Full Text
HIGH COURT OF DELHI
NATIONAL HIGHWAYS AUTHORITY OF INDIA..... Petitioner
Through: Mr. S. Nandakumar and Ms. Deepika Nandakumar, Advs.
Through: Mr. Saurabh Kirpal, Sr. Adv. with Mr.Sanjay Agarwal, Mr.Parthiv
Goswami, Mr.H.P Chaturvedi, Mr.M.V Ravindran, Mr.Apoorva Agrawal, Mr.Sarthak Sachdev and Ms. Terresa R.
Daulat, Advs.
JUDGMENT
1. This petition, at the instance of the National Highways Authority of India (NHAI), has been preferred under Section 34 of the Arbitration and Conciliation Act, 1996 (“the 1996 Act”), assailing an Award, dated 26th February, 2016, passed by an Arbitral Tribunal by a majority of two learned Arbitrators to one.
2. The respondent was the claimant before the learned Arbitral 2022:DHC:644 Tribunal and the petitioner-NHAI was the respondent.
3. The respondent raised two claims. The learned Arbitral Tribunal awarded, to the respondent,
(i) against Claim No. 1, ₹ 196,38,00,000/- along with interest of ₹ 100,15,38,000/- and
(ii) against Claim No. 2, ₹ 4,71,00,000/- along with interest of ₹ 2,73,18,000/-.
4. As a result, a total amount of ₹ 303,98,01,213/- stands awarded against NHAI and in favour of the respondent along with further interest @ 12 % on the said amount from the date of Award till the date of payment, in the event of failure, on the part of NHAI, to pay the amount to the respondent within 30 days of the award.
5. It merits mention, at the outset, that the present petition does not assail, directly or indirectly, the award of interest by the learned Arbitral Tribunal. Nor were arguments on the aspect of interest advanced before the court, by Mr. Nandakumar, learned Counsel for the NHAI. The award of interest by the learned Arbitral Tribunal, as an independent cause of action has, therefore, gone unassailed.
6. As such, the court is concerned only with the correctness of the grant, by the impugned Award, of the amount of ₹ 196.38 crores against Claim No. 1 and ₹ 4.71 crores against Claim No. 2, in favour of the respondent and against the NHAI. Needless to say, however, should the court find the said award to be deserving of interference, interest as granted by the learned Arbitral Tribunal would also perish with the principal. If, however, the court finds the award of the principal amount not to be justifying of interference, the principal amount would become payable along with interest as awarded by the learned Arbitral Tribunal, as the award of interest has not been independently contested.
7. It also merits mention that the petition does not include any challenge to the computation, by the learned Arbitral Tribunal, of the amount awarded to the respondent. All that is contested is the entitlement of the respondent to the awarded amount. Mr Nandakumar did, however, make certain limited submissions on the aspect of computation, with which I would presently deal. Facts Events till execution of Concession Agreement
8. In response to a Notice Inviting Tenders (NIT) floated by the NHAI in March, 2008, for operation and maintenance of a stretch of NH-4A in the State of Goa, a consortium of IRB Infrastructure Developers Ltd.
(IIDL) and Modern Road Makers Ltd. (MRM) (“the IIDL-MRM consortium”) submitted their bid and were successful.
9. IIDL wrote to NHAI on 20th July, 2009, requesting to issue a Letter of Acceptance (LoA) in favour of the IIDL-MRM Consortium, as it had emerged as the lowest bidder against the NIT issued by NHAI. Para 2 of the letter also indemnified NHAI, in the following terms: “We are aware of the recent changes brought in with regard to land acquisition related pre-compliances. In this regard, we hereby indemnify NHAI for any delay caused with respect to signing of Concession Agreement due to delay arising out of completion of 3D process for 80% land acquisition.”
10. LoA was issued by NHAI in favour of IRB-MRM Consortium on 5th January, 2010. The LoA required the Consortium to form a Special Purpose Vehicle (SPV), execute a Concession Agreement (hereinafter referred to as “CA”) and submit performance security by way of an irrevocable and unconditional Bank Guarantee of ₹ 23.55 crores within the period expiring on the 180th day from the date of signing of the Concession Agreement.
11. In compliance, the IRB-MRM Consortium wrote to NHAI on 8th February, 2010, informing NHAI that the Consortium had constituted the respondent IRB Goa Tollways Pvt. Ltd. as an SPV, to undertake the project.
12. Following the constitution of the respondent as an SPV by the Consortium, the CA was executed between the NHAI and the respondent on 19th February, 2010. The CA, significantly, did not contain any indemnity clause, as was contained in the letter dated 20th July, 2009 (supra) from IIDL to NHAI.
13. The following clauses of the CA are relevant: “4.1.[2] The Concessionaire may, upon providing the Performance Security to the Authority in accordance with Article 9, at any time after 90 (ninety) days from the date of this Agreement or on an earlier day acceptable to the Authority, by notice require the Authority to satisfy any or all of the Conditions Precedent set forth in this Clause 4.1.[2] within a period of 30 (thirty) days of the notice, or such longer period not exceeding 60 (sixty) days as may be specified therein, and the conditions precedent required to be satisfied by the Authority prior to the Appointed Date shall be deemed to have been fulfilled when the Authority shall have: (a) provided to the Concessionaire the Right of Way to the site in accordance with the provisions of Clause 10.3.1; provided that the conditions set forth in Clause 10.3.[2] shall also be satisfied on or prior to the Appointed Date; (b) Deleted
(c) procured approval of the Railway authorities in the form of a general arrangement drawing that would enable the Concessionaire to construct road overbridges/ underbridges at level crossings on the Project Highway in accordance with the Specifications and Standards and subject to the terms and conditions specified in such approval; and
(d) procured all Applicable Permits relating to environmental protection and conservation of the Site: (e) execute and procure execution of the State Support Agreement. Provided that the Authority may from time to time by notice extend, for up to 6 (six) months, the period for procuring the approval set forth in Subclause (c) and/or Sub-clause (d) above and in that event the land to be covered by overbridges or the affected sections of the Project Highway, as the case may be, shall be included in the Appendix referred to in Clause 10.[3] and dealt with in accordance with the provisions thereof; and provided further that upon procurement of such approval, the Concessionaire shall be entitled to a period of 12 (twelve) months therefrom for completion of the overbridges. 4.[2] Damages for delay by the Authority In the event that (i) the Authority does not procure fulfilment of any or all of the Conditions Precedent set forth in Clause 4.1.[2] within the period specified in respect thereof, and (ii) the delay has not occurred as a result of breach of this Agreement by the Concessionaire or due to Force Majeure, the Authority shall pay to the Concessionaire Damages in an amount calculated at the rate of 0.1% (zero point one percent) of the Performance Security for each day’s delay until the fulfilment of such Conditions Precedent, subject to a maximum of 20% (twenty percent)of the Performance Security. 7.[2] Representations and Warranties of the Authority The Authority represents and warrants to the Concessionaire that: (a) it has full power and authority to execute, deliver and perform its obligations under this Agreement and to carry out the transactions contemplated herein and that it has taken all actions necessary to execute this Agreement, exercise its rights and perform its obligations, under this Agreement; (b) it has taken all necessary actions under the Applicable Laws to authorize the execution, delivery and performance of this Agreement;
(c) it has the financial standing and capacity to perform its obligations under the Agreement;
(d) this Agreement constitutes a legal, valid and binding obligation enforceable against it in accordance with the terms hereof; (e) there are no actions, suits or proceedings pending or, to its knowledge, threatened against it at law or in equity before any court or before any other judicial, quasi-judicial Or other authority, the outcome of which may result in the default or breach of this Agreement or which individually or in the aggregate may result in any material impairment of its ability to perform its obligations under this Agreement; (f) it has no knowledge of any violation or default with respect to any order, writ, injunction or any decree of any court or any legally binding order of any Government Instrumentality which may result in any material adverse effect on the Authority's ability to perform its obligations under this Agreement; (g) it has complied with Applicable Laws in all material respects; (h) all information provided by it in the Tender Notice and invitation to bid in connection with the Project is, to the best of its knowledge and belief, true and accurate in all material respects;
