Atul Shivdas Ganatra vs Inox Wind Ltd
2022 Latest Caselaw 1580 Bom

                                                                 7.ia.3005.21..doc




                               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                  ORDINARY ORIGINAL CIVIL JURISDICTION
ANJALI   Digitally signed by

TUSHAR
         ANJALI TUSHAR
         ASWALE
         Date: 2022.02.17
                                          IN ITS COMMERCIAL DIVISION
ASWALE   12:58:48 +0530


                                      INTERIM APPLICATION NO. 3005 OF 2021

                                                      IN

                               EXECUTION APPLICATION (L) NO. 27448 OF 2021

                                                     WITH

                                 CONTEMPT PETITION NO(L)NO.3096 OF 2022

                                                      IN

                                      INTERIM APPLICATION NO. 3005 OF 2021



                    Atul Shivdas Ganatra                      ...Applicant

                    IN THE MATTER BETWEEN:

                    Atul Shivdas Ganatra                      ...Applicant/Award Holder

                               V/s.

                    Inox Wind Limited                         ...Judgment
                                                               Debtor/Respondent


                    Dr. Birendra Saraf, Senior Advocate a/w Priyank Kapadia, Anuja
                    Jhunjhunwala, Nagporewala, Zenia Irani i/b M. Mulla Associates, for
                    the Applicant.
                    Mr.Karl Tamboly a/w Shobhana Narayanan, Radhika Kulkarni i/b
                    Khaitan & Co, for the Respondent/Judgment Debtor as well as for Inox
                    Wind Energy Ltd (IWEL).


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                                  CORAM:- B. P. COLABAWALLA,J.

DATE :- FEBRUARY 16, 2022.

P. C.:

The time for furnishing the bank guarantee as per the

orders dated 20th January, 2022 and 4th January, 2022 is extended till

30th March, 2022 on the following terms and conditions:

The parties abovenamed as well as Inox Wind Energy Limited ("IWEL")

agree upon the following modalities for securing the sum Awarded by

the Sole Arbitrator as a pro tem or interim security which will operate

till the Respondent furnishes a Bank Guarantee in accordance with the

Order dated 20th January, 2022 read with the order dated 4 th January,

2022 passed in the Interim Application No. 3005 of 2021:

A. MODALITY FOR CREATION OF AN ESCROW OF 23,62,205 SHARES OF THE RESPONDENT BY ITS PARENT COMPANY INOX WIND ENERGY LIMITED ("IWEL") IN FAVOUR OF THE APPLICANT ("SECURITY SHARES").

1. IWEL has agreed for an appointment of a court receiver.

2. The Office of the Court Receiver attached to the High Court,

Bombay will be appointed as a Receiver of the Security Shares with

the power to sell the Security Shares in the event the Respondent

fails to furnish an unconditional Bank Guarantee by 30 th March,

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2022 with no further extension being granted.

3. IWEL and the Respondent will coordinate with the Applicant and

forthwith ensure that an escrow account is opened with the

relevant depository in the name of IWEL. IWEL will also open a

separate bank account which will be connected to the Depositor's

account. The Court Receiver, High Court, Bombay shall stand

appointed in respect of the accounts so opened and immediately on

opening of such account, the Court Receiver shall be entitled to

operate such account, and necessary instructions shall be issued in

that regard. IWEL while opening the account shall also authorise

the operation thereof by the Court Receiver. IWEL will deposit the

shares in escrow in such account with instructions that the escrow

is to be invoked if the Respondent fails to furnish a bank guarantee

in terms of the Order dated 20th January, 2022 read with the Order

dated 4th January, 2022 passed by this Court by 30 th March, 2022,

upon receipt of written intimation from the Advocates of the

Applicant to that effect and will simultaneously intimate the

advocates for the Respondent.

4. The Court Receiver shall manage such account until the furnishing

of a bank guarantee by the Respondent in accordance with this

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order read with the Orders dated 20th January, 2022 and 4th

January, 2022 respectively.

5. The process of opening of the accounts as aforesaid and deposit of

the shares in the escrow shall be completed by IWEL and the

Respondent within 7 (seven) days from 16th February 2022.

