Delhi High Court
Ssangyong Engineering And ... vs National Highway Authority Of India on 8 April, 2024
Author: Chandra Dhari Singh
Bench: Chandra Dhari Singh
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on : 10th January, 2024
Pronounced on: 8th April, 2024
+ O.M.P. (COMM) 256/2021
SSANGYONG ENGINEERING AND CONSTRUCTION CO.
LTD. ..... Petitioner
Through: Mr. Navin Kumar, Ms. Rashmeet
Kaur, Ms. Aarti Mahto and
Ms.Bhagya Ajith, Advocates
versus
NATIONAL HIGHWAY AUTHORITY OF INDIA
..... Respondent
Through: Mr. Ankur Mittal and Mr. Raushal
Kumar, Advocates.
CORAM:
HON'BLE MR. JUSTICE CHANDRA DHARI SINGH
JUDGMENT
CHANDRA DHARI SINGH, J.
1. The petitioner, namely Ssangyong Engineering & Construction Co.
Ltd. ('respondent Company' hereinafter), a company registered under the
laws of Republic of Korea having head office at Seoul, Korea and
operational office at Gurugram, Haryana participated in a bidding process
for construction of Sagar By-Pass between 211 kms to 255 kms of
National Highway-26 in the State of Madhya Pradesh for a total contract
value of Rs.1,88,45,07,303/- as invited by the respondent.
2. The respondent namely National Highway Authority of India
('NHAI' hereinafter) is an undertaking of the Government of India
entrusted for construction of National Highways throughout the country.
3. Pursuant to successful bidding of the said tender, the contract was
awarded to the petitioner vide letter dated 30th December, 2005.
4. Thereafter, the petitioner underwent the necessary work entrusted
by the respondent, however, inter alia, a dispute arose between the
parties pertaining to a particular contract ADC-II/(C-6) dated 12th April,
2006 ('the Contract' hereinafter) with regard to payment of the dues.
5. In terms of the agreement, the petitioner invoked arbitration for
adjudication of the said dispute. After completion of the proceedings, the
learned Tribunal passed the award dated 26th June, 2019 ('impugned
award' hereinafter) allowing the claim of the petitioner with regards to
payment of the due amount, however, the plea regarding interest on the
due amount was rejected.
6. Aggrieved with rejection of the interest, the petitioner has
preferred the instant petition seeking setting aside of the impugned award
to the limited extent of non-grant of the interest of the due amount.
SUBMISSIONS
(on behalf of the petitioner)
7. The learned counsel appearing on behalf of the petitioner
submitted that the rejection of the claim of the interest on amount due to
the petitioner is against the public policy of India as well as the basic
notions of morality and justice.
8. It is submitted that the contract agreed between the parties duly
provided for interest @ 10% on account of any delay of payment accrued
towards the petitioner, therefore, the said part of the impugned award
rejecting such claim, may be set aside.
9. It is submitted that the contract agreement categorically provides
for payment of interest if there is a delay in payment of the dues after
issuance of the payment certificate, therefore, the said delay would attract
the interest amount as agreed by the parties in the contract.
10. It is also submitted that the issuance of written discharge cannot
be made a condition necessary for entitlement of the interest, therefore,
non-issuance of the same would not hinder the petitioner's right to get
interest on the due amount.
11. In view of the foregoing submissions, the learned counsel for the
petitioner submitted that the present petition be allowed and reliefs be
granted as prayed.
(on behalf of the respondent)
12. Per contra, the learned counsel appearing on behalf of the
respondent vehemently opposed the present petition submitting to the
effect that the non-grant of interest does not warrant interference of this
Court as the scope of intervention in an award arising out of an
international commercial arbitration is very narrow.
13. It is submitted that the petitioner has failed to point out sufficient
grounds under which the said findings of the learned Tribunal can be held
to be against the fundamental policy of India.
14. It is also submitted that the learned Tribunal has rightly dismissed
the claim of the petitioner in respect of the payment of interest payment
of interest as the same can only be determined pursuant to issuance of the
written discharge as provided under Clause 60 of the COPA.
15. In view of the foregoing submissions, the learned counsel
appearing on behalf of the respondent submitted that the present petition,
being devoid of any merit may be dismissed.
ANALYSIS AND FINDINGS
16. Heard the learned counsel for the parties and perused the records.
17. The validity of the impugned award has already been adjudicated
by this Court in OMP(COMM) No.340/2021 in detail, whereby, this
Court deemed it appropriate to set aside and remanded back the
impugned award on the grounds of violation of fundamental policy of
this Country.
18. In light of the same, nothing is left for adjudication in the present
petition and the same is therefore disposed of with liberty to the
petitioner to raise its grievance before the learned Arbitral Tribunal.
19. Pending applications, if any, also stand disposed of.
(CHANDRA DHARI SINGH)
JUDGE
APRIL 8, 2024
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