Chennai Metro Rail Limited, Administration Building, Chennai Metro Rail Depot, Chennai vs Joint Venture M. s, Transtonnelstroy - Afcons JV Comprising of Transtonnelstroy Limited, Russia

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(Mad) 1901

IN THE HIGH COURT OF JUDICATURE AT MADRAS
N. SATHISH KUMAR, J
M/s. Chennai Metro Rail Limited, Administration Building, Chennai Metro Rail Depot, Chennai - Appellant
Versus
The Joint Venture M.s, Transtonnelstroy - Afcons JV Comprising of Transtonnelstroy Limited, Russia & Another – Respondent
Arbitration Original Petition Nos. 96 & 97 of 2021 & A. Nos. 2868 & 2870 of 2021
Decided on : 28-10-2021

Advocates:
Advocate Appeared:
For the Petitioner:R. Yashod Vardhan, SC, S. Arjun Suresh, Advocate
For the Respondent:G. Masilamani, SC, D. Balaraman, Advocate

Headnote:
Arbitration and Conciliation Act, 1996 - Sections 18,34, 28 ,23, 18 and 28 - Evidence Act -Indian Parliament in enacting 1996 Act - Section (3) 26, 34 [2A] - Uncitral Model Law Article 26 and24(3) - Granting extension - Scope of work relate to design and construction of underground stations at High Court and Associated Tunnels in respect of Contract - Contract commencement date was on and scheduled completion date - Revised completion date as per addendum was extended upto - As dispute arose between parties in respect of contracts particularly with regard to extension of time matter has been referred to arbitral tribunal - Claimant herein after called as TTA-JV made claim in respect of contract in U.A. before arbitral tribunal - In Claim extension of time is sought up for events between In Claim extension was sought upto for events between. However Arbitral Tribunal had passed following award – Held, Arbitral tribunal extending time without proper opportunity is liable to be interfered - It is relevant to note that dispute with regard to other claims cost related claims are still pending before arbitral tribunal - Though these awards have been passed separately in respect of extension of time since main dispute in respect of various monetary claims are pending before arbitral tribunal learned Arbitral Tribunal ought to have decided all disputes in same proceedings instead of passing separate award for extension of time alone - Main dispute is still pending before Arbitral Tribunal it is well open to claimant to prove documents and claim extension of time in existing proceedings - learned arbitral tribunal can very well give an opportunity to parties in respect of extension of time sought by claimant - After affording proper opportunity to both sides extension of time can be decided in existing claim itself which are pending before arbitral tribunal in both contracts In such view of matter Court is of claimant instead of going for mere extension of time before tribunal they ought to have referred entire dispute including extension of time - As Court has found that no opportunity has been given and unmarked documents have been relied upon by tribunal award passed by tribunal in both matters are liable to be set aside - Original Petitions Allowed

JUDGMENT :

(Prayer: Petitions filed under section 34 [2] [a] [iv], 34 [2] [b] [ii], 34 [2A] read with sections 18 and 28 of the Arbitration and Conciliation Act, 1996 [As Amended] to set aside the impugned Award dated 01.06.2021 passed by the Arbitral Tribunal and allow these petitions with costs.)

1. Aggrieved over granting extension of time in both the petitions O.P.No.96 of 2021 and 97 of 2021 have been filed challenging the awards.

2. The subject matter of O.P.No.96 of 2021 is the scope of work relating to design and construction of underground stations at Shenoy Nagar, Anna Nagar East, Anna Nagar Tower, Thirumanalam and Associated Tunnels in respect of the Contract No.UAA-05 The date of commencement of the contract was on 07.02.2011 and scheduled date of completion was on 07.01.2015. The total Contract value is Rs.1030.99 crores. However, the revised completion date was agreed upon between the parties by an addendum dated 29.08.2013 and the completion dated was extended upto 05.07.2015.

3. In respect of subject matter of O.P.No.97 of 2021, the scope of work relate to design and construction of underground stations at Washermanpet, Mannadi, High Court, Chennai Central and Egmore and Associated Tunnels in respect of Contract No.UAA-01. The contract commencement date was on 07.02.2011 and scheduled completion date was on 07.04.2015. The value of the contract was Rs.1556.81 crores. The revised completion date as per the addendum was extended upto 30.03.2016.

4. As the dispute arose between the parties in respect of the contracts, particularly, with regard to the extension of time, the matter has been referred to arbitral tribunal. The claimant herein after called as TTA-JV made the claim in respect of the contract in U.A.A.No.05 [O.P.No.96 of 2021] before the arbitral tribunal. In Claim No.1 extension of time is sought up to 28.12.2017 for the events between 07.02.2011 and 31.12.2012. In Claim No.2, extension was sought upto 26.01.2019 for the events between 16.04.2013 and 31.05.2014. However, the Arbitral Tribunal had passed the following award:

1] The Claimant is entitled to an Extension of Time for 179 days for overall completion of the works [i.e., KD-17: Achieve issuance of taking Over Certificate] with the revised Key dates as per Annexure -1 of Addendum No.1, on account of Respondent’s delay upto 15.04.2013.

2] The Claimant is entitled to further Extension of Time for 302 days for overall completion of the works with revised date as 02.05.2016 [i.e., KD-17: Achieve issuance of Taming Over Certificate] and with revised key dates for completion of individual Key dates as tabulated in Annexure - 9 of this award, on account of respondent’s delay upto 31.05.2014.

3] The Claimant is not liable to pay any Liquidated damages till the revised date for achievement of each Key Dates as detailed in Annexure -9 of this Award and the refund of LD amount under Claim Nos.1 & 2 of this Award shall be made only upon considering the further revision of Kds if any in the final adjudication of all extension of time claims under the Contract.

4] The Parties are directed to equally share the Arbitrators fees and Arbitral proceedings expenses. However, the expenses incurred by each party in connection with the preparations, presentations etc., of its case prior to, during and after the proceedings shall be borne by each party itself.

5. O.P.No.97 of 2021 is in respect of the contract in U.A.A. No.01, wherein the claimant, before the arbitral tribunal in Claim No.1 claimed extension of time is sought up to 28.12.2020 for the events between 07.02.2011 and 28.02.2013. In Claim No.2, extension was sought upto 15.05.2021 for the events between 16.04.2013 and 31.05.2014. However, the Arbitral Tribunal had passed the following award :

1] The Claimant is entitled to an Extension of Time for 357 days for overall completion of the works [i.e., KD-19: Achieve issuance of taking Over Certificate] with the revised Key dates as per Annexure -1 of Addendum No.1, on a

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