Delhi High Court
National Highways Authority Of India vs Kmc Construction Ltd on 21 February, 2024
Bench: Rajiv Shakdher, Amit Bansal
$~56.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 21.02.2024
+ FAO(OS) (COMM) 71/2022 and C.M. No. 14371/2022
NATIONAL HIGHWAYS AUTHORITY OF INDIA..... Appellant
Through: Mr Arun Kumar Varma, Senior
Advocate with Mr Yamandeep
Kumar and Ms Sabah Iqbal Siddiqui,
Advocates.
versus
KMC CONSTRUCTION LTD ..... Respondent
Through: Ms Kiran Suri, Senior Advocate with
Mr Hitendra R. Nath and Ms Vidushi
Garg, Advocates.
CORAM:
HON'BLE MR. JUSTICE RAJIV SHAKDHER
HON'BLE MR. JUSTICE AMIT BANSAL
[Physical Hearing/Hybrid Hearing (as per request)]
RAJIV SHAKDHER, J. (ORAL)
1. This appeal is directed against the judgment dated 23.12.2021 passed
by the learned Single Judge in O.M.P. (COMM.) 458/2020.
2. Via the impugned judgment, the learned Single Judge has set aside the
arbitral award dated 24.09.2019 concerning Claim No. 22 and in effect, left
the disputants to their own devices, and if deemed necessary, to re-agitate
their respective contentions.
3. Insofar as the appellant/NHAI is concerned, it had broadly put forth
two contentions with regard to the aforementioned claim, which was
recorded in the order dated 19.02.2024. For convenience, the order dated
19.02.2024 is extracted hereafter:
"According to Mr Arun Kr. Varma, learned senior counsel who appears
on behalf of the appellant, there are two aspects which arise for
consideration.
1.1. First, as to whether or not the respondent should be paid interest in
terms of Clause 60.8 of the Conditions of Particular Applications [in
short, "COPA"].
1.2. Second, whether the respondent should be paid interest for the period
when settlement talks were going on between the parties.
2. Learned Single Judge via impugned judgment dated 23.12.2021 has
ruled against the appellant on both counts. According to the learned
Single Judge, the Arbitral Tribunal has erred in granting simple interest at
the rate of 16% per annum, as against the rate prescribed in Clause 60.8
of the COPA.
3. Furthermore, the learned Single Judge has also disagreed with the
Arbitral Tribunal insofar as it has ruled that interest should not run for the
period when settlement talks were continuing.
3.1 This period spans between 24.10.2013 to 23.06.2015.
4. Counsel for the respondents says that he will return with instructions.
5. List the matter on 21.02.2024."
4. Although we have asked Ms Kiran Suri, learned senior counsel, who
appears on behalf of the respondent whether there was a possibility of
settlement, she says that she has instructions to the contrary.
4.1 It is Ms Suri's contention that the respondent would like to reagitate
the issue concerning Claim No. 22.
5. Mr Arun Kumar Varma, learned senior counsel, who appears on
behalf of the appellant/NHAI says that while the appellant/ NHAI cannot
come in the way of an issue being reagitated, albeit, in accordance with the
law by the respondent, the apprehension that the appellant/NHAI has is that
the observations made in the impugned judgment should not burden the
Arbitral Tribunal, if the cause is taken up once again by the respondent.
6. Ms Suri says that she can have no objection if this Court were to
observe that the Arbitral Tribunal, if so constituted, would decide the lis
between the disputants uninfluenced by the observations made in the
impugned judgment.
6.1 We are in agreement with Ms Suri's stand.
7. Accordingly, the appeal is disposed of with a direction that if the issue
concerning Claim No. 22 is reagitated by the respondent, the Arbitral
Tribunal, if so constituted, will delve into the issue uninfluenced by the
observations made by the learned Single Judge via the impugned judgment.
8. Pending application shall also stand closed.
9. Parties will act based on the digitally signed copy of the order.
RAJIV SHAKDHER
(JUDGE)
AMIT BANSAL
(JUDGE)
FEBRUARY 21, 2024
kd
