidence or reasons; and runs
contrary to contractual prohibitions on the grant of claims awarded.
Contentions Against the Impugned Award:
9. I have heard Mr. Karl Shroff, Learned Advocate on behalf of BOI
and Mr. Simil Purohit, Learned Senior Advocate on behalf of Vadan. Page 4 of 21
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10. At the threshold, it may be stated that the Learned Arbitral
Tribunal has examined what would have been the precise period
contemplated by the parties as the period for completing the work. The
Learned Arbitral Tribunal noted that the notice inviting tender had
indicated a period of three months from the issue of the work order or
the first day when Vadan is handed over possession, whichever is later.
The GCC too indicated a period of three months in Clause 41 as well as
in an Appendix to the GCC. Minutes of the pre-bid meeting and the
Work Order itself also pointed to a three-month period. The work plan
submitted by Vadan and agreed upon by the parties also pointed to the
three-month period. The requirements for factoring in pricing in the
bid also stipulated factoring in a three-month timeline.
11. Going by the conduct of the parties, the work plan, the
contemporaneous correspondence, the evidence led, the cross-
examination conducted and giving the dichotomy a reconciliation by
applying the business efficacy test, and the absence of anything on the
record to indicate the basis for the Agreement moving the Completion
date from June 30, 2012 to January 31, 2014, the Learned Arbitral
Tribunal was pleased to hold that the reference to 22 months in the
Agreement was not a negotiated and agreed change of consent of the
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parties, and accepted that it was an inadvertent reference that did not
have a consequence for the agreed timeline of three months.
12. There was some reference to BOI having taken a stand that it had
opted for adopting "Green Building Measures" and accreditation from
the Green Building Council was the cause for the change from three
months to 22 months, but this was the first whisper of a ground that was
found in a letter dated December 18, 2016, in the course of
correspondence between the parties after disputes had broken out, and
well after the work had even been completed.
13. The Learned Arbitral Tribunal, which is the master of the quality
and quantity of the evidence has returned, in my opinion, a plausible
and reasonable finding in this regard and the Section 34 Court cannot
fault this finding.
14. However, the core controversy in the contentions between the
parties before me, was not so much about whether the agreed period of
the work was 22 months or three months, but about the manner in
which claims have been assessed and allowed by the Learned Arbitral
Tribunal. In fact, Mr. Shroff fairly and candidly stated that he would not
expend his allocated time on making submissions about the time period
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of evidence and the non-judicial manner of conduct of the arbitral
proceedings, which he would submit, makes it clear that the Impugned
Award is patently illegal and arbitrary.
15. The findings under each of the heads of claims allowed and
summarised above were addressed separately on behalf of BOI although
it must be stated that on a number of claims, the contentions are in the
same vein - essentially that the Learned Arbitral Tribunal had simply
accepted whatever had been presented by the chartered accountant of
Vadan whose report was sought to be relied upon as evidence by Vadan.
Additional Costs Towards Overheads:
16. Mr. Shroff would submit that in the case of additional overheads,
the additional costs were certified by the Chartered Accountant. Neither
has the basis of the Chartered Accountant having arrived at the average
expenses been explained, Mr. Shroff would contend, nor has the
Learned Arbitral Tribunal explained why the average cost should be
adopted for assessing the additional costs attributable to overheads.
17. Mr. Shroff would also find fault with the underlying bills and
vouchers that the Chartered Accountant is said to have studied to file his
evidence, have not been brought into evidence. The upshot of this
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contention is that the Learned Arbitral Tribunal has simply adopted the
data presented by the Chartered Accountant and therefore, the
Impugned Award is not an award based on evidence.
Additional Costs attributable to Materials and Labour:
18. The contentions in relation to additional costs relating to increase
in materials used is quite similar. Mr. Shroff would submit that the
Impugned Award is based on the Chartered Accountant's certification,
without stress-testing the same. He would question the basis on which
the increase in material cost is taken at 60% and the increase in
manpower cost is taken at 40%. For purposes of increase in labour cost,
the Chartered Accountant had taken the Wholesale Price Index for
commodities, which is attacked as inappropriate.
19. Under these two heads, it is also contended that the Impugned
Award is contrary to the contract inasmuch as Clause 14 of the GCC bars
price escalation. Therefore, here too the contention is that the approach
of the Learned Arbitral Tribunal has been non-judicial, rendering the
Impugned Award liable to be set aside.
