Case Note & Summary
These appeals arise out of a common order of a single Judge of the High Court dated 12 February 2015 in three arbitration petitions challenging an arbitral award. The underlying dispute concerns a Build-Operate-Transfer contract for construction of the Mumbra Bypass on the Mumbai-Pune Road. The contractor, Atlanta Limited, sought arbitration raising several claims, and an Arbitral Tribunal comprising two former High Court judges and one former Secretary of the State Government passed an award. The State of Maharashtra filed petitions to challenge the award, and Atlanta Limited also filed a petition. The single Judge dismissed the State's petition (Arbitration Petition (L) No.1541 of 2014), partly allowed another petition filed by the State (Arbitration Petition (L) No.1542 of 2014) setting aside three claims aggregating specified amounts, and dismissed Atlanta's petition (Arbitration Petition No.1158 of 2012). The State preferred Appeal No.145 of 2017 being aggrieved by this order, and Atlanta filed separate appeals. The High Court heard the appeals together, with the main arguments advanced in the State's appeal. The State contended before the Division Bench that a critical Office Note dated 21 December 2009, which considered delays and proposed extension of the toll collection period, was not fully produced before the Arbitral Tribunal by Atlanta and that the single Judge failed to appreciate the complete document. The State argued that the Office Note, combined with a subsequent notification extending toll collection, had a material bearing on the claims. The judgment records the factual background of the contract, the supplementary agreement, the delays, and the correspondence, but the provided excerpt of the judgment ends mid-argument and does not contain the final ruling or ratio. Therefore, the final decision of the Division Bench is not discernible from the available text.
Issue of Consideration
Law Points
- Arbitration clause 3.4.17 of General Conditions of Contract invoked for dispute resolution
- Build Operate Transfer contract governed by concession period and toll collection rights
Case Details
2018 LawText (BOM) (05) 34
Appeal No.378 of 2016, Appeal No.395 of 2016, Appeal No.145 of 2017, Appeal No.143 of 2017 with Notices of Motion
S.C. Dharmadhikari, Prakash D. Naik
Mr. Pravin Samdani, Mr. N.V. Walavalkar, Mr. M.M. Vashi, Ms. Aparna Deokar, Mr. D.B. Khaire, Mr. D.P. Adsule, Mr. Yash Momaya
State of Maharashtra (Appeal No.145 of 2017); Atlanta Limited (Appeal No.378 of 2016 and Appeal No.395 of 2016)
Atlanta Limited (in State appeals); State of Maharashtra (in Atlanta appeals)
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Nature of Litigation
Appeals under Section 37 of the Arbitration and Conciliation Act, 1996 against a common order of a single Judge deciding cross petitions challenging an arbitral award.
Filing Reason
The State of Maharashtra was aggrieved by the single Judge's order dismissing its petition and partly allowing another petition setting aside parts of the award; Atlanta filed appeals for reasons not detailed.
Previous Decisions
Arbitral award dated not mentioned; single Judge's common order dated 2015-02-12 in Arbitration Petition No.1158/2012, Arbitration Petition (L) No.1541/2014 and Arbitration Petition (L) No.1542/2014.
Submissions/Arguments
The State argued that an Office Note dated 21 December 2009, which proposed extension of the toll collection period to compensate for delays, was not fully produced before the Arbitral Tribunal; only three pages in Marathi were produced, and the English translation was incomplete. The State contended that this Office Note and the subsequent notification extending toll collection were crucial to the claims and were suppressed.
Judgment Excerpts
Accordingly, Arbitration Petition (L) No. 1542 of 2014 (Miscellaneous Application No. 229 of 2012) is partly allowed by setting aside the award in respect of the claims mentioned at Item Nos.(B), (D) and (E) in paragraph 10 above in the sum of Rs.4,94,27,000/-, Rs.8,38,61,545/- and Rs.1,96,18,000/-, respectively. The rest of the Award for the sum of Rs.43,30,25,000/- together with interest and costs awarded is confirmed.
An Award was made by the Arbitral Tribunal comprising of two former Judges of this court, one of whom was even a former Chief Justice of the Jammu & Kashmir High Court and one a former Secretary in the Public Works Department of the Government of Maharashtra.
the respondent was awarded a contract for the work of construction of Mumbai Bypass of Mumbai Pune Road National Highway No.4 from kilometers 133/800 to kilometers 138/200 in Taluka and District Thane.
On 11.05.2005, Supplemental Agreement to the said Contract was executed by and between the Claimant and the Respondent.
this Office Note acknowledged that the delay was on account of several factors, but particularly concerning encroachment, acquisition of private land and the work of railway flyover bridge.
a complete copy of this Office Note was not produced before the Arbitral Tribunal by the Claimant and it produced only three pages of the Marathi version of this office Note.
Procedural History
In October 1998, the State invited bids for the BOT project. Atlanta submitted bid on 12 April 1999. Acceptance letter dated 26 May 2000. Formal agreement executed on 12 July 2000; work order issued on 18 August 2000. Construction period originally two years, later extended. Supplemental agreement dated 11 May 2005 increased scope and concession period. Atlanta raised claims in 2007. Arbitral Tribunal constituted, award passed. Atlanta filed Arbitration Petition No.1158 of 2012; State filed petitions. Single Judge delivered common order on 12 February 2015, dismissing some petitions and partly allowing one. Cross appeals filed in High Court. Division Bench heard appeals and reserved judgment on 18 November 2017; pronounced on 4 May 2018.
