M/S Sowil Limited vs Indian Highways Management ...
2022 Latest Caselaw 563 Del

                                  IN THE HIGH COURT OF DELHI AT NEW DELHI

                          %                       Judgment delivered on: 22nd February, 2022

                          +      O.M.P. (COMM) 93/2022 and IA No. 2573/2022

                          M/S SOWIL LIMITED.                                 ..... Petitioner
                                                         versus

                          INDIAN HIGHWAYS MANAGEMENT
                          COMPANY LIMITED.                                   ..... Respondent

                          Advocates who appeared in this case:

                          For the Petitioner      : Ms Manmeet Arora, Ms Samapika Biswal
                                                  and Ms Pavitra Kaur, Advocates.
                          For the Respondent      : Ms Padma Priya and Ms Shreya Sethi,
                                                  Advocates
                          CORAM
                          HON'BLE MR JUSTICE VIBHU BAKHRU

                                                     JUDGMENT

VIBHU BAKHRU, J

1. The petitioner (hereafter "SOWIL") has filed the present petition impugning the Arbitral Award dated 10.11.2021 (hereafter the "impugned award") passed by the Arbitral Tribunal comprising of a Sole Arbitrator (hereafter the "Arbitral Tribunal"). The said award was rendered in the context of disputes that have arisen between the parties in connection with an agreement dated 28.10.2014 (hereafter the "Agreement").

Signature Not Verified Digitally Signed

Signing Date:22.02.2022 Factual Background

2. SOWIL is a company incorporated under the Companies Act, 1956. The respondent (hereafter "IHMC") is also an incorporated company and is engaged in providing services pertaining to management of toll collection on national highways through electronic toll systems. IHMC is, inter alia, engaged in the activity of assessing the volume of traffic on National Highways; to standardize the process of data collection; and, for creating a central data repository through traffic surveys using portable Automatic Traffic Counter-cum- Classifiers (hereafter "ATCC").

3. The Ministry of Road, Transport and Highways (hereafter "MORTH"), Government of India had instructed IHMC to conduct traffic surveys at around 1600 locations on National Highways in India.

4. IHMC issued a Request for Proposal (hereafter "RFP") for engaging agencies to conduct ATCC on sections of National Highways in seven different zones, twice a year, for a period of five years (ten rounds of traffic surveys). The surveys were required to be conducted at traffic survey locations to be specified. SOWIL submitted its bid pursuant to the RFP and was awarded the contract for executing the work in respect of Zone-5 (Odisha, West Bengal and North-Eastern States). On 28.10.2014, the parties entered into the Agreement for carrying out the aforesaid work. SOWIL commenced the work in terms of the Agreement on 28.11.2014.

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Signing Date:22.02.2022

5. During the years 2014 to 2017, SOWIL completed five rounds of surveys at certain specified locations. SOWIL claims that IHMC had delayed notifying the final list of survey locations from the third round onwards.

6. On 30.06.2017, IHMC once again invited tenders for conducting surveys (ATCC) at 284 locations in Zone-5 (which was now restricted to the States of Orissa and West Bengal).

7. Admittedly, IHMC delayed notifying the locations for conducting the sixth round survey. SOWIL claims that IHMC specified the locations in a piecemeal manner rendering the task unworkable at the material time.

8. On 08.03.2018, IHMC issued a Notice Inviting Tenders for the work relating to the balance four rounds of ATCC. At the material time, SOWIL was awaiting information regarding the workable locations for conducting the sixth round survey.

9. Aggrieved by the invitation of fresh tenders for the remaining four rounds, SOWIL filed a petition under Section 9 of the Arbitration & Conciliation Act, 1996 (hereafter the "A&C Act") being OMP(I)(COMM) No.169 of 2018. The said petition was listed before this Court on 19.04.2018 and this Court passed an order restraining IHMC from terminating the Agreement. On 24.04.2018, this Court passed another interim order restraining IHMC from entering into any agreement pursuant to the Notice Inviting Tenders dated 08.03.2018.

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Signing Date:22.02.2022

10. In view of the disputes between the parties, SOWIL issued a notice dated 26.05.2018 under Section 21 of the A&C Act invoking the Arbitration Agreement for adjudication of the disputes under the Agreement. In the meanwhile, in August 2018, SOWIL completed the survey of the sixth round.

