The main legal point established in the judgment is the limited scope of interference in an appeal under Section 37 of the Act, 1996 and the importance of interpreting and applying the provisions of the Act in line with the specific circumstances of the case.

JUDGMENT

Manmohan, J. (Oral)

1. Present appeal has been filed, by the appellant-National Highway Authority of India (in short `NHAI'), seeking to set aside the judgment and order dated 04th January, 2021 passed by a learned Single Judge of this Court in OMP (COMM) No.442/2020, whereby the Appellant's petition under Section 34 of the Arbitration and Conciliation Act, 1996 (for short `Act, 1996') challenging the second Arbitral Award dated 24th March, 2020 was dismissed.

2. Learned counsel for the appellant-NHAI submits that the Arbitral Tribunal in the impugned award has `wandered outside the relief sought' and dealt with the matters pending in the first arbitration inter se between the parties, which amounts to a patent illegality.

3. She further submits that the learned Single Judge has erred in holding that pendency of the first arbitration award would have no bearing on the issue of bank guarantee as the said bank guarantee was never furnished by the concessionaire/Jetpur Somnath Tollways Pvt. Ltd. (`JSTPL') to secure the claim of the appellant-NHAI. She contends that there is a clear finding to this effect by another learned Single Judge of this Court in an earlier proceeding filed under Section 9 of the Act, 1996. The relevant portion of the order passed in the earlier petition filed under Section 9 of the Act, 1996 by the learned Single Judge is reproduced hereinbelow:

"106. In view of the above:

(i) JETPUR is directed to furnish an unconditional and irrevocable Bank Guarantee, in favour of NHAI, undertaking to pay to NHAI an amount not exceeding Rs.348.604 Crores [i.e. 90% of 640.86 = 576.774 (minus) 222.03 {already paid} (minus) 6.14 {agreed to be payable by NHAI} = 348.604]; and

(ii) On deposit of the Bank Guarantee, NHAI shall forthwith OMP 221/2017 & 227/2017 Page 36 ot 36 deposit in the Escrow Account the sum of Rs.354.744 Crores (i.e. 348.604 + 6.14); and

(iii) The encashment of the Bank Guarantee shall be subject to the final award of the Arbitral Tribunal; and

(iv) JETPUR shall keep the bank guarantee alive for upto a period of four months after the making of the final award by the Arbitration Tribunal; and

(v) Parties shall comply with the provisions of Section 9(2) of the Act"

4. She also challenges the directions given by the Arbitral Tribunal to pay pendent lite and future interest @ 9 per cent (simple interest) per annum on the ground that the appellant-NHAI had made the payment in accordance with the order of the Supreme Court dated 05th January, 2018, which had directed the appellant-NHAI to pay a sum of Rs.348.604 crore within a period of six months. She contends that as the appellant-NHAI had made the payment on 29th January, 2018 i.e. within the prescribed time period of six months, the award of interest by the Arbitral Tribunal was patently illegal.

5. Having perused the paper book, this Court finds that both the Arbitral Tribunal as well as the learned Single Judge have rejected the aforesaid submissions advanced by the learned counsel for appellant-NHAI. The relevant portions of the Arbitral Award and the order passed by the learned Single Judge are reproduced hereinbelow:

A. Relevant portion of the Arbitral Award dated 24th March, 2020

"68.2 Claim No.(b):AT in its order dt. 01.07.2019, on the Respondent No.2's application filed u/s 16(3) of the Act had framed the following issues in respect of this claim.

"Whether the Claimant is entitled and Respondent No.1/NHAI liable to pay 90% of the Debt Due towards Termination Payment in respect of which the Claimant has received payment pursuant to a Bank Guarantee submitted by Respondent No.2/JSTPL and consequential reliefs"

68.3 The calculations submitted by the Respondent No.1 with regard to the calculations of Debt Due were not correct as noted hereinabove as well as by Hon'ble High Court of Delhi (Division Bench) in its order dt. 31.10.2017.

68.4 The Respondent No.1 is not entitled to affect any recoveries from the 90% Debt Due amount payable to the Respondent