O.M.P. (COMM) Nos.603/2020 & 39/2020

Page 1 of 41

IN THE HIGH COURT OF DELHI AT NEW DELHI

%

+

O.M.P.

(COMM)

603/2020

&

IA

Nos.12479/2020,

12480/2020 & 3823/2021

DELHI METRO RAIL CORPORATION LTD ..... Petitioner

versus

M/S J. KUMAR-CRTG JV

..... Respondent

Advocates who appeared in this case:

For the Petitioner

: Ms Aishwarya Bhati, ASG with Mr Rakesh

Chaudhary, Mr Gulshan Sharma, Mr Sushaar

Chaudhary and Ms. Ameyavikrama Thanvi

and Mr Nithin Chowdary, Advocates with

Mr Sushant Tripathi, Law Officer, DMRC.

For the Respondent

: Dr Shashwat Bajpai with Mr Vishal

Aggarwal, Advocates.

AND

+

O.M.P. (COMM) 39/2020 & IA No.13874/2021

M/S J.KUMAR-CRTG JV

..... Petitioner

versus

DELHI METRO RAIL CORPORATION LTD ..... Respondent

Advocates who appeared in this case:

For the Petitioner

: Mr Nakul Dewan Senior Advocate with Mr

Sambit Nanda, Dr Shashwat Bajpai with Mr

Vishal Aggarwal, Advocates.

For the Respondent

: Ms Aishwarya Bhati, ASG with Mr Rakesh

Chaudhary,

Mr

Gulshan

Sharma,

Mr

Sushaar Chaudhary and Ms. Ameyavikrama

2022:DHC:1504

O.M.P. (COMM) Nos.603/2020 & 39/2020

Page 2 of 41

Thanvi and Mr Nithin Chowdary, Advocates

with Mr Sushant Tripathi, Law Officer,

DMRC.

CORAM

HON’BLE MR JUSTICE VIBHU BAKHRU

JUDGMENT

VIBHU BAKHRU, J

1.

The parties have filed these petitions under Section 34 of the

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

impugning an arbitral award dated 26.10.2019 (hereafter ‘the

impugned award’) delivered by the Arbitral Tribunal constituted of

three members, Mr R.K.Gupta, Mr R.K. Aggarwal and Mr Rakesh

Mishra as the Presiding Arbitrator (hereafter ‘the Arbitral

Tribunal’).

2.

The impugned award was rendered in the context of disputes

that have arisen between the parties in connection with a contract

dated 28.09.2012 (hereafter ‘the Contract’).

Factual Matrix

3.

The controversy in the present case arises in the following

context:

3.1

Tenders were invited by Delhi Metro Rail Corporation Ltd

(hereafter ‘DMRC’) for the contract for the ‘design and construction

2022:DHC:1504

O.M.P. (COMM) Nos.603/2020 & 39/2020

Page 3 of 41

Vihar Corridor of Delhi MRTS Project of Phase III’ (hereafter ‘the

Project’). The Project comprised of four stations namely Lajpat

Nagar, Vinoba Puri, Ashram and Hazrat Nizamuddin connected with

tunnels.

3.2

On 22.05.2012, M/s J. Kumar-CRTG JV (hereafter ‘CRTG’)

participated in the bidding process pursuant to the aforesaid Notice

Inviting Tenders and submitted a bid of ₹ 909.1917 crores plus USD

1,09,09,423.3. On 16.07.2012, DMRC issued a Letter of Acceptance

(hereafter ‘LoA’), in favor of CRTG accepting its bid for the contract

price.

3.3

Thereafter, the Contract for the Project was signed by the

parties on 28.09.2012.

3.4

The work commenced on 23.07.2012, prior to the signing of the

Contract and the stipulated time for completion of work was forty-two

months. However, the Project could not be completed within the

stipulated period (that is, prior to 22.01.2016) and the time to do so

was extended till 31.01.2019. The work was finally completed on

31.12.2018.

3.5

The dispute between the parties relates to CRTG’s claim for

payment of additional amounts as compensation for the increase in

costs on account of encountering unforeseen physical conditions;

compensation of loss due to flooding and leakage of 900mm and

1500mm DJB pipeline; payment for providing railing on parapet wall

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O.M.P. (COMM) Nos.603/2020 & 39/2020

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of ramp at Hazrat Nizamuddin station; cost incurred for environmental

compensation

charges

(hereafter

‘ECC’);

compensation

for

underutilization of resources at Ashram station; and refund of interest

on advance.

3.6

The Arbitral Tribunal was constituted on 07.05.2018. And, by a

letter dated 24.05.2018, DMRC informed the Arbitral Tribunal that the

parties had mutually decided that a