Bombay High Court
Idbi Bank Ltd vs Icici Bank Ltd And 4 Ors on 29 September, 2022
Bench: R. I. Chagla
IAL.2102.22 wt..doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
IN ITS COMMERCIAL DIVISION
INTERIM APPLICATION (L) NO. 2102 OF 2022
IN
COMMERCIAL SUIT (L) NO. 2100 OF 2022
IDBI Bank Ltd. & Anr. ... Applicants/Plaintiffs
Versus
ICICI Bank Ltd. & Ors. ... Defendants
Mr. Zarir Bharucha a/w Ms. Rishi Thakur, Mr. Rohaan Pajarigar
i/b ZBA for the Plaintiff/Applicant (IDBI) in COMS(L)/2100/2022.
Mr. Sharan Jagtiani, Senior Counsel a/w Ms. Ankita Singhania, Mr.
Siddharth Ranade, Ms. Samrudhi Chothani, Ms. Apurva Manwani,
Mr. Raghav Bhargava i/b TRILEGAL for defendant No.1.
Mr. J.P. Sen, Senior Counsel a/w Ms. Nidhi Singh, Mr. Chitrang
Gamoth i/b India Law LLP for Defendant Nos.2 and 3.
Mr. Harit Lakhani i/b Shardul Amarchand Mangaldas & Co. for
Defendant No.6 in COMS/1447/2018 and for defendant No.5 in
COMS(L)No.2100/2022.
Mr. Archit Virmani a/w Mr. Yash Jariwala, Ms. Payoja Gandhi i/b
Yash Jariwala for defendant No.4.
CORAM : R.I. CHAGLA, J.
RESERVED ON : 5th JULY, 2022.
PRONOUNCED ON : 29th SEPTEMBER, 2022.
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ORAL JUDGMENT :
1 The present Interim Application No.2100 of 2022 is taken out
in the captioned Suit filed by the Applicant- IDBI Bank Ltd. ("IDBI")
which has sought declaration that the charge created in favour of the
Applicant/Plaintiff representing 24 Banks on the assets of Defendant
No.4-Lanco Devihalli Highways Private Limited ("Lanco") in accordance
with the Indenture of Mortgage dated 01.12.2014 shall have priority over
the security interest created in favour of Defendant No.1- ICICI Bank Ltd.
("ICICI") under the Deed of Hypothecation dated 16.12.2015. Further
relief has been sought for an order/decree holding that the Plaintiffs are
entitled to the residual amount from the amount that is lying and
deposited with Defendant No.2- SBI, in accordance with the order dated
18.02.2019 passed in Interim Application No.2543 of 2018 in Commercial
Suit No.1447 of 2018, after the amounts due to Defendant Nos.2 and 3-
State Bank of India ("SBI") and Bank of Baroda are paid off in
accordance with law. The relief sought for in the Interim Application is
for a temporary injunction restraining ICICI from seeking distribution and
for withdrawing the funds lying with SBI in derogation of the rights of
IDBI.
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2 A brief background of facts are necessary. The Concession
Agreement dated 09.07.2007 was entered into between Lanco (the
Concessionaire) and the National Highways Authority of India (NHAI) for
construction of road on Build, Operate and Transfer (BOT) basis. This
was with regard to the Nelamangala Junction on NH-4 with NH-48 to
Devihalli in the State of Karnataka ("project").
3 Pursuant to the Concession Agreement, a Substitution
Agreement dated 08.02.2008 was entered into between the NHAI, Lanco
(referred to as the Concessionaire) and SBI on behalf of the Senior
Lenders to the project which are SBI and Bank of Baroda (erstwhile Dena
Bank). Under the Substitution Agreement, only the Senior Lenders were
entitled to substitute or replace the Concessionaire and the substitution
consideration was for satisfying the dues of the Senior Lenders and it is
only the Senior Lenders who are entitled to appropriate any consideration
received by the substitution of the Concessionaire.
4 On 13.06.2012 a Rupee Facility Agreement was executed
between ICICI and Lanco whereby ICICI provided Rupee Facility of INR 90
crores to Lanco.