11. Thereafter on 10.08.2018, SOWIL filed a petition under Section 11 of the A&C Act [ARB.P. No. 593 of 2018]. While the said petitions [ARB.P. No.593/2018 and OMP(I)(COMM) No.169/2018] were pending before this Court, the parties attempted to amicably resolve their disputes. It is stated that during the course of the meeting to resolve the disputes, IHMC made an offer for conducting the balance four rounds at the lowest rate (hereafter "L-1 rate") quoted by the bidders pursuant to the Notice Inviting Tenders dated 08.03.2018.

12. On 30.10.2018, this Court passed an order recording IHMC's consent to permit SOWIL to carry out the traffic surveys (ATCC) for the balance four rounds at the L-1 rate received in respect of Zone-5 while reserving the rights of the parties to agitate the dispute regarding the balance amount (difference between the L-1 rate and the rate as agreed under the Agreement) before the Arbitral Tribunal.

13. Initially, IHMC issued an amended Letter of Award (hereafter the "LOA") dated 01.12.2018 to SOWIL. However, the rates mentioned therein were the L-1 rates for Zone 1 and not Zone 5. This led SOWIL to once again approach this Court. By an order dated 13.12.2018, this Court directed IHMC to issue a revised LOA on the

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Signing Date:22.02.2022 basis of the L-1 rates for Zone-5. The same was issued by IHMC on 19.12.2018 and was accepted by SOWIL on 03.01.2019.

14. Thereafter, IHMC specified 275 locations for conducting survey in the seventh round. SOWIL completed the surveys at all locations except 23 locations, during the months of June and July, 2019. SOWIL claimed that the survey at 23 locations could not be completed at the material time as construction work was being carried out at the said locations. The survey at the said locations was completed in September, 2019. In the meanwhile, SOWIL commenced work for the eighth round of traffic surveys under the Agreement. However, IHMC specified only 5 locations under the eighth round of traffic survey.

15. SOWIL claimed that IHMC blocked its web portal; withheld the amounts due to SOWIL; and, further obstructed SOWIL from carrying out the remaining work.

16. SOWIL approached the Arbitral Tribunal by filing an application under Section 17 of the A&C Act. On 15.01.2020, the Arbitral Tribunal passed an order directing IHMC to grant its web portal access to SOWIL and to permit it to continue the traffic survey work for the balance rounds. The Arbitral Tribunal found that IHMC had failed to comply with the directions and passed an order dated 06.02.2020 stating that its order to that effect be treated as a representation in terms of Section 27(5) of the A&C Act.

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Signing Date:22.02.2022

17. Thereafter, SOWIL also filed a petition [OMP(ENF.)(COMM) No.38/2020] seeking enforcement of the order dated 15.01.2020 passed by the Arbitral Tribunal. On 19.03.2020, this Court passed an order directing compliance of the order dated 15.01.2020 passed by the Arbitral Tribunal.

18. It is stated that notwithstanding the orders passed by this Court, IHMC provided only 16 locations in addition to the 5 locations specified by it earlier. IHMC claims that the balance work became unnecessary in view of further developments including collection of tolls on highways through electronic modes (FASTag).

19. SOWIL filed its Statement of Claims before the Arbitral Tribunal and raised six claims. The claims as summarized by the Arbitral Tribunal in the impugned award, are set out below:

"15. In its Statement of Claim, the Claimant raised the following claims:

CLAIM NO.1: Declaration that the Claimant is entitled to perform the Contract dated 28.10.2014 for a fixed term often (10) rounds of traffic surveys, at the price bid submitted by the Claimant and consciously accepted by the Respondent vide letter of award dated 13.08.2014, and that the action of the Respondent in issuance of the Impugned Tender during the subsistence of the Contract is illegal, arbitrary and invalid.

CLAIM NO.2: Direction for payment on account of the difference between the rate at which the Claimant was awarded the Contract and the L-1 rate in respect of Zone-

5received by the Respondent pursuant to the Impugned Tender along with [email protected] 20.25% per annum from the

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Signing Date:22.02.2022 due date of payment under each of the invoices as may be raised by the Claimant till date of payment. CLAIM NO.3: Loss amounting to Rs.5,12,97,777/- suffered by the Claimant on account of idling of the manpower, equipment and resources of the Claimant under the Contract due to breach on the part of the Respondent to provide the Claimant with traffic survey locations timely and in a stream-lined manner along with pendente lite and future interest @20.25% per annum till date of payment.

