Delhi High Court
Delhi Airport Metro Express ... vs Delhi Metro Rail Corporation Ltd. on 10 March, 2022
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: February 21, 2022
Pronounced on: March 10, 2022
+ OMP (ENF.) (COMM.) 145/2021 & EX.APPL.(OS) 1008/2021,
1282/2021, 38/2022
DELHI AIRPORT METRO EXPRESS PRIVATE
LIMITED ..... Decree Holder
Through: Mr.Rakesh Khanna, Senior Advocate
with Mr. Mahesh Agarwal, Mr. Rishi
Agrawala, Ms. Megha Mehta,
Ms. Niyati Kohli, Mr. Pranjit
Bhattacharya & Ms. Manavi Agarwal,
Advocates
Versus
DELHI METRO RAIL CORPORATION
LTD. ..... Judgement Debtor
Through: Mr.Parag P. Tripathi & Mr.Ajit
Kumar Sinha, Senior Advocates with
Mr. Tarun Johri, Mr. R. Srinivasan &
Mr. Vishwajeet Tyagi, Advocates
Mr. Ramji Srinivasan, Senior
Advocate with Mr. PBA Srinivasan,
Ms. P.S. Chandralekha & Mr. Parth
Tandon, Advocates for
applicants/Canara Bank & Union
Bank of India
CORAM:
HON'BLE MR. JUSTICE SURESH KUMAR KAIT
JUDGMENT
1. The present petition has been filed under Section 36 of the Arbitration
and Conciliation Act, 1996 by the decree holder- Delhi Airport Metro
Express Private Limited (henceforth referred to as the „Delhi Airport
Metro‟) seeking execution/enforcement of the arbitral award dated
11.05.2017.
2. Pertinently, the challenge to the arbitral award dated 11.05.2017 by
the judgment debtor under the provisions of Section 34 of the Act stood
dismissed vide judgment dated 06.03.2018 [OMP (COMM.) No. 307 of
2017], against which judgment debtor preferred an appeal [FAO (OS)
(COMM) No. 58 of 2018], which was partly allowed by the Division Bench
of this Court vide judgment dated 15.01.2019 and the impugned award was
set aside. Against judgment dated 15.01.2019 passed by the Division Bench
of this Court, decree holder preferred a Special Leave Petition before the
Hon‟ble Supreme Court [Civil Appeal No. 5627 of 2021 in SLP(Civil) No.
4115 of 2019, (2022) 1 SCC 131)], which was allowed by judgment dated
09.09.2021 by the Hon'ble Supreme Court. The review petition [EA (OS)
No. 1282 of 2021] filed by the judgment debtor against the judgment dated
09.09.2021 also stood dismissed by the Hon'ble Supreme Court on
23.11.2021. Hence, the present petition is being filed by the decree holder
for execution of the award dated 11.05.2017 passed by the learned arbitral
tribunal.
3. Learned senior counsel for decree holder submitted that the award
being final and binding is enforceable under Section 36 of the Act read with
the provisions of the Code of Civil Procedure, 1908 and deserves to be
executed as such.
4. Learned senior counsel for decree holder next submitted that gross
decreetal sum along with interest up to 14.02.2022 computed in accordance
with the arbitral award is Rs. 8009.38 crores. Out of the said amount, only a
sum of Rs. 1678.42 crores has been paid so far by DMRC. Thereby, as on
14.02.2022, the remaining decreetal amount payable with interest is
Rs.6330.96 crores [Rs.8009.38 crores - Rs. 1,678.42 crores]. Learned senior
counsel for decree holder also submitted that the aforesaid calculation has
strictly been made in accordance with the arbitral award and the settled legal
principles, which are certified by the Chartered Accountant vide Certificate
dated 13.02.2022.
5. Besides other grounds, the primary objection raised by the judgment
debtor to the aforesaid calculation submitted on behalf of decree holder, is
that the decree holder has calculated interest for the delayed period of
Termination Payment at the rate of Prime Lending Rate + 2% interest
whereas it should have been calculated on the basis of applicable Prime
Lending Rate (PLR) notified by SBI. Learned senior counsel for judgment
debtor submitted that as per the Arbitration Award dated 11.05.2017 higher
deterrent interest to be paid in case of unpaid amount to decree holder as per
Article 29.8 of the Concession Agreement, is SBI Prime Lending Rate +
2%.
6. It was also submitted by learned senior counsel that Reserve Bank of
India had replaced the Prime Lending Rate with Base Lending Rate vide
notification dated 01.07.2010, which was further replaced with Marginal
Cost of Lending Rate w.e.f. 01.04.2016.
7. During the course of hearing, learned senior counsel for judgment
debtor drew attention of this Court to the provisions of Section 31 (7) of the
Arbitration and Conciliation Act, 1996 wherein it is stated that "the arbitral
tribunal may include in the sum for which the award is made interest" to
submit that the word "may" clearly points out that the discretion is vested in
the arbitral tribunal, which in this case has been exercised by the arbitral
tribunal and no interest over interest i.e. capitalization of the awarded
amount till the date of the award, has been awarded. It was submitted that
the execution amount claimed by the Delhi Airport Metro is incorrect as it
has added on the Termination Payment Amount as stood on the date of
becoming due i.e. 07.08.2013 plus the amount of interest @SBI Prime
Lending Rate +2% till the date of the Award i.e. 11.05.2017 and thereafter,
it has applied interest on such capitalization amount from the date of Award
till 14.02.2022. Learned senior counsel for judgment debtor submitted that
decree holder itself has not claimed interest over interest in the prayer made
before the Tribunal and also, the same has not been awarded by the Tribunal
and so, the amount has to be reduced by an amount of Rs.1258.33 crore,
which has been wrongly added as compound interest till 14.02.2022.
