Madras High Court
Southern Railway vs M/S.Sri N.Jayachandran on 5 November, 2025
Author: N.Anand Venkatesh
Bench: N.Anand Venkatesh
1 OP No. 918 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 30.10.2025
PRONOUNCED ON : 05.11.2025
CORAM
THE HONOURABLE MR.JUSTICE N.ANAND VENKATESH
OP No. 919 of 2018
1.Southern Railway
Rep.by The Chief Engineer (South)
Office of the Chief Administrative
Office / Construction 183,
E.V.R.Periyar High Road, Egmore,
Chennai-600 008.
2. The Deputy Chief Engineer
Gauge Conversion Unit-I,
Southern Railway, State Bank Road,
..Petitioner(s)
(MC Donalds Road), Tricchy-620 001.
.Vs.
M/s.Sri N.Jayachandran
M/s.Nilakantan and Son Pvt.Ltd.,
No.2, First Floor, Gokul Towers, No.7,
C.P.Ramasamy Road, Alwarpet,
Chennai-600 018.
Respondent(s)
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2 OP No. 918 of 2018
PRAYER
Original Petition filed under Section 34 of the Arbitration and
Conciliation Act, 1996, to set aside the arbitral award passed by the Learned
Arbitrator herein dated 05.03.2018 made in relation to disputes arising out of
Agreement No.168/CN/05 dated 03.06.2005 is concerned.
For Petitioner(s): Mr. P.T. Ramkumar
For Respondent(s): Mr. K.Harishankar
ORDER
This Original Petition has been filed under Section 34 of the Arbitration
and Conciliation Act, 1996 (for brevity, herein after referred to as 'the Act')
against the award dated 05.03.2018 passed by the Sole Arbitrator.
2.The Respondent is a construction Company involved in infrastructure
projects. They were awarded a contract relating to the work of construction of
Bridge No.42 at km 82/6-7(5 x 19.2m) PSC Box girder and strengthening of
existing substructure between Kuttakkudi-Pukkaravari stations as part of
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Cuddalore, Vriddhachalam-Salem gauge conversion project vide Agreement No.
168/CN/05 dated 03.06.2006. The project was to be completed within a period
of eight months. However, due to various reasons, it was extended from time to
time and ultimately it ended in the termination of contract by the Petitioners on
29.1.2007.
3.The dispute was referred to the Sole Arbitrator and the Respondent
made various claims pertaining to the payment of compensation, losses, claim
for final bill, etc.
4.The substantiation made by the Respondent/Claimant, the defence that
was raised by the Petitioner/Railways and the findings rendered by the Arbitral
Tribunal are tabulated hereunder:
S. No. Description of Substantiation made by the Defence raised by Findings
Claim Claimant the Respondent rendered in the
Arbitral Award
Claim 1 Loss of profit The Claimant claimed Rs. The Respondent The Tribunal
due to defaults 22,48,034/- (15% of the denied the liability and held that the
and breaches of unfinished work value) as loss stated that the Respondent’s
contract by of profit and alleged that Claimant was the breaches
Respondent Respondent’s defaults and defaulting contractor justified
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breaches obstructed smooth and not entitled for any compensation
execution and completion of compensation. for loss of profit
the project. and accepted
the 15% rate as
reasonable but
recalculated the
base value of
work.Ultimately,
the Tribunal
awarded Rs.
19,20,975/- to
the Claimant.
Claim 2 Losses due to The Claimant claimed Rs. The Respondent The Tribunal
Infructuous 41,26,200/- towards loss from denied the claim, held that the
Overheads under-utilized overheads, contending that the audited
stating that Respondent’s Claimant was the accounts were a
delays extended the contract defaulting party and reliable basis
from 8 to 24 months, causing not entitled to over theoretical
financial loss due to prolonged compensation. formulae.
site presence and idle Therefore, it
resources. allowed
compensation
only for the 16-
month extended
period and
thereby rejected
the separate
claim for profit
and awarded
Rs. 14,43,438/-.
Claim 3 Damages due to The Claimant did not pursue - Since the
Non-availability this as an independent claim. Claimant chose
of Part of the The issues pertaining to the not to make a
Site non-availability of part of the distinct and
site were merged with other separate claim
claims, specifically those for for damages
loss of infructuous overheads due to the non-
and extended use of availability of
machinery and labour. part of the site,
the Tribunal
made no award
under this claim.