CLAIM NO.4: (i) Direct payment of a sum of Rs.3,84,65,000/- to the Claimant towards the outstanding dues under the invoices raised by the Claimant upon the Respondent; and (ii) Direct payment of a sum of Rs.1,76,71,057/- to the Claimant towards interest on delayed payments for the period of delay, calculated as on 21.01.2019, along with pendente lite and future interest @20.25% per annum compounded monthly till date of payment.

CLAIM NO.5: Loss amounting to Rs.10,34,83,000/- suffered by the Claimant on account of non-listing of proposed public issue of shares of the Claimant on the SME Stock Exchange, due to breach of the Contract by the Respondent by the illegal and arbitrary act of the Respondent in issuance of the Impugned Tender along with pendente lite and future interest @ 20.25% per annum compounded monthly till date of payment. CLAIM NO. 6: Direction for payment of costs (as per actuals) incurred by the Claimant in connection with the present arbitration proceedings."

20. IHMC contested the aforesaid claims. In view of the rival contentions, the Arbitral Tribunal framed the following issues:

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Signing Date:22.02.2022 "1. Whether the action of the Respondent in issuance of the Impugned Tender during the subsistence of the Contract dated 28.10.2014 is illegal, arbitrary and invalid and constitutes a breach of the Contract dated 28.10.2014? OPC

2. Whether the proposed invocation of Clause 12.2 of the Contract dated 28.10.2014 by the Respondent would not be in breach thereof? OPR

3. Whether the Claimant is entitled to perform the Contract dated 28.10.2014 for a fixed term of ten (10) rounds of traffic surveys, at the price bid submitted by the Claimant and accepted by the Respondent? OPC

4. Whether the Claimant is entitled to the difference between the rate at which the Claimant was awarded the Contract dated 28.10.2014 and L- I rate quoted by M/s Datacorp for the Impugned Tender, for the 7th, 8th, 9th and 10th rounds? OPC

5. Whether the Claimant is entitled for loss amounting to Rs.5,12,97,777/- suffered on account of idling of its manpower, equipment and resources? OPC

6. Whether the Claimant is entitled for payment of the outstanding dues under the invoices raised by the Claimant upon the Respondent? OPC

7. Whether the Claimant is entitled for payment of a sum of Rs1, 76,71 ,057/- towards interest on delayed payments for the period of delay, calculated as on 21.01.2019? OPC

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Signing Date:22.02.2022

8. Whether the Claimant is entitled for loss amounting to Rs.10,34,83,000/- suffered by the Claimant on account of non-listing of proposed public issue of shares of the Claimant on the SME Stock Exchange? OPC

9. Whether the Claimant is entitled to pendente lite and future interest 20.25% per annum compounded monthly on the claimed amounts till date of payment? OPC

10. Relief and costs.

An additional issue was framed on 22.09.2019 upon an application by the Claimant. The additional issue is as under:

11. (Additional Issue): "Whether the L-1 bidder as well as the other bidders in respect of Zone-S under the Impugned Tender are not compliant with the technical specifications prescribed in the Impugned Tender, and therefore the proposed termination of the Contract under Clause 12.2 on the basis of purported cost savings is not justified?"

21. The conclusion of the Arbitral Tribunal in respect of the aforementioned issues are set out below:

"85. ln sum, for the reasons given above, the issues have been have been decided as under: Issue 1: The action of the Respondent in issuance of the Impugned Tender per se during the subsistence of the Contract dated 28.10.2014 was not illegal, arbitrary and invalid and did not constitute a breach of the Contract dated 28.10.2014.

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Signing Date:22.02.2022 Issue 2 In the facts and circumstances of this case, the question raised in this issue need not be answered as it is hypothetical in nature as no termination under Article 12.2 of the said Contract has admittedly taken place. The Issue is disposed of as being irrelevant.

Issue 3 The said Contract stipulated 10 rounds in 5 years and the optional extension of one year. But the Claimant cannot seek specific performance as the said Contract is determinable in nature. The Claimant is entitled to be paid at the bid price quoted by it for the traffic surveys conducted by it.