5 The Master Restructuring Agreement was executed by a
consortium of 24 banks of which IDBI is the lead bank and Defendant
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No.5-Lanco Infratech Ltd. ("Lanco Infratech") (currently in liquidation).
ICICI, SBI and Bank of Baroda are signatories to the Master Restructuring
Agreement which was executed on 27.12.2013. An Indenture of
Mortgage was executed on 01.12.2014 between Lanco, Lanco Infratech
and IDBI under which various properties were mortgaged by Lanco in
favour of IDBI. On the same date, the charge was registered with the
Registrar of Companies for an amount of INR 111,55,14,00,000/-. It is
relevant to note that the first proviso to Clause 4 (vii) of the Indenture of
Mortgage states that the security interest created thereunder would
include project assets only once there is approval from NHAI under
Concession Agreement dated 09.07.2007.
6 Lanco executed a Deed of Hypothecation on 16.12.2015 in
favour of ICICI as security interest under the Rupee Facility Agreement,
ranking subservient to the security interest created in favour of SBI and
Bank of Baroda. On that date itself the charge was registered with the
Registrar of Companies. Under Clause 3 (iii) of the Deed of
Hypothecation, ICICI has a charge on the accounts created by Lanco
under the project document.
7 ICICI issued a notice on 03.08.2017 recalling the financial
assistance granted to Lanco under the Rupee Facility Agreement. By the
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said notice, ICICI issued an event of default in terms of the Rupee Facility
Agreement on account of Lanco's failure to repay the outstanding
amounts.
8 SBI on 23.08.2018 issued an advertisement as the lender's
agent that it proposed to substitute Lanco with a suitable selectee in terms
of the Substitution Agreement and solicited bids from the prospective
Bidders to take over the rights and obligations of the Concessionaire
under the Concession Agreement for the residual period of the concession.
In that connection, Bid Document was issued by SBI on 23.08.2018. It is
relevant to note that "outstanding debt" is defined as amounts
outstanding in the books of the Company, namely Lanco, in relation to the
loan/indebtedness availed by the Company from the Senior Lenders and
ICICI. Senior Lenders refers to SBI and Bank of Baroda. It is further
provided in clause 2.9.7 of the Bid Document that the entire Aggregate
Transaction Consideration shall be payable by the Selectee upfront in the
manner prescribed in the Definitive Agreements and in any case, prior to
execution of the New Concession Agreement with NHAI. The Aggregate
Transaction Consideration shall be paid through an escrow mechanism
detailed in the Definitive Agreements.
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9 Shortly after the issuance of Bid Document by SBI, Lanco
Infratech went into liquidation. On 30.08.2018, ICICI addressed a letter
to SBI intimating SBI of the charge created in its favour under the Deed of
Hypothecation and requesting SBI to keep the prospective Concessionaire
informed of ICICI's right of subservient charge on the hypothecated assets
of Lanco and stating that all surplus left after making payment towards
the Senior Lender's dues should be payable directly to ICICI towards the
repayment of its outstanding dues under the Rupee Facility Agreement.
10 ICICI apprehending that a new selectee was likely to be
appointed on an immediate basis filed Commercial Suit No.1447 of 2018
before this Court seeking injunctive reliefs against the Senior Lenders
which are SBI and Bank of Baroda from replacing Lanco under the
Concession Agreement without the prior consent of ICICI or otherwise
proceeding in any manner that may be prejudicial to the security interest
created in favour of ICICI under the Deed of Hypothecation.
11 An order came to be passed in the Suit filed by ICICI by
which the Single Judge of this Court (S.J. Kathawalla, J.) granted time to
the Defendants therein to file their affidavit in reply in view of the
statement of SBI that the process of substitution will take about 2-3
months and hence no ad-interim orders were passed at that stage.
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12 The Senior Lenders filed their affidavit in reply on
12.10.2018 to the Notice of Motion taken out by ICICI wherein the Senior
Lenders placed on record the Term Sheet and Bid Document dated
23.08.2018. An affidavit in reply was also filed by Lanco in the said
Notice of Motion on 30.10.2018.
