Shivmoorat Kushwaha, Proprietor Of Ms Namah Enterprises vs Union Of India

CNR No : HCBM020270832026

2026:BHC-OS:19012
pmk 34-CARBA(L)-27081-2026.doc

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
COMMERCIAL ARBITRATION APPEAL(L) NO. 27081 OF 2026
IN
COMMERCIAL ARBITRATION PETITION(L) NO. 21029 OF 2026
Shivmoorat Kushwaha, Proprietor of ]
M/s. NAMAH ENTERPRISES, ]
having office at 001, Ajgaonkar House, ]
Kasturba Road No.6, ]
Opp. Borivali Railway Station, ]
Borivali (East), Mumbai – 400 066. ] … Appellant
V/s.
1. Union of India ]
Through the General Manager, ]
Central Railway, CSMT, Mumbai. ]
2. Principal Chief Commercial Manager, ]
Central Railway, CSMT, Mumbai. ]
3. Divisional Railway Manager, ]
Central Railway, Mumbai Division, ]
CSMT, Mumbai ]
4. Senior Divisional Commercial Manager, ]
Central Railway, Mumbai Division, ]
CSMT, Mumbai ] … Respondents

Adv. Aseem Naphade a/w. Adv. Anduprakash Tripathi and Adv. Chetan Shah
for the Appellant.
Adv. T.J. Pandian a/w Adv. Vaishali Barot, Adv. Gautam M. and Adv. Aarti
Gupta for the Respondents.