(i) it has the right, power and authority to manage and operate the Project Highway up to the Appointed Date; (j) it has good and valid right to the Site, and has power and authority to grant a licence in respect thereto to the Concessionaire; and (k) upon the Concessionaire paying the Concession Fee and performing the covenants herein, it shall not at any time during the term hereof, interfere with peaceful exercise of the rights and discharge of the obligations by the Concessionaire, in accordance with this Agreement 10.3.[2] Without prejudice to the provisions of Clause 10.3.1, the Parties hereto agree that on or prior to the Appointed Date, the Authority shall have granted vacant access and Right of Way such that the Appendix shall not include more than 50% (fifty per cent) of the total area of the Site required and necessary for the Four-Lane Project Highway, and in the event Financial Close is delayed solely on account of delay in grant of such vacant access and Right of Way, the Authority shall be liable to payment of Damages under and in accordance with the provisions of Clause 4.2. 24.[1] Financial Close 24.1.[1] The Concessionaire hereby agrees and undertakes that it shall achieve Financial Close within 180 (one hundred and eighty) days from the date of this Agreement and in the event of delay, it shall be entitled to a further period not exceeding 120 (one hundred and twenty) days, subject to payment of Damages to the Authority in a sum calculated at the rate of 0.1% (zero point one per cent) of the Performance Security for each day of delay; provided that the Damages specified herein shall be payable every week in advance and the period beyond the said 180 (one hundred and eighty) days shall be granted only to the extent of Damages so paid; provided further that no Damages shall be payable if such delay in Financial Close has occurred solely as a result of any default or delay by the Authority in procuring satisfaction of the Conditions Precedent specified in Clause 4.1.[2] or due to Force Majeure. 24.[2] Termination due to failure to achieve Financial Close 24.2.[2] Upon Termination under Clause 24.2.1, the Authority shall be entitled to encash the Bid Security and appropriate the proceeds thereof as Damages provided, however, if Financial Close has not occurred solely as a result of the Authority being in default of any of its obligations under Clause 4.1.2. it shall upon Termination, return the Bid security forthwith along with Damages, equal to 25% (twentyfive per cent) thereof. For the avoidance of doubt, it is expressly agreed that if the Bid Security shall have been substituted by Performance Security, the Authority shall have been substituted by Performance Security, the Authority shall be entitled to encash therefrom an amount equal to Bid Security. 33.[3] Certification of claims by Statutory Auditors Any claim or document provided by the Concessionaire to the Authority in connection with or relating to receipts, income, payments, costs, expenses, accounts or audit, and any matter incidental thereto shall be valid and effective only if certified by its Statutory Auditors. For the avoidance of doubt, such certification shall not be required for exchange of information in the normal course of business including the submission of Monthly Fee Statements under Clause 19.5. 34.[1] Force Majeure As used in this Agreement the expression "Force Majeure" or "Force Majeure Event" shall mean occurrence in India of any or all of Non-Political Event, Indirect Political Event and Political Event, as defined in Clauses 34.2,34.[3] and 34.[4] respectively, if it affects the performance by the Party claiming the benefit of Force Majeure (the “Affected Party") of its obligations under this Agreement and which act or event
(i) is beyond the reasonable control of the Affected Party, and
(ii) the Affected Party could not have prevented or overcome by exercise of due diligence and following Good Industry Practice, and (iii) has Material Adverse Effect on the Affected Party. 34.[4] Political Event A Political Event shall mean one or more of the following acts or events by or on account of any Government Instrumentality: (a) Change in Law, only if consequences thereof cannot be dealt with under and in accordance with the provisions of Article 41 and its effect, in financial terms, exceeds the sum specified in Clause 41.1; (b) compulsory acquisition in national interest or expropriation of any Project Assets or rights of the Concessionaire or of the Contractors;
(c) unlawful or unauthorised or without jurisdiction revocation of, or refusal to renew or grant without valid cause, any clearance, licence, permit, authorisation, no objection certificate, consent, approval or exemption required by the Concessionaire or any of the contractors to perform their respective obligations under this Agreement and the Project Agreements; provided that such delay, modification, denial, refusal or revocation did not result from the Concessionaire's or any Contractor's inability or failure to comply with any condition relating to grant, maintenance or renewal of such clearance, licence, authorisation, no objection certificate, exemption, consent, approval or permit;
(d) any failure or delay of a Contractor but only to the extent caused by and/or Political Event and which does not result in any offsetting compensation being payable to the Concessionaire or on behalf of such Contractor; or (e) any event or circumstance of a nature analogous to any of the foregoing. 34.[5] Duty to report Force Majeure Event 34.5.[1] Upon occurrence of a Force Majeure Event, the Affected Party shall by notice report such occurrence to the other Party forthwith. Any notice pursuant hereto shall include full particulars of: (a) the nature and extent of each Force Majeure Event which is the subject of any claim for relief under this Article 34 with evidence in support thereof; (b) the estimated duration and the effect or probable effect which such Force Majeure Event is having or will have on the Affected Party's performance of its obligations under this Agreement;
(c) the measures which the Affected Party is taking or proposes to take for alleviating the impact of such Force Majeure Event; and
(d) any other information relevant to the Affected
Party's claim. 34.5.[2] The Affected Party shall not be entitled to any relief for or in respect of a Force Majeure Event unless it shall have notified the other Party of the occurrence of the Force Majeure Event as soon as reasonably practicable, and in any event not later than 7 (seven) days after the Affected Party knew, or ought reasonably to have known, of its occurrence, and shall have given particulars of the probable material effect that the Force Majeure Event is likely to have on the performance of its obligations under this Agreement. 34.5.[3] For so long as the Affected Party continues to claim to be materially affected by such Force Majeure Event, it shall provide the other Party with regular (and not less than weekly) reports containing information as required by Clause 34.5.1, and such other information as the other Party may reasonably request the Affected Party to provide. 34.[7] Allocation of costs arising out of Force Majeure 34.7.[1] Upon occurrence of any Force Majeure Event prior to the Appointed Date, the Parties shall bear their respective costs and no Party shall be required to pay to the other Party any costs thereof. 34.7.[2] Upon occurrence of a Force Majeure Event after the Appointed Date, the costs incurred and attributable to such event and directly relating to the Project (the "Force Majeure Costs") shall be allocated and paid as follows: (a) upon occurrence of a Non-Political Event, the Parties shall bear their respective Force Majeure Costs and neither Party shall be required to pay to the other Party any costs thereof; (b) upon occurrence of an Indirect Political Event, all Force Majeure Costs attributable to such Indirect Political Event, and not exceeding the Insurance Cover for such Indirect Political Event, shall be borne by the Concessionaire, and to the extent Force Majeure Costs exceed such Insurance Cover, one half of such excess amount shall be reimbursed by the Authority to the Concessionaire; and
(c) upon occurrence of a Political Event, all Force
Majeure Costs attributable to such Political Event shall be reimbursed by the Authority to the Concessionaire. For the avoidance of doubt, Force Majeure Costs may include interest payments on debt, O&M Expenses, any increase in the cost of Construction Works on account of inflation and all other costs directly attributable to the Force Majeure Event, but shall not include loss of Fee revenue or debt repayment obligations, and for determining such costs, information contained in the Financial Package may be relied upon to the extent that such information is relevant. 34.[9] Termination Payment for Force Majeure Event 34.9.[3] If Termination is on account of a Political Event, the Authority shall make a Termination Payment to the Concessionaire in an amount that would be payable under Clause 37.3.[2] as if it were an Authority Default. 37.3.[2] Upon Termination on account of an Authority Default, the Authority shall pay to the Concessionaire, by way of Termination Payment, an amount equal to (a) Debt Due; and (b) 150% (one hundred and fifty per cent) of the Adjusted Equity. 37.3.[3] Termination Payment shall become due and payable to the Concessionaire within 15 (fifteen days of a demand being made by the Concessionaire to the Authority with the necessary particulars and in the event of any delay the Authority shall pay interest at a rate equal to 3% (three per cent) above the Bank Rate on the amount of Termination Payment remaining unpaid; provided that such delay shall not exceed 90 (ninety) days. For the avoidance of doubt, it is expressly agreed that Termination Payment shall constitute full discharge by the Authority of its payment obligations in respect thereof hereunder
37.4. Other rights and obligations of the Authority Upon Termination for any reason whatsoever, the Authority shall: (a) be deemed to have taken possession and control of the Project Highway forthwith; (b) take possession and control of all materials, stores, implements, construction plants and equipment on or about the Site;
(c) be entitled to restrain the Concessionaire and any person claiming through or under the Concessionaire from entering upon the Site or any part of the Project;
(d) require the Concessionaire to comply with the
