1. By this petition under Section 34 of the Arbitration & Conciliation Act, 1996 (‘the Act’), the Petitioner NTPC Ltd. (NTPC) seeks to challenge the Award and the order dated 29th September, 2013 and 25th January 2014, respectively passed by the Arbitral Tribunal (‘AT’) in the disputes between NTPC and the Respondent, Hindustan Construction Company Ltd. (‘HCC’).

Background

2. A contract dated 17th November, 2006 for the setting up of 600 MW (4x150 MW) Hydroelectric Power Project in Uttarkashi District, Uttarakhand, styled as Loharinag Pala Hydroelectric Power Project (‘Project’). Although the contract was formally signed on 17th November, 2006, it had become effective from 3rd August, 2006 which was the date of issuance of the Letter of Acceptance (‘LoA’) in favour of HCC. The total value of the contract as agreed was Rs. 246,48,17,654/-. The project was to be completed within 40 months from the date of issuance of the LoA.

3. Disputes arose between the parties for the part of the works executed up to December 2008 and were referred to the AT which pronounced an Award dated 10th September, 2012 in favour of HCC. The said Award was challenged by NTPC in this Court by filing OMP No.1148/2012. The claims made by HCC in the said arbitration were as under:

“(a). Additional claim due to variation in the River Diversion in pursuance of letter dated 04.06.2007 (claimed amount Rs. 10,49,76,210.45/-).

(b). Clam for cost in respect of non-supply of power by NTPC (Claimed amount Rs. 6,90,29,025.96/-)

(c). Claim for cost of disruptions and delays/underutilization of the resources from inception to 30.11.2008 (claimed amount Rs. 71,72,96,974.59/-”

4. According to NTPC, while the works of the said package were under progress, various media reports came up on internet on 20th February, 2009 regarding the suspension of the Project by the Ministry of Power, Govt. of India. It is, however, contended by NTPC that there was no such communication between the parties and the works were under progress as usual. Reference is made to the minutes of the Weekly Progress Review meeting dated 23rd February, 2009 in this regard.

5. HCC on 20th February, 2009 wrote to NTPC stating that the works had been suspended on the instructions of NTPC. However, NTPC denies having instructed HCC in that regard. Meanwhile, in a Public Interest Litigation (‘PIL’) filed by a Non-Governmental Organization (‘NGO’), the High Court of Uttarakhand at Nainital by its order dated 26th February, 2009 stayed the ‘suspension of project’ and all works were resumed without any restrictions.

6. On 30th July, 2009, HCC wrote to NTPC that all the works had been stopped on the instructions of the Engineer-in-Charge (‘EIC’) with effect from 29th July, 2009. NTPC maintained that no such instruction for stoppage of work was issued by it.

7. NTPC states that the entire works comprised of two main groups, namely, (a) open works & (b) underground works. It is stated that as far as the open works are concerned, after the diversion of river Bhagirathi on 14th December, 2008, they continued till 25th June, 2009. On 26th June, 2009, due to high discharge in river Bhagirathi, the upstream and down-stream cofferdams were breached by HCC and, thereafter, no work was possible till the receding of monsoon discharge. Thus, no work took place in the barrage for four months except repairing of the diversion channel, which was allowed by NTPC by its letter dated 7th August, 2009.

8. The second group of work i.e., underground works consisted of the works in Desilting Chambers, Head Race Tunnel, Gate Operation Chambers and the Silt Flushing Tunnels. According to HCC, the second period of suspension of work commenced on 29th July, 2009. It is stated that NTPC did not permit HCC to demobilize the sources till 11th November, 2009. On NTPC’s part, it states that immediately after the suspension on 29th July, 2009, NTPC vide its letter dated 7th August, 2009 instructed HCC to continue the safety and stabilization