8. Learned senior counsel for judgment debtor further submitted that
under interim orders of this Court, judgment debtor had paid amount of
Rs.678.42 crores to decree holder on different dates, which has been
deducted by the decree holder as the final amount, whereas it should be been
made less on actual dates of payment and thereby, reducing the principal
amount and passing of the reduced interest amount benefit to the judgment
debtor. It was submitted that as on 14.02.2022, amount of Rs.417.22 cores is
to be deducted from the Termination Payment amount as calculated by the
decree holder as well as amount of Rs.1,000 crores paid by the judgment
debtor during pendency of this petition.
9. On the asking of this Court, respondent/ DMRC placed on record
affidavit dated 10.01.2022 disclosing its fund position. According to the said
statement, a total of Rs.5694.25 crores is available as on 14.02.2022, which
includes funds under the heads (i) DMRC funds of Rs.1452.10 crores (ii)
Project funds of Rs.2,681.29 crores and (iii) funds of Rs.1560.86 crores
under the head of Other than DMRC funds.
10. Learned senior counsel for judgment debtor pleaded that the DMRC is
not possessed of sufficient resources to satisfy the amount due under the
Award and the funds available under the head "Project Funds" pertain to the
equity and debt funds available to DMRC for construction of Mass Rapid
Transport System in Delhi by DMRC and the said equity funds can be
utilized by the DMRC only for the said purpose, as these funds have been
invested by the Government of India and Government of NCT of Delhi in
the share capital of DMRC solely for the purpose of construction of Metro
Project and cannot be attached for any payment to the Creditors of the
DMRC. Learned senior counsel submitted that the Government of India and
GNCTD while issuing different orders have contemplated the manner in
which the funds allocated are to be employed for the purpose of construction
and procurement of building, track, rolling stock and other fixed structures
etc. and thereby, the funds invested by Government of India are part of
capital expenditure to be incurred in the creation of fixed assets of the Metro
and do not qualify as "earnings" of DMRC and thus, cannot be attached.
11. Learned senior counsel for judgment debtor next submitted that the
funds reflected under the head "Other than DMRC funds" pertain to the
funds provided by Government of Bihar and Government of Maharashtra for
carrying on, "Deposit Work" by the DMRC of construction of Metro Rail in
the city of Patna and Mumbai. It was, therefore, submitted that the funds
received by DMRC as part of Deposit Work are not under the ownership of
DMRC, who is only a trustee and has to employ these funds for the purpose
of construction of Metro Rail in Patna and Mumbai. It was submitted that
for the said work, DMRC is entitled to receive only "Fee" amount and so,
the funds other than the "fee" are to be spent towards the expenditure of
construction of the Metro Rail only. It was submitted that the net fee payable
to DMRC is Rs.482.97 crores for Bihar Agreement, which shall be paid on
completion of full project and Rs.329 crores + Rs.329 cores for Mumbai
project, which shall be payable to DMRC in 20 quarterly equal installments.
12. It was emphatically submitted by learned senior counsel for judgment
debtor that the "Project Funds" and "Other than DMRC funds" cannot be
attached in execution of decree, as it is settled law that the monies advanced
and earmarked for a purpose, are impressed with the character and cannot be
proceeded against by the creditors. It was also submitted that the monies
received by the DMRC are neither a saleable property belonging to the
judgment debtor nor are funds over which it has disposing power and
therefore, cannot be attached. Reliance was also placed upon provisions of
Section 60 of Code of Civil Procedure to submit that only such saleable
property shall be liable to attachment in execution of a decree which are
belonging to the judgment debtor or over profits of which, it has a disposing
power, except for the purpose of which they have been received. Further
submitted that the bar contemplated under Section 89 of the Metro Railways
(Operation & Maintenance) Act, 2002 is in the form of statutory protection
conferred by the Parliament upon DMRC in public interest and as per the
provisions thereof, no rolling stock, metro railway tracks, machinery, plant,
tools, fittings, materials or effects used or provided by the metro railway
administration for the purpose of traffic/stations/workshop or offices shall be
taken in execution of any decree or order and it is only the earnings of the
metro railway administration which can be attached in execution of a decree
or an order.
13. Learned senior counsel for judgment debtor submitted that the funds
which have been earmarked to DMRC cannot be attached in the first
instance, as the same are for construction of metro lines and further, the
rolling stock, tracks, plant, machinery, building, etc., cannot also be attached
in view of the bar contemplated under Section 89 of the 2002 Act. Also
submitted that the revenue of an organization means the „Gross Inflow of
Cash‟ and not „earnings‟. So, the funds/revenue available with the judgment
debtor after defraying all expenditures shall be the „earnings‟ which can only
be attached in execution proceedings.
