The court emphasized the limited grounds for interference with arbitral awards under Section 34 of the Arbitration and Conciliation Act, 1996, and the need for courts to show restraint in examining the validity of arbitral awards.

JUDGMENT

Suresh Kumar Kait, J.

1. In the present petition filed under the provisions of Section 34 of the Arbitration and Conciliation Act, 1996, petitioner has challenged the interim arbitral award dated 14.10.2021 passed by the learned Arbitral Tribunal in favour of the respondent on the ground that it interprets certain contractual terms, which are subject to evidence which is yet to be led, and without finally concluding the rights of the parties.

2. According to petitioner-NHAI, a Concession Agreement dated 25.07.2011 was entered into with respondent for augment of the National Highway from 6.400 km to 108.700 km by six laning the same as well as for improving the Ahmedabad Vadodra Expressway from 0.00 km to 93.302 km. in the state of Gujrat. According to petitioner, in terms of the aforesaid Concession Agreement, respondent had acquired exclusive right, license and authority to operate and maintain the project for 25 years from the appointed date i.e. 01.01.2013 and also to demand and collect the appropriate toll from the vehicles plying on the said Highways. Further, in terms of Clause 26.2.1 thereof, the respondent-concessionaire was required to pay fixed premium to petitioner-NHAI till the subsistence of the Concession Agreement with an annual increase @5%. Also, in terms of the aforesaid Clause, if payment of such premium is due and payable only for part of such financial year, then concessionaire had to pay the premium on pro-rata basis i.e. payments @1/12th of such premium shall be payable for each month of such financial year for which premium is due and payable. Petitioner/NHAI further claims that concessionaire had also agreed to pay premium in the form of additional concessional fee equal to Rs.309.60 crores in every financial year.

3. According to petitioner, in the year 2014, Government of India sanctioned "Premium Deferment Scheme" outside the contractual obligations undertaken by the parties under the Concession Agreement. According to the said scheme, the premium payment obligation under the Concession Agreement was relaxed and some portion of the annually payable premium, as per the original clause in the Concession Agreement, was deferred from 2014-15 till 2024-25 with interest @2% above the bank rate payable after the deferment period from 2025-26, whereas during the deferment period, only the revised premium was payable. However, the benefit of the scheme was subject to review of actual revenue deficit with project deficit at the end of every year and in case any surplus is available, that would be utilized towards outstanding deferred premium including interest of all previous years.

4. The respondent/claimant is said to have applied for the aforesaid scheme vide application/letter dated 25.03.2014, which was approved by sanction letter dated 06.06.2014 by the petitioner. In sanction letter dated 06.06.2014 by the petitioner-NHAI, it was stipulated that in case the revenue deficit at the end of the year is lesser than 5% of the figures projected, the respondent-claimant shall be liable to pay a penalty of 2.5% additional interest over and above the normal rate of interest. Thereafter, a Supplementary Agreement dated 06.06.2014 was executed between the parties, wherein deferment scheme of Government of India, application filed by the concessionaire and sanction letter, was made part thereof.

5. Thereafter, on 24.02.2015 petitioner claims to have asked the respondent to review for the financial year in terms of aforesaid Clause -3(o) and submit report by 30.04.2015. In response, respondent/claimant informed petitioner-NHAI that as against the projected deficit of Rs.236.71 crores, the actual revenue deficit is lower by Rs.21.70 crores, which was thus Rs.9.86 crores in excess of 5% of the projected revenue deficit. Petitioner-NHAI claims that the concessionary illegally retained surplus of Rs.29.73 crores beyond its entitlement under the scheme, which it was obligated to pay the petitioner in terms o