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IN THE HIGH COURT OF DELHI
Sanjiv Khanna, Chander Shekhar, JJ.
National Highway Authority of India - Appellant
Versus
Gayatri Jhansi Roadways Ltd. - Respondent
FAO(OS) (COMM) 161 of 2018
Decided On : 01-08-2018
JUDGMENT
Sanjiv Khanna, J. (Oral)--National Highway Authority of India in this intra-Court appeal under Section 37 of the Arbitration and Conciliation Act, 1996 (A & C Act, for short) read with Section 13 of the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 impugns order dated 25th May, 2018, whereby objections filed by the appellant under Section 34 of the A & C Act, vide OMP (COMM) No.239/2018, have been dismissed.
2. The primary issue raised and decided by Arbitral Tribunal was relating to interpretation and effect of recital clauses of the supplementary agreement dated 1st November, 2010, between, National Highway Authority of India ("appellant") and M/s. Gayatri Jhansi Roadways Limited ("respondent/concessionaire").
3. For sake of convenience and completeness, we reproduce the supplementary agreement, which reads as under:
"SUPPLEMENTARY AGREEMENT
BETWEEN
1. NATIONAL HIGHWAYS AUTHORITY OF INDIA, a statutory body constituted under the provisions of the National Highways Authority of India Act, 1988, and having its principal office at G-5&6, Sector - 10, Dwarka, New Delhi - 110075 (hereinafter referred to as "NHAI" which expression shall unless repugnant to the context or meaning (hereof including its administrators, successors and assigns) of One Part.
AND
2. Gayatri Jhansi Roadways limited, a company incorporated under the provisions of the Companies Act, 1956 and having its registered office at 63-1090, TSR Towers Somajiguda, Rajbhavan Road, Hyderabad (hereinafter referred to as the "Concessionaire" or "Company" which expression shall unless repugnant to the context or meaning thereof include its successors and permitted substitutes of the Other Part.
FOR
The work of Design, Construction, Development, Finance, Operation and Maintenance of Km 0.000 to Km 49.700 covering 79.700 KM of National Highway No. 25/26 (NH-25/26) in the state of Uttar Pradesh (Package NS1/BOT/UP-2) on BOT (Annuity) Basis.
WHEREAS
In accordance with the provisions of C O.M.P. (COMM) 239/2018 Page 14 of 21 date i.e. 28.3.2007. On account of delays in land acquisition, transfer of forest land from Ministry of Environment Forest, Govt. of India, shifting of High Tension Electrical Lines, NHAI had handed over the land to the Concessionaire in the following manner:
| Within 12 Months | 24 Months | 30 Months | 36 Months | 39 Months |
| 18.312 km | 21.679 km | 28.602 | 33.355 km | 40.690km |
* Scheduled Completion Date - 28.09.2009
On account of delayed handing over of land by NHAI, the Concessionaire could not complete the entire work by scheduled completion date i.e. 28.09.2009. By June 2010, the Concessionaire completed the work in 35.789 km stretch and Provisional Completion Certificate was issued by Independent Consultant on 11.06.2010. The Concessionaire on 3rd September, 2010 completed the static load test on all the completed structures and Safety Review for the completed project highway was completed in all respects and found to be in conformity to the relevant norms: As on 11th June, 2010, the status of work under project highway is:
| Status of Work | Length (Km) |
| Work Completed | 35.789 km |
| Work in progress in land handed over after March 2010 | 4.901 km |
| Land yet to be handed over to Concessionaire by NHAI | 9.010 km |
THEREFORE
This Supplementary Agreement is being made as an Addendum to the Main Concession Agreement dated 29th day of September 2006 and that all provisions of the Main Concession Agreement will be applicable to this Supplementary Agreement except to the extent waived by the parties thereto under this Supplementary Agreement.
The Concessionaire indemnities and absolves NHAI from all the damages penalties, claims, costs expenses, or losses or any adverse action or impact to NHAI by direct, indirect consequential or any dues, due to delay in meeting the obligations (handing over the land or clearance as the case may be) or on any other ground whatsoever.
The Concessionaire shall complete the balance works in the 13.911 km of str
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