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In this backdrop, it was urged that the CAG had not audited the accounts of the concessionaire, RMGL and RMGSL, in accordance with the scope of audit finalised by them. The auditors, it is stated, had indicated that the amount of the debt due is PART A subject to the outcome of various matters which can have a significant impact on the debt due. Hence, it was urged that the audit is “incomplete and inconclusive”. 25 HMRTC tabulated its objections to the audit report in the course of the affidavit before the High Court. HMRTC has submitted that the scope of audit finalised by CAG “still remains incomplete and inconclusive”. 26 RMGL submitted its reply in which, firstly, it drew attention to the fact that the High Court’s order dated 20 September 2019 unequivocally obligates the respondents herein to pay 80 per cent of the debt due within 30 days of the CAG report, and no liberty has been granted to challenge the report at this stage. Secondly, it was urged that despite ample opportunities provided by CAG, HMRTC had not furnished any objections to the draft report. Thirdly, it was alleged that the objections filed before the High Court is an attempt to delay the fulfillment of the obligation to pay 80 per cent of the debt due despite the entirety of Project No 1 having been handed over. A similar reply was also filed by RMGSL. 27 An affidavit was also filed before the High Court by CAG in response to the objections filed by HMRTC. In its affidavit dated 28 October 2020, CAG noted:

(vi) The objection that the audit report was incomplete and inconclusive did not hold any substance. In that context, CAG stated:

“11, That the objections/response, as submitted vide affidavit dated 11.10.2020 has been considered and the same does not hold any substance on account of the following facts:
1) CAG of India, being constitutional authority, decided the scope of audit of debt due in terms of concession agreement and the same was also submitted to the High Court on 20.11.2019.
(x) Once a report has been submitted by CAG, there was no occasion for HMRTC to raise any objections, since 80 per cent of the debt due was required to be deposited in an Escrow Account within 30 days;
(xi) The High Court has no jurisdiction to reopen the terms of a consent order;
(xii) The CAG submitted the scope of audit to the High Court. Right from the inception, it was evident that the audit was to be carried out for determining the debt due in terms of the Concession Agreements. CAG has specifically clarified in the affidavit filed before the High Court that the audit is neither incomplete nor inconclusive and that the objections which have been raised by HMRTC are without any substance;

(vii) Information in the annual reports of the appellants was arrived at by following the applicable standards and guidelines.

E Obligations of HMRTC and HSVP to pay the debt due 47 HMRTC and HSVP, as well as the appellants, were apprised at all material times of the work of audit being handed over by CAG to a firm appointed by it. On 24 February 2020, a draft report of the financial audit of the debt due of RMGL/RMGSL was sent to the Principal Secretary to the Government of Haryana in the Department of Town and Country Planning. HMRTC was requested to PART E communicate its response on behalf of the State government, so that it could be incorporated in the report. On 27 February 2020, HSVP sought four weeks at the least, in view of the ongoing Session of the State Legislative Assembly. The Accountant General Audit, Haryana followed up the earlier email by subsequent communications dated 18 March 2020 and 22 April 2020. By the later communication on behalf of CAG, the response of the State government was requested to be furnished before the deadline of 29 April 2020, failing which the report would be finalized without including their response. HMRTC, HSVP and the State government, however, did not furnish their response to the draft report. Eventually, the audit reports were finalised in respect of the debt due under the Concession Agreements with RMGL/RMGSL respectively, and were placed before the High Court in sealed cover. Following the opening of the sealed cover on an application by the appellants, an objection was raised in the form of an affidavit by HMRTC on 10 October 2020, as noticed in the earlier part of this judgment. According to HMRTC, the audit report was inconclusive and incomplete, since several aspects which will have an impact on the debt due remain to be determined. Now, at this stage, it is necessary to note that the auditors stated that the scope of the audit as decided by CAG was submitted to the High Court on 19 November 2019, and it was intimated that only those issues which are relevant and related to examining the debt due under the Concession Agreements would be examined. Hence, other issues mentioned by HMRTC, such as encumbrances and liabilities on the metro project, shareholding/share in the valuation of the assets of the concessionaire, change of shareholding rights, criminal acts and liabilities, would PART E require forensic and technical audit. It is important to note that such audits are ongoing independently. The audit conducted by the auditors appointed by the CAG herein, was limited to examining the debt due as defined in the Concession Agreements. While arriving at the principal and interest component of the debt due, the auditors indicated that other matters had come to their attention, which can have a significant impact on the debt due, and that the report was subject to the outcome of such matters. These included: