A dissenting arbitrator's opinion is not a second chance for the losing party. In Abhoy Charan Bakshi v. National Highways Authority of India (O.M.P. (COMM) 107/2023, decided on 13 October 2026), Justice Subramonium Prasad of the Delhi High Court dismissed a challenge under Section 34 of the Arbitration and Conciliation Act, 1996 to a majority award that had rejected roughly Rs. 20 crore in claims arising out of a 2005 highway maintenance contract — notwithstanding a minority opinion that would have awarded about Rs. 6.22 crore.
The contract and the fall-out
NHAI awarded the petitioner a short-term improvement and maintenance contract in 2005 for a stretch of national highway between Baharampore and Farakka. Work was completed in July 2006, with a Defect Liability Period running to January 2007. Matters soured within that period: NHAI encashed the performance bank guarantee and retained the security deposit, taking the position that notified defects remained uncured. The contractor\'s claims — extra work beyond scope, rain-damage repairs, the encashed guarantee, the deposit, goodwill and business losses, and interest under Sections 70 and 73 of the Contract Act — went to a three-member tribunal, which rejected them by a 2–1 majority.
What the tribunal found, and why it stood
Contemporaneous joint records showed defects outstanding during the liability period. Against them, the contractor\'s unilateral letters claiming completion carried less weight — a comparative assessment squarely within the tribunal\'s province.
The tribunal found the remedial work was ultimately done by another agency, supporting NHAI\'s recourse to the security.
The claimed "extra work" fell within the contract\'s scope as the tribunal construed clauses 11.1, 13.1 and 33 — a construction of contract terms that is quintessentially the arbitrator\'s domain.
Clause 44.3\'s preconditions for releasing the security deposit were unmet; clause 44.2 justified withholding the performance security.
The Section 34 standard, restated
The judgment is a textbook application of the post-2015 scheme. Under Section 34(2A), a domestic award may be set aside for patent illegality appearing on its face, but not merely on the ground of an erroneous application of the law or by re-appreciation of evidence. The fundamental-policy ground in Section 34(2) is similarly confined. The Court found that the petitioner\'s grounds — that the inspection reports were wrongly preferred, that the extra work was proved, that the deposit ought to have been returned — were re-arguments of the merits dressed as challenges. Where two views are possible and the tribunal has taken one of them on the material before it, the Section 34 court\'s inquiry ends.
What a challenger must show
Perversity in the sense of a finding with no evidence at all; patent illegality on the face of the award; breach of natural justice; an award beyond the submission to arbitration; conflict with the fundamental policy of Indian law.
What will not suffice
A plausible alternative reading of the evidence; a persuasive dissent; disagreement with the tribunal\'s construction of contract clauses; the sheer size of the rejected claim.
Lessons for infrastructure contractors
The dispositive documents in this case were created on site, not in court: the Joint Inspection Reports signed during the Defect Liability Period decided the arbitration and, through it, the Section 34 petition two decades after the contract was signed. Contractors should treat joint records with the seriousness of pleadings — attend inspections, record dissent on the spot, and follow up in writing contemporaneously, because unilateral correspondence written after the event rarely displaces a signed joint record. Equally, claims for "extra work" need written instructions or variation orders traceable to the contract\'s machinery; quantification without that foundation fails at the first finding of fact, and no court can revisit it under Section 34.
The petition was dismissed and the majority award upheld in full. The decision does not alter the law on challenges to awards; its value lies in showing how firmly the re-appreciation bar holds even where the sums are large and the tribunal itself was divided.
Frequently Asked Questions
What were the contractor's claims?
The petitioner had performed short-term repair and maintenance of a highway stretch between Baharampore and Farakka, completed in 2006 with a Defect Liability Period to January 2007. He claimed payment for extra work, rain-damage repairs, return of the security deposit and the encashed performance bank guarantee, loss of goodwill, business loss and interest — about Rs. 20 crore in all. A three-member tribunal rejected the claims by majority; one arbitrator dissented.
Why did the Section 34 challenge fail?
Because the grounds in substance asked the Court to re-weigh evidence. The tribunal had relied on Joint Inspection Reports showing uncured defects, found that a third party ultimately carried out rectification, and held the contractual preconditions for releasing the security deposit unmet. Those were plausible findings on the record, and Sections 34(2) and 34(2A) do not permit the court to substitute its own view for a possible arbitral view.
Does a strong dissent improve a challenge under Section 34?
Not by itself. The award under challenge is the majority award; a minority opinion can illustrate an alternative reading of the evidence, but the test remains whether the majority's view was perverse, patently illegal or in conflict with fundamental policy — not whether the dissent was more persuasive.
What contract clauses decided the money claims?
Clause 44.2 of the General Conditions permitted the employer to withhold the performance security in the circumstances found, and Clause 44.3 set the conditions for refund of the security deposit, which the tribunal held unfulfilled. The claims for goodwill, business loss and interest fell with the core claims.