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Additional Financing Costs:
20. As regards additional financing costs, Mr. Shroff would again
submit that this too is purely purported to be based on audited financial
statements. He would submit that this head is capable of specific proof
but the Learned Arbitral Tribunal has chosen to simply adopt the
computations of the Chartered Accountant, who should have deposed
on what the actuals are. He would submit that it was necessary for
Vadan to show what the financial arrangements were, how the impact of
the delay was felt, and what arrangements had been made. The actual
interest costs and financing costs and how they increased has not been
proven or explained by any witness. In a nutshell, the line of attack is
quite similar under this head too.
Loss of Profit and Earning Capacity:
21. Vadan has claimed that it had suffered a loss of profit and loss of
interest on profit due to the time over-run. The very fact that only a
portion of overheads has been taken into consideration indicates that
there were other projects underway and there was no constraint in
engaging in other projects and investing time and resources in them.
Therefore, he would contend that allowing the claim under loss of profit
and earning capacity is unsustainable.
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22. A mere listing of tenders that Vadan could have bid in and could
not achieve is no way of proving loss of opportunity, Mr. Shroff would
contend. There is no explanation of what similar projects were available
on hand and which projects could have been billed to earn Rs. 43 lakh
per month, which is the basis of the claim under this head. More
importantly, he would contend that once escalation for labour and
material has been compensated for, a further claim for loss of profits
should not be granted inasmuch as the damages awarded does
compensate for the time over-run. There was a clear need to prove how
the amount receivable under the Agreement could have been utilised on
another project, which could have earned profit.
Analysis and Findings:
23. I have examined the record and the Impugned Award from the
perspective of the challenge mounted to its validity, bearing in mind the
grounds of challenge pressed on behalf of BOI. With the benefit of their
submissions made by Learned Advocates for both parties, including
their written arguments, I have examined the record to see if the
Impugned Order deserves interference, bearing in mind the scope of
review involved under Section 34 of the Act.
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24. What becomes clear is that the three-month period envisaged for
the Project was a foundational feature of the framework in which the
contract was negotiated and arrived at between the parties. It appears
as a matter of finding on the record that Vadan mobilised at the site and
remained mobilised at the site throughout the period that the work
eventually took. That the non-availability of the work fronts was to
enable a smooth and complete implementation of Vadan's role has
evidently been well established to the satisfaction of the Learned
Arbitral Tribunal.
25. It is also evident that the causes for the same stood clearly and
plausibly established - delay in issuance of drawings; changes in design
to the ground, first, eighth, nineth and tenth floor; delay relating to the
interface with other contractors involved in the work, all stand
established. It has been reasonably and plausibly concluded by the
Learned Arbitral Tribunal that the causes for the delay are attributable
solely to BOI.
26. Now the real issue is what the compensation for the delay should
be. The core contention before the Learned Arbitral Tribunal in this
regard was that the tender was based on an item rate calculation and
both sides were responsible for their own calculations. The Project
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Management Consultant ("PMC"), whose contemporaneous
correspondence otherwise supported the contention of Vadan in
relation to the envisaged timeline being three months, had also
contemporaneously questioned the ability to claim compensation for
additional costs due to the time over-run. The issue then is about
whether there could be any claim at all for compensation for the
excessive time spent - it must be remembered that the scale of the time
over-run was about nine times (29 months) the envisaged time (three
months).
27. In this context, the Learned Arbitral Tribunal examined Section
55 of the Indian Contract Act, 1872 and imported the principles
stipulated for the implied promise held out by BOI to Vadan about the
time outlay within which the deployment of men and materials of Vadan
were meant to be contracted. The Learned Arbitral Tribunal, on review
of the multiple provisions of the contract-forming documentation, has
taken a plausible view that time was not of the essence of the contract.
Therefore, it was found that Vadan as such a promisee, was not expected
to work on deployment of resources beyond three months, and was
entitled to be compensated.
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28. The Learned Arbitral Tribunal found that Vadan did not accept
the delay without demur and had constantly been reminding BOI about
the delay leading to incurring of further expense. It is in response to
such correspondence that the PMC wondered which provision of
contract enabled such a claim. This gap is what has been sought to be
filled by the Learned Arbitral Tribunal, which found the claims for
potential compensation due to the delay between September 2012 and
April 2013. Therefore, the Learned Arbitral Tribunal took the view that
the absence of a provision indicating the compensation payable in such
a situation would not denude the power to assess damage and award
compensation when adjudicating the dispute, among others, in reliance
of the judgement of the Supreme Court in K. Satyapalan1 where the
Supreme Court reversed the setting aside of an arbitral award, which
had been done on the premise that the contract had not provided for
compensation. The sheer scale of the delay is stark in these proceedings
and in the aforesaid judgement, the scale of the delay is what had
weighed with the Supreme Court in upholding the arbitral award and
setting aside the intervention by the High Court.
