JUDGMENT

Suresh Kumar Kait, J. - The present petition has been filed under the provisions of Section 34 of arbitration and Conciliation act, 1996 challenging the arbitral award dated 13.07.2021 read with order dated 27.07.2021 passed by the learned arbitral tribunal.

2. In the present petition, it is stated that the Government of India entrusted the work of development, maintenance and management of Pathankot to amritsar Section of National Highways No.15 from km 6.082 to km 108.502 to the petitioner, for which petitioner invited proposals for design, build, finance, operate and on transfer basis the above referred Section of NH-15, shortlisted certain bidders including consortium comprising IRB Infrastructure Ltd. and Modern Road Makers Pvt. Ltd. with IRB Infrastructure Developers Ltd. as its Lead Member (henceforth referred to as the 'consortium'). after evaluation, petitioner accepted the bid of the consortium vide its letter of acceptance dated 27.07.2009. Respondent- IRB Pathankot amritsar Toll Road Ltd., by its letter dated 21.09.2009 also joined the consortium and thereafter, a Concession agreement dated 16.11.2009 was entered between the parties. In terms of the aforesaid Concession agreement, the commencement of the work was to be done on 31.12.2010 and the completion date was fixed as 910th day from the appointed date i.e. 27.06.2013. However, the work could not be completed within the time stipulated and time was extended from 05.08.2014 to 25.08.2014 to 15.10.2014 and the parties entered into a further agreement dated 05.11.2014. Though respondent claimed to have completed the work by 18.11.2014, however, vide letter dated 22.11.2014 took the plea that certain works like boundary pillars, drainage etc. are left, which do not affect the project work. Therefore, a Provisional Completion Certificate (PCC) was issued to the respondent on 27.11.2014 to commence commercial operation and toll collection. after three years of issuance of Provisional Completion Certificate, vide letter dated 19.06.2017 respondent requested for extension of Concession Period for the period of 581 days and reiterated the same request on 18.06.2018. On 07.08.2018 respondent invoked arbitration and thereafter, on 19.01.2019, approached IRC for appointment of arbitrator. The arbitral tribunal was constituted comprising of Justice (Retd.) ajit Prakash Shah as the Presiding arbitrator and Shri S.S. agarwal and Shri Navin Kumar as arbitrators.

3. Before the arbitral Tribunal, the respondent/claimant filed the Statement of Claims and petitioner/respondent filed the Statement of Defence. Based thereupon, the arbitral tribunal framed the issues and proceeded for determination thereof. The tribunal proceedings culminated into award dated 13.07.2021, wherein the claims raised by the respondent / claimant were granted with costs. Based upon the aforesaid averments made in the petition and aggrieved against the said arbitral award, the present petition under the provisions of Section 34 of the arbitration and Conciliation act, 1996 has been preferred by the petitioner.

4. Before adverting to the submissions and arguments raised on behalf of both the sides, it is pertinent to mention the issues which were subject matter of consideration and decision before the arbitral tribunal. These issues were framed by the learned arbitral tribunal on 28.01.2020 and have been enumerated in Para-10 of the impugned award and read as under:-

'1. Whether the Independent Engineer approved Extension of Time of 518 days in terms of provision of article 14 or the Concession agreement?

2. Whether the Supplementary agreement dated 05.11.2014 prohibits claims of the Claimant as consequence of delay damages arising out of the overrun?

3. Whether the compensation sought by the Claimant under Clause 35.2 of the Concession agreement towards increase in capital cost is attributable to delay on the part of NHaI in completion of the Project Highway?

4. Whether the Claims are time barred?

5. Whe