STATE OF RAJASTHAN Vs. SANWARIYA INFRASTRUCTURE

JUDGEMENT

(1.) State of Rajasthan and Public Works Department are in appeal under Sec. 37 of the Arbitration and Conciliation Act,1996 (for short 'the Act of 1996') against the order dtd. 9/10/2024 of the Commercial Court, Jaipur (for short 'the court') dismissing the objections filed u/s 34 of the Act of 1996.

(2.) The State Government issued tender notices on 8/8/2003 inviting bids for construction of Pali Bypass, Jodhpur-Sumerpur road on Build-Operate-Transfer (for brevity 'BOT') basis. The respondent was successful bidder and letter of acceptance (for short 'LOA') was issued on 19/2/2004. The concession period was of seventy months, out of which eighteen months were for construction. Concession agreement provided for handing over of project land within sixty days extendable to one hundred twenty days. In last week of July, 2004, the respondent handed over cheques for cost of land acquisition. On 18/10/2004 major portion of the land was handed over to the respondent. The construction work was started on 18/10/2004. The balance land was handed over on 23/3/2006. After completion of construction of Railway Over Bridge (for brevity 'ROB') on 29/4/2006, the respondent started collecting toll from 3/5/2006. The steering committee on 31/5/2006 extended concession period by three months and ten days. The steering committee in the meeting held on 24/7/2008 considered the grievance of the respondent that three months extension was not sufficient. The steering committee in meeting held on 4/8/2010 again recommended extension of concession period. The respondent was informed that concession period shall end on 17/8/2010. There was also dispute between the parties with regard to date of commencement of concession period. In the year 2010 the respondent filed an application u/s 9 of the Act of 1996. Vide order dtd. 13/8/2010, status quo was ordered to be maintained. The application was disposed of on 23/1/2012 with direction that toll collected by respondent upto 22/1/2012 shall be subject to the decision in arbitration. The respondent gave notice dtd. 17/9/2010 for appointment of the arbitrator. The application u/s 11 of the Act of 1996 filed in the year 2010 was allowed on 18/2/2014. The arbitration proceedings culminated in award dtd. 23/6/2019. The arbitrator held that commencement date of work shall be 23/3/2006 and allowed the respondent to retain toll collected upto 22/1/2012. The losses claimed for non-closure of the Level Railway Crossing (for brevity 'LRC') were accepted. The respondent was found entitled to receive a sum of Rs.50,28,27,944.00 and the amount included interest upto 31/3/2018. The payment was to be made within three months and on failure the respondent was entitled to interest @ 12% per annum. The counter claim of the appellant was dismissed. The objections filed by the appellant u/s 34 of the Act of 1996 were dismissed vide order dtd. 9/10/2024. Hence, the present appeal.

(3.) Learned counsel for the appellants argues that physical possession of major portion of the project site was handed over on 18/10/2004 and balance on 23/3/2006. The cause of action for the respondent for delay in handing over the physical possession of the project site accrued in the year 2006, the claim filed is time barred.