Delhi High Court National Highways Authority Of India vs Wainganga Expressway Pvt. Ltd. on 25 August, 2021 $~16 * Date of Decision: 25th August, 2021 + ARB. A. (COMM.) 38/2021, I.A. 9659/2021 & I.A. 9660/2021 NATIONAL HIGHWAYS AUTHORITY OF INDIA ..... Appellant Through: Mr. Sudhir Nandrajog, Senior Advocate with Ms. Sangeeta Bharti and Ms. Mehak Kanwar, Advocates. versus WAINGANGA EXPRESSWAY PVT. LTD. ..... Respondent Through: Mr. Manoj K. Singh, Mr. Nilava Bandopadhyay, Ms. Moonmoon Nanda and Ms. Divya Kashyap, Advocates. HON'BLE MR. JUSTICE SANJEEV NARULA JUDGMENT [VIA VIDEO CONFERENCING] SANJEEV NARULA, J. (Oral): 1. Appellant National Highways Authority ('NHAI') is aggrieved with the interim order passed by the Arbitral Tribunal ('AT') dated 15 th June, 2021 whereby the AT has allowed the application filed by the Respondent Wainganga Expressway Private Limited (in short 'WEPL') under Section 17 of the Act. Brief Facts ARB. A. (COMM.) 38/2021 Page 1 of 13 2. Before dealing with the contentions of the parties, it would be apposite to note the factual background leading to the present appeal. The same is summarised as follows: 2.1. The Appellant invited proposals vide Request For Qualification (RFQ) dated 11th November, 2010 for shortlisting of bidders for construction, operation and maintenance of NagpurWainganga (Bhandara) Bridge Section of NH06 from 498 km to 544.20 km in Maharashtra (Project Highway) on Design, Build, Finance, Operate and Transfer (in short 'DBFOT') basis. 2.2. Pursuant thereto, NHAI shortlisted certain bidders including inter alia JMC Projects (India) Limited (in short 'JMC') by way of Request for Proposal (RFP) dated 3rd March, 2011. JMC's bid was accepted by NHAI vide letter dated 9th May, 2011. Thereafter, JMC incorporated Wainganga Expressway Private Limited ('WEPL')the Respondent herein, as a SPV, to undertake and perform the obligations and exercise rights on its behalf. 2.3. A Concession Agreement (CA) was executed between NHAI and WEPL on 21st June, 2011 in connection with the Project Highway. 2.4. On account of disputes arising in respect of the Project Highway, WEPL invoked arbitration, which led to the appointment of the AT. WEPL is the claimant and NHAI is the counterclaimant in the ongoing arbitration proceedings. ARB. A. (COMM.) 38/2021 Page 2 of 13 2.5. The AT vide order dated 14th January, 2021 has framed the issues which arise for consideration. 2.6. WEPL filed an application under Section 17 of the Act seeking interim reliefs inter alia restraining the NHAI from making any demand for recovering any amount on account of Additional Concession Fee (Premium) or interest related to Additional Concession Fee (Premium) from the WEPL and restraining NHAI from withdrawing any amount on account of Additional Concession Fee (Premium) or interest related to Additional Concession Fee (Premium) from Escrow Account, till passing of the award. 2.7. The aforesaid application has been decided by the AT vide impugned order dated 15th June, 2021, granting interim relief to the WEPL, restraining the Appellant from realizing its Additional Concession Fee (Premium), arrears as well as current, together with interest, up to the month of June, 2021. 3. Aggrieved by the aforesaid directions, NHAI has preferred the instant appeal. Contentions of the parties 4. Mr. Sudhir Nandrajog, Senior Counsel on behalf of NHAI, has inter alia made the following submissions: ARB. A. (COMM.) 38/2021 Page 3 of 13 (i) The AT has exceeded its jurisdiction in granting the interim relief to WEPL, ignoring the fact that the restraint sought by them is included in its claim for damages made in prayer (a) of the Statement of Claim. This claim can be allowed only after the parties have proven the same in accordance with law. Allowing the interim application amounts to grant of final relief at an interim stage. (ii) The direction in the impugned order for payment of meagre amount of Rs. 27,00,000/ per month to NHAI, which the AT deemed to be 'fair and reasonable' as compared to the actual Additional Concession Fee (Premium) amount of