* IN THE IDGH COURT OF DELID AT NEW DELHI + FAO(OSl 123/2011 & CM Nos.48811, 81/2011, 1274/2012 NATIONAL HIGHWAYS AUTHORITY OF INDIA Through versus ..... Appellant Mr. Sudhir Nandrajog., Senior Advocate with I Ms. Tanu Priya Gupta, Ms. Meenak.shi Sood, Mr. Mukesh Verma, Advocates. ORIENTAL STRUCTURE ENGINEERS LTD GAMMON INDIA LTD ..... Respondent Through Mr. P. V. Kapur, Senior Advocate with Mr. Anil Airi and Mr. Aman Anand, Advocates. And + FAO(OS) 136/2012 & CM + NATIONAL IDGHW AYS AUTHORITY OF INDIA ..... Appellant Through versus Mr. Sudhir Nandrajog, Senior Advocate with Ms. Tanu Priya Gupta, Ms. Meenakshi Sood, Mr. Mukesh: Verma, Advocates. CENTRODORSTROY ..... Respondent Through Mr. Sandeep Sharma, Advocate. And FAO(OS) 274/2012 & CM Nos .. 1G9tiS/2012 ' NATIONAL IDGHWA YS AUTHORlTY OF INDIA ..... Appellant Through Mr. Sudhir Nandrajog, Senior Advocate with Ms. Tanu Pri'a Gupta, Ms. Meenakshi Sood, Mr. Muke8h Verma, Advocates. FAO(OS) No. 123/10, 136/10, 274112 Page 1 of4 Digitally Signed By:AMULYA Signature Not Verified o/o versus OSEGILJV Through CORAM: ..... Respondent Mr. P. V. Kapur, Senior Advocate with Mr. Anil Airi and Mr. Am.an Anand, Advocates. HON'BLE MR. JUSTICE S., llA V1NDRA BHA T HON'BLE MR. JUSTICE SOOIERSHAN KUMAR MISRA ORDER 15.01.2013 The appellant, National Highwary Authority of India (NHAI), has challenged these orders of the learned Single Judge, which dealt with its petitions filed under Section 34 of the Arbitration and Conciliation Act, 1996. The common question urged in these appeals is as to the true and correct interpretation of certain conditions in the Contract under the Agreement awarded to the respondent/claimant, i.e., Technical Specification Clauses Nos.201 and 305. These Clauses pertain to the claim for balance amount towards constructions of embankment. The claimant, who is the respomdent here, has urged that the NHAI had argued that this formed part of the ''work of clearing and grubbing" and was, therefore, included in the consideration agreed to by the parties. The claimant, on the other hand, urged that this was payable separately towards the embankment work. The learned Arbitrator in each of these cases had accepted the claimant's contention and awarded amounts in that regard. NHAI's objections were overruled and the learned Single Judge returned the fmdings in favour of the claimant/contractor in each of these matters. At the outset, it was pointed oat that in the previous order dated 3 rd December, 2012, the respondent/claimant had informed the Court that the FAO(OS) No. 123/10, 136/10, 274112 Page2of4 ,..,; sole issue sought to be urged by the appel1ant!NHAI was decided in favour of the claimant by another Division Bench in National Highway Autboritv of India v. Hindustan Construction G». Ltd., FAO(OS) No.47/2012, decided on 22nd November, 2012. In the said judgment-a copy of whieh ha.s been made available today, the issue was discussed in paragraph 7 and the submissions of the NHAI- also setting forth the relevant clauses of the Agreement, were in paragraph 11. From paragraph 12 to paragraph 14, the Division Bench has discussed the merits of the submissions and held as follows: 12. In our view the real thps, is not whether the work of back filling removal of top soil forms part of clearing and:, grupbing activity as, admittedly, there was no ftJlihg carried out. The real controversy is as to if back filling had been done, that work is liable to be ,excluded from the work of embankment:i oomstruction by the respondent. There is nothing shown to us whereby the construction of embadknlellt ean be said to have been done in the ma.tmer wneie, effectively' the lower part of the embanb!Dent is made only by carrying out the activity ' of back filling. The embankment being separateiirem, it has to be fully paid for. Had there been any force in the appellanf•s submission, the appellant: wbuld 'have placed before the arbitral tribunal to show that the engineer had required the :oomtractor to carry out back filling with soil up to a particular level (i.e., up to 150 mm or less), and .·that the design of the embankment was such as to :lbe constructed over such back filled soil surface. No s-h·marerial was placed before the arbitral tribunaL 11\e appellant sought to make deductions, after initially paid the amounts for making of· by claiming that the initial 150 mm oif the embankment work should be as work covered by the activity of clearing and grubbing. This, obviously, was impermissible. FAO(OS) No. 123/10, 136/10, 274/12 Page3 of4 13. We may also note that in view of there being a majority opinion of technical persons, really, we were not called upon to have a relook on the issue especially as the learned Siq.gle Judge had also agreed with the view taken by the arbitral tribunal. We have, however, gone into little more detail on this aspect as there was compllete ,clivergence of the view expressed by the two couiilsels qua the nature of controversy. 14. We are, thus, of the view that 1lhere is no merit in this appeal and accordingly· dismiss the same leaving the parties to bear their own cdsts." The learned counsel for the appellant did not dispute that the only issue sought to be urged in these appea!ls pertained to the entitlement to embankment work of the claimant, which had been upheld by the Arbitrator and affirmed by the learned Single Judge. It is also fairly stated by the learned Senior Counsel for the appellant/NHAI that no other issue has been urged in support of present appeals and that the sole ground is covered by the said judgment in Hindustan ConsttTucti9n Co:. Ltd's case. In view of the above discussion and statement, the Court does not discern any merit in the appeal. In this view of the matter, and having considered the impugned judgment; the Court is of the opinion that a different view is not warranted. Accordingly, the appeals are dismissed along with pending applications, with no order as to costs. JANUARY 15, 2013 dr FAO(OS) No.123/10, 136110, 274112 S. RAVINDRA BHAT, J J.l.t • U A A 2\.A • SUDERSHAN J Page4 of4 \D