The main legal point established in the judgment is the impact of force majeure on contractual obligations, specifically in the context of the OMDA and the transfer of funds from the Proceeds Account to the AAI Fee Account.

JUDGMENT :

(Video-Conferencing)

1. Though I had mooted a suggestion that the present petition, having been heard in extenso through eminent learned Senior Counsel, including the learned Solicitor General of India, could be finally disposed of, there was no consensus ad idem between the parties on my suggestion. Accordingly, this order is restricted to the issue of grant of ad interim relief.

2. This order, accordingly, adjudicates prayer (vii) in the present petition, which seeks issuance of ad interim orders in terms of prayers (i) to (vi). Notice is, accordingly, separately being issued in the OMP.

3. Dr. Singhvi, learned Senior Counsel for the petitioner-Delhi International Airport Limited (hereinafter referred to as “DIAL”), submits that the issue in controversy is squarely covered by my earlier judgment in Mumbai International Airport Limited v. Airport Authority of India1 (hereinafter referred to as “MIAL”) and that, therefore, the petitioner is clearly entitled to interim relief.

4. Mr. Tushar Mehta, learned Solicitor General appearing for the Airport Authority of India (hereinafter referred to as “AAI”), submits, per contra, that there are clear factors which distinguish the present case from MIAL (MANU/DE/2148/2020).

5. A brief recital of facts would suffice, as I am concerned with the aspect of ad interim relief.

6. On 4th April, 2006, DIAL and AAI entered into an Operation Management and Development Agreement (hereinafter referred to as “OMDA”) for development and management of the Indira Gandhi International Airport, Delhi (hereinafter referred to as “IGI Airport”), of which the following features may be noted:

(i) Chapter III of the OMDA set out the conditions precedent, to be fulfilled by DIAL and AAI.

(ii) Clause (iii) of Article 3.1.1 and 3.1.2 of the OMDA required the AAI and DIAL to execute an Escrow Agreement, with one of the banks named in Schedule 13 to the OMDA.

(iii) Chapter XI of the OMDA, required DIAL to pay, to AAI, an Annual Fee (hereinafter referred to as “AF”), during the currency of the OMDA, and set out the quantum thereof. Clause 11.1.2.2, thereunder, read thus:

“11.1.2.2 The AF shall be payable in twelve equal monthly instalments, each instalment (hereinafter referred to as “Monthly AF” or “MAF”) to be paid on the first day of each calendar month. The JVC shall from time to time cause the Escrow Bank to make payment of the MAF to AAI in advance on or prior to the 7th day of each month by cheque drawn in favour of AAI. If AAI does not receive the payment of MAF due hereunder by the due date provided herein, the amount owed shall bear interest for the period starting on and including the due date for payment and ending on but excluding the date when payment is made calculated at State Bank of India Prime Lending Rate + 10% p.a. Notwithstanding anything contained herein, the JVC shall at all times be liable to pay the MAF in advance on or prior to the 7thday of each month”

(iv) “Revenue” was defined, in the OMDA, thus:

“ “Revenue” means all pre-tax gross revenue of JVC, excluding the following: (a) payments made by JVC, if any, for the activities undertaken by Relevant Authorities or payments received by JVC for provision of electricity, water, sewerage, or analogous utilities to the extent of amounts paid for such utilities to third party service providers; (b) insurance proceeds except insurance indemnification for loss of revenue; (c) any amount that accrues to JVC from sale of any capital assets or items; (d) payments and/or moneys collected by JVC for and on behalf of of any governmental authorities under Applicable Law (e) any bad debts written off provided these pertain to past revenues on which annual fee has been paid to AAI. It is clarified that annual fee payable to AAI pursuant to Article 11 and Operational Support Cost payable to AAI shall not be deducted from Revenue.”

(v) Chapter XVI of the OMDA provided for “force majeure”. Articles 16.1.1 and 16.1.2, thereunder, read thus:

“16.1 Force Majeure

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