Manoj Kumar Ohri JUDGMENT
Manoj Kumar Ohri, J.
1. By way of present petition filed under Section 34 of the Arbitration & Conciliation Act, 1996 (hereafter, 'the A&C Act'), the Petitioner-National Highways Authority of India (hereafter, 'NHAI') has laid challenge to the award dated 07.07.2016 (hereafter, 'the Arbitral Award') passed by the Arbitral Tribunal comprising of Shri Surjeet Singh (Presiding Arbitrator), Shri S.S. Agarwal and Shri Arun Kumar Sinha (hereafter, collectively referred to as 'the AT'). The dissenting Award was passed by Shri Arun Kumar Sinha.
2. The Arbitral Award was rendered in the context of the disputes arising out of Concession Agreement dated 30.01.2006 (and Supplementary Agreement dated 06.03.2014) (hereafter, 'the Agreement') whereby the Respondent (hereafter, 'the Contractor') was awarded the work of "Design, Construction, Development, Finance, Operation and Maintenance of Km. 373.275 (start of proposed flyover at Dindigul Bypass) to Km. 426.6 (Samayanallore) on NH-7 in the State of Tamil Nadu on build, operate and transfer (BOT) basis". The stipulated dates for commencement and completion of the project were 29.07.2006 and 29.01.2009 respectively. However, the actual commercial operation date was 28.09.2009.
3. The Contractor vide its Statement of Claims (hereafter, the 'SOC') raised 6 claims. The summary of claims awarded is extracted hereunder:-
4. Apart from the above-mentioned claims, the AT also awarded interest @ 2% above the SBI PLR on all the claims as well as interest @ 12% from date of award till realization (if the same is not paid within 60 days from date of award).
5. Per contra, NHAI in its Statement of Defence (hereafter, the 'SOD') denied the claim for additional costs/damages/losses on account of prolongation on the ground that "there is no clause in the concession agreement which provides safeguard to either of the parties for their defaults". It further denied all the allegations levelled by the Contractor and stated that there were delays on the part of the Contractor also.
6. In the present proceedings Mr. Nanda Kumar, learned counsel for NHAI has restricted his submission to the extent that the AT had failed to appreciate that sub-clauses 13.5.1 and 13.5.2 of the Agreement were applicable, while considering the question of damages in case of delay in handing over the Right of Way-Additional Right of Way. The AT erred in addressing the issue by applying sub-clause 31.2 of the Agreement read with Section 55 and 73 of the Indian Contract Act (hereafter, 'the Contract Act'). He contended that in terms of the Agreement, any default in handing over the site was required to be compensated in terms of sub-clauses 13.5.1 and 13.5.2.
7. Mr Jayant Mehta, learned Senior Counsel for the Contractor disputes these submissions and contends that there was a delay of 241 days in handing over the site by the NHAI. The delay was rightly held to be attributable to NHAI.
8. The liability of NHAI to compensate the Contractor for damages on account of delay in handing over the site, is not disputed. The only question that arises for consideration is whether sub-clauses 13.5.1 and 13.5.2 would apply or whether sub-clause 31.2 read with Section 55 and 73 of the Contract Act would apply. No other contention has been raised and only the quantum of damages has been questioned.
9. To appreciate the rival contentions, it is deemed expedient to reproduce the relevant extract of the impu........