Idbi Trusteeship Services ... vs Ozone Infra Con Pvt Ltd And 2 Ors
2022 Latest Caselaw 789 Bom

                                       IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                                            ORDINARY ORIGINAL CIVIL JURISDICTION

                                          INTERIM APPLICATION (L) NO. 25446 OF 2021

                                                                IN

                                            COMMERCIAL SUIT (L) NO. 25433 OF 2021



                      IDBI Trusteeship Services Limited                        ...     Applicant/Plaintiff
                               vs.
                      Ozone Infra Con. Pvt. Ltd. and Ors.                      ...    Defendants


                      Mr. Ashish Kamat a/w. Mr. Animesh Bisht, Mr. Vineet Bhansali and Mr.
                      Vineet Bhansali i/b. Cyril Amarchand Mangaldas for the Plaintiff.

                      Mr. Prateek Seksaria a/w. Mr. Arjun Perikal, Mr. Ameya Gokhale, Mr, Vaibhav
                      Singh and Ms. Salonee Kulkarni i/b. Shardule Amarchand Mangaldas for the
                      Defendants.
                                                                  CORAM : A. K. MENON, J.

DATED : 20th JANUARY, 2022 [ THROUGH VIDEO CONFERENCE ] P.C. :

1. Mr. Kamat in support of the interim application seeks urgent ad-

interim reliefs He submits that applicant as a "debenture trustee" had

facilitated the issuance of unlisted, rated, redeemable and secured non-

covertible debentures ("NCDs") for sum of Rs. 63,00,00,000/- against which

Debenture Trust Deed dated 25 th April, 2018 was executed between plaintiff,

RAJESHWARI defendant no.1 and defendant no.2. Defendant no. 1 being a company, RAMESH PILLAI defendant no. 2 being the promoter director who has also guaranteed Digitally signed by RAJESHWARI RAMESH PILLAI Date: 2022.01.21 1/7 17:35:25 +0530 2-IAL-25446-2021-COMSL-25433-2021.odt rrpillai repayment of the amount due to the plaintiff, Defendant no. 3 is a limited

company which has executed the corporate guarantee in respect of the said

amount payable to the plaintiff.

2. The execution of this document is not in dispute and as such Mr.

Kamat submits that there have been several breaches on behalf of the

defendants and in terms of the documentation agreed upon defendant no. 1

was to create security by way of a mortgage in respect of plot of land

admeasuring 45 acres at Yalchanhalli, Kolar Highway (NH-75), Hoskote

Taluk, Bangalore, Karnataka more particularly described in clause 12.1.1. of

the Debenture Trust Deed. The property however did not admeasure 45 acres

but when the mortgage was sought to be created it was learnt that the extent

of the property was only 28 acres. There is no dispute that a mortgage has

been created of this property, but according to the plaintiff the area of the

property being much smaller, the security is wholly insufficient.

3. Mr. Kamat has relied upon the redemption schedule and in particular

rights of redemption in the event of any default as contemplated in the

agreement. He submits that under clause 9.2 after expiry of one year the

applicant has right to exercise a "put option". That has accordingly been

done. He has invited my attention to the correspondence between the parties

in which the defendant has agreed that they are in defaults and are in

process of curing such default. In particular my attention is invited to

Exhibit AA being email dated 24th April, 2020 wherein the defendant no. 1

2-IAL-25446-2021-COMSL-25433-2021.odt rrpillai has requested the plaintiff to restructure the existing debt. Reasons for such

request has been set out and the defendant has clearly admitted that they

would create further security of about Rs. 2 crores per month across various

projects to address the issue of security cover. This he submits has clear

reference to the fact that instead of 45 acres the mortgage created is only for

28 acres.

4. Furthermore on 25th September, 2020 Mr. Kamat submits the

defendant has admitted difficulty in payment of a sum of Rs. 9 crores which

was admittedly due as of September, 2020 and defendant fairly submitted

that it will not be able to make payment by September,2020. The email dated

25th September, 2020 is annexed at Exhibit DD. The author of the email has

assured the applicant that a "lot of liquidity" will be in the system as explained

in the email and that payment due to the plaintiff would be made. Thus there

is a clear admission of liability and the obligation to pay attached thereto.

This request for time for payment is once again reproduced in email dated

5th October, 2020 at Exhibit EE. Mr. Kamat submits this is evidence of the

liability which is admitted and in these circumstances he submits that the

plaintiff is entitled to protective reliefs. Mr. Kamat states that there is

justification in passing appropriate orders in terms of prayer clause (b) and

(c) and all the orders of disclosure in terms of prayer clause (c) to (g). He

therefore submits that suitable orders be passed to protect the interest of the

plaintiff.

