Delhi High Court
Irb Ahmedabad Vadodara Super ... vs National Highways Authority Of ... on 14 October, 2019
$~A~14
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 14th October, 2019
+ O.M.P.(I) (COMM.) 247/2019
IRB AHMEDABAD VADODARA SUPER EXPRESS TOLLWAY
PRIVATE LIMITED ..... Petitioner
Through Mr. Saurabh Kirpal, Mr. Sarthak
Sachdev, Mrs. Teressa Daulat and mr.
Mohnish P., Advocates.
versus
NATIONAL HIGHWAYS AUTHORITY
OF INDIA ..... Respondent
Through Ms. Padma Priya, Advocate.
CORAM:
HON'BLE MS. JUSTICE JYOTI SINGH
JYOTI SINGH, J. (ORAL)
I.A. No. 14155/2019
1. This is application seeking condonation of delay of 28 days in filing
the rejoinder.
2. Ms. Priya, learned counsel for the respondent, has no objection to the
condonation of delay.
3. In view of the no objection and the reason stated in the application, the
same is allowed. Delay of 28 days in filing the rejoinder is condoned.
4. Application is disposed of.
O.M.P.(I) (COMM.) 247/2019
5. The present petition has been filed under Section 9 of the Arbitration
and Conciliation Act, 1996 (Act) with the following prayers:-
"A. Grant an extension, till the conclusion of the Arbitral
proceedings, of the ad-interim protection granted to the petitioner
vide Order dated 16.04.2019 in W.P. No. 3415 of 2019 by a
Division Bench of Hon'ble Bombay High Court, from being faced
with an action of termination of Concession Agreement dated
25.07.2011 in the contingency of default in payment of premium
to the NHAI, while taking the undertaking of the petitioner on
record before this Hon'ble Court that in the event the petitioner is
unsuccessful in the arbitration, the premium for above period
shall be payable by the petitioner on the principle of "premium
deferment scheme" of the Central Government earlier agreed in
supplementary agreement dated 06.06.2014 with applicable
interest,
B. Grant ex parte ad interim orders in terms of Prayer A
above;
C. Pass such further or other orders as it may deem fit and
proper in the facts and circumstances of the case."
6. Petitioner had filed a writ petition bearing No. 3415/2019 in the High
Court of Bombay, seeking interim protection, being faced with an action of
termination of the agreement on account of an alleged default in payment of
premium to the NHAI. The High Court of Bombay had passed the following
order on 16th April, 2019 granting interim protection to the petitioner:
"11. However, since we have noted that the petitioner is in
arduous situation on account of existing statutory scheme which
we have set out briefly in above paragraph, we deem it
appropriate to exercise ourjurisdiction conferred under Article
226 of the Constitution of India and for limited period we protect
the petitioner Companyfrom beingfaced with an action of
termination of agreement in the contingency of default inpayment
ofpremium to the NHAI for the period of three months subject to
the petitioners under taking to the Court within the period ofone
week that in the event the petitioner is unsuccessful in the
arbitration, the premium for above period shall be payable by the
petitioner on the principle of "premium deferment scheme" of the
Central Government earlier agreed in supplementary agreement
dated 06.06.2014 with applicable interest. Needless to state that
the petitioner would be entitled to claimfurther appropriate
interim reliefunder the provisions of Sections 9 and 17 ofthe
Arbitration and Conciliation Act 1996.
We make it clear that we have not deliberated on the issue
on the merits ofthe matter and the opinion expressed by us is
prima facie and the Board of Arbitrators would be at liberty to
resolve the dispute strictly within the four corners of the
agreement and the existing Statutory Scheme. As regards the
challenge of the petitioner to Rule 7(1) of the National Highways
Fee (Determination of Rates and Collection) Rules, 2008, we
leave the said challenge open without going into the merits ofthe
same at this stage. In the right of the aforesaid directions the Writ
Petition stands disposed of ".
7. A perusal of the order of the High Court of Bombay shows that the
interim protection was granted for a period of three months, subject to an
undertaking given by the petitioner. The said protection was to expire on 7 th
August, 2019. Prior to the expiry of the said period, the petitioner had filed
the present petition.
8. On 6th August, 2019 when the present petition came up for admission,
this Court had passed an order extending the protection given by the Bombay
High Court, till the next date of hearing and the matter was listed on 27 th
August, 2019. The Court had also noted the submission of the respondent
that the respondent had challenged the order of the High Court of Bombay
before the Apex Court.
9. Respondent has filed reply to the present petition objecting to the
extension of the interim order. One of the grounds raised is that the order of
High Court of Bombay was challenged before the Apex Court.
10. The petitioner along with the rejoinder has placed on record the order
passed by the Apex Court in the SLP bearing No. 21315/2019. The said
order dated 11th September, 2019 reads as under:-
"After the impugned order has been passed, recourse to the
Arbitration and Conciliation Act, 1996 has been resorted to by
both sides appointing their respective arbitrators. The sitting of
the arbitrators is yet to commence.
We are also informed that on an application being filed
under Section 9 of the said Act by the respondent, the learned
Judge of the Delhi High Court vide order dated 6th August, 2919
has given interim protection.
The result of the aforesaid is that the nature of interim
protection would be worked out in those proceedings or before
the arbitrator.
Learned Solicitor General for the petitioner expresses an
apprehension that interim protection granted by the impugned
order may be mis-construed as final interim arrangement. We see
no reason for such an apprehension as the impugned order
clearly enunciates that the interim order would be as per the
provisions of Sections 9 and 17 of the said Act and that they had
not expressed any view on the merits of the matter as would
influence the arbitrator.
The special leave petition is dismissed in the aforesaid
terms.
Pending application shall also stand disposed of."
11. A perusal of the order shows that the Hon'ble Supreme Court has not
interfered with the order of the High Court of Bombay and infact the matter
has been left to be decided by this Court under Section 9 and/or under
Section 17 of the Act before the Arbitral Tribunal.
12. I have heard the learned counsels for the parties.
13. On 6th August, 2019, this Court had passed the following order:
"In my view as the Arbitral Tribunal could not be
constituted for the reasons attributable to the respondent, the
petitioner cannot be left remediless. As recorded in the order
dated 16.04.2019, prima facie case in favour of the petitioner has
already been established before the High Court of Bombay.
In view of the above, the interim order dated 16.04.2019
passed by the High Court of Bombay shall continue till the next
date of hearing. The petitioner shall abide by the undertaking
given before the High Court of Bombay on the same terms for the
period of this extension as well."
14. I am informed that both parties have nominated their Arbitrators and
the arbitration proceedings will commence in the near future.
15. With the consent of the parties it is directed that this petition will be
treated as an Application under Section 17 of the Act. The order passed by
this Court on 6.8.2019 will continue till the decision of the Application under
Section 17 of the Act by the Arbitral Tribunal.
16. Needless to say, that the Learned Arbitrator is at liberty to vary,
modify, vacate or continue the said order.
17. Petition is disposed of in the above terms.
JYOTI SINGH, J
OCTOBER 14, 2019/yo/