Claim 4 Losses due to The Claimant claimed Rs. The Respondent The Tribunal
Extended Use 49,46,467/- for losses from denied liability, held that the
of Machinery, extended detention of disputing the Claimant was
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Equipment, machinery and equipment at machinery list and entitled to
Materials and site for 16 months due to asserted that the compensation
Infrastructure delays caused by the Claimant was at as the extended
Respondent, which prevented default. retention
their profitable use elsewhere. resulted from
the
Respondent’s
breaches.
However,
considering
partial fault on
the Claimant’s
part, awarded
50% of the claim
amounting to
Rs. 24,73,234/-.
Claim 5 Losses due to The Claimant claimed The Respondent The Tribunal
Extended Use compensation for additional denied the claim and held that though
of Labour costs incurred in maintaining stated that the such
labour at site beyond the Claimant was at fault compensation is
contract period due to and failed to produce valid in principle,
Respondent’s delay and mandatory labour the claim lacked
asserted that labour records registers as proof of credible
were held by the Department continued deployment. evidence and
and thus not available for quantifiable
production after a decade. proof and noted
that labour could
have been
reduced during
slow progress.
Therefore, the
Tribunal rejected
the claim in
entirety.
Claim 6 Final Bill The Claimant claimed unpaid The Respondent The Tribunal
dues under the final bill for denied the claim, held that the
executed works not measured contending that the Respondent’s
or settled, along with refund of Claimant failed to records were
retention, security deposit, and attend final unreliable and
bank guarantee commission - measurements and accepted the
totalling Rs. 21,64,003/-, along was not entitled to Claimant’s
with the return of Rs. payment due to version as
2,50,000/-(bank guarantee). contractual default. consistent and
The Respondent credible.
further objected to Awarded Rs.
refund the EMD and 21,64,003/- and
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security deposits. directed return
of the Bank
Guarantee (Rs.
2,50,000/-),
holding that the
Claimant was
not at fault.
Claim 7 Damages for The Claimant alleged that the The Respondent did The Tribunal
Use of Respondent used their not deny using the held that while
Claimant’s machinery, infrastructure, and Claimant’s assets for the claim had
Machinery and launching trolley by handing completing the merit in
Infrastructure for them over to a new contractor remaining work. principle, the
Balance Work after termination and sought Claimant failed
after compensation equivalent to to quantify or
Termination 50% of the new contractor’s substantiate it
profit margin. with evidence or
documents.
Since no reliable
data was
provided, no
award was
granted under
this claim.
Claim 8 Consultancy The Claimant incurred The Respondent The Tribunal
Fees for consultancy expenses for denied liability,that the held that
Preparation of preparing the bridge’s Claimant had no prior payment was
Designs and foundation and substructure sanction to engage a justified since
Drawings for designs, which were ultimately consultant. the Claimant’s
Foundation and adopted and used by the consultant’s
Substructure Respondent for construction. drawings were
They sought reimbursement of used in
Rs. 5,88,312/-, calculated at execution.
3% of the total contract value. However, it
limited the
entitlement to
the foundation
and
substructure
portion (40% of
total work) and
applied a 5%
consultancy rate
on that value.
Accordingly, Rs.
3,92,208/- was
awarded
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towards the
claim
Claim 9 Damages due to The Claimant claimed 18% The Respondent The Tribunal
Non-payment / interest per annum as denied the claim and held that
Delay on damages for financial loss and relied on Clause 7.3 of compensation
Various Claims hardship caused by non- the agreement and for delayed
payment of dues since 2007. GCC that explicitly payment was
barred payment of justified despite
interest on any contractual bar
amounts, including and found 18%
Earnest Money as excessive
Deposits and awarded
7% simple
interest from
19.01.2007 till
actual payment.
Claim Cost of The Claimant sought As per law, the cost of The Tribunal
10 Arbitration reimbursement of the actual Arbitration is to be directed that
cost of Arbitration proceedings, equally borne by both each party shall
as they were compelled to parties. Since the bear its own
initiate Arbitration due to the proceedings were costs of the
Respondent’s actions. initiated by the Arbitration
claimant, he is bound proceedings.
by the prescribed rule Consequently,
for sharing the cost. no amount is
payable by
either party to
the other under
this claim.
