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IN THE HIGH COURT OF DELHI AT NEW DELHI

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Judgment delivered on: 07.10.2022

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FAO(OS) (COMM) 92/2020 & CM APPL. 4216/2021 & CM

APPL. 4217/2021

IJM GAYATRI JV

..... Appellant

versus

NATIONAL HIGHWAYS AUTHORITY OF

INDIA

..... Respondent

Advocates who appeared in this case:

For the Appellant

: Mr. Angad Mehta, Adv.

For the Respondent

: Mr. Manish K. Bishnoi and Mr. Nirmal

Parsad, Advs.

CORAM

HON’BLE MR JUSTICE VIBHU BAKHRU

HON'BLE MR JUSTICE AMIT MAHAJAN

JUDGMENT

VIBHU BAKHRU, J

1.

M/s IJM-Gayatri (JV) (hereinafter ‘IJM’) has filed the present

appeal under Section 37(1)(c) of the Arbitration and Conciliation Act

(hereinafter ‘the A&C Act’) impugning a judgement dated 12.05.2020

(hereinafter ‘the impugned judgement’) passed by the learned Single

Judge, whereby National Highway Authority of India’s (hereinafter

‘NHAI’) application under Section 34 of the A&C Act, seeking to set

This is a digitally signed Judgement.

NEUTRAL CITATION NO: 2022/DHC/004080

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aside an arbitral award dated 09.08.2017 (hereinafter ‘the impugned

award’), was partially allowed.

Factual Context

2.

NHAI issued a Notice Inviting Tender (NIT) for execution of the

work relating to “widening of 4/6 lanes and upgrading of existing 2 lane

AP-13”

(hereinafter ‘the Project’), on the terms and conditions stipulated

thereon. Pursuant to the said NIT, IJM submitted its bid for executing

the Project works. IJM’s bid was accepted by NHAI and by a Letter of

Acceptance dated 20.04.2001 (hereinafter ‘the LoA’), the contract for

implementation of the Project was awarded to IJM for a consideration

of ₹225,39,46,841/-.

3.

Subsequently, on 25.05.2001, the parties entered into a formal

agreement [being Agreement no. 0040 /NH- 5/GQ/GM (E-l) /2001]

(hereinafter ‘the Agreement’). In terms of the Agreement, the works

were to be completed within a period of thirty-one months from the

commencement date and the defect liability period was stipulated as

twelve months.

4.

Thereafter, on 29.05.2001, NHAI issued a notice to proceed with

the work, in accordance with Clause 41.1 of the Special Conditions of

Contract (hereinafter ‘theSCC’). In terms of the said notice, the

scheduled date of commencement of work was stipulated as 01.06.2001

and the scheduled date of completion was stipulated as 31.12.2003.

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5.

The Agreement provided for sectional completion of the Project

and was divided into three sections, that are, Section A: Km 292.000 to

Km 300.000, Section B: Km 300.000 to Km 330.000 and Section C:

Km 330.000 to Km 357.979.000 and Km 291.000 to Km 292.000.

Admittedly, there were certain delays in execution of the Project works

and IJM sought Extension of Time for completion of the works on

successive occasions, which were approved by NHAI.

6.

IJM claimed that it had immediately commenced the works and

duly mobilised its resources, however, the sites/stretches were not

handed over properly and/or free of encumbrances and thus, there were

delays and interruptions in execution of the works on the part of NHAI.

NHAI had disputed the same and according to it, the delays were on the

part of IJM. The date of completion for each section was extended up

to 24.03.2006, 31.12.2005 and 24.03.2006 respectively.

7.

Thereafter, on 28.08.2007, IJM submitted the ‘Statement at

Completion’, in accordance with Clause 60.10 of the Conditions of

Particular Application (hereinafter ‘COPA’) to the Acting Resident

Engineer. The Acting Resident Engineer certified certain payments,

however, excluded some claims submitted by IJM with the ‘Statement

at Completion’.

8.

Thereafter, on 21.10.2008, NHAI issued a Defect Liability

Period Certificate (hereafter ‘DLC’). Pursuant to the issuance of the

DLC, on 27.02.2