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National Highways Authority Of India vs Larsen And Tourbo Limited on 14 November, 2022

Author: Prateek Jalan

Bench: Prateek Jalan

                          $~5
                          *     IN THE HIGH COURT OF DELHI AT NEW DELHI

                          +     O.M.P. (COMM) 363/2022 & I.As. 13865/2022, 13869/20222

                                NATIONAL HIGHWAYS
                                AUTHORITY OF INDIA                                  ..... Petitioner
                                             Through:             Mr. Manish K. Bishnoi, Mr.
                                                                  Nirmal Prasad & Ms. Jasleen
                                                                  Chahal,     Advocates.        [M:-
                                                                  9765660259]

                                                              versus

                                LARSEN AND TOURBO LIMITED               ..... Respondent
                                             Through: Dr. Amarnadha Prasad & Ms.
                                                      Preetika Duggal, Advocates.

                          CORAM:
                          HON'BLE MR. JUSTICE PRATEEK JALAN

                                                   ORDER

% 14.11.2022

1. Pursuant to the order dated 31.08.2022, Mr. Manish K. Bishnoi, learned counsel for the petitioner- National Highways Authority of India ["NHAI"] has filed a written note.

2. The challenge in the present petition is to an award dated 11.04.2022, rendered by a three member arbitral tribunal adjudicating disputes between the parties with regard to a contract dated 25.02.2014, for six-laning of a section of the Nation Highway-8 ["the Contract"]. The challenge in this petition is confined to the award in respect of the claim Nos. 3 and 6(a), and claim No. 5.

3. With regard to the claim Nos. 3 and 6(a), Mr. Bishnoi raises the following principal arguments:-

a. He submits that the award suffers from patent illegality in awarding ₹15 crores on account of compensation to the respondent for delay in providing right of way, whereas the Contract provided for a ceiling of 1% of contract price in respect of any such claim. b. Mr. Bishnoi submits that the quantification of the claim in the award is also manifestly erroneous, particularly in view of the fact that the award proceeds on the basis that 60 to 65% of the contract value was covered by the price adjustment clause in the Contract, whereas, according to the petitioner, clause 19.10 shows that 100% of the costs were subjected to the price adjustment clause.

4. As far as claim No. 5 is concerned, Mr. Bishnoi submits that, having regard to the scope of the Contract provided in Schedules C and D thereto, the respondent was required to compute the number of toll lanes in accordance with the Indian Roads Congress Manual ["IRC Manual"]. The IRC Manual required computation of the number of lanes with reference to the peak hour traffic flow. He submits that the respondent's reliance upon a representational drawing, including with the tender document, ought to have been rejected by the tribunal.

5. I am satisfied that these points require further consideration.

6. Issue notice. Dr. Amarnadha Prasad, learned counsel for the respondent, accepts notice. Respondent may file any additional documents which were part of the arbitral record within four weeks.

7. Learned counsel for both the parties may also file their written Signature Not Verified Digitally Signed By:SHITU NAGPAL O.M.P. (COMM) 363/2022 Page 2 of 3 Signing Date:15.11.2022 14:58:40 submissions, alongwith the copies of any authorities upon which they wish to rely, within the same period.

8. List on 06.02.2023.

PRATEEK JALAN, J NOVEMBER 14, 2022 'pv'/ Signature Not Verified Digitally Signed By:SHITU NAGPAL O.M.P. (COMM) 363/2022 Page 3 of 3 Signing Date:15.11.2022 14:58:40