JUDGMENT

Jayant Nath, J.(Judgment)--This petition is filed under Section 34 of the Arbitration and Conciliation Act seeking to impugn the Award dated 7.10.2016. A tender was floated by the respondent for construction work of two laning of Jowai-Meghalaya/Assam Border section of NH-44 (Km 69.2 to Km 173.2) to be executed on DBFOT Pattern i.e. Design Build Finance Operate and Transfer Basis. One Simplex Infrastructure Ltd. was declared the successful bidder and a Letter of Award was issued in its favour on 20.3.2012. The Letter of Award required formation of a Special Purpose Vehicle (SPV) by Simplex Infrastructure Limited for the purpose of execution of the project. Hence, the petitioner Company Jaintia Highway Private Limited was incorporated. On 05.06.2012 a Concession Agreement (hereinafter referred to as the `CA') was executed between the parties.

2. The Concession Agreement envisaged that the Appointed Date would be declared upon the fulfillment of the conditions precedent by the parties. The condition precedents to be fulfilled by the respondent as per the CA were listed in Clause 4.1.2 of the CA. One of the provisions regarding fulfillment of the conditions precedent was that it was essential for the respondent-NHAI to provide vacant access and Right of Way (in short the `ROW') of least 80% of the total area of the site.

3. The Appointed Date is defined in Article 48 of the Concession Agreement read as follows:

"Appointed Date" means the date on which Financial Close is achieved or an earlier date that the Parties may by mutual consent determine and shall be deemed to be the date of commencement of the Concession Period. For the avoidance of doubt, every Condition Precedent shall have been satisfied or waived, as the case may be, the Appointed Date shall be deemed to occur only each and every Condition Precedent is either satisfied or waived, as the case, may be"

4. Hence, the two main requirements stipulated for determining the Appointed Date was that financial closure should have been achieved and all conditions precedent should have been satisfied before declaration of the Appointed Date.

5. The case of the petitioner is that the petitioner initiated and completed the process of obtaining financial closure on 04.06.2013. The bank of the petitioner duly intimated the same to the respondent. It is pleaded by the petitioner that it duly fulfilled the contractual obligations within the time set out in the Concession Agreement. It is further contended that the respondent was always aware that a large amount of land was still required to be acquired for the project. A total of 186.02 hectare land was required whereas only 130 hectare was the existing land at site. The case of the petitioner is that 80% of the Right of Way for the land had to be provided by the respondent before the Appointed Date could be declared whereas only 69.88 % of land had been acquired. It is pleaded that despite being aware that the respondent had not yet acquired 80% of the land as required by the Concession Agreement and despite the fact that there was a controversy in respect of the acquisition the respondent went ahead and declared illegally that it had fulfilled all its conditions precedent and that the petitioner too had fulfilled all its conditions precedent and declared the Appointed Date.

6. The respondent on 10.01.2014 declared that the Appointed Date had been fixed. It was pleaded that the declaration of 10.01.2014 as the Appointed Date was a unilateral illegal declaration.

7. On 08.08.2014 the respondent issued a notice upon the petitioner under clause 37.1 of the Concession Agreement calling upon the petitioner to cure the alleged breaches within 60 days. On 22.10.2014 the respondent issued a notice of intention to terminate the Concession Agreement in terms of clause 37.1.2 of the Agreement. The Performance Bank guarantee was invoked on 10.11.2014. A Supplementary Agreement was entered into between the parties on 29.04.201