THE CHALLENGE

1) By this Petition filed under Section 34 of the Arbitration and Conciliation Act, 1996 (Arbitration Act), Petitioner has challenged majority Award delivered by the three-member Arbitral Tribunal on 29 August 2023. The majority Award has allowed claims of the Respondents in the sum of about Rs. 496.48 crores along with interest. The Award directs Petitioner to pay to the Respondent Rs. 35 crores towards deductions made in the tranches of Viability Gap Fund alongwith interest. The Award directs Petitioner to pay to the Respondent amount of Rs. 13,16,00,000/- towards compensation for additional cost incurred on account of payment of rent for the land at Wadala together with interest. Petitioner is further directed to pay compensation of Rs.30,48,00,000/- towards construction of steel bridge instead of concrete bridge at Andheri Station alongwith interest. The Petitioner is further directed to pay to the Respondent amount of Rs.411,70,21,968/- towards increase in the cost of the Project. The Arbitral Award also holds Respondent entitled to extension of time for completion of Project upto 7 June 2011. The award grants pendent lite interest, post award interest, as well as costs of arbitration in favour of the Respondent. All counterclaims of the Petitioner have been rejected in the majority Award.

2) A separate dissenting Award has been delivered by the learned co-arbitrator on 29 August 2023 rejecting all claims of the Respondent with a direction to the Respondent to pay sum of Rs. 1 crore towards costs of arbitration to the Petitioner. The counterclaims of the Respondent have been rejected in the dissenting Award.

3) The disputes and differences between the parties arose out of Concession Agreement (CA) dated 7 March 2007 executed for setting up of Mass Rapid Transit System (MRTS) alongwith Versova-Andheri- Ghatkopar Corridor (VAG Corridor) which was the first Metro Line in Mumbai (Metro-1). The disputes were referred to three member Arbitral Tribunal comprising of Justice Shivaraj V. Patil, former Judge, Supreme Court of India as the Presiding Arbitrator, Justice B.P. Jeevan Reddy, former Judge, Supreme Court of India and Justice Gyansudha Misra, former Judge, Supreme Court of India as co-arbitrators. The majority award is delivered by the Presiding Arbitrator, Justice Shivraj V. Patil and Co-Arbitrator- Justice Gyansudha Misra. The dissenting Award has been given by the learned Co-Arbitrator- Justice B.P. Jeevan Reddy. Petitioner seeks invalidation of the majority Award by the present Petition filed under Section 34 of the Arbitration Act.

FACTS

4) On 19 August 2004, Government of Maharashtra sanctioned implementation of rail based MRTS along Versova-Andheri-Ghatkopar Corridor (Metro Project), to be implemented on Build, Own, Operate and Transfer (BOOT) Model. Petitioner-Mumbai Metropolitan Region Development Authority (MMRDA) is a statutory corporation established under the Mumbai Metropolitan Regional Development Authority Act, 1974 and it was appointed as the Project Implementation Agency for the Metro Project. Petitioner-MMRDA invited Requests for Proposal. On 21 August 2004, a consortium consisting of Reliance Infrastructure Ltd and Veolia Transport S.A. (consortium) submitted its bid on 10 January 2006 for the Metro Project including its technical proposal. As per the financial bid, the consortium indicated expenditure for implementation of the project at Rs.2356 crores, out of which MMRDA was to bear capital contribution of Rs.1351 crores which was indicated as VGF. After negotiations, the revised bid was submitted by consortium on 10 May 2006 by reducing the demand for MMRDA’s VGF to Rs.650 crores. The revised offer was accepted by MMRDA. By Resolution dated 14 June 2006, Government of Maharashtra sanctioned implementation of the project at total cost of Rs.2356 crores. The Resolution contemplated setting up of Special Purpose Vehicle (SPV) for implementing the project in which the MMRDA was to be the shareholder to the extent of 26% equity on behalf of Government of Maharashtra. MMRDA issued Letter of Intent (LOI) to the consortium on 20 June 2006.

5) MMRDA and consortium of Reliance Infrastructure Ltd. and Veolia Transport S.A. incorporated Mumbai Metro One Private Limited (MMOPL) as the SPV for implementation of Metro-1 project. In the SPV of MMOPL, Reliance Infrastructure Ltd. held 69% equity share capital, Veolia Transport S.A. held 5% equity share capital and MMRDA held 26% of equity share capital.

6) On incorporation of MMOPL, Petitioner-MMRDA entered into Concession Agreement dated 7 March 2007 with MMOPL which contemplated concession period as 35 years from 7 March 2007 till 6 March 2042 including construction period not exceeding 5 years, unless otherwise extended. The scope of work and obligations of MMOPL included designing, constructing, operating, maintaining, owning and transferring the MRTS. The obligations of MMRDA included grant of access to MMOPL to the site including Right of Way (ROW), leasing land for Car Depot, providing electric sub-stations and access to stations and land temporarily for construction of elevated track way, station buildings and staircases as envisaged under the Concession Agreement. As per Schedule-A to the Concession Agreement, MMRDA was to provide access to site, free from encumbrances in six identified stretches of a total length of 11.332 Kms. along the VAG Corridor. MMRDA was also to provide 13 Hectares of land at Versova (D.N. Nagar) within six months for construction of Car Depot, which was to be used as Casting Yard during construction phase. Under the Concession Agreement, MMRDA was to provide VGF of Rs. 650 crores. Concession Agreement also contemplated appointment of Independent Engineer (IE) for overseeing the implementation of the Project. MMRDA accordingly appointed Louis Berger Group Inc alongwith RITES Ltd. as Independent Engineer.

7) According to the Petitioner, the land envisaged for setting up of Car Shed/Casting Yard at D.N. Nagar, Versova was embroiled in litigation. Before execution of Concession Agreement, MMOPL had proposed to MMRDA that a plot of land at Wadala admeasuring about 60,000 sq.mtrs be permitted to be used for setting up Casting Yard. After execution of Concession Agreement on 7 March 2007, MMRDA allotted land admeasuring 60,000 sq.mtrs at Wadala in terms of Allotment Letter dated 25 April 2007 @ Rs.4.85 per sq.mtr. per day upto December 2007 and thereafter @ Rs.5.35 per sq.mtr. per day from January 2008 to December 2008. MMOPL objected to the rates. Later, in a meeting with the Chief Minister, it was agreed that the rent in respect of the land at Wadala would be average of commercial and concessional rate. MMOPL took physical possession of land at Wadala on 18 January 2008 for construction of casting yard.

8) A segment of Metro works in Andheri was to cross the Western Railway line, on account of which MMOPL was required to obtain necessary approval from Western Railways and the Western Railway gave in-principle approval to MMOPL for construction of a segmental concrete bridge at Andheri on 30 October 2007.