14. Once again attention of this Court was drawn to additional affidavit
dated 21.12.2021 filed on behalf of judgment debtor before this Court to
submit that upon termination of Concession Agreement, in terms of Article-
30 thereof, decree holder can withdraw the payment amounts from the
ESCROW account only after Vesting Certificate is issued by the judgment
debtor, which has to be issued after all the specifications and covenants
under the agreement are performed by the decree holder, which in fact have
not been performed by the decree holder. It was submitted that this has led
to incurring of further expenditure to tune of Rs.297.82 crores to the
judgment debtor.
15. Lastly, learned senior counsel for judgment debtor persistently
submitted that because of restriction imposed due to Covid pandemic,
judgment debtor has incurred huge losses and is not in a position to raise
funds from the market and therefore, is unable to pay the execution amount.
16. In rebuttal, learned senior counsel for decree holder submitted that the
present petition is for execution of a decree arising out of arbitral award
dated 11.05.2017 wherein it has been held that the termination of
Concession Agreement dated 25.08.2008 by decree holder is valid awarded
and Claim No.1 has been awarded in favour of decree holder by granting
Termination Payment of Rs.2782.33 crores. Interest on the Termination
Payment (pre-award as well as post-award) has been awarded at the
contractually agreed rate of interest set out in Article 29.8 of the Concession
Agreement i.e. SBI Prime Lending Rate + 2%. In addition, arbitral tribunal
has also awarded Rs.147.52 crores as expenses incurred in running the line
post-termination, Rs.62.07 crores as costs of decree holder‟s Bank
Guarantee wrongfully invoked, and another Rs. 56.80 lakh towards security
deposits. It was strenuously submitted by learned senior counsel for decree
holder that the Award in question has been upheld by the Hon‟ble Supreme
Court and it is impermissible for an executing court to go beyond the decree
and/or the award. Factual objections can be raised in a suit in its trial but not
in execution proceedings. Learned senior counsel submitted that the
objection raised by the judgment debtor that instead of SBI Prime Lending
Rate, Base Rate or Marginal Cost of Lending Rate has to be used for
calculation of interest, was never raised in any proceedings so far and it
leads to modification of the Award, which in express terms directs payment
of interest basis SBI PLR + 2% on Termination Payment.
17. With regard to calculation of interest, learned senior counsel
submitted that decree holder/Delhi Airport Metro has unilaterally segregated
the period of interest in two parts i.e. period prior to 11.05.2017 i.e. the date
of award and thereafter, has capitalised interest for the period up to
11.05.2017 and calculated combined interest from 12.05.2017 till
14.02.2022 charging interest on interest. In this regard, learned senior
counsel submitted that under the provisions of Section 31 of the Arbitration
and Conciliation Act, 1996, the Arbitral Tribunal has the power to award
interest for pre-award period, interest pendente lite and interest for post
award period. Further, as per Section 31(7)(b) of the Act, unless otherwise
directed, interest shall be calculated at the rate 2% higher than the current
rate of interest prevalent on the date of award, from the date of award till
date of payment and by clause(b) means that the rate specified in the Award
or else, rate of interest shall be 2% higher than the current rate of interest
prevalent on the date of award and in the present case, the arbitral award
dated 11.05.2017 does direct about the applicable rate of interest. It was
submitted that inclusion of pendente lite interest along with the principal
amount till the date of Award and claiming interest on such sum awarded,
comprising of principal and interest, has already been dealt by the Hon‟ble
Supreme Court in catena of decisions.
18. Regarding the objection of judgment debtor that amount of Rs.678.42
crore paid by it on different dates should have been adjusted from the due
amount on the date of payment thereby reducing the interest component,
learned senior counsel for decree holder submitted that for appropriation of
amounts received in execution of money decrees in respect of Order XXI
Rule 1 of the CPC, it is settled legal principle that if the amount deposited
by the judgment debtor falls short of the decretal amount, the decree-holder
is entitled to apply the rule of appropriation by appropriating the amount
first towards interest, then towards costs and subsequently towards principal
amount due to the decree holder.
19. Learned senior counsel for decree holder submitted that judgment
debtor/DMRC is seeking to mislead this Hon'ble Court that it does not
possess sufficient resources to satisfy the amount due under the Award
whereas its own records reflect that its total revenue for F.Y. 2019-2020 was
approximately Rs. 7,015 crores; Other bank balances (Deposits) were to the
tune of Rs. 10280 crores and nothing prevents it from raising money to
satisfy the award. It was submitted that DMRC is completely a government
owned entity, having total assets of approximately Rs.78,439 crores and
being a government entity, it cannot claim any differential or special
treatment and refuse to honour a decree under the Arbitral Award, especially
when the Award has been upheld by Hon'ble Supreme Court. Reliance was
placed upon decision of Hon‟ble Supreme Court in the case of Pam
Developments Private Ltd. Vs. State of West Bengal (2019) 8 SCC 112
wherein it has been held that no special treatment can be given only because
Government is a party and that the provisions of CPC as well as the
Arbitration and Conciliation Act, cull out no difference between a private
party and the Government as a party.
20. Further submitted that as on 09.02.2022, judgment debtor has amount
of Rs.5708.50, however, it has pleaded that the „funds are not available with
the DMRC‟ and these are purportedly allocated towards future expansion
projects and for this purpose, judgment debtor has erroneously relied upon
the provisions of Section 89 of the 2002 Act, which is meritless and
untenable for the reason that Section 89 of the Act prohibits only those
properties which are used by a metro railway administration for the purpose
of traffic; such as rolling stock etc. on its railway or stations or workshops;
and it does not restrict attachment of bank accounts or any other properties,
which are not being used or provided by railway administration for the
purpose of traffic on its railway or its stations or workshops or offices.
