Mumbai International Airport Limited vs Airports Authority Of India

ANIL KSHETARPAL, J.:

The present Appeal under Section 37^{11.Hereinafter referred to as „Section 37‟} of the Arbitration and Conciliation Act, 1996^{22.Hereinafter referred to as „A&C Act‟}, read with Section 13 of the Commercial Courts Act, 2015, has been preferred by the Appellant, Mumbai International Airport Limited^{33.Hereinafter referred to as „Appellant‟ or „MIAL‟}, assailing the judgment dated 10.04.2024^{44.Hereinafter referred to as „Impugned Judgment‟} passed by the learned Single Judge in OMP (COMM.) No.268/2023^{55.Hereinafter referred to as „Section 34 Petition‟}, whereby the petition preferred by MIAL under Section 34^{66.Hereinafter referred to as „Section 34‟} of the A&C Act challenging the arbitral award dated 23.03.2023^{77.Hereinafter referred to as „Award‟} was dismissed.

The Award was rendered by a three-member Arbitral Tribunal comprising Justice Deepak Gupta (Retd.), Justice C.K. Thakker (Retd.) and Justice (Dr.) Arijit Pasayat (Retd.). The Tribunal rejected MIAL‟s claims against the Respondent, Airports Authority of India^{88.Hereinafter referred to as „Respondent‟ or „AAI‟}, which principally concerned the alleged obligation of AAI to transfer or assign its lessor‟s interest under the lease executed in favour of Sahara (Batra) Hospitality Private Limited^{99.Hereinafter referred to as „Sahara‟}.

The principal questions which arise for consideration are:

The relevant facts, necessary for adjudication of the present Appeal, may be briefly noticed.

AAI had executed a Lease Agreement dated 05.06.2002^{1313.Hereinafter referred to as „Sahara Lease‟} in favour of Sahara in respect of land measuring approximately 30,047.12 square metres at Chhatrapati Shivaji Maharaj International Airport, Mumbai^{1414.Hereinafter referred to as „Airport‟}. The lease was for a term of 29 years, ending on 04.06.2031.

Pursuant to the Government of India‟s policy of privatisation of scheduled airports, MIAL was incorporated as a joint venture company^{1515.Hereinafter referred to as „JVC‟} and the OMDA was executed between MIAL and AAI on 04.04.2006. MIAL took over the operation of Airport with effect from 03.05.2006. MIAL Lease Deed was also executed between the parties on 26.04.2006 in relation to the Airport premises.

The OMDA defined „Existing Leases‟ as leases presently valid and subsisting in respect of portions of the Airport, entered between AAI and various third parties, details of which are set out in Schedule 28 appended thereto. The Sahara Lease was included in that Schedule. Article 2.6.1 of the OMDA excluded land granted to third parties under Existing Leases, as well as Carved Out Assets, from the land to be demised to MIAL. Article 2.1.1 of the MIAL Lease Deed similarly excluded such land from the Demised Premises and Article 2.1.2 thereto provided that, upon expiry or early termination of an Existing Lease, the land concerned would thereafter form part of the Demised Premises for the remaining term.

MIAL relies principally on Article 5.2(b)(i) of the OMDA. That provision contemplated that, during the Transition Phase, MIAL would use its best efforts and AAI would render reasonable assistance to transfer or novate existing contracts and agreements between AAI and third parties, insofar as they related to the Airport. It further provided for MIAL to perform, at its own risk and cost, contracts which could not be specifically novated, with the benefits arising from such contracts vesting in MIAL. Article 20.3.2 of the OMDA provides that, in the event of a conflict between the OMDA and a project agreement, the OMDA would prevail.

MIAL‟s case is that Article 5.2(b)(i) required AAI to transfer or novate the Sahara Lease, including the lessor‟s interest thereunder. It also relies on the minutes of the Inter-Ministerial Group meeting dated 18.10.2004, which recorded a recommendation that the Sahara Lease be assigned to the JVC, AAI‟s letter dated 09.06.2006, subsequent payments of lease rent by AAI to MIAL, and communications issued by MoCA in relation to the proposed transfer.