9) Though the Concession Agreement was entered into on 7 March 2007, it appears that physical work of the Project commenced only on 8 February 2008. MMRDA and MMOPL entered into Supplemental Agreement, inter-alia for extension of time period to provide Right of Way to MMOPL by a period of 180 days and consequently concession period also got extended accordingly. The second and the third extensions were given under Supplemental Agreements dated 29 February 2008 and 27 August 2008 by 180 days each and accordingly obligation to provide unencumbered Right of Way was extended totally by 540 days upto 28 February 2009. In the meantime, MMOPL commenced construction work and claims to have faced considerable impediments on account of MMRDA’s failure to handover Right of Way in timely manner and in removing the encumbrances. Parties exchanged correspondence. MMOPL requested for extension of time for completing the construction. The Independent Engineer, after considering the factual situation recommended extension of time upto 30 June 2014. By letter dated 19 December 2014, MMRDA extended the Project completion date upto 28 August 2013. By another letter dated 21 February 2014, the project completion date was extended upto 31 March 2014. The Commissioner of Metro Rail Safety sanctioned opening of Metro line on 2 May 2014. The Independent Engineer issued provisional completion certificate on 6 May 2014. The Railway Board granted clearance for rail systems on 5 June 2014. The operation of Metro line commenced from 8 June 2014. The Independent Engineer recommended extension of construction period upto 17 May 2014 by his letter dated 26 November 2014. MMRDA thereafter granted extension upto 17 May 2014 by letter dated 11 December 2014.

10) According to MMOPL, the delay in implementation of the Project resulted in increase in the cost of the Project from Rs.2356 crores to Rs.4026 crores. On 14 July 2014, MMOPL addressed letter to MMRDA claiming amount of Rs.1162 crores. This is how disputes and differences arose between the parties under Concession Agreement, which were referred to arbitration. The Arbitral Tribunal comprised of three former Judges of the Supreme Court, Justice Shivraj V. Patil, former Judge, Supreme Court of India as the Presiding Arbitrator and Justice B.P. Jeevan Reddy, former Judge, Supreme Court of India and Justice Gyansudha Misra, former Judge, Supreme Court of India as Co- Arbitrators. In its Statement of Claim as amended, MMOPL raised six claims as under:

                   a. [Claim No.1]: Rs.62,26,63,973/- including interest at the rate of SBI PLR+ 2% (14.75% + 2%) per annum as per the Particulars of Claim (Annexure F-18) with further interest at the same rate on the principal amount from the date of SoC till payment or realization;

                   b. [Claim No.2): Rs. 143.94 Crores including interest at the rate of SBI PLR + 2% (14.75% + 2%) per annum as per the Particulars of Claim (Annexure G-45) with further interest at the same rate on the principal amount from the date of SoC till payment or realization.

                   c. In any event and without prejudice to prayer clause (b), if this Tribunal holds that the claimant is not entitled to the said amount of Rs.143.94 Crores, then, in that event, declaring that the respondent is entitled to charge only a sum of Rs.44,98,94,270/- and that the respondent is not entitled to charge any other sum, particulars whereof are given in Annexure G-33 and to award Rs.35,78,79,565/- as per Particulars of Claim (Annexure G-47) with interest thereon at the rate of SBI PLR 2% (14.75%+2%) per annum from the date of deductions thereof till payment or realization;

                   d. [Claim No.3]: Rs.91.08 Crores including interest at the rate of SBI PLR+ 2% (14.75%+ 2%) per annum as per the Particulars of Claim (Annexure H-40) with further interest at the same rate on the principal amount from the date of SoC till payment or realization:

                   e. Declaring that claimant is entitled to a sum of Rs.35.59 Crores O&M life cycle costs under the Agreement as per the statement annexed to SoC as Annexure H-41:

                   f. [Claim No.4]: Rs.14.38 Crores including interest at the rate of SBI PLR+ 2% (14.75% + 2%) per annum as per the Particulars of Claim (Annexure 1-32) with further interest at the same rate on the principal amount from the date of SoC till payment or realization;

                   g. [Claim No.5]: Rs.48.52 Crores including interest at the rate of SBI PLR + 2% (14.75% + 2%) per annum as per the Particulars of Claim (Annexure J-42) with further interest at the same rate on the principal amount from the date of SoC till payment or realization;

                   h [Claim No.6]: declaring that the claimant is entitled to extension of time for completion of the Project upto 7th June 2014 as against the time extended by the respondent upto 17th May 2014:

                   i. Rs.1372.47 Crores including interest at the rate of SBI PLR + 2% (14.75% + 2%) per annum as per the Particulars of Claim (Annexure K- 121 hereto) with further interest at the same rate on the principal amount from the date of SoC till payment or realization;

                   j. Cost of arbitration proceedings:

                   k. For such further and other reliefs as the nature and circumstances of the case may require.

11) Petitioner-MMRDA filed Statement Of Defence and also preferred counterclaim on 6 October 2015. The counterclaims made by MMRDA were as under:

                   a. Rs.15,82,41,75,205.48 (being a sum of Rs.14,45,00,00,000/- plus an amount of Rs. 137,41,75,205.48 as interest at a rate of Rs. SBI PLR + 2% from the 10th March, 2015 (being the date of the demand notice) till 6th October, 2015), plus interest at the same rate till the date of actual realization, for the delay caused above 30 + 1 months from the date of handing over ROW in completing the milestones in terms of the particulars of claim annexed at "Annexure R-CC-7;

                   b. Without prejudice and in the alternate to prayer clause (a) above, for Rs.521,70,29,873.91 (being a sum of Rs.476,40,00,000/- plus an amount of Rs. 45,30,29,873.91 as interest at a rate of Rs. SBI PLR + 2% from the 10th March, 2015 (being the date of the demand notice) till 6th October, 2015), plus interest at the same rate till the date of actual realization, for the delay caused above 54 + 1 months from the date of handing over ROW in completing the milestones in terms of the particulars of claim annexed at "Annexure R-CC-7";

                   c. In addition to prayer clauses (a) or (b) above, for Rs.61,38,25,824.66 (being a sum of Rs.56,60,00,000/- plus an amount of Rs.5,38,25,824.66 as interest at a rate of Rs. SBI PLR + 2% from the 10th March, 2015 (being the date of the demand notice) till 6th October, 2015), plus interest at the same rate till the date of actual realization, for the delay of 283 days in achieving the SPCD in terms of the particulars of claim annexed at "Annexure R-CC-7;

                   d. All legal costs and expenses, plus interest @ 18% per annum thereon, from the date of the respondent made actual payment thereof, upto the date of actual re-imbursement by the claimant; and

                   e. For any such orders as this Tribunal may deem fit.

12) Based on the pleadings, the Arbitral Tribunal framed issues. The first two preliminary issues related to jurisdiction and limitation in respect of Claim Nos.1, 2 and 6. The rest of the issues related to the six claims raised by MMOPL and counterclaims raised by MMRDA.

13) The Arbitral Tribunal has delivered two Awards. The majority Award is delivered on 29 August 2023 by the Presiding Arbitrator, Justice Shivraj Patil and Co-Arbitrator- Justice Gyansudha Misra granting some of the claims of MMOPL, while rejecting the rest, as well as rejecting all counterclaims of MMRDA. The dissenting Award is delivered by the Co-Arbitrator, Justice Jeevan Reddy who has rejected all the claims of MMOPL and has awarded costs of Rs.1 crore to MMRDA for raising fabricated case by MMOPL. The counterclaims of MMRDA are also not granted in the dissenting Award.

