$~5 * IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of Decision: 01.10.2024 + ARB. A. (COMM.) 50/2024 and IA No.40486/2024 SHAMLAJI EXPRESSWAY PRIVATE LIMITED .....Petitioner Through: Mr. Tejas Karia, Dr. Amit George, Mr. Abhishek Gupta, Mr. Suyuash Gupta, Mr. Prakhar Deep, Mr. Nishant Doshi, Mr. Anirveda Sharma, Mr. Mukesh Kumar, Ms. Meenakshi Sood, Mr. Arvind Singh and Ms.

Nitya Nath, Advs.

versus NATIONAL HIGHWAYS AUTHORITY OF INDIA .....Respondent Through: Mr. Manish Bishnoi, Ms. Gunjan Sinha Jain, Ms. Muskaan Gopal, Mr.

Khubaib Shakeel, Advs.

CORAM:

HON'BLE MR. JUSTICE SACHIN DATTA SACHIN DATTA, J. (Oral

1. The present appeal under Section 37(2)(b) of the Arbitration and Conciliation Act, 1996 (hereinafter ‘the A&C Act’) assails an order dated 02.09.2024 passed by the Arbitral Tribunal while disposing of an application under Section 17 of the A&C Act.

FACTUAL MATRIX

2. The ongoing arbitral proceedings are in the context of a Concession Agreement dated 02.05.2018 (hereinafter ‘CA’) entered into between the parties for the work of “six laning Shamlaji to Motachilodha (93.210 km section) of the NH-8” in the State of Gujarat (hereinafter ‘The Project’). In terms of Article 3.1 of the CA, the respondent granted to the petitioner the concession set-forth in the contract agreement including exclusive right over the license and authority to construct, operate and maintain the project during the construction period of 730 days from the Provisional Commercial Operation Date (hereinafter ‘PCOD’).

3. Clause 4.4 of the CA provides that the date on which the financial close is achieved and all conditions precedents, specified in Clause 4.1 of the CA are satisfied, shall be the appointed date of the commencement of the Concession period.

4. The appointed date was 02.01.2019, and the scheduled completion date was 01.01.2021. However, the project was not completed by 01.01.2021, and the scheduled completion date had to be extended to

04.09.2023 by granting a time extension to the appellant.

5. Admittedly, the entire project could not be completed till the extended time period. Admittedly, also, the appellant sought to delink the unexecuted portion of the highway where no work could be executed on account of non- availability of land. However, since according to the appellant, it had completed the construction of site made available to it, a formal request was made to the Independent Engineer (hereinafter ‘IE’) seeking issuance of a provisional completion certificate as contemplated in clause 14.3.2 of the contract agreement. The said provision reads as under :

“14.3.2 The parties hereto expressly agree that a Provisional Certificate under this Clause 14.3 may, upon request of the Concessionaire to this effect, be issued for operating part of the Project, if the Concessionaire has completed construction of 100% (Hundred per cent) of the Site made available to the Concessionaire upto 146 days from the Appointed Date. Upon issue of such Provisional certificate, the provisions of Article 15 shall apply to such completed part, and the rights and obligations of the Concessionaire for and in respect of such completed part of the Project shall be construed accordingly.”

6. This request was dealt with by the IE in its communication dated 25.10.2023. The factual matrix leading up to the said communication has been elaborated in the impugned order. Suffice it to note that the IE took note of the portion of the project where no work could be executed and also took note of the remaining work that was yet to be carried out even in the balance area. The IE accordingly drew up two lists “Balance Work List-A (Punch List-A)” & “Balance Work List-B (Punch List-B)” that remains to be executed.

7. Importantly, while recommending that the concessionaire be granted provisional completion certificate of the project in part length, the same was made contingent upon execution of a large number of punch list items and requiring the concessionaire to give the requisite undertak