National Highway Authority Of … vs M/S Progressive Construction Ltd on 12 February, 2021


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Supreme Court of India

National Highway Authority Of … vs M/S Progressive Construction Ltd on 12 February, 2021

Author: Hon’Ble Ms. Malhotra

Bench: Hon’Ble Ms. Malhotra, Ajay Rastogi

                                  IN THE SUPREME COURT OF INDIA

                                  CIVIL APPELLATE JURISDICTION

                                   CIVIL APPEAL NO. 542 OF 2021
                            (Arising out of SLP (Civil) No. 10851 of 2020)



         NATIONAL HIGHWAYS AUTHORITY OF INDIA                          … APPELLANT


                                              VERSUS


         M/s. PROGRESSIVE CONSTRUCTION LTD.                          … RESPONDENT




                                                ORDER

INDU MALHOTRA, J.

Leave granted.

The present Appeal arises out of the Judgment passed under

Section 34 of the Arbitration and Conciliation Act, 1996 wherein the

Single Judge vide Order dated 10.04.2019 has substantially set aside

the Award dated 27.04.2016 passed by a three­member tribunal. It

has been observed that the arbitral tribunal has drawn incorrect

inferences from the documents on record, and has not considered vital
Signature Not Verified

Digitally signed by

and relevant evidence in reaching its conclusions. On this basis, a
JAGDISH KUMAR
Date: 2021.02.16
14:49:53 IST
Reason:

substantial number of claims and counter claims were rejected,

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granting liberty to the parties to re­agitate their claims, and counter

claim (a) afresh in accordance with law.

Aggrieved by the judgment of the Single Judge, cross appeals

were filed by both parties under Section 37 before the Division Bench.

The Division Bench vide the impugned interim Order dated 04.12.2019

directed that the Appeals be confined to the findings with respect to

claim nos. 1(i) and (ii); and counter claim (a).

The Appellant­NHAI filed the present Appeal to challenge the

interim Order dated 04.12.2019.

During the pendency of the present Appeal, the parties agreed to a

fresh adjudication of all the claims and counter claims made by the

parties before a Sole Arbitrator to be appointed by this Court.

We direct that the arbitral proceedings be conducted afresh by the

Indian Council of Arbitration, Federation House, Tansen Marg, New

Delhi­110001 in accordance with its Rules. The Indian Council of

Arbitration will have the entire record of the arbitral proceedings

collected from the previous arbitral tribunal.

Accordingly, with the consent of the Counsel for the parties, we

appoint Justice G. S. Singhvi, former Judge of this Court, as the Sole

Arbitrator, who will adjudicate all the claims and counter claims

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afresh. If the Sole Arbitrator requires the assistance of qualified

Engineer/s or Expert/s, he may appoint such person/s under Section

26 of the Arbitration and Conciliation Act, 1996. The Ld. Arbitrator is

free to fix his fees after consultation with the parties, which will be

borne equally by them.

The appointment of the Sole Arbitrator is subject to the

declarations made under Section 12 of the Arbitration and Conciliation

Act, 1996 (as amended) with respect to the independence and

impartiality of the arbitrator, and the ability to devote sufficient time to

complete the proceedings within the statutory period of 12 months

under Section 29A of the Act. Parties are directed to approach the

Indian Council of Arbitration within a period of 2 weeks to fix the date

of the arbitral proceedings.

A copy of the Appeal paper­book be provided by the Registry to

the Indian Council of Arbitration, to enable it to proceed with the

matter.

In view of the aforesaid directions, the Order dated 04.12.2019

passed by the Delhi High Court in FAO(OS)(Comm) 353/2019 is set

aside. The Appeals filed by both parties under Section 37 of the

Arbitration Act being FAO (OS) (Comm) 353 and 182 of 2019 pending

before the Delhi High Court have accordingly become infructuous.

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The present Appeal is allowed in the aforesaid terms. Pending

applications, if any, stand disposed of.

…………………………………J.

(INDU MALHOTRA)

…………………………………J.

(AJAY RASTOGI)

New Delhi,
February 12th, 2021

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