5.This Court has carefully considered the submissions made on either side
and perused the materials available on record.
6.Before this Court proceeds to consider the grounds raised in this
petition, this Court must bear in mind that the Arbitrator was a former CAO of
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Southern Railways (Chief for all Chief Engineers), Additional Member of
Railway Board, Director of Chennai Metro and Advisor of Nagpur Metro and
Cochin Metro. It is quite evident that the Arbitrator was a highly technically
qualified person who understands the nature of the project involved in depth
from top to bottom.
7.In the considered view of this Court, whenever the Court is called upon
to exercise its jurisdiction under Section 34 of the Act, the Court must bestow
its attention as to the qualification of the Arbitrator. This is more so, where it
involves projects with technical specifications which is best understood by an
Arbitrator who is technically qualified. Therefore, while dealing with an award
passed by an Arbitrator with such technical qualification in a case involving a
project governed by technical specification and time period, the Court should
not sit on an appeal on the findings rendered touching upon areas hovering
around those technical specifications and time period and the Court must only
see if such findings are perverse and it suffers from patent illegality.
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8.Keeping the above in mind, this Court will now go into the various
grounds taken against the award passed by the Sole Arbitrator.
9.The submissions of the learned counsel for the Petitioners mainly
focused on the award granted under the heads of loss of profit, losses due to
infructuous overhead, losses due to extended use of machinery, equipment,
material and infrastructure.
10.The learned counsel for the Petitioners further questioned the award on
the ground of granting pendente lite interest when there was a specific bar under
Clause 64.5 of the General Conditions of Contract (hereinafter called as GCC).
The learned counsel also relied upon Clauses 17A(ii) and 17A(iii) of the GCC
which makes it clear that even if there is a delay on part of the Railways, it will
not vitiate the contract and that the contractor cannot claim for any
compensation on damages.
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11.The learned counsel for the Petitioners also submitted that the Sole
Arbitrator while granting compensation for loss of profit or loss due to extended
use of machinery, equipment, materials etc., has not even assigned reasons as to
how the damages/compensation was quantified and therefore the award is
unintelligible.
12.The above submission made by learned counsel for the Petitioners
cannot be sustained for the simple reason that the Sole Arbitrator had structured
the award in such a manner that he first goes into the various documents filed
on either side and deals with them in detail and thereafter he gives his reasoning
and after undertaking that exercise, the Sole Arbitrator discusses each and every
claim that was made by the Respondent and grant/reject the claim. Therefore,
while dealing with such an award, this Court must bear in mind the judgement
of the Apex Court in Dyna Technologies (P) Ltd. v. Crompton Greaves Ltd
reported in (2019) 20 SCC 1 and the relevant portions are extracted hereunder:
34. The mandate under Section 31(3) of the Arbitration Act is to
have reasoning which is intelligible and adequate and, which can in
appropriate cases be even implied by the courts from a fair reading of
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the award and documents referred to thereunder, if the need be. The
aforesaid provision does not require an elaborate judgment to be
passed by the arbitrators having regard to the speedy resolution of
dispute.
35. When we consider the requirement of a reasoned order,
three characteristics of a reasoned order can be fathomed. They are:
proper, intelligible and adequate. If the reasonings in the order are
improper, they reveal a flaw in the decision-making process. If the
challenge to an award is based on impropriety or perversity in the
reasoning, then it can be challenged strictly on the grounds provided
under Section 34 of the Arbitration Act. If the challenge to an award is
based on the ground that the same is unintelligible, the same would be
equivalent of providing no reasons at all. Coming to the last aspect
concerning the challenge on adequacy of reasons, the Court while
exercising jurisdiction under Section 34 has to adjudicate the validity
of such an award based on the degree of particularity of reasoning
required having regard to the nature of issues falling for consideration.
The degree of particularity cannot be stated in a precise manner as the
same would depend on the complexity of the issue. Even if the Court
comes to a conclusion that there were gaps in the reasoning for the
conclusions reached by the Tribunal, the Court needs to have regard to
the documents submitted by the parties and the contentions raised
before the Tribunal so that awards with inadequate reasons are not set
aside in casual and cavalier manner. On the other hand, ordinarily
unintelligible awards are to be set aside, subject to party autonomy to
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do away with the reasoned award. Therefore, the courts are required to
be careful while distinguishing between inadequacy of reasons in an
award and unintelligible awards.
