Prathiba M. Singh, J.

IRB Ahmedabad Vadodara Super Express Toll Ways Pvt. Ltd. –the appellant Company (for short, ‘appellant’) entered into a Concession Agreement dated 25th July, 2011 (for short, ‘agreement’) with the Respondent – National Highways Authority of India (for short, ‘NHAI’) for the development, maintenance and management of National Highway No.8 connecting Ahmedabad and Vadodara (for short ‘NH-8') and the improvement of the already existing Ahmedabad-Vadodra Expressway (for short ‘Expressway'). NH-8 and the Expressway are two alternative routes available for commuters travelling between Ahmedabad and Vadodara. The Agreement was on a DBFOT (Design, Build, Finance, Operate and Transform) basis.

2. A Request for Qualification (RFQ) was issued by NHAI in May 2010. Bidders were shortlisted and bids were invited from the shortlisted bidders of which one was M/s IRB Infrastructure Developers Ltd. (hereinafter, ‘selected bidder’). The bid of the selected bidder was accepted. The selected bidder promoted and incorporated the appellant, and requested the NHAI to accept the appellant as a Concessionaire. All the obligations of the selected bidder were to be performed by the appellant – Concessionaire. The Agreement with the appellant, after taking proper assurances and undertakings from the selected bidder, was entered into on 25th July, 2011.

3. Disputes arose between the parties in 2014, for which amicable resolution was tried but to no avail. Arbitration clause in the agreement had provided for resolution of disputes through International Council of Alternative Dispute Resolution (ICADR). A Supplementary Agreement dated 14th July, 2014 was entered for resolution of disputes through rules and procedures of the Society of Affordable Resolution of Disputes (SAROD) instead of ICADR. To this extent there is no dispute.

4. SAROD is a body set up by NHAI. A three member tribunal was constituted as per the Rules of SAROD. Claims and Counter Claims were filed before the Arbitral Tribunal. The Arbitral Tribunal by a 2:1 majority upheld the claims of the Appellant in the following terms:

“We, member of Arbitral Tribunal having entered upon reference and heard the parties, pursued all documentation brought on record, DO HEREBY DECLARE and publish the award by majority of two Arbitrators as below. The dissenting award by Shri Basant Kumar is attached herewith separately alongwith this majority Award.

1. The Respondents must allow the Claimants the authority to issue only single journey without any discount on the Ahmedabad Vadodara Expressway.

2. The Recurring losses incurred by the Claimants on account of forced issuance of concession passes to the vehicles amounting to Rs.24,89,59,565.00 (July 2013 to April 2015). The amount will attract interest @ 15% p.a. from the date of the award till date of realization.

3. The recurring losses from May 2015 till effective steps to restore situation of single journey pass and no concession to locals. This amount will attract interest @ 15% from the day audited account is submitted till date of realization of payment.”

5. NHAI challenged the award under Section 34 of the Arbitration and Conciliation Act, 1996 (for short, ‘Act’). The Ld. Single Judge on 6th February, 2017 set aside the Arbitral award dated 8th January, 2016. The present appeal has been preferred against the impugned judgment of the Ld. Single Judge dated 6th February, 2017.

6. The crux of the dispute is the issuance of discounted passes, exemptions and concessions on the Expressway. There are four different types of discounts that are given to frequent/local users of the Expressway. The same are:

(i) Multiple journey tickets for frequent travellers using the section of the National Highway for two one way journeys during the day @ 1.5 times single journey ticket valid for 24 hours (Return trip passes to frequent users on Ex