TaxTMI 
TaxTMI 
2026 (3) TMI 1593
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.... No.2851 of 2025 filed by the Respondent No.1, the Successful Resolution Applicant praying for various reliefs. The Adjudicating Authority by the impugned order has disposed of the application. Aggrieved by which order this appeal has been filed. Brief facts of the case necessary to be noticed for deciding this appeal are: (i) Delhi Metro Rail Corporation (DMRC) has issued a LOA dated 16.10.2009 in favour of M/s Pratibha Industries Ltd. (PIL) for construction of Multi-level parking with commercial development at New Delhi Railway Station-cum-Airport Terminal of Airport Express Line. For development of the project M/s PIL entered into a Concession Agreement dated 01.04.2010. A special purpose vehicle for performance of obligation under the Concession Agreement was constituted namely M/s Prime Infrapark Pvt. Ltd. (PIPL). The Concession Agreement contains clauses for 'Termination by DMRC', 'Consequences of termination', 'Arbitration'. DMRC approved assignment of all the rights and liabilities by PIL to PIPL i.e. Corporate Debtor. (ii) DMRC issued thirty days' notice to cure cum termination notice as per Article 11.2 of the Concession Agreement for payment of outstand....
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....ave heard Shri R. Venkataramani, learned Attorney General of India with Shri Tarun Johri, Advocate for the Appellant and Shri Abhishek Anand, learned counsel appearing for the Respondent No.1. 3. Learned counsel for the Appellant submitted that the Concession Agreement in favour of the Corporate Debtor was terminated on 01.09.2017 much prior to initiation of the CIRP against the Corporate Debtor. The Concession Agreement having been terminated, no issue pertaining to the Concession Agreement could have been agitated before the Adjudicating Authority and the Adjudicating Authority had no jurisdiction to entertain I.A. No.2851 of 2025, which sought direction to the Appellant to revive the Concession Agreement. The reliefs which were sought by the IA were beyond the jurisdiction of the NCLT. Learned Attorney General however submitted that the Appellant is still ready to consider request by the Respondent No.1 for any conciliation or arbitration in accordance with the Concession Agreement with liberty to the parties to raise all available pleas in law. It is submitted that the Adjudicating Authority has no jurisdiction to issue direction to revive the Concession Agreement. Appellant....
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....ding which has been initiated shall be requested to be adjourned. We direct that the contempt proceeding be not proceeded any further. 6. Counsel appearing for the Respondent submits that the limited prayer which Respondent No.1 has prayed was that conciliation proceeding which where prior to initiation of insolvency in relation to the Concession Agreement should be revived." 6. There is no dispute between the parties that Concession Agreement under which the PIL/PIPL were granted for development of the project stood terminated by the Appellant on 01.09.2017. It is also on the record that the Corporate Debtor has invoked Clause 12 of the Concession Agreement i.e. Arbitration Clause and a request proposal was submitted by PIL to the Appellant for reinstatement of the Concession Agreement. A letter dated 08.04.2022 was written by the Appellant, which letter is annexed as Annexure 11 to the record. It is useful to notice clause 12.2 of the Concession Agreement which deals with Arbitration: "12.2 Arbitration 12.2.1 Procedure Subject to the provisions of Clause 11.1, any Dispute, which is not resolved amicably, shall be referred to a panel of three (3) arbi....
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....all expenses including revenue and capital expenditure till date including the revenue or capital expenditure incurred in the project and the details of vacant space. e. By way of ad-interim, ex-parte order the payments as proposed under the resolution plan/schedule of payment be stayed during the pendency of the present application including the demand raised by way of email dated 15.01.2025 by Respondent No 4 demanding the payment of Rs. 4,00,00,000 be stayed.; f. By way of ad-interim, ex-parte orders the adjustment of the amount of Rs. 3,06,25,000 vide UTR nos. SCBLR12024053100806744 dated 31.05.2024 and Rs. 193,75,000/- vide UTR no. HDFCr52024053162007608 dated 31.05.2025 as part of performance guarantee deposited by way of RTGS be stayed; g. Direct DMRC to act upon the resolution plan and the order of NCLT dated 30/7/2024 approving that resolution plan in "letter and spirit" and reinstate the Concession cum License Agreement dated 01.04.2010 in favour of PIPL. h. In the event of the Hon'ble Tribunal finding that the concession agreement cannot be revived, the Respondent No. 2 to 4 be directed to refund the amount of Rs. 5,00,00,000/- dep....
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....this Hon'ble Adjudicating Authority; e. Pass such other further order/ order(s) as may be deemed fit and proper in the facts and circumstances of the case. 10. As noted above, the application was objected by filing a reply. In the reply, the Appellant has relied on judgment of the Hon'ble Supreme Court in "Tata Consultancy Services Ltd Vs. Vishal Ghisulal Jain; (2022) 2 SCC 583" to contend that prayers made before the NCLT could not be considered which touches the terminated Concession Agreement by the Appellant, which was made on 01.09.2017 much prior to initiation of CIRP. 11. As noted above, when this appeal was heard, clear submission was made by learned counsel for the Respondent that by the impugned order the NCLT has not directed for revival of the Concession Agreement. There can be no quarrel to the proposition that Concession Agreement which was terminated on 01.09.2017 much prior to initiation of CIRP of the Corporate Debtor cannot be subject matter of the CIRP process and no direction could have been issued to the Appellant either in the Resolution Plan or order impugned for revival of the Concession Agreement which stood terminated. 12. What has been s....