Therefore, the distinction between funds and earnings raised by the
judgment debtor is fictitious and non-existent. It was cogently submitted that
Section 89(1) of the Act does not affect the power of any Court to attach the
earnings of metro railway in execution of a decree. So, the allocation made
by judgment debtor for utilizing the funds lying in its bank accounts, which
are intended expenditures not already incurred, are liable to be attached.
21. Learned senior counsel submitted that judgment debtor has
erroneously made claim of Rs.297.82 crores on account of Vesting
Certificate, which is self serving quantification and barred by limitation and
is meritless and does not at all deserve to be considered.
22. Lastly, learned senior counsel for decree holder submitted that the
judgment debtor has delayed the execution proceedings on frivolous
objections which were not raised by it either before the Arbitral Tribunal or
in Section 34 and Section 37 proceedings or in its Special Leave Petition
before the Hon‟ble Supreme Court, therefore, cannot be permitted to be
raised now in execution proceedings. The conduct of DMRC is to avoid
payment of a money decree, which has attained finality. It is, therefore,
prayed that judgment debtor be directed to forthwith pay to the decree
holder the balance decretal amount of Rs.6330.96 crores along with further
interest due up to the date of actual payment and amounts lying in the bank
accounts of judgment debtor as per affidavit of 10.01.2022 be attached to
recover the part payment i.e. Rs.5708.50 crores out of the awarded amount
and for the remaining amount of Rs.622.46 crores, judgment debtor be
directed to forthwith pay the same with up-to-date interest.
23. This Court has carefully gone through the material placed on record
and heard learned senior counsel representing both the sides at length. It is
not disputed that the arbitral award dated 11.05.2017 has attained finality by
virtue of decision of Hon‟ble Supreme Court dated 09.09.2021, wherein it
has been held as under:-
"52. The Tribunal awarded interest in accordance with the
terms of the Concession Agreement on termination payment.
DMRC contended before the High Court that the award in
respect of interest had to be set aside on the ground that it
would result in unjust enrichment. After a thorough
consideration of Article 29.8 and Article 36.2.6.1 of the
Concession Agreement, the High Court has rightly refused to
interfere with the findings by the Tribunal relating to interest
and we see no cause for interference.
53. For the aforementioned reasons, the appeal filed
by DAMEPL is allowed and the judgment [DMRC v. Delhi
Airport Metro Express (P) Ltd., 2019 SCC OnLine Del 6562]
of the Division Bench of the High Court is set aside. The
appeal arising out of SLP (C) No. 8311 of 2019 filed by
DMRC is dismissed."
24. In the aforesaid view of the matter, the question for determination by
this Court is limited to the extent of execution of the arbitral award dated
11.05.2017 with interest and also, how and in what manner the decreetal
amount shall be recovered from judgment debtor.
25. For the purpose of adjudicating as to what is due and payable to
decree holder, this Court has gone through the arbitral award dated
11.05.2017, wherein the claims of claimant/ respondent as well as counter
claims of decree holder have been awarded as under:-
"DMRC'S ISSUES ON CLAIM:
Sr. ISSUES ANSWERS
No.
1. Whether the letter dt. 08.10.2012 In the negative. The
issued by respondent is illegal, termination notice dtd.
incorrect and against the provisions 08.10.2012 issued by the
of the Concession Agreement and Respondent DAMEPL is
should be treated as null and void? valid.
2. Whether the Claimants have In the negative.
performed their obligations under
Concession Agreement towards
curing of the defects as pointed out
by the Respondent vide their letter
dated July 9, 2012?
3. Whether the real motive of Not relevant in view of
Respondent to terminate the answer to issues 1 and 2
concession agreement is Financial above.
viability of their Business Plan?
4. Whether the Claimants are entitled to In the negative.
the compensation of Rs.3173 crore
from the respondent along with
interest @ 18% as per the Claim
Petition?
5. Whether the Claimant is entitled to In the negative.
an amount of Rs.4.92 crore per
month as claimed in the Claim
Petition along with interest @ 18%
per annum?
6. Whether the Claimant is entitled to In the negative.
an amount of Rs.1,000 crores along
with interest as loss of reputation and
goodwill caused due to illegal acts of
the Respondent?
7. Whether the Claimant is entitled to We direct parties to bear
cost of the Arbitration proceedings? their own cost of
arbitration.
8. Whether, as stated by Respondents, In the affirmative.
the Claimants had failed to cure the
breach within the period specified
under Concession Agreement as per
the provisions of Article 29.5.1?
(Para 11 of Reply)
9. Whether, as stated by Respondent, Claimants DMRC failed to
the Claimants failed to make honest take effective steps for
or sincere efforts or take effective curing the defects as
steps for curing the defects as required by the Concession
required by Concession Agreement? Agreement.
(Para 11 & 12 of Reply)
10. Whether the participation of In the negative.
Respondent in the repair process,
submission of Application to CMRS
and recommencement of Operation
and Maintenance of the Project by
Respondent, proves that the
contentions of Respondent, as
contained in letter dated October 8,
2012, stood negated and nullified.