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Digitally
signed by
SUMEDH
NAMDEO
SONAWANE
Date:
2026.08.25
18:15:45
+0530
SUMEDH
NAMDEO
SONAWANE
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CORAM : A. S. GADKARI AND
KAMAL KHATA, JJ.
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RESERVED ON : 10 August, 2026
th
PRONOUNCED ON : 25 August, 2026
Judgment (Per : A.S. Gadkari, J.):-
1) Present Appeal is filed under Section 37(1)(b) of the Arbitration
and Conciliation Act, 1996 (Arb. Act), against the Judgment and Order
rd
dated 3 August, 2026 passed by the learned Single Judge, whereby the
Petition filed under Section 9 of the Arb. Act seeking interim protection
pending the arbitral proceedings, came to be rejected.
2) The Appellant is principally aggrieved about the findings recorded
in the impugned Order on the disputed contractual issues, while dismissing
the Section 9 Petition.
3) The Appellant is engaged in the business of operation,
management and maintenance of passenger amenities and hospitality
facilities at railway stations. Being a successful bidder, he was awarded the
contract for upgradation, maintenance and manning of the AC Upper Class
Waiting Room at Chhatrapati Shivaji Maharaj Terminus (CSMT), Mumbai
together with allied passenger facilities including beverage stalls and tourist
kiosks, for a contractual period of five years. The Appellant invested
approximately Rs.40,00,000/- in the said project, as the tender itself
contemplated that in future, Railway Board Policy would, in future, be
governed by the Delhi Division Model, which contemplated long-term
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operation.
4) During the entire tenure of five years, the Respondents neither
received nor raised any complaints regarding the performance of
Appellant’s contractual obligations. The amount of Rs.40,00,000/- invested
by the Appellant has since become a part of the railway property.
5) Mr. Naphade, learned counsel appearing on behalf of the
Appellant, submitted that, the tender was invited in accordance with the
commercial circulars issued by the Railway Board, which contemplated
prevalence of additional new policies which would enhance the contractual
period, subject to conditions. He submitted that the Appellant has, till date,
adhered to all the terms and conditions of the Agreement, and that this has,
in fact, been appreciated by the Railway Board. To the best of Appellant’s
knowledge, no complaints have been received against the Appellant during
the entire tenure.
5.1) He submitted that in accordance with the Delhi model, the
Appellant made representations for renewal of the contract for an
additional period of five years. However, the Respondents have not decided
the same and have in the meantime, floated a fresh tender inviting other
bidders, thereby causing grave prejudice to the Appellant. He submitted
that, the two short-term extensions granted are insufficient to recover the
benefits of the investments made and do not align with the Delhi Division
Model or Railway Board's policy or the intention of the tender. He
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submitted that, the temporary extensions granted were at enhanced licence
fees, and therefore conferred no real benefit. According to him, the Railway
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Board Guidelines dated 28 August, 2020 have not been implemented in its
true letter and spirit, inasmuch as the Delhi Division Model contemplated
extension of the contract for an additional period of five years for all major
stations of zonal railway, subject to the satisfactory performance of the
contractor, though admittedly this remained a matter for the sole discretion
of the Railways. According to Mr. Naphade, there was absolutely no reason
to deny the Appellant an extension in terms of the Delhi Division Model.
5.2) Mr. Naphade strenuously urged that, the prayers in
the Appeal be granted, on various grounds listed under headings
extracted hereinbelow for ready reference:
a) Impugned Order contrary to the scope of Section 9;
b) Failure to appreciate that the Appellant never claimed
automatic renewal;
c) Failure to consider Clause 10 of the Tender Document;
d) Failure to appreciate the effect of the Railway Board Policy
dated 28.08.2020;
e) Failure to appreciate the significance of the communication
dated 16.03.2022;
f) Erroneous reliance upon the communication dated
03.06.2026;
g) Failure to appreciate the Respondents’ contradictory
conduct;
h) Arbitrary and selective application of Railway Board Policies;
i) Failure to appreciate the relevance of the LTT Contract;
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j) Failure to consider discriminatory treatment;
k) Failure to consider legitimate expectation;
l) Failure to apply the doctrine of promissory estoppel;
m)Failure to consider the Public Private Partnership Framework;
n) Misinterpretation of the Railway Board Policy of 2022;
o) Failure to appreciate continuous recognition of the Contract;
p) Failure to appreciate irreparable injury;
q) Balance of convenience incorrectly applied;
r) Failure to preserve the subject matter of Arbitration;
s) Findings recorded beyond prima facie satisfaction;
t) Impugned Order contrary to settled principles governing
Government Contracts.
Reiterating these grounds in detail he submitted that, the Appeal
deserves to be allowed and the impugned Order be set aside.
6) Mr. Naphade then referred to the Circular No.11 of 2022 issued by
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the Government of India, Ministry of Railways, Railway Board, dated 13
June, 2022, and in particular to Clause 8 thereof, dealing with duration of
contract. Referring to Clause 8.1(v), he submitted that the Appellant’s
contract was covered thereunder and the duration contemplated under
clause 8.1(v)(b) was ten years. He accordingly submitted that the
Appellant’s contract deserved to be extended for an additional period of five
years.
7) Per Contra Mr. Pandian, learned Advocate for the Respondent
supported the impugned Judgment and submitted that, the Appellant was
bound by the terms of the contract and could not demand an extension. In
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any event, any extension would lie at the sole discretion of the
Respondents, as per the terms of the contract. He accordingly submitted
that, the Appeal deserves to be dismissed.
8) We have heard Mr. Naphade, learned counsel for the Appellant
and Mr. Pandian for the Respondent, and perused the entire record.
