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The Private Participants and AAI (along with the AAI Nominees) hereinafter collectively referred to as the "Shareholders" and individually as "Shareholder".
"OMDA" means the Operation, Management and Development Agreement entered into, on or about the date hereof, between the AAI and the JVC;"

THE CONTROVERSY

5. In terms of the ROFR Clause, Respondent no. 1 offered its entire shareholding of 16,20,00,000 shares constituting 13.5% stake in the Company ("Shares") for sale to the Petitioner. The Petitioner contends that the offer was accepted and there is a binding agreement between the parties for the sale of shares. It is also inter alia contended that Respondent No. 1 is not ready and willing to fulfil its obligations and the shares are not in a deliverable state. Respondent No. 1 does not dispute that the Petitioner has ROFR in respect of the Shares, but contends that the right has expired/ lapsed since Petitioner has not completed the transaction within the period stipulated in the agreement and that the Shares now have to be offered to Respondent No. 3 in terms of Clause 3.7 of the SHA. It is also asserted that Petitioner does not have financial capacity to complete the transaction and is delaying the matter. Thus, the controversy revolves around the exercise of the Petitioner's ROFR under the Shareholders Agreement dated 4th April 2006.

Thus, prima facie there is no merit in the contention of the Petitioner and the court cannot interpret the clause as suggested by the Petitioner.

Controversy surrounding the requirement of obtaining approvals for transfer of shares

43. Mr. Rajiv Nayar has argued that there are certain pre-requisite approvals necessary in order to complete the transaction, such as 1) under relevant provisions of the Competition Act, 2002; 2) the approval from the Banks/ lenders on account of an agreement between lenders and MIAL. Both the above-noted approvals, that may be necessary, arose on account of subsequent events. The necessity of approval, if any, under the provisions of Competition Act, 2002, became necessary in 2011 and the agreement between the lenders and MIAL was executed in 2017 and 2018. However, the parties did not incorporate any such extension of timelines on account of the above. Another approval that has been envisaged under Clause 3.7 is the approval from Airport Authority of India in terms of Clause 2.5 of OMDA. On the question of necessity of taking approval from AAI, Mr. Abhinav Vashisht, learned Senior Counsel appearing on behalf of AAI, has drawn the attention of this Court to letters dated 22nd March 2019 written by AAI to MIAL and response thereto. The said two letters read as under:-

"Subject: AAI approval in terms of OMDA and Shareholder's Agreement.
This is with reference to your letter dated 18th March 2018 in response to AAI mail dated l5th March 2018 on the subject stating that the permission of AAI need to be obtained by the Prime members and the evaluated entities for the transfer of the shares of MIAL from ACSA and Bid vest to GVK Airport Holdings. Ltd. and not MIAL
2. In this regard, reference is made to Article 2.5(c) and 2.5(h) of. OMDA as per which the permission of AAI needs to be obtained by the JVC which would be given subject to AAl ensuring that the capabilities of the JVC are not inferior pursuant to the share transfer of the JVC than prior to the transfer .
2) MIAL letter No. MIAL/CE0/104 dated 181h March,
3) AAI Letter No. AAI/MC/MIAL-07 /EC/2019 dated 22nd March, 2019 With reference to subject above and further to correspondences exchanged between AAI and MIAL so far, we would like to mention as follows:
1) MIAL was first intimated about the PP Offer Notices of Bid Services Division (Mauritius)Ltd and ACSA Global Ltd by AAI vide its letters No. AAI/MC/MIAL-07/EC/2019 dated 7thMarch.