(Para 32 of the claim)
DMRC'S ISSUES ON COUNTER CLAIM:
Sr. ISSUES ANSWERS
No.
1. Whether the Respondent is entitled DAMEPL (Respondent) is
to sum of Rs.3470 cr. as entitled to the sum of
Termination Payment along with Rs.2782.33 crores from
interest and further interest @ SBI DMRC. Interest and manner
PLR plus 2% per annum as claimed of payment should be as
in the Counter Claim? stipulated in Articles 29.8
and 29.9 of CA.
2. Whether the Respondent is entitled In the affirmative. DAMEPL
to sum of Rs.166.32 crore including is entitled to receive the sum
interest on the Principal amount of of Rs.147.52 crores from
Rs.152.59 cr. of claims in Counter DMRC interest at the rate of
Claim? 11 percent per annum will
accrue from the date
requisite stamp duty is paid
by DAMEPL.
3. Whether the Respondent is entitled In the negative.
to sum of Rs.105.74 cr with interest
@ 18% per annum as claimed in
Counter Claim?
4. Whether the Respondent is entitled In the affirmative. DAMEPL
to an amount of Rs.66.93 crores is entitled to receive sum of
with interest @ 18% per annum as Rs.62.07 crores. Interest at
claimed in Counter Claim? the rate of 11 percent per
annum will accrue from the
date requisite stamp duty is
paid by DAMEPL.
5. Whether the Respondent is entitled In the affirmative. DAMEPL
to an amount of Rs.56.8 lakhs with is entitled to receive sum of
interest @ 18% per annum as Rs.56.8 lakh. Interest at the
claimed in Counter Claim? rate of 11 percent per
annum will accrue from the
date requisite stamp duty is
paid by DAMEPL.
6. Whether the Respondent is entitled In the negative.
to an amount of Rs.2382.82 crore
with interest @ 18% per annum as
claimed in Counter Claim?
7. Whether the Respondent is entitled In the negative.
to an amount of Rs.452.17 crore
with interest @ 18% per annum as
claimed in Counter Claim?
8. Whether the Respondent is entitled In the negative.
to an amount of Rs.1250 crore with
interest @ 18% per annum as
claimed in Counter Claims?
9. Whether the Respondent is entitled In the negative.
to an amount of Rs.2382.82 crore
with interest @ 18% per annum as
claimed in Counter Claim?
10. Whether the Respondent is entitled Parties to bear their own
to cost as claimed in the Counter cost of Arbitration.
Claim?
26. A perusal of the arbitral award dated 11.05.2017 shows that the
decree holder has been awarded Termination Payment of Rs.2782.33 crores
with interest at the rate of SBI PLR +2% w.e.f. 07.08.2013 onwards. In
addition, the tribunal has awarded Rs. 147.52 crores with 11% p.a. interest
as expenses incurred in running the line post-termination; Rs. 62.07 crores
with interest @11% p.a. as costs of decree holder‟s Bank Guarantee
wrongfully invoked and Rs.56.80 lakh with interest @11% p.a. towards
security deposits.
27. In the present petition, the decree holder has claimed the following
interest calculation in respect of Termination Payment:-
"Calculation of interest as on 10.09.2021
(All financial numbers in Rs. Crores)
Interest Calculation for Claim I - Termination Payment
S. Termination Start date End date No. Prevailing SBI Interest
No. Payment (in of SBI PLR PLR+2 for the
Rs. Crores) days % period
(in Rs.
Crores)
1. 2782.33 07.08.2013 18.09.2013 43 14.45% 16.45% 53.920
2. 2782.33 19.09.2013 06.11.2013 49 14.55% 16.55% 61.817
3. 2782.33 07.11.2013 09.04.2015 519 14.75% 16.75% 662.671
4. 2782.33 10.04.2015 07.06.2015 59 14.60% 16.60% 74.658
5. 2782.33 08.06.2015 04.10.2015 119 14.45% 16.45% 149.221
6. 2782.33 05.10.2015 31.12.2016 454 14.05% 16.05% 555.452
7. 2782.33 01.01.2017 31.03.2017 90 14.00% 16.00% 109.769
8. 2782.33 01.04.2017 11.05.2017 41 13.85% 15.85% 49.537
9. 4499.37 12.05.2017 30.06.2017 50 13.85% 15.85% 97.692
10. 4499.37 01.07.2017 30.09.2017 92 13.75% 15.75% 178.619
11. 4499.37 01.10.2017 31.12.2017 92 13.70% 15.70% 178.052
12. 4499.37 01.01.2018 31.03.2018 90 13.40% 15.70% 170.853
13. 4499.37 01.04.2018 30.06.2018 91 13.45% 15.45% 173.312
14. 4499.37 01.07.2018 30.09.2018 92 13.70% 15.70% 178.052
15. 4499.37 01.10.2018 09.12.2018 70 13.75% 15.75% 135.906
16. 4499.37 10.12.2018 09.09.2019 274 13.80% 15.80% 533.663
17. 4499.37 10.09.2019 15.12.2019 97 13.70% 15.70% 187.729
18. 4499.37 16.12.2019 09.03.2020 85 13.20% 15.20% 159.266
19. 4499.37 10.03.2020 09.06.2020 92 12.90% 14.90% 168.979
20. 4499.37 10.06.2020 09.09.2020 92 12.15% 14.15% 160.474
21. 4499.37 10.09.2020 09.12.2020 91 12.15% 14.15% 158.729
22. 4499.37 10.12.2020 09.03.2021 90 12.05% 14.05% 155.876
23. 4499.37 10.03.2021 14.06.2021 97 12.15% 14.15% 169.195
24. 4499.37 15.06.2021 10.09.2021 88 12.25% 14.25% 154.581
Total 4678.02
28. Regarding other claims, the decree holder has made the following
claims:-
S Claim No. Claim Start End date No. Of Interest Interest
No. amount date Days Rate for the
(In Rs. period
Crores) (In Rs.
