The court determined that the petition for termination of the Concession Agreement by a non-party under Section 9 of the Arbitration Act was beyond its scope, as it sought final relief rather than interim measures.

JUDGMENT

Vibhu Bakhru, J.

Introduction:

1. The petitioner Punjab National Bank (hereafter the `PNB') has filed the present petition under Section 9 of the Arbitration & Conciliation Act, 1996 (hereafter the `A&C Act') inter alia praying that the respondent no.1, National Highways Authority of India (hereafter the `NHAI'), be directed to perform its obligations under Clause 5.1 of the Substitution Agreement and terminate the Concession Agreement entered into between NHAI and respondent no. 2, West Haryana Highways Projects Pvt. Ltd. (hereafter the `Concessionaire'). PNB further prays that NHAI be directed to deposit the Termination Payment in an Escrow Account [Escrow Account bearing No. 2164002100009137 maintained with PNB] in accordance with the Concession Agreement amounting to Rs.617,23,00,000/- (Rupees Six Hundred Seventeen Crores Twenty-Three Lakhs Only) as on 22.11.2019, along with interest at the bank rate plus 3% for the first ninety days and thereafter, at the bank rate plus 5% till the date of payment. PNB further prays that the payments be released to it without prejudice to the rights and contentions of the Concessionaire to recover higher Termination Payment in the arbitration proceedings that may ensue.

2. In addition, PNB states that NHAI be also directed to deposit the amount awarded in favour of the Concessionaire in terms of the Arbitral Award dated 29.08.2019 in the Escrow Account and, it be further directed that the said amount be applied in terms of Clause 4.2 of the Escrow Agreement.

Factual Context:

3. By a Letter of Acceptance dated 05.07.2007 (hereafter the `LoA'), NHAI awarded the project for design, engineering, construction, finance, operation and maintenance of Delhi-Haryana Border to Rohtak Section of NH-10 from KM 29.70 to KM 87.00 including construction of Bahadurgarh and Rohtak bypasses in the state of Haryana (hereafter the `Project') to a consortium of Karam Chand Thapar & Brothers Ltd. and Era Infra Engineering Ltd., on build, operate and transfer basis. The said consortium incorporated the Concessionaire as a Special Purpose Vehicle for the purpose of the Project.

4. Thereafter, on 06.11.2007, NHAI and the Concessionaire entered into a Concession Agreement. The consortium of lenders comprising of PNB (as the lead bank), India Infrastructure Finance Company Ltd., Central Bank of India, State Bank of Patiala (now merged with State Bank of India), Dena Bank (now merged with Bank of Baroda) entered into a Common Loan Agreement to finance the Project. The said consortium of banks (hereafter referred to as `PNB Consortium') agreed to extend a Rupee Term Loan of an aggregate amount not exceeding Rs.410,23,00,000/- (Rupees Four Hundred Ten Crores and Twenty-Three Lakhs Only) to the Concessionaire for executing the Project.

5. Thereafter, on 02.05.2008, the Concessionaire and the Subordinate Lenders under Structured Mezzanine Credit Facility (SMCF) through IL&FS Financial Services Ltd. (Facility Manager) entered into a Common Loan Agreement for Subordinated Debt for a sum of Rs.29,30,00,000/- (Rupees Twenty-Nine Crores and Thirty Lakhs only). On 29.09.2008, an Escrow Agreement was executed between PNB (acting as the Lenders' Representative) and the respondents. In terms of the said Escrow Agreement, an Escrow Account bearing No. 2164002100009137 was opened with PNB (hereafter the `Escrow Account').

6. PNB claims that all amounts credited in the Escrow Account are to be appropriated in terms of the Escrow Agreement, which placed payme