Divestment Requirements set forth in Clause 38.1; and (e) succeed upon election by the Authority, without the necessity of any further action by the Concessionaire, to the interests of the Concessionaire under such of the Project Agreements as the Authority may in its discretion deem appropriate, and shall upon such election be liable to the Contractors only for compensation accruing and becoming due and payable to them under the terms of their respective Project Agreements from and after the date the Authority elects to succeed to the interests of the Concessionaire. For the avoidance of doubt, it is hereby agreed, and the Concessionaire hereby acknowledges, that all sums claimed by such Contractors as being due and owing for works and services performed or accruing on account of any act, omission or event prior to such date shall constitute debt between the Concessionaire and such Contractors, and the Authority shall not in any manner be liable for such sums. It is further agreed that in the event the Authority elects to cure any outstanding defaults under such Project Agreements, the amount expended by the Authority for this purpose shall be deducted from the Termination Payment.” 44.[3] Arbitration 44.3.[1] Any dispute which is not resolved by conciliation, as provided in Clause 44.2, shall be finally decided by reference to arbitration by a Board of Arbitrators appointed in accordance with Clause 44.3.2. Such arbitration shall be held in accordance with the Rules of Arbitration of the International Centre for Alternative Dispute Resolution, New Delhi (the “Rules”), or such other rules as may be mutually agreed by the Parties, and shall be subject to the provisions of the Arbitration Act. The venue of such arbitration shall be Delhi, and the language of the arbitration proceedings shall be English. 48.[1] Definitions "Appointed Date" means the date on which Financial Close is achieved or an earlier date that the Parties may by mutual consent determine, and shall be deemed to be the date of commencement of the Concession Period; "Adjusted Equity" means the Equity funded in Indian Rupees and adjusted on the first day of the current month (the "Reference Date"), in the manner set forth below, to reflect the change in its value on account of depredation and variations in WPI, and for any Reference Date occurring: (a) on or before COD, the Adjusted Equity shall be a sum equal to the Equity funded in Indian Rupees and expended on the Project, revised to the extent of one half of the variation in WPI occurring between the first day of the month of Appointed Date and the Reference Date; (b) from COD and until the 4th (fourth) anniversary thereof, an amount equal to the Adjusted Equity as on COD shall be deemed to be the base (the "Base Adjusted Equity") and the Adjusted Equity hereunder shall be a sum equal to the Base Adjusted Equity, revised at the commencement of each month following COD to the extent of variation in WPI occurring between COD and the Reference Date;
(c) after the 4th (fourth) anniversary of COD, the
Adjusted Equity hereunder shall be a sum equal to the Base Adjusted Equity reduced by 0.28% (zero point two eight per cent) thereof at the commencement of each month following the 4th (fourth) anniversary of COD and the amount so arrived at shall be revised to the extent of variation in WPI occurring between COD and the Reference Date; For the avoidance of doubt, the adjusted Equity shall, in the event of Termination be computed as on Reference Date immediately preceding the Transfer Date; provided that no reduction in the Adjusted Equity shall be made for a period equal to the duration, if any, for which the Concession Period is extended, but the revision on account of WPl shall continue to be made;” Achieving Financial Close
14. On 31st March, 2010, the respondent wrote to NHAI stating that it had achieved “financial close”, within the meaning of Clause 24.1.[2] of the CA. Thereafter, certain amendments in the financing agreement were sought by NHAI, which were also effected by the respondent on 3rd September, 2010. Vide letter dated 20th October, 2010, addressed to the respondent, NHAI acknowledged that the respondent had achieved financial close on 3rd September, 2010, albeit as against the Scheduled Date of Financial Close i.e. 18th August, 2010. This fact is also acknowledged by NHAI in its written statement filed before the learned Arbitral Tribunal, as has been noticed in the impugned Award. The learned Arbitral Tribunal has, therefore, justifiably held that the achievement of financial close, by the respondent, on 3rd September, 2010 could not be disputed. Sub-contract with IIDL and communications from IIDL
15. In the interregnum, the respondent, in turn, sub-contracted the work to IIDL as the EPC contractor on 17th March, 2010, and forwarded a copy of the EPC contract to NHAI on 31st March, 2010. IIDL, thereafter, addressed several communications to the respondent, inter alia on 20th April, 2010, 19th May, 2010, 11th June, 2010, 25th August, 2010, 4th November, 2010, 8th December, 2010, 31st January, 2011, 4th April, 2011, 27th May, 2011, 13th July, 2011, 9th 2011, 18th November, 2011 and 1st December, 2011, stating that huge expenses were being incurred as, owing to non-commencement of work on the project, the resources that had been mobilised were lying idle. Demand for damages and the “Appointed Date”
16. Performance security, as required by Clause 4.1.[3] (a) read with Clause 9.[1] of the CA was furnished, by the respondent, on 2nd August, 2010, within the time stipulated in that regard. On 20th October, 2010, NHAI wrote to the respondent thus: “NHAI/BOT/11012/46/2005/14734 20th October, 2010 To, M/s IRB Goa Tollways Private Limited IRB Complex Chandivali Farm, Chandivali Village Andheri (East), Mumbai – 400072 Fax 022-66751024 Sub; Four Laning of Goa/Karnataka Border to Panaji-Goa stretch of NH-4A from Km 844+000 to Km 153+070 in the State of Goa on BOT (Build, Operate and Transfer) Toll basis on DBPO Pattern under NHDP Phase-III Appointed Date/Financial Close-Reg. Sir, Please refer to various correspondences in connection with Financial Close of subject project. In this contexts, it is intimated that you have achieved the Financial Close as on 03.09.2010 as against the Scheduled Date of Financial Close i.e.18.08.2010 (180 days from the date of Concession Agreement). As per Clause 24.1.[1] of the CA, the Concessionaire is requested to deposit the applicable damages at the rate of 0.1% of the performance security for each day of delay. In pursuant to above provision, you are requested to deposit the requisite amount on priority at the rate of 0.1% of the performance security for each day of delay w.e.f. 18.08.2010 till the date of the financial close i.e. 03.09.2010, so that further action on fixation of Appointed Date can be taken. Yours faithfully, Sd/- (A.K. Sharma) General Manager (Tech.)”
17. The respondent replied on 27th October, 2010, objecting to the demand of NHAI to the respondent to pay damages under Clause 24.1.1, contending that the delay, if any, was owing to reasons not attributable to the respondent. As such, the respondent requested NHAI to waive the demand for damages, comply with the obligations/ Conditions Precedent cast on NHAI under Clause 4.1.[2] of the CA and declare the Appointed Date for the project.
18. Communications were also addressed by the respondent and by IIDL to NHAI, stating that NHAI had not provided Right of Way, as required by Clause 10.3.[1] and 10.3.[2] of the CA. This was reiterated by IIDL vide letter dated 28th April, 2011, in which NHAI was again put on notice that it had failed to grant Right of Way to the respondent, as required by Clause 4.1.[2] read with Clauses 10.3.[1] and 10.3.[2] of the CA, as well as to provide applicable permits relating to environmental protection and conservation of the site. As a result, it was stated that NHAI had been unable to declare the Appointed Date for the project. NHAI was, therefore, requested to expedite fulfilment of the conditions precedent as they apply to it. Appointment of Statutory Auditor
19. In the interregnum, vide letter dated 26th October, 2010, NHAI concurred to the appointment of Dass Maulik Mahindra K. Aggarwal & Co. as the statutory auditor for the project, in terms of Clause 33.2.[1] of the CA. The statutory auditor, vide letter dated 12th April, 2011, certified the aggregate project cost incurred till 31st March, 2011 to be ₹ 142.09 crores, of which ₹ 34.[6] crores was sourced through equity capital and ₹ 92.94 crores through unsecured loans. Termination of CA
20. On 23rd November, 2011, the following communication was addressed by NHAI to the respondent, terminating the CA: “NHAI/BOT/11019/46/2008/1373 November 23, 2011 By Speed Post/Fax M/s IRB Goa Tollway Private Limited IRB Complex, Chandivali Farm, Chandivali Village, Andheri (East), Mumbai – 400072 Tel: 022-66404220 Fax 022-66751024 Kind Attn: Mr. D.K. Joshi, Director Sub: Four Laning of Goa/Karnataka Border - Panaji Goa Stretch of NHAI- 4A From Km 84.000 to km 153.070 in the State of Goa on BOT (Toll) Basis under NHDP Phase III - Termination of Concession Agreement of the Project Ref: Your Letter No. IRBGTPL/CTO/OUT/1936/2011 dated 24/08/2011 Sir, Please refer to the Concession Agreement signed on 19/02/2010 for the above subject project and to state that the issues of Land Acquisition, Clearance of forest & Environmental and disputes on Toll Rates is pending with the Government of Goa for a long time and after persistent persuasion with the Government of Goa, the matter is, stand still. Further, without resolving the above issues, there can not be any progress on construction of said project. 2). In light of the above peculiar situation and best efforts by NHAI, the Competent Authority had no other option but constrained to terminate the said Concession Agreement as per provisions provided in Article 37 of the Concession Agreement and cancellation of the entire project. Thus the Agreement is, hereby, terminated.
3) Accordingly; the 'Bank Guarantee NO. 2915IGPER036910 dated 30/07/2010 for Rs. 23,55,00,000(.- (Rupees Twenty Three Crores Fifty Five Lacs Only) issued by Bank of Baroda, Mumbai in favour of NHAI, towards Performance Security for the subject work is released herewith.
4) You would appreciate that despite best efforts of NHAI the project can not be started and your participation in the bidding has been highly appreciated and any inconvenience is regretted. Yours sincerely, Sd/- Anil Kumar Sharma General Manager (Tech) (Maharashtra & Goa Division)” This letter does not admit of two interpretations. NHAI has, clearly and umabiguously and without any equivocation whatsoever, admitted the failure to commence the project to be attributable to its inability in obtaining Governmental clearance, despite its best efforts. Somewhat inexplicably, NHAI sought to contend, before the learned Arbitral Tribunal as well as before me, that the termination was owing to default of both NHAI and the respondent. The learned Arbitral Tribunal, per majority, has rightly rejected this submission.
21. Following the aforesaid termination of the CA, the respondent wrote to IIDL on 25th November, 2011, requesting it to de-mobilise its resources, at the site. Claim of respondent and invocation of arbitration
22. On 6th February, 2012, the respondent wrote to NHAI, submitting its claim for ₹ 267.1245 crores and ₹ 4.71 crores under Clause 37.3.[2] and 4.[2] of the CA. The details of the cost incurred as certified by the statutory auditors were also enclosed therewith.