Crores)
1. Claim2- 147.52 12-May- 10-Sep- 1583 11% 70.377
Expenses 17 21
incurred for
operating
line as Agent
2. Claim 4-BG 62.07 12-May- 10-Sep- 1583 11% 29.612
Encashment 17 21
3. Claim-5 0.57 12-May- 10-Sep- 1583 11% 0.271
Security 17 21
Deposit Paid
Total 100.26
29. A perusal of the aforesaid claims shows that calculation for interest
for the delayed payment of Termination Payment has been done in
accordance with Article 29.8 of the Concession Agreement i.e. SBI Prime
Lending Rate + 2% and not generic Prime Lending Rate + 2% as alleged
and the rates of SBI PLR have been taken for the period 07.08.2013 to
10.09.2021. The plea of judgment debtor that interest has to be calculated
keeping in mind the various notifications issued by RBI changing the basis
from PLR to BLR and then to MCLR cannot be permitted to be raised in
execution proceedings. Moreover, the Hon‟ble Supreme Court in its
judgment dated 09.09.2021 has categorically held that the interest
component is not required to be interfered with.
30. Further, the plea whether the decree holder has a right to claim
interest over interest till the date of the payment in terms of arbitral award in
question or not, the impugned arbitral award holds that the decree holder
shall be entitled to the interest from the date requisite stamp duty is paid by
it. In the present case, the requisite stamp duty is said to have been made
good by the decree holder on 12.05.2017. Meaning thereby, the interest on
the awarded amount shall commence from 12.05.2017 till the date of
realization. There is no observation in the award that interest, if not paid,
shall be added in the principal amount for future interest. Therefore, the
claim of decree holder that the outstanding interest has to be added in the
principal amount cannot be accepted.
31. During pendency of these proceedings, the judgment debtor had also
made payment of Rs.678 crores and Rs.1,000 crores i.e. Rs.1678.42 crores.
Even on the day orders in the present petition were reserved, learned senior
counsel for judgment debtor had undertaken that the amount of Rs.600crores
shall be deposited in the ESCROW account. The judgment debtor has raised
the contention that the payments made by the judgment debtor should have
been adjusted from the due amount on the date of payment can not be
accepted. The Constitution Bench of Hon‟ble Supreme Court in Gurpreet
Singh Vs. Union of India, (2006) 8 SCC 45 has held that the payments
made by the judgment debtor to decree holder has to be appropriated first
towards the interest and costs and then towards the principal amount. Also,
the Hon‟ble Supreme Court in Bharat Heavy Electricals Ltd. Vs. R.S. Avtar
Singh (2013) 1 SCC 243 has held that if the payment made by the
judgment-debtor falls short of the decreetal amount, the decree-holder will
be entitled to apply the general rule of appropriation by appropriating the
amount deposited towards the interest, then towards costs and finally
towards the principal amount due under the decree and observed as under:-
"31. From what has been stated in the said decision, the
following principles emerge:
31.1. The general rule of appropriation towards a decretal
amount was that such an amount was to be adjusted
strictly in accordance with the directions contained in the
decree and in the absence of such directions adjustments
be made firstly towards payment of interest and costs and
thereafter towards payment of the principal amount
subject, of course, to any agreement between the parties.
31.2. The legislative intent in enacting sub-rules (4) and
(5) is a clear pointer that interest should cease to run on
the deposit made by the judgment-debtor and notice given
or on the amount being tendered outside the court in the
manner provided in Order 21 Rule 1(1)(b).
31.3. If the payment made by the judgment-debtor falls
short of the decreed amount, the decree-holder will be
entitled to apply the general rule of appropriation by
appropriating the amount deposited towards the interest,
then towards costs and finally towards the principal
amount due under the decree. 31.4. Thereafter, no further
interest would run on the sum appropriated towards the
principal. In other words if a part of the principal amount
has been paid along with interest due thereon as on the
date of issuance of notice of deposit interest on that part of
the principal sum will cease to run thereafter. 31.5. In
cases where there is a shortfall in deposit of the principal
amount, the decree-holder would be entitled to adjust
interest and costs first and the balance towards the
principal and beyond that the decree-holder cannot seek to
reopen the entire transaction and proceed to recalculate
the interest on the whole of the principal amount and seek
for reappropriation."
(Emphasis supplied)
32. In the light of afore-noted decisions of Hon‟ble Supreme Court in
Gurpreet Singh (Supra) and Bharat Heavy Chemicals Limited (Supra),
this Court is of the opinion that the part payments made on behalf of
judgment debtors shall be first adjusted towards the outstanding interest
component and cannot be taken as payments made towards the principal
amount.
