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Judgment
IA 9369/2020 in OMP(COMM) 04/2017
IA 9372/2020 in OMP(COMM) 533/2019
These two are joint applications filed by the parties in the aforesaid petitions with the following prayers:-
"(a)Allow the present Petition to be withdrawn in light of the Settlement Agreement dated 18.09.2020 interse the parties;
(b)Pass any such further order(s) that this Hon 'ble Court deem fit and proper in the facts and circumstances of the case."
IA 9365/2020 in OMP (I)(COMM) 198/2018
This application has been filed by Nirmal BOT Ltd with the following prayers:
"(a)Direct the Registry to release Rs.7, 12,07,270/- deposited by the Respondent in the Court, as per Court order dated 02.05.2018, along with the interest in terms of the Settlement Agreement dated 18.09.2020, electronically. The bank account details of the Petitioner are detailed below:
Particulars Credit Account Name Nirmal BOT Ltd Bank IDBI Bank Address Mittal Court, A wing, 2nd Floor, Nariman Point, Mumbai, Maharashtra - 400021 Account No. 004103000025869 RTGS/ IFS Code IBKL0000004 (b)Pass such other further order/orders which this Hon'ble Court may deem fit and proper in the interest of justice."
In substance, it is stated in the applications that the parties herein have settled their inter-se disputes with regard to Arbitration Award of 2016 and Arbitration Award of 2019 (under challenge in these petitions) by entering into a Settlement Agreement dated September 18, 2020. The terms of settlement, as reflected in the applications are the following:-
"2. THE AMOUNT OF FULL AND FINAL SETTLEMENT
Parties hereby agree that amount of full and final settlement against the aforesaid Arbitration Awards is Rs.40.35 Crore (Rupees Forty Crore Thirty Five Lakh only). Out of this, the amount of Rs. 7,12,07,270/- has already been deposited by the Authority before the High Court of Delhi on 15.05.2018. The Concessionaire and the Authority acknowledge, undertake and agree that payment of this amount of Rs 40.35 Crore shall constitute a valid discharge under this Agreement. For avoidance of doubt there are no other past, present or there shall not be any future liabilities, claims or counter claims by either Party towards the Arbitration Award.
3. OBLIGATIONS OF PARTIES
3.1 Obligations of NHAI
a. Part Payment of amount Rs.30.00 Crore (Rupees Thirty Crore Only) within 30 days of this Agreement and balance within 10 days from receipt of the final account from Concessionaire duly adjusting the amount (Principal plus Interest) received from registry of High Court of Delhi. Thus, total final amount of Rs. 40.35 Crore shall be full & final settlement amount towards the Arbitration Awards and it shall also include applicable taxes.
b. Withdrawal of all its pending cases as on date as per para 5 of this settlement agreement against the Concessionaire relating to this contract.
3.2 OBLIGATIONS OF THE CONCESSIONAIRE:
a. Withdrawal of all its pending cases as on date as per para 5 of this settlement agreement, if any, against NHAI prior to release of the payment as agreed before relating to this contract.
4. TERMS OF SETTLEMENT
4.1The Parties hereby acknowledge and agree that payment of aforementioned amounts as mentioned in Clause 2 is the full and final amount due / payable by One Party to the Second Party under the Concession Agreement towards the Arbitration Awards.
4.2Both the parties agree to represent before the High Court of Delhi that the amount of Rs.7,12,07,270/- deposited by the Authority in the Court, as per Court order dated 02.05.2018, shall be released to the Concessionaire immediately along with the interest towards part payment of this settlement agreement. As mentioned in para 3.1(a), Authority shall also make part payment of Rs.30 Crores, after statutory deduction, to the concessionaire within 10 days of signing of this Agreement. Thereafter, both the parties agree that the balance settlement amount, net of Rs.30 crores & court released amount, shall be made available within 10 working days to Concessionaire based on submission of documentary evidence of previous release so as to make up the total aggregated amount of Rs.40.35 crores all inclusive of taxes.
4.3The parties hereby confirm that they don't have any residual, pending or any other claims, disputes against each other in respect all claims, demands, disputes etc. of the Concessionaire including that arising out of or in relation to the Arbitration Awards against the other party namely NHAI stands settled without any further recourse whatsoever.
5. PENDING PROCEEDINGS
5.1 NHAI
i)NHAI vs M/s Nirmal BOT Ltd Case No. OMP Comm No.4 of 2017 before the Hon'ble High Court of Delhi ii) NHAI vs M/s Nirmal BOT Ltd Case No. OMP Comm No. 533 o/2019 before the Hon'ble High Court of Delhi
5.2 Concessionaire
M/s Nirmal BOT Ltd. Vs. NHAI Case No. O.M.P. (I) (COMM.) 198/2018 before the Hon'ble High Court of Delhi".
Learned counsels for the parties states that the Settlement Agreement dated September 18, 2020 ('Settlement Agreement', for short) as annexed along with the applications be taken on record. Learned counsels also state that the parties shall adhere to the terms of the settlement. They also state that in view of the Settlement Agreement, more specifically Clause 2 read with Clause 4.2, an amount of Rs.7,12,07,270/- deposited by the NHAI, in this Court in terms of order dated May 02, 2018, along with accrued interest be released to the Concessionaire i.e., the respondent herein namely NIRMAL BOT Ltd.
On October 14, 2020, I had called for a report from the Registry. The Registry has stated that an amount of Rs.7,12,07,270/- was deposited in the Registry pursuant to the order dated May 02, 2018 and the same has been kept in FDR and the maturity amount as on November 02, 2020 is Rs.8,02,82,197/- (Rs. 7,12,07,270/- principal + Rs.90,74,927/- interest).
In view of the prayers made in the applications, the Settlement Agreement dated September 18, 2020 is taken on record. OMP(COMM) 04/2017 and OMP(COMM) 533/2019 are dismissed as withdrawn and the aforesaid amount of Rs.7,12,07,270/- with accrued interest till the date of remittance be released to the respondent NIRMAL BOT Ltd. by transferring the said amount to the account of NIRMAL BOT Ltd. as per the details given in para 11 of the application being I.A. 9365/2020 in OMP(I)(COMM) 198/2018. The same shall be done within two weeks from today. The Registry shall provide to the learned counsel for NHAI and NIRMAL BOT Ltd., the details of the exact amount transferred in the account of NIRMAL BOT Ltd. in terms of this order by way of an email, to be sent within three days thereafter for information.
In view of this order, Mr. Mehta seeks to withdraw OMP(I)(COMM.) 198/2018. The same is dismissed as withdrawn. Connected applications, if any are also dismissed as withdrawn.