23. On NHAI failing to honour the aforesaid claim of the respondent, the respondent issued a notice under Section 21 of the 1996 Act, invoking arbitration, on 25th November, 2013. Consequent thereto, by consent of parties, the disputes were referred to a three member Arbitral Tribunal which has come to render the impugned Award by a majority of two learned Arbitrators to one.
24. Reference to the “award”, hereinafter, would denote the majority award, as that is the ultimately enforceable award, and subject matter of challenge. The Award
25. It would be appropriate to summarise the impugned Award, before proceeding to examine the challenge thereto. Rival contentions of parties before the learned Arbitral Tribunal
26. At the outset, the learned Arbitral Tribunal set out the rival stands of the parties before it. The respondent, as the claimant before the learned Arbitral Tribunal, contended that it had fulfilled the Conditions Precedent in Clauses 9, 24 and 47 of the CA, as (i) Performance Security was given within the stipulated time, (ii) financial close was achieved by it on 31st March, 2010, though it was not contesting the stand of NHAI, in its letter dated 22nd October, 2010, as well as in the written statement filed before the learned Arbitral Tribunal that financial close had been achieved by the respondent on 3rd September, 2010 and (iii) by operation of Clause 48.[1] of the CA, therefore, the Appointed Date was also 3rd
2010. The respondent contended, before the learned Arbitral Tribunal, that NHAI had defaulted in providing the Right of Way as was required by Article 4.1.[2] of the CA, till April 2011, which was more than a year from the execution of the CA, during which period the respondent’s investment and resources remained idle. The respondent also submitted that Clause 7.[2] of the CA misrepresented, to the respondent, that NHAI had good and valid right to the site, whereas, in actual fact, NHAI had no Right of Way, as it had to approach the Government of Goa in that regard. The respondent pointed out that Clause 10.3.[2] of the CA required NHAI, at or before the Appointed Date, to grant vacant access and Right of Way to the site, which was not done.
27. The respondent also assailed the termination of the CA, by NHAI on 23rd November, 2011, as illegal. As such, before the learned Arbitral Tribunal, the respondent contended that it was entitled to damages under Clause 37.3.[2] of the CA read with Section 73 of the Indian Contract Act, 1872 (“the Contract Act”).
28. Thus did the respondent lay, before the learned Arbitral Tribunal, two claims, the first predicated on Clause 37.3.[2] for 150% of the Adjusted Equity, amounting to ₹ 267.21245 crores and the second for damages towards delay in fulfilment of the Conditions Precedent by NHAI.
29. NHAI contended, per contra, that financial close had never taken place, as the respondent had failed to pay penalty/damages at the rate of 0.1% of Performance Security for each day of delay in achieving the financial close, as required by Clause 24.1.[1] of the CA. It also disclaimed any liability to pay damages to the respondent, citing force majeure. NHAI relied on Clause 4.[1] of the CA to contend that the rights and obligations of the parties under the CA was subject to satisfaction of the Conditions Precedent, stipulated in the said Clause.
30. It was further contended, by NHAI, that the CA was terminated on account of non-fulfilment of Conditions Precedent by both parties and that the termination was valid. As both parties had failed to perform their Conditions Precedent, NHAI submitted that no Appointed Date had been determined. NHAI’s contention was that merely achieving financial close did not amount to fixation of the Appointed Date even on the date of achievement of financial close as endorsed by NHAI. The respondent had failed, contended NHAI, to fulfil the Conditions Precedent, cast on it by the CA, prior to the Appointed Date and these Conditions Precedent had not been waived by NHAI. As such, the contention of NHAI was that the Appointed date had not reached till the termination of the CA by NHAI on 23rd November, 2011. As the Appointed Date had yet to reach, the Concession Period had also yet to commence. NHAI also placed reliance on Clause 34 of the CA to contend force majeure and submitted that the CA had been terminated by NHAI on account of failure, by both parties, to fulfil the Conditions Precedent, owing to force majeure. Consideration by the learned Arbitral Tribunal
31. Having thus set out the rival stands of the parties before it, the learned Arbitral Tribunal proceeded to examine the issues arising, seriatim. Financial Close
32. The learned Arbitral Tribunal first addressed the issue of attainment of financial close. Clause 24.1.[1] of the CA, it was noted, recorded the undertaking of the respondent to achieve financial close within 180 days from the execution of the CA, with an additional permissible period of 120 days, subject to payment of damages to NHAI @ 0.1% of the Performance Security per day. Clause 24.1.[1] also exempted the requirement of payment of damages if delay in achieving financial close was solely due to delay/default by NHAI in satisfying the Conditions Precedent stipulated in Clause 4.1.[2] of the CA, or owing to force majeure.
33. NHAI had, it was noted, admitted, both in its letter dated 22nd October, 2010, as well as in the written statement filed before the learned Arbitral Tribunal, that financial close had been achieved by the respondent on 3rd September, 2010. On the ground that this was beyond the period of 180 days from the execution of the CA, which expired on 18th August, 2010, NHAI, vide its letter dated 20th October, 2010, called upon the respondent to deposit damages under Clause 24.1.[1] @ 0.1% of the Performance Security per day of delay, so that further action for fixation of the Appointed Date could be taken. The learned Arbitral Tribunal noted, however, in this regard, that (i) NHAI did not deduct, from the Performance Security, any damages under Clause 24.1.1, (ii) the quantum of damages was not stipulated in the letter dated 20th October, 2010, (iii) no counter claim was preferred by NHAI, seeking damages and (iv) Clause 24.2.[2] exempted the requirement of payment of damages where the delay in achieving financial close had occurred solely on account of force majeure. Inasmuch as NHAI was itself pleading force majeure, the learned Arbitral Tribunal opined that it could not, very well, call upon the respondent to pay damages.
34. In any event, these circumstances did not alter the fact that the respondent had achieved financial close, admittedly at least on 3rd September, 2010. Appointed Date
35. The learned Arbitral Tribunal noted that Clause 48 of the CA, plainly and simply read, stipulated, as the only precondition for determining the Appointed Date, achievement of financial close, and that no other condition or stipulation was contained in this regard. The only circumstance in which Clause 48 envisaged any other Appointed Date, was where the parties, by mutual consent, fixed an earlier date as the Appointed Date. That had not taken place in the present case.
36. As financial close, even as per NHAI, had been achieved by the respondent on 3rd September, 2010, the learned Arbitral Tribunal held that, by operation of Clause 48 of the CA, the Appointed Date was also 3rd September, 2010.
37. The communications exchanged between NHAI and the respondent, the learned Arbitral Tribunal noted, indicated that both parties were harbouring a misunderstanding regarding the Appointed Date, presuming that the Appointed Date had yet to be fixed. This misunderstanding, however, it was observed, could not alter the effect of the contractual covenants contained in Clause 48. Clause 48 did not provide for any determination of the Appointed Date by NHAI. The Appointed Date automatically came into existence on achievement of financial close. Having, therefore, admitted, both in its letter dated 22nd October, 2010, as well as in its written statement filed before the learned Arbitral Tribunal, that financial close had been achieved by the respondent on 3rd September, 2010, it was held that NHAI could not contend that the Appointed Date had yet to reach, as damages were not paid by the respondent under Clause 24.1.1. Frustration due to force majeure
38. NHAI contended, before the learned Arbitral Tribunal, that as, prior to the Appointed Date, force majeure had occurred (in the form of the Government of Goa not granting approval as sought by NHAI) and was known to the respondent earlier in point of time, it was not entitled to any claim from NHAI, by virtue of Clause 34.7.1.
39. The learned Arbitral Tribunal noted that force majeure was defined in Clause 34. The CA envisaged force majeure on account of occurrence of a political event, non-political event or an indirect political event. In the circumstances of the present case, no nonpolitical event or indirect political event had occurred and the stipulations to that effect in the CA were not, therefore, relevant.
40. Of the various sub-clauses in Clause 34.4, therefore, the learned Arbitral Tribunal held that the only relevant sub-clause would be Clause 34.4(c), if at all. This sub-clause applied only where clearance, as required by the Concessionaire, i.e. the respondent, was not granted. It was not applicable where NHAI had applied for authorisation or clearance. The invocation of force majeure by NHAI was not, therefore, it was held, valid.
41. Besides, noted the learned Arbitral Tribunal, Clause 34.[5] cast, on the party seeking to avail the benefit of force majeure, a duty to report force majeure by way of notice under Clause 34.5.1, containing the necessary particulars. Admittedly, no such notice had been given by NHAI to the respondent. On this ground, too, therefore, the learned Arbitral Tribunal held that NHAI could not claim the benefit of force majeure.
42. Having thus held, the learned Arbitral Tribunal also noted that, under Clause 37.3.1, NHAI was liable to reimburse force majeure costs to the respondent. Termination of the CA
43. The learned Arbitral Tribunal next addressed the issue of termination of the CA by NHAI.
44. Before the learned Arbitral Tribunal, NHAI placed reliance on the indemnity, granted while submitting its bid in response to the NIT, in the letter dated 20th July, 2009, indemnifying NHAI from damages on account of delay in handing over the land. It was sought to be contended that the CA had been executed, based on the said undertaking.
