Delhi High Court - Orders
National Highways Authority Of India vs The Louis Berger Group Inc. Jv With M/S. ... on 6 September, 2023
Author: Jyoti Singh
Bench: Jyoti Singh
$~39
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ O.M.P. (COMM) 351/2023
NATIONAL HIGHWAYS AUTHORITY
OF INDIA ..... Petitioner
Through: Mr. Arun Kumar Varma, Senior
Advocate with Mr. C.S. Chauhan,
Ms. Jasleen Singh Sandha and Mr. Kunal,
Advocates.
versus
THE LOUIS BERGER GROUP INC. JV
WITH M/S. COWI A/S ..... Respondent
Through: Mr. V. Seshagiri and
Ms. Prachi Jain, Advocates.
CORAM:
HON'BLE MS. JUSTICE JYOTI SINGH
ORDER
% 06.09.2023 I.A. 17161/2023 (Exemption)
1. Allowed, subject to all just exceptions.
2. Application stands disposed of.
O.M.P. (COMM) 351/2023 & I.A. 17160/2023 (stay)
3. Present petition has been filed under Section 34 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the '1996 Act') for setting aside the majority award dated 04.05.2023.
4. Learned Senior Counsel appearing on behalf of the Petitioner assails the award dated 04.05.2023 inter alia on several grounds. Amongst the myriad of contentions raised, one of them is with respect to the amount awarded under Claim II. It is submitted that the Claimant/Respondent herein had claimed O&M charges from 29.08.2017 till September, 2021 to the tune of Rs.4,13,05,161.00 and USD 60,769, with interest and in the 6th procedural hearing, the O.M.P. (COMM) 351/2023 Page 1 of 3 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 16/09/2023 at 17:12:28 Arbitral Tribunal had called upon counsel for the Claimant to inform on the next date the financial impact on the claim amount pertaining to O&M charges, if Mr. Bohra is not treated as being qualified to supervise the O&M functions of the bridge in question. Information was to be sent by e-mail to the Tribunal and the counsel for NHAI. After receiving information and examining the issue, the Tribunal was of the view that the criteria mentioned in the contract was supervision of O&M and merely because Mr. Bohra was a part of O&M from 31.08.2017 would not make him qualified as the supervisor of the team and it was not open to the Tribunal to dilute the experience criteria mentioned. Despite this finding and concurring with NHAI and holding that a sum of Rs.1,07,40,310.00 was liable to be deducted from Claim II, the learned Tribunal has awarded USD 60,769.00 till the end of consultancy period i.e. 19.11.2023 and Rs.5,16,82,887.00, together with interest. This, according to the learned Senior Counsel, is not only against the Arbitral Tribunal's own finding but is also beyond the claim raised by the Claimant. Moreover, the claim has been allowed till the end of consultancy period which is yet to expire on 19.11.2023. Relevant paragraph of the award is as follows:-
"7(xxiii) Concerning Claim No.2, the sub-issue to be decided is whether Sh. Sunil Bohra was having the requisite experience, qualification prescribed to be the Head of Supervision Team pertaining to the O&M. The correspondences dated 08.09.2020 and 03.12.2020 emanating from the claimant show that because he had supervised the construction of the Cable Stayed Bridge the claimant claimed that he had the requisite experience. The requisite experience required was 'in similar capacity' i.e. supervision of Operation & Maintenance for at least one Cable Stayed Bridge. Supervising Construction and supervising Operation & Maintenance are two different things. The criteria mentioned in the contract is supervision of O&M. Merely because he was a part of the O&M from 31.08.2017 would not make him qualified as the supervisor of the team. This Tribunal cannot dilute the experience criteria mentioned. The Tribunal concurs with the stand of the respondent that Mr. Sunil Bohra could not be deputed as the supervisor of the O&M Team. The financial implication emailed by Learned Counsel for the claimant as directed by the Tribunal vide order dated O.M.P. (COMM) 351/2023 Page 2 of 3 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 16/09/2023 at 17:12:28 11.04.2023 is to the effect that the sum of INR 1,07,40,310.00 is liable to be deducted from Claim No.2."
5. Issue notice.
6. Ms. Prachi Jain, learned counsel accepts notice on behalf of the Respondent.
7. Let reply be filed within a period of four weeks from today.
8. Rejoinder, if any, be filed within four weeks thereafter.
9. List on 19.03.2024.
10. On the Petitioner depositing the entire awarded amount along with upto date interest within six weeks from today, operation of the impugned award dated 04.05.2023 shall remain stayed, till the next date of hearing.
11. The amount so deposited shall be invested by the Registrar General in an interest-bearing Fixed Deposit, with a Nationalised Bank on auto-renewal mode.
12. Copy of the petition shall be furnished to the counsel for the Respondent through the electronic mode within a period of two days from today.
JYOTI SINGH, J SEPTEMBER 06, 2023/shivam/kks O.M.P. (COMM) 351/2023 Page 3 of 3 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 16/09/2023 at 17:12:28