1. This is a petition under Section 9 of the Arbitration and Conciliation Act, 1996 (‘Act’) filed by the Petitioner, Soma Isolux Kishangarh Beawar Tollway Private Limited, seeking certain interim reliefs.

Background facts

2. The background facts are that the Petitioner entered into a Concession Agreement (‘CA’) with the Respondent National Highways Authority of India (‘NHAI’) to augment the road from km 364.125 to km 58.245 (approximately 93.56 km) on the Kishangarh – Ajmer – Beawar section of National Highway No. 8 (‘NH-8’) in the State of Rajasthan. The Petitioner was to undertake six-laning of NH-8 on build, operate and transfer (‘BOT’) basis. The Petitioner was granted a concession for a period of 18 years commencing from the appointed date. The NHAI accepted the bid of the Petitioner and issued a letter of award dated 21st April 2009. Thereafter, the CA was executed on 18th May 2009.

3. The total project cost was Rs. 1304.64 crores. Rs. 324.64 crores in the form of equity was brought in by the promoters of the Petitioner Consortium and the balance Rs. 978 crores through loans advanced by a consortium of banks with the Central Bank of India as the lead banker. According to the Petitioner, the loan amounts carry interest @ 11% from the date of initial disbursement until Commercial Operation Date (‘COD’). The interest was payable by the Petitioner after a moratorium period of 7.5 months from the COD or from 31st December 2012 whichever was earlier.

4. The Petitioner was under the obligation to submit the performance security and achieve financial closure within 180 days from signing the CA. The Petitioner submitted performance security on 14th November 2009 (on 180th day after signing CA) by submitting two bank guarantees (‘BGs’) amounting to Rs. 19.87 crores each (valid up to 30th November 2010). The financial closure was achieved on 14th November 2009 (on 180th day after signing CA) by the Petitioner signing a Common Loan Agreement with the lenders. The performance security was required to remain in force for a period of one year from the appointed date and be released earlier upon the Petitioner expending on project construction an aggregate sum that is not less than 20% of the total project cost.

5. In terms of the CA, the Petitioner was to get the right to collect toll fee on the road only from the COD i.e., the date on which the Completion Certificate (‘CC’) or the Provisional Completion Certificate (‘PCC’) was issued in terms of Clauses 15.1 and 27.1.1 of the CA respectively. The PCC has to be issued by the Independent Engineer (‘IE’) for the project, i.e., M/s. Louis Berger Group Inc. The toll fee collected was to be deposited in an escrow account. The CA specified the percentage of the toll collections that would come to the respective shares of the parties.

6. As already noted the appointed date was 14th November 2009. The Petitioner was required to complete the construction of the six lanes within 30 months from the appointed date. According to the Petitioner, it faced difficulties in commencing the construction work since NHAI failed to grant 100% right of way (‘ROW’) within 90 days of the appointed date as envisaged in the CA. The Petitioner states that it nevertheless completed the work of six lanes over a stretch of over 92 kms by utilizing the loan amount from the lender banks and the promoters' equity.

7. There has been extensive correspondence between the parties regarding the demand of the Petitioner for issuance of the PCC. On 21st March 2014 a letter was written by the Deputy General Manager (Technical) of the Jaipur office of NHAI to the Chief General Manager (Technical), NHAI on the issue of recommendation for PCC and start of commercial operation for the project. One issue highlighted was regarding Change of Scope (‘CoS’). Two CoS cases have been submitted by the Petitioner. For CoS-1, an in-