JUDGMENT

Najmi Waziri, J.

1. This appeal under section 37 of the Arbitration and Conciliation Act, 1996 (`the Act') impugns the order dated 29.03.2022 of the learned Single Judge dismissing the appellant/HSIIDC appeal in FAO(OS) (COMM) 90/2022 under section 34 of the Act against the Arbitral Award dated 24.03.2020. The Arbitral Award was delivered by a three-member Arbitral Tribunal comprising a former Chief Justice of India and two former judges of the Supreme Court.

2. For developing the Kundli-Manesar-Palwal (`KMP') Expressway, HSIIDC/appellant had appointed M/s. KMP Expressway Limited (KMPEL)/R-2 as the concessionaire. Monies were borrowed from the banks/Senior Lenders, which were represented by IDBI/R-1 as a lenders. agent. HSIIDC terminated the contract and appointed two concessionaires on terms that were different from KMPEL.s. Referring to the Substitution Agreement dated 08.01.2007, IDBI claimed that the appointment of the concessionaires by the appellant had prejudiced the interest of the Senior Lenders, therefore, it be awarded damages.

3. Finding the issues in favor of the IDBI, the Arbitral Tribunal awarded damages of a sum of Rs.1,737.11 crores along with future interest at the rate of 9% per annum from the date of the impugned award in favour of the IDBI and against the HSIIDC. Interestingly, it also noted that pursuant to proceedings initiated by the IDBI, before the DRT against KMPEL, HSIIDC would be entitled to re- imbursement of such amounts as may be recorded through DRT.

4. Mr. Sudhir Nandrajog, the learned Senior Advocate for HSIIDC submits that the impugned judgment is vitiated primarily because: (i) the Arbitral Tribunal.s findings suffer from perversity, ii) for the Award to hold that the appellant was in breach of the Substitution Agreement is erroneous and contrary to the records; iii) it disregards the fact that on 13.08.2013, a notice of default followed by a substitution notice dated 13.01.2014, was issued by IDBI itself and the latter being aware of the 120 days time window, ought to have nominated another entity in lieu of KMPEL. It did not do so, therefore, the appellant issued a cure notice dated 28.01.2015, especially when IDBI had already issued the afore-noted two notices; (iv) it was always open to IDBI to nominate another concessionaire but it failed to do so, therefore, in the larger public interest, the appellant was compelled to issue a cure notice dated 28.01.2015.

5. He further submits that since because of a delay in completion of the project, on 30.01.2015 the Supreme Court directed the appointment of a new concessionaire within a period of two months; therefore the Concession Agreement was terminated on 19.03.2015. It was in view of the Supreme Court.s strict timeline that the existing Concession Agreement became unworkable and impossible to follow the timeline prescribed in clause 3.1(iii) of the Substitution Agreement of at least 120 days for IDBI to nominate its Selectee. Therefore, in view of the imperative directions of the Supreme Court, Tender Notice was issued on 20.02.2015. Fresh bids were accepted for two separate sections of the KMP Highway on 28.03.2015 for Manesar-Palwal section and on 31.07.2015 for Kundli-Manesar section. The appellant argues that with the termination of the Concession