29. It was apparent that the Chartered Accountant had relied upon
audited financial statements that were underlying the evidence led by
1 KN Sathyapalan vs. State of Kerala - (2007) 13 SCC 43 Page 13 of 21 November 3, 2025 Ashwini Vallakati
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the chartered accountant and his certifications that were pressed into
evidence. The audited financial statements were made available. BOI is
itself a banking and financial services provider and is financially literate
and is sophisticated enough to have countered and confronted such
evidence. BOI could have led evidence or any expert just to dispel the
conclusions drawn in the evidence led by Vadan. BOI could have sought
summoning of documentary evidence underlying the financial
certifications made by the Chartered Accountant witness. There had
been no specific disputed denial of any certification by BOI apart from
the general denial of anything not admitted. The Chartered Accountant
was available for cross examination. The Learned Arbitral Tribunal has
articulated its approach and thought process as to why the certificates
issued by the Chartered Accountant were acceptable.
30. When Vadan sought to file a fresh affidavit asking for
enhancement of the profit margin to 7% from 5% at the fag end of the
proceedings, the Learned Arbitral Tribunal disallowed it. The Learned
Arbitral Tribunal found that BOI did not counter the contents of the
certifications. Such countering is being done now, but BOI's time to
challenge the certification was during the arbitral proceedings. I am
afraid that while it is very tempting to examine the facets of review ably
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to remember that this jurisdiction is not an appellate jurisdiction and it
is not open to this Court to substitute one plausible view with another
plausible view. The approach that Mr. Shroff would cancel would
constitute another plausible approach to the appreciation of evidence.
The question to ask really is whether what the Learned Arbitral Tribunal
has done is so implausible or so perverse that the Impugned Award is
rendered manifestly arbitrary and untenable. I am unable to bring
myself to agree that such standard has been met.
31. On reflection, I am of the view that the contentions now being
raised on behalf of BOI seek to raise doubt about the approach of the
Learned Arbitral Tribunal but they do not add up to the standard
stipulated for the Section 34 Court when assessing whether an arbitral
award is vulnerable to be set aside. An arbitral award does not have to
be proven beyond reasonable doubt for a Section 34 Court to uphold it.
On the contrary, an arbitral award cannot be disturbed unless it is so
manifestly perverse and implausible that no reasonable person could
have ever come to the view returned by the Learned Arbitral Tribunal.
That standard has not been met.
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32. The following extract from the Supreme Court's articulation of the
framework in Konkan Railway2, which in turn extracts from the
Supreme Court judgement in Dyna3 would be appropriate to quote:
15. Therefore, the scope of jurisdiction under Section 34 and Sec-
tion 37 of the Act is not akin to normal appellate jurisdiction. It is well- settled that courts ought not to interfere with the arbitral award in a casual and cavalier manner. The mere possibility of an alternative view on facts or interpretation of the contract does not entitle courts to reverse the findings of the Arbitral Tribunal. In Dyna Technologies Private Limited v. Crompton Greaves Limited (2019) 20 SCC 1, this Court held:
"24. There is no dispute that Section 34 of the Arbitration Act limits a challenge to an award only on the grounds provided therein or as interpreted by various courts. We need to be cognizant of the fact that arbitral awards should not be interfered with in a casual and cavalier manner, unless the court comes to a conclusion that the perversity of the award goes to the root of the matter without there being a possibility of alternative interpretation which may sustain the arbitral award. Section 34 is different in its approach and cannot be equated with a normal appellate jurisdiction. The mandate un- der Section 34 is to respect the finality of the arbitral award and the party autonomy to get their dispute adjudicated by an alternative forum as provided under the law. If the courts were to interfere with the arbitral award in the usual course on fac-
2 Konkan Railway Corporation Ltd. Vs. Chenab Bridge Project Undertaking - (2023) 11 SCR 215 3 Dyna Technologies Private Limited v. Crompton Greaves Ltd - (2019) 20 SCC 1 Page 16 of 21 November 3, 2025 Ashwini Vallakati
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tual aspects, then the commercial wisdom behind opting for al- ternate dispute resolution would stand frustrated.