45. The learned Arbitral Tribunal noted that no such undertaking was contained in the CA itself. Moreover, observed the learned Arbitral Tribunal, the claim of the respondent against NHAI under Clause 37.3.[2] arose out of termination of the CA by NHAI, and not delay in handing over of land. In any event, once the CA had been terminated, it was held that the undertaking lost all significance. The CA had been terminated on 23rd November, 2011, after the commencement of the Concession Period on 3rd September, 2010, being the Appointed Day, when financial close had been achieved by the respondent. The contention of NHAI that the Concession Period had not yet commenced, as the Appointed Date had not been reached before the termination of the CA was, therefore, found to be untenable. Satisfaction of Conditions Precedent
46. NHAI sought to contend, before the learned Arbitral Tribunal, that the respondent had not fulfilled the Conditions Precedent stipulated in the CA. This, in fact, was also contended to be one of the grounds on account of which the Appointed Date had not been reached.
47. As against this, the respondent contended that NHAI had not provided the Right of Way, as required by Clause 4.1.[2] read with Clause 10.3.[2] of the CA, till April 2011.
48. NHAI, in its letter dated 13th June, 2012, addressed to the Independent Engineer, stated thus: “a) The Concession Agreement for the project has been terminated under clause 37 due to non-fulfilment of conditions precedent by both the parties i.e. Concessionaire and NHAI. Reasons for non-fulfilment of a condition precedent by both the parties may be the same and no support from State Government.” This communication, noted the learned Arbitral Tribunal, admitted, in so many words, non-fulfilment of the Conditions Precedent by NHAI. It remains, therefore, to be decided whether the respondent was also remiss in this regard. Needless to say, the respondent contended in the negative.
49. The learned Arbitral Tribunal noted that the issue of the ground on which the CA had been terminated by NHAI would essentially have to be determined by reading the termination letter, dated 23rd November, 2011, as it stood. This letter, it was found, was unambiguous in acknowledging that the grounds for terminating the CA was the failure, of the NHAI, to obtain land acquisition, clearance of forested environment and settlement of disputes on toll rates pending with the Government of Goa, despite its best efforts or on any default on the part of the respondent. Nor did it seek to invoke force majeure. In view thereof, the learned Arbitral Tribunal held that the CA had not been terminated on account of any default on the part of the respondent, and that the contention of NHAI, to this effect, was misguided. In this context, the learned Arbitral Tribunal noted that NHAI had not, in any of its communications to the respondent, or even before the learned Arbitral Tribunal, clarified which condition precedent was remaining to be fulfilled by the respondent. The learned Arbitral Tribunal also sought support, for these conclusions, from the fact that no amount was deducted, by NHAI, from the Bank Guarantee for ₹ 23.55 crores, furnished by the respondent, at the time of releasing the said Bank Guarantee. Respondent’s claim for damages
50. The learned Arbitral Tribunal held that, having terminated the CA on account of its own default, NHAI was bound by the consequences of the said act. It was noted that the respondent had, vide its letters dated 23rd December, 2011 and 5th December, 2011, put NHAI on notice that it would be claiming damages. Analysis of Claims
51. Having thus set out the rival contentions of the parties before it, and expressed its views thereon, the learned Arbitral Tribunal proceeded to deal with the two individual claims of the respondent. Re. Claim 1
52. Addressing Claim 1 of the respondent, the learned Arbitral Tribunal noted that, in its communications dated 13th April, 2011, 14th July, 2011 and 2nd August, 2011, the respondent had noticed the expenses which it had incurred as a result of non-commencement of work. This, it was observed, was supported by the certificate, dated 31st March, 2011, of the Statutory Auditor’s, to the effect that the respondent had incurred a cost of ₹ 142.[9] crores on the project.
53. The learned Arbitral Tribunal noted that Clause 37.3.[2] of the CA stipulated the method for determination of damages in the event of termination of the CA on account of default of NHAI. This clause entitled the respondent, in such events, to be paid the debt due and 150% of the Adjusted Equity. The entitlement of the respondent, to these amounts, also stood vouchsafed by the Section 73 of the Contract Act[1]. Of these, the respondent was not claiming, before the “73. Compensation for loss or damage caused by breach of contract. – When a contract has been broken, the party who suffers by such breach is entitled to receive, from the party who has broken the contract, compensation for any loss or damage caused to him thereby, which naturally arose in the usual course of things from such breach, which the parties knew, when they make the contract, to be likely to result from the breach of it. Such compensation is not to be given for any remote an indirect loss or damage sustained by reason of the breach." learned Arbitral Tribunal, the amount payable to it by way of Debt Due, but was claiming 150% of Adjusted Equity. NHAI sought to contend that the equity bought could not be used, as no work had commenced at their site and that, therefore, 150% thereof would be nil.
54. The definition of “Adjusted Equity”, as contained in Clause 48 of the CA, to the extent it was relevant, read as under: “ “Adjusted Equity” means the equity funded in Indian rupees and adjusted on the 1st day of the current month (the “Reference Date”), in the manner set forth below, to reflect the change in its value on account of depreciation and variations in WPL, and for any Reference Date occurring: (a) On or before COD[2], the adjusted Equity shall be a sum equal to the equity funded in Indian Rupees and expended on the project, revised to the extent of one half of the variation in WPI occurring between the 1st day of the month of Appointed Date and the Reference Date; ***** For the avoidance of doubt, the Adjusted Equity shall, in the event of Termination, be computed as on the Reference Date immediately preceding the Transfer Date; provided that no reduction in the Adjusted Equity shall be made for a period equal to the duration, if any, for which the Concession Period is extended, but the revision on account of WPI shall continue to be made.” The learned Arbitral Tribunal noted that, as operations were yet to commence, there was no “Commercial Operation Date” and that, therefore, sub- clause (a) of Clause 48 of the CA[3] alone was relevant. Commercial Operation Date (as per Clause 48 of the CA)
55. The Statutory Auditors as appointed by the respondent with the consent and approval of NHAI and had certified the cost incurred by the respondent on the project to be ₹ 164.91 crores up to 9th December, 2011. This certificate, observed the learned Arbitral Tribunal, was valid and effective, in view of Clause 33.[3] of the CA, already reproduced supra. The respondent, in fact, vide letter dated 24th August, 2015, which was also vouchsafed by the Statutory Auditor and the Chartered Accountant of the respondent, reduced the cost incurred up to 21st August, 2015 from ₹ 164.91 crores 2 ₹ 130.92 crore. No objection, to this computation, had been raised by NHAI.
56. Thereafter, the learned Arbitral Tribunal proceeds to conclude, qua Claim 1 of the respondent, thus: “131. The aforesaid amount of ₹ 130.92 crores has to be further calculated as per the definition of “Adjusted Equity”. According to the said definition, the said amount of ₹ 130.92 crores has to be “revised to the extent of one half of the variation in WPI occurring between the 1st day of the month of Appointed Date and the Reference Date”.
132. As per the calculation given by the Statutory Auditors the one half of the variation in WPI occurring between the 1st day of the month of Appointed Date and the Reference Date is 7.9882%; ₹ 13.69 crores (₹ 212.07 as claimed minus ₹
198.38) (see page 38 of the Claimants revised documents). However, the Statutory Auditors have not given any method for its calculation or for arriving at the said percentage amount. He has only mentioned WPI of 1-Mar-10 – 135.20 and 31-Oct-11 – 156.80 and calculated the difference between the said 2 figures. This is not sufficient. The Arbitral Tribunal requires complete details before any amount may be awarded. Hence, this cannot be taken into consideration.
133. Therefore, the Concessionaire/Claimants are entitled to a sum of Adjusted Equity amounting to ₹ 130.92 crores + ₹
65.46 crores (being 50% of the Adjusted Equity) = ₹ 196.38 crores. The same is awarded to the Claimants.” Re. Claim 2
57. Claim 2, as raised by the respondent, was for an amount of ₹
4.71 crores, towards damages sustained on account of delay by NHAI in providing Right of Way as provided for under Clause 10.3.[2] read with Clause 4.1.[2] of the CA. Clause 4.[2] of the CA was invoked by the respondent for the said purpose. The respondent contended that Clause 4.1.[2] required NHAI to satisfy all Conditions Precedent within 60 days of providing of Performance Security by the respondent. Performance Security had been provided by the respondent on 2nd August, 2010. 60 days, therefrom, expired on 10th October, 2010. As NHAI had failed to provide Right of Way by the said date, the respondent claimed damages in terms of Clause 4.[2] of the CA.
58. As against this, NHAI contended that the respondent had failed to fulfil its contractual obligations under the CA.
59. The learned Arbitral Tribunal observed that no specific contractual obligation, which remained to be fulfilled by the respondent, had been pointed out by NHAI. The defence of NHAI was, therefore, rejected as unsustainably general and vague.
