O.M.P. (COMM) 81/2022 Page 1 of 21

$~50

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IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of Decision: 13^th May, 2022

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O.M.P. (COMM) 81/2022 & I.A. 1927/2022 (seeking stay of award)

NATIONAL HIGHWAYS AUTHORITY OF INDIA ..... Petitioner

Through:

Ms. Neetica Sharma, Advocate.

versus

VIJAYAWADA TOLLWAYS PVT. LTD.

..... Respondent

Through:

Ms.

Gunjan

Chhabra

and

Mr.

Aayushmaan Gauba, Advocates.

CORAM:

HON'BLE MR. JUSTICE SANJEEV NARULA

J U D G M E N T

SANJEEV NARULA, J. (Oral):

1. The present petition under Section 34 of the Arbitration and

Conciliation Act, 1996 [hereinafter“the Act”] impugns the arbitral Award

dated 14^th August, 2021 passed by a three-member Arbitral Tribunal

comprising of –Hon’ble Mr. Justice A.K. Patnaik (Retd.) (Presiding

Arbitrator), Hon’ble Mr. Justice B. Sudershan Reddy (Retd.), and Mr.

Raghav Chandra, IAS (Retd.) (Arbitrators) [hereinafter“impugned

Award”].

BRIEF FACTS

2. The Respondent/ Vijaywada Tollways Pvt. Ltd. [hereinafter“VTPL”]

This is a digitally signed Judgement.

NEUTRAL CITATION NO: 2022/DHC/001972

O.M.P. (COMM) 81/2022 Page 2 of 21

being the L-1 bidder, was awarded the work of –“Six Laning of

DBFO Pattern under NHDP Phase-V” [hereinafter “Project”], vide letter of

acceptance dated 21^st February, 2008 issued by the Petitioner/ National

Highway Authority of India [hereinafter“NHAI”].

3. Parties entered into a Concession Agreement dated 04^th June, 2008

[hereinafter“CA”]. The original Project length under the CA was 82.5 KM

[hereinafter“Total Project Length”]. However, owing to various

hinderances in a stretch of 14.5 KM (out of the Total Project Length), the

Independent Engineer [“IE”]vide letter dated 18^th December, 2009, directed

VTPL to suspend the work qua the said stretch.

4. For afore-mentioned 14.5 KM stretch – parties entered into a

Supplementary Agreement dated 09^th September, 2013 [hereinafter

“Supplementary Agreement”]. Therein, it was recorded that: (a) VTPL/

Claimant proposed to exclude 14.5 KM stretch from the Project and the

impediments arising thereunder. (b) In the event, NHAI was unable to fulfil

its commitments qua the aforesaid stretch within three months or any further

period as may be mutually agreed between the parties or any other further

period w.e.f. signing of the Supplementary Agreement for handing over 14.5

KM stretch, the said stretch would be de-linked from the ‘scope of work’.

5. In the event of deletion of 14.5 KM of Chilakuripet Town stretch, it

was further agreed that: (a) toll revenue for the stretch of 14.5 KM being

This is a digitally signed Judgement.

NEUTRAL CITATION NO: 2022/DHC/001972

O.M.P. (COMM) 81/2022 Page 3 of 21

collected by VTPL would be passed to NHAI from the date of collection of

toll/ appointed date i.e., 01^st May, 2009; (b) maintenance expenditure on

14.5 KM stretch incurred so far and borne by VTPL would be reimbursed by

NHAI (based on the recommendation of IE); (c) future maintenance

expenses on the stretch of 14.5 KM would be borne by NHAI and

maintenance could be done through VTPL or third-party (and payment

thereon would be subject to certification by IE); and (d) VTPL would pay

revenue sharing premium to NHAI as per Article 25 and 26 of CA for

stretch of 68 KMs.

6. Disputes between the parties emanates from de-linking of 14.5 KM

stretch from the Total Project Length. Since NHAI was not able to remove

hinderances/ impediments from the said stretch within three months from

the date of the Supplementary Agreement, VTPL issued letters to NHAI to

de-link the stretch of 14.5 KM from the ‘scope of work’ and after nearly one

and a half years from the date of the Supplementary Agreement (i.e., 09^th

September, 201