25. Moreover, umpteen number of judgments of this Court have categorically held that the courts should not interfere with an award merely because an alternative view on facts and interpretation of contract exists. The courts need to be cautious and should defer to the view taken by the Arbitral Tribunal even if the reasoning provided in the award is implied unless such award portrays perversity unpardonable under Section 34 of the Arbitration Act."
[Emphasis Supplied]
33. To adopt the aforesaid principle, to my mind the Impugned
Award does not betray any unpardonable perversity for it to be
interfered with.
34. One argument of Mr. Shroff that was quite appealing was that,
when compensation for escalation of materials and labour deployed is
already provided, it need not be appropriate to award compensation for
loss of opportunity and profits. Towards this end, I have closely
examined the decision of the Supreme Court in Bharat Coking Coal4 that
has been invoked by him on behalf of BOI. The following extract is
noteworthy:
4
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24. Here when claim for escalation of wage bills and price for materials compensation has been paid and compensation for delay in the payment of the amount payable under the contract or for other extra works is to be paid with interest thereon, it is rather difficult for us to accept the proposition that in addition 15% of the total profit should be computed under the heading "Loss or Profit'. It is not unusual for the contractors to claim loss of profit arising out of diminution in turnover on account of delay in the matter of completion of the work. What he should establish in such a situation is that had he received the amount due under the contract, he could have utilised the same for some other business in which he could have earned profit.
Unless such a plea is raised and established, claim for loss of profits could not have been granted. In this case, no such material is available on record. In the absence of any evidence, the arbitrator could not have awarded the same. 'This aspect was very well settled in Sunley (B) & Co. Lid. v. Cunard White Star Ltd. By the Court of Appeal in England. Therefore, we have no hesitation in deleting a sum of Rs 6,00,000 awarded to the claimant.
[Emphasis Supplied]
35. From the foregoing, it will be seen that the Supreme Court did not
lay down an absolute proposition in Bharat Coking Coal that there can
never be a claim permitted for loss of profits when compensation for
deployment of men and material is permitted for an inordinate delay.
In the facts of that case, there had been no material on record to
establish that had the contractor received money in time, he could have
deployed it elsewhere. In the facts of this case, a list of other tenders in
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which Vadan could have participated was indeed provided and
appreciated by the Learned Arbitral Tribunal.
36. The financial statements based on which the Chartered
Accountant certified his computations were available and whatever was
not available could have been summoned. The reasoning adopted by
the Learned Arbitral Tribunal being a plausible one, and taking into
account the sheer scale of the delay and the cogent articulation of how
the delay was attributable to BOI, the standard necessary for me to
interfere on this facet of the Impugned Award, in my opinion, has not
been met.
37. In these circumstances, having considered the clearly articulated
opposition and objection to the Impugned Award presented by Mr.
Shroff, I am unable to find in his favour that the standard stipulated in
law for my intervention has been attracted. The Learned Arbitral
Tribunal is the master of the evidence and is the best arbiter of the
quality and quantity of the evidence. I am not satisfied that he has
abandoned judiciousness in his approach to the matter and has blindly
adopted whatever has been given to him by the Chartered Accountant.
BOI had a full opportunity to deal with all the material that was part of
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the mix before the Learned Arbitral Tribunal. The Impugned Award is a
product of such due process followed by the Learned Arbitral Tribunal.
38. There is one other element that Mr. Shroff mentions as betraying
non-application of mind - the Learned Arbitral Tribunal has stated that
three questions need to be considered (in internal page 79 of the
Impugned Award - Page 132 of the Paperbook) and has not answered
them. I have carefully examined this contention and note that it can be
said that the discussion preceding this portion would be indicative of the
fact that the Learned Arbitral Tribunal meant to state these as rhetorical
questions having explained his position on why he approves of the
claim. While this can be put to drafting inelegance, to my mind it is not
reflective of such a fundamental and gross analytical error as to betray
abandonment of a judicial mind and utter non-application of mind.
39. Therefore, while the facets where Mr. Shroff had initially made a
dent in mind were attractive to examine, on reflection, I am not
persuaded to intervene and disturb the Impugned Order.
40. In the result, I am not satisfied that any interference is called for
with the Impugned Award. Therefore, the Petition is dismissed.
Interim Applications, if any are pending, would also stand accordingly
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in connection with these proceedings shall stand released to Vadan
within a week of the expiry of four weeks from the upload of this
judgement on the website of this Court.
41. All actions required to be taken pursuant to this order shall be
taken upon receipt of a downloaded copy as available on this Court's
website.
[SOMASEKHAR SUNDARESAN, J.]
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