60. Resultantly, the learned Arbitral Tribunal awarded, to the respondent, the claim of ₹ 4.71 crores. Interest
61. Interest, held the learned Arbitral Tribunal, was payable in terms of Clause 37.3.[3] of the CA, read with Clause 47.4.[2] thereof. As the dispute pertained to the years 2010 and 2011, at which time Bank rate of interest was in the region of 12% per annum, the learned Arbitral Tribunal held the respondents to be entitled to interest, on the amounts found payable to it, @ 12% per annum. Operative portion
62. The learned Arbitral Tribunal, in para-143 of the majority award, summed up its conclusions thus: “(a) In respect of claim No. 1, the claim for a sum of ₹
196.38 crores is allowed. (b) Interest from the date of termination of the Concession Agreement, that is, November 23, 2011 at the rate of 12% per annum till the date of award, that is 29 February 2016 (for 4 years and 3 months) amounting to ₹ 1,001,538,000/– is allowed.
(c) In respect of claim No. 1, the claim for a sum of ₹
15.69 crores is rejected.
(d) In respect of claim No. 2, the claim for a sum of ₹
4,71,00,000/-is allowed. (e) Interest from the date of the demand of the Right of way, that is, April 27, 2011 at the rate of 12% per annum till the date of award, that is, 29th February, 2016 (for 4 years and 10 months) amounting to ₹ 27,318,000/– is allowed. (f) The claimants have also paid, as per their letter dated 9 September 2015 arbitration venue charges and other expenses for 10 hearings amounting to ₹ 90,426. The Claimants are entitled to 50% of the said fees and expenditure amounting to ₹ 45,213. The same is allowed to the Claimants. (g) Thus, the Respondents are liable to pay to the Claimants a total sum of ₹ 3,039,801,213. The said amount shall be paid within 30 days from the date of receipt of this Award. If the Respondents failed to pay the same, the Respondents shall be liable to pay interest at the rate of 12% on the total amount of ₹ 3,039,801,213 from the date of The award till the date of payment. (h) All other claims and counter claims, if any, not specifically dealt with herein shall be treated as rejected.
(i) The Parties to bear their own cost of these arbitration proceedings.”
63. I have heard Mr. S. Nandakumar, learned Counsel for NHAI and Mr. Saurabh Kirpal, learned Senior Counsel for the respondent, at length.
64. Arguing for NHAI, Mr. S. Nandakumar essentially raises the same grounds which were raised by NHAI before the learned Arbitral Tribunal and were rejected. He submits that having, in its letter dated 20th July, 2009, whereby LoA was sought, indemnified NHAI from any damages on account of delay in signing of the CA or in acquiring the land, the respondent (of which IIDL was, according to Mr. Nandakumar, a mere alter ego) would not claim damages from NHAI. Secondly, Mr. Nandakumar submits that, prior to payment of damages @ 0.1% of performance security for each day of delay in achieving financial close beyond 180 days from the date of signing of the CA, the Appointed Date could not be said to have been reached. In this context, he drew my attention to the communication dated 20th October, 2010, from NHAI to the respondent (reproduced in para 16 supra), which concluded with the request to the respondent to deposit damages @ 0.1% of performance security for each day of delay in achieving financial close beyond 180 days from the date of signing of the CA, in terms of Clause 24.1.1, without delay, “so that further action on fixation of Appointed Date can be taken”. The respondent not having complied with the request contained in the aforesaid letter dated 20th October, 2010, Mr. Nandakumar submits that the Appointed Date was never fixed by the NHAI. He has invited my attention, in this context, to Clause 4.1.3, which set out the Conditions Precedent, required to be fulfilled by the respondent. To a query from the Court, as to how, in the face of the definition of “Appointed Date”, as contained in the CA, it could be said that, till the respondent paid damages under Clause 24.1.1, the Appointed Date had not yet been reached, Mr. Nandakumar invited my attention to the communications between NHAI and the respondent, which indicate, prima facie, that both NHAI and the respondent were of the opinion that the Appointed Date was required to be fixed by NHAI. That, Mr Nandakumar emphasizes, never took place.
65. Addressing, next, the issue of termination, Mr. Nandakumar, referring to the notice of termination dated 23rd November, 2011, issued by NHAI to the respondent, submits that the CA was terminated by NHAI on account of default by NHAI as well as of the respondent.
66. Mr. Nandakumar also invoked force majeure, under Clause 34.4(c) of the CA, to contend that, by operation of the said clause, NHAI was indemnified of the need to pay any damages to the respondent, the failure in obtaining approvals from the Government of Goa, constituting, as it were, force majeure within the meaning of Clause 34.4(c) of the CA.
67. Considerable emphasis was laid, by Mr. Nandakumar, on the fact that the respondent had not even commenced work. He submits that the impugned Award results in a windfall to the respondent, as, without doing a day’s work, the respondent has become richer by ₹ 303 crores. He submits that the learned Arbitral Tribunal erred in failing to notice that damages could only be relatable to the costs incurred by the respondent and, without commencing work, it could not be said that the respondents had incurred any costs at all.
68. Mr. Nandakumar submits that, as the CA stood terminated prior to the Appointed Date being reached, owing to force majeure events, the claims of the respondent were misconceived. Besides, he reiterates, without paying damages in accordance with Clause 24.1.1, it could not be said that the Appointed Date had been reached.
69. Apropos the aspect of quantification of Claim No. 1, though the petition does not raise any challenge to the impugned Award on that ground, NHAI has placed brief written submissions on record, which were reiterated by Mr. Nandakumar. The said submissions, too, do not question, in any manner, the propriety of the quantification of Claim 1 by the majority Award of the learned Arbitral Tribunal. Instead, the petitioner has merely sought to place reliance on the following findings in the minority Award, on the aspect of entitlement of damages under Clause 37.3.2. of the CA: “7. The Respondent is seeking compensation under the following heads: EPC Contractor (Idling): 75.360 crore Fixed Overheads: 31 crore Design Supervision: 0.828 crore Preliminary and Pre-operative Expenses: 8.516 crore Interest During Construction: 15.216 crore TOTAL: 130.92 Crore That accordingly, 150% adjust equity determined with interest by the Majority Award. But the dissenting Award delivered by the Dr. B.P. Bagish has stated in their Award that, "I have examined the above figures without adjustment of equity. I have come to a conclusion that idling of EPC Contractor is not payable by the respondent as per agreement. Moreover, there is nothing on record to prove that the claimant has incurred this expenditure and paid to EPC. Under Section 73 of the contract only actual losses can be compensated. Fixed overheads will also be not payable because the claimant is under duty to mitigate losses when the right of way is not available to him. Only design charges and pre-operative expenses are payable to him if there is proof. Thus, the claim can be entertained.” ”
70. On Claim 2, the only submission advanced by Mr. Nandakumar is that this claim was effectively included in Claim 1 and that, therefore, it could not be separately awarded.
71. No submissions were advanced with respect to awarding of interest by the learned Arbitral Tribunal.
72. Responding to the submissions of Mr. Nandakumar, Mr. Kirpal, learned Senior Counsel for the respondent submits that, under Clause 34.9.[3] of the CA supra, where termination was on account of a political event, NHAI was required to make termination payment to the concessionaire, as would be payable under Clause 37.3.[2] as if it were a default on the part of NHAI. As such, he submits, the entire issue of force majeure was merely a red herring, as the NHAI was pleading force majeure on the basis of a political event, in which case, by operation of Clause 34.9.3, the respondent would in any event be entitled to the benefit of Clause 37.3.2.
73. On the aspect of indemnity in the letter dated 20th July, 2009, Mr. Kirpal points out that the concluding paragraph of the said letter makes it clear that the indemnity remained in place only till signing of the CA. It was an indemnity granted for delay in signing of the CA. Once the CA stood signed on 19th February, 2010, without any corresponding indemnity clause, Mr. Kirpal submits that NHAI could not claim indemnity on the basis of the letter dated 20th July, 2009.
74. Insofar as the quantification of Claim 1, by the learned Arbitral Tribunal, was concerned, Mr. Kirpal submits that no dispute, regarding quantification, was ever raised before the learned Arbitral Tribunal or has been raised in the present petition under Section 34 of the 1996 Act. NHAI, therefore, he submits, is estopped from raising any dispute regarding quantification at this stage.
75. That apart, Mr. Kirpal submits that the learned Arbitral Tribunal had proceeded on the basis of the certificate issued by the statutory auditor. The statutory auditor was appointed with the consent of the NHAI in terms of Clause 33.2.[1] of the CA. Clause 33.2.1, as the learned Arbitral Tribunal rightly held, made the certificate of the statutory auditor valid and binding. Mr. Kirpal further points out that the incurring of cost by the respondent of ₹ 130.92 crores also stood certified by the Chartered Accountant of the respondent vide letter dated 24th August, 2015. Supportive invoices, issued by IIDL have also been placed on record.