33. On the aspect as to whether the funds available with the DMRC under
different heads in terms of additional affidavit dated 21.12.2021can be
attached barring provisions of Section 89 of the Metro Railways (Operation
& Maintenance) Act, 2002 or Section 60 CPC, this Court has gone through
the aforesaid provisions of law.
34. The provisions of Section 89 of the Act of 200, read as under:-
"89. Restriction on execution against metro
railway property.-- (1) No rolling stock, metro
railway tracks, machinery, plant, tools, fittings,
materials or effects used or provided by a metro
railway administration for the purpose of traffic
on its railway, or its stations or workshops, or
offices shall be liable to be taken in execution of
any decree or order of any court or of any local
authority or person having by law the power to
attach or distrain property or otherwise to cause
the property to be taken in execution, without the
previous sanction of the Central Government.
(2) Nothing in sub-section (1) is to be construed
as affecting the authority of any court to attach
the earnings of the metro railway administration
in execution of a decree or order."
35. The afore-noted Section 89 of the Act mandates that without prior
sanction of the Central Government, the property mentioned in sub-Section
(1) of Section 89, cannot be attached in execution, however it does not fetter
the authority of the Court to attach the earnings of the metro administration
in execution of a decree or order.
36. Further, the provisions of Section 60 CPC provide that:-
1) The following property is liable to attachment and
sale in execution of a decree, namely, lands, houses or
other buildings, goods, money, bank-notes, cheques,
bills of exchange, hundis, promissory notes,
Government securities, bonds or other securities for
money, debts, shares in a corporation and, save as
hereinafter mentioned, all other saleable property,
movable or immovable, belonging to the judgment-
debtor, or over which, or the profits of which, he has a
disposing power which he may exercise for his own
benefit, whether the same be held in the name of the
judgment-debtor or by another person in trust for him
or on his behalf:
37. The afore-noted Section 60 CPC also mandates that properties
belonging to the judgment debtor, which are under its disposing power,
whether in its name or in the name of any other persons, profits/benefits of
which shall accrue to the judgment debtor, are liable to be attached in
execution proceedings.
38. In the light of above noted provisions, for the purpose of deciding the
present execution petition, this Court now proceeds as to in what manner the
decretal amount with interest up-to-date shall be recovered from the
judgment debtor.
39. On the directions of this Court, judgment debtor has placed on record
affidavit dated 14.02.2022 showing the funds position of DMRC. The said
affidavit reads as under:-
Particulars Project/Corridor Current FFD FD Total For
A/C 14.02.2022
ICICI Bank CIA - E Payment- 0.05 14.52 - 14.57
000705038601 O&M
SBI CIA- E- TENDER 1.64 - - 1.64
35281970524 AIC
UBI BANK (eCorp. LC payments 0.53 - 0.53
Bank) -O&M Alc-
510131000002
SBI ((POS)- Common 0.01 - - 0.01
34974989616 Mobility Card
PNB(Traffic earning)- Traffic Earning 0.05 61.40 - 61.45
1120005800000014
PNB (O&M Exp.)- O&M/Airport 0.05 6.15 - 6.20
1120005800000032 line-Exp.
UBI307801110050003 O&M Property 0.05 946.41 - 946.46
Business
Canara Bank O&M Property 0.05 0.16 - 0.21
(Syndicate Bank) Business
CIA-903632100000
Sub Total 0.05 168.31 - 168.36
Consultancy
UBI307801110050003 O&M Property 0.05 946.41 946.46
Business
Canara Bank O&M Property 0.05 0.16 - 0.21
(Syndicate Bank) Business
CIA-9036321000001
Sub Total- 0.10 946.57 - 946.67
Property
Business
PNB Bank(eOBC Consultancy 0.05 168.31 - 168.36
Bank) CIA-
05021131002591
Sub Total 0.05 168.31 - 168.36
Consultancy
PNB Bank (eOBC External Project 0.05 242.67 - 242.72
Bank) FEE CIA- Fee
0502109200001
ICICI Bank Fee C/A Mumbai Fee 0.05 9.90 - 9.95
055505006256
Sub Total- 0.10 252.57 - 252.67
External
Project Fee
TOTAL 2.05 1,450.05/- - 1,452.10
DMRC
FUNDS
Figures in
crores
Particulars Project/CorridorCurrent FFD F Total for
A/c D 14.02.2022
ICICI Bank C/A Project Phase- 0.05 58.69 - 58.74
0007050366534 III
SBICIA(75523)- Project- Tax 0.03 16.46 - 16.49
10569543300 Payments
Sub Total- 0.08 75.15 - 75.23
Phase-Ill
ICICI Bank CIA Project Phase - 0.05 137.20 - 137.25
000705047952 IV
PNB Bank (eOBC Statutory 0.05 585.65 - 585.70 I
Bank) CIA Payment
05021131004311
PNB Bank (eOBC GOI-Equity/SD 0.05 489.47 - 489.52
Bank) CIA
0502102100000049
PNB Bank (eOBC GOI-PTAA/c 0.05 853.06 - 853.11
Bank) CIA
0502102100000058
PNB Bank (eOBC GNCID 0.05 501.11 - 501.16
Bank) CIA EQUITY /SD
0502102100000067
