O.M.P. (T) (COMM.) 80/2020

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IN THE HIGH COURT OF DELHI AT NEW DELHI

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Judgment delivered on: 12.01.2021

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O.M.P. (T) (COMM.) 80/2020

PCL SUNCON

.....Petitioner

Versus

NATIONAL HIGHWAY AUTHORITY

OF INDIA

.....Respondent

Advocates who appeared in this case:

For the Petitioner

: Mr Dr Amit George, Mr Swaroop George,

Mr Amol Acharya and Mr Rayadurgam

Bharat, Advocates.

For the Respondent

: Ms Madhu Sweta, Advocate.

CORAM

HON’BLE MR JUSTICE VIBHU BAKHRU

JUDGMENT

VIBHU BAKHRU, J

1.

The petitioner – a Joint Venture constituted by Progressive

Construction Limited and SUNCON Construction Berhard, Malaysia

– has filed the present petition, inter alia, impugning an order dated

20.04.2020 passed by the two arbitrators terminating the arbitral

proceedings under Section 32(2)(c) of the Arbitration and Conciliation

Act, 1996 (hereinafter ‗the A&C Act‘).

2.

The present application is filed under Section 14(1)(a) read with

Section 15 of the A&C Act. The petitioner further prays for

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O.M.P. (T) (COMM.) 80/2020

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substitution of the Arbitrator by an independent arbitrator appointed

by this Court.

3.

The arbitral proceedings were terminated because the arbitrator

nominated by the petitioner had resigned and the petitioner had not

taken steps to nominate another arbitrator in his place. Consequently,

the arbitral proceedings could not proceed and the remaining two

arbitrators constituting the Arbitral Tribunal concluded that it was

impossible to continue the proceedings and, accordingly, terminated

the same. The petitioner claims that there was a communication gap

and the petitioner was not aware that the arbitrator appointed by it had

resigned. The Arbitral Tribunal had not issued any notice to the

petitioner in this regard prior to terminating the arbitral proceedings.

4.

The

respondent

(hereinafter

‗NHAI‘)

contests

the

maintainability of the present petition as well as contends that the

impugned order cannot be faulted.

5.

The aforesaid controversy arises in the following context.

6.

NHAI had invited bids for “Four laning and Strengthening of

No. GTRIP/5.” Pursuant to the said notice inviting tenders, the

petitioner submitted its bid on 15.12.2001 and it was opened on the

same day. The petitioner‘s bid was accepted and by a letter dated

23.02.2002, the petitioner was awarded the contract for an amount of

₹3,96,47,78,901/-. A formal agreement between the parties was

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O.M.P. (T) (COMM.) 80/2020

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executed on 28.03.2002. The works were divided into three sections.

The first section was to be completed within a period of eighteen

months from the date of commencement; the second section was to be

completed within a period of twenty four months from the date of

commencement; and the third section was to be completed within a

period of thirty six months from the date of commencement, that is, by

30.03.2005.

7.

The petitioner claims that certain disputes arose between the

parties in respect of the said contract. NHAI claims that the petitioner

did not complete the works within the stipulated time and therefore,

was liable to pay liquidated damages. The petitioner invoked the

arbitration

clause.

It

claimed

₹57,84,00,000/-

towards

overstay/overhead charges; ₹2,50,00,000 as refund of the liquidated

damages deducted by NHAI; and ₹40,04,000/- for rehabilitation of

Bridge 58/1. The petitioner also claimed waiver of liquidated

damages. In addition, the petitioner also claimed interest (pre-suit

pendente lite as well as future interest) as well as costs quantified at

₹10 lacs.

8.

The petitioner also filed a petition under Section 9 of the A&C

Act (O.M.P. 1019/2013) seeking certain measures of interim

protection. The said petition was disposed of by an order dated

09.01.2015 and the recovery of liquidated damages was stayed during

the arbi