* IN THE HIGH COURT OF DELHI AT NEW DELHI % Judgment reserved on: 10.03.2026 Judgment pronounced on: 23.03.2026 + ARB. A. (COMM.) 47/2025 & I.A. 22290/2025 ERA INFRA ENGINEERING LIMITED .....Appellant Through: Mr. Sudhir Nandrajog, Sr. Adv.

and Mr. Kirtiman Singh, Sr. Adv. with Mr. Kushil Anand, Mr. Manthan Dixit, Mr.

Maullick, Ms. Ankita, Advs.

versus NATIONAL HIGHWAYS AUTHORITY OF INDIA & ANR.

.....Respondents Through: Mr. Santosh Kumar, Standing Counsel with Mr. Siddharth Mehta, Mr. Ritik Dwivedi, Advs.

CORAM:

HON'BLE MR. JUSTICE AVNEESH JHINGAN

J U D G M E N T

1. The appeal under Section 37 of the Arbitration and Conciliation Act, 1996 (for short ‗the Act‘) is filed against the award of the Arbitral Tribunal (for short ‗the tribunal‘) dated 30.07.2025 rejecting application for impleadment.

Facts

2. The brief facts are that the National Highways Authority of India (for short ‗NHAI‘) issued a Notice Inviting Tender in February 2009 for four-laning of the ‗Muzaffarnagar–Haridwar section of NH-

58‘ in the states of Uttar Pradesh and Uttarakhand. The appellant, ERA Infra Engineering Limited, a public limited company along with Open Joint Stock Company (OJSC)-SIBMOST after entering into a Joint Bidding Agreement dated 26.03.2009, bidded as a consortium and was awarded the project on 29.12.2009. In terms of clauses 2.2.6(f) and 2.2.6(g) of the Request for Qualifications (‗RFQ‘) and the Letter of Acceptance (LOA), a Special Purpose Vehicle (for short ‗SPV‘) - Haridwar Highway Private Limited, a limited liability company under the Companies Act, 1956 was incorporated on 02.02.2010. The LOA required the concessionaire i.e. SPV to furnish an unconditional bank guarantee of Rs.37.70 crores as performance security.

2.1 A Concession Agreement (for short ‗CA‘) dated 24.02.2010 was entered between NHAI and the SPV. On 14.06.2010 Engineering, Procurement and Construction Agreement (for short ‗EPC Agreement‘) was executed between the appellant and the SPV for execution of the project. Disputes arose between the parties, the CA was terminated by NHAI on 19.06.2019 and the SPV invoked arbitration.

Preliminary Objection on Maintainability

3. Learned counsel for the respondent raised a preliminary objection that the appeal under Section 37 of the Act is not maintainable. It is contended that rejection of an impleadment application shall not fall within the ambit of Section 37(2)(a) of the Act and it does not amount to acceptance of a plea under Section 16(2)

or 16(3) of the Act.

3.1 Reliance is on the decision of this court in Hindustan Prefab Ltd. v. M/s NCC Ltd., 2021:DHC:1802 and of the Madras High Court in M/s. Marg Ltd. v. M/s. PGA Trading & Services & Ors., ARB. Appeal No. 11/25, to contend that the appeal is not maintainable against the impugned order. The decision in National Thermal Power Corp. Ltd. v. Siemens Atkeingesellschaft, (2007) 4 SCC 451 is relied upon to buttress the contention that an appeal is not maintainable if the order passed does not fall under Sections 16(2) or 16(3) of the Act. The submission is that Section 5 of the Act stipulates minimum judicial intervention in arbitral proceedings and that an appeal under Section 37 is maintainable only against the orders mentioned therein.

3.2 The argument is that Sections 16(2) and 16(3) of the Act will come into play only if the plea that the tribunal lacks jurisdiction or is exceeding the jurisdiction is accepted whereas in the present case the application for impleadment was rejected and there was no acceptance of a plea. It is contended that the issue of jurisdiction was not decided by the tribunal but the application was rejected on merits and the tribunal has not held that it lacked jurisdiction.

4. Per contra the project was awarded to the consortium and at that time the SPV was not in existence. The obligation to execute the project and to comply with the terms of the tender is that of the consortium and the SPV was incorporated to give effect to the awarded project. The submission is