IMPORTANT POINT
The appellant cannot seek a writ for extension of the concession period as it is not a party to the concession agreement, and suggested to seek remedy under the agreements with all defences available to NHAI.

JUDGMENT

[Physical Hearing/Hybrid Hearing (as per request)]

Rajiv Shakdher, J. (Oral)

1. This appeal is directed against the interim order dated 01.06.2022 passed by the learned Single Judge in W.P.(C) No. 7806/2022.

1.1. In sum, the appellant had approached the writ court with several pleas which are replicated in the impugned order.

2. Via the impugned order, the learned Single Judge declined to grant relief with regard to prayers made in clause (a) to (e) and (g). Insofar as prayer clause (f) is concerned, the learned Judge had directed counsel for the respondent/NHAI to take further instructions.

2.1. It is not in dispute that the prayers declined by the learned Single Judge concerned issuance of a direction to the respondent/National Highways Authority of India (NHAI) to extend the concession period under concession agreement [CA] dated 06.06.2008.

3. Mr Sandeep Sethi, learned senior counsel, who appears on behalf of the appellant, says that even while the learned Single Judge held that the concession agreement was a "cohesive, composite and interlinked repository of the bargain between the disputants", he has ended up compromising the rights of the appellant as is evident upon perusal of the observations made in paragraphs 13 to 17 of the impugned judgment.

4. According to Mr Sethi, there are several rights which flow in favour of the appellant by virtue of substitution agreement [SA] dated 12.02.2009, escrow agreement [EA] dated 12.02.2009, restated facility agreement [FA] dated 18.06.2009 and the supplementary agreement [SPA] dated 20.12.2013.

5. Only the respondent/NHAI and the concessionaire, i.e., Pink City Expressway Private Limited [in short, "Pink City"] are parties to the CA and SPA.

6. Insofar as the SA is concerned, it is executed amongst Pink City, respondent/NHAI and the appellant (acting for and on behalf of the Senior lenders). The EA was executed amongst Pink City, the appellant, the escrow bank and respondent/NHAI. The restated facility agreement has been entered into between Pink City, the senior lenders and India Infrastructure Finance Company Limited.

7. Mr Sethi has taken us through various clauses of the agreements, referred to hereinabove including the CA, in an attempt to establish that the appellant had, in fact, a right to call upon the respondent no. 1/NHAI to extend the concession agreement.

7.1. It is also Mr Sethi's contention that the appellant had a right to substitute the concessionaire.

8. On the other hand, Mr Parag Tripathi, learned senior counsel, who appears on behalf of the respondent, says that no such right vested in the appellant.

8.1. Mr Tripathi has brought to the fore an aspect, which is not in dispute, that respondent/NHAI has infused Rs. 352 crores into the subject project via the One Time Fund Infusion Scheme [Scheme].

8.2. It is Mr Tripathi's contention that the principal sum alone is Rs. 321 crores and nothing has been repaid to respondent/NHAI.

9. We may note that the original total project cost was estimated at Rs. 3,009/- crores.

9.1. It is the appellant's claim that it provided approximately Rs.1876.37 crores for the project of which Rs.1297 crores remains outstanding as on 02.06.2022, exclusive of penal interest, charges, and costs, etc.

10. The record shows that the project involved augmentation of the existing four lane road spanning between km 42.70 to km 273 (approximately 225.60 km), on the Gurgaon - Kotputli - Jaipur section of National Highway No. 8, in the State of Haryana and Rajasthan ["carriageway"].

11. The concessionaire was required to widen the carriageway to six (6) lanes, albeit, on a built, operate and transfer model.

12. As things stand today, disputes have erupted not only between the appellant and the respondent/NHAI but also between the respondent/NHAI and Pink City.

13. What we are required to rule upon is whether the learned Single Judge's conclusion that the reliefs (a) to (e) and (g) are not tenable in law or on facts, call for interference.

14. Mr Sethi submits