The Sahara Lease was never novated. Sahara did not accept MIAL as its lessor and raised objections to MIAL‟s invoices. MIAL‟s case before the Tribunal was that AAI had, as an interim arrangement, paid MIAL the lease amounts for approximately ten years, but stopped making such payments with effect from 01.04.2019.

MIAL invoked arbitration and sought, inter alia, a declaration and direction requiring AAI to transfer or assign the Sahara Lease, a monetary claim towards land rent, a claim relating to minimum guaranteed annual payment/turnover levy, and costs. The Tribunal rejected all claims by its unanimous Award dated 23.03.2023. MIAL‟s Section 34 Petition was thereafter dismissed by the learned Single Judge by the Impugned Judgment.

It is in the aforesaid circumstances that the present Appeal has been preferred.

Learned senior counsel representing the parties were heard, and the record, including the Impugned Judgment and the Award, has been perused.

Learned senior counsel representing the MIAL has made the following submissions:

Per contra, learned senior counsel representing the AAI has made the following submissions:

No other submissions have been advanced by learned senior counsel representing the parties.

This Court has considered the submissions advanced by learned senior counsel for the parties and examined the Impugned Judgment, the Award and the material placed on record. Before addressing the specific grounds urged in the Appeal, it is necessary to delineate the scope of interference available to this Court under Section 37.

The jurisdiction under Section 34 is limited and does not permit the Court to sit in appeal over an arbitral award. An award cannot be set aside merely because the Court considers another interpretation of the contract or a different appreciation of the evidence to be preferable. The interpretation of contractual provisions ordinarily falls within the domain of the Arbitral Tribunal. Interference is permissible only where a ground recognised under Section 34 is established. In particular, patent illegality under Section 34(2A) must go to the root of the matter. It does not permit a reappreciation of evidence or correction of every error in the Award. However, an award may be vulnerable where the Tribunal disregards vital evidence in a manner that vitiates its conclusion or adopts an interpretation that no fair-minded or reasonable person could have arrived at on the terms of the contract.

Further, the limits of appellate scrutiny under Section 37 are narrower still. The appellate court does not undertake an independent assessment of the merits of the Award. Its enquiry is confined to determining whether the Court exercising jurisdiction under Section 34 has remained within the bounds of that provision. The Supreme Court has repeatedly affirmed this position, including in MMTC Ltd. v. Vedanta Ltd.^{2121.(2019) 4 SCC 163}, where it emphasised the limited and supervisory nature of the jurisdiction under Section 37. The relevant extract reads as follows:

The Supreme Court has further reiterated that the appellate court cannot reassess the evidence or substitute its own view on the merits of the dispute, and may interfere only where the Section 34 Court has exceeded or failed to exercise the jurisdiction vested in it. The relevant observations in Punjab State Civil Supplies Corpn. Ltd. v. Sanman Rice Mills^{2222.2024 SCC OnLine SC 2632} are as follows:

The same distinction between the limited jurisdiction under Section 34 and the still narrower appellate jurisdiction under Section 37 was affirmed by the three-Judge Bench of the Supreme Court in UHL Power Co. Limited v. State of Himachal Pradesh^{2323.(2022) 4 SCC 116}. The Court observed:

In McDermott International Inc. v. Burn Standard Co. Ltd.^{2424.(2006) 11 SCC 181.}, the Supreme Court also explained that the supervisory role of the Court in arbitral matters is intended to ensure fairness, and not to correct errors by substituting its own interpretation of the contract for that of the Tribunal. The relevant extracts, including the observations on the construction of contracts and the relevance of the parties‟ conduct and correspondence, are reproduced below:

The above principles have consistently been followed by the Supreme Court in several decisions, including Vedanta Ltd. v. Shenzhen Shandong Nuclear Power Construction Co. Ltd.^{2525.(2019) 11 SCC 465.}, ONGC Ltd. v. Western Geco International Ltd.^{2626.(2014) 9 SCC 263.}, Numaligarh Refinery Ltd. v. Daelim Industrial Co. Ltd.^{2727.(2007) 8 SCC 466.}, Tata Hydro-Electric Power Supply Co. Ltd. v. Union of India^{2828.(2003) 4 SCC 172.}, Ssangyong Engineering (supra) and NHAI v. M. Hakeem^{2929.(2021) 9 SCC 1.}.