13 The Single Judge of this Court (S.J. Kathawalla, J.) on
31.10.2018 passed order, paragraph 2 of which reads as under :
"Stand over to 22nd November, 2018. In the meantime,
NHAI will not grant approval to the Agreement executed
by and between the Defendants and the new
Concessionaires".
14 Thereafter, on 18.02.2019 the Single Judge of this Court
(K.R. Shriram, J.) passed consent order by which the parties, inter-alia
agreed that (a) a new Concessionaire and NHAI were to execute all
intermediate documents, within a period of 45 days; and (b) the New
Concessionaire was required to deposit the consideration of INR 385.90
crores into Court, amongst other directions. The order also recorded that
the "issue as to the manner of distribution of the amount paid into Court"
shall be determined in the Notice of Motion taken out by ICICI. It is
necessary to note that the completion of substitution was time sensitive.
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The bidding was based on swiss challenge method. The terms submitted
by the new Concessionaire included reduction of INR 15 lakhs per day for
each day of delay in closing the transaction after 01.10.2018. By the
consent order, ICICI gave up its protection granted vide order dated
31.10.2018 to facilitate the process of substitution.
15 On 22.05.2019 SBI intimated IDBI of the status of the
substitution and inter-alia requesting IDBI to file an Intervention
Application in the Suit.
16 On 09.10.2019 IDBI filed Intervention Application in ICICI's
suit contending that it is a necessary and proper party in the suit and
asserting its rights as a Senior Creditor of Lanco in terms of the Indenture
of Mortgage dated 01.12.2014.
17 On 11.01.2021 the substitution process was completed and
an amount of INR 260,95,00,000/- was received by the Senior Lenders
from Cube Highway and Infrastructure Pvt. Ltd. (the new Concessionaire)
("Cube"). It is necessary to note that ICICI had moved this Court on 15
occasions since passing of the consent order dated 18.02.2019 to ensure
its implementation.
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18 The Single Judge of this Court (B.P. Colabawalla, J.) by order
dated 13.01.2021 recorded that upon deposit of the Aggregate
Transaction Consideration (ATC) by the Senior Lenders, the only issue
remaining to be determined in the matter related to distribution. This
order was passed in the Suit filed by ICICI. Directions were issued by the
learned Single Judge of this Court with regard to investing the ATC
alongwith interest in a fixed deposit with SBI. The fixed deposit would be
in the name of Prothonotary and Senior Master of this Court and fixed
deposit receipt was also to be handed over to the Prothonotary and Senior
Master of this Court. Considering that the aggregate amount of ATC and
Escrow amount were coming to approximately INR 340 crores and the
dues claimed by ICICI and the Senior Lenders coming to approximately
INR 380 crores, this Court suggested that the parties explore the
possibility of settlement. In the event of ICICI and Senior Lenders not
being able to mutually agree on the distribution of ATC and the amounts
lying in Escrow, as between themselves, ICICI was at liberty to file a fresh
Interim Application inter-alia seeking distribution in terms of Clause 4 (f)
of the Consent Minutes of order. Accordingly, the statement of the
learned Senior Counsel appearing for ICICI that ICICI was not pressing
prayer clause (a) in the Interim Application i.e. the vacation of the
consent order and reinstatement of injunction order dated 31.10.2018
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was recorded. ICICI filed Interim Application (L) No.3905 of 2021 in
pursuance of order dated 13.01.2021. This was filed on 23.02.2021.
19 Lanco filed Interim Application (L) No.3582 of 2021 on
18.03.2021 claiming an amount of INR 325.20 crores is due to Senior
Lenders and ICICI and that amount of INR 465.79 crores is available in
the account maintained with SBI on account of penalties paid for delay in
execution of Concession Agreement and penalties paid to NHAI. Lanco
also impugned the Senior Lenders' claim of Right of Recompense.
20 On 23.03.2021 for the first time IDBI appeared in ICICI's
Suit. The IDBI application was taken up for hearing on 20.12.2021 and
the order was passed by this Bench rejecting the IDBI application on the
ground of delay apart from the ground that IDBI is neither a necessary
nor proper party to the Suit filed by ICICI.
