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TMI Blog2022 (3) TMI 824X X X X Extracts X X X X X X X X Extracts X X X X ..... ctors, it will consider the same in accordance with law and the order dated 8th April, 2019 passed by this Appellate Tribunal. In this Application, we are not required to adjudicate the factual dispute between the parties or return any finding as to whether Termination Notice was issued on sufficient ground or not. The remedy of the Applicant lies elsewhere. The Applicant is entitled to seek remedy against actions of the NHAI as per the Concession Agreement dated 22nd March, 2005. We thus are not inclined to entertain the challenge to Notice dated 21st December, 2021 on merits in the present proceedings. It is, however, relevant to notice that as per the affidavit filed on behalf of Union of India and directions issued in this Appeal by this Tribunal from time to time, it is clear that Resolution Process of IL FS Group Company is at the final stage and as submitted by learned Counsel for the Applicant, it is likely to be completed before 31st March, 2021. Application dismissed. - Interlocutory Application No.2908 of 2021 In Company Appeal (AT) No. 346 of 2018 - - - Dated:- 16-3-2022 - [Justice Ashok Bhushan] Chairperson And [Dr. Alok Srivastava] Member (Technical) F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in the Concession Agreement and to rectify the default observed from time to time. A Cure Notice followed by Preliminary Notice dated 16th July, 2021 was issued by the NHAI to the Applicant and subsequent notices were also issued. By the impugned notice dated 21st December, 2021, the NHAI observing that Concessionaire has committed Concessionaire Events of Default in terms of Concession Agreement, hence, termination notice was issued in accordance with Clause 32.1.2 of the Concession Agreement and the NHAI by virtue of the Termination Notice, deemed to have taken possession and control of the Project Highway forthwith. 4. The IA No.2908 of 2021 is filed by the Applicant praying for quashing the Notice dated 21st December, 2021. On 23rd December, 2021, this Tribunal directed the Application to be taken up on 4th January, 2022 and till then it was directed that Applicant shall not be dispossessed in pursuance of the Termination Notice dated 21st December, 2021. The interim order passed on 23rd December, 2021 was extended by this Tribunal. The NHAI has filed its reply on 25th February, 2022, to which rejoinder affidavit has also been filed by the Applicant on 10th March, 2022. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 21st December, 2021. The learned Counsel for the Respondent submits that if the Applicant is so aggrieved by the Termination Notice, it is open for him to invoke dispute resolution process as envisaged by Clause 39 of the Concession Agreement through Arbitration and Conciliation proceedings. It is further submitted that as per Clause 32.3 of the Concession Agreement, it provides that upon termination by NHAI on account of occurrence of Concessionaire Event of Default, the NHAI shall pay to the Concessionaire by way of Termination payment of an amount equal to 90% of the debt due less insurance claims, if any. It is submitted that Concession Agreement has nothing to do with Resolution of the applicant. The Applicant has miserably failed in honouring the obligation under the Concession Agreement. The NHAI was left with no remedy except to terminate the Agreement. It is submitted that public safety and maintenance of Project Highway cannot be compromised. 7. Mr. Abhinav Vashisht, learned Senior Counsel has appeared on behalf of the lenders of the Applicant and has also supported the submissions of the Applicant. It is submitted that on termination of the Agreement, lenders shall s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the order dated 23rd October, 2019, which is to the following effect: IA No.3320 of 2019 This appeal has been preferred by SREI Infrastructure Finance Ltd. for direction to Infrastructure Leasing and Financial Services Ltd. as well as NHAI not to terminate the Concession Agreement between NHAI and Fagne Songadh Expressway Limited which was reached for execution of Fagne Songadh Expressway Limited . Further prayer has been made to direct the Appellant (ILFS) to place the Resolution Plan before the appropriate Committee. In the present case as the matter is being looked into by the Board of Directors and Committee constituted for individual group companies including two Expressway Ltd. including Fagne Songadh Expressway Limited , we are not inclined to deliberate on the issue, however, we are giving liberty to the Appellant to bring the facts to the notice of Board of Directors of ILFS and Committee if constituted that it has already filed the Resolution Plan which is viable and feasible and for the said purpose, it is desirable to continue with the Concession Agreement . If the matter is brought to the notice of the Board of Directors, it wil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... medy against actions of the NHAI as per the Concession Agreement dated 22nd March, 2005. We thus are not inclined to entertain the challenge to Notice dated 21st December, 2021 on merits in the present proceedings. It is, however, relevant to notice that as per the affidavit filed on behalf of Union of India and directions issued in this Appeal by this Tribunal from time to time, it is clear that Resolution Process of IL FS Group Company is at the final stage and as submitted by learned Counsel for the Applicant, it is likely to be completed before 31st March, 2021. In so far as submission raised by learned Counsel for the lenders is concerned that by termination of Concession Agreement, they shall be unable to recover their debt, when we are not entertaining the application at the instance of the Applicant, who is directly aggrieved by Termination Notice dated 21st December, 2021, the claim of lenders needs no consideration. On the submission made by learned Counsel for the lenders, we are not inclined to entertain this Application. 14. In view of the foregoing, we are of the view that I.A. No.2908 of 2021 does not deserve to be entertained and decided in these proceedings. I.A ..... 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