ORDER :

This application, under Section 11(6)(a) of the Arbitration and Conciliation Act, 1996 (for short “the Act”) is filed by the applicant seeking to intervene into the matter and appoint a nominee Arbitrator of Respondents to resolve the dispute.

2. The applicant is a Company incorporated under the provisions of Companies Act, 1956. The respondent No.1 is a statutory body constituted under the provisions of Andhra Pradesh Urban Areas (Development) Act, 1975 and respondent No.2 is a company registered under the Companies Act, 1956. It is stated that respondent No.1 invited proposals under a single stage process from bidders and prescribed commercial terms and conditions for selection of a successful bidder vide Notice Inviting Proposal No.HGC/CGM(T)/ORR/6/2006-07 dated 22.02.2007 inter alia for “Design, Construction, Development, Finance, Operation and Maintenance of eight lane access controlled expressway under Phase IIA programme as an extension of Phase I of ORR to Hyderabad city, for the package from Pedda Amberpet to Bongulur from 95.00 KM to 108.00 KM on Build, Operation and Transfer (BOT) (Annuity) Basis” (for short “Project”). In response to the same, a consortium of (i) M/s. IL & FS Transportation Networks Limited (“ITNL”) and (ii) M/s.KMC Constructions Limited, was constituted with ITNL as its lead member for undertaking the project work. The said consortium submitted its Bid for the Project and the same was accepted by the respondents and a letter of acceptance was issued by the respondent No.1 vide its letter dated 14.06.2007. A Concession Agreement dated 03.08.2007 was executed between the applicant and the respondents, containing the detailed terms and conditions in relation to the Project. The said Agreement was subsequently amended vide Supplementary Agreement dated 05.01.2022, whereby Clause 39.2 (arbitration clause) was added with a view to refer the disputes in question to Arbitration. Clause 39.2 (as amended) reads as follows:

"39.2.1 Any Dispute, which is not resolved amicably as provided in Clause 39.1 above shall be finally decided by reference to Arbitration by a Board of Arbitrators, appointed pursuant to Clause 39.2.2. Such arbitration shall be held in accordance with and shall be subject to the provisions of the Arbitration and Conciliation Act, 1996 and amendments thereto.

39.2.2 Arbitration shall be conducted by a panel of three Arbitrators each party shall appoint one Arbitrator and the two Arbitrators shall mutually appoint the Presiding Arbitrator. The Arbitration process shall be governed by the Arbitration and Conciliation Act, 1996, and amendments thereto.

39.2.3 The arbitrators shall issue a reasoned Award.

39.2.4 The seat of such arbitration shall be at Hyderabad, India.

39.2.5 The language of arbitration shall be English.

39.2.6 The arbitration fee shall be governed by the Fourth Schedule to the Arbitration & Conciliation Act, 1996 and amendments thereto, with a maximum ceiling of Rs. 30 Lakhs payable to each arbitrator, maximum of Rs. 90 Lakhs for entire three members Tribunal. The above fee shall be shared in equal proportion by both the Concessionaire and the Employer"

3. It is further case of the applicant that “Project Completion Schedule” had to be met not later than 30 months from the Commencement Date, and the period ending on 30th month from the Commencement Date was referred to as the "Schedule Project Completion Date" ("SPCD"), which, in the present case, had to fall on or before 09.06.2010. The said condition was subject to the Respondents being able to handover Right of Way (“ROW”) for the Site to the Applicant in a timely manner as stipulated under Article 13.5 of the Concession Agreement dated 03.08.2007. It is further case of the applicant that respondents materially failed to handover the Site as stipulated under the Concession Agreement dated 03.08.2007. The abnormal delay in handing over the Site/Right of Way by the respondents severely affected the completion of the Project