M.C. MEHTA Vs UNION OF INDIA
Bench: T.S. THAKUR,A.K. SIKRI
Case number: W.P.(C) No.-013029-013029 / 1985
Diary number: 63998 / 1985
Advocates: APPLICANT-IN-PERSON Vs
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REPORTABLE
IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION
I.A. Nos.363-364, I.A NO.425 IN I.A. NO.364 IN I.A. NOS.344, 355, 362
IN WRIT PETITION (CIVIL) No.13029/1985
M.C.MEHTA ...Appellant
Versus
UNION OF INDIA & ORS. ...Respondents
IDBI BANK LIMITED AND STATE BANK OF INDIA …Applicants
J U D G M E N T
Interlocutory applications No.363 and 364 of 2015 have
been filed by the Consortium of Banks seeking direction from this
Court that the rights of the Consortium of Banks who has financed
the Kundli-Manesar-Palwal Expressway (‘BOT’) in the State of
Haryana and has outstanding dues approximately Rs.1419.15
crores as on 28.02.2015 are not prejudiced by this Court’s order
dated 30.01.2015 passed in I.As. No.344, 355 and 362 in W.P.(C)
No.13029 of 1985.
2. Shorn of unnecessary details, facts leading to the
present applications are as follows: Haryana State Industrial and
Infrastructure Development Corporation Limited (HSIIDC) invited
bids for developing of 135.650 kms long Kundli-Manesar-Palwal
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Expressway in the State of Haryana. Following the bidding
process, three companies viz., M/s. Madhucon Projects Limited,
M/s. D.S. Construction Limited and M/s. Appolo Enterprises set
up a Special Purpose Vehicle (SPV) named ‘KMP Expressways
Limited’ (“concessionaire”) and letter of acceptance was issued on
14.11.2005. The concessionaire and HSIIDC entered into a
concession agreement dated 31.01.2006 and the same was for a
period of twenty three years and nine months from the appointed
date.
3. The concessionaire raised a loan from consortium of
banks comprising of the banks namely IDBI Bank, State Bank of
India, the applicants herein and other banks such as State Bank of
Mysore, State Bank of Travancore, State Bank of Patiala, Canara
Bank, Dena Bank, United Bank of India, UCO Bank, Vijaya Bank
and India Infrastructure Finance Company Ltd. The original project
cost of Rs.1915.00 crores was proposed to be financed by way of
equity capital of Rs.766.00 crores and Rupee Term Loan of
Rs.1149.00 crores. The lender banks have disbursed sums
aggregating to Rs.1075.03 crores for the project. On 08.01.2007, a
loan agreement was executed between the lender banks and
concessionaire recognizing and strengthening the lenders’ security
interest over the concession agreement. In terms of loan
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agreement, concessionaire had inter alia agreed to create security
interest over various documents like all project documents which
include concession agreement and all other assets and properties of
the existing concessionaire. The concessionaire executed the
indenture of mortgage dated 09.01.2007 securing the interest of
the lenders as per the requirement of the loan agreement. In order
to further secure the interest of the lender banks, on the same date
i.e. 08.01.2007, a tripartite agreement was also entered into
between HSIIDC, the concessionaire and the IDBI Bank as lenders’
agent.
4. Proposed Kundli-Manesar-Palwal Expressway135.650
kms long takes off from NH-1 near Kundli, crosses NH-10 in the
west of Bahadurgarh, crosses NH-8 near Manesar and finally joins
NH-2 near Palwal. As the project is being developed around the
national capital, Delhi, by an order of this Court dated 18.08.2005
in IA No. 182-183 in W.P. (C) No. 13029/1985 titled as ‘M.C. Mehta
v. Union of India’ the same is being monitored by a special
monitoring committee under the chairmanship of Secretary,
Ministry of Road Transport and Highways with Chief Secretaries of
Delhi, Haryana and U.P., Chairman, NHAI and Chairman,
Environmental Pollution Control Authority (EPCA) as members.