The aforesaid decisions establish that the jurisdiction under Section 37, though appellate in nature, remains confined within the limits prescribed by Section 34. This Court must, therefore, examine whether the learned Single Judge applied the correct statutory standard and whether the grounds urged by MIAL disclose any error warranting interference with the decision to uphold the Award. The Court cannot undertake a fresh assessment of the merits merely because another interpretation of the contractual provisions or the evidence may be possible. At the same time, the limited nature of appellate scrutiny does not preclude interference where the learned Single Judge has failed to exercise the jurisdiction vested in the Court under Section 34 or has exercised it contrary to the governing statutory standard.

Keeping in view the aforementioned legal framework, this Court now adverts to the issues in the present case. The first issue that arises for consideration is whether the Impugned Judgment is liable to be set aside on the ground that the learned Single Judge has substantially reproduced portions of the Award. In addressing this objection, it is necessary to distinguish between an order that does not furnish elaborate reasons and one that fails to disclose any meaningful adjudication of the controversy. The two cannot be treated as interchangeable. The adequacy of reasons must be assessed having regard to the nature of the proceedings, the grounds urged, and the conclusions reached. An order does not become non-speaking merely because its reasoning is brief or because the court has adopted the reasoning contained in the decision under challenge.

The requirement that a court must apply its mind to the controversy does not entail that it must formulate an entirely independent set of reasons in its own words, irrespective of the reasoning already available on record. Where a court examines the challenge before it and finds the reasoning of the decision under challenge to be legally sustainable, it may adopt that reasoning as the basis for its conclusion. Such adoption may be expressed by reproducing the relevant reasoning, referring to it, or expressly agreeing with it. The form in which the court conveys its agreement is not, by itself, determinative of the validity of the order. What matters is whether the judgment, read as a whole, demonstrates that the court has considered the controversy in the light of the applicable legal principles.

The reproduction of reasons must, therefore, be distinguished from the mechanical reproduction of a decision without adjudication of the objections raised against it. In the former situation, the court adopts reasoning which it considers sufficient to dispose of the challenge. In the latter, the court merely sets out the reasoning of the decision under challenge without examining whether it answers the grounds urged against it. The distinction lies not in the extent of textual reproduction, but in the existence or absence of judicial engagement with the controversy. Consequently, the mere circumstance that substantial portions of an arbitral award have been reproduced in a judgment does not, without more, establish non-application of mind.

This distinction is particularly relevant in proceedings under Sections 34 and 37 of the A&C Act. A court exercising jurisdiction under Section 34 is required to determine whether the challenge falls within a ground recognised by the statute. It is not required to undertake a fresh adjudication of the contractual dispute. Where the Tribunal has considered the relevant provisions and material on record, and its conclusion does not attract any ground for interference, the court may adopt the Tribunal‟s reasoning without restating the entire analysis in different words.

The same principle applies to an appeal under Section 37, subject to the narrower scope of appellate scrutiny. The appellate court must determine whether the Section 34 court applied the correct statutory standard and remained within the limits of its jurisdiction. It is not required to reassess the merits merely because the judgment under appeal reproduces portions of the Award.

Consequently, a challenge alleging that a judgment is non-speaking cannot succeed merely by pointing to the reproduction of the Award. The objection must be assessed in substance, including whether any material ground of challenge remains unanswered, whether the applicable statutory test has been applied, and whether the reasons adopted support the conclusion reached. These considerations are not an exhaustive checklist. The ultimate inquiry is whether the judgment discloses meaningful adjudication of the challenge.

This principle does not permit mechanical endorsement of an Award. If the Section 34 court merely reproduces the Award without examining a material objection, or if the reasoning adopted fails to answer the challenge or rests on a legally untenable premise, the judgment may remain vulnerable notwithstanding the reproduction of reasons. Similarly, where the Tribunal has disregarded vital evidence in a manner attracting a ground under Section 34, the court cannot avoid examining that deficiency merely by adopting the Award. The distinction is between the legitimate adoption of reasoning and the abdication of the duty to adjudicate.

The aforesaid approach is consistent with the principle recognised by the Co-ordinate Bench of this Court in Proto Developers and Technologies Ltd. v. M/s Antriksh Realtech Pvt. Ltd.^{3030.2026 SCC OnLine Del 2842}. The decision emphasises that a challenge to the sufficiency or weight of the evidence considered by the Arbitral Tribunal does not, by itself, permit reappreciation under Sections 34 or 37. It also recognises that the question whether a judgment is non-speaking must be assessed on an overall reading, having regard to the reasoning disclosed and the statutory standard applied. The relevant extracts of the same are reproduced hereinbelow:

Further, the decision of the High Court of Karnataka in M/s Strategic Infra Services Pvt. Ltd. v. Mphasis Ltd.^{3131.Commercial Appeal No.102/2024}, relied upon by AAI, similarly supports an assessment of the reasons recorded in the judgment as a whole. These decisions are relevant to the present issue not because they dispense with the requirement to give reasons, but because they direct attention to the substance of the adjudication rather than the form in which it is expressed.

The decisions relied upon by MIAL in Ajay Singh (supra) and Spicejet Limited (supra) underscore the obligation of a court exercising jurisdiction under Section 34 to consider the grounds of challenge and furnish reasons for its conclusion. That obligation cannot be satisfied by a mere recital of the Award where the objections remain unexamined. However, the requirement of independent application of mind is distinct from a requirement that every reason be independently formulated. The question is whether the court has meaningfully examined the challenge and applied the statutory standard.

The decisions in Kalanithi Maran v. Ajay Singh & Anr.^{3232.2024 SCC OnLine SC 1876} and National Project Constructions Corporation Ltd. v. M/s S.S. Sharma and Company^{3333.2025:DHC:5244-DB}, relied upon by MIAL, must likewise be considered in the context of the deficiencies identified in those cases. Where the objections have not been meaningfully examined and the applicable statutory test has not been applied, interference may be warranted. They do not, however, justify treating reproduction of an Award as conclusive proof of non-application of mind. The controlling consideration remains whether the judgment, read as a whole, discloses meaningful adjudication of the grounds raised.

Tested against the aforesaid principles, the Impugned Judgment cannot be characterised as non-speaking merely because it reproduces portions of the Award. The learned Single Judge recorded MIAL‟s submissions, considered the relevant provisions of the OMDA and the MIAL Lease Deed, addressed the contention based on Article 20.3.2, and examined the Tribunal‟s interpretation of the contractual provisions. The reproduction of portions of the Award formed part of that discussion and does not, by itself, establish that the learned Single Judge failed to apply his mind to the challenge.

The learned Single Judge could, however, have dealt more expressly with the evidentiary significance attributed by MIAL to the letter dated 09.06.2006 and the subsequent rent payments. The adequacy of the reasoning on these matters must be distinguished from the objection to the form of the judgment. Whether the treatment of this material discloses a failure to exercise jurisdiction under Section 34 depends on its relevance to the grounds of challenge and on whether the Award‟s treatment of the same material attracts any statutory ground for interference.

The objection that the Impugned Judgment is non-speaking merely because it reproduces portions of the Award is, accordingly, rejected. The specific objections concerning contractual interpretation, the letter dated 09.06.2006, the rent payments and the communications issued by the MoCA must nevertheless be examined on their own merits to determine whether the decision to uphold the Award falls within the limits of Section 34.

