The court held that the respondent's initiation of the execution of the supplementary agreement precluded the argument of coercion, and that the claims were not barred by limitation.

JUDGMENT

Yogesh Khanna, J.

I.A.Nos.1253/2023 in O.M.P. (COMM) 24/2023

1. This application is filed for stay of the enforcement of an arbitral award dated 01.10.2022 (hereinafter referred to as the "impugned award") as passed by Arbitral Tribunal consisting of Hon'ble Justice (Retd.) Shiva Kirti Singh, Presiding Arbitrator, Hon'ble Justice (Retd.) Amitava Roy and Hon'ble Justice (Retd.) Dilip Kumar Seth, on the ground the award passed by learned Arbitral Tribunal is patently illegal and is in contravention with the fundamental policy of Indian law and in conflict with the most basic notions of justice and morality. It is alleged the learned Arbitral Tribunal has passed the impugned award in violation of the principles of natural justice as contained in Section 18 and 34(2)(a)(iii) of the Arbitration and Conciliation Act, 1996.

2. The facts are:

a) On 11.12.2006 petitioner had invited bids on 11.12.2006 for design, engineering, finance, construction, operation and maintenance of Trichy - Karur Section from km 135.800 (Excluding Lalapet ROB) to Km 218.000 of National Highway-67 (NH-67) in the State of Tamil Nadu under NHDP Phase IIIA on build, operate and transfer (BOT) basis. The project was to include strengthening of the existing carriageway in the aforesaid section and widening thereof to 4 lanes and its improvement, operation and maintenance through a concession on BOT basis;

b) On 05.03.2007 Reliance Energy Ltd. was declared as the successful bidder by the petitioner for the said project. The petitioner issued a letter of acceptance (LOA) in favour of Reliance Energy Ltd. As per the request of Reliance Energy Ltd., the petitioner agreed to enter into a concession agreement with the respondent on dated 19.07.2007. The parties also entered into a tripartite State Support Agreement with the Government of Tamil Nadu.

c) The construction period envisaged in the concession agreement was thirty months. On 15.01.2008 NHAI declared the appointed date as 15.01.2008, hence the concession period would therefore be upto 14.01.2038 and 14.07.2010 is the scheduled date of completion as per concession agreement.

d) On 14.11.2013 a supplementary agreement was executed for issuance of a partial PCC for the partial stretch, and both parties gave up all their claims against each other for the delay and extension of scheduled project date. Thus the commercial operation date was 24.02.2014. On 17.12.2018 the respondent wrote a letter for commencement of arbitration and nomination of an arbitrator.

e) On 01.10.2022 the learned arbitrators passed the impugned award awarding a total sum of Rs.10,56,54,93,214/- to the respondent, hence the present petition challenging the said award.

3. It is argued the award is without any evidence and is based on conjectures and assumptions, shocking to known jurisprudence and is in gross contravention with the fundamental public policy of Indian Law and in conflict with the basic notions of morality and justice.

4. It is alleged while passing the arbitral award, learned Arbitrators have not considered the specific terms of the Concession Agreement and the supplementary agreement dated 14.11.2013 vide which the respondent had given up all its claims until the date of execution of the supplementary agreement dated 14.11.2013. It is alleged the learned arbitral tribunal did not consider the supplementary agreement was executed without any kind of coercion or economic duress and the respondent had voluntarily executed such supplementary agreement. It is argued the learned Arbitral Tribunal did not consider the Respondent/Claimant produced no evidence of the Supplementary Agreement been executed under coercion or economic duress and thus had no right to plead economic duress or coercion after having taken all benefits under the terms of the Supplementary Agreement dated 14.11.2013, executed under a policy of NHAI.

5. It is argued the learned Arbitrators also failed to consider the claims were barred by limitation and