Delhi High Court: In a petition filed by the National Highways Authority of India (petitioner) under Section 34 of the Arbitration and Conciliation Act, 1996 challenging the award dated 07-07-2016 (‘the Arbitral Award’) passed by the Arbitral Tribunal, Manoj Kumar Ohri, J., dismissed the petition and held that the view taken by the Arbitral Tribunal is clearly a plausible one and needs no interference by the Court.
The Arbitral Award was rendered in the context of the disputes arising out of Concession Agreement dated 30-01-2006 and a Supplementary Agreement dated 06-03-2014 whereby a Contractor (respondent) was awarded the work of “Design, Construction, Development, Finance, Operation and Maintenance of proposed flyover at Dindigul Bypass on NH-7 in the State of Tamil Nadu on build, operate and transfer (BOT) basis”. The stipulated dates for commencement and completion of the project were 29-07-2006 and 29-01-2009 respectively, however, the actual commercial operation date was 28-09-2009. The Contractor vide its Statement of Claims raised 6 claims, AT adjudicated the said claims and awarded interest @ 2% above the SBI PLR on all the claims as well as interest @ 12% from the date of award till realization.
The only question that arises for consideration is whether sub-clauses 13.5.1 and 13.5.2 of the Agreements would apply or whether sub-clause 31.2 read with Sections 55 and 73 of the Contract Act would apply. A reading of sub-clause 13.5.2 of the agreement forming part of the subject matter would show that the sums to be awarded as damages against the failure of NHAI to make available the Additional Right of Way would fall within the domain of the said clause only if the provisional completion certificate was not delayed or affected as a consequence of delay/non-fulfilment of reciprocal promise by the NHAI.
The Court opined that the damages awarded by the AT are in conformity of the aforesaid sub-clauses. It is the second proviso to sub-clause 13.5.2 of the Agreement which would need to be considered and thus, the computation of damages would be in accordance with sub-clause 31.2 of the Agreement.
The Court held that the view taken by the Arbitral Tribunal is a plausible one and does not need interference.
[National Highway Authority of India v D S Toll Roads Pvt Ltd., 2023 SCC OnLine Del 5833, decided on 19-09-2023]
Advocates who appeared in this case :
Mr. S. Nanda Kumar, Ms. Deepika Nanda Kumar and Mr. Anand Murthi Rao, Advocates for petitioner
Mr. Jayant Mehta, Sr. Adv. with Mr.Ankur Kashyap, Mr.Hasan Murtaza, Ms.Bushra Waseem and Mr.Aman Bajaj, Advocates for respondents