Larsen & Toubro Limited vs National Highway Authority Of ...
2011 Latest Caselaw 3029 Del

*    IN THE HIGH COURT OF DELHI AT NEW DELHI

+    FAO(OS) No.345/2010 & CM Nos.9062/2010, 21064/2010
     & CM 7691/2011

Larsen & Toubro Limited                   .....Appellant through
                               Mr P.H.Parekh, Senior Advocate
                               with Mr Sameer Parekh,
                               Mr Sumeet Lall, Mr Arjun Garg,
                               Ms Smita Bhargava and Ms Ritika
                               Sethi, Advocates
                versus
National Highway Authority of India ......Respondent through
                            Mr Parag P.Tripathi, ASG with
                            Mr Vikas Goel and Mr Kunal Dutta,
                            Advocates

%                              Date of hearing: 6th May, 2011
                               Date of decision: 3rd June, 2011
     CORAM:
*    HON'BLE MR. JUSTICE VIKRAMAJIT SEN
     HON'BLE MR. JUSTICE SIDDHARTH MRIDUL

     1. Whether reporters of local papers may be
        allowed to see the Judgment?                     No
     2. To be referred to the Reporter or not?           No
     3. Whether the Judgment should be reported
        in the Digest?                                   No

VIKRAMAJIT SEN, J.

The present Appeal arises from the Order of the learned

Single Judge dated 9th September, 2009 dismissing the

Objections against an Award dated 13th May, 2009. The pivotal

question raised in the Objections to the Award by the

Petitioner/Appellant was the interpretation of Clause 70 of the

Conditions of Particular Application (COPN) interpreted by

the learned Arbitrator in relation to the reimbursement of

enhanced royalty charges.

The Petitioner's contention before the learned Single

Judge was that Boulder and sand, which were not included in

the 58 commodities, fluctuation in price whereof would

determine the Whole Sale Price Index (WPI), should have been

considered while calculating the enhancement in light of Clause

70.8, which stipulates fluctuation of WPI on account of

Subsequent Legislation. Though NHAI -vs- ITD Cementation

India Ltd., 2008 (100) DRJ 432 was cited before the Single

Judge, same was not applied. However, in our view, the

questions raised by the Appellant are similar to the ones raised

in ITD Cementation. In FAO(OS) 140/2008 decided on

29.11.2010 and FAO(OS) 347/2010 decided on 9.2.2011. Two

Division Benches have held that the questions raised in those

Appeals were covered by ITD Cementation against which an

SLP is said to be pending before the Hon'ble Supreme Court.

However, instead of keeping the Appeals pending, awaiting the

decision in the SLP, the Division Benches disposed of those

Appeals in terms of ITD Cementation. Mr Tripathi, learned

ASG sought to argue that this course of action would amount to

interference with the finding of the learned Arbitral Tribunal

which is not warranted by the Arbitration & Conciliation Act,

1996. The Course of action which commends itself to us in the

present Appeal is to allow the Appeal as well in the light of ITD

Cementation. Any other course of action would amount to

inconsistency in views of the Division Benches.

In these circumstances, the Appeal is allowed. All

pending Applications stand disposed of.

VIKRAMAJIT SEN, J.

SIDDHARTH MRIDUL, J.

June 03, 2011