13.This Court must also keep in mind the judgement of the OPG Power
Generation (P) Ltd. v. Enexio Power Cooling Solutions (India) (P) Ltd.,
reported in (2025) 2 SCC 417 and the relevant portions are extracted
hereunder:
80. We find ourselves in agreement with the view taken in Dyna
Technologies [Dyna Technologies (P) Ltd. v. Crompton Greaves Ltd.,
(2019) 20 SCC 1, paras 27-43] , as extracted above. Therefore, in our
view, for the purposes of addressing an application to set aside an
arbitral award on the ground of improper or inadequate reasons, or
lack of reasons, awards can broadly be placed in three categories:
(1) where no reasons are recorded, or the reasons recorded are
unintelligible;
(2) where reasons are improper, that is, they reveal a flaw in the
decision-making process; and
(3) where reasons appear inadequate.
81. Awards falling in Category (1) are vulnerable as they would
be in conflict with the provisions of Section 31(3) of the 1996 Act.
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Therefore, such awards are liable to be set aside under Section 34,
unless:
(a) the parties have agreed that no reasons are to be given, or
(b) the award is an arbitral award on agreed terms under Section 30.
82. Awards falling in Category (2) are amenable to a challenge
on ground of impropriety or perversity, strictly in accordance with the
grounds set out in Section 34 of the 1996 Act.
83. Awards falling in Category (3) require to be dealt with care.
In a challenge to such award, before taking a decision the Court must
take into consideration the nature of the issues arising between the
parties in the arbitral proceedings and the degree of reasoning
required to address them. The Court must thereafter carefully peruse
the award, and the documents referred to therein. If reasons are
intelligible and adequate on a fair reading of the award and, in
appropriate cases, implicit in the documents referred to therein, the
award is not to be set aside for inadequacy of reasons. However, if
gaps are such that they render the reasoning in support of the award
unintelligible, or lacking, the Court exercising power under Section 34
may set aside the award.
13.If the above yardstick fixed by the Apex Court is applied to the award
passed by the Sole Arbitrator, this Court does not find the award to suffer from
lack of reasons or the reasons recorded are unintelligible or the reasons are
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improper in view of the flaw in the decision-making process. What is mandated
under Section 34(3) of the Act is that the award must contain reasoning which is
intelligible, adequate and which is discernible from a fair reading of the award
and the documents referred thereunder.
14.In so far as the issue regarding termination of contract is concerned,
the Sole Arbitrator had first taken into consideration all the relevant clauses in
the agreement and also in the GCC and taken note of the objections raised by
the Southern Railways and the Sole Arbitrator first holds that those objections
are relevant and it cannot be overlooked and brushed aside. While giving these
findings, the Sole Arbitrator states that he had worked in Railways and had
experience of managing the Railway projects for several years and appreciates
the importance of these clauses. He also cautioned himself that these clauses
are meant to prevent the contractors from coming up with unreasonable claims
at every little opportunity when the delays are minor and manageable without
any large-scale financial implications and are presumed to be taken into
consideration while quoting for the tender.
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15.The Sole Arbitrator after making all the above observations gets into
the nitty-gritties of the various documents qua the clauses in the agreement and
the GCC. Ultimately the Sole Arbitrator has reached a finding that the Claimant
was putting adequate effort to speed up the work in the available sites but
however, the Railways was found to have defaulted by causing long delays in
not handing over the adequate sites at appropriate time and thus it is the
Railways which has caused serious breach of contract.
16.The above findings rendered by the Sole Arbitrator are supported by
reasons and it is intelligible and such findings have been rendered after
appreciation of the evidence qua relevant clauses in the contract and GCC.
17.In so far as loss of profit and loss of profitability is concerned, I had an
occasion to deal with these concepts in a recent judgement in OP No. 494 of
2018 dated 06.10.2025. After considering all the relevant judgements, this Court
held that a contractor who is wrongfully prevented from completing a contract
is entitled to damages for loss of profit calculated broadly and not requiring
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detailed proof. However, when it comes to loss of profitability from delays or
lost opportunities/missed opportunities from other available contract, it requires
specific evidence. In the former, applying Hudson’s formula or Eichleay’s
formula or even an amount of reasonable guess work, is allowed. However, in
the latter, for the purpose of assessing losses, the contractor has to necessarily
prove with evidence the loss of profit and opportunities if suffered owing to the
prolongation of the period of contract.
