Bombay High Court
Cerestra Infrastructure Trust vs Pratiksha Foundation Charitable ... on 17 May, 2021
Bench: G.S. Patel
ṅcarbpl9051-2021+carbpl10202-2021-SPEAKING-20210517.docx
Atul
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
IN ITS COMMERCIAL DIVISION
COMM ARBITRATION PETITION (L) NO. 9051 OF 2021
Cerestra Infrastructure Trust ...Petitioner
Versus
Pratiksha Foundation Charitable Trust & Ors ... Respondents
WITH
COMM ARBITRATION PETITION (L) NO. 10202 OF 2021
Dr Vinay Jain & Ors ...Petitioners
Versus
Cerestra Infrastructure Trust & Ors ...Respondents
APPEARANCES:
None. Order made on praecipe.
CORAM : G.S.Patel, J.
DATED : 17th May 2021
PC:
1. Not on board. Taken up on the basis of a praecipe for speaking
to the minutes.
17th May 2021
ṅcarbpl9051-2021+carbpl10202-2021-SPEAKING-20210517.docx
2. I pronounced judgment in these matters on 12th May 2021.
3. Mr Ativ Patel of M/s AVP Partners, the advocates on record
for the Petitioner in Commercial Arbitration Petition (L) No 9051 of
2021 ("Cerestra"), submitted by email a praecipe on 13th May 2021
and dated that day. It was copied to the contesting Respondents in
that matter ("the Jain Group"; the Petitioners in the second
petition, Commercial Arbitration Petition (L) No 10202 of 2021).
That very day, my Court Associate sent an email under my
instructions to all in the email chain, asking if the Jain Group wished
to respond to Cerestra's praecipe. Mr Vanadana Kumawat, the
advocate on record for the Jain Group, replied saying the Jain Group
did intend to respond. A detailed response followed later that same
day.
4. I have considered Cerestra's praecipe and the Jain Group's
response.
5. What Cerestra's praecipe seeks falls in two classes. One is the
correction of an inadvertent typographical error in paragraph 84,
where prayer (v) of the Jain Group's petition has been reproduced,
though relief in those terms was expressly refused. Then there is a
request to correct the reference to the Cerestra Petition number in
the appearances: it has been wrongly shown as 9501 instead of 9051.
Finally, the appearance of Mr Malcolm Siganporia (for Cerestra with
Mr Chinoy and others) was missed, and the request is to add Mr
Siganporia's appearance. These corrections are innocuous and can be
permitted.
17th May 2021
ṅcarbpl9051-2021+carbpl10202-2021-SPEAKING-20210517.docx
6. For the rest -- and these are the praecipe submissions in the
second class -- what Cerestra seems to seek is very nearly a wholesale
reworking of the judgment and its operative clause. Ms Kumawat is
correct in her response in saying this is in the nature of a review on
praecipe, and therefore impermissible. Cerestra's further recourse
options are open to it. I cannot and will not accept the other request
in paras 2(1) to 2(6), 3 and 4 of M/s AVP Partners' praecipe. There
is an entirely satisfactory answer in Ms Kumawat's emailed response.
7. In particular, the submission in paragraph 4 of M/s AVP
Partners' praecipe is thoroughly unacceptable. Here, Cerestra seeks
to virtually reargue a central point. It says that a particular submission
I accepted from the Jain Group represented by Mr Jagtiani 'has never
been the Jain Group's case', viz., that, according to the Jain Group,
Cerestra continued to be obliged to bring in the remaining Rs 51
crores either directly or by an additional debenture subscription. As
Ms Kumawat points out in her emailed response (paragraph 4), not
only is Cerestra's submission for a so-called 'correction' entirely
irrelevant and without any sequitur, but it is also not what Mr Jagtiani
orally argued. Ms Kumawat is correct. I made detailed handwritten
notes through the online hearing. Counsel at the Bar are not
necessarily confined to the exact letter of this or that pleading or
averment. Mr Jagtiani did indeed argue precisely this. He advanced
that submission on 23rd April 2021. It was his submission -- which I
noted -- that even after 2017, Cerestra continued to commit to the
repayment of the bank loan or facility (PNBHFL), either by
debentures (as per the executed amendments, including schedules
and annexures) or directly (in accordance with the undertakings
signed by Cerestra); and all these amendments and undertakings
17th May 2021
ṅcarbpl9051-2021+carbpl10202-2021-SPEAKING-20210517.docx
were part of the 'Transactional Documents'. It did not matter to the
Jain Group, he submitted, how the remaining investment came in; he
was not concerned with the mode. He was only demonstrating the
unequivocal and repeated assurances by Cerestra to bring in the
remainder, even after 2017; and the falsity of Cerestra's claim that it
stood completely absolved of all obligations in that regard. This has
always been the Jain Group's case. Therefore, it is most regrettable
and unfortunate that AVP Partners should now attempt to say that
one particular facet was 'never the Jain Group's case', when the
precise point was indeed urged by Mr Jagtiani. This is not the kind of
thing that lends itself to a 'correction' by 'speaking to the minutes'.
Cerestra has its remedies against the judgment. This is not one of
them.
8. The other submissions are argumentative and also seek to re-
open a decided case.
9. Consequently, other than the three typographical rectifications
I indicated at the beginning of this order, the remaining submissions
for a so-called 'clarification' are rejected.
10. Rather than reprint the entire judgment with the permissible
corrections, and upload all over again a second copy, my secretarial
staff is directed to delete the judgment already uploaded and to
replace it with the corrected judgment. The filename will indicate
that the freshly uploaded version is the one with the allowed
corrections.
17th May 2021
ṅcarbpl9051-2021+carbpl10202-2021-SPEAKING-20210517.docx
11. In any further proceedings, either before me or in appeal, a
copy of this order should be placed on file, along with the praecipe
from AVP Partners and the response from Ms Kumawat. The Court
Associate is directed to ensure that the praecipe and the response are
both preserved in hard copy in both petitions.
(G.S. PATEL, J.)
17th May 2021
