Delhi High Court
Atlanta Infra Assets Limited vs National Highways Authority Of India on 26 May, 2026
Author: Jasmeet Singh
Bench: Jasmeet Singh
$~J
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on: 15.01.2026
Judgment pronounced on: 26.05.2026
+ O.M.P. (COMM) 152/2022
ATLANTA INFRA ASSETS LIMITED .....Petitioner
Through: Dr. Amit George, Mr. Chirag
Shroff, Mr. Dhananjay Kataria, Mr.
Bhrigu A. Pamidighantam, Ms.
Ibansara Syiemlieh, Mr. Adhishwar
Suri, Mr. Dushyant K. Kaul, Mr.
Shivam Parashar, Ms. Rupam Jha,
Ms. Medhavi Bhatia, Mr. Vaibhav
Gandhi, Mr. Kartikay Puneesh,
Advs.
versus
NATIONAL HIGHWAY AUTHORITY OF INDIA .....Respondent
Through: Mr. Mritunjay Kumar Singh, Ms.
Tanya Singh, Ms. Srishti, Mr. Uday
Chaudhary, Mr. Mukesh Rawat
Kumar Mr. Amit, Advs.
+ O.M.P. (COMM) 243/2022
NATIONAL HIGHWAY AUTHORITY OF INDIA .....Petitioner
Through: Mr. Mritunjay Kumar Singh, Ms.
Tanya Singh, Ms. Srishti, Mr. Uday
Chaudhary, Mr. Mukesh Rawat
Kumar Mr. Amit, Advs.
versus
ATLANTA INFRA ASSETS LIMITED .....Respondent
Through: Dr. Amit George, Mr. Chirag
Shroff, Mr. Dhananjay Kataria, Mr.
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Bhrigu A. Pamidighantam, Ms.
Ibansara Syiemlieh, Mr. Adhishwar
Suri, Mr. Dushyant K. Kaul, Mr.
Shivam Parashar, Ms. Rupam Jha,
Ms. Medhavi Bhatia, Mr. Vaibhav
Gandhi, Mr. Kartikay Puneesh,
Advs.
CORAM:
HON'BLE MR. JUSTICE JASMEET SINGH
JUDGMENT
1. These are cross petitions filed under section 34 of the Arbitration and
Conciliation Act, 1996 (“the Act”) seeking to challenge the Arbitral
Award dated 16.11.2021 (“impugned Award”)-majority view, passed
by the learned Arbitral Tribunal (“AT”), in the matter of Arbitration
between M/s Atlanta Infra Assets ltd. v. National Highway Authority
of India.
2. Both the parties have preferred their respective petitions to challenge
the impugned Award, to the extent they are aggrieved by it.
3. Atlanta Infra Assets Limited (“Atlanta”) was the Claimant in the
Arbitral proceedings and National Highway Authority of India
(“NHAI”) was the respondent therein.
4. Atlanta and NHAI, both have approached this Court against the
impugned Award by way of filing O.M.P. (COMM) 152/2022 and
O.M.P. (COMM) 243/2022 respectively.
FACTUAL BACKGROUND
5. NHAI, is a statutory body established under Section 3 of the National
Highways Authority of India Act, 1988, and operating under the aegis
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of the Ministry of Road Transport & Highways, responsible for
development, maintenance and management of national highways.
6. NHAI invited bids vide letter No. NHAI/BOT/NH-24035/42/2003
dated 09.06.2004 for the award of several projects including
“Improvement, Operation and Maintenance including Strengthening
and Widening of existing 2 lane road to 4 lane dual carriageway from
Km.9.200 to Km.50.000 of NH-6 (Nagpur – Kondhali Section) in the
State of Maharashtra on Build Operate and Transfer
(BOT)”(“Project”).
7. The bid submitted by a consortium of M/s Atlanta Ltd. (Lead technical
member) and SREI Infrastructure Finance Ltd. (Lead financial
member) was accepted vide a letter of award dated 22.09.2005.
8. The tender document contemplated setting up of a special purpose
vehicle (“SPV”) to execute and implement the project and hence a SPV
namely, Balaji Tollways Ltd. was incorporated. Subsequently, the
name of the SPV was changed to Atlanta Infra Assets Limited., i.e. the
petitioner in O.M.P. (COMM) 152/2022 and respondent in O.M.P.
(COMM) 243/2022.
9. Thereafter, a concession agreement (“CA”) dated 09.12.2005 was
executed between the SPV and NHAI for twenty years.
10. Disputes arose between parties during the execution of works till the
issuance of provisional commercial certificate (“PCC”) dated
22.09.2011 by the Independent consultant (“IC”) namely, M/s Aarvee
Associates, Hyderabad. With respect to these disputes concerning
breaches before 22.09.2011, the respondent invoked Arbitration
mechanism under Clause No. 39.2 of the CA.
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11. The arbitral proceedings with respect to pre-PCC disputes culminated
in Atlanta’s partial claim being allowed vide arbitral Award dated
29.09.2016, passed by the learned AT comprising of Mr Justice (Retd.)
D P Wadhwa, Mr. Justice (Retd.) V N Khare, Mr. G G Shivdasani.
12. As the works under the Project could not be completed, NHAI and
Atlanta entered into a supplementary agreement (“SA”) dated
22.09.2011, to complete the remaining work within 120 days of land
being made available.
13. Several disputes arose between the parties post-PCC i.e., after
22.09.2011, which were initially attempted to be amicably resolved by
invoking Clause No. 39.1 of the CA vide letter dated 19.10.2016, and
referring the matter to the Chairman of NHAI and the Chairman of
Atlanta, but the same could not result in amicable settlement of
disputes.
14. Resultantly, Atlanta vide letter dated 01.08.2017 invoked Arbitration as
contemplated under Clause No. 39.2 of the CA for adjudication of
disputes and by letter dated 03.10.2017 submitted its Statement of
Claims and relevant documents to the Indian Council for Arbitration.
15. Pursuant thereto, the present AT was constituted.
IMPUGNED AWARD
16. The Arbitral proceedings culminated in passing of the impugned
majority Arbitral Award dated 16.11.2021 by Justice (Retd.)
Manmohan Sarin and Er. Bharat Bhushan Gupta, with dissenting
minority award passed by Er. V.S. Karandikar.
17. Thereafter, NHAI filed an application under Section 33 of the Act,
seeking correction of the impugned Award to the extent of award qua
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Counter Claim No. 4. The application was dismissed by the AT vide
correction award dated 07.01.2022. Thus, NHAI is challenging the
impugned award read with the correction award to the extent of
Counter Claim No. 4.
18. During the course of judicial proceedings for these petitions, a limited
settlement was concluded between the parties which was duly recorded
by this Court in its Order dated 02.12.2022. Therefore, the dispute only
remains with regards to NHAI’s challenge to Counter Claim No. 4(c)
and Atlanta’s challenge qua Claim Nos. 1 and 6.
SUBMISSIONS ON BEHALF OF ATLANTA
Claim No. 1: Damages due to delay in handing over of land post
provisional commercial operation date (PCOD) dated 22.09.2011 till
04.06.2019 and further continuing till the Commercial operation date
(COD).
19. Dr. George, learned Counsel for Atlanta, submits that the AT has
exceeded its jurisdiction by travelling beyond the express terms of the
CA and has consequently rendered the impugned Award qua Claim
No. 1, patently illegal and perverse.
20. The AT, despite acknowledging from a conjoint reading of Clause No.
13.5.2 and Schedule H of the CA, that the CA stipulated a period of 12
months for the purpose of handing over of additional right of way
(“AROW”), proceeded to adopt a period of 18 months as the
reasonable period without any reasons or evidentiary basis.
21. He also submits that these findings of the AT has resulted in substantial
curtailment of the Atlanta’s entitlement under various component sub-
heads of Claim No. 1.
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22. This adoption of 18 months as a reasonable period, in substitution of 12
months is bereft of any reasoning and is without any evidence. The
impugned Award is further vitiated by internal inconsistencies, as it
fails to disclose any cogent rationale for the differential application of
two distinct time periods at different places of the award dealing with
separate claims. Even though the AT is empowered to interpret the
terms of the contract but such contractual interpretation cannot be
devoid of any reasons and if so done, the same would be violative of
fundamental policy of Indian law.