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5. Mr. Seksaria on behalf of the defendant has sought to oppose the ad-

interim application to the extent of any protection being granted beyond the

mortgage already created in favour of the applicant. He has relied upon

affidavit of defendant no. 2 who seeks to oppose the application on behalf of

the defendant no.1. The case of the defendant is that the plaintiff seeks relief

in excess of what the applicant is really entitled to. Relief in the interim

application also seeks effectively an attachment before judgment and in

respect of the amounts that are inflated.

6. According to Mr. Seksaria the amount claimed especially in item 2 of

the particulars of the claim being a sum of Rs.44,17,10,000/- towards

redemption premium is unsustainable. There is a clear misconception of the

basis of which plaintiff is proceeding to claim the total amount of

Rs.1,08,40,08,556/-. At best it is only the principal amount and interest there

at in terms of agreement i.e claim under the principal sum is approximately

Rs.57,32,83,600/- and interest thereon at Rs..6,90,14,956/-.

7. Mr. Seksaria claims the property value is substantial and despite the

fact that 45 acres could not be subjected to mortgage, only 28 acres has been

mortgaged, that itself is sufficient security. Inviting my attention to the

averments in the reply and the fact that defendants have carried out

valuation of the property on the subject matter of mortgage, Mr. Seksaria

submits that the valuation report discloses that the 28 acres of the project

land is valued at Rs.52,78,00,000/-. He submits that valuation is carried out

2-IAL-25446-2021-COMSL-25433-2021.odt rrpillai by a government approved valuer. He relies upon valuation report at Exhibit

A to the reply. The valuation I find is dated 14th December, 2021 and in

respect of 26.39 acres of agricultural land. The learned counsel for the

defendant has also opposed grant of relief as far as defendant no. 2 guarantor

and defendant no. 3 corporate guarantor are concerned.

8. Having heard the learned counsel for the parties I am of the view that

once the mortgage is admitted there is no question of denying the relief of

injunction sought by the plaintiff and in that behalf I find no difficulty in

granting relief against defendant no. 1 in terms of prayer clause (b) excluding

the bracketed portion. The mortgage is admitted and the execution of the

guarantee is also admitted. Incidentally I find that the deponent who is

defendant no. 2 has in his affidavit in reply claimed that his net worth as on

date of the affidavit is in excess of Rs.581.33 crores.

9. Mr. Seksaria submits a statement of assets and liabilities is annexed at

Exhibit B to the affidavit in reply and in terms of averment in the affidavit in

reply a net worth certificate of the Chartered Accountants engaged by

defendant no. 2 is also enclosed at Exhibit D-3. According to him that is

sufficient disclosure. In view of the fact that the execution of the guarantee is

not in dispute and the defendant no. 2 has indicated a net worth of Rs.

581.33 crores it is appropriate in my view that defendant no. 2 is also

directed to disclose in details his assets and in particular the assets set out in

prayer clause (d). In view thereof I pass the following order :

2-IAL-25446-2021-COMSL-25433-2021.odt rrpillai

(i) There will be an ad-interim injunction in terms of prayer clause (b)

except the bracketed and underlined portion reproduced below :

(b) That pending the hearing and final disposal of the captioned Suit,

restrain Ozone Infra Con Private Limited (First Respondent), [Mr.

Satyamoorthy Vasudevan (Second Respondent) and Ozone Urbana Infra

Developers Private Limited (Third Respondent) ], acting by themselves

or through servants, agents, representatives, and/or all other persons

claiming by, through or under them, from in any manner, directly or

indirectly, selling, transferring, alienating, relinquishing, parting with

possession, or creating any third party rights or interests including

charges in respect of [ their respective assets/properties including the ]

properties described in Exhibit G1, Exhibit - G2 and Exhibit-G3 to the

Plaint; [ or from transferring any monies from their respective bank

accounts without the prior written permission of this Hon'ble Court; ]

(ii) There will be also be an order in terms of prayer clause (d) against

defendant no. 2. Disclosure statement shall be filed within a period of two

weeks from today in compliance of the above.

(iii) Additional reply, if any to the interim application to be filed within

four weeks from today.

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(iv) Rejoinder, if any, to be filed within two weeks thereafter.

(v) Liberty to apply after disclosure affidavit is filed for further reliefs or if

disclosure affidavit is not filed.

(A. K. MENON, J.)

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