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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 29.09.2020
+ O.M.P. (COMM) 486/2020
NATIONAL HIGHWAYS AUTHORITY OF INDIA ..... Petitioner
Through Mr.Balendu Shekhar, Adv. with
Mr.Vipul Singh, Adv. & Mr.Rajkumar Maurya,
Adv.
versus
SAHAKAR GLOBAL LIMITED ..... Respondent
Through Mr.Neeraj Kishan Kaul, Sr. Adv. with
Mr.Rakesh Sinha, Adv., Mr.Pawan Kumar, Adv. &
Mr.Ramchandra Madan, Adv.
CORAM:
HON’BLE MS. JUSTICE REKHA PALLI
REKHA PALLI, J (ORAL)
I.A Nos.8712/2020 & 8715/2020
1. Allowed, subject to all just exceptions.
2. The application stands disposed of.
IA No.8714/2020
3. This is an application seeking condonation of delay in re-filing
the petition. In the light of the fact that the delay occasioned is only of
2 days, the application is allowed.
4. The application stands disposed of.
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O.M.P. (COMM) No.486/2020 & IA No.8713/2020
5. This petition under Section 34 of the Arbitration and
Conciliation Act 1996 (hereinafter referred to as ‘the Act’), filed by
National Highway Authority of India (NHAI), which was the
respondent in arbitration, assails the award dated 20.11.2019 passed
by the sole arbitrator. Under the impugned award, the learned
Arbitrator has held the petitioner liable to pay the respondent a sum of
INR 1,40,60,784 along with future interest @ 9% per annum by way
of compensation on account of inter alia the loss in revenue triggered
by reduced toll collections once GST was implemented w.e.f.
01.07.2017.
6. The facts in brief are that on 23.05.2017, the petitioner invited
bids from entities interested in undertaking toll collection from users
of the Vaghasia Fee Plaza for the section from KM 183.50 to 254.00
(Bamanbore-Garanore section) of NH-8A in the state of Gujrat. In its
Request for Participation (RFP), the petitioner had set out that the
potential toll collection on this stretch of the highway would be INR
39.32 crores. The respondent’s bid of INR 41,49,00,000 was accepted
by the petitioner on 21.06.2017 by way of a letter of acceptance
(hereinafter referred to as ‘LoA’) and, in accordance with the
estimated annual potential collection (APC), the respondent submitted
the requisite security of INR 39,32,000 by way of a bank guarantee of
INR 3,45,75,000 valid for 14 months and a bank draft of INR
3,45,75,000, both dated 28.06.2017.
7. The parties entered into a contract agreement on 30.06.2017
whereunder the toll plaza was to become operational w.e.f. 02.07.2017
at 0800 hours and remain entrusted to the respondent for a period of
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one year. Accordingly, the project site was duly handed over to the
respondent on 02.07.2017. However, two days prior to the execution
of the agreement, on 28.06.2017, the Central Government had issued a
notification bearing no. 9/2017-Central Tax stating that the Central
Goods and Service Tax Act (hereinafter referred to as the ‘GST Act’)
would come into effect from 01.07.2017. The GST Act changed the
earlier law with regard to levy and collection of excise duty etc. on
goods and brought into force a unified code for Goods and Services
Tax (GST) w.e.f. 01.07.2017. Although initially, the Government had
set the date for implementation of GST as 01.04.2017, this was
suspended and the code was eventually implemented w.e.f.
01.07.2017.