18.In so far as loss of profit is concerned, the Sole Arbitrator has granted
15% of the value of the unfinished goods based on the percentage claimed by
the Petitioner/Railways in the counter claim. This is a very reasonable method
adopted by the Sole Arbitrator while determining the compensation under the
head of loss of profit.
19.The next issue pertains to losses due to infructuous overheads. The
Sole Arbitrator first adopted the formula for computing the overheads and
carried out a theoretical calculation. Thereafter, the Sole Arbitrator adverts to
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the audited accounts and balance sheets for the years submitted before the
Income Tax Authorities and relies upon the same to arrive at a second method of
computation and fixes the compensation under this head. The compensation
fixed under this head is well thought out and reasoned and it does not suffer
from any perversity.
20.That apart, it was submitted that the books of accounts contained the
overall overheads and it was not confined only to the site overhead. It must be
borne in mind that there is an office work that happens in the background and
while dealing with the overhead, it must include both the site overhead as well
as the office overhead. Hence, this Court finds that the compensation awarded
by the Sole Arbitrator is reasonable and does not require interference of this
Court.
21.The next issue pertains to losses due to extended use of machinery,
equipment, materials and infrastructure.
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22.While dealing with this issue, the Sole Arbitrator had first taken into
account the fact that, the Southern Railways was not responding to any of the
letters that was sent by the Claimant in order to remove the materials from the
site. The Sole Arbitrator takes into account the extended use of the assets in the
site and what has been ultimately awarded is only 50% of the amount arrived at.
This is in view of the fact that the Sole Arbitrator finds that there were breaches
committed on both sides and Railways were found to have committed most
breaches.
23.It was attempted to be argued that such compensation claimed by the
Claimant is virtually duplication of the claim that was already made under the
head loss of infructuous overhead. This ground is not sustainable since it is an
independent claim made by the Respondent and the Arbitrator had taken into
consideration the additional hire charges paid by the Respondent and even
though the Railways claim that they had given Letter of Acceptance to another
contractor, that does not take away the eligibility of Respondent to claim losses
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under this head which has been substantiated through documents.
24.This Court finds that the compensation fixed under this head is
reasonable and intelligible and it does not require interference of this Court.
25.The last issue that was strenuously contended on the side of the
Southern Railways pertained to the interest that was granted under the head of
damages due to non-payment/delay on various claims.
26.The learned counsel for the Petitioner/Southern Railways submitted
that there was a specific bar under Clause 64.5 of the GCC which states that no
interest is payable on whole or any part of the money for any period till the date
on which the award is made. Whereas the Sole Arbitrator has disregarded this
clause and awarded pendente lite interest at the rate of 7% per annum from
19.01.2007 until the date of actual payment.
27.The learned counsel for the Petitioners relied upon the judgement of
the Division Bench in OSA No. 388 of 2011 and 43 of 2012 dated 20.10.2023
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and the relevant portion relied upon is extracted hereunder:
37. He had sought to interpret the provisions of the contract
differently to enable interference with the award. We do not think that
such an action can be sustained by us. However, while adverting to
the award of interest, we find that the Arbitrator has granted interest
against the provisions of the contract. We have extracted Clause 64.5,
it very clearly prohibits the Arbitrator from granting pendente lite
interest. Therefore, we do not think that that portion of the award
could be sustained.
28.Per contra, the learned counsel for the Respondent/Claimant relied
upon various judgements to contend that what has been granted as
compensation by the Arbitrator is only interest as damages and not stricto sensu
pendente lite interest.
29.The Division Bench of this Court had an occasion to deal with this
issue in CMA (MD) Nos. 864 & 865 of 2019 dated 23.04.2025. The relevant
portion is extracted hereunder:
38.Granting of interest is well within the Public Policy Interest
Act, 1975 allows the Courts to award interest as damages, and debts
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or in any proceedings in which as claim for interest in respect of any
debt or damages if it thinks fit proper to the person making the claim
at the rate not exceeding the correct rate of interest for the whole or
any part of period stipulate in the claim.
