FAO(OS)(COMM) No. 58/2018

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IN THE HIGH COURT OF DELHI AT NEW DELHI

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FAO(OS) (COMM) 58/2018 & CM Nos. 13434/2018, 17581/2018

& 31531/2018

Reserved on : 2^nd November 2018

Date of decision: 15^th January, 2019

DELHI METRO RAIL CORPORATION LTD.

..... Appellant

Through: Mr. P.S. Narasimha, ASG, Mr. Parag P.

Tripathi & Mr. Ajit Kumar Sinha, Sr. Advocates

with Mr. Tarun Johri, Mr. Ankit Saini, Mr.

Srinivasan Ramaswamy & Ms. Athira G. Nair,

Advocates.

versus

DELHI AIRPORT METRO EXPRESS PRIVATE LIMITED... Respondent

Through: Mr.P. Chidambaram, Sr. Advocate with

Mr.Rishi Agrawala, Ms. Megha Mehta Agrawal &

Mr. Nishant Rao, Advocates.

CORAM:

HON'BLE MR. JUSTICE SANJIV KHANNA

HON'BLE MR. JUSTICE CHANDER SHEKHAR

SANJIV KHANNA, J.:

Delhi Metro Rail Corporation Ltd. ('DMRC', for short) in this intra-

Court appeal under Section 37 of the Arbitration and Conciliation Act, 1996

(„A & C‟ Act, for short) read with Section 13 of the Commercial Courts,

Commercial Division and Commercial Appellate Division of the High

Courts Act, 2015 has impugned judgment and order dated 6^th March, 2018,

whereby the learned single Judge has dismissed objections under Section 34

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of the A & C Act upholding the award dated 11^th May, 2017 passed by the

Arbitral Tribunal.

2.

DMRC is a state-owned company with equal participation from the

Government of India and the Government of National Capital Territory of

Delhi.

3.

The respondent, Delhi Airport Metro Express Private Limited

('DAMEPL', for short), is a company incorporated as a special purpose

vehicle by the consortium of M/s Reliance Infrastructure Limited and M/s

Construcciones Y Auxiliar de Ferrocarriles SA, Spain („consortium‟, for

short).

4.

The consortium were successful bidders in the international

competitive bidding process for construction, operation and maintenance of

the Delhi Airport Metro Express Line („AMEL‟, for short) based on Public-

Private Partnership model for providing high speed metro connectivity with

maximum speed of 120 Kms per hour between New Delhi Railway Station

and Indira Gandhi International Airport, T-3 Terminal with further line till

Section-21 at Dwarka with underground section of 15.7 Kms and elevated

viaduct section of 7 Kms.

5.

On 25^th August, 2008 Concessionaire Agreement ('CA', for short) was

signed and executed between DMRC and DAMEPL.

6.

DMRC had undertaken clearances and borne costs relating to

acquisition of land and in construction of all civil structures like tunnels,

viaducts, station buildings except depot buildings.

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7.

Design, supply, installation, testing and commissioning of various

railway systems like rolling stock, power supply, overhead equipment,

signaling, track systems, platform, screen doors, ventilation, architectural

finishing etc. were to be provided by DAMEPL, as a private partner in the

project.

8.

As per the CA, DAMEPL was allowed two years period for

completion of obligations and scope of work after they were granted access

to the civil segment by DMRC. DAMEPL was to operate and maintain

AMEL for next 28 years i.e. till August, 2038.

9.

The scheduled commissioning and operation date of AMEL as

stipulated in the CA was 31^st July, 2010 which was extended from time to

time to 30^th September, 2010. As per Article 16.5 of the CA, the

Commercial Operation Date („COD‟, for short) was to be within two

months from the date of scheduled project completion date, i.e., by 31^st

November, 2010. On 11^th January,2011 safety clearance/sanction for

operation of the line was granted by the Commissioner of Metro Road

Safety (CMRS) under the Delhi Metro Rail (Operation and Maintenance)

Act, 2002, which is now known as Metro