21 An Appeal was preferred by IDBI. The Appellate Court by
order dated 12.01.2022 disposed of the Appeal by granting liberty to
IDBI to file independent Suit and seek interim/ad-interim relief while
expressly keeping all contentions open.
22 On 20.01.2022, IDBI filed the present Suit and also took out
the present Interim Application.
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23 On 01.02.2022 this Court in the ICICI's Suit proceedings
recorded that consent has not been arrived at between ICICI and SBI on
distribution of the balance Substitution Proceeds. By a subsequent order
dated 27.04.2022, this Court allowed SBI and Bank of Baroda to
withdraw/appropriate undisputed principal amount without prejudice the
rights and contentions of the concerned parties.
24 The present Interim Application was thereafter heard and
arguments concluded on 05.07.2022.
25 Mr. Zarir Bharucha, the learned Counsel appearing for the
Plaintiffs has submitted that the present case is an inter creditor dispute
between IDBI and the ICICI with respect to distribution of the residual
Substitution Proceeds deposited in this Court which presently amounts to
Rs.100 crores. He has submitted that IDBI's case is that it together with
21 other CDR lenders of Lanco Infratech Consortium has a prior in time
and superior registered mortgage/charge over the balance Substitution
Proceeds in priority to ICICI. He has submitted that the IDBI's valuable
property rights in the Substitution Proceeds conferred under its validly
created and perfected mortgage will be irretrievably lost in the event of
the injunction sought for in the present Interim Application not being
granted. In the event the injunction is not granted, the balance
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Substitution Proceeds, of which IDBI has a valid registered proprietary
interest in, will be given to ICICI who has no proprietary interest or
property right over the balance Substitution Proceeds or even assuming
that ICICI has a proprietary interest in the balance Substitution Proceeds,
such proprietary interest/right in the Substitution Proceeds is subordinate
to that of IDBI.
26 Mr. Bharucha has submitted that ICICI has relied upon a Bid
Document dated 23.08.2018 which is a private document and unsigned
and to which the mortgagor Lanco, ICICI and IDBI are not parties to and
which is not an executed, stamped or registered instrument and thus
cannot override a validly executed, prior in time, stamped and registered
document of security in favour of IDBI i.e. the Indenture of Mortgage
dated 01.12.2014 and registered with the Registrar of Companies under
Section 77 of the Companies Act, 2013, as amended. He has submitted
that even assuming without admitting that the Bid Document legitimately
acknowledges ICICI's status as a lender to Lanco, that at the highest,
would result in ICICI being an unsecured creditor of Lanco. This is
contrary to the pleaded case of ICICI of being a secured creditor under the
Deed of Hypothecation dated 16.12.2015. ICICI's distribution application
also proceeds on the basis that it is a secured creditor of Lanco by virtue
of its Deed of Hypothecation dated 16.12.2015.
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27 The Substitution Proceeds are nothing but the assets of
Lanco. Mr. Bharucha has submitted that the consideration paid by the
New Concessionaire under the Substitution Agreement and Bid Document
is for acquiring all assets of Lanco (including rights and obligations of
Lanco under the Concession Agreement), free of encumbrances. The
consideration once received by Lanco is nothing other than the monetary
value of the assets of Lanco. He has submitted that these assets
(including rights and obligations under the Concession Agreement i.e.
Project Documents) of Lanco, are charged to secured creditors and have
been acquired by the New Concessionaire and which is now replaced and
represented by money in Court i.e. the Substitution Proceeds. He has
relied upon clause 2.1 of the Substitution Agreement whereby NHAI
irrevocably agrees to substitute the Concessionaire for securing the
payments of the Lenders Dues. He has further relied upon clauses 2.3 and
6.1 of the Substitution Agreement. These clauses also provide for the new
Concessionaire discharging the duties, obligation and liabilities of the
Concessionaire under the Concession Agreement. The Senior Lenders are
entitled to appropriate any consideration received for the substitution of
the Concessionaire from the new Concessionaire towards the payment of
their and NHAI's respective dues to the exclusion of the Concessionaire.
