Page 1 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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Page 2 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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Page 3 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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Page 4 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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Page 5 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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Page 6 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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Page 7 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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Page 8 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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Page 9 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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Page 10 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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Page 11 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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Page 12 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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Page 13 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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Page 14 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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Page 15 (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 croresM/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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Page 16 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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Page 17 “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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Page 18 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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Page 19 (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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Page 20 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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