M.C.MEHTA Vs. UNION OF INDIA & ORS.
Supreme Court of India (Division Bench (DB)- Two Judge)
Writ Petition (Civil), 13029 of 1985, Judgment Date: May 13, 2016
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 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 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 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 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 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
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 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 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 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 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 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 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 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.
(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 |INR 401.49 |M/s. KCC Buildcon Pvt.|
|Section (Manesar RD.83.320|crores |Ltd.-Dilip Buildcon |
|km to Palwal RD 135.650km)| |Ltd. (JV) |
|(Balance Work) on Item | | |
|Rate Mode. | | |
|Development of access |INR 1774 crores|M/s ESSEL |
|controlled 4/6 Lane | | |
|Kundli-Manesar (0.00km to | | |
|83.320 km) in the State of| | |
|Haryana on | | |
|Build-Operate-Transfer | | |
|(Annuity 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:-
“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.
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:-
(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 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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