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IN THE HIGH COURT OF DELHI AT NEW DELHI

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Judgment delivered on: 20.03.2023

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FAO(OS) (COMM) 196/2019 & CM APPL. 37019/2019

NABINAGAR POWER GENERATING

COMPANY LTD.

..... Appellant

versus

AMR INDIA LTD.

..... Respondent

Advocates who appeared in this case:

For the Appellant

: Ms. Manvinder Acharya, Sr. Adv with Mr.

R. Sudhinder, Mr. Dattatray Vyas and Mr.

Akshay Singh Sengar, Advocates.

For the Respondent

: Mr. Brijesh Kumar Goel, Mr. Rajeev

Kumar, Mr. Sajal Goel and Ms. Rashmi

Bhardwaj, Advocates.

CORAM

HON’BLE MR JUSTICE VIBHU BAKHRU

HON’BLE MR JUSTICE AMIT MAHAJAN

JUDGMENT

VIBHU BAKHRU, J

1.

The appellant (hereafter ‘NPGC’) has filed this intra-court

appeal under Section 37(1) of the Arbitration and Conciliation Act,

1996 (hereafter ‘the A&C Act’) impugning an order dated 05.07.2019

passed by the learned Single Judge of this Court (hereafter ‘the

impugned order’), whereby the learned Single Judge dismissed

NPGC’s application under Section 34 of the A&C Act to set aside the

arbitral award dated 10.12.2018 (hereafter ‘the impugned award’).

Digitally Signed

By:Dushyant Rawal

Signing Date:20.03.2023

Signature Not Verified

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2.

The arbitral proceedings were commenced pursuant to the notice

dated 29.03.2014, issued by the respondent (hereafter ‘AIL’) seeking

reference of the disputes to arbitration. The Arbitral Tribunal

substantially allowed most of the claims made by the respondent and

rejected the counter-claims raised by NPGC. NPGC had assailed the

impugned award by filing an application under Section 34 of the A&C

Act [being OMP (COMM.) 248/2019]. The said application was

rejected by the learned Single Judge in terms of the impugned order.

The learned Single Judge did not find that the arbitral award was

vitiated by patent illegality or was in conflict with the public policy of

India. The learned Single Judge also held that the impugned award

rested on the findings of facts rendered after appreciation of evidence,

and such findings were not amenable to challenge under Section 34 of

the A&C Act.

3.

The present appeal was listed for the first time before a Co-

ordinate Bench of this Court on 20.08.2019 and thereafter on

26.09.2019. After briefly hearing the counsel for NPGC at the said

hearing, the Court held that the question regarding the interpretation of

clauses of the contract were within the exclusive domain of the Arbitral

Tribunal and it was not open for the Court, either under Section 34 or

under Section 37 of the A&C Act, to act as the first or second appellate

court and re-examine the import and effect of the contractual clauses.

The Court held that if the Arbitral Tribunal’s interpretation of

contractual clauses was a plausible interpretation, the same could not be

interfered with. The Court referred to the decision of the Supreme Court

Digitally Signed

By:Dushyant Rawal

Signing Date:20.03.2023

Signature Not Verified

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in Ssangyong Engineering and Construction Company Limited v.

National Highways Authority of India (NHAI): (2019) 15 SCC 131

and on the strength of the said decision, upheld the view of the learned

Single Judge to the effect that the interpretation of the Arbitral Tribunal

of Clause 33.3.0 of the Special Conditions of the Contract was a

plausible interpretation and therefore, could not be interfered with in

proceedings under Section 34 of the A&C Act.

4.

Thus, by an order dated 26.09.2019, NPGC’s challenge of the

impugned award, inasmuch as it had declined to interfere with the

decision of the Arbitral Tribunal to award certain claims raised by AIL,

was rejected; the notice in this appeal was confined to NPGC’s plea that

the Arbitral Tribunal had erroneously rejected its counter-claims as

barred by limitation.

5.

This Court is informed that NPGC has preferred