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Liberty to Pursue the Rights and Remedies of Due Debt Falling Within the Ambit of the Arbitration: Supreme Court of India

The liberty to pursue their rights and remedies in pursuance of the arbitration clause contained in the Concession Agreements on all PART (F) 67 matters falling within the ambit of the arbitration agreement. This honorable judgement was passed by Supreme Court of Indis in the case of Rapid MetroRail Gurgaon Limited Etc v. Haryana Mass Rapid Transport Corporation Ltd &Ors. [Civil Appeals Nos. 925-926 of 2021] by Dr Justice Dhananjaya Y Chandrachud.

The appellants filed Special Leave Petitions challenging orders dated 12 October 2020 and 16 December 2020 passed by the High Court. The order of this Court dated 5 February 2021 issuing notice. On 22 February 2021, two financial institutions, Andhra Bank and Canara Bank, were permitted to file their responses. The Special Leave Petitions were listed thereafter, and have been taken up for final disposal. On 12 October 2020, the Division Bench of the High Court noted the affidavit that had been filed by the Advisor (Planning) HMRTC and took the affidavit on record, while also noting the submission of RMGL and RMGSL that the matter “does not brook any delay”. The hearing was then adjourned to 16 October 2020 to facilitate filing of replies. The proceedings then came up before the High Court on 16 December 2020, when on the request of the counsel for the petitioners before the High Court (HMRTC and the State of Haryana), the hearing was deferred to 8 April 2021.

The above expression indicates that the term debt due comprises of three components: (i) The principal amount of the debt provided by the senior lenders under the financing agreement; (ii) All accrued interest, financing fees and charges payable under the financing agreement; and (iii) Any subordinated debt which is included in the financial package.

The court disposed of the proceeding stating that, “HSVP shall within a period of three months from the date of the present judgment deposit into the Escrow Account 80 per cent of the debt due as determined in the reports of the auditors dated 23 June 2020, in the case of RMGL and RMGSL respectively; RMGL and RMGSL on the one hand, and HSVP on the other, are at liberty to pursue their rights and remedies in pursuance of the arbitration clause contained in the Concession Agreements on all PART F 67 matters falling within the ambit of the arbitration agreement, including the validity of the notices of termination, any past or future inter se claims and liabilities as envisaged in the order of the High Court dated 20 September 2019, in regard to the determination of the debt due, any of the parties would be at liberty to raise a dispute in the course of arbitral proceedings; Upon compliance with the directions contained in above, RMGL and RMGSL shall execute and handover to HSVP all documents which are required for effectuating the transfer of operations, maintenance and assets to HSVP or their nominees with a view to fulfill the obligation of the concessionaires in Article 25 of the Concession Agreement dated 9 December 2009.”

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