8. The respondent, after taking over control of the Vaghasia Fee
Plaza on 02.07.2017, realized that the petitioner’s estimated
projections had failed to account for the adverse consequences of a
change in the tax regime. Evidently, there was a heavy fall in the
traffic volume of the commercial transport vehicles and user fee
collection on the highway owing to the implementation of GST. The
reduction in toll collections rendered the respondent unable to deposit
weekly remittances on time, and it tried to plead its case with the
petitioner in order to revisit their agreement pertaining to toll
collections or seek grant of leniency. In fact, as early as on
05.07.2017, the respondent issued a notice in terms of clause
25(c)(i)(1) of the contract agreement informing the petitioner about
this shortfall in traffic volume and toll collection due to
implementation of GST and requested the petitioner to conduct a three
day traffic survey on the Plaza to assess the actual fall in traffic
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volume for itself. The respondent even offered to bear the costs of the
traffic survey. Subsequently, on 10.07.2017, the respondent, citing
implementation of GST as a Force Majeure event covered under
clause 25(b)(v) of the contract agreement, submitted a statement of the
losses suffered by it until 09.07.2017.
9. The petitioner, in turn, vide its response dated 11.07.2017,
refused to accept the petitioner’s claims and denied that the
implementation of GST was a Force Majeure event. Rather, the
petitioner claimed that since the GST was originally proposed to be
implemented w.e.f. 01.04.2017, instead of 01.07.2017, much before
execution of the contract agreement on 30.06.2017, the fact of
implementation of GST was always in the respondent’s knowledge. In
turn, vide its letter dated 19.07.2017, the petitioner claimed that since
the shortfall in toll collection was a business risk associated with the
work, the respondents was required to forthwith deposit the
outstanding toll collections with penal interest. The petitioner also
threatened to terminate the contract agreement with the respondent
and recover its outstanding dues by invoking the performance security
deposited on 28.06.2017. As a result, the respondent was compelled to
deposit an amount of INR 1,59,13,974 with the petitioner by way of
toll collection deposit.
10. On 27.10.2017, the respondent wrote to the petitioner, through
its Project Director, PIU-Rajkot, requesting it to not take any hasty
decision against the respondent on the ground of outstanding deposit
of toll collection. When the petitioner failed to reply, the respondent
invoked arbitration by raising the following claims before the learned
arbitrator:
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“(i) Force Majeure claim under clause 25 (b)9v) r/w clause
25 (c)(ii)(5) on account of loss due to change in law by
introduction of GST (loss period 02.07.2017 to
10.09.2017- Rs. 40,16,382
(ii) Claim on account of operating expenses @ 5% of
remittance payable for the period 02.07.2017 to
10.09.2017- Rs. 40,16,382
(iii) Claim on account of floods for over lapping period
21.07.2017 to 31.07.2017- Rs. 14,17,625/-
(iv) TCS @ 2% Rs. 16,06,553
(v) Total- Rs. 2,02,51,788”
11. Before the learned arbitrator, the petitioner adopted several
grounds, the primary one being that since (i) the GST was originally
slated for implementation w.e.f. 01.04.2017 and (ii) the agreement
between the parties was signed on 30.06.2017 with a stipulated start
date of 02.07.2017, by the time the GST was actually implemented on
01.07.2017, the respondent was aware of its advent and could have
refrained from executing the agreement between them. However, while
the arbitration was pending, the petitioner issued a circular on
16.03.2018 accepting that the GST promulgation w.e.f. 01.07.2017
shall be considered as a ‘change in law’ for the purpose of clause
25(b)(v) of the contract agreement executed with its contractors.
12. After a careful consideration of the pleadings before it, the
learned Arbitrator, by way of its exhaustive findings, rejected the
petitioner’s contentions and held that notwithstanding the respondent’s
prior knowledge regarding the implementation of the GST Act
originally scheduled to begin from 01.04.2017, which was
subsequently suspended, it could not possibly have known the next
scheduled date. Even the petitioner’s argument that the respondent’s
act of executing the contract agreement on 30.06.2017, despite being
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aware of the implementation of the GST w.e.f. 01.07.2017, disentitled
it from claiming Force Majeure was rejected. The learned Arbitrator
reasoned that the respondent could not possibly withdraw from the
contract agreement considering the fact that this would have triggered
Clause 33 of the contract agreement which would have entitled the
petitioner to invoke the security deposited by the respondent on
28.06.2017. However, the arbitrator held that the implementation of
the GST was indeed a Force Majeure event in the light of the
petitioner’s circular dated 16.03.2018 whereunder it accepted GST
w.e.f. 01.07.2017 as a ‘change in law’ falling under the ambit of force
majeure as envisaged in the contract agreement. Aggrieved by these
findings, the petitioner has filed the present petition.