30.On carefully going through the award, it is seen that the Sole
Arbitrator had only granted damages by way of interest and it is not strictly a
pendente lite interest as was attempted to be projected by the learned counsel
for the Petitioners.
31.Interest can be awarded in terms of an agreement or statutory
provision and it can also be awarded by reason of usage or trade having the
force of law or on equitable consideration. However, when it comes to award of
interest by way of damages, such a claim is awarded only when money due and
payable has been wrongfully withheld and there are equitable grounds for which
written demand has been made by the Claimant. In ascertaining the rate of
interest payable under this head, the Courts of law can take judicial notice of
both inflation and also fall in bank rate of interest.
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32.In the case in hand, the Sole Arbitrator had taken into consideration
the fact that the monies were due and payable to the Claimant from the year
2007 itself. The Claimant made repeated demands, which were not settled.
Therefore, the Sole Arbitrator found justification by ordering damages by way
of interest. While undertaking this exercise, the Sole Arbitrator placed reliance
upon various earlier judgements and directed the damages to be paid by way of
interest at the rate of 7% (without compounding) per annum from 19.01.2007.
33.This Court finds that the damages awarded by way of interest and the
interest that has been fixed by the Sole Arbitrator is in accordance with law and
a very reasonable interest rate has been fixed and therefore it does not requires
the interference of this Court.
34.In so far as the compensation that has been granted under the other
heads, it was purely based on appreciation of evidence and the same does not
warrant interference of this Court.
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35.In light of the above discussion, this Court finds that the award passed
by the Sole Arbitrator does not suffer from any perversity or patent illegality
and the award passed is supported by reasons which are intelligible and the
amount awarded is also very reasonable. Accordingly, this Original Petition
stands dismissed with cost of Rs.1,50,000/- payable by the Petitioners to the
Respondent.
05.11.2025
Index:Yes/No
Speaking/Non-speaking order
Internet:Yes
Neutral Citation:Yes/No
KP
.
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N.ANAND VENKATESH J.
KP
Pre Delivery order in
05.11.2025
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IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 05.11.2025
CORAM
THE HONOURABLE MR.JUSTICE N.ANAND VENKATESH
1.Southern Railway
Rep.by The Chief Engineer (South)
Office of the Chief Administrative
Office / Construction 183,
E.V.R.Periyar High Road, Egmore,
Chennai-600 008.
2. The Deputy Chief Engineer
Gauge Conversion Unit-I,
Southern Railway, State Bank Road,
..Petitioner(s)
(MC Donalds Road), Tricchy-620 001.
.Vs.
M/s.Sri N.Jayachandran
M/s.Nilakantan and Son Pvt.Ltd.,
No.2, First Floor, Gokul Towers, No.7,
C.P.Ramasamy Road, Alwarpet,
Chennai-600 018.
Respondent(s)
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PRAYER
Original Petition filed under Section 34 of the Arbitration and
Conciliation Act, 1996, to set aside the arbitral award passed by the Learned
Arbitrator herein dated 05.03.2018 made in relation to disputes arising out of
Agreement No.168/CN/05 dated 03.06.2005 is concerned.
For Petitioner(s): Mr. P.T. Ramkumar
For Respondent(s): Mr. K.Harishankar
ORDER
After pronouncing the orders in the above original petition, it is brought
to the notice of the Court that the petitioners have deposited 50% of the award
amount with interest and it is lying in the account of the petition. Hence, the
respondent is permitted to withdraw the amount already deposited along with
the accrued interest. The balance amount shall be paid to the respondent, since
the petition has been been dismissed.
05.11.2025
Index:Yes/No
Speaking/Non-speaking order
Internet:Yes
Neutral Citation:Yes/No
ds/KP
https://www.mhc.tn.gov.in/judis ( Uploaded on: 05/11/2025 07:27:19 pm )
https://www.mhc.tn.gov.in/judis ( Uploaded on: 05/11/2025 07:27:19 pm )
N.ANAND VENKATESH J.
KP
05.11.2025
https://www.mhc.tn.gov.in/judis ( Uploaded on: 05/11/2025 07:27:19 pm )
