The court clarified that the powers under Section 9 of the Arbitration and Conciliation Act cannot extend to granting specific performance of a contract or automatic extensions beyond terms explicitly communicated.

JUDGMENT

Jyoti Singh, J. (ORAL)

CM APPL. 28396/2022 (Exemption)

1. Allowed, subject to all just exceptions.

2. Application stands disposed of.

FAO(OS) (COMM) 158/2022 & CM APPL. 28395/2022 (Interim relief)

3. Present appeal arises from the impugned judgment dated 03.06.2022, passed by the learned Single Judge in O.M.P.(I) (COMM.) 166/2022 filed by the Appellant under Section 9 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the `Act').

4. A brief narrative of the facts, to the extent necessary and relevant for disposal of the present appeal, is that the Appellant is a Special Purpose Vehicle promoted and incorporated specifically for the purpose of executing the work of Six-Laning of Gurgaon-Kotputli-Jaipur Section of NH-8 from KM 42.70 to KM 273.00 on Build, Operate and Transfer (`BOT') basis awarded by National Highways Authority of India (hereinafter referred to as the `Respondent'), in terms of Concession Agreement (`CA') dated 06.06.2008.

5. As per the case set up by the Appellant, on 25.07.2018 Respondent conducted a Traffic Sample Survey in accordance with Article 29.1.1 of the CA, for the years 2016, 2017 and 2018, whereby it was established that as on the Target Date, the Actual Traffic had fallen short by 14.86% of the Target Traffic and accordingly, Respondent wrote to the Independent Engineer (`IE') for factual determination qua modification in the CA.

6. Pursuant to a determination by the IE on 01.08.2018, the Concession Period was deemed extended by 28 months and 24 days, i.e., upto 26.08.2023. Even though the factual determination was made by the IE, the Senior Lenders/Respondent No.2 herein, wanted a formal letter from the Respondent acknowledging the extension upto 26.08.2023, before considering the Resolution Plan of the Appellant. Accordingly, the Senior Lenders and the Appellant requested the Respondent to issue a formal letter according administrative approval. However, despite assurances, a formal letter was not issued and in absence thereof, the Senior Lenders started considering initiation of debt recovery proceedings against the Appellant.

7. In light thereof, the Appellant approached this Court in W.P.(C) 6693/2020 seeking a direction to the Respondent to give its administrative approval in accordance with the determination made by the IE. Vide order dated 21.09.2020, Court directed the Respondent to communicate its stand within 4 weeks to the Appellant. On 10.12.2020, Respondent communicated its acknowledgement for an interim extension of 14 months out of the total 28 months and 24 days.

8. Between January 2021 to February 2022, Senior Lenders also wrote to the Respondent to communicate its approval for the entire period of 28 months and 24 days as per Article 29 of the CA, however, due to the rigid stand of the Respondent, they refused to consider the Resolution Plan and on 10.12.2021, initiated debt recovery proceedings against the Appellant and its promoter companies before the DRT in O.A. No.926/2021.

9. Constrained by the said proceedings, Appellant approached this Court on 10.03.2022 in W.P.(C) 4151/2022, seeking a direction to the Respondent to grant the administrative approval, in accordance with Article 29 of the CA. Vide order dated 25.03.2022, this Court directed the Respondent to duly evaluate the prayer and communicate a decision in respect thereof to the Appellant. Letter dated 29.04.2022, was sent by the Respondent to the Appellant communicating its stand that the interim extension granted upto 02.06.2022 was full and final and also threatened to forcibly takeover the toll plazas on