14) MMRDA and MMOPL filed application under Section 33(1) of the Arbitration Act for correction of the Award. By order dated 26 February 2024, the Arbitral Tribunal allowed the Application and has effected corrections in the majority Award.

OPERATIVE DIRECTIONS IN THE MAJORITY AWARD

15) The operative directions in the Majority Award are as under:-

                   (a) The respondent shall pay to the claimant Rs.35,00,00,000/-(Rupees Thirty Five Crores only) towards deductions made by respondent from 16th, 19th and 20th tranches of Viability Gap Fund payable to the claimant, along with interest thereon from respective due dates as shown in Enclosure-I to Annexure-1 to Synopsis on Claim 1 submitted by the claimant on 6/7/2020 at the then prevailing SBI PLR + 2%.

                   (b) The respondent shall pay to the claimant Rs.6,14,72,498/-(Rupees Six Crores Fourteen Lakhs Seventy Two Thousand Four Hundred Ninety eight only) towards interest on delay in payment of Viability Gap Fund tranches other than 16th, 19th and 20th tranches.

                   (c) The respondent shall pay to the claimant Rs.30,16,00,000/-(Rupees Thirty Crores Sixteen Lakhs only) as compensation towards additional cost incurred by the claimant on account of payment of rent for half of the land at Wadala together with cost of funds/interest @ 10% p.a. on the said amount from the respective dates of payments as set out in Table in para 10.148 till the date of SoC.

                   (d) The respondent shall pay to the claimant Rs.30,48,00,000/-(Rupees Thirty Crores Forty Eight Lakhs only) as compensation on account of having to construct steel bridge instead of concrete bridge for Andheri Station together with cost of funds / interest @ 10% p.a. upto the date of SoC.

                   (e) The respondent shall pay O&M life cycle cost to the claimant in accordance with Clause-5 of the Agreement dated 9/3/2011 between Western Railway and the respondent by factoring in the additional cost incurred in construction of Andheri Bridge (l.e. additional cost of Rs.30.48 Crores plus cost of funds/interest @ 10% p.a. from 1/4/2012 upto 31/3/2013 and from 1/4/2013 to 10/6/2015).

                   f) The claimant shall be entitled to extension of time for completion of the Project upto 7/6/2011.

                   (g) The respondent shall pay to the claimant Rs.411,70,21,968/- (Rupees Four Hundred and Eleven Crores Seventy Lakhs Twenty One Thousand Nine Hundred Sixty Eight only) towards increase in cost.

                   ii) The relief granted at SI.No.(i)(a) above shall carry pendente lite interest @ extant SBI PLR + 2%. The other reliefs shall carry pendente lite interest @ 10% p.a.

                   iii) The sums awarded shall carry future interest @10% p.a.

                   iv) All other claims of the claimant are rejected.

                   v) The counter claims of the respondent are rejected.

                   vi) The respondent shall pay to the claimant Rs.1,00,00,000/- (Rupees One Crore only) towards cost.

                   vii) The seat of arbitration is Mumbai. However, for convenience, the award is passed and pronounced at Hyderabad with the consent of the parties.

OPERATIVE DIRECTIONS IN THE MINORITY AWARD

16) The operative directions in the Minority Award are as under:-

                   For all the reasons given above, I am of the opinion that the claims put-forward by the Claimant-MMOPL in this arbitration case are in clear contravention of the provisions of the contract (concession agreement), contrary to law besides being utterly unjust and unfair. Accordingly, the claims put forward by the Claimant (MMOPL) in this arbitration dispute (Metro-I) are hereby rejected and dismissed.

                   So far as the costs are concerned, since the Claimant has come forward in this arbitration with a patently fabricated case as discussed herein above, the Claimant (MMOPL) is held liable to pay a sum of Rs.1.00 crore (Rupees one crore only) by way of costs to the Respondent- MMRDA.

                   The Counter claims of the Respondent do not call for any orders in view of my findings in the main dispute. Read at pages 196-197 among others. The Counter Claims are accordingly disposed of with no order as to costs.

17) By the present Petition filed under Section 34 of the Arbitration Act, Petitioner-MMRDA has challenged the majority Award. By order dated 24th October 2024 this Court condoned the delay of 14 days in filing the Petition.

18) Petitioner applied for stay of the Award by filing Interim Application No. 3642 of 2024. By order dated 10th June 2025, this Court refused to grant unconditional stay to the Award and directed that if MMRDA deposited the entire awarded amount along with interest up to 31 May 2025, execution of the award would remain stayed during pendency of the present Petition. Petitioner-MMRDA challenged the order dated 10 June 2025 before the Supreme Court. By order dated 14 July 2025, the Supreme Court stayed the direction for deposit of entire amount subject to deposit of 50% of the awarded amount.

19) National Asset Reconstruction Co. Ltd. (NARCL) has filed Interim Application No. 3495 of 2025 seeking intervention in the Petition contending that the lenders of the Respondent-MMOPL have assigned their loans to NARCL by Assignment Deed dated 23rd December 2024. The intervention is sought for ensuring that in the event of any amount being found due and payable to the Respondent under the award, NARCL should be permitted to withdraw the amount deposited in the Court.

SUBMISSIONS ON BEHALF OF PETITIONER

20) Mr. Sen the learned Senior Advocate appearing for the Petitioner-MMRDA submits that the majority award suffers from patent inconsistencies, findings recorded therein are patently perverse and that the award of Claim Nos. 1,2,3 and 6 of the majority Award are patently illegal. That MMOPL was not entitled to claim damages on account of alleged delay as per the provisions of the CA as Respondent is sufficiently compensated by increase in the concession period as per the provisions of the CA. That the majority Award overrides the stipulations of the CA by awarding damages to MMOPL. That under Article 4.1 and 4.4 of the CA, inability by MMRDA to provide ROW would result only in extension of concession period or termination thereof. That there is no remedy in the contract for seeking any damages or monetary compensation as a result of delay in provision of ROW. That in complete disregard to the contractual provisions, the Arbitral Tribunal has awarded damages to MMOPL. That MMOPL, being creature of contract, cannot override the provisions thereof. That the Arbitral Tribunal has rewritten the terms of contract in support of this contention, he relies upon judgment of the Apex Court in PSA SICAL Terminals Pvt. Ltd. Versus. Board of Trustees of V.O. Chidambranar Port Trust Tuticorin and Others(2021 SCC OnLine SC 508). He also relies on judgment of the Delhi High Court in Trans Engineers India Private Limited Versus. Otsuka Chemicals (India) Private Limited(2024 SCC OnLine Del 4964) in support of the contention that misreading/misunderstanding of basic contractual framework vitiates the Award.

