IN THE HIGH COURT OF DELHI AT NEW DELHI % Judgment delivered on: 20.03.2023 + 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’).

Signature Not Verified Digitally Signed

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 Signature Not Verified Digitally Signed 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 a Special Leave Petition impugning the order dated 26.09.2019 passed by the Coordinate Bench of this Court, rejecting NPGC’s challenge to the impugned award and the impugned order insofar as AIL’s claims are concerned.

6. It is agreed that, the only question that requires to be considered by this Court is whether the impugned award, to the extent