13. Assailing the award, Mr Balendu Shekhar, learned counsel for
the petitioner has primarily reiterated the submissions made before the
learned arbitrator. He submits that the learned arbitrator, by holding
that the introduction of GST fell within the ambit of clause 25(b)(v) of
the contract agreement and was a force majeure event, failed to
appreciate that the contract was executed between the parties only on
30.06.2017, by which time the Government of India had already
notified that GST would be implemented w.e.f. 01.07.2017. Thus, the
respondent was well aware of the legal position which was to prevail
on 01.07.2017 and the consequences thereof at the time of signing the
contract. The respondent is now estopped from claiming ignorance of
the possible consequences of GST being implemented, upon the public
infrastructure of the country. He further submits that learned
Arbitrator has also erred in holding that the implementation of GST
qualifies as a ‘change in law’. While not disputing the petitioner’s
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circular dated 16.03.2018 and/or the fact that the circular states that
the imposition of GST does appear to be a change in Law, he submits
that the learned Arbtitrator failed to appreciate an important caveat in
the subsequent portion of this circular – that whether the introduction
of GST would qualify as a Force Majeure event or not, would be
considered in the facts and circumstances of each case. He, thus,
submits that the petitioner’s circular has been misinterpreted by the
learned Arbitrator to have been broadly applicable to all contracts
which the petitioner is a party to. He, therefore, prays that the
impugned award arises out of a misinterpretation of the circular dated
16.03.2018 and ought to be set aside.
14. On the other hand Mr. Neeraj Kishan Kaul, learned senior
counsel for the respondent, who appears on advance notice, supports
the impugned award and submits that the learned arbitrator has, after
due appreciation of the evidence led by the parties, come to a
categorical conclusion that the introduction of GST w.e.f 01.07.2017
could not have been envisaged by the parties at the time of submission
of the bid on 13.06.2017. He further submits that once the petitioner
itself declared, by way of its public circular dated 16.03.2018,
prescribed the implementation of GST as an event that would qualify
as a ‘force majeure’ event, it could not turn around and hold the
respondent to a different standard for evoking the force majeure
clause. Even if the circular came with a caveat that the application of
force majeure clause on account of implementation of GST would be
decided on a case by case basis, then the fact that the learned arbitrator
has already appreciated the evidence on record to conclude that force
majeure clause is applicable in the present case, resolves the
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petitioner’s complaint. Therefore, the learned arbitrator has rightly
qualified the government’s decision to implement GST as a Force
Majeure event in terms of clause 25(b)(v) of the contract agreement.
He further submits that once the learned arbitrator has perused the
material placed on record and confirmed that there was a shortfall in
traffic on the Bamanbore-Garanore section of NH-8A for the period
between 02.07.2017 and 10.09.2017, this Court cannot be asked to re-
examine this issue at this stage in a petition under Section 34 of the
Act. For these reasons, he submits that there is no infirmity in the
impugned award and prays for dismissal of the present petition.
15. Before I deal with the rival contentions of the parties, it may be
useful to note the limited scope of interference by this Court while
dealing with a petition under Section 34 of the Act. In this regard,
reference may be made to a recent decision in Hindustan
Construction Company Limited & Ors. Vs. Union of India & Ors.
2019 (16) SCALE 823 wherein the Supreme Court reiterated the scope
and grounds of judicial interference in an arbitral award under Section
34 of the Act; the relevant paragraph reads as under:
“9. Further, this Court has repeatedly held that an application
Under Section 34 of the Arbitration Act, 1996 is a summary
proceeding not in the nature of a regular suit - see Canara
Nidhi Ltd. v. M. Shashikala. As a result, a court reviewing an
arbitral award Under Section 34 does not sit in appeal over the
award, and if the view taken by the arbitrator is possible, no
interference is called for - see Associated Construction v.
