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IN THE HIGH COURT OF DELHI AT NEW DELHI

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Pronounced on:

26^th May, 2023

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O.M.P. (COMM.) No. 278/ 2019 and I.A. Nos. 9870/2019,

17853/2019, 7921/2020, 10163/2020 and 150/2021

NATIONAL HIGHWAYS AUTHORITY OF INDIA

..... Petitioner

Through:

Mr. Santosh Kumar, Mr. Daksh

Arora and Mr. Mohit Agarwal,

Advocates

versus

ORISSA STEEL EXPRESSWAY PVT.LTD

..... Respondent

Through:

Mr. Darpan Wadhwa, Sr. Advocate

with Mr. Arjun Syal, Ms. Manjira

Dasgupta

and

Ms.

Akshita

Sachdeva, Advocates

CORAM:

HON’BLE MR. JUSTICE CHANDRA DHARI SINGH

J U D G M E N T

CHANDRA DHARI SINGH, J.

1.

The instant petition under Section 34 of the Arbitration and

Conciliation Act, 1996 (hereinafter “Act,1996”) has been filed on behalf

of the petitioner seeking the following reliefs:

Digitally Signed By:SARIKA

BHAMOO VERMA

Signing Date:30.05.2023

16:31:22

Signature Not Verified

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and proper in the facts and circumstances of the case.”

FACTUAL MATRIX

2.

The present petition has been filed by the petitioner against the

impugned award of total sum of Rs.322.78 Crores in favour of the

respondent/claimant, against the petitioner, along with the future interest

at the rate of 10% p.a. from the date of award till the date of its

realization. The present petition under section 34 of the Act arises out of

the said award dated 31^st March, 2019 passed by the learned Arbitral

Tribunal.

3.

The petitioner is an autonomous body constituted under the

National Highways Authority of India Act, 1988 and is working under the

supervision of the Ministry of Road Transport and Highways,

Government of India. The petitioner is responsible for the development,

maintenance, and management of the National Highways.

4.

The respondent is a Company incorporated by a consortium

comprising MBL Infrastructure Ltd. and SREI Infrastructure Finance Ltd.

under the provisions of the Companies Act, 1956. The respondent is a

Special Purpose Vehicle.

5.

The petitioner invited bids for the 4/2 laning of the Rimuli- Roxy -

Rajamunda section of NH-215 from km 163.00 to km 269.00 equivalent

to 106 kms.with an indicative project cost of Rs.449 Crores as Built,

Operate and Transfer (BOT) (Toll) on Design, Build, Finance, Operate,

and Transfer (DBFOT) pattern. The respondent participated in the said

bid and it was found lowest. Accordingly, the Letter of Award dated 29^th

Digitally Signed By:SARIKA

BHAMOO VERMA

Signing Date:30.05.2023

16:31:22

Signature Not Verified

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April, 2010 was issued in favour of the respondent by the petitioner.

Consequently, the parties entered into a Concession Agreement on 06^th

July, 2010. According to, Article 9 of the Concession Agreement, the

respondent furnished the Performance Bank Guarantee for Rs.14.65

Crores on 27^th June, 2012.

6.

The petitioner vide letter dated 30^th December, 2011 agreed that

21^st June, 2011 shall be the Appointed Date. A Meeting was conducted

between the parties since period of two months had elapsed since the

signing of the Concession Agreement and there were certain disputes

regarding the work hence, the petitioner waived off the Conditions

Precedent under Clause 24.1.1 and Clause 4.3 of the Concession

Agreement.

7.

During the period of 2012-2017, there were continuous

correspondences between the parties wherein the petitioner had

constantly stated that the respondent could not complete the project

within the stipulated time frame due to numerous factors.

8.

The petitioner in its letter dated 16^th February 2016 informed the

Independent Engineer that the encumbrance-free land for the length of

100% of project highway was not handed over to the respondent till date.

In reply to the said letter, vide communication dated 17^th February 2016,

the Independent Engineer issued a letter to the petitioner for the extension

of the concession period. The respondent however, did not agree to terms

of extension of the concession pe