28 Mr. Bharucha has further submitted that the Bid Document
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provides that the New Concessionaire will acquire all rights and
obligations of Lanco under the Concession Agreement which are
encumbered and mortgaged in favour of IDBI led Lanco Infratech
consortium. The rights and obligations of Lanco acquired by the New
Concessionaire shall be unencumbered on payment of the consideration
amount. He has relied upon the definition of Aggregate Transaction
Consideration in the Bid Document which means aggregate consideration
payable by the Bidder for (i) the acquisition of concession rights for the
Project for residual terms of the Concession Agreement; and (ii) discharge
of outstanding Debt in full to the satisfaction of the Lenders. He has
submitted that the money payable by the Bidder i.e. the Substitution
Proceeds therefore becomes a 'Receivable' in the hands of Lanco.
Receivables are the assets of Lanco, which are mortgaged/charged in
favour of IDBI. He has submitted that since the receivables are the assets
of Lanco which are secured in favour of IDBI under the Indenture of
Mortgage pursuant to Clause 4 (iii) of the Indenture of Mortgage, IDBI
has a right to the Substitution Proceeds. He has submitted that if the
Substitution Proceeds are not an asset of Lanco then no creditor can have
any claim or entitlement to the same. He has submitted that ICICI cannot
plead a case contrary to its pleading, in oral arguments, submitting that it
is not a secured creditor and the Substitution Proceeds do not form part of
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the secured interest in favour of the secured creditors and is not covered
under the charge of 'Project Documents'.
29 Mr. Bharucha has submitted that the Substitution Proceeds
are not the proceeds of the Project Assets as has been asserted by ICICI
during their arguments. That ICICI's argument that IDBI's charge is
incomplete for failure to obtain NHAI approval is wholly misconceived.
He has in this context relied upon the definition of Project Assets under
the Concession Agreement as well as Clause 9.1 (xx) of the Concession
Agreement which prevents Lanco from creating any encumbrance or
security interest over all or any part of the Site or the Project Assets. It is
clear from the definition of Project Assets read with Clause 9.1 (xx) of the
Concession Agreement that no lender (including the Senior Lenders) has
a charge over the Project Assets. Consequently, no lender can assert any
claim to the Substitution Proceeds, if it is regarded as Project Assets.
30 Mr. Bharucha has submitted that IDBI's debt is secured by its
Indenture of Mortgage over all the assets of Lanco including receivables
and project documents. The Indenture of Mortgage is a duly executed,
registered and stamped document. The Indenture of Mortgage is
registered with the Registrar of Companies under Section 77 of the
Companies Act. This instrument was executed and registered in 2014.
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He has submitted that IDBI's claim to the balance Substitution Proceeds is
pursuant to the charge created by Lanco under its Indenture of Mortgage
over all of its immovable properties; all tangible movable assets including
plant and machinery; receivables; all accounts including escrow account,
debt service reserve account; assignment of rights of the Concessionaire
under all Project Documents (including the Concession Agreement),
Government Approvals, rights under any letter of credit, guarantee,
insurance contracts. The charging sections of Indenture of Mortgage
clearly establishes IDBI's proprietary claim to the balance Substitution
Proceeds is found in clause 4 of the Indenture of Mortgage dated
01.12.2014.
31 Mr. Bharucha has submitted that Lanco has categorically
recognized that the distribution of balance Substitution Proceeds solely
between SBI and ICICI, is wrong and that distribution must be determined
on the basis of the order of priority of the competing creditors, including
in particular IDBI's secured debt of Rs.11,155,14,00,000/-. Lanco in fact
confirms that IDBI has a valid charge over the Substitution Proceeds prior
to that of ICICI. Lanco has in fact filed an Interim Application No.3582 of
2021 seeking to modify the order dated 13.01.2021 passed by this Court
to allow distribution based on priority and not simply between SBI and
ICICI.