76. Mr. Kirpal contests the submission, of Mr. Nandakumar, that, as the respondent had been unable to commence work, it could not have incurred any costs. He submits that costs have been incurred, by the respondent, on the efforts made by it to mobilise resources, which had continued to remain idle for want of commencement of work. This, he submits, stands vouchsafed by the letters on which the learned Arbitral Tribunal itself relied. The contention of Mr. Nandakumar that, as work on the project had not commenced, no expenses had been incurred by the respondent is, therefore, according to Mr. Kirpal, thoroughly misconceived. He had invited my attention, in this context, to the following passages, from the letters dated 2nd April, 2011 and 24th August, 2011 issued by the respondent to NHAI: Letter dated 2nd April, 2011 “For your information, the EPC Contractor has already been mobilized by us to take up the construction Works for the project and we wish to assure you that once these critical issues listed above are sorted out by NHA[1], we will be in a position to quickly proceed with the mobilization of plant & Machinery and manpower, finalization of quarries for which, preliminary surveys have already been carried Out, and setting up of Camps. As you are aware, drawings for bridges have already been submitted to you for review, Plan & Profile drawings are also ready for the entire length of the project road and will be submitted to you very soon.” Letter dated 24th August, 2011 “We once again request you to expedite the negotiations with the State Government and issue us the Appointed Date for the Project since our Manpower and Machinery are ready since the last one year to start the work.” (emphasis supplied) Analysis
77. The position in law, as regards the scope of interference by a Court, exercising jurisdiction under Section 34 of the 1996 Act, with an arbitral award is, by now, fossilised through a number of judicial authorities, of which one may take due stock of the judgments in Sangyong Engineering & Construction Co. Ltd v. N.H.A.I.[4] and Delhi Airport Metro Express Pvt Ltd v. D.M.R.C.[5] These decisions clearly hold that the Court, exercising jurisdiction under Section 34, is to interfere only in cases of “patent illegality” or perversity in the Award under challenge. Mistakes of fact or law, or the predilection of the Section 34 Court to incline to a view contrary to that expressed by the Arbitral Tribunal, cannot constitute a basis for interference. The Section 34 Court does not substitute its subjective view in place of the view of the Arbitral Tribunal.
78. The present case, however, is one where the Court does not really have to invoke the law laid down in these decisions, as the reasoning and finding of the learned Arbitral Tribunal is eminently acceptable even as per the terms of the CA, and the contentions of NHAI, to the contrary, as raised before the Arbitral Tribunal and as reiterated before this Court, have rightly been rejected in the impugned Award.
79. Inasmuch as the reasoning in the impugned Award, regarding the entitlement of the respondent to damages in accordance with Clause 37.3.[2] of the CA, completely commends itself to acceptance by this Court, a brief recapitulation thereof would be more than sufficient.
80. The reliance, by Mr. Nandakumar, on the letter dated 20th July, 2009 from IIDL to NHAI, and the reference, in the said communication, to the indemnity granted to NHAI, is completely misconceived. In the first place, the stipulations in the letter exhausted themselves with the execution of the CA. Once the CA stood executed, any indemnity would have to be in terms of the CA and not outside it. There is, as the learned Arbitral Tribunal correctly holds, no corresponding indemnity clause in the CA.
81. That apart, the provision for indemnity, in the letter dated 20th July, 2009, was only “for any delay caused with respect to signing of Concession Agreement due to delay arising out of completion of 3D process for 80% land acquisition”. The learned Arbitral Tribunal correctly holds that Clause 37.3.2, under which the respondent was seeking damages, was not on account of delay in signing of the CA, but on account of termination of the CA on the ground of NHAI default. The claim of the respondent, which was relatable to Clause 37.3.[2] had, therefore, nothing to do with the indemnity granted by the letter dated 20th July, 2009. Expressed otherwise, the letter dated 20th July, 2009, does not indemnity NHAI from its liability under Clause 37.3.[2] of the CA – which had, moreover, not even been executed at that point of time.
82. The reliance on the letter dated 20th July, 2009, by NHAI, is, therefore, fundamentally misconceived, and has been rightly rejected by the learned Arbitral Tribunal.
83. The learned Arbitral Tribunal has also correctly noted that NHAI and the respondent were both, apparently, harbouring a misconception regarding the fixation of the “Appointed Date”. The definition of “Appointed Date”, as contained in the CA, is clear and categorical. The Appointed Date is the date on which financial close is achieved or any earlier date that the parties may by mutual consent determine. The definition also deems the Appointed Date to be the date of commencement of the Concession Period. It is not in dispute that no date, prior to achievement of financial close by the respondent, was fixed by the parties by mutual consent. As such, per definition, the date of achievement of financial close was the Appointed Date.
84. NHAI, both in its letter dated 22nd October, 2010, as well as in their written statement filed before the learned Arbitral Tribunal, admitted that the financial close had been achieved by the respondent, on 3rd September, 2010. The finding of the learned Arbitral Tribunal that, in view of the said admission, it could not lie in the mouth of NHAI to contend otherwise and that financial close had necessarily to be treated as having been achieved by the respondent on 3rd September, 2010 is, therefore, clearly unexceptionable. By definition, therefore, 3rd September, 2010 became the Appointed Date within the meaning of the CA. The finding of the learned Arbitral Tribunal, in this regard, is also perfectly in order, and the reliance by Mr. Nandakumar on the communications exchanged before the parties which betrayed confusion regarding the fixing of the Appointed Date is completely without merit.
85. The grievance, repeatedly voiced by Mr Nandakumar, about the respondent never having commenced work is also, in the circumstances, misconceived. The Commencement Date was, per definition in the CA, the Appointed Date. Though the Appointed Date stood fixed with the achievement of financial close by the respondent, NHAI never disabused the respondent in that regard. Rather, NHAI, perhaps bona fide, kept writing to the respondent, calling on the respondent to accede to its requests, so that it could fix the Appointed Date. The learned Arbitral Tribunal has correctly held that these communications were without basis, as the CA does not even obliquely contemplate fixation or determination of the Appointed Date by NHAI. Having, thus, kept the respondent under the impression that the Appointed Date had yet to be “fixed” by NHAI, and given the fact that the Concession Period, per definition in the CA, commenced with the Appointed Date, NHAI can hardly fault the respondent for not having commenced work. Rather, the communications from the respondent to NHAI in this regard betray considerable anxiety on this score, as the resources mobilized by the respondent were idling.
86. Proceeding, now, to the aspect of termination of the CA, the letter, dated 23rd November, 2011, whereby NHAI terminated the CA, is also clear in its terms. It is obvious from a plain reading of the said letter that the CA was terminated only on the ground that, despite its best efforts, NHAI was not able to source the requisite approvals from the Government of Goa. The submission of Mr. Nandakumar to the effect that the termination was on the ground of default on the part of NHAI as well as on the part of the respondent merely requires to be stated to be rejected, as it is directly in the teeth of the recitals contained in the letter of termination dated 23rd November, 2011. The learned Arbitral Tribunal has correctly held that termination was only on the ground of default on the part of NHAI and that there is not even a whisper of an averment in the letter dated 23rd November, 2011 of the termination being attributable to any default on the part of the respondent.
87. The sequitur, in the form of Clause 37.3.2, had inexorably to follow. Clause 37.3.[2] clearly holds that, were the CA to be terminated on the ground of “Authority default”, i.e. on the ground of default on the part of NHAI, the Concessionaire, i.e. the respondent, is entitled to the “Debt Due” alongwith 150% of the Adjusted Equity. This is an absolute dispensation in the CA, which brooks no exception or relaxation whatsoever. The termination of the CA being solely on the ground of NHAI default, the respondent was, by operation of Clause 37.3.[2] entitled, ipso facto, to the Debt Due as well as 150% of Adjusted Equity. The respondent not having claimed the debt due, the learned Arbitral Tribunal cannot be faulted for having held the respondent entitled to 150% of the Adjusted Equity.
88. In that view of the matter, the entire grievance, voiced by Mr. Nandakumar, regarding the respondent having defaulted in paying damages @ 0.[1] % per day for delay in achieving financial close, under Clause 24.1.1, completely loses significance. Clause 24.1.[1] does not make achievement of financial close conditional on the said payment. In any event, once the NHAI had itself acknowledged that financial close stood achieved by the respondent on 3rd September, 2010, the achievement of financial close could not be made conditional on payment of damages by NHAI.
89. NHAI, arguendo, may have had a case for claiming damages by way of a counter claim. The learned Arbitral Tribunal has correctly held that no such counter claim was preferred by it. It is too late in the date, therefore, for NHAI to now complain that the respondent did not pay damages as required by Clause 24.1.1.
90. Financial close having been achieved by NHAI on 3rd September, 2010 which, therefore, was the Appointed Date within the meaning of the CA, and the contract having been terminated after the Appointed Date on the ground of default on the part of NHAI, the learned Arbitral Tribunal was entirely justified in awarding, to the respondent, 150% of Adjusted Equity, under Clause 37.3.[2] of the CA.
