The arbitral tribunal erred in ruling that the claims regarding the transfer of the HCI Lease Agreement were non-arbitrable, as disputes arising under the OMDA are subject to arbitration despite third-party involvement.

JUDGMENT

Vibhu Bakhru, J. Mumbai International Airport Limited (hereinafter `MIAL') has filed the present petition under Section 34 of the Arbitration and Conciliation Act, 1996 (hereinafter `the A&C Act') impugning an Arbitral Award dated 13.03.2021 (hereafter `the impugned award'). The impugned award was delivered by the Arbitral Tribunal comprising of three members - Justice (Retd.) C.K. Thakker, Justice (Retd.) Mohit Shah and Justice (Retd.) R.C Lahoti as the Presiding Arbitrator (hereafter the `Arbitral Tribunal'). The impugned award was delivered by majority [Justice (Retd.) C.K. Thakker and Justice (Retd.) R.C Lahoti]. Justice (Retd.) Mohit Shah entered a different opinion. The draft award rendered by Justice (Retd.) Mohit Shah is included as paragraphs M.1 to M.213. The award rendered by Justice (Retd.) C.K. Thakker span 105 paragraphs, which are numbered C.1 to C.105 and the opinion of the Presiding Arbitrator, Justice (Retd.) R.C. Lahoti is included as paragraphs R.1 to R.11.

2. The impugned award was rendered in respect of disputes that have arisen in connection with the Operation Management and Development Agreement (hereafter the `OMDA') dated 04.04.2006, entered into between the parties.

Factual Context

3. MIAL is a company incorporated under the provisions of the Companies Act, 1956. It is a Joint Venture Company between GVK Airport Holdings Private Limited (hereafter `GVK') led consortium of private developers and the respondent.

4. The respondent (hereafter `AAI') is a statutory authority constituted under Section 3 of the Airports Authority of India Act, 1994 (hereafter `the AAI Act') and is responsible for creating, upgrading, maintaining and managing civil aviation infrastructure in India.

5. On 21.03.2002, AAI and the Hotel Corporation of India (hereafter `HCI') entered into a Lease Agreement for the lease of 14,000 sq. meters of land forming a part of the Chhatrapati Shivaji International Airport (hereafter `the Mumbai Airport') for a period of twenty nine years from 01.04.2002 till 31.03.2031 (hereafter the `HCI Lease Agreement')

6. Pursuant to the policy of the Government of India regarding privatization of certain airports, bids were invited for operating, maintaining, developing, designing, constructing, upgrading, modernising, financing and managing the Mumbai Airport. Thereafter, on 02.03.2006, the consortium led by GVK was declared successful and MIAL was incorporated as a Special Purpose Vehicle (SPV) for developing, operating and financing the Mumbai Airport.

7. Thereafter, on 04.04.2006, MIAL and AAI entered into the OMDA. In terms of the said agreement, MIAL was awarded the rights for operating, maintaining, developing, designing, constructing, upgrading, modernising, financing and managing the Mumbai Airport, on the terms and conditions stipulated therein.

8. On 26.04.2006, MIAL and AAI entered into a Lease Deed, whereby the site of the Mumbai Airport, subject to certain exceptions, was demised to MIAL for the purpose of, inter alia, the operation, management and development of the Mumbai Airport (hereafter the `Lease Deed').

9. Thereafter, AAI, by a communication dated 02.05.2006, informed MIAL that it "shall perform under all existing contracts and agreements between AAI and other parties as relatable to the Airport from the Effective Date, as if MIAPL was an original party to such contracts and agreements instead of AAI and towards this end shall perform all responsibilities, liabilities and obligations of AAI at MIAPL's risk and cost (including payment obligations to counter parties)".

10. On 03.05.2006, MIAL took over the control and operations of the Mumbai Airport, as stipulated in the OMDA.

11. AAI issued a Circular dated 08.06.2006 to all operating airlines/user agencies/licensees informing that the Government of India had handed over the operation, maintenance and development of the Mumbai Airport to MIAL with effect from 03.05.2006. The said Circular a