Pawanhans Helicopters Ltd. (2008) 16 SCC 128 at paragraph
17.
50. Also, as has been held in the recent decision Ssangyong
Engineering & Construction Co. Ltd. v. NHAI 2019 SCC Online
677, after the 2015 Amendment Act, this Court cannot interfere
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with an arbitral award on merits (see paragraph 28 and 76
therein)….”
16. In the instant case, the petitioner’s two primary reasons for
challenging the award are that, firstly, the respondent had always been
aware of the decision of the Government of India to implement GST
regime in the country and could not, therefore, claim any damages on
the ground that the advent of the new tax regime reduced highway
usage and consequent toll collections; the second being that the
petitioner had never admitted, in its circular dated 16.03.2018, that the
implementation of GST would qualify as a Force Majeure event in all
cases and, therefore, the Arbitrator’s reliance on the same to confirm
that the respondent was entitled to invoke the ‘force majeure clause’
was misplaced.
17. To begin with, it is a general truth that once the Government of
India had proposed implementing the GST all over the country, the
respondent was aware of its advent, but I find the petitioner’s
deduction that the respondent’s awareness of the regime implied that it
had knowledge of the date on which it would be implemented, on the
date of submission of the bid, entirely unsupported and presumptuous.
It is far-fetched to argue that the respondent’s awareness of the
existence of a policy would equip it with the ability to predict the date
on which the said policy would be implemented. The learned
Arbitrator has rightly held that once the earlier date of 01.04.2017 was
postponed by the Government of India, the next date of
implementation was not known or could not be speculated by
anybody. The petitioner’s assertion that the respondent ought to have
refrained from executing the contract agreement if it was unwilling to
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bear the consequences of the GST regime also proceeds on the
presumption that the respondent had the ability to predict the adverse
impact of this decision on consumer behavior with respect to
utilization of national highways. This line of argument also fails to
account for the fact that by 28.06.2017, the day when the Government
of India announced its intention to implement this regime, the parties
were already bound contractually owing to the LoA issued by the
petitioner on 21.06.2017, which aspect had been elucidated by the
learned Arbitrator. This implied that on 30.06.2017, had the
respondent decided to refrain from executing the agreement based on
the notification dated 28.06.2017 issued by the Government of India,
it would have had to forfeit the securities it had furnished in favour of
the petitioner for a sum of INR 39,32,000 on 28.06.2017. Thus, I find
no merit in the petitioner’s contention that the respondent’s consent to
execute the contract agreement on 30.06.2017 ought to be construed as
an acquiescence on its part to bear the consequences of the
implementation of GST. On this aspect, I find that the learned
Arbitrator has made extensive observations in paragraph 4.3.3 of the
award, and completely agree with the view taken by him which reads
as follows:
“4.3.3
There is no doubt that Claimant was aware about the likely
implementation of GST all over the country. The earlier date of
01.04.2017 was postponed by Government of India (GOI) and next
date of implementation was not known or could be speculated by
anybody. GOI brought into force Central Goods and Services Tax
Act, 2017 w.e.f. 01.07.2017 vide notification no.9/2017-Central Tax
dated 28.06.2017 issued u/s 1 (3) of the Act (C-2/CD-1 ). As stated in
para 4.3.2 supra, the quoted price of amount of Rs.41,49;00,000/- in
the bid as on 13.06.2017, was without knowing the date of·
implementation of GST. However the bidder/claimant was very much
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aware about the clauses of the agreement, which contained Force
Majeure clause. The respondent's argument in para 4.2.13 supra
that claimant knew on 28.06.2017/ 30.06.2017 about the order of
GST and went ahead with the agreement and could back out from the
agreement is not found reasonable and lawful on account of the facts
stated in 2nd para of 4.-3.3 and the 'following additional facts :-
(i) Implications of GST cannot be incorporated/ assessed by' any
individual/ probable bidders in the quoted rates as on 13.06.2017
since the date of implementation of GST was not known to any body
in the country.