Turning to the contractual interpretation, Article 2.6.1 of the OMDA excludes from the land to be demised to MIAL the land granted to third parties under Existing Leases. Articles 2.1.1 and 2.1.2 of the MIAL Lease Deed reflect the same arrangement and provide that the land covered by an Existing Lease would form part of the Demised Premises only upon expiry or early termination of that lease. These provisions establish that the underlying land was not to be included in the demise to MIAL while the relevant Existing Lease continued to subsist. However, the question whether AAI was separately obliged to transfer or novate its interest as lessor under such a lease must be examined with reference to Article 5.2(b)(i) of the OMDA and cannot be answered solely by reference to the provisions governing the demise of land.

Article 5.2(b)(i) addresses existing contracts and agreements between AAI and third parties relating to the Airport. It contemplates that MIAL would use its best efforts and AAI would render reasonable assistance towards their transfer or novation during the Transition Phase. It further provides for MIAL to perform, at its own risk and cost, contracts which could not be specifically novated, with the benefits arising from such contracts vesting in MIAL. The provision must, therefore, be examined not only for the obligation to transfer or novate contracts, but also for the consequences contemplated where specific novation is not possible. Whether the Sahara Lease falls within the scope of this arrangement, and whether the provision encompasses the transfer of AAI‟s interest as lessor, are the questions requiring determination.

MIAL‟s submission that the two sets of provisions operate in different fields is not without force. Article 2.6 concerns the demise of land to MIAL, whereas Article 5.2(b)(i) concerns the transfer or novation of contracts. The exclusion of the land under the Sahara Lease from the Demised Premises does not, as a matter of language alone, necessarily answer whether AAI‟s lessor‟s interest under that lease could be transferred separately. The Tribunal itself acknowledged that Article 5.2(b)(i), if read in isolation, could bear the interpretation advanced by MIAL.

The question is not whether MIAL‟s construction is arguable, but whether the Tribunal‟s contrary construction is so unreasonable as to attract interference under Section 34. The Tribunal read Article 5.2(b)(i) in conjunction with the provisions governing Existing Leases and the Demised Premises. Its reasoning appears to proceed on the basis that the specific arrangement excluding land under Existing Leases from the demise must inform the interpretation of the general provision concerning the transfer or novation of existing contracts. That approach is not, in itself, impermissible. However, the exclusion of the underlying land from the demise cannot automatically be treated as excluding the lessor‟s contractual interest from the operation of Article 5.2(b)(i). The sustainability of the Tribunal‟s interpretation must be assessed by examining whether the contractual provisions, read together, reasonably support that further conclusion.

The definition of Existing Leases, their inclusion in Schedule 28, and their exclusion from the Demised Premises provide contextual support for the Tribunal‟s interpretation. The specific provisions governing the demise of land must be read harmoniously with the general provision concerning existing contracts and agreements. At the same time, the fact that an Existing Lease is excluded from the Demised Premises does not, without further analysis, establish that the benefits arising from that lease are also excluded from Article 5.2(b)(i). The decisive question is whether the contractual scheme, read as a whole, supports the Tribunal‟s construction of the expression “such contracts” and its application to the Sahara Lease.

MIAL‟s contention that Article 5.2(b)(i) contains no express exception for Existing Leases must be considered in that context. The absence of an express exception is not conclusive, since contractual provisions must be read together rather than in isolation. Equally, a court cannot introduce an exclusion that the contract, properly construed, does not support. The Tribunal‟s interpretation can be sustained only if it represents a plausible reconciliation of the general provision concerning existing contracts with the specific provisions governing Existing Leases. The question is not whether another interpretation is possible, but whether the interpretation adopted falls outside the range of permissible contractual constructions.