21) Mr. Sen further submits that the Arbitral Tribunal has erred in incorrectly imposing the liability for delay on MMRDA. That the finding is based on completely erroneous and misconceived assumption that MMRDA was obliged under the CA to provide MMOPL site/ROW free from encumbrances after diversion of utilities within 180 days of CA. That under the contractual stipulations of the CA, there is a distinction between providing ‘access to the site’ and in making the ‘site free from encumbrances and after shifting the utilities’. That definition of the term ‘encumbrances’ in the CA specifically excluded utilities and roads. That therefore it was not the responsibility of MMRDA to remove utilities and any delay in removal of utilities cannot be construed to mean delay in handing over of ROW. Furthermore, it was the responsibility of the concessionaire to identify the utilities and therefore there was no question of diversion thereof within 180 days of execution of CA. That it is a matter of fact that as work progressed and reached particular stages, MMOPL intimated MMRDA of certain obstructions / encumbrances / utilities which was discovered/identified by MMOPL only at such stage. That the responsibility of MMRDA was only to provide ‘access to the site’ after which MMOPL was to identify the utilities. That the process of identification of utilities continued till 2012-13. The very assumption of the Arbitral Tribunal that MMRDA was to make available the site/ROW free from all encumbrances and after diversion of utilities within 180 days of execution of CA, is itself contrary to the contractual terms. That the interpretation is not a plausible interpretation of the CA. That the dissenting award has rightly taken conduct of parties into consideration for holding that MMOPL never insisted for clearance of encumbrances or removal of utilities within 180 days.

22) Mr. Sen would further submit that substantial portion of ROW was timely handed over by MMRDA to MMOPL as early as in December 2007 by which time almost 68% of ROW was handed over to MMOPL. He invites attention of the Court to letter dated 21 December 2007 by which MMOPL informed MMRDA that the stretches to be taken over was only 4.85 kms. He further relies upon letter dated 27 April 2009 of MMOPL in support of the contention that 9.90 kms. ROW was handed over to MMOPL for Metro work. That thus MMOPL itself admitted taking over large stretch of 11.4 kms. by April-June 2009. He relies upon findings in dissenting award which appreciates the actions of MMRDA as objective and pragmatic delivering best possible performance at various stages.

23) Mr. Sen would then demonstrate contradictions in the findings of the Arbitral Tribunal relating to delay in provision of ROW. He would submit that the Arbitral Tribunal divided the distance of Metro line into six stretches by further sub-dividing each stretch into sub stretches and thereafter decided various contentions of the parties in respect of each of the sub-stretches. He would submit that after deciding the contentions of the parties, the majority Award fails to conclude as to whether there was any delay on the part of MMRDA in provision of ROW for individual sub-stretches. He invites attention of this Court to various paragraphs of majority Award, where it is concluded that MMRDA was not responsible for delay in those sub-stretches. He further contends that the Tribunal has recorded a finding that there were no pleadings in the statement of claim or affidavit of evidence in respect of allegations in relation to several sub-stretches. He would therefore submit that imposition of entire liability on MMRDA, as if the entire delay was attributable to it, is completely erroneous. That the Tribunal has failed to arrive at the finding as to who was responsible for the delay in individual sub-stretches. However, it has erroneously concluded that MMRDA has delayed handing over of portions of various stretches to MMOPL, which delayed completion and commissioning of the Project. That the Arbitral Tribunal has wrongly rejected counterclaims filed by MMRDA by holding MMRDA responsible for handing over of ROW.

24) Mr. Sen would further submit that since MMOPL’s case was based on ‘global loss’, the Tribunal ought to have satisfied itself that there were no other factors contributing to the delay in holding MMRDA solely responsible for the delay. That there were concurrent causes of delay which was also the responsibility of MMOPL. That therefore award of compensation was clearly not called for especially when MMOPL was entitled for extension of time which is already granted. That MMRDA had relied on judgment in the case of De Beers UK Limited Versus. Atos Origin IT Servises UK Limited(2010 EWHC 3276 (TCC)) which is totally ignored by the Arbitral Tribunal. He relies upon findings in the dissenting Award that once cause of certain delays by MMOPL/third parties is proved, the entire claim must necessarily be rejected.

25) Mr. Sen would further submit that the claim of MMOPL was time barred. That as per the initial Schedule-A2 of the CA, MMRDA was to make available site to MMOPL in two tranches and not at one go and therefore claim for damages filed after completion of project was completely time barred.

26) Mr. Sen would further submit that the Tribunal’s computation and quantification of Claim No.6 is on an entirely erroneous basis. That it has relied upon cost estimates for quantifying the loss when infact actual numbers / details of cost incurred were available on account of completion of the Project. That the methodology of comparing initial cost estimate with final alleged cost incurred itself is erroneous as estimates by their very nature are never final. That the figure of Rs.2356 crores was the bid amount and that there is nothing on record to indicate that it was an accurate estimation of project cost. That it is erroneous to assume that increase in the estimated project cost automatically resulted in losses to MMOPL. That the commercial risk of an increase in the total cost beyond Rs.2356 crores was to be borne by MMOPL.

27) Mr. Sen further submits that even if it is assumed that there is an increase in the total project cost, the same was never proved or established by MMOPL. That it only relied on board meetings for the purpose of establishing alleged increase in the project cost to Rs. 4,321 crores. That mere presence of MMRDA’s nominee director in the Board or as a chairman of the audit committee, did not absolve MMOPL of the burden to prove actual incurring of total project cost. That no evidence was led in support of the claim that additional costs were confirmed in the Board Meetings. The minutes of the Board Meetings were never produced. That in any case, the claim amounts do not tally with each other as the minutes of the meeting dated 23 May 2012 indicated project cost of Rs.4321/- crores whereas the actual project cost indicated in financial statements is Rs.4032 crores.

28) Mr. Sen further submits that mere board minutes cannot be the basis to impose liability on MMRDA. That the Tribunal has erred in holding that since there was MMRDA’s nominee/representative on the board of MMOPL, the amounts are accepted by MMRDA. That since details of actual costs incurred were available, the Tribunal ought not to have adopted a short cut method of accepting the figure of project costs from mere board minutes. That in any case, approvals by the Board of MMOPL cannot bind MMRDA. He relies on minutes of the meeting dated 23 May 2012 to demonstrate that the resolution itself made it clear that the analysis with respect to the revision in the estimation of project cost was advised by nominee directors of MMRDA and that such analysis was to be undertaken. That therefore there is no admission on the part of MMRDA’s Director on Board of MMOPL with regard to the project cost of Rs.4321 crores. That the dissenting Award rightly appreciates this position. He would submit that the Tribunal has misconstrued the presence of MMRDA’s nominees on the Board of MMOPL, which was essentially for overseeing the project completion. MMRDA’s nominee was not involved in day to day functioning nor was a financial expert. That therefore the Tribunal erroneously fastened the liability in respect of the revised project cost on MMRDA holding that its nominee on the board, who was part of audit committee, had right to verify the project cost. He takes me through the evidence of R.W.2 in support of his contention that the revised project cost was never agreed by MMRDA. He submits that MMOPL has failed to prove its claim for alleged additional cost incurred by them and having failed to produce the relevant material and particulars, has erroneously relied on board minutes to prove the claims for recovery of additional costs. That there is no independent evidence of having actually incurred the additional costs. That the dissenting Award rightly holds that mere presence of MMRDA’s nominee on the board of MMOPL does not mean any admission on the part of MMRDA in relation to revised project cost.

