M/S Vasishta Construction Private Limited Vs National Highways and Infrastructure Developement Corporation Limited

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$~40 & 41

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IN THE HIGH COURT OF DELHI AT NEW DELHI

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- O.M.P.(I) (COMM.) 101/2026

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M/S VASISHTA MANTENA NH JV .....Petitioner

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Through: Mr. Jayant Mehta, Sr. Adv. with Mr. Anirudh Bakhru, Mr. D. Pavan Kumar, Mr. Divyam Agarwal, Ms. Shraddha Gupta, Mr. Rohan Chandra, Ms. Ananya Mago, Mr. Siddhant Sekhri, and M.r Om Shelat, Advocates Mob: 8595047596 Email: [email protected]

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versus NATIONAL HIGHWAY AND INFRASTRUCTURE DEVELOPEMENT CORPRATION LIMITED .....Respondent Through: Mr. Deepak Thukral, Advocate (M:9810019539) Email: [email protected] Mr. Adil Singh, ED(T), NHIDCL Mob: 8527586333 Email: ed6.nhidcl.com

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42 + O.M.P.(I) (COMM.) 104/2026

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M/S VASISHTHA CONSTRUCTION PRIVATE LIMITED

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.....Petitioner

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Through: Mr. Jayant Mehta, Sr. Adv. with Mr. Anirudh Bakhru, Mr. D. Pavan Kumar, Mr. Divyam Agarwal, Ms.

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Page 1 of 8

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This is a digitally signed order.

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The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 19/03/2026 at 13:19:10

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Shraddha Gupta, Mr. Rohan Chandra, Ms. Ananya Mago, Mr. Siddhant Sekhri, and M.r Om Shelat, Advocates Mob: 8595047596 Email: [email protected]

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versus

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NATIONAL HIGHWAYS AND INFRASTRUCTURE DEVELOPMENT CORPORATION LIMITED .....Respondent

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Through: Mr. Deepak Thukral, Advocate (M:9810019539) Email: [email protected] Mr. Adil Singh, ED(T), NHIDCL Mob: 8527586333 Email: ed6.nhidcl.com

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CORAM: HON'BLE MS. JUSTICE MINI PUSHKARNA

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O R D E R % 18.03.2026

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O.M.P.(I) (COMM.) 101/2026 and O.M.P.(I) (COMM.) 104/2026

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The present petitions have been filed under Section 9 of the Arbitration and Conciliation Act, 1996 (“Arbitration Act”) seeking stay on the operation of the Termination Notice dated 10^th March, 2026, issued by the respondent, i.e., National Highway and Infrastructure Development Corporation Limited.

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By the said Termination Notice, the respondent has terminated the Engineering, Procurement and Construction Agreement dated 17^th April, 2017 (“EPC Agreement 1”), that had been executed between the petitioner

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Page 2 of 8

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This is a digitally signed order.

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The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 19/03/2026 at 13:19:10

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and the respondent in O.M.P.(I) (COMM.) 101/2026 , for the “Rehabilitation and Up-Gradation of Section from Km. 242.0 to Km. 298.0 of NH-223 (New NH-4) to 2-Lane with Hard Shoulder in the Union Territory of Andaman & Nicobar Islands on EPC Basis (Package-II)” .

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Further, by way of the said Termination Notice, the respondent also terminated the Engineering, Procurement and Construction Agreement dated 10^th April, 2018 (“EPC Agreement 2”), that had been executed between the petitioner and the respondent in O.M.P.(I) (COMM.) 104/2026 , for the “Rehabilitation and Up-Gradation of Section from Km 206.000 to Km. 239.445 of NH-4 (Old NH-223) to 2-Lane with Hard Shoulder in the Union Territory of Andaman & Nicobar Islands on EPC Basis (Pkg-IV)” .

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Thus, both the Agreements in question, i.e., EPC Agreement 1 and EPC Agreement 2 had been executed between the respective parties, with respect to construction of roads in the Union Territory of Andaman and Nicobar Islands, India. Under the said Agreements, the petitioners in both O.M.P.(I) (COMM.) 101/2026 and O.M.P.(I) (COMM.) 104/2026 submitted irrevocable and unconditional Performance Bank Guarantees as securities to the respondent.

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Learned Senior Counsel for the petitioners submits that several delays and difficulties were encountered in the execution of the work under the Agreements in question, and the same were attributable to the respondent. He submits that since the respondent failed to make available the contractual Right of Way (“ROW”) to the petitioners, the scope of the work had to be changed multiple times. Further, the said changes in the scope of work were material modifications, which affected the timely completion of the works in question.

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Page 3 of 8

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This is a digitally signed order.

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The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 19/03/2026 at 13:19:10

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He further submits that the works in question were also delayed due to the ban placed on quarrying by the National Green Tribunal (“NGT”), because of which the petitioners had to adopt new technologies. Despite the fact that delay in this instance was caused by extraneous circumstances, the respondent fastened liability on the petitioners.

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He further submits that when certain points of distress arose in the works in question, which were beyond the control of the petitioners, the respondent instituted an Expert Technical Committee (“ETC”), whose final report is still awaited.