Issue 4 The Claimant is entitled to the difference between the rate at which the Claimant was awarded the Contract dated 28.10.2014 and L-1 rate quoted by M/s Datacorp for the Impugned Tender but only for the traffic assignments completed by it, namely, the 7thround and the 8th round (partly). The Respondent shall make payment to the Claimant accordingly.

Issue 5 The Claimant is not entitled for any alleged loss suffered on account of idling of its manpower, equipment and resources.

Issue 6 The Claimant is entitled for payment of the outstanding dues amounting to Rs.47,85,655/- under the invoices raised by the Claimant upon the Respondent. The Respondent shall make payment of this amount to the Claimant.

Issue 7 The Claimant is entitled for payment of a sum of Rs.1,81,72,387/- towards interest on delayed payments concerning rounds 1 to 6. The Claimant is also entitled to interest, computed on the same basis, in respect of the delayed

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Signing Date:22.02.2022 payments for the 7th and 8th rounds till the dates of actual payment. The Respondent shall make payments to the Claimant accordingly.

Issue 8 The Claimant is not entitled to any compensation for the alleged loss amounting to Rs 10,34,83,000/- allegedly suffered by the Claimant on account of non-listing of proposed public issue of shares of the Claimant on the SME Stock Exchange.

Issue 9 The Claimant is entitled to interest @ 20.25% per annum compounded monthly in respect of delayed payments for the services rendered by it to the Respondent as per Issue 7.

In addition, since it has been held that the Claimant is entitled to the difference between the rate at which the Claimant was awarded the Contract dated 28.10.2014 and L-I rate quoted by M/s Datacorp for the Impugned Tender, for the traffic assignments completed by it, namely, the 7th round and 8th round (partly), the same shall be payable by the Respondent with interest as aforesaid from their respective due dates till payment.

The Respondent shall also pay [email protected] 20.25% per annum compounded monthly in respect of the outstanding dues of Rs.47,85,655/- (as per Issue 6) from their respective dues till payment.

Issue 10 The reliefs are as indicated under the issues and act out above. The Claimant is entitled to costs of Rs46,87,235/- which the Respondent is liable to pay to the Claimant within30 days of this Award, failing which it shall be paid with

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Signing Date:22.02.2022 [email protected] 6% p.a. simple interest with effect from the date of the Award till actual payment.

Issue As in the case of Issue 2, the question (additional posed does not arise in the facts and Issue) circumstances and is hypothetical in nature as the said Contract has not been terminated under Article 12.2."

Submissions

22. Ms. Arora, learned counsel appearing for SOWIL has assailed the impugned award to the limited extent that SOWIL's claim for loss suffered on account of idling of manpower, equipment and resources has been denied.

23. She submitted that there was no dispute that SOWIL's resources (manpower, equipment and other resources) remained idle as SOWIL was required to mobilize its resources and be in a state of readiness to complete the work; however, IHMC had failed and neglected to specify the locations in a timely manner. She submitted that there was no allegation that SOWIL had not mobilized its resources and was not in a state of readiness to execute the work as required. She submitted that the Arbitral Tribunal had found that there were delays on the part of IHMC in notifying and providing the locations for carrying out the work and IHMC was in breach of its obligations under the Agreement. Nonetheless, the Arbitral Tribunal rejected SOWIL's claims for idling of manpower, equipment and other resources for the reason that IHMC had provided the minimum number of locations (1512) being

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Signing Date:22.02.2022 30% less than the overall indicated number of 2160 locations for ten rounds.

24. She submitted that the said finding is contrary to the Arbitral Tribunal's finding in respect of issue no.3. She stated that in respect of the said issue, the Arbitral Tribunal had found that the traffic survey locations could be increased or decreased by 30% for each round however, the said increase or decrease in number could not be applied on a cumulative basis on the total number of locations (2160 in number) which were required to be provided for the ten rounds cumulatively.

25. She submitted that the impugned award was in contravention of the fundamental policy of Indian law as IHMC had breached the terms of the Agreement and SOWIL was entitled to claim damages on account of the same. She also referred to the decision of the Supreme Court in Assam SEB v. Buildworth (P) Ltd.: (2017) 8 SCC 146 and contended that it is well accepted that a contractor can claim idling charges of labour and machinery on account of delay in completion of the contract.

