Court upholds Force Majeure clause, directs payment reconciliation, deems termination premature. Retired judge appointment rejected.

The court upheld the invocation of the Force Majeure clause by MEP, effective from 26.03.2020, as per the OM dated 18.05.2020. MEP was directed to pay dues after deducting expenses and reconcile accounts with SDMC. The termination notice issued by SDMC was deemed premature. The court rejected the appointment of a retired judge for dispute resolution. An assessment of traffic flow and reconciliation of accounts were ordered, with the hearing date preponed to 24th November 2020 for expeditious disposal.

---

---

Issues Involved:
1. Invocation of Force Majeure clause.
2. Compliance with court orders by MEP.
3. Validity of termination notice issued by SDMC.
4. Calculation and payment of dues by MEP.
5. Appointment of a retired judge for dispute resolution.
6. Implementation of OM dated 18.05.2020 by MORTH, Govt. of India.
7. Assessment of traffic flow at toll gates.
8. Reconciliation of accounts between MEP and SDMC.

Detailed Analysis:

1. Invocation of Force Majeure Clause:
The court addressed the invocation of the Force Majeure (FM) clause by MEP, which was acknowledged by the Government of India's notification dated 19.02.2020. The court observed that the FM clause was rightly invoked by MEP, but the national lockdown was declared on 24.03.2020. The court concluded that the FM clause came into effect from 26.03.2020, as per the OM dated 18.05.2020 issued by MORTH, Govt. of India.

2. Compliance with Court Orders by MEP:
The court noted that MEP had defaulted on the payment of Rs.20.00 crores per week as per the interim order dated 02.03.2020. The court observed that the SDMC had bank guarantees worth Rs.64.00 crores, which could have been invoked to meet the shortfall in payments. The court held that there was no breach of the order dated 02.03.2020 by MEP up to 16.03.2020, but MEP defaulted on 17.03.2020 and 23.03.2020.

3. Validity of Termination Notice Issued by SDMC:
The court upheld the finding of the learned Single Judge that the termination notice dated 16.03.2020 issued by SDMC was premature by one day, as the 15-day period for payment of Rs.38.00 crores was to end on 17.03.2020.

4. Calculation and Payment of Dues by MEP:
The court clarified that the Force Majeure clause applied from 26.03.2020 onwards. MEP was required to deposit the actual toll collection after deducting 7.5% as administrative and toll collection expenses. The court directed that the excess administrative and toll collection expenses deducted by MEP should be deposited with SDMC within 15 days.

5. Appointment of a Retired Judge for Dispute Resolution:
The court rejected the request for appointing a retired judge to adjudicate the dispute, stating that it was not inclined to order the same without the consent of the other party.

6. Implementation of OM Dated 18.05.2020 by MORTH, Govt. of India:
The court held that the Force Majeure clause stood invoked w.e.f. 26.03.2020 as per the OM dated 18.05.2020 issued by MORTH, Govt. of India. The court directed that the Force Majeure clause would stand revoked when 90% of the traffic, in comparison to the pre-lockdown period, resumed.

7. Assessment of Traffic Flow at Toll Gates:
The court directed the learned Single Judge to order an exercise to be conducted by a reputed agency to estimate the flow of traffic passing through toll gates managed by MEP from 26.03.2020 onwards. SDMC was also allowed to install CCTV or any other mechanism to count the vehicles passing through toll gates until 90% traffic resumed.

8. Reconciliation of Accounts Between MEP and SDMC:
The court directed both parties to reconcile their accounts from 03.03.2020 onwards to ensure strict compliance with the order dated 02.03.2020. MEP was instructed to ensure that all bank guarantees and post-dated cheques were deposited with SDMC and kept valid during the pendency of the writ petition.

Conclusion:
The court disposed of both the Letters Patent Appeals with specific directions regarding the invocation of the Force Majeure clause, payment of dues, assessment of traffic flow, and reconciliation of accounts. The court also preponed the date of hearing before the learned Single Judge to 24th November 2020 and requested the expeditious disposal of the writ petition.

---