Arbitral Tribunal's interpretation of contractual obligations regarding maintenance and renewal for highway projects should not deviate from explicit performance criteria outlined in contracts, ensuring uniformity in contractual enforcement.

JUDGMENT

1. Both these petitions, under Section 34 of the Arbitration and Conciliation Act, 1996, ("the 1996 Act") assail an award dated 14th January, 2020, passed by a learned three member Arbitral Tribunal. The award was passed by a majority of two learned members to one. GMR Pochanpalli Expressways Ltd ("GMR") was the claimant before the learned Arbitral Tribunal and National Highway Authority of India ("NHAI") was the respondent. GMR preferred five claims, whereas NHAI preferred a single counter-claim for the costs of the arbitration. Of the five claims preferred by GMR, the learned Arbitral Tribunal, per majority, rejected Claims 1, 3 and 4 and allowed Claims 2 and 5. As Claim 5 of GMR pertains to awarding of costs as per actuals, allowing of the said claim also resulted in the rejection of the counter-claim of NHAI. The minority award rejected all five claims of GMR.

2. GMR and NHAI have both assailed the impugned award, to the extent that the award has rejected their respective claims/counter-claims and allowed the claim of the opposite party.

A Prefatory Note

3. During the course of arguments, in this case, Mr. Atul Sharma, learned counsel for GMR, drew the attention of the Court to the fact that, in an earlier award dated 21st August 2019 between NHAI and Nirmal BOT Ltd, another contractor, in similar circumstances and involving an identically worded contract, the very issues which constituted subject matter of Claim 1 of GMR in the present case had arisen for consideration before another three member Arbitral Tribunal. The award in that case, which was rendered prior in point of time to the impugned award, has been placed on record. Paras 8.2.9 to 8.2.20 of the said award indicate that the learned Arbitral Tribunal, which was in seisin of the dispute in that case has interpreted the very clauses with which the learned Arbitral Tribunal in the present case was concerned and that the interpretations of the relevant clauses in the two awards are diametrically opposed to each other.

4. This does not appear to be an isolated phenomenon. The Supreme Court, in NHAI v. Progressive-MVR (JV), (2018)14 SCC 688, observed, in para 15 of the report, thus:

"15. Thus, the main reason because of which the NHAI lost in those proceedings was that two possible interpretations could be given to the Clause in question and, therefore, the recourse taken by the Arbitral Tribunal by adopting one particular interpretation was not required to be interfered with. SLP against that was dismissed. In a situation like this, this Court would not have undertaken further exercise in the matter. However, another Arbitral Tribunal in the case of M/s. Ssangyong Engineering and Construction Co. Ltd. has accepted the other view, which goes in favour of the NHAI. It leads to an anomalous situation. The NHAI has entered into multiple contracts with different parties containing the same clauses of price variation. Once we find that Arbitral Tribunals are taking different views, and the view taken in favour of the NHAI is also one of the possible interpretations, the effect thereof would be to uphold both kinds of awards even when they are conflicting in nature in respect of the same contractual provision. It may not be appropriate to countenance such a situation which needs to be remedied. Therefore, under this peculiar situation, we deem it proper to go into the exercise of interpreting the said Clause so