VIL LIMITED Vs. NATIONAL HIGHWAYS AUTHORITY OF INDIA

JUDGEMENT

(1.) THIS petition has been filed under Section 9 of the Arbitration and Conciliation Act, 1996 (Act, in short) inter alia seeking the following reliefs:

(2.) IT is the case of the petitioner that the respondent invited proposal by its request for annual pre -qualification dated September 11, 2012 for short -listing of bidders for two lanning with paved shoulders of Sitarganj -Bareilly Section of NH -74 from 254.820 KM to 329.280 KM in the states of Uttarakhand and Uttar Pradesh on Engineering, Procurement, Construction mode. Thereafter, the respondent invited bids from the short -listed bidders for undertaking the project. The respondent accepted the bid of the petitioner for Rs. 279 Crores only. An EPC Agreement dated October 25, 2013 with a construction period starting from the appointed date and ending on 730th day was entered into between the parties.

(3.) ACCORDING to Mr.K.V.Singh, the learned counsel for the petitioner, as per Article 4.1.3 (a) of the agreement, upon the petitioner furnishing the performance security, the respondent was obliged to provide at least 90% of the total length of the project highway free from any encroachment and encumbrance to the petitioner within 15 days of the date of the agreement. According to him, clause 8.2.3 of the agreement, which is a non -obstante clause, clearly stipulates that under no circumstance, the cumulative length of the project site which the respondent could not deliver to the petitioner within 15 days of the date of the agreement shall exceed 10% of the total length of the project. It is his submission that in response to the queries of the petitioner in the prebid meeting dated June 20, 2013, the respondent stated that the total available land with the respondent was 211.72 Hectares i.e. 92.6%. A performance guarantee for a total sum of Rs.20,92,50,000/ - was also furnished by the petitioner. He states that in terms of clause 19.2.1 of the agreement, the respondent had made an interest fee advance payment equal in amount to 10% of the contract price for mobilization expenses and for acquisition of equipment. The advance payment was made in three instalments of 2%, 3% and 5% of the contract price respectively i.e. Rs.5.58 Crores, Rs.8.37 Crores and Rs.13.95 Crores aggregating approximately Rs.27.9 Crores. He would also state that against the advance payment made by the respondent in terms of clause 19.2.2, the petitioner has given an irrevocable and unconditional guarantee from a Bank for an amount equivalent to 110% of such instalment paid by the respondent. According to him, the petitioners in all furnished four irrevocable and unconditional bank guarantees in favour of the respondent.