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(e) Till 2020, MIAL claims to have paid, promptly and as per the specified covenants of the OMDA, the MAF, as well as to have fulfilled all other obligations, cast on MIAL by the OMDA. The sudden COVID-2019 pandemic, however, it is claimed, resulted in a near complete cessation of the activities of MIAL, and severe debilitation of its financial resources. The "pre-tax gross revenue" of MIAL, as a result of the pandemic, it is claimed, was less than the amounts which MIAL had unavoidably to expend to comply with its legal and statutory obligations and commitments, resulting in it becoming impossible for MIAL to abide by its commitment to pay MAF, promptly, as required by the OMDA. MIAL highlights the following events, including advisories and instructions issued by the Central Government and the Government of Maharashtra, which resulted in a situation of financial impossibility, so far as honouring, by MIAL, of its obligations under the OMDA, were concerned:

- which included payment of MAF - to the extent such obligations could not be performed owing to force majeure. As such, it was submitted that no MAF was payable during the period of force majeure. Where the pre-tax gross revenue earned by MIAL, in any particular month, was less than the unavoidable costs and cash outgo required to be borne by it, it was submitted that MIAL could not be regarded as liable to pay AF, and that any such insistence would be contrary to Article 16.1.1 of the OMDA. Reliance was placed on the judgement of the Supreme Court in Nabha Power Ltd v. Punjab State Power Corporation Ltd 1 , submitting, on the strength thereof, that all commercial contracts were required to be interpreted by applying the test of business efficacy, to ascertain what a reasonable person would have commercially intended, while entering into the contract. In a revenue sharing agreement, such as that contemplated by the OMDA, it was submitted that the concessionaire, i.e. MIAL, could not be expected to fund the deficit from its own pocket and, thereby, subsidise AAI by paying AF, even where the revenue earned by the airport was not sufficient to meet unavoidable costs and expenses. In such a circumstance, it was submitted that the revenues of the airport would first have to be applied to the committed and unavoidable costs required to be borne by MIAL, including servicing of debts. As such, it was submitted that MIAL was entitled to the benefit of the force majeure clause, in the OMDA, for the entire period during which the Covid-2019 pandemic subsisted, i.e., till operations were restored to the 2018) 11 SCC 508 situation which prevailed prior to the force majeure event. It was reiterated that the OMDA never contemplated MIAL funding the deficit from its own pocket, i.e. from monies which were other than the revenues earned from the airport. This, it was submitted, militated against the concept of revenue sharing, especially when MIAL was admittedly unable to bear the expenses during the currency of the force majeure event. It was emphasised that Article 16.1.5(c) of the OMDA visualised extension, of the time for performance by the parties affected by force majeure, of its obligation, as also the exercise, by the other party, of its rights under the OMDA, by the period during which the force majeure continued and by such additional period thereafter "as is necessary to enable the affected party to achieve the level of activity prevailing before the event of Force Majeure". The suspension of the obligations of MIAL, therefore, it was submitted, would continue during the entire period of the COVID-2019 pandemic, till MIAL was able to achieve its pre-COVID status. During this period, therefore, MIAL disowned any responsibility to pay AF, subject to a reconciliation of the accounts once the situation normalised.

(xxi) The contention, of AAI, that the OMDA was in the nature of a revenue sharing arrangement, also militated against any liability, of MIAL, to pay AF to AAI, during the currency of the force majeure situation. Sharing of revenue necessarily predicated earning of revenue in the first place. Where the revenue earned by MIAL was insufficient even to cover unavoidable costs and expenses required to be borne by MIAL, it could not be said that any revenue was required to be shared by MIAL with AAI, in the form of AF.

(f) The liability to pay AF to AAI arose only where MIAL had earned the bare minimum revenue for meeting its basic unavoidable expenses.

(g) MIAL had never defaulted on its AF obligations to AAI in the past. In fact, MIAL had paid nearly₹ 11,000 crores to AAI towards AF. As such, the contention, of AAI, that MIAL was in financial distress even prior to the force majeure events, was incorrect.