9) The arguments of the Appellant are principally founded on the
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Circular No.11 of 2022 dated 13 June, 2022 (Circular No.11 of 2022). The
clause 8 of the Circular No.11 of 2022 is extracted hereinbelow for ready
reference :-
“8. Duration of contract:
8.1 The duration for Commercial Earning/NFR contracts
shall as following:
i) Contracts for leasing of parcel space – 2 years
ii) Other Commercial Earning & NFR contracts – 3 years
iii) Plastic Bottle Crushing Machines, Cloak Room
Management, and AC Waiting Hall Management –
5 years
iv) High Investment contracts (e.g., parking lots with
access control and CCTV, high investment
advertising contracts, etc, as decided by
Division/Railway) – 5 years
v) Pay-&-use Toilets
a. Normal, for operation and maintenance only – 3
years
b. Under ROMT – 10 years.
c. Under BOT – 15 years.
vi) Contracts involving seasonal/ short-duration (e.g.,
festival special trains, holiday special trains, etc) – for
the duration of operation of the concerned train
vii) For asset categories not mentioned above – as decided
by the concerned P/CHOD”
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10) A bare perusal of Clause 8 of the Circular No.11 of 2022 indicates
that the Appellant has misread and misinterpreted the clause. The
contention that clause 8.1(v) applies to the Appellant’s contract is entirely
misconceived. In our view, it is Clause 8.1(iii) and not Clause 8.1(v), that
applies to the Appellant, inasmuch as it deals with Plastic Bottle Crushing
Machines, Cloak Room Management and AC Waiting Hall Management, for
which the contractual period is only five years. The reliance placed on
8.1(v) is misconceived. On a bare reading, it can be seen to pertain to Pay
and Use Toilets, which is neither included in, nor linked or connected with,
the Appellant’s contract, admittedly one for AC Waiting Hall Management.
Accordingly, in our view, there is no merit in this contention of the
Appellant.
11) The scope of the contract, annexed at page No.138, confirms that
it qualifies the contract for a period of five years only. It would also be
useful to refer to Clause 9 of Circular No.11 of 2022, which reads as under:-
“9. Extension of contract:
9.1 Normally, extension of contracts awarded through e-Auction
shall not be permitted. However, in case of expiry of a contract
before the finalization of new contract for any asset (due to
administrative delays), or in cases where different contracts
(with different dates for closure) for leasing of parcel space have
been awarded in a single train, temporary extension(s) can be
granted with the approval of DRM/ concerned P/CHOD without
finance concurrence. The total duration of such extension(s)
shall not exceed 3 months, and efforts should be made to ensure
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that the next contract is finalized before the expiry of such
extension(s). Rent/license fee and other applicable charges of
the assets shall be paid by the contractor for the extended period
on pro-rata basis.”
12) A plain reading of the above shows that, although an extension
was ordinarily impermissible, two short extensions were admittedly granted
to the Appellant upon consideration of his representations, though at
increased charges.
13) Having perused the impugned Judgment, we find that the learned
Single Judge has correctly considered the facts of the case and the
contentions of the Advocates, and having analyzed the entire matter, has
given detailed reasons therefor. We therefore do not find any infirmity in
the said Judgment. We also find that, while deciding the issue under
Section 9 of the Arbitration Act, the learned Single Judge has in no manner
travelled beyond the ambit of Section 9. The findings recorded are based
solely on the facts and arguments advanced. It cannot therefore be said
that, the learned Single Judge has committed any error in considering and
appreciating the Section 9 Petition.
14) In view of the above, the Appellant is not entitled to an extension
for an additional period of five years under the contract. The legitimate
expectation of the Appellant is understandable, but he cannot claim an
extension as a matter of right. The Appellant was throughout aware that,
the duration of the contract was fixed at a term of five years, he now cannot
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claim to have been deprived of the benefits envisaged by him at the time of
investing a sum of Rs.40,00,000/- in the project. In our view, therefore, the
learned Single Judge has rightly rejected the Section 9 Petition.
15) In M.P. Road Development Corporation Ltd vs. Jabalpur Corridor
(P) Ltd., reported in 2026 SCC OnLine SC 1001 the Hon’ble Supreme Court
has held as under:
“40. From the consistent pronouncements of this Court, it is
evident that the jurisdiction under Sections 34 and 37 of the
1996 Act is narrowly circumscribed and cannot be equated with
ordinary appellate jurisdiction. The appellate Court under
Section 37 does not sit as a court of appeal on the merits of the
arbitral award; its role is confined to examining whether the
Court under Section 34 has acted within the limits prescribed by
law. Interference is permissible only where the Section 34 Court
has exceeded its jurisdiction or failed to exercise it within the
confines of Section 34, and not merely because another view of
the facts or interpretation of the contract may appear preferable.
Courts ordinarily must give requisite deference to finality of
arbitral awards unless it is palpably clear that the award is
perverse and unreasonable. The arbitral tribunal remains the
final authority on appreciation of evidence, and concurrent
findings under Sections 34 and 37 are entitled to great
deference. The statutory scheme thus reinforces the principle of
minimal judicial intervention, ensuring that arbitral awards are
not disturbed save in circumstances expressly contemplated by
the Act.”
16) In our view, no error, either in law or on facts, has been
committed by the learned Single Judge in passing the impugned Judgment
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and Order dated 3 August, 2026.
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17) Considering the scope of Section 37 and our limited jurisdiction
under that Section, we find that, Appeal is entirely devoid of any merit,
and the same is accordingly dismissed, with no order as to costs.
(KAMAL KHATA, J.) (A.S. GADKARI, J.)
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