29) Mr. Sen further submits that MMOPL did not provide any particulars of co-relation between board approvals for project cost of Rs.4321 crores or revised cost of Rs.4026 crores. Neither in the pleadings nor in the evidence, MMOPL provided any particulars or proof of loss/damages suffered. That there is no evidence to show any nexus or even a casual link between the alleged delays on the part of MMRDA and the losses allegedly suffered by MMOPL. In support of his contention that production of independent evidence is mandatory. Mr. Sen relies on judgments in Central Bureau of Investigation Versus. V.C. Shukla and others((1998) 3 SCC 410), M/s Khushal Chand Jagdish Rai of Jalabad (w) Tehsil Fazilka District ferozepur through its sole proprietor Shilpa Rani w/o Raman Kumar Versus. Hakam Singh(RSA No. 439 of 1986(O&M) decided on 14 January 2014) and Chandradhar Goswami & others Versus. Gauhati Bank ltd.(1966 SCC OnLine SC 255)

30) Mr. Sen would further submit that though the Tribunal in the majority award has recorded a finding that there was increase in the total project cost, it ultimately held that each head of the claim was required to be individually proved. That while examining various subheads under Claim No.6, the majority award rejects claims towards price verification, price adjustment, increase in costs of civil works and additional amount paid to PMC for lack of proof and supporting evidence. That though the Tribunal correctly applied the yardstick of production of concrete proof and rightly demanded underlying documents while adjudicating claims towards price variation, price adjustment, cost of civil works and additional payments to PMC, it has failed to apply the same yardstick in respect of the four other subheads of (i)increase in cost of system work, (ii)additional overheads and supervision of construction work, (iii)additional interests and financial expenses and (iv)opportunity costs on loss of profits. That these four claims also suffered from the same defect of absence of evidence of underlying documents but have still been granted by the Arbitral Tribunal. In support, he relies on the judgment of the Apex Court in Batliboi Environmental Engineers Limited Versus. Hindustan Petroleum Corporation Limited and another((2024) 2 SCC 375)

31) In respect of the award of claim in the sum of Rs.163.22 crores towards increase in the cost of system works, Mr. Sen would submit that the claim was premised on the basis that the sub- contractors engaged for the project were to be paid in foreign currencies and that due to delays caused by MMRDA, the systems contract work was to be performed at a much latter period resulting into losses due to fluctuation in value of foreign currency. That to recover the damages on this account, MMOPL was required in law to establish (i) when orders would have been placed by them and delivery taken in normal course, (ii) when they were actually placed and delivery taken, (iii) that this was on account of delay attributable to MMRDA and not for some other reason (iv) when payments were made to each of the vendors/sub- contractors and quantum of those payments and (v) foreign exchange rates on the relevant dates. That though all this information was available with MMOPL, no material was produced before the Arbitral Tribunal. Instead, it chose to rely on Annexure-9 to the Affidavit in evidence of C.W.2 who himself had not personal familiarity with the figures indicated therein. That Annexure-E filed alongwith the rejoinder written submissions introduced new material including alleged foreign exchange rates providing no opportunity to MMRDA to challenge the same. That in any case, neither Annexure-9 nor Annexure-E contained any material in support of the alleged loss suffered by MMOPL on account of foreign exchange fluctuation. That the Tribunal erroneously accepted the correctness of statements prepared by MMOPL in absence of any evidence. That MMOPL did not discharge any burden in bore, and the claims appears to be inconsistent with MMOPL’s own Balance Sheet which indicated cumulative foreign currency loss of Rs.39.25 crores, which is totally inconsistent with the claim of loss of Rs.195.52 crores and with the awarded sum of Rs. 163.22 crores. That during the course of submissions, entry is sought to be explained by MMOPL that it pertains to only for the year ending 31 March 2014 which is plainly perverse as the entry in question is a cumulative figure of foreign currency loss upto 1 April 2013 (7,52,83,144 plus foreign currency loss for the year ending 31 March 2014 -Rs.31,72,62,664/-).

32) So far as the claim awarded in the sum of Rs.100 crores towards additional overheads and supervision of construction works is concerned, Mr. Sen would submit that the Tribunal had actually dealt with three claims together viz.(i) additional payments made to PMC and IE (ii) additional overheads and supervision of construction works and (iii) additional interests during construction. He would submit that the Tribunal rejected the first sub claim on the ground of non-production of supporting material but erroneously awarded the sum of Rs.100 crores for additional overheads and supervision of construction works without a scrap of supporting material. That for recovery of damages on account of additional overheads, MMOPL was required to establish expenses incurred by it on account of alleged overstay. Material such as purchase orders, work orders, delivery challans and bank statements for proving such alleged expenses was available with MMOPL, but the same was not produced by it. It only relied on Annexure-11 to the affidavit of evidence, which is merely a statement prepared by it without any supporting material. That C.W.2 in the course of his cross-examination admitted his unfamiliarity with those figures. Even otherwise, additional overhead expenses are indirect expenses which could not be claimed on account of Article-29.2 of the C.A. That this objection of MMRDA is not even considered in the impugned Award.

33) So far as the claim of Rs.125 crores towards additional interest and financial expenses awarded by the Tribunal is concerned, Mr. Sen would once again submit that the same were ‘indirect expenses’ incapable of being claimed on account of Article 29(2) of the CA. He would further submit that to press the claim, MMOPL was required in law to produce various evidence in support of alleged additional interest and financial expenses such as arrangements entered into with lenders, sanction letters, loan agreements, bank statements and ledger accounts maintained by them in respect of the lending facilities. However, no such material was produced by MMOPL which chose to rely on a mere statement prepared by it, being Annexure-12 to the Affidavit of evidence of C.W.2. That the statement explained nothing and is entirely devoid of any documentary support. C.W.2 also considered his unfamiliarity with the basis on which the statement was prepared.

34) So far as the claim of Rs. 23.47 crores towards opportunity costs of loss of profits is concerned, Mr. Sen would submit that the same is again an ‘indirect expense’ incapable of being claimed in view of Article-29(2) of the CA. That the claim was premised on the basis that if project was to be completed in timely fashion, it would have been able to realize its revenue as per its projections and that it was deprived of opportunity costs on such loss of cash profits. That financial statements of MMOPL till 2019-20 were available with the Tribunal indicating figures generated through commercial operations which did not disclose any profit. The only evidence led by MMOPL in support of the claim was oral testimony of C.W.2, who did not have any personal knowledge. MMOPL also relied on Information Memorandum of IDBI which was never produced before the Tribunal. If there were no profits till 2013-14 as admitted by C.W.2, there was no question of any opportunity cost on loss of profit. That the Respondent has made a fable attempt to draw distinction between operational profit and cash profit to salvage the situation which attempt is misplaced as even the figures of cash profit cannot be derived from Balance Sheet actually available on record. He would therefore submit that award of claim is plainly perverse.

