Delhi High Court
National Highways Authority Of ... vs Gwalior Bypass Project Limited on 7 September, 2017
$~42
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 07.09.2017
+ ARB.A.(COMM.) 26/2017
NATIONAL HIGHWAYS AUTHORITY OF INDIA..... Appellant
versus
GWALIOR BYPASS PROJECT LIMITED ..... Respondent
Advocates who appeared in this case:
For the Appellant : Mr Ramesh Kumar and Mr Siddharth Pandey
For the Respondent : Mr Nilava Bandyopadhyay
CORAM:-
HON'BLE MR JUSTICE SANJEEV SACHDEVA
JUDGMENT
07.09.2017
SANJEEV SACHDEVA, J. (ORAL)
IA No.10315/ 2017(exemption)
Allowed, subject to all just exceptions.
ARB. A. (COMM.) 26/2017 & IA No.10320/2017(stay)
1. The Appellant, by this Appeal under Section 37(2)(b) of the
Arbitration & Conciliation Act, 1996 (hereinafter referred to as 'the
Act'), impugns the order dated 09.06.2017 passed by two Members of
the Arbitral Tribunal in the application filed by the respondent under
Section 17 of the Act.
2. By the impugned order dated 09.06.2017, the Arbitral Tribunal
has restrained the appellant from taking any coercive steps against the
respondent/claimant on the basis of notices dated 14.10.2016 and
15.10.2016.
3. Further, the appellant has been directed to release to the
claimant the entire amount of the 14th annuity which became due on
06.10.2016 within seven days from the date of the receipt of the order.
The respondent/claimant has been directed to complete the work at the
disputed stretch within a period of three months from the date of
receipt of the payment from the appellant towards the 14th annuity.
4. The Arbitral Tribunal has clarified that the observations in the
order are prima facie in nature and are without prejudice to the rights
and contentions of the parties and are subject to the Award that would
be passed by the Tribunal.
5. The respondent entered into a Concession Agreement with the
petitioner for design, construction, improvement, operation and
maintenance of new 4 lane Gwalior Bypass from Kilometre 103.000
on National Highway-3 to Kilometre 16.000 on National Highway-75
in the State of Madhya Pradesh on BOT Annuity basis.
6. The respondent has constructed Highway.
7. As per the appellant, the respondent failed to maintain a stretch
of 23 kilometres, because of which, the appellant withheld
the 14th Annuity payable to the respondent.
8. Further, the appellant proposed to tender the said work of repair
and maintenance of the said stretch to a third party at the risk and cost
of the respondent.
9. Being aggrieved by the action of the petitioner, the respondent
invoked Arbitration and arbitration proceedings are continuing.
10. The contention of the respondent is that the liability to carry out
relaying of bituminous layer of the Highway is to arise only five years
after the commissioning of the project.
11. It is contended that the Highway was made operational in
2013 and prior to 2018, there is no responsibility of the respondent to
relay the Highway.
12. Further contention of the respondent is that the petitioner
permitted overloaded trucks to ply on the Highway by charging excess
fee and did not prevent the overloaded trucks from plying in
accordance with the Agreement. On account of plying of overloaded
trucks, the Highway got damaged.
13. The appellant has disputed the contentions. It is contended that
irrespective of the period, as the Highway was constructed by the
respondent, the respondent is obliged to maintain the same and keep it
in repair. Further, it is contended that the Highway is to bear the
weight of the overloaded trucks and merely because of plying
overloaded trucks the highway cannot get damages and that cannot be
a ground not to repair the Highway.
14. It is further contended that the work to the third party has
already been tendered and the letter of intent has already been issued.
15. The Arbitral Tribunal, after noticing the contentions of the
parties, has balanced equities by the impugned order.
16. The Arbitral Tribunal has observed that the issue whether the
respondent was to maintain Highway or could be called upon to relay
the tarmac within the period of five years or that the Highway got
damaged because of plying overloaded trucks is subject matter of the
arbitration proceedings and yet to be determined.
17. At a prima facie stage, the Arbitral Tribunal came to the
conclusion that no prejudice would be caused to the Appellant if the
respondents were directed to maintain the Highway and carry out the
repair work as per the requirement and to the satisfaction of the
appellant.
18. The Arbitral Tribunal came to the conclusion that as the
respondent had constructed the Highway, the respondent was entitled
to receive annuities from the appellant upto the year 2027 and in case
the Appellant were to succeed in the arbitration proceedings, the
appellant could recover the same from the balance annuities to be paid
to the respondent. Further, the Arbitral Tribunal was of the view that
if the annuities were to be stopped at this juncture, the respondent
would be completely out of pocket and would not be in a position to
repair and maintain the Highway.
19. The two Members of the Arbitral Tribunal thus have taken a
view that no prejudice would be caused to the Appellant, if the
appellants were to be directed to release the 14th annuity to the
respondent and the respondents were directed to repair and maintain
the Highway within a period of three months to the satisfaction of the
Appellant in terms of the Concession Agreement.
20. In my view, the Arbitral Tribunal has passed the order keeping
in view the necessity to preserve Highway and without prejudice to
the rights and contentions of the parties. No prejudice is going to be
caused to the Appellant and the object of maintenance of the Highway
would be achieved.
21. The two Members of the Arbitral Tribunal, by the impugned
order, have taken a plausible view, which, in my view, does not
warrant any interference in exercise of powers under Section 37 of the
Act.
22. In view of the above, I find no merit in the Appeal. The Appeal
is accordingly dismissed. There shall be no order as to costs.
23. Order Dasti under signatures of the Court Master.
SANJEEV SACHDEVA, J
SEPTEMBER 07, 2017
'Sn'