Article 20.3.2 of the OMDA does not, by itself, resolve the present dispute. The provision addresses a conflict between the OMDA and a project agreement, whereas the principal controversy concerns the construction of different provisions of the OMDA, read with the MIAL Lease Deed. It does not prescribe how the provisions of the OMDA are to be reconciled with one another. The learned Single Judge was, therefore, justified in declining to treat Article 20.3.2 as determinative of the dispute.

The observation of the learned Single Judge that there was no clause dealing with the benefits arising from Existing Leases requires qualification. Article 5.2(b)(i) expressly provides that the benefits arising from the contracts covered by that provision would vest in MIAL. The dispute is whether the Sahara Lease falls within that expression. Accordingly, the existence of the benefits clause cannot be overlooked. The question is one of its scope and application. The conclusion that the Award does not warrant interference must, therefore, rest on the Tribunal‟s construction of the category of contracts covered by Article 5.2(b)(i), and not on the absence of a contractual provision concerning benefits.

The Award‟s treatment of MIAL‟s submission that the provisions concern distinct interests, the demise of land on the one hand and the transfer of the lessor‟s interest on the other, is not elaborate. Nevertheless, if the Award is read as a whole, the Tribunal‟s reasoning must be assessed by reference to the contractual framework it considered and the basis on which it treated the specific provisions governing Existing Leases as controlling. The absence of a separate answer to every step of MIAL‟s argument does not, by itself, establish patent illegality. However, the distinction between the demise of land and the transfer of the lessor‟s interest remains material, and the conclusion must be sustainable on the contractual provisions actually considered by the Tribunal rather than on an assumption that the two interests are identical.

Section 109 of the TPA does not by itself establish the contractual obligation asserted by MIAL. The provision concerns the rights and liabilities arising upon transfer of the lessor‟s interest in the leased property. The question in the present case is anterior: whether, on a proper construction of the OMDA, AAI was obliged to transfer or novate its interest as lessor under the Sahara Lease. The statutory consequences of a transfer cannot, without more, establish that the parties had contractually undertaken to effect such a transfer. The reliance on Section 109 must, therefore, be considered in conjunction with, and not as a substitute for, the construction of the relevant contractual provisions.

It is also necessary to distinguish between the novation of a contract and the transfer of the lessor‟s interest in the leased property. The former ordinarily involves the substitution of a contract or a contracting party in accordance with the applicable legal requirements, whereas the latter raises the question of the rights that pass to a transferee of the lessor‟s interest under Section 109 of the TPA. The fact that the Sahara Lease was not novated does not, by itself, determine whether the lessor‟s interest could have been transferred independently. The issue in the present case, however, is whether such a transfer was contemplated or required by the OMDA, and whether the Tribunal‟s construction of the contractual provisions on that question attracts any ground for interference under Section 34.

MIAL relies upon the communications issued by the MoCA and the legal opinions referred to therein to contend that the proposed transfer of the Sahara Lease was supported by the policy framework governing the privatisation of the Airport. It further submits that these communications constituted directions on a question of policy within the meaning of Section 40 of the AAI Act. The mere fact that the OMDA is a bilateral contract would not, by itself, answer a contention that a binding statutory direction was issued under Section 40. The nature and legal effect of the communications must be assessed with reference to the statutory provision and the contents of the communications themselves.

The Tribunal considered the communications and concluded that they did not constitute policy directions under Section 40, but reflected views concerning the interpretation and implementation of the contractual arrangements. The question before this Court is whether that conclusion is so legally untenable or perverse as to attract interference under Section 34. The fact that the Ministry was involved in the policy process leading to the privatisation of the Airport does not, by itself, establish that every subsequent communication or legal opinion constituted a binding direction. In the absence of a demonstrated statutory direction having been disregarded, the communications do not, merely by expressing a particular understanding of the transaction, establish a ground for setting aside the Award. This conclusion is confined to the grounds raised in the present arbitral challenge and does not determine any independent public-law issue that may arise concerning the legal effect of a direction validly issued under Section 40.