(ii) Issue of LOA completes the agreement as per Indian Contract
Act 1872 Respondent had issued LOA on the offer of claimant and
therefore accepted the offer/bid. Claimant cannot back out after
issue of LOA. An agreement is in operation immediately thereof. All
other terms of contract will get attracted viz. Clause 33 & 35(5)
thereafter if the Claimant backs out, i.e forfeiting of performance
security etc.
(iii)The implementation of GST was to make the transportation more
smooth and hassle free, meaning thereby an increase in traffic
volume. No bidder including the claimant was in a position to know
the date of implementation of GST and more so the effects of GST on
transportation. Therefore Claimant would also not be in a position
to assess/ forecast the immediate effects of GST on the business risk
as it was covered under Force Majeure clause.
(iv) Notwithstanding the contents of para (ii) supra, claimant having
·deposited the performance security and given bank guarantee, was
not in a position to withdraw the offer as it would have attracted the
clause 33 wherein the respondent can forfeit the performance
security and adjust any dues or claim damages without prejudice to
its other rights.
(v) Claimant had quoted the tender after going through; the
provisions of the ·contract. Claimant was aware about the provisions
of " Force Majeure Clause" in the contract. Provisions of Clause
25(b) & (c)(1).etc. are being quoted below 25(b) Force Majeure
Event:
Except as stated in Clause (a) above Force majeure Event means an
event or circumstances or a combination of events and
circumstances referred to in this clause which are beyond the
reasonable control of the Party or Parties to this Contract and which
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party could not have prevented or reasonably overcome with the
exercise of its reasonable skill and care in relation to performance of
its obligations pursuant to this Contract and which are of the nature,
without limitation of those described below:
(i) .....
(ii) to (iv) ..... .
(v) Any change in law which has a material adverse. effect on the
obligation of the parties hereto
(vi).. ~.
(vii) Suspension of traffic on the said section of Nati9nai Highway/
said bridge or any part thereof, exceeding 15(Fifteen) days at a
stretch
(viii) .... 25(c) (i) 1 .. If a party claims relief on account of a Force
Majeure event, then the Party claiming to be affected by the Force
Majeure event shall, as soon as reasonably practicable and in any
event within 7 days_,_ of becoming aware of the Force Majeure
event, give notice giving details of the effects of such Force Majeure
on the Party's obligations under this contract to the other Party in
writing,including the dates of commencement· and actual/ likely date
of · cessation of such Force Majeure and its effects, with necessary
'supporting documents and data.”
18. Next I deal with the question as to whether the implementation
of the GST regime qualified as ‘any change in law which has a
material adverse effect on the obligation of the parties hereto.’ as
envisaged in the Force Majeure Clause, i.e. Clause 25(b) of the
contract agreement. Evidently, implementation of GST vide
Notification No.9/2017 - Central Tax dated 28.06.2017 ushered a
change in the country’s sales tax regime and constitutes a ‘a change in
law’, but whether it invites the application of Clause 25(b) can be
concluded on assessing the impact of this change on the respondent’s
ability to discharge its obligations under the contract agreement. The
respondent claims that the change in sales tax regime sent rippling
waves of shock across the country’s markets, and severely impacted
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the transport and sales of goods across the country, adversely affected
inter-state and intra-state movement of goods, which implied that the
highway was not being used optimally or at the level anticipated by
the petitioner while drawing up its toll collection projections. The
respondent observed the then-prevailing traffic volume statistics and
immediately sent notices to the petitioner on 05.07.2017 and
10.07.2017, which have also been duly noted by the learned Arbitrator
in its award. Thus, the respondent gave the petitioner early notice and
regular updates regarding the downward dip of highway traffic and
toll collections at that point of time. The respondent even requested
the petitioner to carry out its own traffic assessment to verify the
respondent’s claims, but the petitioner refused. It is against this
backdrop that the petitioner issued the circular dated 16.03.2018,
specifically for the benefit of its toll collection contractors, which
stipulated that while the implementation of the GST Act constituted a
‘change in law’, but whether this change invited application of the
‘Force Majeure’ clause in a contract would be determined in the facts
of each case by the respondent’s representatives. It may be useful to
refer to the contents of the petitioner’s circular dated 16.03.2018 in
extenso:
“NHAI/13013/CO/17-18/CB/GST/114535 Date: 16.03.2018
To
All ROs.