23. The AT cannot render contradictory findings, nor it can alter
contractual terms or create a new contract/term or act in derogation of
terms of the contract as the same would vitiate the impugned Award for
being patently illegal. Thus, the AT cannot unilaterally rewrite the
terms of the contract acting in breach of fundamental principles of
justice. Reliance in support of the said submissions is placed on
Morgan Securities & Credits (P) Ltd. v. Samtel Display Systems Ltd.1,
PSA Sical Terminals (P) Ltd. v. V.O. Chidambaranar Port Trust,
Tuticorin & Ors.2, and Ssangyong Engg. & Construction Co. Ltd. v.
NHAI3.
24. It is also stated that for all the aforesaid reasons the findings pertaining
to Claim Nos. 1(a), 1(b), l(b-a), l(b-b), 1(c), should be set aside while
granting liberty to pursue the said claims afresh by way of fresh
arbitration.
1
2023 SCC OnLine Del 8018.
2
(2023) 15 SCC 781.
3
(2019) 15 SCC 131.
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25. In the alternative, it is prayed that the impugned Award be modified to
the extent of construing 18 months as 12 months, along with all other
consequential modifications thereto. Reliance is placed on Gayatri
Balasamy v. ISO Novasoft Technologies Ltd.4 and Jagdish Kaur v.
Jasbir Singh Sandhu & Ors.5.
Claim No. 6: Interest and Cost of Arbitration.
26. At the outset, it is contended that the impugned Award stands vitiated
inasmuch as the AT has awarded different rates of interest on Claims
and Counter Claims, in disregard of the mutual agreement between the
parties which was recorded in the meeting dated 24.02.2020 wherein
the rate of interest was fixed at 12% p.a.
27. Dr. George, submits that while NHAI has been awarded interest at the
rate of 12% p.a. on its Counter Claim No. 2, Atlanta has been granted
interest at a lesser rate of 10% p.a. on its Claim No. 6. Therefore, it is
an error apparent on the face of record and the findings qua Claim No.
6 to the extent of interest deserves to be modified. Reliance is placed on
Gayatri Balasamy (Supra) and Jagdish Kaur (Supra).
28. Reliance is also placed on Indian Hume Pipe Co. Ltd. v. State of
Rajasthan6, to submit that the grant of interest cannot operate
differently between Claims and Counter Claims, both the claimant and
respondent have to be treated equally.
Counter Claim No. 4(c): Failure to carry out Bituminous Overlay
work and application of tack coat. (Against the challenge of NHAI in
O.M.P. (COMM) 243/2022).
4
(2025) SCC Online SC 986.
5
2025 SCC OnLine Del 10835.
6
(2009) 10 SCC 187.
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29. Learned counsel for Atlanta, submits that the challenge of NHAI in
O.M.P. (COMM) 243/2022 qua Counter Claim No. 4(c) is liable to be
rejected as the AT has correctly dealt with this Counter Claim and
awarded nominal damages by providing cogent reasoning and
following settled position of law.
30. With regards to this Counter claim, the AT has rightly rejected the
formula for computation of damages proposed by the IC on the ground
that it would amount to rewriting of the contractual terms, and has
instead proceeded strictly in accordance with the mechanism delineated
in the CA.
31. He submits that NHAI has assailed the findings of the AT on the
ground that damages under Clause No. 18.13(b) ought to have been
calculated “for each day of default” but the same has been wrongly
calculated. However, the same contention was raised before the AT
under its Section 33 Application, which was rightly rejected by the AT
vide order dated 07.01.2022 holding that the Counter Claim was
premised on policy guidelines dated 05.02.2016, which were applicable
to agreements executed in 2006 and 2007. Thus, only token damages
were levied.
32. The AT has rightly awarded only token damage by observing the
Counter Claim to be unsustainable as unilaterally issued policy
guideline cannot bind the other party to the contract. The said policy
cannot be retroactively applied to the agreement between the parties.
Reliance is placed on Ssangyong Engg. & Construction Co. Ltd.
(Supra).
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33. Additionally, without prejudice to the aforesaid submissions, it was
also submitted that the entire Counter claim No. 4(c) was per se
unsustainable before the AT as it was not only based on mechanical
invocation of contractual terms and inapplicable policy guidelines, but
also the NHAI did not make any specific averments or demonstrated
any actual loss suffered by the NHAI.
34. He also submits that liquidated damages cannot be awarded in absence
of a clear demonstration of actual loss incurred. There remains an
obligation not only to aver but also to prove actual loss incurred.
Reliance is placed on National Council of Education Research &
Training v. Murli Industries Ltd.7and Indian Oil Corporation Limited v.
Standard Casting Pvt. Ltd.8
SUBMISSIONS ON BEHALF OF NHAI
35. At the outset, Mr. Singh, learned counsel for NHAI, submits that
Atlanta has assailed the majority award dated 16.11.2021 on incorrect
understanding of Section 34 of the Act which allows interference with
the Award only on limited grounds as enumerated therein.
Claim No. 1
36. He further submits that in accordance with Schedule H of the CA, the
NHAI was obliged to handover right of way within 12 months from the
date of the CA i.e., 09.12.2005. However, due to unavailability of about
10% of the land, it was agreed between the parties that PCC would be
issued for the executed work and for the remaining works a separate
agreement (supplementary agreement) would be executed.
7
2025 SCC Online Del 6414.
8
2025 SCC Online Del 8393.
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37. Consequently, for execution of the remainder work, a SA dated
22.09.2011 was executed between the parties stipulating a timeline of
120 days from the date of land availability for completion of remainder
works. However, the SA did not prescribe any fixed timeline for
handing over of the AROW.
38. The AT in order to ascertain the reasonable time for land handover,
analysed the acquisition process in paragraph No. 60 of the Award and
observed that, as there was no fixed timeline in the SA within which
the land was required to be made available. In absence of any such
stipulation concerning time, the AT proceeded to interpret reasonable
time in view of the accompanying facts and circumstances. The AT
relied on Hungerford Investment Trust Ltd. v. Haridas Mundhra9 to
substantiate its findings of reasonable time.
39. The AT in paragraph No. 71 of the impugned Award attributed the
primary responsibility of delay to the respondent and in view of
attendant circumstances 18 months from the date of SA was fixed as a
reasonable time beyond which the breaching party was held to be
responsible for delay.
Claim No. 6
40. Mr. Singh, learned counsel, qua Claim No. 6 submits that rate and
quantum of interest falls within the discretionary ambit of AT and no
judicial interference is warranted with the same.
41. The AT while adjudicating Claim No. 6 has exercised proper
discretion. In paragraph No. 129 of the Award, it duly noted and took
into consideration the frequent claim amendments by Atlanta, thereby
9
(1972) 3 SCC 684.
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awarding pendente lite interest at the rate of 10% p.a. against the rate of
18% p.a. as claimed by Atlanta. The AT awarded no pre-reference
interest and awarded cost of Arbitration as per actuals.
Counter Claim No. 4(c)
42. Mr. Singh, learned counsel for NHAI, submits that the Award dated
16.11.2021 read with order dated 07.01.2022 is contrary to an express
contractual Clause of the CA bearing Clause No. 18.13(b). The AT in
paragraph No. 125 of the Award duly decided the Claim in accordance
with the said Clause but omitted to multiply the relevant figure with
517 and arrived at an erroneous finding by not taking into consideration
the factor of 517 days delay.
43. Although the AT took note of the letter dated 22.03.2018 issued by the
IC stating the delay of 517 days attributable to Atlanta, the same has
been overlooked by the AT in awarding this Claim and arriving at its
findings without any rationale.
