Patna High Court - Orders
M/S Navayuga Jahnvi Toll Bridge Private ... vs The State Of Bihar on 13 October, 2022
Bench: Chief Justice, S. Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.1204 of 2021
======================================================
Ajay Kumar Singh
... ... Petitioner/s
Versus
The Union of India
... ... Respondent/s
======================================================
with
Civil Writ Jurisdiction Case No. 2255 of 2021
======================================================
M/s Navayuga Jahnvi Toll Bridge Private Ltd.
... ... Petitioner/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
with
Civil Writ Jurisdiction Case No. 4640 of 2021
======================================================
M/s. Navayuga Jahnvi Toll Bridge Pvt. Ltd.,
... ... Petitioner/s
Versus
The State of Bihar through the Chief Secretary,
... ... Respondent/s
======================================================
Appearance :
(In Civil Writ Jurisdiction Case No. 1204 of 2021)
For the Petitioner/s : Mr.Surendra Kumar Mishra, Advocate
For the Respondent/s : Dr. K.N. Singh (ASG)
Mr. Lalit Kishore, AG
(In Civil Writ Jurisdiction Case No. 2255 of 2021)
For the Petitioner/s : Mr. S.D. Sanjay, Sr. Advocate
Mr.Mohit Agarwal, Advocate
Mrs. Parul Prasad, Advocate
Mr. Anand Kumar, Advocate
Ms. Sushmita Mishra, Advocate
Ms. Ananya Maitin, Advocate
Mr. Rahul Kumar, Advocate
Patna High Court CWJC No.1204 of 2021(14) dt.13-10-2022
2/5
For the Respondent/s : Mr.Lalit Kishore (AG)
(In Civil Writ Jurisdiction Case No. 4640 of 2021)
For the Petitioner/s : Mr. S.D. Sanjay, Sr. Advocate
Mr.Mohit Agarwal, Advocate
Mrs. Parul Prasad, Advocate
For the Respondent/s : Mr.Lalit Kishore (AG)
Mr. Ashok Kumar Dubey, AC to AAG-11
For S.B.I. Mr. Y.V. Giri, Sr. Advocate
Mr. Sanjeev Kumar, Advocate
For R.B.I. Mr. C. Sinha, Sr. Advocate
Mr. Amit Prakash, Advocate
For P.N.B. Mr. Kumar Priya Ranjan, Advocate
======================================================
CORAM: HONOURABLE THE CHIEF JUSTICE
and
HONOURABLE MR. JUSTICE S. KUMAR
ORAL ORDER
(Per: HONOURABLE THE CHIEF JUSTICE)
14 13-10-2022Deputy General Manager (Tech), B.S.R.D.C.L. has filed his affidavit inter alia pleading as under:
"06. That in Revised AA, following Waterfall Mechanism has been proposed for repayment of One Time Fund Infused by BSRDCL and Lenders' debt:-
a. all taxes due and payable by the
Concessionaire.
b. all payments relating to construction of the Project Highway, subject to and in accordance with the conditions, if any, set forth in the Financing Agreements.
c. O & M Expenses, subject to the ceiling, if any, set forth in the Financing Agreement. d. O & M Expenses incurred by the Authority, provided it certifies to the provisions of the Concession Agreement and that the amounts claimed are due to it from the Concessionaire. e. Concessionaire Fee due and payable to the Authority.
f. Interest due and accrued on the outstanding principal amounts of BSRDCL OTFI Facility and lenders debt in proportion (pari passu) of Patna High Court CWJC No.1204 of 2021(14) dt.13-10-2022 3/5 respective principal amount of Authority and lenders as arrived in para 5(ii).
g. Principal outstanding under the BSRDCL OTFI Facility and principal outstanding under lenders debt in proportionate (pari passu) basis. It is clarified that the servicing of the principal amount of BSRDCL OTFI Facility as well as principal amount of lenders debt shall not commence till COD.
h. Debt service payments in respect of Subordinated Debt.
i. Concessionaire's equity and other investments will be recovered only after the entire interest and Principal component of BSRDCL OTFIS Facility and Lender's debt with interest is recovered completely.
07. That as per above Waterfall Mechanizm, BSRDCL and the Lenders both have first charge on proceeds of toll collection left after meeting the expenses explained in para 6(a) to 6(e) on pari passu basis.
08. That the above conditions and Waterfall Mechanism mentioned in revival proposal has been approved by Council of Ministers, Govt. of Bihar.
09. That any change in the above Waterfall Mechanism approved by Council of Ministers will need approval from the Council of Ministers again.
10. That information in this regard has been given to Road Construction Department (RCD), Govt. of Bihar vide letter dated 30.09.2022.
11. That in the light of order passed on 27.09.2022, State will take necessary steps for following the bankers to have the first charge on the proceeds of toll collection after expenses explained in para 6(a) to 6(e) subject to unconditional acceptance by the Lenders to issue NOC.
12. That accordingly, the Respondent No.4 will put a proposal in this regard before BSRDCL Board of directors for approval at the earliest."
Patna High Court CWJC No.1204 of 2021(14) dt.13-10-2022 4/5 It is also brought to our notice that now the State of Bihar is going to arrange funds of its own for completion of the remaining work. However, what is required is issuance of No Objection Certificate (for short N.O.C.) from the consortium of bankers, respondents herein.
Learned Advocate General states that there should be no difficulty in the Cabinet approving the Waterfall Mechanism evolved for revival of the proposal which, in principle, has the approval of the Government. Further, the first charge of the proceed from the collection of toll, after deducting expenses as set out in para-6 reproduced (supra), would be disbursed to the bankers/consortium of lender banks as a first charge.
Shri Y.V. Giri, learned Senior Advocate for the respondent Bank, under instructions, states that upon receipt of request for issuance of N.O.C., the same will be issued within one week, which would be subject to the approval of the proposal by the Cabinet.
Shri S.D. Sanjay, learned Senior Advocate for the petitioner, states that tomorrow itself, petitioner would approach the bankers for issuance of N.O.C. Patna High Court CWJC No.1204 of 2021(14) dt.13-10-2022 5/5 We direct that needful be done as recorded supra. Further, with the issuance of N.O.C., the proposal be immediately placed before the Cabinet for necessary action.
List on 14.11.2022.
(Sanjay Karol, CJ) ( S. Kumar, J) K.C.Jha/-DKS U