26. In addition to the above, she submitted that the finding of the Arbitral Tribunal that IHMC was excused from allocating locations for traffic surveys during the period from March, 2020 to October, 2020 on account of the pandemic and the lockdowns imposed by the concerned authorities, is also erroneous.

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Signing Date:22.02.2022 Reasons and Conclusions

27. The first question to be addressed is whether there is any inconsistency in the findings of the Arbitral Tribunal that vitiates the impugned award on the ground of patent illegality.

28. The parties had a joined issue on whether the Agreement was for a fixed term of ten rounds of traffic survey. IHMC contended that in terms of Article 12.3 of the Agreement, the Agreement was for a fixed term of five years (Agreement period) and unless, IHMC extended the same for a period of one year, the Agreement would expire by efflux of time on 28.10.2019. According to IHMC, it was not required to provide any further locations for traffic surveys after 28.10.2019 (that is, after expiry of the term of the Agreement). SOWIL claimed that ten rounds of traffic surveys were required to be conducted under the Agreement for 216 locations in each round thus, 2160 assignments were to be performed cumulatively. SOWIL had submitted its bid for conducting 2160 assignments for a total consideration of ₹68,03,80,000/-.

29. In the context of this dispute, IHMC contended that in any event it was absolved of any further obligations as it had specified the minimum number of locations as required under Clause 4.1.1(h) of the Agreement

30. The said clause [Clause 4.1.1(h)] is set out below:

"4.1.1(h) The Service Provider shall conduct Traffic Survey at specified locations twice year at specified

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Signing Date:22.02.2022 location(s). However, depending upon the need and directions of IHMCL, actual number of specified location(s) may increase or decrease to the extent of 30%."

31. It would also be relevant to refer to Clauses 2.1 and 2.2 of the Agreement, which reads as under:

"ARTICLE 2 - TERMS OF THE AGREEMENT

2.1 The term of this Agreement shall be for a period of 5 (five) years from the date of signing of this Agreement (the "Agreement Period")

2.2 The Agreement Period may be further extended for 1 (one) year at the sole direction of IHMCL."

32. The total number of traffic locations under Zone-5 were indicated as 216 in Annexure-I to the RFP. However, Clause 4.6.3 of the Agreement expressly states that the traffic survey locations as specified in Annexure-I "is indicative only".

33. In this context, it was contended on behalf of IHMC that it was required to provide 2160 assignments (216 locations for 10 rounds) and in terms of Clause 4.1.1(h) of the Agreement, the same could be reduced by 30%. Thus, it was obliged to provide only 1512 assignments (2160 less 30%) on a cumulative basis over ten rounds. IHMC submitted that it had specified 1707 assignments on cumulative basis, which was in excess of its minimum commitment. Since the

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Signing Date:22.02.2022 minimum number of assignments were provided albeit within eight rounds, it was not obliged to specify any further locations.

34. SOWIL had countered the aforesaid submission. It contended that Clause 4.1.1(h) of the Agreement, which enabled IHMC to vary the number of locations by plus/minus 30% was required to be worked on the number of locations for each round. In other words, IHMC could vary the stipulated number of locations (216 in number) in each round by either increasing the same by 30% or decreasing the figure by 30%. However, the said variation could not be applied cumulatively for ten rounds; it was required to be applied for the estimated number of locations for each round.

35. The Arbitral Tribunal examined the aforesaid contentions and found that the Agreement was for a term of five years but it entailed ten rounds of survey with the estimated 216 number of locations (plus / minus 30%) in each round. The Arbitral Tribunal did not accept IHMC's contention that it was not obliged to specify any further locations after the expiry of five years from the date of commencement of the Agreement (after expiry of the Agreement Period).

36. IHMC's contention that it had provided the minimum number of locations was rejected. The Arbitral Tribunal accepted the contention that the variation of plus/minus 30% was required to be applied to the number of locations for each round and not on the total

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Signing Date:22.02.2022 assignments under the ten rounds. Paragraph 25 of the impugned award is relevant and is set out below:

"25. Another point raised by the learned counsel for the Respondent was that the stipulation of plus/minus 30% applied only to the total estimated assignments over the entire 5-year period and not to assignments for each round. Let us assume, for the sake of argument, that this plea raised on behalf of the Respondent is correct. It will immediately become clear that it would lead to absurd consequences. The estimated number of locations per round of traffic surveys as given in the BOQ was 216. Consequently, the estimated number of locations for the ten rounds of traffic surveys would be 2160 (216 x 10).

