IMPORTANT POINT
The Court emphasized the limited scope of interference in appeals under Section 37 of the Arbitration Act and upheld the findings of the Arbitral Tribunal and the Single Judge based on plausibility and reasonableness.

JUDGMENT

Mini Pushkarna, J. (Oral)

1. The present appeal has been filed under Section 37 (1) (c) of the Arbitration and Conciliation Act, 1996 ("Arbitration Act") assailing the judgment dated 31st July, 2023 passed by the learned Single Judge in OMP (COMM) 185/2021. The present appeal challenges the impugned judgment to the extent that the learned Single Judge has held that the claims raised on behalf of respondent are within limitation and has further upheld the findings of the Arbitral Tribunal in respect of claim no. 2 pertaining to extension of concession period due to transport strike from 13th April, 2003 to 24th April, 2003 and heavy rain in October, 2003.

2. The appellant/ National Highways Authority of India ("NHAI") issued letter of Award dated 2nd May, 2001 to the consortium of the respondent requiring it to execute Concession Agreement for designing, engineering, financing, procurement, construction, operation and maintenance on BOT basis ("Build, Operate & Transfer") for widening and rehabilitation of existing two lane to four lane divided carriageway on the Nelamangala - Tumkur Section of NH-4 in the state of Karnataka.

3. The consortium incorporated respondent for entering into the Concession Agreement, which was executed on 28th June, 2001 between the respondent and the NHAI. The construction period was stipulated as 24 months from the Appointed Date in terms of Clause 15.3 of the Concession Agreement. The total concession period was 19 years from the Appointed Date in terms of Clause 3.1 of the Concession Agreement.

4. Since 23rd June, 2002 was fixed as the Appointed Date, as such 24 months of construction period was to be counted from the said date. Thus, the scheduled completion date of the project was 24th June, 2004. However, the respondent completed the project before time on 10th February, 2004 which was declared as the Provisional Commercial Operation Date and the respondent started collecting toll from the project from the said date onwards. The completion certificate was issued subsequently on 25th November, 2004.

5. Various disputes arose between the parties. Demand Letter dated 2nd January, 2007 was issued by the respondent to the appellant. Subsequently, the respondent invoked Dispute Resolution Clause under Clause 39 of the Concession Agreement on 10th October, 2007 seeking amicable settlement. The claims as raised by the respondent were under consideration by the appellant from time to time. By letter dated 10th April, 2017, the Project Director of the appellant recommended to settle the claims of the respondent herein. Since no settlement was reached, the respondent invoked arbitration on 15th May, 2017 in respect of various claims.

6. By Award dated 31st December, 2020, the learned Arbitral Tribunal allowed various claims of the respondent. The said Award was challenged by the appellant in respect of all the claims allowed by the learned Arbitral Tribunal by filing petition under Section 34 of the Arbitration Act being OMP (COMM) 185/2021. However, at joint request of the parties, only claim nos. 2, 4 & 5 related to extension of concession period were adjudicated by the learned Single Judge.

7. By impugned judgment dated 31st July, 2023, the learned Single Judge partly allowed the petition under Section 34 of the Arbitration Act filed on behalf of the appellant. Thus, the learned Single Judge upheld the Award for claim no. 2 and set aside the Award so far as claim nos. 4 & 5 are concerned. The present appeal has been filed assailing the findings of the learned Single Judge regarding limitation and claim no. 2.

8. On behalf of the appellant, the following contentions have been raised:

8.1. Claim no. 2 relating to extension of concession period for 45 days owing to transport strike and heavy rain did not constitute force majeure. Therefore, the respondent was not entitled for extension of concession period. The respondent achieved commercial operation date on 10th February, 2004 and started collecting tol