 "HC directs DMRC to furnish bank account details in execution plea by DAMEPL")
The Delhi High Court on Wednesday directed the Delhi Metro Rail Corporation (DMRC) to file an affidavit furnishing the details of its bank accounts along with the balance amount in connection with a Reliance Infrastructure subsidiary's plea for the execution of an arbitral award of over Rs 4,600 crore against it.
Justice Suresh Kumar Kait noted that the DMRC has Rs 1642.69 crore available in its bank accounts, and said that if the Delhi Airport Metro Express Private Limited (DAMEPL) does not want to accept the corporation's offer of taking over its debts to the extent of the award, the court can't force it to do so.
(DAMEPL says) if it has money in hand, in escrow account, at least it can bargain with banks for restructuring etc. Suppose it passes on total liability to you, to pay to the lenders, it will lose the bargaining power. It is a decree holder, you (DMRC) are a judgement debtor. If your offer is accepted, no issues. But when it is not accepting that, this court can't force it that you accept in this fashion, the judge said.
The judge further observed that while the attachment of the DMRC's properties was not permitted, there was no such embargo with respect to its bank accounts.
Here, properties cannot be attached as per Section 89 (of The Metro Railways (Operation and Maintenance) Act, 2002). The option left with court is that how much money is left in the bank account. That can be taken care of, the court stated.
The DMRC is directed to furnish the details of banks accounts ... in Delhi or outside Delhi. It will also be mentioned in the affidavit, how much amount is lying in a particular account, the court ordered.
Lawyer Prateek Seksaria, appearing for DAMEPL, informed that its lenders have rejected the DMRC's proposal of taking care of its liabilities and contended that no special treatment can be given to the government in the present execution proceedings.
The government should set an example by paying the award instead, argued the lawyer who claimed that even after the DMRC deposited Rs 1000 crore in the escrow account, over Rs 6,000 crore was still due.
He submitted that DAMEPL is entitled to the amount awarded in the arbitration proceedings as well as the benefit of any surplus which may be utilised to restart its businesses.
DAMEPL's counsel further relied on the DMRC's affidavit to state that the corporation has over Rs 5800 crore in its bank accounts as on December 17, with Rs 1642 crore being its earning and over Rs 2400 crore and Rs 1700 crore being its project allocation fund and deposit fund, respectively.
He prayed that at least the admitted earnings of the DMRC should straightaway be appropriated towards execution of the award.
Solicitor General Tushar Mehta and senior advocate Parag Tripathi, appearing for the DMRC, told the court that they have no instructions with respect to the banks concerned rejecting the proposal and reiterated that the corporation taking over DAMEPL's debts to the extent of the award and negotiating with the lenders would be in public interest.
The government says we are in negotiations with the bank. Reliance, the award holderthey come and say that banks are interested in we (DAMEPL) getting the money and they have rejected the government's proposal. If this is so, this is very seriousSomething needs to be examined by the banking division also, the solicitor general stated.
Tripathi urged the court to grant the DMRC an opportunity to work out a solution and submitted that if the bank accounts are attached and metro services are stopped, nobody would gain anything.
If metro is stopped tomorrow, there will be a huge issueI will work it out because as an instrumentality of the state, when I sit with the banks, the ability to get a roll over of the amount as a loan from bank will be much greater, he said.
The DMRC had told the court that it would deposit Rs 1,000 crore in favour of DAMEPL while suggesting taking over its debt to the extent of the award money.
The DMRC had stated that since the corporation was facing a financial crunch, undertaking a sudden liability would impact public interest and authorities were, therefore, working out a solution.
It had also claimed that the amount liable to be paid was approximately Rs 5,000 crore which was lesser than DAMEPL's claim.
An arbitral tribunal in its May 2017 award had ruled in favour of DAMEPL, which had pulled out from running the Airport Express metro line over safety issues, and accepted its claim that the running of operations on the line was not viable due to structural defects in the viaduct through which the train would run.
The concession agreement between the two was signed on August 25, 2008.
Under the agreement, the DMRC was to carry out the civil works, excluding at the depot, and the balance, including the project system works, were to be executed by DAMEPL, a joint venture of Rinfra and a Spanish construction company -- Construcciones Y Auxiliar De Ferrocarriles -- with a shareholding of 95 and five per cent respectively.
The Airport Express line was commissioned on February 23, 2011, after an investment of over Rs 2,885 crore, funded by the DAMEPL promoters' fund, banks, and financial institutions.
In November, the Supreme Court had dismissed the DMRC's plea seeking a review of its judgement which upheld the 2017 arbitration award in favour of DAMEPL, enforceable against it.
The next hearing in the matter would take place in January.
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