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or "nullified" the termination notice by continuously participating in the defect rectification process prior to and after the termination notice and by its conduct of operating the line subsequent to the termination notice?

C. Is the sudden and abrupt abandonment of a public interest project and the abrupt termination of the OA by DAMEPL valid?

67. Looked from all angles and situations, we are not inclined to interfere with the finding recorded in the Award rejecting the contention of DMRC that DAMEPL had withdrawn or waived the termination notice.

Termination on 'DMRC Event of Default'

68. As noticed above, DAMEPL had issued cure notice dated 9 th July, 2012 followed by termination notice dated 8th October, 2012.

69. Counsel for both sides had drawn our attention to Article 29 of the CA under the heading "Termination for the Concessionaire event of Default". Relevant clauses of Article 29.1.1, which deals with DMRC's right to terminate, read as under:-

(xiv) The Concessionaire repudiates this Agreement or otherwise evidences an intention not to be bound by this Agreement;

XXXXX (xvi) The Concessionaire has delayed any payment that has fallen due under this Agreement if such delay exceeds 90 (ninety) days."

70. Article 29.1.2 empowers the DMRC to terminate the agreement by issue of termination notice to the concessionaire if the concessionaire has failed to cure such breach or default within the period provided in the CA. However, before issuing termination notice, DMRC was obliged to issue notice in writing to inform the concessionaire of its intent to issue termination notice and grant 15 days time to the concessionaire to make representation against such intended termination notice. Upon expiry of 15 days, whether or not any representation was received, DMRC had sole discretion to issue termination notice. Article 29.1.3 is subject to Article 29.2 and stipulates that the DMRC could issue cure notice for any of the defaults or breaches under the agreement asking the concessionaire to cure the breach or default specified therein. Issue of cure notice would not relieve the concessionaire from liability of damages caused by breach or default or extend the period of the CA. DMRC, however, had right to extend the period during which the concessionaire was required to take reasonable action to cure the defects. We shall subsequently refer to Article 29.4 as this clause is of some significance, when we deal with the question of computation/calculation of termination made in the Award with reference to termination payment payable on „DMRC Event of Default‟

77. We have already quoted paragraph 78 of the Award, which states that the DMRC had failed to take effective steps to cure the breach within 90 days of the notice dated 9th July, 2012 and as such ingredients of Article 29.5.1(i) of the CA were satisfied. Termination notice issued on 8th October, 2012, effective immediately was valid. Paragraph 115 records that the Arbitral Tribunal had already concluded in paragraph 78 that termination notice dated 8th October, 2012 was valid. Accordingly, the counter claims of DAMEPL were being considered. Ex facie the CA could not have been terminated with immediate effect from the date of termination notice. DAMEPL would not even contend to the contrary.