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HIGH COURT OF DELHI
Date of Decision: 25th MARCH, 2025 IN THE MATTER OF:
NATIONAL HIGHWAYS AUTHORITY OF INDIA .....Appellant
Through: Mr. Ashish Rana and Mr. Anurag Kr Singh and Mr. Ritik Anmol, Advocates
Through: Mr. Angad Mehta and Mr. Arsh, Advocates
HON'BLE MR. JUSTICE HARISH VAIDYANATHAN SHANKAR
JUDGMENT
SUBRAMONIUM PRASAD, J.
1. The challenge in the instant appeal is to the Order dated 17.02.2022 in O.M.P. (COMM.) 215/2019 (released and rectified on 29.03.2022) passed by the learned Single Judge wherein the learned Single Judge has upheld the Arbitral Award dated 14.02.2019 passed by the learned Sole Arbitrator.
2. The learned Sole Arbitrator by the Arbitral Award dated 14.02.2019 has held that the Respondent/Claimant is entitled to waiver of Rs.6,76,71,317/- out of the amount which the Claimant is entitled to in accordance with Clause-H of the Contract. The learned Arbitrator further held that the Respondent/Claimant shall also be entitled for a sum of Rs.49,65,280/- along with simple interest @14% per annum w.e.f. 01.04.2017 till the date of payment and a sum of Rs.15,00,000/- from the Respondent/Claimant towards cost.
3. Shorn off unnecessary details, the facts leading to the instant appeal are as under: a. That the Appellant invited a tender in respect of work relating to collection of user fee at Vempadu Toll Plaza located at Km. 795.498 for the stretch from Km. 830.525 to Km. 741.255 on National Highway-5 (now renamed as National Highway-16) in the State of Andhra Pradesh and sought to prequalify intending bidders. b. The Contract Agreement dated 30.07.2016 was entered into between the parties for a period from 01.08.2016 to 01.08.2017. c. Under the said Contract Agreement, the Respondent/Claimant was to pay a monthly fixed amount of Rs.2,24,40,274/- per week to the Appellant herein. d. Apart from the said amount, in case of delay in making the payment for more than a month, the Respondent was also liable to pay penalty @0.2% per day for initial one month and @0.5% per day for further delay beyond one month. e. Disputes arose between the parties primarily on account of demonetization. f. According to the Appellant the Respondent has failed to make the payment of the minimum amount from 01.08.2016 to 04.08.2017. g. It is the case of the Respondent that since the Government of India had declared that all INR 500/- and INR 1,000/- notes ceased to be legal tender from 08.11.2016, it had a serious impact on toll collection remittance and that the Respondent is entitled to exemption from payment of the minimum guaranteed amount on account of demonetization which the Respondent/Claimant stated is a force majeure event, as mentioned under the Contract Agreement. h. According to the Respondent, it is not liable to pay the said amount from 09.11.2016 to 28.02.2017. i. Since the disputes were not resolved between the parties, this Court vide Order dated 12.07.2017 in Arbitration Petition No.345/2017 has appointed the Sole Arbitrator to adjudicate upon the disputes which have arisen between the parties. j. The Respondent has sought the following reliefs before the learned Sole Arbitrator:- “i)Waiver of the payment of Rs.6,76,71,317/- out of the liability of Rs.8,09,02,416/- considering the period 09.11.2016 to 28.02.2017 as period falling under force majeure period and; ii)Refund for a sum of Rs.1,32,31,099/- (already paid under duress) out of the liability of Rs.8,09,02,416/considering the period 09.11.2016 to 28.02.2017 as period falling under force majeure period and; iii)Interest @18% per annum compounded quarterly on the amount of refund of Rs.1,32,31,099/-.” k. It is pertinent to mention here that the claim of the Respondent was for exemption and other reliefs for the period between 09.11.2016 to 28.02.2017. l. The Appellant herein has also made a counter-claim for the payment of the minimum amount, which the Respondent was required to pay under the Contract Agreement dated 30.07.2016 entered into between the parties and which according to the Appellant herein was not paid from 01.08.2016 to 04.08.2017 which is a period larger than the period claimed by the Respondent. m. After perusing the material on record, the learned Sole Arbitrator has passed the Arbitral Award dated 14.02.2019. The operative part of the Arbitral Award dated 14.02.2019 reads as under:-
rejected.” n. It is also pertinent to mention here that it is the case of the Appellant that the learned Sole Arbitrator has failed to consider the counter-claim in proper perspective and has denied the counter-claim because claims of the Respondent/Claimant were allowed. It is the case of the Appellant that the learned Sole Arbitrator has also failed to notice that the period for counterclaim is for the period longer than the period for which the claim has been made. o. The Arbitral Award dated 14.02.2019 was the subject matter of challenge in O.M.P. (COMM.) 215/2019 filed by the Appellant under Section 34 of the Arbitration and Conciliation Act, 1996 before the learned Single Judge. The learned Single Judge vide the order impugned therein has upheld the Award. p. It is this order which is subject matter of challenge before this Bench.
4. The short submission of the learned Counsel appearing for the Appellant is that the learned Single Judge has not discussed the grievance of the Appellant regarding the rejection of the counter-claim which was for a period larger than the period of claim.
5. Per contra, learned Counsel appearing on behalf of the Respondent has tried to sustain the Arbitral Award dated 14.02.2019.
6. Heard the learned Counsel for the partiers and perused the material on record.
7. The learned Sole Arbitrator has considered the case of the Appellant on the issue of counter-claim in paragraph No.35 of the Arbitral Award dated 14.02.2019, which reads as under:-
8. The contention regarding the counter-claim as raised by the Appellant herein has been captured by the learned Single Judge in paragraph No.20 of the impugned Order dated 17.02.2022, which reads as under:-
9. The learned Single Judge, after noticing the grievance regarding the counter-claim has not discussed anything about the counter-claim and has upheld the Arbitral Award. Since the learned Single Judge has not discussed about the counter-claim, this Court is inclined to remand the matter back only limited to the consideration on the counter-claim which has been discussed by the learned Sole Arbitrator in paragraph No.35 of the Arbitral Award dated 14.02.2019. The grievance has been noticed in paragraph No.20 of the impugned Order dated 17.02.2022 passed by the learned Single Judge but have not been discussed in the finding.
10. Resultantly, the impugned Order dated 17.02.2022 passed by the learned Single Judge is set aside only with regard to rejection of the counterclaim by the learned Sole Arbitrator and was upheld by the learned Single Judge without any reason.
11. With these observations, the instant appeal is partly allowed. Pending application(s), if any stands disposed of.
12. It is made clear that this Court has not made any opinion regarding the counter-claim and it is open for both the parties to raise all the contentions available to them under law.
SUBRAMONIUM PRASAD, J HARISH VAIDYANATHAN SHANKAR, J MARCH 25, 2025