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While the final report of the ETC was awaited, the petitioners proposed rectification works for the distress points in the works in question, for an estimated cost of Rs. 6 Crores and Rs. 15 Crores, respectively. However, the respondent floated fresh tenders for the same scope of works for Rs. 56 Crores and Rs. 64 Crores, at the “risk and cost” of the petitioners.

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He further submits that whilst discussions were on-going between the parties as to the change in scope of works and the rectification works, and the report of ETC was awaited, the respondent unilaterally terminated the Agreements in question, by issuing the Termination Notice dated 10^th March, 2026.

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Learned Senior Counsel appearing for the petitioners submits that the petitioners have already completed 99% of the contractual work in O.M.P.(I) (COMM.) 101/2026 and 85% of the contractual work in O.M.P.(I) (COMM.) 104/2026 . He further submits that the respondent has committed material breaches of its reciprocal obligations, thereby leading to delay in execution of works and has arbitrarily terminated the agreements in question.

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Attention of this Court has been drawn to Article 26 of the Agreement

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Page 4 of 8

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This is a digitally signed order.

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The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 19/03/2026 at 13:19:10

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& Schedules, as attached with EPC Agreement 1, and in particular to Articles 26.2 and 26.3 which pertain to dispute resolution by Arbitration, and read as under:

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“xxx xxx xxx

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This is a digitally signed order. The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 19/03/2026 at 13:19:10

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xxx xxx xxx”

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This Court notes that Articles 26.2 and 26.3, as contained in the Agreement & Schedules to EPC Agreement 1, are in pari materia with Article 26 as contained in EPC Agreement 2.

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Perusal of the aforesaid Articles clearly shows that there exist valid arbitration agreements between the parties in both O.M.P.(I) (COMM.) 101/2026 and O.M.P.(I) (COMM.) 104/2026 , which stipulate reference of disputes between the parties to Arbitration.

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During the course of hearing, on a pointed query, learned Senior Counsel appearing for the petitioners was agreeable if the matter could be referred to arbitration.

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Learned counsel appearing for the respondent, on instructions,

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Page 6 of 8

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This is a digitally signed order.

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The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 19/03/2026 at 13:19:10

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submits that he does not dispute the arbitration agreements.

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Further, both the parties are ad idem that conciliation process, in terms of the Agreements between the parties, has already failed. 17. This Court is satisfied that there exists disputes between the parties, and there are valid Arbitration Agreements, as per which, the said disputes are to be adjudicated by way of referring the parties to arbitral proceedings. 18. Considering the submissions made before this Court, and the facts and circumstances of the case, including, the fact that the conciliation proceedings between the parties has already failed, this Court is of the view that the matter can be referred to Arbitration. Further, the Arbitration Agreements show that the arbitration is to be conducted under the Society for Affordable Redressal of Disputes (“SAROD”).

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At this stage, learned Senior Counsel appearing for the petitioners submits that the respondent intends to encash the Performance Bank Guarantees submitted under the Agreements in question. He, therefore, submits that in order to protect the interest of the petitioners, limited protection may be granted to the petitioners till the matter is heard by the learned Arbitral Tribunal.

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Accordingly, considering the submissions made before this Court, the following directions are issued:

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i. The matter is referred to SAROD for constitution of an Arbitral Tribunal, in terms of their Rules, expeditiously.

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ii. The Arbitral Tribunal is requested to furnish a declaration in terms of Section 12 of the Arbitration Act prior to entering into the reference.

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iii. Both the petitioners are granted liberty to file the present petitions, which are under Section 9 of the Arbitration Act, before the Arbitral

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Page 7 of 8

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This is a digitally signed order.

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The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 19/03/2026 at 13:19:10

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Tribunal, which shall treat the same as being applications under Section 17 of the Arbitration Act, and decide the same on merits.

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iv. The respondent, i.e., National Highway and Infrastructure Development Corporation Limited is restrained from invoking and encashing the Performance Bank Guarantees, till constitution of, and hearing of the applications before the Arbitral Tribunal.

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v. It shall be open to the respondent to raise counter-claims, if any, in the arbitration proceedings.

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vi. It is made clear that all the rights and contentions of the parties, including, the arbitrability of any of the claims and/or counter-claims, any other preliminary objection, as well as claims on merits of the dispute of either of the parties, are left open for adjudication by the learned Arbitrator.

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The petitioners are granted liberty to make appropriate prayer before the Arbitral Tribunal for extension of today’s order.

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Needless to state, nothing in this order shall be construed as an expression of this Court on the merits of the case.

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The present petitions, along with the pending applications, are disposed of in the aforesaid terms.

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The Registry is directed to send a copy of this order to the Secretary, SAROD, for information and compliance.

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MINI PUSHKARNA, J

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MARCH 18, 2026/ SK

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Page 8 of 8

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This is a digitally signed order.

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The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 19/03/2026 at 13:19:10

M/S Vasishta Construction Private Limited v. National Highways and Infrastructure Developement Corporation Limited

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M/S Vasishta Construction Private Limited v. National Highways and Infrastructure Developement Corporation Limited

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