* IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Decision: 25.02.2026 + O.M.P.(I) (COMM.) 379/2025, I.A. 26430/2025 (Delay of 11 days in filing the reply to the petition) & I.A. 5279/2026 (For filing of Addl. Documents)

M/S EDAPALLY TO KODUNGALLUR HIGHWAY PRIVATE LIMITED & ANR. .....Petitioners Through: Mr. Anil K. Airi, Senior Advocate along with Mr. Ravi Krishan Chandna and Mr. Harsh Gautam, Advocates along with Mr. Biswarup Chanda, AR.

versus NATIONAL HIGHWAY AUTHORITY OF INDIA .....Respondent Through: Mr. Santosh Kumar, Standing Counsel and Mr. Adithya Ramani, Advocate for Respondent No. 1.

CORAM:

HON'BLE MR. JUSTICE HARISH VAIDYANATHAN SHANKAR % JUDGEMENT (ORAL)

HARISH VAIDYANATHAN SHANKAR, J.

1. The present Petition has been filed under Section 9 of the Arbitration and Conciliation Act, 1996, $~23, seeking, inter alia, the following reliefs:-

“a. Pass an order staying/quashing/setting aside the impugned letter dated 25.08.2025 issued by the Respondent debarring the

1 Act

Petitioner no. 1 and 2 and from acting in any manner on the

said letter.

b. Pass an order restraining the Respondent from in any manner treating the Petitioner No.1 and 2 as debarred entity and from posting any such declaration on the website of the Respondent.

c. Pass any other order or orders that this Hon'ble Court may deem fit and appropriate in the given facts and circumstances of the case and in the interest of justice, may also kindly be granted.”

2. Learned counsel for the Respondent has taken a preliminary objection that the present Petition is not maintainable since the aspect of debarment qua the Debarment Letter dated 25.08.2025², in respect of which reliefs have been sought, is not an arbitrable dispute. He would submit that keeping in view the judgment of the Hon’ble Supreme Court in Patel Engg. Ltd. v. Union of India, (2012) 11 SCC 257, the power to debar is an inherent power which was in an authority and therefore the same need not necessarily be provided for in the Concession Agreement dated 12.03.2022, Agreement itself.

3. He would further submit that the appropriate course of action for canvassing the present reliefs would be to prefer a writ petition. He would further contend that the Petition in the present form is not maintainable since the Respondent has privity of contract only with Petitioner No. 1, and not with Petitioner No. 2. He would submit that reliefs, if any, that could be sought can therefore only be with respect to Petitioner No. 1.

4. Per contra, learned counsel for the Petitioners would submit that a perusal of the Show Cause Notice dated 25.06.2025, SCN and the

2 Debarment letter

Debarment letter would make it apparent that the harsh step of debarment is stated to be a consequence of the alleged non- performance or faulty performance done by the Petitioners herein and therefore in terms of the Arbitration Clause being Clause 38.1 of the Agreement, the question of debarment would necessarily fall within the confines of an arbitration proceedings.

5. He would further contend that the question of the issue of debarment being non-arbitrable has been raised for the first time only after the learned Dispute Resolution Board, DRB has rendered its position and recommendation. He would submit that the learned DRB, in fact, has given its recommendation in favour of the Petitioners and has disapproved the debarment. He would further submit that the same is evident from a perusal of the Reply as preferred by the Respondent before the Engineer as well as before the DRB, the said replies are completely silent as to this aspect. He would thus reiterate that since the debarment is stated to be a direct consequence of the manner in which contract was performed, the arbitration clause would squarely apply to any disputes or issues with respect to the performance of the contract and therefore the present petition is clearly maintainable.

6. In rejoinder, learned counsel for the Respondent would submit that in terms of Clause 41.1.2 of the Concession Agr