OMP(I)(COMM) No.118/2022

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$~66

*

IN THE HIGH COURT OF DELHI AT NEW DELHI

%

+

O.M.P.(I) (COMM.) 118/2022

HK TOLL ROAD PRIVATE LIMITED

..... Petitioner

Through:

Mr.

Salim

A.

Inamdar,

Mr.

Modassir Husain Khan & Mr.

Abhishek Thakral, Advs.

versus

NATIONAL HIGHWAYS AUTHORITY

OF INDIA

.. Respondents

Through:

None.

CORAM:

HON'BLE MR. JUSTICE VIBHU BAKHRU

VIBHU BAKHRU, J. (ORAL)

IA No.5668/2022 (for exemption)

1.

Exemption is allowed, subject to all just exceptions.

2.

The application is disposed of.

O.M.P.(I) (COMM.) 118/2022

3.

The petitioner has filed the present petition under Section 9 of the

Arbitration & Conciliation Act, 1996 (hereafter the ‘A&C Act’), inter

alia, praying as under:

“a) Grant an injunction against the Respondent from

recovering any amount whatsoever for alleged

breach of contractual obligations in terms of letter

dated 08.10.2021 from the Escrow Account

bearing No. 1903201010137 of Canara Bank at

Prime Corporate Branch, Mumbai.

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OMP(I)(COMM) No.118/2022

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b) Grant an injunction on the operation of the letter

dated 09.09.2021 issued by the Respondent and

the IE's letters dated 22.10.2021 and 02.02.2022,

directing the proposed levy and recovery of the

damages from the Petitioner.

c) Grant ex parte ad interim reliefs in terms of the

above.”

4.

The respondent (hereinafter ‘NHAI’) had invited proposals by

issuing a Request for Qualification (RFQ) for shortlisting the bidders

for “construction, operation and maintenance of NH-7 Six-laning of

under NHDP Phase-V on BOT (Toll) on DBFOT basis” (hereinafter

‘the Project’).

5.

On 13.05.2010, NHAI had accepted the bid of Reliance

Infrastructure Ltd. and instructed furnishing of the Bank Guarantee for

a sum of ₹52.60 crores. Thereafter, the petitioner company was

incorporated as a Special Purpose Vehicle for executing the Project.

6.

On 02.07.2010, the parties entered into the Concession

Agreement for executing the said Project.

7.

It is stated that the petitioner had completed the Project and on

05.04.2016, a Provisional Completion Certificate was issued by the

Independent Engineer. The Project was thereafter, placed in

commercial service.

8.

The petitioner indicates that there were some issues with regard

to collection of toll and carrying out the maintenance works. The

petitioner claims that it had notified NHAI about the occurrence of a

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force majeure event on account of the outbreak of Covid-19 and the

measures taken for combating the pandemic. The petitioner also

claimed certain reliefs on account of the said force majeure events.

9.

According to the respondent, the petitioner was required to carry

out certain rectification works and to maintain the highway. On

01.12.2020, the Independent Engineer issued a letter to the petitioner to

carry out certain rectification work in respect of certain defects, in terms

of Clause 17.8 of the Concession Agreement. Thereafter, on

16.12.2020, NHAI also issued a notice under Clause 17.9.1 of the

Concession Agreement requiring the petitioner to carry out certain

repair/remedial measures in respect to the stated defects, within a period

of fifteen days. According to the petitioner, it submitted a detailed work

programme and also complied with the said directions. However, it

apparent that there is a dispute in this regard because according to

NHAI, certain defects have not been remedied.

10.

On 05.08.2021, the Independent Engineer sent a letter to the

respondent estimating the damages at ₹10,24,42,009/-, on account of

breach on the part of the petitioner to comply