FAO (OS) No. 451/2012

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IN THE HIGH COURT OF DELHI AT NEW DELHI

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Date of Decision: 18.09.2012

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FAO(OS) 451/2012

NATIONAL HIGHWAYS AUTHORITY OF INDIA..... Appellant

Through:

Ms. Padma Priya & Ms. Meenakshi

Sood, Advocates.

versus

ORIENTAL STRUCTURAL ENGINEERS PVT LTD..... Respondent

Through:

CORAM:

HON'BLE MR. JUSTICE SANJAY KISHAN KAUL

HON'BLE MR. JUSTICE VIPIN SANGHI

VIPIN SANGHI, J. (Oral)

C.M. No. 16430/2012 (for exemption)

Exemption allowed, subject to all just exceptions.

FAO(OS) 451/2012 and C.M. No. 16428/2012 (for stay) & 16429/2012

(for condonation of 153 days delay in filing the appeal)

1.

The appellant National Highways Authority of India (NHAI) in the

present belated appeal (delayed by 153 days), assails the order dated

02.03.2012 passed in O.M.P. No. 635/2011 by the learned Single Judge

dismissing the objections preferred under Section 34 of the Arbitration &

Conciliation Act, 1996 (the Act) to the arbitral award dated 25.04.2011. The

disputes arose between the parties under the contract agreement dated

2012:DHC:5830-DB

FAO (OS) No. 451/2012

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04.11.2004 relating to the work of Allahabad Byepass Project-Construction

of Road from 198.00 Km. to 242.708 Km.

2.

The learned Single Judge has noted that the challenge to the award

was primarily made in respect of Claims No. 1 & 3, i.e., the claim for

payment of additional cost caused by subsequent notification increasing

sales-tax on fuels from 2.5% to 5% and the claim for payment of additional

cost caused by subsequent notification increasing royalty on soil, sand and

boulders, which were allowed by the Arbitral Tribunal, apart from the grant

of interest. The learned Single Judge has observed that these issues are

covered by Division Bench judgments of this Court in National Highways

Authority of India Vs. ITD Cementation India Limited, (2008) 100 DRJ

431 (DB), and M/s OSE-GIL J.V. Vs. National Highways Authority of

India, FAO(OS) 347/2010 decided on 09.02.2011. The learned Single

Judge rejected the appellant’s submission that the Court should await the

decision of the Supreme Court in Special Leave Petitions preferred by the

NHAI against the aforesaid decisions of the Division Bench, being S.L.P.

(Civil) No. 21466/2011 titled National Highways Authority of India &

Another Vs. M/s OSC-GIL J.V. and S.L.P. (Civil) No. 9799/2010 titled

National Highways Authority of India Vs. ITD Cementation Limited,

wherein leave has been granted by the Supreme Court.

3.

The learned Single Judge has also rejected the submission of the

appellant founded upon the Supreme Court decision in Union of India &

Others Vs. West Coast Paper Mills Limited, AIR 2004 SC 1596, to contend

that this Court should, in view of the pendency of the Special Leave Petition,

defer the hearing of the objection petitions to await the decision in the said

2012:DHC:5830-DB

FAO (OS) No. 451/2012

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Special Leave Petitions by observing that similar request had been declined

by the Division Bench of this Court in the appeal of M/s OSE-GIL J.V.

4.

We may note that the appellant had also raised a challenge to the

order dated 10.09.2008 passed by the Arbitral Tribunal, rejecting the three

applications moved by the appellant under Section 16(1) and 16(2) of the

Act. However, no submission has been made by the appellant before us

assailing the rejection of the said objection by the learned Single Judge.

5.

The submission of learned counsel for the appellant to explain the

delay in filing the appeal is that against the impugned order the appellant has

bona fide preferred a Special Leave Petition before the Supreme Court since

the relevant issues are pending before the Supreme Court in the aforesaid

Special Leave Petitions, and even earlier the Supreme Court had entertained

Special Leave Petitions directly against the decisions of the learned Single

Judge of this Court in view of the ide