Also, the progress of the project was being reviewed by a High
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Powered Committee established under the chairmanship of Chief
Secretary, Haryana and others. There was delay in execution of the
work and the concessionaire was unable to achieve the commercial
operation of the project. Consequently, this Court appointed the
Environmental Protection Control Authority Committee (EPCA) to
expedite the project. Several meetings were held between EPCA,
HSIIDC, the concessionaire and the lender banks, the details of
which may not be relevant for the issue raised before us. Suffice to
note that it was agreed that an amicable substitution of the existing
concessionaire shall be made so as to expedite the project. It was
further agreed that in terms of the contract, the concessionaire
would be paid Rs.1300.00 crores as termination payment for
utilization towards payment of the debts due. However, HSIIDC
vide its letter dated 28.01.2015 addressed to EPCA informed that it
had revoked the arrangement of making termination payment to
the concessionaire and approval for payment of the same was
withdrawn. At the same time, HSIIDC issued a notice dated
28.01.2015 to the then existing concessionaire conveying its
intention to terminate the Concession agreement, subject to a cure
period of one month for curing the defaults.
5. At this juncture, applications being I.As. No.344/2012
and 362/2014 were filed by the amicus curie and I.A.No.355/2014
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filed by Government of NCT of Delhi in WP (C) No.13029/1985.
This Court vide its order dated 30.01.2015, directed the State of
Haryana to replace the existing concessionaire by following due
procedure. The operative part of the order dated 30.01.2015 reads
as under:-
“In the meanwhile, the State of Haryana will ensure that appropriate steps would be taken to award the contract for the project to the new concessionaire within two months’ time from today. The new concessionaire shall commence the work within a month’s time thereafter.”
6. Later, vide a letter dated 13.02.2015, HSIIDC informed
IDBI Bank that in view of the order of the Supreme Court dated
30.01.2015, the process of selecting a new concessionaire through
its own efforts is under process and that if lender banks propose to
bring a new concessionaire, the lenders would have to adhere to
the time frame fixed by the Supreme Court. Vide its letter dated
16.02.2015, IDBI intimated HSIIDC that in order to facilitate
compliance with the order of the Supreme Court, the senior lenders
have agreed that the entity selected by HSIIDC shall be the
‘selectee’ of the lenders for the purposes of the substitution
agreement. However, lender banks asked HSIIDC to ensure that
the new concessionaire takes over the debt due to the lenders.
Applicant No.1-IDBI Bank vide letters dated 16.02.2015,
25.02.2015, 27.02.2015, 05.03.2015, 16.04.2015 and 02.05.2015
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repeatedly asked HSIIDC to comply with clause 3.5 (i) of the
substitution agreement and to ensure that the new concessionaire
takes over the senior lenders’ debt dues.
7. Subsequently, HSIIDC issued tender dated 20.02.2015
and subsequent addendum dated 10.03.2015 and 13.03.2015
inviting bids ‘for execution of development of access controlled
Kundli-Manesar-Palwal Expressway Section (Manesar RD. 83.320
km to Palwal RD 135.650 kms) (Balance Work) on Item Rate Mode
amounting to Rs.4,01,49,97,931.00’. Bid submitted by M/s. KCC
Buildcon Pvt. Ltd.-Dilip Buildcon Ltd. (JV) was accepted by HSIIDC
on 28.03.2015 for execution and development of the project on
‘Item Rate Mode’ for the said stretch of the road project of 52.33 km
(Manesar-Palwal) (Balance Work). Subsequently, in the first week
of April, 2015, HSIIDC issued invitation for bids for development of
access controlled six lane Kundli-Manesar Section (km 0.00 to km
83.320) valued at Rs.1774.00 crores on ‘BOT’ (annuity basis). After
evaluation of the bids from the qualified bidders, HSIIDC accepted
the bid of ESSEL on ‘BOT’ (annuity basis) and issued letter of
acceptance on 31.07.2015 with a project cost of Rs.1863.00 crores.
ESSEL incorporated M/s. Kundli-Manesar Expressways Limited as
a limited liability company and the concession agreement was
executed by HSIIDC with M/s. Kundli-Manesar Expressways
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Limited on 03.09.2015 for execution of work of development of
access controlled six lane Kundli-Manesar Section km 0.00 to km
83.320 in the State of Haryana on ‘BOT’ (annuity basis). Be it
noted, in the tender as well as the concession agreement with the
ESSEL, there was neither mention of debts due to the lender banks
nor any clause was incorporated to secure the loans of the lender
banks.
