The court upheld the Arbitral Tribunal's decision, affirming that delays were due to the respondent's failure to provide Right of Way and the Covid-19 pandemic, denying additional claims for overheads.

JUDGMENT :

1. The present petitions have been filed raising objections under Section 34 of the Arbitration & Conciliation Act, 1996 (hereafter, the “A&C Act”) against the Arbitral Award dated 23.09.2024 (hereafter, the “impugned award”) delivered by the Arbitral Tribunal comprising of Sole Arbitrator (hereafter, “AT”) with respect to dismissal of petitioner/claimant‟s (hereafter, “the Claimant”) Claims No. 2, 5 and 6.

2. The impugned award came to be delivered in the context of Contract Agreement dated 11.04.2018 (hereafter, the “Contract”) which came to be executed in consequence of a Public Tender invited by the respondent for the project of “REHABILITATION AND UPGRADATION OF KULPAHAR-MAHOBA SECTION (KM 133.520 to 158.040) OF NH-76 & NH-86 (5.360 KM.) IN THE STATE OF UTTAR PRADESH TO TWO LANE WITH PAVED SHOULDER UNDER EPC MODE.”

The Claimant was declared as the successful bidder and awarded the project vide Letter of Acceptance dated 04.04.2018. The Contract was entered into on 11.04.2018 for a contract value of Rs. 94,50,00,000/- (hereafter, “Contract Price”). The Schedule Completion Period was of 550 days from the declaration of Appointed Date which was declared as 20.08.2019. The scheduled completion date was 20.02.2021. One Extension of Time (hereafter, “EOT”) was granted for a period of 90 days and the date for completion of the project was revised to be 21.05.2021. The Provisional Completion Certificate (hereafter, “PCC”) was issued w.e.f. 11.05.2021.

DISPUTES BEFORE THE ARBITRAL TRIBUNAL

3. The Claimant approached the AT and filed seven claims. However, since the present objections have been restricted to dismissal of Claims No. 2, 5 and 6, the discussions hereon would be revolving around these claims. The Claimant urged that there was a delay both in the Appointed Date as well as on account of respondent‟s failure in providing complete Right of Way (hereafter, “ROW”) free from encumbrances and encroachments. Claim No.2 related to unrealized cost of overheads, idling of plants, machinery and manpower on account of prolongation of the period of the Project. While Claim No.5 was seeking loss of bonus for early completion of the Project, vide Claim No. 6 the Claimant sought maintenance cost of the Performance Bank Guarantee and Additional Performance Bank Guarantee for the time the project was delayed. The respondent resisted the claims by denying that it was responsible for the delay in the project.

IMPUGNED AWARD

4. AT framed Point of Determinations (hereafter, “POD”) and while discussing POD No.(ii) noted that the delay of 466 days in declaration of the Appointed Date was directly a result of the respondent‟s inability to provide ROW to the Claimant, and awarded Rs. 3,94,32,995/- as damages to the Claimant. Insofar as delay of 80 days i.e., from 20.02.2021 to 11.05.2021 in completion of the project is concerned, AT returned a finding that it was totally attributable to the Covid-19 pandemic, as a 90-day EOT was granted on only this account. The same was held to be a non-political Force Majeure event for which neither party could claim damages from the other.

5. Claim No.2/POD No.(iii) : AT rejected the claim by observing that the Claimant was already compensated for the delay in Appointed Date and the delay in execution of the project was attributable to Force Majeure due to Covid-19 pandemic.

6. Claim No.5/POD No. (vi): AT partly allowed the claim for bonus by noting that since the all the test reports had been supplied to the respondent by 09.04.2021, the PC