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45. It is submitted that the Arbitral Tribunal followed the provisions of Article 36.2.6.1 of the Concession Agreement. The Termination Payment has been awarded in terms of Article 29.

46. It may be at this juncture observed that the Arbitral Tribunal noticed that the main issues that arise for consideration in the arbitration were as to (i) whether there were there any defects in the civil structure of the airport metro line?; (ii) If there were defects, did such defects had a material adverse effect on the performance of the obligation of the Concessionaire under the Concession Agreement? and (iii) If there were defects in the civil structure, which had a material adverse effect on the performance of the obligations under the Concession Agreement by the Concessionaire, had such defects been cured by Delhi Metro and / or had any effective steps been taken within a period of 90 days from the date of notice by the Concessionaire to cure the defects by Delhi Metro and thus was Delhi Metro in breach of the Concession Agreement as per clause 29.5.1(i)?

55. As noticed above, the Arbitral Tribunal noticed that the main issues that arose for consideration were (i) whether there were there any defects in the civil structure of the airport metro line?; (ii) If there were defects, did such defects have a material adverse effect on the performance of the obligation of the Concessionaire under Concession Agreement? and (iii) If there were defects in the civil structure, which had a material adverse effect on the performance of the obligations under the Concession Agreement by the Concessionaire, have such defects been cured by the Delhi Metro and / or have any effective steps been taken within a period of 90 days from the date of notice by the Concessionaire to cure the defects by Delhi Metro and thus was Delhi Metro in breach of the Concession Agreement as per clause 29.5.1(i)?
56. To answer the above referred issues, perusal of the Award shows that the Arbitral Tribunal firstly considered each of the defects alleged by the Concessionaire in the civil structure, defects/deficiencies in the Viaduct structure and the repair/rectification work carried out, Codal provisions regarding the repair works, the respective submissions of the parties, opinion and reports of the experts, evidence led by the parties including of expert witnesses, and thereafter analysed the submissions in detail and gave its conclusions.

It is a fact accepted by both the parties that large scale defects of various nature were noticed in the civil structures soon after one year of COD. Not all of these defects namely, twist in the girder, improper gaps between the girders, improperly placed bearings etc. could have been detected during routine inspections."

75. Further contention on behalf of Delhi Metro that the perceived financial unviability and not the defects in the structure, was the real reason of the termination of the Concession Agreement by the Concessionaire, is also without any merit.