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Showing contexts for: Lockdown in Mep Infrastructure Developers Ltd. vs South Delhi Municipal Corporation And ... on 6 November, 2020Matching Fragments
10. A copy of this order be given dasti under signatures of the Court Master to learned counsel for the parties."
6. Being not satisfied with the order dated 02.03.2020, MEP moved C.M.No.11093/2020 for modification of order dated 02.03.2020 and vide impugned order dated 12.06.2020, the learned Single Judge was pleased to modify the order dated 02.03.2020. The relevant portion of the said order is reproduced hereunder:
"23. Both the notifications refer to suspension of continuous obligation between the parties w.e.f. 19.02.2020. The petitioner had, in the first instance, invoked the said force majeure clause on 19.03.2020, therefore, at least till the said date it was not effected apropos the operation of the toll collections. The nation-wide lockdown was announced on 24.03.2020 to be effective from the next day. The force majeure period has not abated as per any government notification; free movement of traffic is being regulated even now at borders between the States. Evidently, the full operability of the contract is hindered by orders of the National and the State governments i.e. by circumstances beyond the control of the petitioner.
30. The interim order of 2nd March subsumed the previous directions and claims or arrears. The arrears were quantified at Rs. 115.04 crores. This was payable prior to the ground reality having being altered because of the global pandemic/nationwide lockdown or reduction of volume of traffic, as a consequence thereof. Therefore, the said amounts ought to be paid as directed. The first instalment was payable on 17.03.2020 which was duly encashed through the Bank Guarantee and the second amount was payable on 02.04.2020 and the third was on 02.05.2020. However, because of the interim orders the said amounts have not been paid to the Corporation. The balance amount of Rs.77.04 crores shall be made available to the respondent within ten working days from the date of this order failing which the interim order shall stand vacated.
20. As per the OM dated 18.05.2020, the second phase of Force Majeure, post resumption of tolling activities, was from 20.04.2020 till traffic resumes 90% of the traffic plying during the pre-lockdown period on the basis of actual average traffic count and during this period, the agreed remittance was waived and estimated remittance based upon actual traffic data was allowed to be deposited by the contractors with NHAI subject to meeting of 50% of administrative and toll collection expenses to be calculated based upon fixed annual administrative charges. It means that from 20.04.2020, till the traffic reaches 90% of the weekly traffic prior to declaration of lockdown, the contractors were allowed to remit the actual collection of toll tax made by him after deduction of 50% of their administrative and toll collection expenses. In the present case, since toll collection activities were never suspended, so the para No. 2(C) (I) is not applicable and the appropriate paragraph of OM dated 18.05.2020, which is applicable, is para 2(C) (II) and as such with effect from the date when lockdown was declared, i.e., 26.03.2020 onwards MEP was required to remit the actual toll collection to SDMC on the basis of invocation of Force Majeure after deducting 7.5% as administrative and toll collection expenses and not 15% as claimed by them and so ordered by Ld. Single Judge, because as per OM dated 18.05.2020 only 50% of the administrative and toll collection expenses were to be reimbursed and not 100% of the same. We hold that there was no need to give notice of Force Majeure as the Government of India itself has made the said declaration to be effective from 26.03.2020 vide its OM dated 18.05.2020. It also takes care of the objection of the SDMC that MEP had given notice of invocation of Force Majeure only on 19.03.2020.
29. In view of the above, we hereby dispose of both the Letters Patent Appeals by holding that:
1). The Force Majeure clause stands invoked w.e.f.
26.03.2020 in terms of OM dated 18.05.2020 issued by MORTH, Govt. of India and it shall stand revoked when 90% traffic, in comparison to the traffic before lockdown period of weekly basis, stands resumed.
2). The SDMC shall be entitled to weekly payments of Rs.20.00 crores till 25.03.2020 and after resumption of 90% traffic in comparison to the pre-lockdown period on weekly basis during pendency of the writ petition. Arrears of Rs.115.04 crores are held to be cleared without being affected by Force Majeure clause.