The Tribunal referred to AAI‟s letter dated 09.06.2006 and reproduced a portion of it in the Award. However, it did not separately analyse the precise statement on which MIAL relies, and the learned Single Judge could have dealt with this objection more expressly. The relevant question is whether the omission to discuss that statement separately amounts to a disregard of material evidence warranting interference under Section 34, or whether the Award, read as a whole, discloses a sustainable basis for the conclusion reached.

The letter records AAI‟s understanding that existing commercial and land licence/lease agreements were required to be assigned or novated to the JVC during the Transition Phase. It is, therefore, relevant to MIAL‟s contention that Article 5.2(b)(i) contemplated a transfer of the lessor‟s interest under the Sahara Lease. At the same time, the letter is a post-contractual communication and cannot, by itself, amend the terms of the OMDA. Its significance must be assessed in conjunction with the contractual provisions that govern the scope and manner of the contemplated transfer.

The fact that the letter refers to assignment or novation during the Transition Phase does not, by itself, resolve the dispute. The absence of an automatic transfer is distinct from the question whether AAI was contractually obliged to take steps to effect a transfer. The relevant inquiry is whether the letter, considered with the contractual scheme and the reasons recorded in the Award, renders the Tribunal‟s interpretation legally unsustainable. The omission to discuss every sentence of a document separately is not sufficient to establish patent illegality. However, the materiality of the omitted consideration must be assessed rather than presumed away.

MIAL also relies upon the payments made by AAI to MIAL for approximately ten years. The Award noticed that AAI had passed on the lease amounts to MIAL until 2019, although it considered that conduct while dealing with limitation and did not separately examine whether the payments supported MIAL‟s interpretation of Article 5.2(b)(i). The evidentiary significance of this conduct must, therefore, be considered in the context of the contractual dispute.

The payments are relevant to the extent that they may indicate the manner in which the parties implemented or understood the arrangement concerning the Sahara Lease. However, the fact that AAI passed on the amounts in question does not, by itself, establish that the lessor‟s interest stood transferred to MIAL. Nor does it conclusively establish that Article 5.2(b)(i) required such a transfer. The weight to be attached to the payments depends upon the circumstances in which they were made, the arrangement under which they were passed on, and their consistency with the contractual provisions.

AAI has contended that no plea of acquiescence, waiver or estoppel was advanced before the Tribunal. In the absence of such a plea having been adjudicated, this Court need not determine the dispute on those independent grounds. The payments must instead be considered for their evidentiary relevance to the contractual interpretation advanced by MIAL. The question is whether the Tribunal‟s failure to analyse that relevance separately renders its conclusion perverse or otherwise attracts a ground for interference under Section 34. That question must be answered by reference to the materiality of the payments and the reasoning of the Award as a whole, rather than by treating the absence of an automatic transfer as conclusive.

The minutes of the Inter-Ministerial Group meeting dated 18.10.2004 recorded a recommendation that the Sahara Lease be assigned to the JVC. The minutes predate the execution of the OMDA and may be relevant to the background and commercial context of the transaction. However, the contractual rights and obligations enforceable between MIAL and AAI must ultimately be determined from the agreements executed by them, read in the light of the surrounding circumstances to the extent permissible in construing those agreements. The minutes do not, by themselves, establish that the parties incorporated the recommendation into a binding contractual obligation. The Tribunal‟s reliance on the executed agreements, therefore, does not warrant interference merely because the earlier recommendation contemplated an assignment.

For the reasons stated above, this Court finds no ground to interfere with the Impugned Judgment merely because it reproduces portions of the Award. The Tribunal‟s interpretation of the contractual provisions must be assessed within the limited scope of Section 34, and the evidentiary objections raised by MIAL must be examined by reference to their materiality and the effect of the alleged omissions on the conclusions reached. For the reasons recorded hereinabove, and subject to the foregoing examination of the contractual provisions and the material relied upon by MIAL, no ground for interference by the Court exercising jurisdiction under Section 34 has been established.

Consequently, the present Appeal is dismissed.