An order rejecting an amendment to a statement of claim is not an interim award under Section 34 of the Arbitration Act, as it does not determine substantive issues or rights in the arbitration.

JUDGMENT

[VIA VIDEO CONFERENCING]

Sanjeev Narula, J. (Oral)--The Petitioner viz. VIL Rohtak Jind Highway Pvt. Ltd. has filed the present petition under Section 34 of the Arbitration and Conciliation Act, 1996 [hereinafter, "the Act"] seeking the setting aside of the impugned Order dated 25th September, 2021 passed by the Arbitral Tribunal - to the extent it disallows the amendment sought by Petitioner in respect of the Claim (b) qua termination payment due under the contract.

2. At the outset, the Respondent viz. National Highways Authority of India [hereinafter, "NHAI"], raises a preliminary objection qua the maintainability of the present petition on the ground that the impugned Order is not an "award or interim award", and hence, does not fall within the ambit of Section 34 of the Act.

3. In light of the foregoing, it would be apposite to first decide the afore-noted objection, before dealing with the contentions advanced by the parties on merits of the proposed amendment, so declined.

THE FACTS

4. The factual matrix, giving rise the present petition, is as follows:

4.1. In February, 2011, NHAI invited tenders for the `Four Laning of Rohtak-Jind Section from KM 307.000 to KM 347.800 of NH-71 and connecting link from KM 347.800 of NH-71 to KM 9.400 of NH-71A in the State of Haryana to be executed as BOT (Toll) on DBFO pattern under NHDP Phase-III' [hereinafter, "the Project"] at an estimated cost of Rs.283.75 Crores.

4.2. In terms of the tender requirements, M/s. VIL Limited promoted and incorporated the Petitioner-Company as a special purpose vehicle to act as the concessionaire for execution of the Project. The Project was awarded to M/s VIL Limited vide Letter of Award dated 23rd December, 2011.

4.3. Pursuant thereto, a Concession Agreement dated 7th March, 2012 was executed between Petitioner and NHAI. [hereinafter, "Agreement"].

4.4. According to Petitioner, after commencement of the Project, land was made available only on a piecemeal basis and there were other delays on account of NHAI. The led to disputes between the parties.

4.5. On 13th July, 2016, NHAI issued a termination notice stating that works were not taken up in the right earnest and that the project shall be deemed to be terminated w.e.f. 23rd July, 2016.

4.6. In such circumstances, Petitioner approached this Court initially by way of a writ petition [Being W.P. (C) 6305/2016] followed by a petition under Section 9 of the Act [Being O.M.P. (I) (Comm.) 310/2016] - wherein, vide Order dated 25th July, 2016, NHAI was restrained from taking any coercive steps against the Petitioner.

4.7. Subsequently, parties were directed to nominate their respective Arbitrators, and a three-member Arbitral Tribunal was constituted which was then directed to consider and decide the Section 9 petition as one under Section 17 of the Act.

AT ARBITRATION & PROCEDURAL HISTORY

5. Thereafter, the Arbitral Tribunal vide Order dated 12th January, 2018, granted a stay on the afore-noted termination notice. The operative portion of said Order reads as under:

"Therefore, till the legality and correctness of the termination orders are adjudicated by the Arbitral Tribunal, the termination orders shall remain stayed"

[Emphasis Supplied]

6. NHAI's appeal against the said Order [Being Arb. A. (Comm.) 10/2018] was then disposed of vide judgment dated 17th January, 2019 - directing the Arbitral Tribunal to re-hear the application under Section 17 of the Act. This time, the Arbitral Tribunal vide Order dated 17th May,