91. Mr Nandakumar also pleads force majeure and invokes, for the purpose, Clause 34.4(c) of the CA. It is apparent, at a bare glance of the said provision, that it has no application whatsoever. Clause 34.4(c) at the cost of repetition, reads thus: “34.[4] Political Event A Political Event shall mean one or more of the following acts or events by or on account of any Government Instrumentality: ****
(c) unlawful or unauthorised or without jurisdiction revocation of, or refusal to renew or grant without valid cause, any clearance, licence, permit, authorisation, no objection certificate, consent, approval or exemption required by the Concessionaire or any of the contractors to perform their respective obligations under this Agreement and the Project Agreements; provided that such delay, modification, denial, refusal or revocation did not result from the Concessionaire's or any Contractor's inability or failure to comply with any condition relating to grant, maintenance or renewal of such clearance, licence, authorisation, no objection certificate, exemption, consent, approval or permit;”
92. On its plain reading, Clause 34.4(c) applies in the case of failure, on the part of the authorities, to grant authorization, etc., as required by the Concessionaire or any of the contractors to perform their respective obligations. It does not, therefore, apply where the default in granting approval was consequent on a request made by NHAI. Had there been a default in grant of approval consequent to a requirement of the respondent, Clause 34.4(c) may have applied. The delay in approval by the Government of Goa being in response to a request made by NHAI, Clause 34.4(c) has been rightly held by the learned Arbitral Tribunal to have no application whatsoever.
93. Though, in view of this contractual position, the plea of force majeure does not really survive for consideration. I also find myself in agreement with the learned Arbitral Tribunal that, having failed to issue prior notice as required by Clause 34.[5] of the CA, the NHAI could, in any event, not plead force majeure.
94. There is also substance in the contention of Mr. Kirpal that, by operation of Clause 34.9.3, where the termination was on account of a political event, NHAI would make a termination payment to the Concessionaire in an amount payable under Clause 37.3.[2] as if it were a default on the part of the NHAI. This, in fact, reinforces the position that Clause 34.4(c) applies only where the default was in granting approval as sought by the Concessionaire, i.e. by the respondent. Clause 34.4(c), in conjunction with Clause 34.9.3, is reflective of the contractual intent. What is intended by these clauses, seen vis-à-vis and in conjunction, is that, where the Concessionaire applies for grant of statutory approval from the governmental authorities, and the governmental authorities fail in granting such statutory approval, it would be treated as a “political event” for which the Concessionaire cannot be held responsible and, in such event, Clause 34.9.[3] compensats the Concessionaire by making NHAI liable to pay the Concessionaire as though it were an “Authority default” under Clause 37.3.2.
95. The invocation by NHAI, of force majeure was, therefore, thoroughly misconceived.
96. For all the aforesaid reasons, no infirmity whatsoever can be found, in the decision of the learned Arbitral Tribunal, that the respondent was entitled to 150% of Adjusted Equity in terms of Clause 37.3.[2] of the CA.
97. Apropos the aspect of computation, Mr. Kirpal is correct that, not having raised any dispute regarding computation either before the learned Arbitral Tribunal or even before this Court in its Section 34 petition, NHAI cannot seek to argue in Court that the computation was erroneous. Section 34 of the 1996 Act[6] envisages setting aside of “34. Application for setting aside arbitral award. – (1) Recourse to a Court against an arbitral award may be made only by an application for setting aside such award in accordance with sub-section (2) and sub-section (3) (2) An arbitral award may be set aside by the Court only if— (a) the party making the application 1 [establishes on the basis of the record of the arbitral tribunal that]—
(i) a party was under some incapacity, or
(ii) the arbitration agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law for the time being in force; or
(iii) the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or
(iv) the arbitral award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration:
(v) the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, unless such agreement was in conflict with a provision of this Part from which the parties cannot derogate, or, failing such agreement, was not in accordance with this Part; or (b) the Court finds that—
(i) the subject-matter of the dispute is not capable of settlement by arbitration under the law for the time being in force, or
(ii) the arbitral award is in conflict with the public policy of India.
(2A) An arbitral award arising out of arbitrations other than international commercial arbitrations, may also be set aside by the Court, if the Court finds that the award is vitiated by patent illegality appearing on the face of the award: Provided that an award shall not be set aside merely on the ground of an erroneous application of the law or by reappreciation of evidence.]” the arbitral award on grounds to be pleaded by the applicant [Section 34(2)(a)] or as found by the Court [Section 34(2)(b) and Section 34(2- A)]. No doubt, “patent illegality”, as a ground to set aside the award, finds mention in Section 34(2-A). That, however, does not mean that the Court can proceed to interfere with the award consequent on a suo motu exercise, sans any plea to that effect by either part, of seeking to ferret out errors in the award. Such an approach would stand discountenanced by Section 34(1), which permits setting aside of an arbitral award only on an application by the aggrieved party. The grounds for setting aside the award have, therefore, to be pleaded by the party so praying before the Court, in its application under Section 34(1). Once such grounds are pleaded, and the Court finds them to be made out, the Court would proceed to set aside the award. De hors and in excess of the grounds urged in the Section 34 petition, therefore, the Court would be acting in excess of its jurisdiction if it were to set aside the award. Even if “patent illegality” were the ground cited for setting aside the arbitral award, the basis for urging “patent illegality” has to be forthcoming in the Section 34(1) application. The challenger would remain bound by the contents thereof, and the pleas raised therein.
98. That apart, even during arguments and in written submissions, NHAI has provided no ground whatsoever to discountenance the manner in which the learned Arbitral Tribunal has computed the Adjusted Equity. The only reliance placed is on a paragraph from the decision of the descending member, which computes the Adjusted Equity without adjustment.
99. “Adjusted Equity”, per definition, was relatable to the costs incurred by the respondent in the project. This costs incurred stood certified by the statutory auditor. The statutory auditor had been appointed with the concurrence of the NHAI in terms of Clause 33.2.[1] of the CA. The certification of the claim by the statutory auditor was also accorded contractual sanctity in Clause 33.[3] of the CA. That apart, the claim of the respondent also stood certified by the respondent’s own Chartered Accountant, vide Certificate dated 9th December, 2011. No attempt was made by NHAI, before the learned Arbitral Tribunal, to question the correctness of the certification either by the statutory auditor or by the Chartered Accountant.
100. If, therefore, the learned Arbitral Tribunal proceeded on the basis of the certificate of the Statutory Auditor and the Chartered Accountant of the respondent in awarding Claim 1, no “patent illegality” can be said to have been committed.
101. Having said that, there does appear to be some want of clarity in the manner in which the learned Arbitral Tribunal has, in para 133 of the impugned award, proceeded to hold the respondent entitled to ₹
196.38 crores, after rejecting the calculation given by the statutory auditor in para 132. That, however, would have been an issue for the NHAI to raise either before learned Arbitral Tribunal or before this Court. It has not chosen to do so. No objection to the said finding of the learned Arbitral Tribunal is contained either in the Section 34 petition or in the written submissions filed by the NHAI before this Court, or even in the oral arguments advanced at the bar by Mr. Nandakumar. No occasion for the respondent to explain this aspect, therefore, arose either. Even if it did, an excursive exercise into this issue, by the Court, might teeter perilously on the edge of the provisory precipice in Section 34(2A), which proscribes setting aside of an arbitral award by reappreciating evidence.
102. Given the limited scope of the jurisdiction of this Court vested in it by Section 34 of the 1996 Act, no occasion arises for this Court to revisit the said findings of the learned Arbitral Tribunal on the basis of the case set up by NHAI before this Court.
103. In view thereof, the challenge, by NHAI, to the award of the learned Arbitral Tribunal, qua Claim 1 in the impugned award, has necessarily to be rejected.
104. Claim 2, as raised by the respondent before the learned Arbitral Tribunal, was on the ground predicated on Clause 4.[2] of the Concession Agreement, which envisaged payment of damages by NHAI for delay in fulfillment of the conditions precedent set out in Clause 4.1.[2] of the CA, not attributable to force majeure.
105. There appears to be substance in the contentions of Mr. Nandakumar that, having awarded damages to the respondent under Clause 37.3.2, which was also attributable to termination on the ground of default on the part of the NHAI in fulfilling its contractual obligations within the stipulated time, the learned Arbitral Tribunal could not, all over again, award damages on the ground of default in providing Right of Way within the period stipulated in the CA. This finding, on the part of the learned Arbitral Tribunal, thus, prima facie, amounts to a doubling of the damages awarded to the respondent. The learned Arbitral Tribunal does not appear to have noticed this fact.
106. In view thereof, I am of the opinion that, having awarded Claim 1 to the respondent under Clause 37.3.[2] of the CA, the learned Arbitral Tribunal was in patent error in again awarding damages to the respondent, albeit under Clause 4.[2] of the CA, which was again attributable to delay on the part of the NHAI.
107. The respondent cannot be permitted to be enriched twice over for the same default on the part of the NHAI.
108. In view thereof, the award of the learned Arbitral Tribunal, qua Claim 2 as raised by the respondent, cannot, in my view, sustain on facts or in law. It deserves, accordingly, to be set aside. Conclusion
109. In view of the aforesaid discussion, the impugned award is upheld to the extent it awards Claim 1, both with respect to the principal amount as well as the amount of interest awarded thereon, but is set aside qua Claim 2. As the two claims are severable, it is open to this Court in exercise of Section 34 jurisdiction to uphold the award qua one claim and set it aside qua the other, in view of the law laid down in M. P. Power Generation Co. Ltd v. Ansaldo Energia SPA[7].
110. The petition accordingly stands partly allowed to the aforesaid extent with no orders as to costs.
C. HARI SHANKAR, J.