The relief sought under Section 9 of the Arbitration Act is interim in nature and cannot be a permanent measure.

ORDER :

Chandra Dhari Singh, J.

1. The instant petition under Section 9 of the Arbitration and Conciliation Act, 1996 (hereinafter "Arbitration Act") read with Section 2(1) of the Commercial Courts Act, 2015 has been filed on behalf of the petitioner seeking the following reliefs :

"i. Pass an order of mandatory injunction directing the Respondent to reimburse/release the amount of Rs.12,56,72,430/- which has been deducted illegally and arbitrarily by the Respondent in breach of the Arbitral Award from the 22nd Annuity paid to the Petitioner under the Concession Agreement dated 31.03.2006 along with interest @5% over SBI PLR from the due date of payment till the actual date of payment;

ii. Pass any such other or further orders as may be deemed fit by this Hon'ble Court in the facts and circumstances of the present case."

FACTUAL MATRIX

2. The parties had entered into a Concession Agreement on 31st March 2006, for the design, construction, development, finance, operations and maintenance of K.M. 367.00 (Adloor Yellareddy) to K.M. 447.000 (Kalkallu) covering 85,745 km and improvement, operation and maintenance of K.M. 447.000 (Kalkallu) – 464.000 (Gundla-Pochanpalli) covering 17,000 km on NH-7 in the State of Andhra Pradesh (hereinafter "the Project").

3. The petitioner, being a Special Purpose Vehicle incorporated and registered under the Companies Act, 1956, by the consortium of GMR Infrastructure Ltd. and GMR Energy Limited, is involved in construction, operation and maintenance of the Project arising out of the Concession Agreement between the parties. The respondent is the National Highways Authority of India responsible for maintenance, management and development of National Highways or stretch of the National Highways vested in or entrusted to it by the Central Government.

4. As per the Concession Agreement, the petitioner achieved the Provisional Commercial Operation Date within 30 months, i.e., on 26th March 2009, whereafter, the petitioner has been operating and maintaining the Project. The final Completion Certificate was also obtained by the petitioner on 25th July 2009.

5. Thereafter, disputes arose between parties regarding requirement to do renewal work every five years. After several attempts of resolution of such disputes, with the intervention of this Court in OMP (I)(COMM) No. 421/2018, an Arbitral Tribunal was constituted by the Indian Council of Arbitration and ultimately, the Award dated 14th January 2020 was passed. The following reliefs were given in the said Award:-

"a. The Petitioner is not entitled to the claim amount of Rs.104,47,80,462/- on account of reimbursement of costs incurred for relaying the pavement at the end at the end of the fifth year and extra costs incurred due to the decision not to allow recycling of milled material.

b. Petitioner is entitled to the claim amount of Rs.10,78,61,8641- on account of deductions made by the Respondent towards damages. The Respondent is required to pay the aforesaid amount to the Petitioner along with interest @ 12% p.a. from the date of deduction, i.e., 27.03.2018, till the date of payment.

c. Petitioner is entitled to the litigation costs of Rs.30 lacs, which is required to be paid by the Respondent to the Petitioner. In addition to this amount, whatever amount the Petitioner has deposited with the ICA towards the share of the fees payable by the Respondent, Rs.57,65,250/-, shall also be paid by the Respondent to the Petitioner as further costs.

d. Counter Claim of the Respondent stands rejected.

e. The awarded sum of Rs.10,78, 61,8641- along with costs of Rs.30 lacs and interest @ 12% p.a. shall be paid by the Respondent to the Petitioner within 30 days from the date of the Award.

f. The renewal work is required to commence by 01.04.2020 and the work is required to be completed by the end of the year 2020. For the 3rd cycle, it is directed that the work is required to be completed by 01.04.2025."

6. Accordingly, on 13th February 2020, the petitioner raised an invoice f