The court affirmed that the Tribunal's rejection of the appellant's request for interim measures was valid due to established insufficient funding and non-compliance, affirming limited grounds for interfering with arbitral decisions.

JUDGMENT

Prateek Jalan, J.

1. The present appeal under Section 37(2)(b) of the Arbitration and Conciliation Act, 1996 [hereinafter, "the Act"] is directed against an order dated 23.10.2022 by which a three-member Arbitral Tribunal [hereinafter, "the Tribunal"] has rejected an application of the appellant for interim measures under Section 17 of the Act.

I. Factual Background:

2. The Tribunal is in seisin of disputes between the parties under a Concession Agreement dated 21.01.2011 [hereinafter, "CA"] with regard to "Four Laning of Panvel-Indapur Section of NH-17 from KM 0.000 to KM 84.000 in the State of Maharashtra", on Build Operate Transfer [hereinafter, "BOT"] basis.¹ The original period for completion of the work was 910 days, the scheduled date of completion being 16.06.2014. The CA envisaged a concession period of 21 years from 19.12.2011 and payment of an additional concession fee by the appellant. The relevant clauses of the CA, cited in the course of arguments, are set out later in this judgment.

3. The project has admittedly not achieved completion within the time originally stipulated. The substantive dispute between the parties relates to the responsibility for the delay. There is considerable material on record in this connection, of which the relevant minutes of meetings and correspondence will be referred to at the appropriate juncture. The appellant alleges that deviation from the completion schedule occurred on account of the respondent not being able to ensure Right of Way, which was its responsibility under Article 10 of the CA. Moreover, certain delays occurred as the scope of work was increased by the respondent unilaterally. One of the principal contentions of the respondent on the other hand, is that the appellant was unable to infuse sufficient funds for timely completion of the project and that the respondent was compelled to invest a sum of Rs.540 crores in the project under its One Time Fund Infusion Scheme [hereinafter, "OTFIS"].

4. The progress of the project was monitored from time to time by the OTFIS Review Committee and extensions of time for completion were also granted. The last of the extensions, granted on 11.08.2020, was until 31.03.2021.

5. The respondent issued a notice of intention to terminate dated 16.10.2020 [hereinafter, "NITT"], wherein it referred to the correspondence between the parties and contractual clauses to assert that the appellant had failed to achieve progress in the project as envisaged, that it had failed to infuse requisite funds and that the respondent was, therefore, entitled to terminate the CA under Clause 37.1.1 (c), (e) and (g) thereof. After considerable correspondence and meetings between the parties, the CA was ultimately terminated on 17.11.2021.

6. The appellant approached this Court, under Section 9 of the Act, for stay of termination of the CA in anticipation of arbitration proceedings [O.M.P.(I)(COMM) 382/2021]. Several orders were passed by this Court in the course of these proceedings, and an appeal arising therefrom [FAO(OS)(COMM) 52/2022]. It is not necessary for the purposes of the present appeal to enumerate those orders in detail. Suffice it to state that by virtue of an order of the learned Single Judge dated 08.02.2022, read with orders of the Division Bench dated 16.03.2022 and 21.03.2022, the appellant's application under Section 9 of the Act was directed to be treated as an application under Section 17 of the Act before the Tribunal, which had been constituted in the interregnum. However, as the respondent had called for fresh tenders pursuant to the impugned termination, the Division Bench directed that until the Trib