Delhi High Court
Dra-Dpj Tollways Pvt. Ltd vs National Highway Authority Of ... on 4 October, 2016
$~7
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ ARB.P. 422/2016
DRA-DPJ TOLLWAYS PVT. LTD.
..... Petitioner
Through : Mr Anil Airi, Sr Adv with Mr Ravi
Kishan Chandna, Ms Bindiya L Airi
& Ms Sadhna Sharma, Advs.
versus
NATIONAL HIGHWAY AUTHORITY OF INDIA.
..... Respondent
Through : Mr S Nandakumar, Mr Parivesh
Singh, Mr Prateek Gupta, & Mr P
Srinivasan, Advs.
CORAM:
HON'BLE MR. JUSTICE VIBHU BAKHRU
ORDER
% 04.10.2016
VIBHU BAKHRU, J
1. The petitioner has filed the present petition under Section 11 of
the Arbitration and Conciliation Act, 1996 (hereinafter „the Act‟),
inter alia, praying that an Arbitrator be appointed to adjudicate the
disputes which are stated to have been arisen between the parties in
relation to the Concession Agreement dated 16.05.2013. The parties
had entered into the said Concession Agreement for operation and
maintenance of the four lane NH-1A on OMT basis in the state of
Punjab, Himachal Pradesh and Jammu & Kashmir.
2. Admittedly, certain disputes had arisen between the parties in
relation to the Concession Agreement as it was the case of the
petitioner that it was unable to collect the toll at toll plaza at KM
43+600 in the State of Jammu & Kashmir (Rajbaugh) due to public
agitations. The only contention canvassed by the respondent, in
opposition to this petition, is that all disputes in relation to the
Concession Agreement dated 16.05.2013 stood settled between the
parties in terms of the Settlement and Close Out Agreement (hereafter
„the settlement agreement‟) dated 14.03.2014.
3. The petitioner does not dispute the execution of the settlement
agreement but contends that the settlement agreement is void as it was
executed without petitioner‟s free consent. It is the petitioner‟s case
that it was coerced to execute the settlement agreement as that was a
precondition for release of the performance bank guarantees furnished
by the petitioner. The petitioner further claims that the respondent had
also got the Concession Agreement executed fraudulently.
4. It is not in dispute that the settlement agreement was duly
performed by the respondent in as much as the bank guarantees and
securities furnished by the petitioner were released by the respondent
on 18.03.2014 - within a few days of signing of the settlement
agreement. Further, in terms of the settlement agreement, an
independent agency was also appointed to assess the loss. The
independent agency so appointed had, thereafter, submitted a report
assessing the loss and, accordingly, a sum of `5,65,82,822/- was
released to the petitioner on 25.03.2015.
5. Although the petitioner has alleged that it was induced into for
signing the settlement agreement as its bank guarantees had been
withheld to exert economic coercion on the petitioner, but the
petitioner did not take any such objections prior to the receipt of the
amount of assessed loss on 25.03.2014. There is also no material on
record, which would lend credence to the submission of the petitioner
that it was coerced into signing the settlement agreement.
6. The only reason indicated by the petitioner to persuade this
court that it was coerced into signing the settlement agreement is that
the respondent had held out a threat to invoke the performance bank
guarantees that were furnished by the petitioner to the respondent.
However, it is seen that the same were released on 18.03.2014 and the
petitioner had not raised any allegation of coercion or undue influence
immediately thereafter. Thus, in my view, the aforesaid allegation of
coercion is a mere afterthought.
7. The second contention urged on behalf of the petitioner is that a
fraud had been played by the respondent at the time of signing of the
Concession Agreement. It is the case of the petitioner that the tenders
were invited prior to 07.03.2013 and were opened on 07.03.2013. In
the meantime, the respondent had appointed another agency to collect
the toll, but the said agency could not collect the toll because of
agitation by the public; consequently, the toll collection had to be
stopped only after eight hours of commencement thereof. The
petitioner alleges that the respondent was, thus, well aware of the
public agitations and the impossibility of collection of toll at toll plaza
at KM 43+600 in the State of Jammu & Kashmir (Rajbaugh), but had
concealed this fact from the petitioner.
8. Mr Airi, learned senior counsel appearing on behalf of the
petitioner further emphasised that public agitation took place on
21.03.2013, which was after the tender was opened but prior to the
execution of the Concession Agreement on 16.05.2013.
9. The agitation referred to by Mr. Airi was concededly a public
agitation and it is difficult to accept that the petitioner - who at the
material time had bid for tender - would be unaware as to the situation
on the ground. It is also relevant to note that the petition is silent as to
how and when the petitioner became aware of the public agitation on
21.03.2013 which prompted the petitioner to raise a dispute as to the
execution of the Concession Agreement on 19.12.2015 - nearly three
years after signing of the Concession Agreement.
10. It is well settled that fraud must be specifically pleaded with
full particulars. A mere allegation of fraud would clearly be
insufficient to sustain allegations of that nature. As pointed out
earlier, the petition is bereft of any particulars as to when and how the
petitioner became aware of the alleged fraud.
11. Thus, in my view, the said allegation is merely an afterthought
and has been raised only with a view to seek further amounts after the
entire amount as per settlement agreement has been received by the
petitioner.
12. I find no credible reason whatsoever to accept that the
petitioner was coerced to execute the settlement agreement or that it is
not a valid agreement.
13. Clause No.(vii) of the settlement agreement is relevant and
reads as under:-
"(vii) This agreement is in full and final
settlement of the claim/dues if any raised by both
the parties and aforesaid contract comes to end
after execution of this agreement."
14. The parties had thus agreed that the settlement agreement is in
full and final settlement of all the claims and dues if any raised by
both the parties and the Concession Agreement has come to an end.
Thus, clearly, the arbitration clause in the Concession Agreement has
also perished with the execution of the settlement agreement.
15. In this view of the matter, I am unable to accept that there exists
any arbitration agreement between the parties. Consequently, an
arbitrator cannot be appointed to adjudicate the alleged disputes
regarding the Concession Agreement.
16. The petition is accordingly dismissed.
VIBHU BAKHRU, J
OCTOBER 04, 2016
M