8. In this factual background, the lender banks have come
before us by these applications inter alia seeking various directions:
(a) To direct HSIIDC to amend the concession agreement between HSIIDC and ESSEL so as to include a suitable condition to take over the notice and other amounts owed to the senior lenders;
(b) To direct HSIIDC to take over the balance loan and other amounts owed to the lenders under the financing documents proportionate to the 52.33 kms of the project road which is constructed and completed by the new EPCA Director and subsequently taken over by the HSIIDC;
(c) To direct HSIIDC to ensure that new concessionaire/ ESSEL who would substitute the existing concessionaire to assume all the existing liabilities and obligations of the existing concessionaire towards the senior lenders proportionate to 83.320 kms.;
(d) To direct HSIIDC to enter into a supplementary agreement with the ESSEL so as to include a suitable condition to ensure that the rights of senior lenders under the substitution agreement are duly protected;
(e) To direct and collect all tax levy from both the sections of the project road i.e. Kundli-Manesar Section (83.320 kms) awarded to ESSEL and Mensar-Palwal of 52.33 kms as taken over by HSIIDC are deposited into Escrow Account to be opened with applicant No.1 the lead bank
9. Grievance of the lender banks is that though the rights
of the senior lenders were acknowledged by HSIIDC in its letter
dated 13.02.2015, HSIIDC proceeded with the bid without
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disclosing to the new concessionaire that it will have to take upon
debts due to the lender banks. On behalf of the appellants, the
learned Attorney General, Mr. Mukul Rohtagi appearing along with
Additional Solicitor General of India, Mr. Neeraj Kishan Kaul
submitted that inspite of repeated letters by banks asking HSIIDC
to act in terms of substitution agreement, HSIIDC has ignored the
request of lenders and has gone ahead with the appointment of new
concessionaire without acknowledging the rights of the lenders and
thus HSIIDC failed to act in terms of the contract, in particular
clause 3.5 (i) of the substitution agreement.
10. Contention of the lender banks is that in terms of
clause 3.5 (i) of the substitution agreement while substituting the
concessionaire by ESSEL, HSIIDC ought to have taken into account
lenders’ dues and ought to have incorporated necessary clause in
the concession agreement obligating the Selectee to take over
lender banks’ dues. It is contended that HSIIDC is bound to
execute a substitution agreement with the Selectee on the same
terms and conditions as provided in the substitution agreement
dated 08.01.2007 and that HSIIDC has committed breach of
contract. Further grievance of the lender banks is that unilateral
revocation of HSIIDC’s commitment to make termination payment
of Rs.1300.00 crores for utilization towards payment of dues
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payable to the lender banks has caused serious prejudice to the
rights of the lender banks. Yet another grievance of the lender
banks is that corresponding to clause 3.5.(i) of the substitution
agreement, no clause was shown in the advertisement for
development of six lane access controlled Kundli-Manesar
Expressway km 0.00 to km 83.320 nor the same was incorporated
in the concession agreement which was awarded to ESSEL for the
development of six lane access controlled Kundli-Manesar
Expressway from km 0.00 to km 83.320. It was submitted that
while awarding the work to ESSEL, HSIIDC ought to have acted in
accordance with the terms of substitution/tripartite agreement
dated 08.01.2007 and HSIIDC committed breach of contract by not
incorporating the suitable condition in the new concession
agreement for the payment or take over of lenders’ dues by the new
concessionaire/ESSEL. It was further argued that unilateral
revocation of consensus arrived at between HSIIDC and lender
banks to make termination payment of Rs.1300.00 crores for
utilization towards payment of dues to the lender banks was in
breach of HSIIDC’s contractual obligations and the same caused
serious prejudice to the rights of the banks.
11. Lender banks relied upon clause 7.1.2 of the Common
Rupee Term Loan Agreement dated 08.01.2007 between the lender
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banks and concessionaire where right of the lenders to receive toll
collections from the project, deposited in an escrow account is
recognised. Lender banks rely upon various clauses in tripartite
agreement/substitution agreement dated 08.01.2007 between
HSIIDC, the concessionaire and the lenders’ agent. As per the
substitution agreement/tripartite agreement, obligation of the
HSIIDC to inform the lenders’ agent about any notice of termination
of the concession agreement is provided in clause 5.1 of the
substitution agreement. In case of default, right is given to lender
banks to substitute the concessionaire by a Selectee subject to
approval of such ‘Selectee’ by HSIIDC. Clause 2.1 of the
substitution agreement provides for substitution of the
concessionaire by a ‘Selectee’. Clause 3 of the substitution
agreement provides the modality for substitution of the Selectee by
the lender banks. On behalf of the banks, much emphasis is laid
upon clause 3.5.1 to contend that as per clause 3.5.1 it is the
responsibility of HSIIDC to ensure that a suitable condition
acceptable to the lenders’ agent is provided for payment or take
over of the lenders’ dues. Clause 3.5 (i) of the substitution
agreement very much relied by the banks reads as under:-
“3.5 (i) If HSIIDC decides to substitute the Concessionaire by any other person (“HSIIDC Nominee”), it shall take into account the Senior Lender’s Dues while considering offers from such persons and shall include a suitable condition as agreed to by the lenders’ agent on
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behalf of the Senior Lenders for payment or take over of such dues by such HSIIDC Nominee to the extent agreed by the lenders’ agent while substituting the Concessionaire by the HSIIDC Nominee. The HSIIDC Nominee shall similarly be bound to execute a supplementary/fresh substitution agreement on the same terms and conditions as provided herein.”
