NEUTRAL CITATION NUMBER- 2023/DHC/001793

Page 1 of 25

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IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of Decision: 14^thMarch, 2023

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O.M.P.(T) (COMM.) 109/2022 & I.A. 18205/2022

NATIONAL HIGHWAYS AUTHORITY OF INDIA

..... Petitioner

Through:

Ms. Maninder Acharya, Senior

Advocate

with

Mr.

Ashish

Rana, Mr. Anurag Singh, Mr.

Nilesh Mudgil, Mr. Gaurav Raj,

Advocates.

versus

M/S AE TOLLWAY LTD.

..... Respondent

Through:

Mr.

Saurabh

Kirpal,

Senior

Advocate with Mr. Saket Sikri,

Mr.

Anirudh

Bakhru,

Ms.

Charu S. Singh, Mr. Sarthak

Sachdeva,

Ms.

Teresa,

Ms.

Tejaswini, Mr. Nikhil Arora,

Advocates.

%

CORAM:

HON’BLE MR. JUSTICE PRATEEK JALAN

J U D G M E N T

1.

By way of this petition under Section 14 of the Arbitration and

Conciliation Act, 1996 [hereinafter referred to as “the Act”], the

petitioner- National Highways Authority of India [hereinafter referred

Digitally Signed By:SHITU

NAGPAL

Signing Date:14.03.2023

19:25:49

Signature Not Verified

NEUTRAL CITATION NUMBER- 2023/DHC/001793

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to as “NHAI”], seeks termination of the mandate of an Arbitral

Tribunal [hereinafter referred to as “the Tribunal”], which is in seisin

of disputes between the parties under a Concession Agreement dated

01.09.2015, for “6 Laning of Agra to Etawah Bypass Section of NH-2

of Uttar Pradesh” [hereinafter referred to as “the Agreement”]. The

only ground urged in support of the petition is that the Tribunal has

fixed its fees contrary to the Agreement between the parties.

A. Facts

2.

Article 44 of the Agreement contains the provision for dispute

resolution. Article 44.3 thereof provides for arbitration, in the event

conciliation proceedings between the parties have not been successful.

The arbitration clause contemplates a three-member arbitral tribunal,

comprising of one nominee of each of the parties, and a presiding

arbitrator to be chosen by the two arbitrators so nominated.

3.

Article 44.3.1(vii) of the Agreement provides for fees and

expenses payable to the arbitrator. It reads as follows:-

“The fees and expenses payable to the Arbitrators shall be as per the

schedule of remuneration and expenses for Arbitrators notified by

NHAI vide letter no. 11041/217/2007-Admin. DL 13^thJanuary 2010

reproduced herein below, or any amendment thereof:¹

*****”

The circular for schedule of fees and expenses of the arbitrators of

NHAI dated 13.01.2010 [hereinafter referred to as “the 2010

Circular”], has been reproduced in the Agreement. However, it is not

necessary to set it out in full as the parties are ad idem that the present

1 Emphasis supplied.

Digitally Signed By:SHITU

NAGPAL

Signing Date:14.03.2023

19:25:49

Signature Not Verified

NEUTRAL CITATION NUMBER- 2023/DHC/001793

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arbitral proceedings are governed by a subsequent circular of the

NHAI dated 22.10.2020 [hereinafter referred to as “the 2020

Circular”].

4.

As the case turns substantially on the 2020 Circular, it is

reproduced in full below:-

NHAI/Policy Guidelines/Legal/2020

Policy Circular No. 2.1.44 dated 22.10.2020

{Decision taken on E-Office File Comp. NO. 5693}

Sub: Revision of Fee payable to the Arbitrators in terms of the Arbitration &

Conciliation (Amendment) Act, 2015 in the Contractual Disputes.

Digitally Signed By:SHITU

NAGPAL

Signing Date:14.03.2023

19:25:49

Signature Not Verified

NEUTRAL CITATION NUMBER- 2023/DHC/001793

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The above fee is payable to each arbitrator, to be shared equally by both

the parties to the arbitration and i.e. Claimant and Respondent, which is

inclusive of fee of arbitrators for Claim & Counter Claims i.e. total “Sum in

dispute”, reading charges, declaration/publishing of award. Further, the fee of AT

5. This issue with the approval of Competent Authority.”²

5.

Disputes having arisen between the parties, the Tribunal was

constituted, and made its first preliminary order on 10.06.2022. As far

as fees of the Tribunal are concerned, the Tribunal directed as

follows:-

12. ARBITRAL FEES AND EXPENSES :

The Ld. Counsel for the Respondent submitted