Point of Law - Limited scope of the jurisdiction of this Court vested in it by Section 34 of the 1996 Act, no occasion arises for this Court to revisit the said findings of the learned Arbitral Tribunal on the basis of the case set up by NHAI before this Court.

JUDGMENT :

1. This petition, at the instance of the National Highways Authority of India (NHAI), has been preferred under Section 34 of the Arbitration and Conciliation Act, 1996 (“the 1996 Act”), assailing an Award, dated 26th February, 2016, passed by an Arbitral Tribunal by a majority of two learned Arbitrators to one.

2. The respondent was the claimant before the learned Arbitral Tribunal and the petitioner-NHAI was the respondent.

3. The respondent raised two claims. The learned Arbitral Tribunal awarded, to the respondent,

(i) against Claim No. 1, Rs. 196,38,00,000/- along with interest of Rs. 100,15,38,000/- and

(ii) against Claim No. 2, Rs. 4,71,00,000/- along with interest of Rs. 2,73,18,000/-.

4. As a result, a total amount of Rs. 303,98,01,213/- stands awarded against NHAI and in favour of the respondent along with further interest @ 12 % on the said amount from the date of Award till the date of payment, in the event of failure, on the part of NHAI, to pay the amount to the respondent within 30 days of the award.

5. It merits mention, at the outset, that the present petition does not assail, directly or indirectly, the award of interest by the learned Arbitral Tribunal. Nor were arguments on the aspect of interest advanced before the court, by Mr. Nandakumar, learned Counsel for the NHAI. The award of interest by the learned Arbitral Tribunal, as an independent cause of action has, therefore, gone unassailed.

6. As such, the court is concerned only with the correctness of the grant, by the impugned Award, of the amount of Rs. 196.38 crores against Claim No. 1 and Rs. 4.71 crores against Claim No. 2, in favour of the respondent and against the NHAI. Needless to say, however, should the court find the said award to be deserving of interference, interest as granted by the learned Arbitral Tribunal would also perish with the principal. If, however, the court finds the award of the principal amount not to be justifying of interference, the principal amount would become payable along with interest as awarded by the learned Arbitral Tribunal, as the award of interest has not been independently contested.

7. It also merits mention that the petition does not include any challenge to the computation, by the learned Arbitral Tribunal, of the amount awarded to the respondent. All that is contested is the entitlement of the respondent to the awarded amount. Mr Nandakumar did, however, make certain limited submissions on the aspect of computation, with which I would presently deal.

Facts

Events till execution of Concession Agreement

8. In response to a Notice Inviting Tenders (NIT) floated by the NHAI in March, 2008, for operation and maintenance of a stretch of NH-4A in the State of Goa, a consortium of IRB Infrastructure Developers Ltd. (IIDL) and Modern Road Makers Ltd. (MRM) (“the IIDL-MRM consortium”) submitted their bid and were successful.

9. IIDL wrote to NHAI on 20th July, 2009, requesting to issue a Letter of Acceptance (LoA) in favour of the IIDL-MRM Consortium, as it had emerged as the lowest bidder against the NIT issued by NHAI. Para 2 of the letter also indemnified NHAI, in the following terms:

“We are aware of the recent changes brought in with regard to land acquisition related pre-compliances. In this regard, we hereby indemnify NHAI for any delay caused with respect to signing of Concession Agreement due to delay arising out of completion of 3D process for 80% land acquisition.”

10. LoA was issued by NHAI in favour of IRB-MRM Consortium on 5th January, 2010. The LoA required the Consortium to form a Special Purpose Vehicle (SPV), execute a Concession Agreement (hereinafter referred to as “CA”) and submit performance security by way of an irrevocable and unconditional Bank Guarantee of Rs. 23.55 crores within the period expiring on the 180th day from the date of signing of the Concession Agreement.

11. In compliance, the IRB-MRM Consortium wrote to NHAI on 8th February, 2010, informing NHAI that the Consortium had constitute