44. NHAI duly flagged the computational lapse vide an application filed
under Section 33 of the Act but the AT erroneously justified the Award
qua Counter Claim No. 4(c) adopting a fresh approach stating that only
token damages were awarded based on the rationale established in
paragraph Nos. 121 to 125. This justification however finds no support
in the said paragraphs and in paragraph No. 125 specifically, the AT
only dealt with the issue of Schedule of Rates prescribed by Public
Work Department-Nagpur adopted by the NHAI as per Policy
Guideline dated 05.02.2018, and completely ignored to multiply the
amount with the number of days of delay.
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45. Moreover, the order dated 07.01.2022 dismissing the application of
NHAI is patently illegal as it is based on a new approach of token
damages which was not even explained in paragraph No. 125 as to on
what basis such damages were being awarded.
46. Reliance is placed on Gayatri Balasamy (Supra) to state that the
aforesaid computational error can be corrected to award Rs.
4,57,87,588/- to NHAI by multiplying the already awarded amount by
517.
ANALYSIS AND FINDINGS
47. I have heard the learned counsels for the parties and perused the
documents placed on record.
SCOPE OF INTERFERENCE UNDER SECTION 34 OF THE ACT
48. The scope of interference under Section 34 of the Act is now clearly
established. The Court is not required to sit in appeal as an Appellate
Court over the Award, and it can neither reappreciate the evidence nor
reinterpret the terms of the contract, when the view already taken by the
arbitrator is a probable and possible one. Judicial intervention with the
Award is permissible only on limited and specific grounds, as
encapsulated under Section 34 of the Act. The Court is not
required/empowered to reappreciate evidence or substitute its own view
with that of the Arbitral Tribunal. It is a settled position of law that
Section 34 of the Act, embodies the principle of minimal judicial
interference, thereby preserving the foundational precept of the Act, the
finality and efficacy of Arbitral Awards. The Hon’ble Supreme Court
has recently observed this scope of interference in the judgment of
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Consolidated Construction Consortium Ltd. v. Software Technology
Parks of India10, the relevant paragraphs of which reads as under:
“46. Scope of Section 34 of the 1996 Act is now well
crystallised by a plethora of judgments of this Court.
Section 34 is not in the nature of an appellate provision. It
provides for setting aside an arbitral award that too only
on very limited grounds i.e. as those contained in sub-
sections (2) and (2-A) of Section 34. It is the only remedy
for setting aside an arbitral award. An arbitral award is
not liable to be interfered with only on the ground that the
award is illegal or is erroneous in law which would
require re-appraisal of the evidence adduced before the
Arbitral Tribunal. If two views are possible, there is no
scope for the court to re-appraise the evidence and to take
the view other than the one taken by the arbitrator. The
view taken by the Arbitral Tribunal is ordinarily to be
accepted and allowed to prevail. Thus, the scope of
interference in arbitral matters is only confined to the
extent envisaged under Section 34 of the Act. The court
exercising powers under Section 34 has per force to limit
its jurisdiction within the four corners of Section 34. It
cannot travel beyond Section 34. Thus, proceedings under
Section 34 are summary in nature and not like a full-
fledged civil suit or a civil appeal. The award as such
cannot be touched unless it is contrary to the substantive
10
(2025) 7 SCC 757.
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provisions of law or Section 34 of the 1996 Act or the
terms of the agreement.”
49. At the outset, Mr. Singh, learned counsel for the NHAI, states that the
petition O.M.P. (COMM) 152/2022 is sans merit as the petitioner has
failed to plead or establish any specific permissible ground under
Section 34 of the Act. The Award is a detailed Award substantiated by
the evidence available on record and the same does not suffer from any
vices as enumerated under Section 34 of the Act warranting interference
by this Court. The findings of the AT are plausible and therefore cannot
be interfered with under the Section 34 jurisdiction.
50. With the above scope of Section 34 of the Act in mind, I shall now deal
with the rival contentions.
Claim No. 1: Damages due to delay in handing over of land post
provisional commercial operation date (PCOD) dated 22.09.2011 till
04.06.2019 and further continuing till the Commercial operation date
(COD).
51. The primary challenge of Atlanta qua Claim No. 1 can be essentially
distilled into one core controversy i.e. the findings of the AT on the
point of reasonable period to provide AROW under the SA dated
22.09.2011.
52. Atlanta has assailed the findings of the AT qua Claim No. 1 for being
patently illegal on three fold grounds:
i. The AT in its findings read Schedule H with Clause No.
13.5.2 of the CA to acknowledge the relevant period as 12
month, but proceeded to consider the reasonable period asDigitally Signed
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18 months without any evidentiary basis thereby rewriting
the terms of the Contract.
ii. There is no reasoning/rationale given by the AT in arriving
at its finding of treating 18 months as the reasonable period.
iii. There are inconsistencies in the award with respect to the
differentiated application of reasonable period as 12 months
and 18 months at different sections of the award.
53. Per Contra, NHAI contends that although the CA in its Schedule H
originally stipulated 12 months from 09.12.2005 but when nearly 10%
of the land was still unavailable, the PCC was issued for the executed
works and a SA was executed with a stipulation to complete remaining
works within 120 days from the date on which land became available,
not prescribing any fixed timeline was a conscious alteration in the
agreement.
54. In absence of any such definite period, the AT has duly and justifiably
examined the attendant circumstances to determine/interpret a
reasonable period for handing over of AROW. The view of the AT is
supported by cogent reasoning.
55. Summarily, the core controversy revolves around the reasonable time
within which the land was to be handed over, after which the works
under the SA were to be executed within 120 days, in accordance with
the relevant provision of the SA. The relevant provision of the SA
reads as under:
“As and when the land becomes available, the
Concessionaire agrees to complete the work within 120
days. The delay in completion of such balance worksDigitally Signed
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effective from the date on which the land becomes available
shall be dealt with as per the provision of the main
Concession Agreement.”
(Emphasis Supplied.)
56. The AT qua this finding of reasonable period has given its reasons and
explanations in paragraph Nos. 60, 61 and 71 of the Award and the
same read as under:
“60. We may notice, in brief, the process of land
acquisition. Commencing from survey of land, assessment
and proposal for the acquisition of land were to emanate
from the Concessionaire i.e. the Claimant. Respondent after
verification of land records, upon finding it feasible, is to
process the same. Respondent would have the obligation to
pursue it with the State Government and functionaries and
deposit the compensation payable. Upon successful
acquisition, land is made available to the Concessionaire.
61. Supplementary Agreement has not prescribed the period
within which the land is required to be made available to
the Concessionaire. The operative part of the provision is
“as and when the land becomes available”. However, the
absence of any time being prescribed cannot make it ad
infinitum. Whenever there is no time prescribed for a
particular act, it has been judicially interpreted as
‘reasonable time’ considering all relevant facts and
circumstances. Reference in this regard is invited to the
decision of the Hon’ble Supreme Court in HungerfordDigitally Signed
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Investment Trust Ltd. v. Haridas Mundhra (1972) 3 SCC
684. The provisions of the Concession Agreement and
Supplementary Agreement provide clues which can aid and
guide the determination. As per Schedule ‘H’ of the
Concession Agreement, Respondent was obliged to
handover Additional Right of Way within 12 months from
the signing of the Concession Agreement. The conditions
precedent, respective obligations of the Concessionaire and
NHAI as contained in Clause 9.1 (vi), (xxiv), (xxviii), (xxix),
(xxx), (xxxi), (xxxiii) and 10.1 (i), (ii), (iii), (iv), (xi), (xiii),
(xiv) Clause 13.5.2 tend to demonstrate the obligations put
on the respective parties for expedited resolution and
accomplishment of the work.
…
71. Before proceeding with determination of the Claims and
Counterclaims, it is imperative to determine what would be
a ‘reasonable period’ to complete handing over of
additional land to the Claimant under the Supplementary
Agreement. Considering the period prescribed for
additional land to be made available under the Concession
Agreement i.e. within 12 months of execution, as well as the
attendant circumstances as seen from the correspondence
exchanged and noticed by us, the primary responsibility for
the delay rests with Respondent. This also becomes clear
from the letter dated 03.03.2021 (Pg. 1408, Convenience
Compilation-III) of the Competent Authority of the
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Respondent communicating to PIU Amravati its
concurrence to issue “Completion Certificate” to the
Claimant following certification by the Engineer that all the
works and all the punch list items where land is available
had been completed and items which could not be completed
due to non-availability, have been de-scoped.
In the facts and circumstances, we find that the ‘reasonable
period’ under the stipulation ‘as and when land becomes
available’ for implementation of Supplementary Agreement
would be 18 months from the date of execution. Any delay in
execution thereafter, the party in breach would be
accountable and answerable for the claims.”
57. In paragraph No. 60, AT has outlined the sequential steps in land
acquisition procedure under such contractual frameworks wherein the
land availability is not a single step but a chain of events involved in
the acquisition process, this discussion is important as it substantiates
the decision of the AT to arrive at a reasonable period.
58. After identifying that the SA contained no express stipulation as to the
time limit, the AT returned its findings in paragraph No. 61 by applying
governing legal principles applicable in such a factual scenario. The
AT proceeded to observe that the use of phrase “as and when land
becomes available” does not permit an infinite and endless
postponement of performance. The AT relied on Hungerford
Investment Trust Ltd. (Supra) to support its findings that in absence of
any prescribed time for performance of an obligation, the law implies
determination of a reasonable time which is to be ascertained from the
Digitally Signed
By:MAYANK
Signing Date:26.05.2026 O.M.P. (COMM) 152/2022 & O.M.P. (COMM) 243/2022 Page 18 of 46
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relevant facts and circumstances. From a perusal of the paragraph No.
61 it is also clear that the stipulation of 12 months period in the CA was
not discarded altogether but the same was expressly treated as a
relevant clue for determining reasonableness under the altered
contractual agreement. In this backdrop, I am of this view that the AT
treated this 12 month period as a baseline indicator while interpreting
the reasonable period with the help of other relevant facts and
circumstances.
59. The important reasoning for the findings challenged under this Claim
No. 1 is clear from a perusal of the paragraph No. 71 of the Award,
wherein the AT read together in harmony not only the contractual
framework but also the prevailing circumstances.
60. In this view, the fixation of reasonable period as 18 months under the
stipulation “as and when land becomes available” cannot be said to be
decided without reasons. The AT took into consideration the relevant
contractual period of 12 months and viewed it in the context of the SA
that deliberately excluded any such stipulation of a fixed time period,
and examined the practical aspects of land acquisition and then factored
in the surrounding circumstances to arrive at a finding of 18 months as
a reasonable period. Thus, the view taken by the AT is a plausible view
supported by sufficient reasons and not vitiated by any perversity or
patent illegality.
61. The said findings does not amount to rewriting of the contract as the
CA and the SA are different contracts governing different aspects of a
same project, the contractual term of CA cannot be allowed to be
imported in the SA. In absence of any specific contractual timeline in
Digitally Signed
By:MAYANK
Signing Date:26.05.2026 O.M.P. (COMM) 152/2022 & O.M.P. (COMM) 243/2022 Page 19 of 46
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the SA, the AT has only exercised its statutory power to interpret a
term of contract which is well within its jurisdiction. The same being
interpretation of a term of a contract, cannot be revisited by this Court
under Section 34 jurisdiction. The view of AT is both plausible and
reasonable.
Claim No. 6: Interest and Cost of Arbitration.
62. The Claim No. 6 is categorised into two sub-claims with Claim No. 6.1
pertaining to the award of pendente lite interest and Claim No. 6.2
pertaining to the cost of Arbitration, as claimed by Atlanta.
63. Atlanta under Claim No. 6.1, claimed pendente lite interest at the rate
of 18%, which was awarded by the AT at the rate of 10% p.a. instead,
and under Claim No. 6.2, the cost of Arbitration were also awarded to
the tune of Rs. 1,96,11,906/-.
64. Atlanta has assailed the Award qua Claim No. 6 primarily on the
ground that during the meeting dated 24.02.2020 the parties had
already agreed to fix the rate of interest at 12% p.a. and that the AT
cannot award two different rates of interest for the Claims and Counter
Claims.
65. From a perusal of the record of the order sheet of the AT dated
24.02.2020, it is clear that there is no such omnibus/uniform rate of
interest fixed for all Claims and Counter Claims during the
hearing/meeting. The order records a specific and a limited settlement
with interest rate of 12% only fixed and applied on the Claims and
Counter Claims, which were settled amicably on that day and were
duly recorded in the order of the AT. The order dated 24.02.2020, reads
as under:
Digitally Signed
By:MAYANK
Signing Date:26.05.2026 O.M.P. (COMM) 152/2022 & O.M.P. (COMM) 243/2022 Page 20 of 46
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BEFORE THE INDIAN COUNCIL OF ARBITRATION
(Case No. AC-2118)
IN THE MATTER OF ARBITRATION:
M/s Atlanta Infra Assets Limited
…Claimant
Vs.
National Highways Authority of
India, New Delhi
…Respondent
Order Sheet of the 27th hearing held on 24th February,
2020 at11:00 a.m. at Federation House, Tansen Marg,
New Delhi
PRESENT:
SECRETARIAT
Ms. Lakshmi K P …Case Manager
ON BEHALF OF THE CLAIMANT
Dr. P.C. Markanda, Sr. Advocate
Mr. Rajesh Markanda, Advocate
Ms. Neihal Dogra, Advocate
Mr. RajhooBbarot, MD, AtlantaDigitally Signed
By:MAYANK
Signing Date:26.05.2026 O.M.P. (COMM) 152/2022 & O.M.P. (COMM) 243/2022 Page 21 of 46
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Mr. Ulhass N. Bhole, Vice PresidentON BEHALF OF THE RESPONDENT
Mr. Ramesh Kumar, Advocate
Mr. Abhishek Gusain, Advocate
Mr. V. P. Brahmankar, Project Director, NHAI, PIU
AmravatiPROCEEDINGS DT. 24.02.2020
The position with regard to counter claims of the
respondent was reviewed and the positions taken by the
parties in support and in opposition to the counter claims
was revisited in particular with regard to counter claim no.
5 and 7.
COUNTER CLAIM NO. 5
The respondent claims Rs. 49,87,73,425/- cost of overlay of
the Project Highway for the period 01.04.2014 to
31.05.2018. The claimant opposes the claim on the ground
that they are carrying out the overlay work and hence, the
respondent cannot claim the entire cost of the overlay.
COUNTER CLAIM NO. 7
The position as to certain factual aspects with regard to
balance works in respect of Service roads (Counter claim
no. 7) may be noted:
(i) The total Service Roads remaining to be completed 23.67
km as per original scope of work.
Digitally Signed
By:MAYANK
Signing Date:26.05.2026 O.M.P. (COMM) 152/2022 & O.M.P. (COMM) 243/2022 Page 22 of 46
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(ii) 16.085 work completed as on 31.1.2020.
(iii) 0.485 km completed between 01.08.2017 and
31.01.2020 leaving balance of 7.615 km.
(iv) The respondents have proposed descoping of 4.62 km.
to Headquarters which will leave 2.99 km which the
respondent asked to carry out without insisting upon the
minimum width of 7 meters and as per availability at site.
As regards, Service Roads which is one of the component of
this claim, parties after addressing submissions and
reflecting thereon reached an understanding which is being
recorded.
1. Out of the 23.67 km. of Service Roads, 15.6 km. had been
completed as on the date of invocation of arbitration as on
1st August, 2017. Some part of the Service Roads was done
between August, 2017 and January, 2020 leaving a balance
of 7.615 km. The NHAI has recommended descoping of 4.62
km. leaving a balance of 2.99 km or 3 km. approximately. It
has been specifically agreed by the respondents that this
length of service roads on which standard width of 7 meters
is not available may be carried out on the width as
available on the basis of approved drawings to be made
available within 10 days from today. The claimants
undertake to complete the work within 3 months of the
drawings including all the related works as given under the
heading remaining works.
In this view of the matter, since the counter claim is
Digitally Signed
By:MAYANK
Signing Date:26.05.2026 O.M.P. (COMM) 152/2022 & O.M.P. (COMM) 243/2022 Page 23 of 46
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based on, the estimated cost of balance work as per the
punch list A and B, Claimant having agreed to carry out the
remaining works as detailed below and as required by the
respondent, the counter claim no. 7 does no longer survive.
S.No. Completed Works Remaining Works
1. Highway lighting not required Clearance for
on service roads Right of Way on
entire Service
Roads
2. Truck Lay- byes (6 Nos.) Road Signs, Road
marking for
balance service
roads
3. Development of Major State Development of
Highway Junction at Km minor junctions
18.120 wherever required
on balance service
roads not more
than 3 in number
4. Curves of less than 1000-meter Extension of pipes
radius erection of Chevrons for hume pipe /box
and W-Metal Beam Crash /slab culvert
barriers wherever required
on balance service
roads not more
than 2 in number
5. Minor bridges ROW boundary
pillars wherever
required at every
50 meters as
required on the
entire length of
Highway
Digitally Signed
By:MAYANK
Signing Date:26.05.2026 O.M.P. (COMM) 152/2022 & O.M.P. (COMM) 243/2022 Page 24 of 46
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6. Filling trenches within ROW
dug for mining murrum used
for embankment construction
7. Safety measures like erection of
solar blinkers, delineators, W-
Metal, Beam Crash Barriers
etc. on medium openings and
junctions.
The overall position with respect to the counter claims after
discussion and attempted settlement is as under:-
Counter Particulars Amount Period Decision/settlement
Claim1 Cost of Rs. 4,32,94,105.00 01.04.2016 After threadbare
Plantation and (The said claim to discussion of all
Maintenance of was reduced 31.05.2018 aspects parties
Avenue subsequently as agree that the said
Plantation noted in the signed counter claim shall
notes of stand satisfied in
proceedings dt. to case, the
22.01.2020 Rs. respondents receive
1,20,39,397/- or get a set off Rs.
being maintenance 50,00,000.00 in all.
the charges from Further, the
01.04.2016 claimant shall
30.06.2018) maintain the
plantation/avenue
till 5th plantation
October, 2026.
2 Opposite Rs. 3,18,67,767.00 05.10.2011 Rs. 47,58,821.33 till
Party/Claimant's to 31.03.2019 plus
share of fees & 17.04.2018 interest @12% per
expenses of IC annum w.e.f.
(05.10.2011 to 01.04.2019 as
31.03.2018) agreed by the
Parties in line with
the claimant's
submission dt.
27.07.2019. The
proportion as per
Digitally Signed
By:MAYANK
Signing Date:26.05.2026 O.M.P. (COMM) 152/2022 & O.M.P. (COMM) 243/2022 Page 25 of 46
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letter dt. 27.07.2019
shall continue for
sharing of IC Fee
till completion of
service roads.
Thereafter, the
claimant will
reimburse 50% of
the IC Fees as per
the agreement.
3. Reimbursement Rs. 31,55,625.00 01.10.2015 Rs. 21 lakhs
of expenses for to inclusive of interest
engaging two 31.05.2018 as per Order dt.
vehicles for 21.01.2020
inspection of the
Project Highway
4. Damages Rs. 5,87,85,296.00 21.09.2015 To be adjudicated
payable by the to by the Tribunal
Opposite including for delay
Party/Claimant 31.05.2018 in overlay.
for poor O&M
of the Project
Highway
5. Cost of overlay Rs.49,87,73,425.00 01.04.2014 63% overlay work is
of the Project to completed by the
Highway 31.05.2018 Claimant and
balance is to be
completed by 31st
May, 2020 and
since no work is
done by the
Respondent, the
counter claim does
not survive.
However, this is
without prejudice to
counter claim no. 4.
6. Recovery of cost Rs. 2,69,470.00 17.04.2014 Rs. 1,54,673/- plus
of providing to interest at 12% per
Police 31.05.2018 annum from
assistance for 17.04.2014
removal of
encroachments
7. Cost of Balance Rs. 22.09.2011 In view of the
Digitally Signed
By:MAYANK
Signing Date:26.05.2026 O.M.P. (COMM) 152/2022 & O.M.P. (COMM) 243/2022 Page 26 of 46
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work of Punch 60,30,69,951.00 31.05.2018 agreement reach
List (Claim Amount: between the parties
27,35,30,000.00 + for completion and
Interest Rs. the execution of the
32,95,39,951.00) remaining works
and the time period
therefor as recorded
in proceedings
above.
8. Cost of As per Actuals – To be adjudicated
Proceedings by the Tribunal
66. In this view, the contention of Atlanta that the AT in awarding 10% p.a.
has acted in disregard of a mutual agreement between the parties is
unfounded and misconceived. The limited scope of order dated
24.02.2020 cannot be allowed to be misinterpreted as a blanket pre-
determination/fixation of rate of interest for all pending Claims and
Counter Claims.
67. Another contention of Atlanta that the AT has awarded different rates
of interest for Claims and Counter Claims, is also misconceived as it is
clear from the perusal of the order sheet dated 24.02.2020 that it was
mutually agreed between the parties that a rate of 12% would apply qua
Counter Claim Nos. 2 and 6 only. The same has also been recorded by
the AT in paragraph No. 112 of the impugned Award, which reads as
under:
“Counterclaims raised by the Respondent
112. Respondent has raised 8 Counterclaims against the
Claimant. The same have been tabulated at para 27
hereinabove. On reviewing the positions of the parties,
Counterclaims No. 1, 2, 3, 5, 6 and 7 came to be settled and
the agreement reached was recorded in the proceedingsDigitally Signed
By:MAYANK
Signing Date:26.05.2026 O.M.P. (COMM) 152/2022 & O.M.P. (COMM) 243/2022 Page 27 of 46
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held on 24.02.2020 (Annexure-D) and the Order sheet
signed by both parties as token of their acceptance of the
same. The particulars of the Counterclaim, amounts
claimed and settlement arrived at is tabulated hereunder for
facility of reference:…”
68. Moreover, the AT in awarding pendente lite interest at the rate of 10%
p.a. against the claimed rate of 18% p.a. has only exercised its statutory
power and has not violated any terms of the contract to warrant
interference with the same. It is no longer res integra that the AT is
having wide scope of power to award interest under Section 31(7)(b) of
the Act and once the AT has taken a view which is plausible, it cannot
be substituted by the Court under Section 34 jurisdiction. The Hon’ble
Supreme Court in its judgment Hyder Consulting (UK) Ltd. v. State of
Orissa11, made the following observations:
“69. I take note that the Arbitral Tribunal has been given
the discretionary power of not only imposing interest, but
also for determining the rate of interest that could be
imposed from the date of cause of action to the date of the
award. The Arbitral Tribunal has the discretion to decide
whether such interest would be imposed on the whole or a
part of the money awarded, and further whether it would be
imposed for the entire duration from the date of cause of
action to the date of award, or on a part of it. However,
such discretion is not unfettered and is not exercisable upon
the mere whims and fancies of the tribunal. In Principles of
11
(2015) 2 SCC 189.
Digitally Signed
By:MAYANK
Signing Date:26.05.2026 O.M.P. (COMM) 152/2022 & O.M.P. (COMM) 243/2022 Page 28 of 46
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Statutory Interpretation, Justice G.P. Singh, 13th Edn.,
2012, at p. 482, it has been stated as follows:
“Even where there is not much indication in the Act of
the ground upon which discretion is to be exercised it
does not mean that its exercise is dependent upon mere
fancy of the court or tribunal or authority concerned. It
must be exercised in the words of Lord Halsbury,
„according to the rules of reason and justice, not
according to private opinion; according to law and not
humour; it is to be not arbitrary, vague and fanciful,
but legal and regular‟.”
70. It can be concluded that the discretion, whether to
award interest by the Arbitral Tribunal under clause (a), is
necessarily to be exercised as per the facts and
circumstances of each case. The said discretion must be
within the parameters of the statute and in accordance with
the rule of law. Furthermore, the said clause states that the
rate of interest, if such interest is awarded by the Arbitral
Tribunal, must be as the said tribunal deems reasonable. It
is settled law that discretion must always be exercised
lawfully.”
(Emphasis Supplied.)
69. I am of the view that the submission of NHAI holds merit and that the
AT in paragraph No. 129 of the award of Claim No. 6.1, has taken a
plausible view in not awarding the claimed 18% rate of interest. The
AT in awarding interest at the rate of 10% p.a. duly considered the
Digitally Signed
By:MAYANK
Signing Date:26.05.2026 O.M.P. (COMM) 152/2022 & O.M.P. (COMM) 243/2022 Page 29 of 46
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frequent amendments and also the prevailing rate of interest during the
relevant period. The view of AT is based on cogent reasoning and no
interference is warranted with the same. The relevant paragraphs of the
impugned Award reads as under:
“Claim No. 6.1: Claim for Interest
127. Claimant demands pendente lite interest @ 18 p.a. on
the sums due and future interest @ 18% compounded
monthly from due date of payment to date of payment.
128. The Tribunal came to be constituted on 01.08.2018.
Claimant filed its first Statement of Claim with the ICA on
03.10.2017 raising claims in the sum of INR 90.78 crores,
which was amended and the sum claimed revised to INR
124.12 crores on 22.08.2018. Subsequently, Claimant filed
an updated calculation for Claims No. 1 and 2, with the
result that the total sum claimed stood revised to INR
1,44,74,85,212/-.
129. The amounts claimed have been subject to frequent
amendment and have come to be crystallised only by this
Award. In these circumstances, and keeping in mind the
average bank lending rate for the relevant period, it would
be apposite to award pendente lite interest from date of
constitution of the Tribunal i.e. 01.08.2018 till realization of
the awarded amounts @ 10%p.a.
70. As regards the argument of Atlanta for applying separate rates of
interest on Claims and Counter Claims is concerned, the said argument
is misconceived. On 24.02.2020, the parties agreed to the rates of
Digitally Signed
By:MAYANK
Signing Date:26.05.2026 O.M.P. (COMM) 152/2022 & O.M.P. (COMM) 243/2022 Page 30 of 46
20:30:27
interest for Counter Claim Nos. 2 and 6 only, the same is not an
agreement of the parties qua the binding rate of interest for all Claims
and Counter Claims. Hence, the AT was very much within its
discretion to award interest at the rate of 10%.
71. Additionally, the AT has awarded cost of Arbitration based on the
actual Arbitral fee deposited and assessed reasonable legal fee. The
same is based on cogent reasoning and presents a plausible view.
Learned Counsel for Atlanta has also not made any submissions
specific to Claim No. 6(b). Thus, no interference with the same is
warranted.
Counter Claim No. 4(c): Failure to carry out Bituminous Overlay
work and application of tack coat. (Challenged by NHAI in O.M.P.
(COMM) 243/2022)
72. NHAI has challenged the Award qua Counter Claim No. 4(c) only to
the extent that the awarded amount must be recomputed for the delay of
517 days by factoring in this delay and the amount awarded should be
modified and read as Rs. 4,57,87,588 /- instead of Rs. 88,564/-.
73. NHAI had preferred an application under Section 33 of the Act before
the AT, raising identical grounds as raised herein the present petition.
Subsequently, the said application was dismissed by the AT vide
correction Award/order dated 07.01.2022. The order dated 07.01.2022
reads as under:
“1. An Application moved by the Respondent U/s 33 of the
Arbitration and Conciliation Act, 1996 seeking corrections
in the majority Award dated 16.11.2021, has been taken up
for consideration. The Applicant appears to be aggrieved byDigitally Signed
By:MAYANK
Signing Date:26.05.2026 O.M.P. (COMM) 152/2022 & O.M.P. (COMM) 243/2022 Page 31 of 46
20:30:27
the decision of the Tribunal in respect of award of the
Counterclaim No.4 (c) whereby in respect of said
Counterclaim, a sum of Rs.88,564/- has been assessed and
awarded, while the Applicant contends that the award as
per formula should have been Rs.4,57,87,588/-.
2. Ld. Counsel for the Claimant Mr. Rajesh Markanda
objects to the Application as being wholly misconceived
since it seeks a review on merits, which is beyond the scope
of correction envisaged U/s 33 of clerical or arithmetical
errors.
3. Without there being a necessity of going into it, we may
notice in the passing that the rationale of assessing token
damages flows from the finding of breach as given in the
Award. The Concession Agreement was executed on
09.12.2005 and the policy guidelines circular dated
05.02.2016 made the guidelines applicable to Agreements
entered into in 2006 – 2007. Accordingly, only token
damages were levied in the exercise of Arbitral jurisdiction
in Counterclaim No.4 (c) as per the rationale given in paras
121 to 125 of the Award.
4. We find considerable merit in Mr. Markanda’s objections
that the Application as framed would not be maintainable in
terms of Section 33 as it fails to disclose any
arithmetical/clerical error. The Application is accordingly
dismissed.”
(Emphasis Supplied)
Digitally Signed
By:MAYANK
Signing Date:26.05.2026 O.M.P. (COMM) 152/2022 & O.M.P. (COMM) 243/2022 Page 32 of 46
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74. The AT dismissed the Section 33 application vide order dated
07.01.2022, on the ground that the application instead of disclosing any
arithmetical or clerical error, seeks merit based review of the AT’s
decision and that the AT has levied token damages based on the
rationale already noted in paragraph Nos. 121 to 125 of the Award. The
said paragraphs of the impugned Award read as under:
“Delay in submission of O&M Plan
121. Clause 18.13 of the CA provides that in case the
Respondent does not exercise its option to undertake the
required repair and maintenance after expiry of 30 days as
stipulated in Clause 18.12, it shall recover damages from
the Concessionaire, payable after the expiry of the aforesaid
period of 30 days until the default is cured, as per sub-
clause (a) and (b) which are reproduced hereunder:
(a) Rs. 10,000/-
(b) 0.1% of the cost of such repairs as estimated by the
Independent Consultant.
122. Clause 18.12 clearly stipulates that the
deviation/shortcoming in O&M should be qua the
‘Maintenance Manual’ and/or the ‘Maintenance
Programme’ and not the ‘O&M Plan’. No doubt that the
Claimant was required to submit an annual O&M Plan
under Clause 3.1(c), however, the O&M activities to be
performed were set out in the O&M Manual (“Manual”)
which the Claimant supplied on 23.05.2011 (Annexure A-6,
CD-8, pg. 92-188) and were to be controlled by the said
Digitally Signed
By:MAYANK
Signing Date:26.05.2026 O.M.P. (COMM) 152/2022 & O.M.P. (COMM) 243/2022 Page 33 of 46
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Manual.
A perusal of the Manual shows that it is exhaustive in detail
with separate sections for Operations and Maintenance
detailing the works to be carried out and responsibilities to
be discharged by the Concessionaire-Claimant. That the
Manual, as submitted, was a complete guide for execution
of O&M works is evident from the complete absence of any
letter or communication, between 2011 and 2014, from the
Respondent requesting the Claimant to furnish an annual
O&M Plan. This would imply that annual O&M plans were,
by no means, indispensable or necessary, for carrying out
O&M works, absence of which would impede performance.
Respondent’simposition of INR 10,000/- per day for 341
days in respect of delay in submission of O&M Plan
conveniently ignores condonation granted, as discussed
hereinabove in para 120. Accordingly, the damages for non-
submission of the O&M Plan are assessed at INR 2,80,000/-
computed for 28 days at the rate of INR 10,000/- per day
and the said sum is awarded to the Respondent.
Failure to carry out Benkelman Beam Deflection Test and
Road Roughness Test
123. Respondent has levied these damages on the failure of
the Claimant to carry out Road Roughness Test and
Benkelman Beam Deflection (BBD) Test, as required and on
the stipulated periodicity under the Concession Agreement.
Respondent first brought this to the Claimant’s notice in the
Digitally Signed
By:MAYANK
Signing Date:26.05.2026 O.M.P. (COMM) 152/2022 & O.M.P. (COMM) 243/2022 Page 34 of 46
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meeting held on 03.01.2015 between the Claimant and IC,
Minutes of which were enclosed with the IC’s letter of
04.01.2015 (RD-13, R-548/39-44). Item 8 of the Minutes
pertains to carrying out of Benkelman Beam Test (under
Clause 3.4.2.3 of Schedule-L) and Road Roughness Test and
records the Claimant’s assurance of acting on the same.
Claimant conducted both these tests in July 2015
as can be seen from its letter dated 05.08.2015 (CD-10, pg.
259) [Roughness Index result sheets attached] and letter
dated 14.08.2015 (CD-10, pg. 266) [Report on BBD Survey
& Overlay Design attached). While it is true that the
Respondent for almost a year did not raise the demand for
conducting these tests. However, by its communication of
27.04.2016 (RD-14/34) Claimant was again directed to
carry out tests followed by, after another gap of almost one
year, letter dated 03.02.2017 (RD-16/74).
124. Provision of Clauses 3.4.2.2 and 3.4.2.3 mandate that
road roughness value shall be measured at least twice in a
year by a properly calibrated Bump Integrator device
before and after monsoon and the structural condition of the
flexible pavement of the Project Highway shall be assessed
every year by taking Benkelman Beam Deflections,
respectively. In view of the clear and categorical provision
requiring the Roughness Test to be carriedout at least twice
in a year. These are clear indications that the above is a
minimum requirement and therefore, Dr.Markanda’s
Digitally Signed
By:MAYANK
Signing Date:26.05.2026 O.M.P. (COMM) 152/2022 & O.M.P. (COMM) 243/2022 Page 35 of 46
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submission that only when roughness index is found to be
greater than 3000mm/km, are the clauses to be invoked and
not on the basis of periodicity, is not tenable. It is not in
dispute that the Claimant failed to carry out the roughness
test at least twice and the BBD test, annually. Accordingly,
in terms of the contractual provisions, the Respondent was
justified in levying the damages as per its letter of
21.08.2017 (RD-16, pg. 75). Respondent claims to have
assessed damages based on ‘best industry practice’, arriving
at a figure of INR 6500/km for BBD Test and INR 7500/km
for Road Roughness Test and imposing, in total, INR
8,72,632/-. Claimant has not placed on record anything to
rebut the above or to indicate that the same is excessive or
not in accordance with ‘best industry practices’. Respondent
is accordingly awarded INR. 8,72,632 on this account.
Failure to carry out Bituminous Overlay Work
125. The last aspect to be dealt with is damages on account
of failure to carry out Bituminous Overlay work.
Calculation of damages is based on Policy Guidelines of
05.02.2018. We find that these Guidelines are inapplicable
to the dispute before us as the Concession Agreement was
executed on 09.12.2005 and the circular expressly states
that it shall apply to agreements entered in 2006 and 2007.
Moreover, the Policy Guidelines, purportedly seek to supply
only a clarification, however, in our view it prescribes a
new formula distinct from the one prescribed in 18.13(b).
Digitally Signed
By:MAYANK
Signing Date:26.05.2026 O.M.P. (COMM) 152/2022 & O.M.P. (COMM) 243/2022 Page 36 of 46
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Accepting this new formula would amount to rewriting the
contract, in as much as the same was not something both
parties agreed to at the time of execution of the Concession
Agreement. Further, the IC has taken the rates prescribed
under the Scheduleof Rates of PWD, Nagpur despite
comparable rates for similar works being prescribed in the
BOQ. Item 4.03 under ‘Bituminous Courses’ prescribes a
rate of INR 4131 / (m3) for carrying out profile correction.
Item 4.02 for emulsified tack coat was to be executed at INR
8 /m2, which should be the rates at which damages should
have been calculated as opposed to the price taken by the IC
in its letter of 22.03.2018. Respondent’s entitlement under
this head is as follows:
S. Item of Work Quantity Rate as per Cost of
No. BOQ Work in
INR
1. Bituminous 20049.80 m3 8,44,74,819
Concrete 4131/ m3
2. Application of 511245 m2 8/m2 40,89,960
tack coat
Total 8,85,64,779As per clause 18.13(b) the amount of damages would equal
0.1% of the cost of work done which comes to INR 88,564/-
Accordingly, for Claimant’s failure to submit O&M Plan,
conduct Roughness and BBD Test and complete Bituminous
Digitally Signed
By:MAYANK
Signing Date:26.05.2026 O.M.P. (COMM) 152/2022 & O.M.P. (COMM) 243/2022 Page 37 of 46
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overlay work, the Respondent is awarded INR 8,18,564/-,
which is detailed as below:
Sl.No. Item of Work Amount Awarded
(INR)
1. Delay in O&M Plan 2,80,000/-
Submission
2. Failure to carry out 8,72,632/-
Benkelman Beam
Deflection Test and
Road Roughness Test
3. Failure to carry out 88,564/-
Bituminous Overlay
and Application of
Tack Coat
Total 12,41,196/-
Accordingly, the Respondent is awarded a sum of INR
12,41,196/- (Rupees Twelve Lakh forty one thousand one
hundred ninety six only) against the Claimant.”
75. The contentions of NHAI are based on the premise that the AT acted in
deliberate ignorance of the number of days of delay stated in the letter
by the IC and has not acted in accordance with the Clause No. 18.13 of
the CA by not computing the damages for the total number of days of
delay i.e. 517 days as computed by the IC. The Clause No. 18.13 is
important and reads as under:
“18.13 In the event NHAI does not exercise its option to
undertake the required repair and maintenance after expiryDigitally Signed
By:MAYANK
Signing Date:26.05.2026 O.M.P. (COMM) 152/2022 & O.M.P. (COMM) 243/2022 Page 38 of 46
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of the 30 (thirty) days period stipulated in Clause 18.12 it
shall recover Damages from the Concessionaire for default
in operating and maintaining the Project Highway in
conformity with this Agreement. Such Damages shall be
payable after the aforesaid period of 30 (thirty) days and
until the default is cured. The amount of Damages shall be
calculated for each day of default at the higher of the
following, namely (a) Rs.10,000 (Rs. Ten thousand), and (b)
0.1 % (zero point one per cent) of the cost of such repair as
estimated by the Independent Consultant. Recovery of such
Damages shall be without prejudice to the rights of NHAI
under this Agreement, including Termination thereof.”
(Emphasis Supplied.)
76. It is also the case of NHAI that the AT has erred in dismissing the
Section 33 application and justifying the award of Counter Claim No.
4(c) by taking a new approach that the AT has only awarded token
damages and stating it to be based on cogent reasoning contained in
paragraph No. 121-125 of the Award.
77. Per Contra, Atlanta has defended the award of this Counter Claim No.
4(c) by the AT on the ground that it is based on cogent reasoning and
the AT has correctly awarded nominal damages. The AT has already
adjudicated an application filed by the NHAI on the same grounds and
held that the reasoning provided in the Award is sufficient and explains
the award of token damages. Thus, the order dated 07.01.2022, clearly
shows the manifest intent of the AT to award these damages as token
damages. Additionally, as liquidated damages cannot be awarded in
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By:MAYANK
Signing Date:26.05.2026 O.M.P. (COMM) 152/2022 & O.M.P. (COMM) 243/2022 Page 39 of 46
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absence of clear averments and evidence as to actual loss, the Counter
Claim being totally unsubstantiated and based on mechanical
invocation has been rightly adjudicated by the AT to the extent of
awarding only token damages.
78. Atlanta has also made these similar submissions before the AT, as can
be seen from paragraph No. 88-90 of the reply dated 31.10.2018 filed
by Atlanta to the said Counter Claim. The relevant paragraph of the
reply reads as under:
“88 – 90. The contents of paragraphs 88 to 90 of the
Counter Claim Statement are denied being wrong and
incorrect. It is respectfully submitted that the Claimant
replied to the letters written by NHAI claiming damages for
non maintenance under Clause 18 of the Concession
Agreement disputing the penalty levied by. the independent
Consultant vide letter dated 30.09.2016(C-108, CD-7/1541-
1542). In the said letter it was stated that the reliance on,
Clause 18 by the Respondent for alleged default is
misplaced, since the said clauses are generic clauses. The
relevant provision for maintenance was contained in
Schedule „L‟ and the same was strictly adhered to by the
Claimant. The Claimant had maintained the Project
Highway in the traffic worthy condition. Thus, the action of
the Respondent in seeking recovery of the said amount
without any adjudication of their highly one-sided and
arbitrary stance is untenable. After receipt of the aforesaid
letter dated 30.09.2016, the Respondent did not deny orDigitally Signed
By:MAYANK
Signing Date:26.05.2026 O.M.P. (COMM) 152/2022 & O.M.P. (COMM) 243/2022 Page 40 of 46
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controvert the submissions made and did not take any
action pursuant thereto but abruptly after a passage of
approximately one year sought to recover the said amount
through Union Bank of India vide letter dated 24.07.2017,
which again reveals the arbitrariness and highhanded
action by the Respondent. Further, the recovery proposed is
not justified even in terms of Clause 18 of the CA, which has
been relied upon by the Respondent. The said Clause does
not provide for any such recovery. In any case, the Claimant
denies and disputes the power or jurisdiction of the
Respondent to make claims for damages on account of
alleged inconvenience to the public at large. It is stated that
the Respondent has no locus standi to raise the present
claim. Further, no costs have been incurred by the
Respondent in terms of Clause 18.12 to justify the
recoveries made. Moreover, the Claimant, without
admitting any of the allegations of the Respondent states
that the calculation of damages by the Respondent is
wrongful, non-contractual and has no basis. It is stated that
the Law relating to a claim for damages has been well
settled by a series of decisions of the Apex Court, wherein it
has been laid down that any party which claims damages
needs to prove that it actually suffered damages by reason
of the breach. In the instant case, the Claimant was neither
in breach of any of the provisions of the Concession
Agreement nor have any actual damages been occasioned toDigitally Signed
By:MAYANK
Signing Date:26.05.2026 O.M.P. (COMM) 152/2022 & O.M.P. (COMM) 243/2022 Page 41 of 46
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the Respondent. Moreover, assuming without admitting that
the delay, in fact, occurred in carrying out repairs, the
delay/inconvenience caused thereby was to the General
Public and not to the Respondent. The Respondent,
therefore, cannot seek to recover damages for delay/
inconvenience, if any, suffered by road users, without
showing the proof of reimbursement to the road users. The
Respondent cannot therefore seek unjust enrichment. The
quantification of the Counter Claim is disputed and denied
as is the interest claimed and it is prayed that the
Respondent may be put to strict proof in respect of the
same.”
(Emphasis Supplied.)
79. In this view of the matter, it cannot be denied that Atlanta already
disputed the Counter Claim on the basis of NHAI’s failure to aver and
prove any actual damage as required for the award of damages by AT
under Counter Claim No. 4(c).
80. The Award qua Counter Claim No. 4(c) is not a deviation from Clause
No. 18.13, instead it is application of settled principles of law by the
AT that the liquidated damages cannot be mechanically awarded in
absence of any demonstrated actual loss. The AT in paragraph No. 121
to 125 categorically observed that the CA predated the policy
guidelines dated 05.02.2016 and the calculations of IC are based on
these inapplicable policy guidelines and PWD, Nagpur Schedule of
rates, which is also not applicable to the CA. Thus, in this view the AT
Digitally Signed
By:MAYANK
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rejected the computations provided by the IC and took into account the
submissions made by Atlanta.
81. The approach of AT is entirely consistent with the settled law on
damages, which has been reaffirmed from time to time. It is no longer
res integra that mere existence of a stipulation for liquidated damages
will not entitle the party to the same without any proof of actual
damages.
82. Recently, a Coordinate Bench of this Court in its judgment titled
National Highways Authority Of India v. Patel Knr Heavy
Infrastructure Pvt Ltd.12, while dealing with a similar Clause made the
observations while dismissing the challenge of the petitioner therein to
hold that arbitral tribunals interpretation that when there is no nexus
between the stipulated amount and the actual loss likely suffered by the
aggrieved party then the stipulation cannot be regarded as a genuine
pre-estimate of damages. Thus, it is exclusively within the domain of
the arbitral tribunal to decide the same. The relevant paragraphs of the
judgment read as under:
“52. The more substantial challenge of the Petitioner is
directed towards the interpretation of Clause 18.13 of the
Agreement, which provides for damages at the higher of two
amounts, namely, Rs. 10,000 per day or 0.1% of the cost of
repair. The learned Arbitral Tribunal has examined this
clause in the light of settled principles governing liquidated
damages and penalties. It has been concluded that a
stipulation requiring payment of the higher of two amounts,
12
2026 SCC OnLine Del 2895.
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By:MAYANK
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without any clear nexus to the actual loss likely to be
suffered, cannot be regarded as a genuine pre-estimate of
damages. Consequently, the learned Arbitral Tribunal has
treated the higher amount as penal in nature and has
restricted the damages to Rs. 10,000 per day as a
reasonable measure.
53. This approach is in consonance with the principles
embodied in Section 74 of the Indian Contract Act, 1872,
which mandates that only reasonable compensation may be
awarded, irrespective of the amount named in the contract.
The learned Arbitral Tribunal has not rewritten the contract
but has instead harmonised the contractual stipulation with
the governing legal framework.Such an exercise falls
squarely within the jurisdiction of the learned Arbitral
Tribunal and does not call for interference.”
(Emphasis Supplied.)
83. Also, the Hon’ble Division Bench of this Court in its judgment titled
National Highways Authority of India v. D.S. Toll Road (P) Ltd.13,
while upholding the quantification of nominal damages by the arbitral
tribunal made the observation that in a scenario where a party is
entitled to compensation but is unable to prove the same, nominal
damages can nonetheless be awarded. The relevant paragraph of the
judgment reads as under:
“36. The Arbitral Tribunal had accepted that DTRL was
entitled to compensation for loss of opportunity and profits
13
2024 SCC OnLine Del 316.
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By:MAYANK
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due to prolongation of the construction period. However,
the Arbitral Tribunal did not accept DTRL’s computation of
the claimed amount of Rs. 9,06,45,316/-. The Arbitral
Tribunal found that DTRL had not produced sufficient proof
for establishing the quantum as claimed. Accordingly, the
Tribunal awarded nominal damages. It is well-settled that
where a party, which is entitled to compensation, is unable
to establish the same, nominal damages can be awarded. It
is also well-settled that nominal damages are not
necessarily restricted to a token amount. In the present case,
the Arbitral Tribunal had quantified the nominal damages
to 1% of the amount as claimed. We are unable to accept
that the impugned award in this regard is liable to be set
aside in these proceedings.”
(Emphasis Supplied.)
84. In the instant case as clear from the aforesaid paragraphs, Atlanta, from
the outset has denied any breach on its part and challenged the
mechanical invocation of Clause No. 18 on the ground that no actual
damage has been suffered by the NHAI to claim damages.
85. It is clear in view of the aforesaid principles that it is exclusive domain
of the AT to interpret any contractual clause and decide the quantum of
claims, which cannot be interfered with by this Court in its Section 34
jurisdiction. The said Clause cannot be reinterpreted or the evidence
cannot be reappreciated by this Court so as to exceed its jurisdiction
and act as an appellate Court.
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By:MAYANK
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86. The findings of the AT qua Counter Claim No. 4(c) represents a
plausible view which is supported by the settled position of law and
falls within the domain or discretion of the AT. In this view of the
matter, no ground warranting interference with the findings of the AT
is established.
CONCLUSION
87. For all the aforesaid reasons, and having found no ground within the
confines of Section 34 of the Act to set aside the reasoned findings of
the Learned Arbitral Tribunal, I am of the view that the impugned
Award read with the Correction Award/order does not suffer from
perversity, patent illegality or any other recognised vice warranting
interference.
88. Accordingly, the petitions are dismissed in the aforesaid terms, along
with pending applications, if any.
JASMEET SINGH, J
MAY 26th , 2026/(SS)
Digitally Signed
By:MAYANK
Signing Date:26.05.2026 O.M.P. (COMM) 152/2022 & O.M.P. (COMM) 243/2022 Page 46 of 46
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