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TMI Blog2022 (3) TMI 824X X X X Extracts X X X X X X X X Extracts X X X X ..... n Bhatia, Advocates for SBI Mr. Anil Seth, Mr. Prateek, Udit Seth, Advocates for Intervenor Mr. Rajiv S Roy, Aurojyoti Chatterjee, Mr. Satyam Saxena, Advocates for Canara and UCO Bank Mr. Manish Paliwal, Mr. Vikas Kumar, for Intervenor Mr. Ashwin Kumar Nair, Mr. Kunal Verma, Intervenor Mr. Vishnu Sharma, Ms. Anupma Sharma, Mr. Amar Jyoti Sharma, Advocates for Noida Authority Mr. Parag Maini, Mr. Abhimanyu Chopra, Advocates for SIB Mr. Abhinav Vashisht, Sr. Advocate with Manmeet Singh, Ishaan Duggal, Shatakshi Tripathi, Intervenor JUDGMENT ASHOK BHUSHAN, J. This Application has been filed by West Gujarat Expressway Limited, an entity, which is part of the Infrastructure Leasing & Financial Services Group ("IL&FS Group") praying for quashing the Termination Notice dated 21st December, 2021 issued by National Highways Authority of India ("NHAI"). 2. The Applicant entered into a Concession Agreement on 22nd March, 2005 with the NHAI for conversion of Jetput-Gondal-Rajkot bypass section of NH-8B into access controlled four lane highway with service lanes along certain sections and strengthening of the existing lanes from km 1117 to km 143.0 and improvement to Gondol-Rajkot sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ill severally prejudice the Applicant and also impact the overall Resolution of IL&FS Group. It is submitted that Applicant has liability towards its lenders and on the basis of collections made from Toll, the Applicant was discharging its debt having been categorized as 'Green entity'. The termination at this stage shall hamper the capacity of the Applicant to serve its debt. The learned Senior Counsel for the Applicant also cites subsequent order dated 23rd October, 2019 passed in IA No.3320 of 2019 to support the submission. It is submitted that to the Cure Notice issued by the NHAI, on 2nd April, 2021 Applicant has submitted appropriate reply and further to the Preliminary Termination Notice dated 16th July, 2021, Applicant has submitted reply and there was no default on the part of the Applicant, so as to invoke the power of termination under the Concession Agreement. 6. The learned Counsel appearing for the NHAI refuting the submissions of learned Senior Counsel for the Applicant contends that NHAI is not party to the present Appeal in this Tribunal, nor was heard before passing the order dated 8th April, 2019. The order dated 8th April, 2019 is not an order, which was conti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 16.04.2019 at least with regard to the four Amber Entities in question. They will also try to prepare a similar chart with regard to rest of the nine Amber Entities by the same date. The 'Financial Creditor' and the 'Operational Creditor' of these four companies will also handover their respective charts showing the amount payable and matured and the amount, if any, they have generated from Provident Fund or Pension Fund or any other Fund, e.g. Gratuity Fund or Superannuation Fund etc. by the same date, i.e., 16.04.2019 along with relevant provisions of the contract, which should not be more than two pages. With regard to the rest of the companies, if any other company has been declared as 'Green Entity' or 'Amber Entity' or 'Red Entity', the Appellant- Union of India will also file an affidavit in regard to such company. Post these Appeals 'for orders' on 16.04.2019 at 04:00 PM. In the meantime, the National Highway Authority of India will not take any step to cancel any agreement with any of the companies in question." 10. The learned Counsel for the Applicant has not been able to point out any order passed in this Appeal continuing the order dated 8th April, 2019, subsequ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Board of Directors of the IL&FS and Committee if constituted that it has already filed its Resolution Plan, which is viable and feasible and for the said purpose, it was desirable to continue with the Concession Agreement. Interim direction was "If the matter is brought to the notice of the Board of Directors, it will consider the same in accordance with law and the order dated 8th April, 2019 passed by this Appellate Tribunal. IA stands disposed of". The reference of order dated 8th April, 2019 was not for purpose of referring to restrain in cancelling of any Agreement by the NHAI, rather reference to 8th April, 2019 order was with regard to the earlier part of the order where Union of India was directed to file an affidavit with regard to declare 'Green Entity' or 'Amber Entity' or 'Red Entity'. Thus, in order dated 23rd October, 2019, the interim direction passed on 8th April, 2019 restraining the NHAI not to take any step to cancel the Agreement was not continued. We thus are not persuaded to submission of Shri Ramji Srinivasan that order dated 23rd October, 2019 continued the restraint order, which was passed against the NHAI from taking any action to cancel the Agreement. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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