FAO(OS) (COMM) 88/2022 Page 1 of 25

$~

*

IN THE HIGH COURT OF DELHI AT NEW DELHI

+

FAO(OS) (COMM) 88/2022 & CM APPL.19361/2022

M/S ABHIJEET ANGUL SAMBALPUR TOLL ROAD

LIMITED

..... Appellant

Through:

Mr. Sanjay Poddar, Sr. Advocate with

Mr. Sandeep Bajaj, Mr. Soayib

Qureshi and Mr. Devansh Jain,

Advocates.

versus

NATIONAL HIGHWAYS AUTHORITY OF INDIA

..... Respondent

Through:

Mr. Narender Hooda, Sr. Advocate

with Ms. Neetica Sharma,

Ms. Shrinkhla Tiwari and

Ms. Akshada Mujwar. Advocates.

CORAM:

HON'BLE MR. JUSTICE NAJMI WAZIRI

HON'BLE DR. JUSTICE SUDHIR KUMAR JAIN

J U D G M E N T

NAJMI WAZIRI, J.

1.

This appeal under section 37 of the Arbitration and Conciliation

Act, 1996 („the Act‟) impugns the order dated 28.02.2022 passed by

the learned Single Judge in a section 34 petition [O.M.P. (Comm.) No.

224 of 2021 titled National Highways Authority of India vs. M/s

Abhijeet Angul Sambalpur Toll Road Limited.] The impugned order

has set aside the order of the Arbitral Tribunal dated 26.08.2020. By

majority decision the Arbitral Tribunal had declined to entertain two

of the three counter-claims filed by the NHAI on the ground that

Digitally Signed By:KAMLESH

KUMAR

Signing Date:28.06.2023

16:01:34

Signature Not Verified

FAO(OS) (COMM) 88/2022 Page 2 of 25

except for the counter-claim for Rs.12.2 crores, the other two had been

“filed without authority”. It concluded that it “shall not entertain to

adjudicate the other counter-claims”. The Arbitral Tribunal then

proceeded to consider only the counter-claim of Rs.12.2 crores. The

impugned order of the learned Single Judge has held that the right to

file a counter-claim exists independent of any liberty granted by the

Arbitral Tribunal and it was always open to the Arbitral Tribunal, in

exercise of the powers conferred by it under section 16 of the Act, to

reject the counter-claims either on merits or on limitation or even on

the ground that they are not arbitrable within the scope of the

reference made to the Arbitral Tribunal. The appellant had objected to

the maintainability of NHAI‟s section 34 petition on the ground that

the order of the Arbitral Tribunal was not an interim Award. The

impugned order held as under:-

Digitally Signed By:KAMLESH

KUMAR

Signing Date:28.06.2023

16:01:34

Signature Not Verified

FAO(OS) (COMM) 88/2022 Page 3 of 25

make a final arbitral award….”

2.The impugned order has further reasoned as under:

noticed by the Supreme Court in Indian Farmers

Fertilizer Cooperative Ltd v. Bhadra Products

(IFFCO, hereinafter). The issue before the Supreme

Digitally Signed By:KAMLESH

KUMAR

Signing Date:28.06.2023

16:01:34

Signature Not Verified

FAO(OS) (COMM) 88/2022 Page 4 of 25

Digitally Signed By:KAMLESH

KUMAR

Signing Date:28.06.2023

16:01:34

Signature Not Verified

FAO(OS) (COMM) 88/2022 Page 5 of 25

impugned paragraph from the order dated 26^th

Arbitral Tribunal vide its earlier order dated 24^th

Calcutta in Lindsay International Pvt Ltd v. IFGL

Refectories Ltd. The High Court of Calcutta, in that

Digitally Signed By:KAMLESH

KUMAR

Signing Date:28.06.2023

16:01:34

Signature Not Verified

FAO(OS) (COMM) 88/2022 Page 6 of 25

Section 34 of the 1996 Act...”

3.Mr. Sanjay Poddar, the learned Senior Advocate for the

appellant submits that the procedure prescribed in the Act is

Digitally Signed By:KAMLESH

KUMAR

Signing Date:28.06.2023

16:01:34

Signature Not Verified

FAO(OS) (COMM) 88/2022