12. Having regard to the nature of the order we propose to
pass, it is not necessary for us to go into the merits of the
submission of the banks and interpretation of the various clauses
relied upon by the lender banks. Suffice to notice the facts
emerging and the material on record and the need to protect the
interest of the lender banks by an interim order.
13. (a) Delay in Completion of Work and Substitution of
Concessionaire thereafter: As brought on record that though
concessionaire had executed part of the work, progress of the work
by the concessionaire was delayed and the concessionaire was
unable to achieve the work target. The lender banks served a notice
of occurrence of default dated 13.08.2013 to the concessionaire
asking him to cure the defects within a period of thirty days from
the date of delivery of the notice. The concessionaire replied to the
default notice vide its reply dated 17.09.2013 stating that the
payment default was on account of delay by HSIIDC in making
payments to the concessionaire. On 13.01.2014, substitution
notice was served on concessionaire by the lender banks under
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article 2.2 of the substitution agreement which was objected by the
concessionaire vide its letter dated 03.02.2014.
(b) Termination Payment and Unilateral Revocation of the same by
HSIIDC: While hearing I.A. No.344 of 2012, an interim order dated
10.03.2014 was passed by this Court, thereby authorizing
Environmental Protection Control Authority (EPCA) to proceed with
the proposal of replacing the concessionaire. Accordingly several
meetings were held between the lenders, HSIIDC and the EPCA.
Vide letter dated 01.07.2014, EPCA recorded its comments to the
Government of Haryana on the proposal regarding fixation of
amount of ‘consideration for work done’ sent to EPCA by the
lenders. The lender banks sought termination payment to the tune
of Rs.1711.38 crores. However, HSIIDC vide its letter dated
05.08.2014 conveyed its decision to pay Rs.1300.00 crores as a
settlement/termination payment and the same was maintained in
the EPCA meeting on 09.08.2014. In the said meeting, HSIIDC
informed that termination payment of Rs.1300.00 crores has been
approved by its highest authority and HSIIDC cannot accede to the
lenders request to increase the amount to Rs. 1711.38 crores. In
the EPCA meeting dated 01.11.2014 HSIIDC informed that in view
of formation of the new government in the State of Haryana, a fresh
approval from the new government would be required on the
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amount of Rs.1300.00 crores fixed to be paid as termination
payment. According to the lender banks in its letter dated
05.08.2014 (Annx. R-3), HSIIDC stated that:
“it has been decided that INR 1300 crore (is) the most reasonable amount out of different valuations done by the Lenders’ Engineer, Independent Consultant, Lenders’ Consultant and Lead Lenders”…….“while conveying as above, I would also like to assure full support and co-operation of the State Government in your endeavour for getting the Project implemented.”
Later, HSIIDC is said to have unilaterally revoked its consent to
termination payment of Rs.1300.00 crores vide its letter dated
28.01.2015 to EPCA while simultaneously issuing notice of default
to the concessionaire. According to lender banks, HSIIDC had not
kept up its commitment and has not honoured the consensus
arrived at between the lender banks and HSIIDC regarding the
termination payment of Rs.1300.00 crores and committed breach of
contract.
(c) Order of this Court dated 30.01.2015: As noticed earlier, by
order dated 30.01.2015, this Court directed HSIIDC to appoint a
new concessionaire. On behalf of the applicants, it was submitted
that the above developments and various communications between
the lender banks and HSIIDC and concessionaire, consensus
arrived at between the parties to pay termination payment of
Rs.1300.00 crores and the rights of the lender banks were not
brought to the notice of this Court. It was submitted that in order
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to facilitate compliance of the order of this Court, lenders vide
letters dated 16.02.2015 and 25.02.2015 intimated HSIIDC that the
Selectee by HSIIDC is acceptable to the lenders as Selectee for the
purpose of substitution agreement. However, lender banks
repeatedly requested HSIIDC to ensure that the Selectee/
concessionaire takes over the debts due to lender banks and secure
the same by incorporating appropriate clauses in the concession
agreement.