Now, 30% of2160 would translate to 648locations. Thus, theoretically, if the Respondent's view is taken, the said Contract would permit assignment of the entire 648 (+30%) locations to one round, thereby enabling it to specify 864 locations for any one round. Surely, this was not the intent of the parties, particularly, when, as per Article 4.6.4 of the said Contract, the Claimant was obligated to have sufficient teams/ setup to complete the traffic survey for each round. If the Respondent's submission is considered, it would mean that where, normally the Claimant would be required to be prepared for traffic surveys at an estimated 216locations in any one round, the Claimant would have to be ready with 4 (four) times the number of teams because the Respondent could allocate 864 locations for any one round! Hence, the argument that the variation of plus/minus 30% related only to the total number of assignments over the five-year period cannot be countenanced and would be contrary to true meaning and intent of the parties at the time they entered into the said Contract. To be clear, the variation of plus/minus 30% is primarily in respect of each round of traffic surveys and, if the allocations are done within these bounds, naturally the variation would also remain within plus/minus 30%

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Signing Date:22.02.2022 in respect of the estimated total assignments for the entire ten rounds."

37. Notwithstanding the aforesaid conclusion, the Arbitral Tribunal did not accept SOWIL's claim that it was entitled to any loss on account of idling of its resources. The Arbitral Tribunal noted that IHMC had provided more than 1512 assignments over the period of five years and therefore, SOWIL could not claim any idling costs. The Arbitral Tribunal accepted that there was delay on the part of IHMC in providing locations. However, the Arbitral Tribunal did not accept that the same entitled SOWIL to seek any idling loss. According to SOWIL, the said findings are inconsistent and therefore, the decision of the Arbitral Tribunal to reject SOWIL's claim for idling of resources is patently erroneous.

38. Before proceeding further, it would be relevant to examine the Arbitral Tribunal's reasoning for rejecting SOWIL's claim for idling losses. The relevant paragraphs of the impugned award indicating the same are set out below:

"60. On considering the rival contentions as well as the pleadings and evidence, it is evident that there have been delays on the part of the Respondent in providing locations. But, the question is - whether these delays would entitle the Claimant to seek idling losses?

61. To answer this question, we need to understand the nature of the said Contract. It has been indicated above that the said Contract was for an initial period of 5 years, extendable by a further period of one year at the option of the Respondent.

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Signing Date:22.02.2022 At the same time, the said Contract also entailed 10 rounds of traffic surveys at specified locations conducted twice a year for 5 years. It is clear that the said Contract was a fixed term and fixed price contract. The Respondent was obligated to provide locations twice each year for five years and the Claimant was obligated to conduct the traffic surveys at the locations so provided at the quoted fee per assignment. The only variable was the number of traffic survey locations, which could vary by plus/minus 30%, depending upon the need and directions of the Respondent. Furthermore, the variation of plus/minus 30% was primarily in respect of each round of traffic surveys and, if the allocations were done within these bounds, naturally the variation would also remain within plus/minus 30% in respect of the estimated total assignments for the entire ten rounds. As pointed out earlier, the financials were worked out on this basis as is evident from the BOQ.

62. It is instructive to recall that while the period of five years could be extended by a year (at the option of the Respondent), there is no clause in the said Contract permitting the alteration of the number of rounds of traffic surveys, which remained at 10. If the 10 rounds took longer to be completed, it was for the Respondent to extend the time for their completion. It is quite possible, as has happened in the present case, that the 10 traffic rounds are not completed, for whatever reason, within the 5-year period or the extended period of6 years. It has already been held that in this scenario the Claimant cannot insist that it must be permitted to conduct the 10 rounds of traffic surveys because the said Contract is not specifically enforceable.

63. It is also necessary to keep in mind, as has already been held by me, that the said Contract did not

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Signing Date:22.02.2022 expire on 28.10.2019 but was continued up to 28.10.2020. And that the Respondent has also been excused, because of the Covid-19 pandemic, from allocating any further locations for traffic surveys after 25.03.2020 when there were clear restrictions, on account of lockdowns, on traffic movement.