Subject: Relief to User fee Collection Contractors on Public Funded
Projects at the toll plazas on NHs on account of implementation of
GST.
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Sir,
Various representation have been received from various Toll
Contractors at Public Funded plazas regarding loss in traffic and its
impact on toll revenue collection, if any, due to implementation of
Goods and Services Tax (GST) by Government of India w.e.f.
01.07.2017. AICUP and some other fee collecttion agencies have
requested to consider their representation under Force Majeure Clause
25 (b) (v) of the Contract Agreement:
“Any change in law which has a material adverse effect on the
obligation of the parties hereto.”
2. In this regard, although promulgation of GST w.e.f. 01.07.2017
appears to be a change in law, however, its material effect could not be
proved as the claims submitted by AICUF regarding reduction in traffic
of commercial vehicles after implementation of GST are of generic
nature without any project specific inputs. Further, their claims
regarding reduction in tollable traffic due to implementation of GST
had only limited/short term effect on toll revenue.
3. Accordingly, the Competent Authority has decided that such cases
may be dealt by concerned RO on case to case basis as per applicable
contract provisions after due verifications of facts regarding reduction
in traffic due to implementation of GST w.e.f. 01.07.2017 with
delegated powers of ROs.
Yours faithfully
****
General Manager (CO)”
19. By relying on this circular and the remaining evidence on
record, the learned Arbitrator decided the issue of applicability of
‘force majeure’ clause in the following manner:
“Notification is therefore a change in law as per Constitution of
India. It can therefore be concluded that by issuing a notification of
GST on 28.06.2017 by Government of India, the provisions of Force
Majeure Clause would become applicable in the present agreement
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besides, as pointed out by claimant in para 4.1.17 & 4.1.18 supra.
Respondent's headquarter had issued a ·circular dated 16.03.2018
(C-28/CD-1) accepting GST w.e.f. 01.07.20'17 as a change in law.
Further instructions were also issued to consider claims regarding
reduction in traffic. RO's of respondent were to decide on case to
case basis as applicable after due verification of facts & agreement
provisions regarding reduction in traffic.Contention of Respondent
regarding non-applicability of Force Majeure Clause is the present
agreement is therefore incorrect as stated in paras 4.3.2 to 4.3.4
supra and per existing laws and terms of the agreement.”
20. Evidently, from the material placed on record, the learned
Arbitrator found merit in the respondent’s claims regarding reduction
in traffic and even on this aspect, observed as under in Paragraph
4.3.7 of the impugned award:
“4.3.7
Having decided/adjudicated in para ·4.3.5 supra, that the GST
·notification is applicable under Force Majeure in the present
agreement, it is desirable to examine the quantification of the claim
due to reduction in traffic volume on account of GST. Let me examine
the volume of traffic stated by claimant & respondent as below:
a) Respondent in para 4.2.1(vii) & 4.2.3 has compared the volume of
traffic of May, June and July 2017 and as per respondent's record, it
is revealed· as 1,00,679, 98,115 and 1,31,860 vehicles respectively. As
per respondent, the traffic volume of July 2017, after implementation
of GST, has increased to 1,31,860 vehicles.
b) Claimant in para 4.1.22 supra has however stated that the
respondent's above statement is incorrect since the Respondent has
placed on record only tollable traffic and no exempted category of
vehicles are mentioned. The volume of traffic for July 2017 submitted
by the Claimant includes the exempted· category of vehicles with the
tollable traffic. Respondent has therefore portrayed a completely
misleading picture. In fact, during July 2017, 42,895 exempted
category (non-tollable) vehicles passed through·· Vaghasia User Fee
Plaza, resultantly the tollable· traffic remained at 88,965 only.