(d) Proceedings before the Debt Recovery Tribunal: As seen from
the material on record, the consortium of banks has filed an
application before the Debts Recovery Tribunal for recovery of their
dues of Rs.1607,97,51,108 against the previous concessionaire and
others. It is brought on record that in the said proceeding, by order
dated 23.12.2015, the Debts Recovery Tribunal restrained outgoing
concessionaire M/s. KMP Expressways Limited from receiving any
amount/fee/charges from the Government of Haryana or any other
authority in respect of refund/transfer of KMP Expressway Project
without permission of Debts Recovery Tribunal. This was
communicated by the lender banks to HSIIDC vide its letter dated
27.01.2016 calling upon HSIIDC not to make any payment to the
outgoing concessionaire.
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(e) Arbitration Proceedings: As seen from legal notice dated
03.07.2015, M/s. KMP Expressways Limited invoked arbitration
clause contained in clause 39.2 of the concession agreement.
Arbitration claim is pending before the Arbitral Tribunal comprising
of Justice N.K. Sodhi (Former Chief Justice) presiding Arbitrator,
Justice (Retd.) T.S. Doabia, arbitrator and Shri K.B. Lal Singal
(Engineer-in-Chief) (Retd.), arbitrator in Arbitration Case No.103 of
2013 against HSIIDC.
14. As discussed earlier, development of 4/6 lane
Kundli–Manesar-Palwal Expressway from km 0.00 to km 83.320 in
the State of Haryana on ‘BOT’ basis was awarded to erstwhile
concessionaire M/s. KMP Expressways Limited. Because of the
incompletion of the work as aforesaid and intervention of this
Court by order dated 30.01.2015, the work was divided into two
parts and awarded to M/s. KCC Buildcon Pvt. Ltd.-Dilip Buildcon
Ltd. (JV) and ESSEL as under:-
Stretch Amount To whom awarded
Manesar-Palwal Expressway Section (Manesar RD.83.320 km to Palwal RD 135.650km) (Balance Work) on Item Rate Mode.
INR 401.49 crores M/s. KCC Buildcon Pvt. Ltd.-Dilip Buildcon Ltd. (JV)
Development of access controlled 4/6 Lane Kundli-Manesar (0.00km to 83.320 km) in the State of Haryana on Build-Operate-Transfer (Annuity
INR 1774 crores M/s ESSEL
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basis) (Balance Work)
15. Since the work of development of access controlled six
lane Kundli-Manesar Section (from km 0.00 to km 83.320) is
awarded to M/s. ESSEL, the applicants now seek a direction to
amend the concession agreement between HSIIDC and ESSEL, so
as to include a suitable condition to take over lenders’ dues and
other amounts due to the senior lenders. In our view, such a relief
cannot be granted by an order of this Court, as the same would
amount to variation of the contractual terms between the parties
i.e. HSIIDC and ESSEL. Even so the lender banks are complaining
about the violation of the terms of the tripartite agreement between
them and concessionaire. Any such dispute regarding the alleged
violation of the terms and conditions of a contract shall have to be
resolved in an appropriate civil action before the competent civil
court. That is because the same are not amenable to adjudication
in these proceedings. Fortunately, however, the parties may not
have to resort to any civil action because of the presence of clause
7.11 in the tripartite agreement between the lender banks, HSIIDC
and erstwhile concessionaire which provide for adjudication
inter-se disputes between the parties by way of arbitration. Clause
7.11 reads as under:-
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“7.11 Any dispute, difference or claim arising out of or in connection with or in relation to this Agreement which is not resolved amicably shall be decided finally by reference to arbitration to a board of arbitrators comprising of one nominee of each party to the dispute. Such arbitration shall be held in accordance with the Rules of Arbitration of the Indian Council of Arbitration and shall be subject to the provisions of the Arbitration and Conciliation Act, 1996. The arbitrators shall issue a reasoned award. The venue of such arbitration shall be at Chandigarh, India. The award shall be final and binding on the parties. The parties agree and undertake to carry out the award of the arbitrators (the “Award”) without delay.”
