IN THE HIGH COURT OF DELHI AT NEW DELHI % Judgment delivered on: 22.12.2023 + O.M.P. (COMM) 424/2020 & IA No.3680/2020 ONGC PETRO ADDITIONS LIMITED ..... Petitioner Versus TECNIMONT S.P.A & ANR. ..... Respondents Advocates who appeared in this case:

For the Petitioner : Mr. Nakul Dewan, Sr. Adv. with Mr. K.R.

Sasiprabhu, Mr. Aditya Swarup, Mr. Vishnu Sharma, Mr. Tushar Bhardwaj, Mr. Vinayak M & Mr. M. Shishodia, Advs For the Respondents : Mr. Ritin Rai, Sr. Adv. with Mr. Rishi Agrawala, Mr. Karan Luthra, Mr. S. Niranjan & Mr. Akshay Vasishth, Advs.

CORAM HON’BLE MR JUSTICE VIBHU BAKHRU

JUDGMENT

VIBHU BAKHRU, J INTRODUCTION

1. ONGC Petro Additions Ltd. (hereafter ‘OPaL’) has filed the present petition under Section 34 of the Arbitration and Conciliation Act, 1996 (hereafter ‘the A&C Act’) impugning an arbitral award OMP(COMM) No.424/2020 Signature Not Verified Digitally Signed Page 1 of 51 originally dated 06.01.2020 but subsequently corrected and re-dated on 11.02.2020 (hereafter ‘the impugned award’). The impugned award was delivered by two members (hereafter ‘the Majority’) of an arbitral tribunal comprising of three members (hereafter ‘the Arbitral Tribunal’) in an international commercial arbitration with New Delhi, being the seat of the arbitration. One of the members of the Arbitral Tribunal did not concur with the material findings of the Majority and penned a separate opinion.

2. The impugned award was rendered in the context of disputes that had arisen between the parties in relation to two distinct, but similar agreements dated 02.09.2011 (hereafter collectively referred to as ‘the Contracts’).

3. The Majority held that OPaL was liable for the delay in performance of the Contracts resulting in the respondents incurring additional expenses & costs. Accordingly, the Majority awarded an amount of ₹50,179,493/-, €5,049,443 and $4,977,199 in favour of respondent no.1 (hereafter ‘TCM’) and ₹777,833,550/- in favour of respondent no.2 (hereafter ‘TCMPL’). TCM and TCMPL are hereafter collectively referred to as ‘Tecnimont’). In addition, the Arbitral Tribunal also held that the respondents (who were claimants before the Arbitral Tribunal) were entitled to interest at the rate of 2% above the current rate of interest as defined under Section 2(b) of the Interest Act, 1978 with effect from fourteen days after the date of the impugned award. The counterclaims preferred by OPaL were rejected.

OMP(COMM) No.424/2020 Signature Not Verified Digitally Signed Page 2 of 51 FACTUAL CONTEXT

4. TCM is a company incorporated under the laws of Italy and TCMPL is a company incorporated in India. TCM & TCMPL are ultimate subsidiaries of Maire Tecnimont S.P.A., Italy. The impugned award notes that the said company is a part of a larger group of companies, which are leading engineering and construction contractors in oil, gas and petrochemicals sectors.

5. OPaL was set up by a consortium of three Indian state-owned companies – Oil and Natural Gas Corporation Limited (ONGC), Gas Authority of India Limited (GAIL) and Gujarat State Petroleum Corporation Limited (GSPCL) – for the purpose of developing a petrochemical complex (hereafter ‘the Complex’) in Dahej Special Economic Zone at Dahej, District Bharuch, Gujarat under the Petroleum, Chemicals and Petrochemical Investment Regions policy of Government of India (hereafter ‘the Dahej Project’). The Complex is situated in the Petroleum, Chemicals and Petrochemical Investment Region/ Special Economic Zone (PCPIR/SEZ) at the port of Dahej and consists of various interdependent units – including a Dual Feed Cracker Unit (DFCU), which provides products as feedstock for other downstream units, that is, the Polyethylene (PE) unit and Propylene (PP) unit and other associated units – for manufacturing a range of petrochemical and allied products.

6. OPaL awarded various Lump Sum Turn-Key (hereafter ‘LSTK’) contracts to several national and international contractors to erect OMP(COMM) No.424/2020 Signature Not Verified D