35) Mr. Sen then deals with award of Claim No.3 relating to change of scope of work in respect of the Bridge at Andheri which is awarded in the sum of Rs.30.48 crores. He submits that mere change in mode of construction did not constitute a ‘change in scope’ at all. That Article-16 of the CA prescribed a detailed procedure for effecting change in the scope. That such procedure was admittedly not followed. That MMOPL did not lead any evidence to prove that there was any change in the scope of work. That MMRDA’s witness (R.W.4) who was an expert witness, has explained that Andheri bridge could have been built at higher level which could have entailed additional costs of only Rs.1.12 crores and of Metro station of Rs.3.81 crores. That the Arbitral Tribunal has rewritten the agreement by holding that Article-16 was not mandatory. He further submits that no evidence was led by MMOPL in respect of the alleged costs incurred by it and the figures claimed by it in Table-1 of the rejoinder submissions were neither produced nor proved. He would also submit that the claim was barred by limitation as the alleged change in the scope occurred on 17 November 2008, whereas the invocation of arbitration was made on 9 May 2015.

36) In respect of Claim No.2 relating to Wadala Casting Yard in the sum of Rs.13.16 crores, Mr. Sen submits that the Arbitral Tribunal framed a specific issue as to whether MMOPL accepted the rate for Wadala land and whether it was estopped from claiming otherwise. The Tribunal decided the first part of the issue in favour of MMRDA and held the rate to be binding. However, it did not express any view on the issue of estoppel. That there is apparent inconsistency in the finding of the Arbitral Tribunal as it has erroneously held that MMOPL is entitled to difference between the rates stipulated in the License Agreement and the one agreed for D.N. Nagar land. That the findings are plainly inconsistent thereby affecting the ultimate view taken by the Tribunal. Once the Tribunal held that the arrangement struck in the meeting with the Hon’ble Chief Minister was binding, it ought to have held that the provision under the contract regard imposition of rate @ Rs.1 per sq.mtr per annum stood superseded/novated and could no longer furnish basis for claiming damages. That the award exhibits lack of judicial approach on the Arbitral Tribunal and in support, he relies upon judgment of the Apex Court in Associate Builders Versus. Delhi Development Authority((2015) 3 SCC 49).

37) In respect of Claim No.1 relating to Viability Gap Funding awarded in the sum of Rs.35.78 crores, Mr. Sen would submit that a sum of Rs.35,78,79,565/- was withheld by MMRDA from total VGF of Rs.650 crores on account of MMOPL’s failure to pay amounts due under the License Agreement for Wadala land. That the Tribunal has erred in not appreciating that the relationship between the parties was in the nature of licensor-licensee and the License Agreement did not contain any arbitration clause. That the claim was in the nature of recovery of rent and dispute in relation thereto could only have been adjudicated by a Rent Court under Section 41 of the Presidency Small Causes Courts Act, 1882 read with Sections 5 and 8A of Maharashtra Government Premises (Eviction) Act, 1955. That if award of Claim No.2 for Wadala Casting yard is set aside, Claim No.1 would also automatically go.

38) Mr. Sen would further submit that in the event of this Court holding that any part of the Award is not fit to be set aside under Section 34, it can apply the principles of severability of the arbitral award and in support, he relies upon judgment of the Apex Court in Gayatri Balasamy Versus ISG Novasoft Technologies Ltd.(2025 7 SCC 1) and of this Court in Hindustan Petroleum Corporation Limited Versus G. R. Engineering Private Limited(COMMERCIAL ARBITRATION PETITION NO. 984 of 2018 decided on 18 June 2025) and Larsen & Tourbo Limited Versus Hindustan Petroleum Corporation Ltd and Anr(APPEAL NO. 26 OF 2006 decided on 8 August 2025.).

39) Mr. Sen would further submit that dissenting opinion of minority award can be relied upon by a party seeking to set aside the award and in support he would rely upon judgment of the Apex Court in Dakshin Haryana Bijli Vitran Nigam Limited Versus. Navigant Technologies Private Limited((2021) 7 SCC 657). In support of the contention that the Arbitral Tribunal has not recorded reasons in the award particularly while awarding sub-claims under Claim No.6. he relies upon judgment of the Delhi High Court in Delhi Development Authority Versus. Sunder Lal Khatri & Sons(2009 SCC OnLine Del 127). On scope of this Court’s power to interfere in the arbitral award, he relies on judgments in Dyna Technologies Private Lmited Versus. Crompton Greaves Limited((2019) 20 SCC 1) and Ssangyong Engineering And Construction Versus. National Highways Authority Of India (NHAI)((2019) 15 SCC 131). In support of his contention that evidentiary standards cannot be relaxed in context of construction contracts involving astronomical amounts, he relies upon judgment of Delhi High court in Satluj Jal Vidyut Nigam Ltd Versus. Jaiprakash Hyundai Consortium and Others(2023 SCC OnLine Del 4039). In support of his contention that mere reproduction of arguments of both sides and accepting as correct arguments of one side do not amount to recording of reasons and that claim cannot be awarded in absence of oral evidence he relies on judgment of this Court in Hindustan Petroleum Corporation Ltd. Versus. Om Constraction on behalf of Om Constraction Nice Projects Limited JV(COMMERCIAL ARBITRATION PETITION (LODG.) NO. 28685 OF 2024 decided on 19 January 2026). In support of his contention that claim of loss of profit cannot be granted in absence of evidence he relies upon judgment of the Apex Court in Unibros Versus. All India Radio(2023 SCC OnLine SC 1366). On above broad submissions, Mr. Sen would pray for setting aside the majority Award of the Arbitral Tribunal.

SUBMISSIONS ON BEHALF OF RESPONDENT

40) Mr. Bhatt, the learned Senior Advocate has appeared on behalf of the Respondent-MMOPL and has canvassed detailed submissions supporting the arbitral Award. He would submit that the majority Award contains detailed analysis of recording cogent reasons for awarding Claim Nos.1, 2, 3 and 6. That neither in the Petition nor during the course of oral submissions, Petitioner has been able to make out any of the enumerated grounds under Section 34 of the Arbitration Act for invalidation of any part of the Award.

41) Mr. Bhatt would submit that the grounds raised by MMRDA in the Petition are beyond the scope of Section 34 of the Arbitration Act. That the Petition is filed and argued as if it is an appeal over the Award. That this Court is being urged to reappreciate the evidence. That even if there is any error in application of law or merely because an alternate view is also possible, the same cannot be a ground to set aside the Award. That the Court cannot take independent assessment of merits of dispute. That even error committed in interpretation of clauses of contract is an error within jurisdiction.

42) Mr. Bhatt would further submit that the contention of MMRDA that MMOPL is only entitled to extension of time and not damages itself exhibits clear admission that the delay is attributable to MMRDA. That MMRDA does not dispute the grant of extension of time. That under the Contract, grant of extension of time was warranted only if there was delay on the part of MMRDA. That therefore it was not even necessary to establish responsibility of MMRDA in cause of delay on account of admitted extension of time granted by it. That the Tribunal has devoted over 600 pages in the Award for minutely examining each and every encumbrance and hindrance and has thereafter arrived at the conclusion that there was no delay on the part of MMOPL in execution of the Project and that the delay was attributable to MMRDA. He would submit that Article-13.4 of CA stipulated that the IE was to determine the cause of delay and recommend extension of time for construction only if the delay was on the part of MMRDA in granting ROW. That there is no dispute to the position that the IE recommended grant of extension from time to time and MMRDA granted such extension by accepting recommendations of the IE. That thus responsibility of MMRDA in respect of the delay is clearly established. However, the Arbitral Tribunal has conducted independent factual inquiry into the aspect of delay and has held MMRDA responsible for delay in making available ROW.

