Mapex Infrastructure Private Limited v. National Highways Authority of India

NAVIN CHAWLA, J JANUARY 8, 2018 RN/rv

Page 1 * IN THE HIGH COURT OF DELHI AT NEW DELHI + OMP 384/2015 Reserved on: 7th November, 2017, Date of decision: 8th January, 2018 MAPEX INFRASTRUCTURE PVT. LTD. ..... Petitioner Through: Mr. Arun K. Varma, Sr. Advocate with Mr. S.K. Chandwani, Mr.Ashish Joshi and Mr. Sameer Chandwani, Advocates versus NATIONAL HIGHWAYS AUTHORITY OF INDIA ..... Respondent Through: Ms. Gunjan S. Jain, Advocate + OMP 391/2015 NATIONAL HIGHWAYS AUTHORITY OF INDIA ..... Petitioner Through: Ms. Gunjan S. Jain, Advocate versus MAPEX INFRASTRUCTURE PVT. LTD. ..... Respondent Through: Mr. Arun K. Varma, Sr. Advocate with Mr. S.K. Chandwani, Mr.Ashish Joshi and Mr. Sameer Chandwani, Advocates CORAM: HON'BLE MR. JUSTICE NAVIN CHAWLA Page 2 1. The above petitions have been filed under Section 34 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the Act) challenging the award dated 17th March, 2015 passed by the Arbitral Tribunal consisting of three Arbitrators. 2. MAPEX Infrastructure Pvt. Ltd. will be referred to as 'MAPEX' while National Highways Authority of India will be referred to as 'NHAI' in the present judgment. 3. The disputes between the parties are in relation to the contract for Four Laning including Strengthening of Existing Two Lane Pavement of National Highway No.2 from Panagarh (Km 517) to Palsit (Km 581.457) Section in the State of West Bengal which was awarded by the NHAI vide Letter of Acceptance No. NHAI/12018/3/2000/GM(E-III) Tech dated 26 September 2001 issued to the Consortium of M/s Gamuda-WCT Joint Venture. 4. MAPEX was incorporated as a Special Purpose Vehicle to implement the project and accordingly, a Concession Agreement was entered into between NHAI and MAPEX on 21st November, 2001. 5. The project was awarded on Build, Operate and Transfer (BOT) basis on annuity approach and the concession was granted for a period of 17 years and 6 months commencing from Commencement Date specified as 21st June, 2002 and ending on 20th December, 2019 (The Concession Period). 6. The Concessionaire was required to commence the construction works on or after the Commencement Date i.e. 21st June, 2002 and achieve the Commercial Operation Date (COD) on or before the Scheduled Project Completion Date (SPCD) specified as 20th December, Page 3 2004. The project was completed, as certified by the Independent Engineer (hereinafter referred as 'IE') appointed by NHAI in accordance with Article 4 of the agreement, achieving COD on 9th June, 2005, 171 days after the SPCD. 7. MAPEX, alleging various defaults on part of NHAI, raised claims on NHAI vide its letter dated 28th December, 2006. The Project Director of NHAI by a letter dated 3rd January, 2007 requested the IE to submit his detailed observations on the said claims, which were duly submitted by the IE vide its letter dated 8th June, 2007. 8. As no action was taken by NHAI on the said recommendations, the Arbitral Tribunal was constituted to adjudicate the claims of MAPEX, which resulted in the impugned award dated 17th March, 2015. 9. A bird's eye view of the award and the challenge thereto can be gathered from the table given below:- Cl. No . Particulars: Claims of the concessionaire/MAP EX Infrastructure Pvt Ltd Amounts Awarded by majority Arbitrators Amounts Awarded by the minority Arbitrator Objections to the Award filed by NHAI ( OMP No. 391 of 2015) Objections to the Award filed by Concession aire/ (OMP No. 391 of 2015) 1. Bonus for Early Completion: Rs. 403,916,667/- Nil Nil Not challenged Not challenged 2. EPC Contractor's Time-related (Prolongation) Cost: Rs. 379,281,932/- Nil Rs. 19,52,35,431/- Not challenged Challenged Page 4 3. Concessionaire's Time- related (Prolongation) Costs: Rs. 84,698,894/- Rs. 4,79,54,645/- Unanimous Award Challenged Not challenged 4. Delay & Disruption Costs: Rs. 214,542,785/- Nil Nil Not challenged Not challenged 5. Mitigation Costs for Late Delivery of Shaktigarh Bypass: Rs. 122,634,977/- Nil Nil Not challenged Not challenged 6. Add