Delhi High Court - Orders
M/S Mep Sanjose Talaja Mahuva Road Pvt. ... vs M/S National Highways Authority Of ... on 29 September, 2020
Author: Rekha Palli
Bench: Rekha Palli
$~4
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ O.M.P.(I) (COMM.) 312/2020
M/S MEP SANJOSE TALAJA MAHUVA ROAD PVT. LTD..Petitioner
Through: Dr. A.M. Singhvi, Senior Advocate with
Mr. Rajiv Shankar Dwivedi, Mr. Azeem
Samuel, Mr. Sushant Kumar Sarkar
&Mr.Rishabh Jain, Advocates
versus
M/S NATIONAL HIGHWAYS AUTHORITY OF INDIA.....Respondent
Through: Mr. Parag Tripathi, Senior Advocate with
Ms. Padma Priya& Ms. Shreya Sethi,
Advocates
WITH
O.M.P.(I) (COMM.) 315/2020
M/S MEP SANJOSE MAHUVA KAGAVADAR ROAD PVT.
LTD .....Petitioner
Through: Mr. Mukul Rohtagi, Senior Advocate
with Mr. Rajiv Shankar Dwivedi, Mr.
Sushant Kumar Sarkar &Mr.Rishabh
Jain, Advocates
versus
M/S NATIONAL HIGHWAYS AUTHORITY OF INDIA.....Respondent
Through: Mr. Parag P. Tripathi, Senior Advocate
with Ms. Padma Priya, Advocate
CORAM:
HON'BLE MS. JUSTICE REKHA PALLI
ORDER
% 29.09.2020 IA Nos.8700/2020, 8744/2020
1. Allowed, subject to all just exceptions.
2. Applications are disposed of.
O.M.P.(I) (COMM.) 312/2020, 315/2020
3. These two petitions both filed under section 9 of the Arbitration & Conciliation Act, 1996 seek similar reliefs. For the sake of convenience, only the prayers sought in OMP(I)(COMM.) 312/2020 are listed herein below:-
Signature Not Verified DigitallySigned By:MANJU BHATT Signing Date:30.09.2020 13:24:36"a. Direct the Respondent to refrain from issuing letter of Termination forConcession Agreement.
b. Direct the Respondent to exclude the period of force majeure, i.e. from 19thFebruary, till its subsistence to achieves the progress of work as envisaged inMinutes of Meeting dated 17 Feb 2020 and balance works to achieve theSchedule Project Completion date to enable the Authority to commence the UserFee Collection from the said Project and extend the period granted to thePetitioner vide letter dated 17/02/2020 by that duration; c. Direct the Respondent to treat period as force majeure and not to take anycoercive step against the Petitioner;
d. Direct the respondent to annul the process of Request for Proposal (RFP) issued by NHAI for executing the balance works on the said Project through SinglePercentage Contract vide NIT No.NHAI/11012/Proc./NH- 8E/Balance/Tal-Mahu/2020 dated 28.08.2020 with Bid Due Date of 27th Sep 2020.
e. Pass ad -interim, ex-parte order, pending the instant petition directing theRespondent to refrain from issuing the letter of Termination for ConcessionAgreement or any other coercive steps f. Pass any other such order as this Hon'ble Court may deem fit."
4. Learned Senior Counsel for the petitioners submit that the petitioners, have been diligently carrying out work in terms of the concession agreements but the same could not be completed in the initially agreed time on account of various factors, and therefore, the respondents has on its own extended the time for completion thereof till 30.9.2020. They submit that though the respondent is well aware that the Pandemic of Covid-19 is still ongoing and various ministries including the ministry of Road transport and highways have issued a memorandum enabling the concerned authorities to extend the time by 3 to 6 months, therefore, the respondent ought to have taken a compassionate view and extended the time by another three months, i.e., till 31.12.2020. They submits that the respondent has already invited tenders for completion of the remaining work by terminating the petitioner's ongoing contracts. They, therefore, pray that the respondent be restrained from terminating these contracts and be directed to grant further 3 months extension to the petitioners, Signature Not Verified DigitallySigned By:MANJU BHATT Signing Date:30.09.2020 13:24:36 in accordance with true spirit of the memorandum issued by the various ministries.
5. On the other hand, Mr. Parag Tripathi, learned Senior Counsel for the respondent, who appears on advance notice, vehemently opposes the prayer and submits that the petitioners have been habitual defaulters for the last two years and, in fact, their lenders have also repeatedly commented on their conduct and have sought to exercise their right of substitution in terms of the Concession Agreement.
6. During the course of hearing, learned Senior Counsel for the petitioners had relied on various memorandums which were shared on the screen and are stated to be filed in the Registry. The same are however, not placed on record. Learned counsel to check up with the registry and have the same placed on record, after removing objections, if any.
7. List on 6.10.2020 at the end of the board.
8. The respondent is expected not to take any precipitative action till the next date of hearing. It will also be open for the respondent to file a short affidavit, not running in more than 10 pages along with supporting documents, which may not have been placed on record by the petitioners.
REKHA PALLI, J SEPTEMBER 29, 2020/tp tp Signature Not Verified DigitallySigned By:MANJU BHATT Signing Date:30.09.2020 13:24:36