43) Mr. Bhatt would further submit that the contention of MMRDA that MMOPL could have constructed Metro line piecemeal as and when Right of Way was made available is misplaced and has been rightly rejected by the Arbitral Tribunal. That construction of the Metro line was to be sequential and continuous and that the same could not be constructed piecemeal. He relies on judgments in Sutlej Construction Limited Versus. Union Territory Of Chandigarh((2018) 1 SCC 718) and Swastik Construction & Anr. Versus. Mukesh alias Mohanlal Mulji Dhanesha & Ors(COMMERCIAL ARBITRATION PETITION NO. 247 OF 2024 decided on 19 November 2025).

44) Mr. Bhatt further submits that mere increase in the concession period does not mean that MMOPL was not entitled to damages. The Arbitral Tribunal has recorded detailed reasons for rejecting this contention and has held that there is no clause in the contract barring claimant from claiming monetary losses. In support, he relies upon judgment of Gujarat High Court in Vinod Chandra Hiralal Gandhi Versus. Vivekanand Mills Limited Ahmedabad(1965 SCC Online Guj 50).

45) Mr. Bhatt would further submit that the findings recorded by the Arbitral Tribunal relating to increase in the project cost are well supported by the documentary and oral evidence. That the Arbitral Tribunal has considered inter alia minutes of meeting of MMOPL’s audit committee, minutes of various board meetings, audited financial statements and minutes of special resolution amending the Articles of Association of MMOPL for recording findings on increase in the project cost. That Petitioner-MMRDA was 26% shareholder in MMOPL and agreed to alter the Articles of Association to raise debt finance from the lenders to meet revised project cost. Thus, all decisions relating to revised project cost were taken with due concurrences with MMRDA. That the award rightly holds that there was increase in the total project cost from Rs.2356 crores to Rs.4026 crores resulting in differential project cost of Rs.1670 crores. Mr. Bhatt would further submit that the Arbitral Tribunal has not awarded the whole differential value of the project cost in favour of MMOPL but has considered each of the claims on merits and has awarded only part of them. That the Tribunal has correctly found that there was increase in the cost of systems works primarily on account of increase in the conversion rate of foreign exchange. That contracts with foreign suppliers were entered into in foreign currency and if Right of Way was given in a timely manner, the import of goods and systems, particularly rolling stock, would have taken place prior to original proposed completion date of 31 July 2010. That due to delay on the part of MMRDA to give ROW in a timely manner, the import of the goods had to be postponed, which resulted in conversion of foreign currency into Indian Rupees at a higher value. That the Tribunal has considered the entire evidence and has arrived at the conclusion that MMOPL is entitled for compensation for the said increase. However, while granting such increase, the Tribunal has chosen the least possible figures that the exchange rates claimed are based on official RBI records published from time to time. That while arriving at its findings, the Arbitral Tribunal has evaluated and considered evidence in the form of (i)contracts and amounts payable to foreign vendors as approved by the Board of MMOPL (ii) Annexure-9 of C.W.2 affidavit of evidence, (iii) C.W.3 cross-examination on computation of foreign exchange variation and (iv) data produced from RBI’s official website. That the Tribunal also considered alternative methodologies for calculating foreign exchange variations furnished by MMOPL at length and has thereafter accepted MMOPL’s version. That the Tribunal has proceeded on accepted and permissible principle of rough and ready measure. In support, he relies upon judgment of this Court on New India Assurance Co. Ltd. Versus. Shirdi Industries Limited(Arbitration Petition NO.375 OF 2024 decided on 9 December 2025.).

46) Mr. Bhatt would further submit that the finding of fact recorded by the Arbitral Tribunal after appreciation of evidence relating to losses suffered on account of foreign exchange fluctuations do not warrant interference in exercise of power under Section 34 of the Arbitration Act. That the Tribunal has rightly relied upon approval of Board of Directors of MMOPL which included representatives from MMRDA. That since the amounts payable to foreign vendors is approved by the Board, it is objectionable on the part of MMRDA to now question correctness of the said figures. That if there was no delay on the part of MMRDA in delivering the site/Right of Way, MMOPL would have achieved COD by 31 July 2010 and would have paid consideration for imported items required for the project at a much cheaper rate of foreign exchange. That the Tribunal has merely considered the difference in the average rate of foreign exchange in the year 2009-10 and the rate applicable as on the date of actual purchase. That therefore award of reasonable figure of Rs.163.22 crores by the Arbitral Tribunal does not warrant any interference.

47) Mr. Bhatt further submits that the Petitioner is attempting to mislead this Court by relying on Balance Sheet ending on 31 March 2014 in support of his contention that foreign exchange loss was only of Rs.39 odd crores. He submits that the duly approved Balance Sheet every year shows expenditure in foreign currency and CIF value of imported goods. That the CIF value of imported goods for the balance sheet for Financial Year 2013-14 is shown at Rs.3,36,60,75,390/- which is the expenditure in foreign currency. That the sum of Rs.39.25 crores indicated as foreign exchange loss in Balance Sheet ending 31 March 2014 is merely cumulative figure of loss in foreign exchange being the difference between the amount booked in the Books of Accounts (being only a book entry) where a bill is raised by a foreign supplier and the amount that was later paid in the year and if not paid, the foreign exchange rate as on 31 March of financial period. That this is in accordance with statutory account standards. That therefore the said figure of Rs.39.25 crores has nothing to do with the difference between the amount that would have been paid in the Rupee terms had the contract been completed on 31 July 2010 and the date on which the contract was actually completed and the amount towards foreign exchange actually paid considering the date of completion of contract.

48) Mr. Bhatt then justifies award of claim towards (i)additional overheads of Rs.100 crores submitting that given the nature of project requiring employment of manpower and machinery for its execution, it cannot be disputed that MMOPL was required to incur additional costs during the prolonged period of execution. He submits that the after considering the evidence on record, the Tribunal awarded conservative sum of Rs.100 crores towards additional overhead costs as against much higher amount which was reflected against this head in the financial statement for the year 31 March 2011 and 31 March 2014. That the figure is extremely conservative considering the original claim of Rs.255.06 crores.

49) Mr. Bhatt also justifies the award of claim of Rs.125 crores towards additional interest costs and financing charges contending that the MMOPL had to incur additional interest and financial expenditure on account of extension of execution period. That the Tribunal has considered evidence on record in the form of MMOPL’s witness, evidence affidavit and Balance Sheet. That the figure of Rs.125 crores is again extremely conservative as compared to the actual cost incurred by MMOPL of Rs.369.51 crores. He takes me through the Balance Sheet of MMOPL being exhibit, C-73 as on 31 March 2011 at Exh.C-76 as on 31 March 2014 to demonstrate that specific figures of bank and finance charges were reflected herein and that the said figures are approved by the audit committee chaired by MMRDA’s representative. He relies on judgment of this Court in Lotus Logistics and Developers Pvt. Ltd. Versus. Evertop Apartments Co-operative Housing Society Limited(CARBP (L) NO.34791 OF 2024 decided on 13 January 2026).