16. That certain disputes between HSIIDC and the
concessionaire have already been referred by arbitration to an
Arbitral Tribunal comprising of Justice N.K. Sodhi, Former Chief
Justice of Karnataka High Court and Justice (Retd.) T.S. Doabia,
former Judge of the Jammu and Kashmir High Court is admitted.
Given the fact that two of the parties to the disputes sought to be
raised in the present applications, are already before the Arbitral
Tribunal, we see no reason why the disputes raised in the present
applications should also not be referred to the Arbitral Tribunal in
terms of clause 7.11 (supra). To the credit of learned counsel for
the parties, we must mention that they were also agreeable to the
making of such a reference leaving it open to the arbitral tribunal
to entertain claims and counter claims based on the contractual
obligations flowing from the agreements and to adjudicate upon the
same.
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17. The only question then is whether we ought to make
any interim arrangement pending adjudication of the disputes by
the arbitral tribunal. Having heard learned counsel for the parties
at some length, on that aspect, we are inclined to make a suitabe
arrangement to protect the interest of all concerned. We say so,
because Manesar RD 83.320 km to Palwal RD 135.650 km =
52.330 km has been completed at least in part by the outgoing
concessionaire while the remaining was completed by M/s. KCC
Buildcon Pvt. Ltd. The amount advanced by the lender banks to
the outgoing concessionaire has been, it is reasonable to presume,
utilized for construction of the said portion of the road. HSIIDC
has now appointed an agent to collect the toll for the use of the said
road. Ends of justice, in our opinion, demand that the amount so
collected is secured to the extent of 80 percent by deposit of the
same in an escrow account to be opened in the IDBI (Lead bank)
while, the balance 20 percent can be utilized by the HSIIDC for
maintenance etc. The amount so collected shall be available to the
arbitral tribunal for disbursement in such ratio as the arbitral
tribunal may after hearing the parties deem just and proper to
direct.
18. In the result, we dispose of these applications with the
following directions:-
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(i) All disputes between the lender banks, the HSIIDC
and the outgoing concessionaire-KMP Expressways Ltd.
arising out of or in relation to the tripartite agreement
dated 08.01.2007 executed between the parties shall stand
referred to the arbitral tribunal headed by Justice N.K.
Sodhi.
(ii) The parties namely, the lender banks, HSIIDC and
the outgoing concessionaire shall file their claims, and
counter claims before the arbitral tribunal who shall then
adjudicate upon and decide the same in accordance with
the law giving to each one of them an opportunity of being
heard in the matter.
(iii) Pending adjudication of the claims as aforesaid, we
direct deposit of eighty percent of the amount collected
towards toll for use of Manesar-Palwal Section (Manesar
RD 83.320 km to Palwal RD 135.650 km= 52.330 km) in
an escrow account to be opened in IDBI-the lead bank. The
said amount shall then be available to the arbitral tribunal
for disbursement to the lender banks by way of an interim
arrangement or otherwise as it may consider appropriate
after hearing the parties.
(iv) This order of reference to arbitration or the pendency
of the proceedings before the arbitral tribunal shall not be
considered as an impediment for the new concessionaire to
commence its work of widening 4/6 lane work pertaining
to Kundli-Manesar (0.00 km–83.320 km.), subject however,
to the condition that before ESSEL, the new concessionaire
commences the work in Kundli-Manesar (0.00 km–83.320
km) in terms of the contract allotted to it, HSIIDC shall
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appoint a committee of engineers/experts for measurement
of the work done on (i) Kundli-Manesar-0.00km-83.320km
and (ii) Manesar-Palwal–83.320km-135.650km by the
outgoing concessionaire. The report shall be filed before
the arbitrators within four weeks from the date of this
order. The outgoing concessionaire, the lender banks and
the new concessionaire shall associate with the process of
measurement of the work.
(v) Needful shall be done expeditiously to avoid any
delay in commencement of the work by ESSEL.
Reference of the disputes to arbitration shall not be an impediment
for the Debts Recovery Tribunal to proceed with the application
filed by the banks pending before it. We make it clear that we have
not expressed any opinion as to the merits of the claims or
contentions opened to the parties before the arbitral tribunal. No
costs.
…………………….CJI. (T.S. THAKUR)
……………………….J. (R. BANUMATHI)
New Delhi; May 13, 2016
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