Delhi High Court - Orders
National Highway Authority Of India ... vs Gvk Jaipur Expressway Pvt. Ltd on 26 February, 2021
Author: C.Hari Shankar
Bench: C.Hari Shankar
$~12
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ O.M.P. (COMM) 540/2020
NATIONAL HIGHWAY
AUTHORITY OF INDIA (NHAI) ..... Petitioner
Through Mr. Shlok Chandra, Adv.
versus
GVK JAIPUR EXPRESSWAY PVT. LTD. ..... Respondent
Through: Mr. Gopal Jain, Sr. Adv. with Mr.
Devashish Bharuka, Adv.
CORAM:
HON'BLE MR. JUSTICE C.HARI SHANKAR
ORDER
% 26.02.2021
(video-conferencing)
I.A. 10478/2020 (stay), I.A. 10479/2020 (exemption) and I.A. 10480/2020 (Order 41 Rule 3A of the CPC)
1. Mr. Shlok Chandra has addressed lengthy arguments, in favour of the petitioner. Prima facie, after hearing the arguments, the grievance of the petitioner, apart from other aspects, appears to be that, while awarding and granting relief to the respondent under Clause 36 of the Concession Agreement, the learned Arbitral Tribunal has ignored, in its entirety, Chapter 7 and the benefits that would accrue to NHAI thereunder. Mr. Shlok Chandra submits that, even assuming, without admitting, that the respondent was entitled to the benefit of Clause 36, the amounts that would fall to the lot of the respondent would have to be deposited in the escrow account and distributed in accordance with the covenants in Article 7 of the Concession Agreement. The entire amount, therefore, he submits, Signature Not Verified Digitally Signed O.M.P. (COMM) 540/2020 Page 1 of 3 By:SUNIL SINGH NEGI Signing Date:01.03.2021 19:12:52 could not have been awarded to the respondent and, in doing so, the impugned award of the learned Arbitral Tribunal suffers from patent illegality within the meaning of Section 34 of the 1996 Act.
2. A reading of the award reveals that the learned Arbitral Tribunal has, on a detailed analysis, proceeded to hold that Article 7 of the Concession Agreement applies only where normally realizable fees are realized and that it is not intended to apply to a situation in which realization is not possible owing to circumstances beyond the control of the concessionaire. It would fall for consideration, firstly, whether such a finding could be disturbed in exercise of Section 34 jurisdiction and, secondly, whether the learned Arbitral Tribunal could have ignored the distributory dispensation provided in Article 7 of the Concession Agreement and awarded the entire amount to the respondent.
3. Renotify to hear the submissions of Mr. Gopal Jain, learned counsel in reply and Mr. Shlok Chandra in rejoinder on 3rd March, 2021 as part heard.
4. In case, the arguments cover all aspects and subject to the agreement by the parties, this Court may consider disposing of the OMP (COMM) 540/2020, failing which the arguments would be limited to the application for interim relief.
O.M.P. (COMM) 540/2020
1. Issue notice, returnable on 3rd March, 2021.
Signature Not Verified Digitally Signed O.M.P. (COMM) 540/2020 Page 2 of 3 By:SUNIL SINGH NEGI Signing Date:01.03.2021 19:12:522. Notice is accepted by Mr. Devashish Bharuka, learned counsel for the respondent.
3. Subject to para 4 supra, counter affidavit, if any, be filed within a period of four weeks from today with advance copy to learned Counsel for the petitioner, who may file rejoinder thereto, if any, within a period of two weeks thereof.
4. The Registry is directed to requisition the arbitral records of the learned Arbitral Tribunal before the next date of hearing and provide copies thereof, electronically or otherwise, to learned Counsel for the opposite party.
C.HARI SHANKAR, J FEBRUARY 26, 2021 r.bararia Signature Not Verified Digitally Signed O.M.P. (COMM) 540/2020 Page 3 of 3 By:SUNIL SINGH NEGI Signing Date:01.03.2021 19:12:52