UBI BANK (Corp. Non-JICA LC - 7.65 - 7.65
Bank) C/A- Pyrnts
(3727)51010f0056884
ICICI Sank CIA TENDER CELL 0.05 11.23 - 11.28
000705045337
Sub Total- 0.30 2,585.37 - 2,585.67
Phase-IV
ICICI Bank CIA - Property 0.05 20.34 - 20.39
000705011546 Development-
Income
Sub Total- 0.05 20.34 - 20.39
Property
Development
TOTAL 0.43 2,680.86 - 2,681.69
PROJECT
FUNDS
Figures in
crores
Particulars Project/Corridor Current FFD FD Total for
A/c 14.02.2022
ICICI Bank CIA- Jaipur - 19.48 - 19.48
679005115538
ICICI Bank Patna PATNA 0.01 37.47 - 37.48
C/A- 000705049590
ICICI KOCH I C/A- KOCHI 0.01 5.38 - 5.39
027705002729
UBI BANK (eCorp. KOCHI 0.05 10.38 - 10.43
Bank) -Kochi LC
510131000001936
ICICI Bank CIA Noida-G.Noida 0.05 360.78 - 360.83
000705042152
ICICI Bank CIA Mumbai 0.05 74.99 - 75.04
055505006255
ICICI Bank CIA Mumbai L-6 0.05 12.47 - 12.52
000705049474
ICICI Bank CIA- Central Delhi 0.01 167.86 - 167.87
000705028358
ICICI Bank C/A- ILBS 0.01 5.47 - 5.48
000705027461
ICICI Bank C/A Navi Mumbai 0.05 19.20 - 19.25
000705050767
SUB- TOTAL 0.29 713.48 - 713.77
DEPOSIT
WORKS
ICICI Bank CIA DMICDC A/c 0.01 459.09 - 459.10
000705045629
PNB-PPI·MTS Escrow A/c 2.85 - - 2.85
Escrow ale-
1120002900000023
PNB PPI Core- Prepaid Card 0.10 247.42 - 247.52
1120006000000026 Value-Linked to
Escrow Nc
PNB(Airport Line) - Airport line A/c 0.05 125.99 - 126.04
1120005800000023
ICICI CISF Unit CISF A/c 0.05 4.10 - 4.15
000705050104
UBI FAME India FAME INDIA- 0.01 - - 0.01
Phase-2 - E Buses A/c
307802050000171
ICICI Bank CIA - RMGL Exp. A/c 0.01 1.44 - 1.45
000705046896
PNB - RMGL Receipt 0.05 5.92 - 5.97
1120006000000017 Nc
SUB TOTAL 3.13 843.96 - 847.09
OTHER
WORKS ETC.
TOTAL 3.42 1,557.44 - 1,560.86
OTHER
FUNDS
40. According to the aforesaid affidavit, as on 14.02.2022, the total funds
available with the judgment debtor under the head Total DMRC Funds is
Rs.1,452.10 cores; under the head Total Project Funds is Rs.2681.29 and
under the head Total Other Funds is Rs.1,560/-. However, as per details of
funds shown in Annexure-A in the affidavit dated 10.01.2022 filed on behalf
of judgment debtor, a sum of Rs.514 crores is committed to the salary,
medical and post retiral benefits of employees and Rs.114 crores is the
portion of security deposit on smart cards, which is refundable to the
commuters. In the considered opinion of this Court, the said amount i.e.
Rs.514+ Rs.114 crores has to be kept aside for the aforesaid purpose,
however, from the remaining amount available in different bank accounts of
judgment debtor as well as under other heads, the payments towards
decreetal amount has to be made. The award dated 11.05.2017 has attained
finality and cannot be allowed to remain as a paper award, therefore, the
judgment debtor is duty bound to either divert its finds shown to be available
in different heads mentioned in the affidavit of 14.02.2022 after seeking
permission of the Central Government, if necessary, or raise loans to satisfy
the award.
41. Accordingly, out of the funds available under the head Total DMRC
Funds of Rs.1,452.10 cores, judgment debtor is directed to keep aside
amount of Rs.628 crores (Rs.514+ Rs.114 crores) towards statutory
expenses as mentioned herein above and from the remaining amount, part
payment of decreetal amount be made within two weeks.
42. For the remaining outstanding amount, judgment debtor is directed to
make the payments in two equal instalments within two months. The first
instalment shall be paid on or before 30.04.2022 and the second instalment
shall be made on or before 31.05.2022.
43. With aforesaid directions, the present petition and pending
applications are accordingly disposed of.
Ex. APPLN. (OS) 205/2022 (u/O XXI R 58 CPC r/w Order 1 Rule 10
CPC)
44. By this application, applicants/ Canara Bank and Union Bank are
seeking its impleadment in the present petition. It is averred in the
application that the applicants had lent huge amount of money to the decree
holder and they are liable to recover the said amount out of the decretal
awarded amount to be paid by the judgment debtor.
45. This Court had heard learned counsel appearing on behalf of applicant
at some length. This Court finds that the present execution petition has been
filed by the decree holder against the judgment debtor for execution of
arbitral award dated 11.05.2017. Without going into the depth of claims
raised by the applicants, I find that for any outstanding dues payable by the
decree holder to these applicants, separate proceedings are required to be
initiated and applicants cannot be permitted to settle their scores in the
present petition.
46. Accordingly, the application is dismissed.
(SURESH KUMAR KAIT)
JUDGE
MARCH 10, 2022
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