Back
IN THE HIGH COURT OF DELHI
Vibhu Bakhru, J.
GVK Jaipur Expressway Private Limited - Appellant
Versus
National Highway Authority of India - Respondent
O.M.P. (COMM) 377 of 2020
Decided On : 29-10-2021
| Table of Content |
|---|
| 1. petition filed under a&c act against arbitral award. (Para 1 , 2) |
| 2. background of concession agreement phases. (Para 3 , 4 , 5) |
| 3. discussions on traffic congestion and proposed additional toll lanes. (Para 6 , 7 , 8 , 9 , 10 , 11 , 12) |
| 4. petitioner submitted work orders for additional toll lanes. (Para 13 , 14 , 15) |
| 5. nhai's denial of 'change of scope' payment. (Para 16 , 17) |
| 6. arbitral proceedings and claims for reimbursement. (Para 18 , 19 , 20 , 21 , 22 , 23 , 24) |
| 7. arbitral tribunal's findings on petitioner’s obligations. (Para 25 , 26 , 27 , 28) |
| 8. contentions regarding alleged patent illegality. (Para 29 , 30 , 31 , 32) |
| 9. tribunal’s definitions and interpretations of contract clauses. (Para 33 , 34 , 35 , 36) |
| 10. importance of interpretation of contract in this dispute. (Para 37 , 38) |
| 11. scope of project as per the concession agreement. (Para 39 , 40 , 41 , 42) |
| 12. clarification of obligations under the operation and maintenance phase. (Para 43 , 44 , 45) |
| 13. review of implications of section 34 of a&c act on arbitration clauses. (Para 46 , 47 , 48) |
| 14. failure of tribunal to consider clause 18.4. (Para 49 , 50 , 51 , 52 , 53 , 54) |
| 15. setting aside of the impugned award and permission for re-arbitration. (Para 55 , 56) |
JUDGMENT
Vibhu Bakhru, J.
Introduction
1. The petitioner has filed the present petition under Section 34 of the Arbitration and Conciliation Act, 1996 (hereafter the `A&C Act') impugning an Arbitral Award dated 02.11.2019 delivered by the Arbitral Tribunal comprising of three members - Justice (Retired) R.C. Jain, Justice (Retired) Devinder Gupta and Justice (Retired) Sunil Ambwani as the Presiding Arbitrator. The impugned award was rendered by majority by Justice (Retired) R.C. Jain and Justice (Retired) Sunil Ambwani concurring. Justice (Retired) Devinder Gupta entered a separate dissenting opinion.
2. The impugned award was rendered in the context of disputes that had arisen between the parties in connection with the Concession Agreement dated 08.05.2002 (hereafter the `Concession Agreement'). The petitioner's claim for cost of constructing additional toll lanes was rejected as the Arbitral Tribunal (by majority), inter alia, found that the same was covered within the `scope of work' under the Concession Agreement and, the petitioner was not entitled to any further payment in respect of the same. The petitioner contends that the said view is patently erroneous and disregards the express terms of the Concession Agreement.
Factual context
3. The parties entered into a Concession Agreement dated 08.05.2002 in respect of in respect of "design, engineering, financing, procurement, construction, operation and maintenance for widening of existing 2 lanes to 6 lanes divided carriageway facility including rehabilitation of existing 2-lanes from KM 273.500 to KM 363.885 km on Jaipur-Kishangarh Section of National Highway-8 in Rajasthan" on Build, Operate and Transfer (BOT) basis (hereafter the `Project Highway').
4. Admittedly, the Concession Agreement was divided into two phases. First, being the construction phase and the second, being the operation and maintenance phase. The entire construction of six-lanes of the Project Highway was to be completed by the Commercial Operation Date (COD). In terms of the Concession Agreement, `construction period' began from the appointed date (that is, the date on which the concession period commenced) and ended on the COD. The construction period ended on 20.10.2005 with the Independent Consultant (IC) issuing a Final Completion Certificate. There is no dispute that the petitioner had completed the construction of the Project Highway, in terms of the Concession Agreement, prior to the COD.
5. However, the obligations of the petitioner under the Concession Agreement did not end with the issuance of the Final Completion Certificate. It was also required to operate and maintain the Project Highway in terms of the said Concession Agreement.
6. The projec
The interpretation of contractual obligations under the Concession Agreement indicates that the construction of additional toll lanes was excluded from maintenance obligations, contrary to the tribun....
The non-consideration of a clause in the Concession Agreement by the Arbitral Tribunal is not a ground to set aside the arbitral award, unless it is an error that goes into the root of the award and ....
The interpretation of the Concession Agreement, particularly Article 16 regarding Change of Scope and payment for the same, was central to the court's decision.
A concession period extension under a contract requires compliance with specific procedural conditions, and is not automatic despite recommendations from an independent engineer.
The main legal point established in the judgment is the importance of adhering to the provisions of the Concession Agreement and the limitations on the arbitrator's jurisdiction, as well as the requi....
Arbitral Tribunal's interpretation of contractual obligations is final unless found patently illegal, supporting the principle that thickness of renewal coat not expressly stipulated must align with ....
The Arbitral Tribunal's decision is within its jurisdiction and not patently illegal, and therefore does not warrant interference under Section 34 of the Arbitration and Conciliation Act, 1996.
The court upheld that materially adverse effects on toll collections justified the arbitral tribunal's conclusion of a material breach leading to terminal payments under the Concession Agreement.
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
