JUDGMENT :

M.R. Shah, J.

1. Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the High Court of Delhi in OMP No.459 of 2017 by which the High Court has dismissed the said petition under Section 34 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as “the Arbitration Act, 1996”) in which the appellant – National Highway Authority of India (hereinafter referred to as “NHAI”) prayed to set aside the Arbitral Award dated 15.09.2017 and also the order passed by the Arbitral Tribunal not entertaining and/or considering the counter claim filed by the NHAI, the original petitioner – NHAI has preferred the present appeal.

2. The facts leading to the present appeal and the case on behalf of the appellant – NHAI are as under:-

2.1 That the NHAI and the respondent entered into a contract. An Engineering Procurement and Construction (EPC) Agreement (hereinafter referred to as “Contract”) was executed between the parties on 13.11.2014 in respect of "improvement / augmentation of two laning with paved shoulders from km.94/000 to km.174/000 (design chainage from km.94/000 to km.174/000) of Karaikudi-Ramanathapuram Section of National Highway No. 210 including 500m on SH-35 Madurai Road (near Devakottai Rasta Railway Station) in the State of Tamil Nadu on EPC mode (total design length 80.00kms) under NHDP PHASE-III”.

2.2 According to the NHAI, the respondent/Contractor was in continuous breach of specific obligations under the Contract for which a cure period notice was issued by the NHAI under Clause 23.1.1 of the Contract as far as back on 29.09.2015 calling upon the Contractor to cure the defaults within 60 days. The Contractor failed to cure the defects pointed out by the NHAI, thus, a notice of intention to terminate the Contract was issued by the NHAI on 12.04.2016 under Clause 23.1.2. The respondent/Contractor sent its reply dated 14.04.2016 to the NHAI's notice of intention to terminate the contract. Having found the reply totally unsatisfactory, the NHAI issued a termination notice dated 22.07.2016 under Clause 23.1.2 of the Contract. It is the case on behalf of the appellant – NHAI that the NHAI specifically stated in the termination notice that "the same is without prejudice to the Authority's right to claim damages for the Contractor's failure to comply with the unambiguous obligations casted upon it under the Contract and/or to realize any dues, losses and damages whatsoever under the Contract or under applicable laws, as the case may be".

2.3 On receipt of the termination notice, the respondent/Contractor addressed a letter to the NHAI on 02.01.2017 to refer certain disputes for amicable settlement under Clause 26.2 of the Contract. That thereafter, the Contractor invoked the arbitration clause (Clause 26 of the Contract) vide letter dated 09.02.2017 and nominated its Arbitrator and requested the NHAI to nominate its Arbitrator so that the Presiding Arbitrator may be appointed. The NHAI nominated its arbitrator by letter dated 10.03.2017 which was followed by the appointment of the Presiding Arbitrator. Accordingly, the Arbitral Tribunal came to be constituted. The Contractor filed the Statement of Claim on 15.05.2017. The NHAI filed its statement of defence on 11.07.2017. It is the case on behalf of the NHAI that both in the termination notice dated 22.07.2016 as well as in the Statement of Defence dated 11.07.2017, the NHAI reserved its right to claim damages and stated that it would file its counter claim separately.

2.4 On 13.07.2017, i.e., after two days of filing the Statement of Defence by the NHAI, the NHAI sent a letter to the Arbitral Tribunal seeking extension of time for filing the counter claim. Vide email dated 18.07.2017 the Arbitral Tribunal rejected the NHAI's request seeking extension of time for filing the counter claim and stated that no application has been filed by the NHAI for filing counter claim. It appears that thereafter the NHAI moved an application before