6. In the event that the Respondent fails to furnish an unconditional

Bank Guarantee (in accordance with the Orders dated 20 th

January, 2022 and 4th January, 2022 passed in the above Interim

Application) by 30th March, 2022, the Office of the Court Receiver,

Bombay shall on or before 24 (twenty-four) hours on the written

intimation from the Advocate of the Applicant, without further

reference to the Court, forthwith sell the Security Shares in such

lots as the Court Receiver considers appropriate. IWEL undertakes

to execute all such documents/ writings/ instructions as may be

required by the Court Receiver within 24 (twenty-four) hours of

intimation from the Court Receiver. The proceeds of such sale shall

be held by the Court Receiver as custodia legis till further orders

are passed by this Court in the captioned Execution Application.

7. On default of furnishing the Bank Guarantee by 30 th March, 2022

the Petitioner will be at liberty to apply to this Court for further

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reliefs as regards any of the other assets of the Respondent.

8. In case of a fall in the value of the Security Shares below INR

101.59 per share or a total value of INR 24,00,00,000/- IWEL

undertakes that the value will be maintained at the required level

within 3 (three) days of intimation from the Applicant. In the event

of IWEL failing to make good the loss by depositing further shares

in the account, opened as per clause 3 above, the Applicant shall be

entitled to apply for further relief in the captioned Interim

Application and Execution Application.

9. The provision of shares as aforesaid and the power conferred on

sale of the shares does not in any manner prevent or restrict the

rights of the Applicant to proceed against any other property of the

Respondent in execution, in the event of failure on the part of the

Respondent to furnish the Bank Guarantee. The Applicant's right

to seek further relief against any of the other assets of the

Respondent will not be curtailed by the creation of the security

hereunder nor will it be made conditional or dependant on the sale

of the Security shares and the realisation of the proceeds thereof.

10. All costs associated with the creation of security will be borne by

IWEL or the Respondent.

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11. IWEL and the Respondent unconditionally indemnify the Office of

the Court Receiver, High Court, Bombay and the Applicant against

any claims including tax liability arising out of or in connection

with the sale of the Security Shares and further Security Shares, as

the case may be.

12. The undertakings as recorded under the orders dated 4 th January,

2022 and 20th January, 2022 will continue.

B. METHOD FOR DISCLOSURE OF ASSETS TO BE MADE BY THE RESPONDENT TO THE APPLICANT.

1) In addition to the above, in the event that the Respondent fails to

furnish a bank guarantee (in terms of the Order dated 20 th January,

2022 read with the Order dated 4th January, 2022) by 30th March,

2022, the Respondent shall, on or before 4 th April, 2022 make a

complete and full disclosure of its movable and immovable assets

upto date in the following manner, a copy of which will be

forthwith served on the Advocate for the Applicant:

a) Immovable properties: The disclosure will be of all

immovable properties wherever situated, whether in India

or overseas with complete details sufficient to identify the

properties and market value thereof. If any of these are in

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any way encumbered, full particulars of such encumbrance/

s and the amounts yet due as secured by those properties

will also be disclosed.

b) Movable Assets:

(i) Non-financial Assets: They will also disclose all non-

financial movable assets of the acquisition or

replacement value of more than Rs. 50,000/-

including all particulars as described above.

(ii) Financial Assets: They will also disclose all

investments, equity or debt instruments, receivables

from third parties, demat accounts with full

particulars, including all holdings and encumbrances

and any other financial asset of the Respondent.

(iii) Bank accounts: All bank accounts with account

numbers, bank names, branches, account types and

holding patterns are to be disclosed. Bank statements

for the last one year shall be furnished for all

accounts.

              (iv)    Bank Lockers: Contents of all safety deposit vaults

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                       and bank lockers will be disclosed.

c) Tax and Financial Returns: Copies of all tax and financial

returns for the last 3 (three) years are to be disclosed.

d) Disclosures to be on Affidavit:

(i) All disclosure must be on a properly sworn affidavit.

(ii) The affidavit is to be affirmed before a court officer.

(iii) Affidavit to be serially paginated.

(iv) Such affidavit shall have a detailed index identifying

each disclosure.

13 Stand over to 4th April 2022 alongwith Contempt Petition

(L) No 3096 of 2022.

14 This order will be digitally signed by the Private

Secretary/Personal Assistant of this Court. All concerned will act on

production by fax or email of a digitally signed copy of this order.

                                              ( B. P. COLABAWALLA, J. )




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