COMM 227/2017] praying that directions be issued to NHAI to deposit certain sums in the Escrow Account. Whereas, the Concessionaire sought deposit of ₹359.199 crores, PNB had sought a direction to NHAI to pay an amount of ₹374.51 crores. There was a controversy whether the termination was on account of Concessionaire’s default or NHAI’s default. The Court had noted notwithstanding the aforesaid dispute, NHAI had an obligation to deposit the Termination Payment in the Escrow Account. Undoubtedly, the quantum of the termination payment would depend on whether the Concessionaire or NHAI prevailed in their respective stands. However, in case NHAI prevails, it was liable to pay 90% of the debt due, but in the event, Concessionaire succeeded in the disputes, NHAI would be entitled to pay an higher amount. The Court noted that there was no dispute between NHAI and the Lenders’ Representative (PNB). In this view, the Court directed NHAI to deposit ₹354.744 crores in the Escrow Account subject to the Concessionaire furnishing an unconditional and irrevocable bank guarantee in favour of NHAI for a sum not exceeding ₹348.604 crores, which was equivalent to 90% of the remaining debt due less an amount of ₹6.14 crores which NHAI had agreed to pay in any case.
