‘Either’ does not necessarily mean ‘both sides’: Rajasthan HC upholds arbitral award against Union of India in border fencing case

Jodhpur: The Rajasthan High Court has dismissed two appeals filed by the Union of India challenging a three-decade-old arbitral award in favour of a border fencing contractor, holding that the word “either” used in the contract did not necessarily mean “both sides”. Justice Sandeep Shah ruled that when the terms of a contract are capable of more than one interpretation and the arbitrator adopts a plausible view, the award cannot be interfered with under Section 30 (grounds for setting aside award) of the Arbitration Act, 1940.

The dispute arose from two tenders for construction of security fencing along the Indo-Pak border in Rajasthan, between Pillars 313 to 316 and 316 to 318, awarded for 1991-92. The contractor, V.S. Saini, claimed additional amounts for constructing M.S. Angle Iron Struts on both sides of the fencing and for supplying M.S. Flats. A sole arbitrator allowed two of his eleven claims by award dated 22 February 1996, granting interest at 14 per cent per annum from the date of reference. The Union of India challenged the award before the District Judge, Sri Ganganagar, under Section 30 of the 1940 Act, but the objections were dismissed on 9 September 2005, prompting the present appeals under Section 39 (appealable orders).

Counsel for the Union of India argued that the word “either” in the agreement, when read with its dictionary meaning, denoted both sides, and that the arbitrator misconducted himself by treating it to mean only one side. The contractor’s counsel countered that “either” meant one side, that drawings on record supported a single-side construction, and that the M.S. Flats were the Department’s responsibility under the contract.

Justice Sandeep Shah examined dictionary definitions and held that “either” has been used in different contexts, meaning either one of two or both, depending on usage. Relying on the Bombay High Court’s decision in Sadruddin Suleman Jhaveri v. J.H. Patwardhan, the judge observed that the term does not necessarily include both. The terms of the contract were ambiguous and capable of more than one interpretation. Citing the Supreme Court’s ruling in Bhagawati Oxygen Limited v. Hindustan Copper Limited, (2005) 6 SCC 462, the court reiterated that under Section 30, it cannot re-appreciate evidence or set aside an award merely because another view was possible. On Claim No. 2, the judge found that the contractor had agreed only to provide M.S. Spikes during negotiations, and that the M.S. Flats remained the Department’s obligation.

On the central question of contractual interpretation, the bench said: “It cannot be conclusively held that the word ‘either’ necessarily means both. Rather, the terms of the contract appear to be ambiguous and capable of being interpreted in more than one manner, i.e., providing of M.S. Angle Iron Struts on one side or on both sides. If the appellant intended that strutting should be carried out on both sides, then the appropriate terminology to be used ought to have been ‘both sides’ and not ‘either side’, as the latter expression is capable of different interpretations.”

On the question of limitation, the court held that the 117-day delay in filing the objections — attributed by the Union to administrative sanctions delayed by a change of government — was not sufficient cause for condonation. The judge observed that in arbitration matters, delay must be explained with greater rigour, and the Union of India enjoyed no special latitude over an ordinary litigant. Accordingly, the appeals were dismissed and the awards as well as the District Judge’s orders dated 9 September 2005 were upheld.

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