64. In this backdrop, two things are clear: (1) During and throughout the course of six years (while the said Contract was alive) upto28.10.2020, the Claimant was obliged to have sufficient teams in readiness to complete the traffic surveys; and (2) the Respondent was obliged to provide a minimum of 1512 assignments within the bounds of plus/minus 30% of216 in each round for the duration of the said Contract. So, the Claimant had to be in readiness with its men and machinery throughout this period upto 28.10.2020 and can therefore not claim any loss towards idling provided the Respondent also held on to its obligation of handing out at least1512 assignments. In the present case, the assignments given exceeded this minimum figure of 1512 assignments. Therefore, in my view, the Claimant is not entitled to any amount towards idling of resources. Had the number of assignments been less than the minimum guaranteed figure of 1512 assignments, the Claimant would have had a basis to claim for idling of resources. But, that is not the case.

65. Hence, Issue 5 is decided against the Claimant by holding that it is not entitled to any alleged idling losses as claimed by it."

39. It is at once clear from the above that there is no inconsistency in the findings of the Arbitral Tribunal. The Arbitral Tribunal had

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Signing Date:22.02.2022 rejected IHMC's contention that it was not liable to provide assignments for ten rounds as it had provided the minimum number of assignments on a cumulative basis (for ten rounds). In this regard, the Arbitral Tribunal had held that the variation in specifying the number of locations was required to be considered round wise and not cumulatively. Thus, it was essential for IHMC to provide assignments for ten rounds as contemplated under the Agreement. However, the indicative figure of 216 locations was subject to plus / minus of 30% in each round. However, the Arbitral Tribunal also highlighted that the Agreement was for a period of five years within which IHMC was required to provide ten rounds of traffic surveys. During the period of the Agreement, SOWIL was required to be in a state of readiness to execute the works provided and if the teams were deployed during the period of five years (which would be if the number of locations as provided were in excess of the minimum specified), SOWIL could not claim any idling charges. In this case, IHMC had provided the minimum number of locations during the term of the Agreement Period. Thus, no idling charges were payable to SOWIL.

40. It is clear that SOWIL's claim for idling charges was premised on the basis that it was entitled to complete the work of ten rounds beyond the period of five years. However, the Arbitral Tribunal found that the Agreement was determinable and therefore, was not specifically enforceable. Thus, SOWIL's claim for specific performance beyond the period of five years (or extended period of six years) and the resultant idling charges was not allowed.

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Signing Date:22.02.2022

41. This Court also finds no merit in the contention that the Arbitral Tribunal's finding to the effect IHMC was excused from allocating any locations for traffic surveys due to the restrictions imposed on account of lockdowns enforced during the pandemic, is patently erroneous. Further, in view of the finding that SOWIL could not claim any specific performance of the Agreement, the said observations may not be of much relevance. Paragraph 42 of the impugned award is set out below:

"42. So, while I agree with the Claimant that the said Contract had not come to an end on 28.10.2019, it is also true that, as held earlier, the Claimant cannot claim specific performance. The Respondent is also excused, because of the pandemic, from allocating any locations for traffic surveys when there was a clear restriction, on account of lockdowns, on traffic movement."

42. This Court is not required to re-adjudicate the disputes between the parties. The scope of interference in an award is restricted to the grounds as set out under Section 34 of the A&C Act. In the case of Delhi Airport Metro Express Pvt. Ltd. v. Delhi Metro Rail Corporation Ltd.: 2021 SCC OnLine SC 695, the Supreme Court had held that the question whether the award is vitiated by patent illegality is not required to be determined by re-evaluating the material or re- agitating the disputes. The award would be vitiated by patent illegality if such illegality was at the root of the matter.

43. It is clear that the reasoning of the Arbitral Tribunal is not patently erroneous or illegal and thus, the impugned award cannot be

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Signing Date:22.02.2022 stated to be vitiated by patent illegality. The contention that there is inconsistency in the finding of the Arbitral Tribunal is without any merit.

44. In view of the above, this Court finds no ground to interfere with the impugned award. The petition is unmerited and is, accordingly, dismissed. The pending application is also disposed of.

VIBHU BAKHRU, J FEBRUARY 22, 2022 'gsr'/v

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Signing Date:22.02.2022