50) Mr. Bhatt also supports the award of claim towards opportunity cost submitting that the delay in achieving the completion date deprived MMOPL of avenues and that therefore it is entitled to opportunity costs on loss of profits. That the Arbitral Tribunal has awarded extremely conservative sum of Rs.23.47 crores at the rate of 10% as against the rate of 18% demanded by MMOPL. That while awarding the said claim, the Tribunal evaluated evidence in the form of MMOPL’s business plan, statements setting out opportunity cost, Information Memorandum prepared by IDBI, loss of revenues from Financial Year 2011-15 and written and oral evidence of the parties. He relies upon judgment of this Court in Regus South Mumbai Business Centre Private Limited Versus. Marie Gold Realtors Private Limited(CARBP NO. 439 OF 2024 decided on 25 November 2025.) in support of his contention that even a business plan can be relied upon by the Arbitral Tribunal for awarding claim. In support of his contention that Arbitral Tribunal can make guesstimate of damages in a case involving delay by a party, he relies upon judgments of the Apex Court in the case of A.T. Brij Paul Singh and others Versus. State of Gujarat(1984 (4) SCC 59) and Mohd. Salamatullah and Others Verus. Govt. Of AP(1977 (3) SCC 590).

51) Mr. Bhatt justifies award of Claim No.3 regarding Andheri bridge submitting that the CA envisaged construction of PSC bridge across railway lines at Andheri but was required to construct steel bridge on account of failure on the part of MMRDA in giving ROW in respect of construction of PSC bridge. That the Arbitral Tribunal has constructed clauses of the contract for arriving at the conclusion that there was change in the scope and after considering the evidence on record, awarded sum of Rs.30.48 crores towards the difference. That the consideration and reasoning of the Tribunal is cogent and conclusion is correct conclusion. That the Tribunal has rightly awarded additional costs of Rs.30.48 crores after evaluating the entire evidence on record. That the awarded sum represents difference in the actual cost of steel bridge and the estimated cost of PSC bridge. That Petitioner’s IE has also determined the actual cost incurred by MMOPL in construction of steel bridge. That therefore award of this claim does not warrant any interference in exercise of powers under Section 34 of the Arbitration Act.

52) In respect of award of Claim Nos.1 and 2, Mr. Bhatt submits that it was MMRDA’s obligation to provide 13 hectares of land at D.N. Nagar for car depot which was to be used for the purpose of casting yard during the construction period. That MMRDA delayed handing over the said land and provided the same in a piecemeal manner on 4 August 2008, 10 May 2010, November 2010 and September 2011. That full land was not delivered. That MMOPL was therefore constrained to take up another land on license which happened to be of MMRDA. That under the CA, the land for Casting Yard was to be provided at nominal rate of Rs.1 per sq.ft.per annum whereas it was forced to take land at Wadala at a much higher cost. That the Tribunal has rightly awarded differential amount arising out of rent payable in respect of land at Wadala. That the entire cost of rent is not awarded and what is awarded is only rent in respect of half of land at Wadala. That MMRDA had erroneously deducted the amount of rent from VGF. That once Claim No.2 in respect of Wadala land is upheld, Claim No.1 would automatically be upheld.

53) Mr. Bhatt relies on judgments of this Court in Kotak Securities Limited Versus Gajanan Ramdas Rajguru(CARBP NO. 788 OF 2024 decided on 3 December 2025), Hindustan Petroleum Corporation Ltd. Versus. Aegis Logistics Pvt. Ltd.(ARBITRATION PETITION NO. 579 OF 2024 decided on 19 December 2025.), Dimple Enterprises Versus. Wework India Management Pvt. Ltd(CARBP No.154 OF 2022 decided on 25 July 2025.), Central Depository Services (India) Limited Versus. Daksha Narendra Bhavsar and Another(CARBP No. 311 OF 2024. Decided on 1 December 2025), MahaOnline Limited Versus. Aksentt Tech Services Limited(CARBP (L)No.33165 OF 2024 decided on 5 December 2025) and of Delhi High Court in MBL Infrastructures Limited Versus. Delhi Metro Rail Corporation(2023 SCC OnLine Del 8044). He would therefore submit that in absence of any valid ground of challenge to the impugned majority Award, the Petition is liable to be dismissed. On above broad submissions, Mr. Bhatt would pray for dismissal of the Petition.

REASONS AND ANALYSIS

54) The disputes and differences between the parties have arisen out of performance of CA dated 7 March 2007 executed for the purpose of construction of Metro Line 1- Varsova-Andheri-Ghatkopar Corridor, which is the first Metro Line in Mumbai. The CA provides for concession period of 35 years from the date of execution thereof. The Metro Project was to be completed and operations were to be started within a period of five years. It appears that the Respondent gave a schedule to Petitioner indicating the (COD) as 29 July 2009. However, the commercial operations for Metro Line -1 started with effect from 8 June 2014 and there was delay in achieving the COD. The case involves peculiar feature of the Project implementing agency-MMRDA taking part in implementation of the Project with the consortium, which was awarded the tender. Accordingly, Respondent No.1-MMOPL was incorporated as a Special Purpose Vehicle for implementation of Metro Project comprising of MMRDA and consortium of Reliance Energy (Reliance Infrastructure Limited) and Veolia Transport SA. The share capital of MMOPL is owned by the three entities in proportion of 69% by Reliance, 5% by Veolia and 26% of MMRDA.

55) After incorporation of MMOPL, Concession Agreement 7 March 2007 was executed by MMRDA, under which MMOPL agreed to construct and operate the Metro Project as a Concessioner on Build- Own-Operate-Transfer basis. The CA contemplated the concession period of 35 years from 7 March 2007 upto 6 March 2042 including construction period not exceeding five years. During the concession period, Respondent-MMOPL can operate the Metro Line and recover the cost incurred for its construction. The CA also provided for grant of extension in respect of the concession period. As observed above, implementation of the project got delayed and operations of Metro Line- 1 started from 8 June 2014. There is no dispute to the position that on account of delay in execution of project and the delay in commencement of commercial operations, the concession period has been correspondingly extended by MMRDA. MMOPL claims that the Total Project Cost went up due to delay. MMOPL is not satisfied by mere extension of concession period and believes that extension of concession period would not be sufficient for compensating it in respect of additional cost incurred in execution of the project.

56) The original cost of the project was Rs.2356 crores, out of which Rs.650 crores were to be contributed by MMRDA as VGF towards capital contribution. It is the case of MMOPL that by the time execution of the project was complete the Total Project Costs escalated to Rs.4321 crores. However, ultimately the actual expenditure incurred for the project was claimed by MMOPL at Rs.4026 crores.

57) The Respondent-MMOPL accordingly demanded sum of Rs.1162/- crores from MMRDA on 14 July 2014. After the reference to Arbitral Tribunal was made, the MMOPL filed Statement of Claim raising total six claims as enumerated hereinabove. The three-member Arbitral Tribunal has delivered a split verdict. The majority Award has partly granted claim Nos.1, 2, 3 and 6 while rejecting the rest of the claims. The minority Award rejects all the claim of the Respondent.

58) The summary of claims granted in the majority Award are as under: