NATIONAL HIGHWAYS AUTHORITY OF INDIA Vs. TANTIA-TBL

JUDGEMENT

(1.) THE Petitioner, National Highways Authority of India ('NHAI'), in this petition under Section 34 of the Arbitration and Conciliation Act, 1996 ('Act'), challenges an Award dated 5th May 2009 passed by the Arbitral Tribunal ('Tribunal') arising out of the disputes between the Petitioner and the Respondent M/s. Tantia-TBL (JV) pertaining to the contract for the work of four laning of km 332.600 to km 316.00 (Aluva-Angamaly section) of NH-47 in the State of Kerala (Contract Package No. NS-28/KL). THE contract dated 14th June 2001 was entered into between the NHAI and the Respondent for the contract price of Rs. 66,45,73,827/-. THE date of commencement was 31st August 2001 and the intended date of completion was 30th August 2003. THE first extension of intended completion date granted by the NHAI was up to 30th April 2004 and the second extension was granted up to 31st May 2004 which is the actual date of completion. THE NHAI took over the project on 7th August 2004. THE defect liability completion certificate was issued on 7th February 2006. THE contract price was increased to Rs. 71,40,52,826/- (by 7.45%). M/s. Sai Consulting Engineers Private Limited [formerly known as Sheladia Associates & Consultants (India) Private Limited] was appointed by the NHAI as the "Engineer" for the project in terms of the contract.

(2.) IN terms of Clause 24.1 of the contract if the contractor believes that a decision taken by the Engineer was either outside the authority or was wrongly taken, the decision will be, at the first instance, referred to a Dispute Review Expert ('DRE'). The decision of the DRE is final and binding if neither party referred the dispute for arbitration under Clause 25.2.

(3.) MR. Yaman Kumar, learned counsel appearing for the NHAI reiterated the same objection that the Respondent was under obligation in terms of Clause 26.1 to approach the IRC. He further submitted that merely because the NHAI at that stage did not object to the appointment of the Tribunal it could not be held to have waived its objection.