ARB. A. (COMM.) 66-67/2021 Page 1 of 23

$~32 & 34

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IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of Decision: 18^th November, 2021

+

ARB. A. (COMM.) 66/2021 & I.A. 15029/2021

NATIONAL HIGHWAYS AUTHORITY OF INDIA ..... Appellant

Through:

Mr.

Parag

P.

Tripathi,

Senior

Advocate with Ms. Madhu Sweta,

Advocate.

versus

PANIPAT JALANDHAR NH-1 TOLLWAY PVT. LTD.

..... Respondent

Through:

Mr. Arvind Nigam, Senior Advocate

with Mr. Vaibhav Gaggar, Mr.

Aaditya Vijakumar, Ms. Sumedha

Dang, Mr. Akshita Katoch and Mr.

Prerak Khurana, Advocates.

+

ARB. A. (COMM.) 67/2021 & I.A. 15077-78/2021

PANIPAT JALANDHAR NH1 TOLLWAY PVT. LTD. THROUGH:

ITS DIRECTOR PATRI RAMCHANDRA RAO ..... Appellant

Through:

Mr. Arvind Nigam, Senior Advocate

with Mr. Vaibhav Gaggar, Mr.

Aaditya Vijakumar, Ms. Sumedha

Dang, Mr. Akshita Katoch and Mr.

Prerak Khurana, Advocates.

versus

NATIONAL HIGHWAY AUTHORITY OF INDIA ..... Respondent

Through:

Mr.

Parag

P.

Tripathi,

Senior

Advocate with Ms. Madhu Sweta,

Shivangi

Khanna,

Srinivasan

Ramaswamy, Advocates.

CORAM:

2021:DHC:3740

ARB. A. (COMM.) 66-67/2021 Page 2 of 23

HON'BLE MR. JUSTICE SANJEEV NARULA

JUDGMENT

[VIA HYBRID MODE]

SANJEEV NARULA, J. (Oral):

1. The present appeals under Section 37 of the Arbitration and

Conciliation Act, 1996 [hereinafter referred to as the ‘Act’] impugn the

order of Arbitral Tribunal dated 24^th August, 2021, whereby: (i) an

application filed under Section 17 of the Act by the Claimant – i.e., Panipat

Jalandhar NHAI Tollway Pvt. Ltd. [hereinafter referred to as‘PJNTPL’]

has been dismissed; and (ii) a modification application filed by National

Highways Authority of India [hereinafter referred to as‘NHAI’] has been

disposed of with certain directions merging into the order of interim

measures, pending arbitration.

2. The facts of the case have been noted extensively by the Arbitral

Tribunal. Therefore, recounting the same all over again is neither necessary

or useful for deciding the present appeals. It would suffice to summarize the

controversy between the parties succinctly. The same is as follows:

2.1.Parties executed Concession Agreement dated 9^th May, 2008

[hereinafter referred to as the ‘C.A.’] in respect of ‘Six-Laning of

executed as BOT (Toll) on DBFO Pattern under NHDC Phase-V’,

granted to PJNTPL by NHAI for a period of fifteen years.

2.2.Later, NHAI issued Notice to Cure on 13^th October, 2020, followed by

a Notice of Suspension dated 14^th December, 2020 and finally by a

2021:DHC:3740

ARB. A. (COMM.) 66-67/2021 Page 3 of 23

Termination Notice dated 5^th March, 2020, invoking the provisions and

rights vested under Article 37 of the C.A. on the ground of non-curing

of the defects as mentioned therein.

2.3.The aforesaid notices were impugned in a petition under Section 9 of

the Act, which this very Court also had the occasion to deal with at the

pre-reference stage. ¹ In the said proceedings, initially, certain interim

orders were passed.² Subsequently, in a challenge to an interim order,

the Division bench dismissed the petition.³ However, in an appeal

before the Supreme Court, the petition was restored to the file of the

court for fresh adjudication.⁴ At that stage when this matter was heard

by this Court,⁵ taking note of the fact that an Arbitral Tribunal had been

constituted, the petition under Section 9 was converted into one under

Section 17 which was then directed to be considered by the Arbitral

Tribunal.

2.4.Pursuant thereto, the Arbitral Tribunal passed an interim order on 1^st

June, 2021, making inter alia the following interim arrangement:

1 OMP (I) (COMM) 421/2020.

2 Order dated 12th March 2021 in O