Accordingly the traffic volume in July 2017 clearly came down in July
2017 to 88,965 (paragraph 6/CD-2 and Comparative Table in
Annexure C-29/CD-2).
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It is pertinent to note that the Monthly User Fee Statement dated 6
June 2017 for May 2017 (01.05.2017 to 31.05.2017) mentions the
number of vehicles as 1,00,679 and the Monthly User Fee Statement
dated 5 July 2017 for June ·2017 (01.06.2017 to 31.06.2017) mentions
the number of vehicles as 98,115 at Vaghasia Toll Fee Plaza, as
claimed to be submitted by M/s Anoj Kumar Agarwal. This does not
indicate the exempted category ·vehicles. Whereas, the Monthly User
Fee Statement submitted by Claimant as per Clause 23(d) r/w
Schedule V, by way of its letter dated 5 August 2017 (page
299~301/SOC) for July 2017 (02.07.2017 08:00 hrs to 31.07.2017
24:00 hrs) states the 'total number of vehicles as 1,31,860 includes
tollable and exempted category vehicles. Therefore, it is submitted
that on the basis of the aforesaid numbers the Respondent had
projected a· misleading picture that there was no fall in the flow of
traffic. However, in the months of May 2017 the traffic count was
1,00,679 and in June 2017 the traffic count was 98,115”
21. In the light of these comprehensive findings recorded by the
learned Arbitrator, I find no merit in the petitioner’s contention that
the implementation of GST could not be construed as a ‘change in
law’ to qualify as a Force Majeure event in the respondent’s case. In
the first place, on 16.03.2018, once the petitioner released a public
circular deeming the implementation of GST as a ‘change in law’
qualifying as a force majeure event, I see no reason to deprive the
respondent of the benefit of this declaration. Secondly, even if the
petitioner wished to rebut the respondent’s contentions on this
ground, it was the petitioner’s duty to provide the learned Arbitrator
with a transparent and complete picture of the flow of traffic and toll
collections arising therefrom, instead of providing data containing
inflated figures owing to exclusion of non-tollable vehicles. A perusal
of the findings extracted hereinabove show that the petitioner’s sole
caveat in the circular that the toll contractors had been unable to prove
their claims, stood resolved when the learned arbitrator not only
delved into the specifics of the respondent’s claims, but also
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meticulously combed through the specific project inputs provided by
the respondent to conclude that it had suffered material losses in toll
revenue owing to the implementation of GST. The learned Arbitrator
conducted a thorough examination of the data pertaining to traffic
volume and toll collections placed before it and arrived upon a sound
decision to extend the benefit of the petitioner’s circular dated
16.03.2018 to the contract agreement executed between the parties on
30.06.2017, for the purpose of upholding the invocation of Clause 25
of the contract agreement, i.e., Force Majeure Clause. There is, thus,
no infirmity in the award dated 20.11.2019 even on this ground.
22. In the light of the aforesaid discussion, I find absolutely no
reason to interfere with the well-considered findings of the learned
Arbitrator. In fact I am of the view that the conclusion of the learned
Arbitrator is, in the facts of the present case, the only possible one in
law.
23. For the aforesaid reasons, there is absolutely no ground made
out to interfere with the impugned arbitral award passed by the learned
Arbitrator warranting the exercise of the limited jurisdiction of this
Court under Section 34 of the Act.
24. The petition, being meritless, is dismissed.
REKHA PALLI, J
SEPTEMBER 29, 2020
aa
O.M.P. (COMM) 486/2020 Page 17 of 17
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