O.M.P.(I) (COMM.)/87/2024 of GURUVAYOOR INFRASTRUCTURE PRIVATE LIMITED Vs NATIONAL HIGHWAYS AUTHORITY OF INDIA

*IN THE HIGH COURT OF DELHI AT NEW DELHI

+O.M.P.(I) (COMM.) 87/2024

GURUVAYOOR INFRASTRUCTURE PRIVATE

LIMITED..... PetitionerThrough:Mr. Jayant Mehta, Sr. Advocatewith Mr. Arjun Syal, Mr. ShreyanDas, Mr.Pranay Chitale and Ms.Smiti Verma, Advocates.

versus

NATIONAL HIGHWAYS AUTHORITY OF

INDIA..... RespondentThrough:Mr.AnkurMittal,Mr.AshishGajwani,Ms.ShallySingal,Advocates.

CORAM:

HON’BLE MR. JUSTICE PRATEEK JALAN

O R R%16.05.2024

I.A. 11167/2024 (for directions)

1.The petitioner has filed this application for clarification of an orderdated 21.03.2024, by which its petition under Section 9 of the Arbitrationand Conciliation Act, 1996 [“the Act”], was disposed of.

2.The context in which the proceedings under Section 9 of the Actwere taken up by this Court, despite the fact that an arbitral tribunal hadbeen constituted, is that writ petition [W.P (C) 7404/2023] had beenfiled by the State of Kerela before this Court, against an order of thearbitral tribunal impleading it as party in the arbitral proceedings. By an

order of the Supreme Court dated 04.09.2023 in Civil Appeal Nos. 5602-5603 of 2023, proceedings in arbitration were stayed until disposal of thewrit petition by this Court.

3.As the arbitral proceedings were thus at standstill, by order dated21.03.2024,theCourtgranted certain interim directionsforthepetitioner’s compliance with its maintenance obligations under theConcession Agreement dated 27.03.2006, and specifically observed asfollows:

“7. In view of the above, the petition is disposed of with the followingdirections:-

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g. These directions are intended to hold field until the arbitraltribunal is in position to resume proceedings. Either party maythereafter approach the arbitral tribunal for appropriate orders,including for variation, vacation or modification of this order.

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8. Subject to the parties acting in terms of these directions, therespondent will defer any further action consequent upon impugnedCure Period Notices until the matter is taken up by the arbitraltribunal.”

4.This is an application by the petitioner for clarification of the aboveorder, on the contention that the direction therein for survey to beconducted by team of experts of IIT-Madras, is being misinterpreted bythe respondent and IIT-Madras. Mr. Ankur Mittal, learned counsel for therespondent – National Highways Authority of India [“NHAI”], disputesthese contentions and submits that the petitioner is, in fact, in breach ofits obligations both under the Concession Agreement and the order dated21.03.2024.

5.Quite apart from this controversy, it is surprising that the petitionerhas not disclosed in the application that W.P.(C) 7404/2023 has been

disposed of by this Court, by order dated 24.04.2024, and that, at theinstance of the petitioner, the arbitral tribunal has in fact fixed hearingfor 27.05.2024. These facts are brought to the notice of the Court by Mr.Mittal, and are not disputed by Mr. Jayant Mehta, learned Senior Counselfor the petitioner.

6.Having regard to paragraph 7(g) of the order dated 21.03.2024, it isobvious that the disposal of the writ petition and consequent vacation ofthe stay by the Supreme Court, are matters of significance. Having regardto Section 9(3) of the Act, the Court acts under Section 9 of the Act in anongoing arbitration only if it is inefficacious for the parties to approachthe arbitral tribunal. There is no justification offered for the petitioner’sfailure to disclose these facts in its application.

7.In view of these circumstances, without prejudice to any rights andremedies that the petitioner may have, Mr. Mehta seeks liberty towithdraw this application,.

8.While permitting the petitioner to withdraw the application, I am ofthe view that the petitioner is liable to be visited with costs on account ofsuppression of the facts noted above. The petitioner will deposit costs ofRs.50,000/- with the Delhi High Court Legal Services Committee [UCOBank, Delhi High Court, Shershah Road, New Delhi, Account No.15530110008386, IFSC Code- [REDACTED]] within 10 days fromtoday.

9.The application is dismissed as withdrawn.

MAY 16, 2024 SS/

PRATEEK JALAN, J

O.M.P.(I) (COMM.) 87/2024