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32 Mr. Bharucha has submitted that IDBI's charge is subordinate
only to that of the Senior Lenders and in fact ICICI has clearly and
unequivocally admitted that the purported charge created in its favour by
way of the 2015 Deed of Hypothecation is subsequent and subordinate to
the charge created in favour of IDBI under its Indenture of Mortgage in
2014. He has submitted that the purported charge created in favour of
ICICI by the 2015 Deed of Hypothecation is legally invalid, in absence of
No Objection Certificates from SBI, Bank of Baroda and NHAI having
admittedly not been obtained. In fact, ICICI by letter dated 03.08.2017,
itself regarded that it had no security interest over the assets of the
Concessionaire/Lanco. ICICI's arguments proceed on the basis that its
claim over the Substitution Proceeds is of an unsecured creditor. He has
submitted that in view of the admitted position that ICICI was unable to
obtain NOCs for it to claim a security interest over the assets of the
Concessionaire/Lanco, distribution of balance Substitution Proceeds solely
to ICICI is legally impermissible. It is settled law that the claim of a
secured creditor i.e. IDBI, has to be paid first in priority to and ahead of a
claim by an unsecured creditor/ICICI.
33 In this context Mr. Bharucha has relied upon the decision of
the Supreme Court in ICICI Bank Limited vs. SIDCO Leathers Limited and
Others (2016) 10 SCC 452. It has been laid down by the Supreme Court
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that right to recover money lent by enforcing a mortgage would also be a
right to enforce an interest in the property. Section 48 of the Transfer of
Property Act has been relied upon which provides that the claim of the
first charge holder shall prevail over the claim of the second charge holder
and in a given case where the debts due to both, the first charge holder
and second charge holder are to be realised from the property belonging
to the mortgagor, the first charge holder will have to be repaid first.
There is no dispute as regards the said legal position. He has submitted
that the legal doctrine of priority articulated by the Supreme Court in
SIDCO (supra) is squarely applicable to the present controversy, as this is
a text book example of an inter-creditor dispute where the rights of
competing creditors to a fund of money is to be determined. The doctrine
of priority rests on a simple principle of law namely that the interest of all
stakeholders has to be considered by the Court when determining
distribution of funds being claimed by competing creditors. He has
submitted that the Supreme Court has categorically held that the rights of
secured creditors (which is constitutionally guaranteed) should be
protected. This would be applicable equally to distribution of security
proceeds, (i.e. the Substitution Proceeds) in the present case. The
principles underlying Section 48 of the Transfer of Property Act are
applicable here, as IDBI's mortgage extends to all immovable properties of
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Lanco. The balance Substitution Proceeds represents the security interest
of IDBI and consequently any distribution has to be in accordance with
the rule on priorities.
34 Mr. Bharucha has then relied upon Section 77 of the
Companies Act which provides for registration of a charge and that is
conclusive evidence of creation of charge and acts as notice to the public
regarding the interest of the charge holder in the charged property. The
purpose of registration of the mortgage statutorily conferred on IDBI by
Section 77 would be wholly frustrated and rendered redundant if an
unsecured creditor i.e. ICICI is allowed exclusive distribution of the
balance Substitution Proceeds. A denial of injunction sought for by IDBI
would frustrate the legislative intent underlying Section 77 of the
Companies Act.
35 Mr. Bharucha has submitted that distribution cannot be
allowed without determination of priorities and in that context he has
relied upon the decision of the Supreme Court in Commissioner Sanchaita
Investments vs. Punjab National Bank and Ors., 11 (2001) BC 278 (SC).
36 Mr. Bharucha has submitted that the order dated 13.01.2021
passed by the Single Judge of this Court (B.P. Colabawalla, J.) had
expressly kept open the issue of distribution of the Substitution Proceeds.
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This Court has held that any Interim Application by ICICI for distribution
of Substitution Proceeds would be decided on its own merit and in
accordance with law and contentions of all the parties being kept open.
This clearly establishes that the balance Substitution Proceeds cannot be
distributed without determining priorities between all creditors (and
stakeholders) and cannot be restricted only to the parties to the Suit. He
has submitted that denial of injunction sought for by IDBI would result in
miscarriage of justice as it would exclude and prevent IDBI from
participating in distribution of the balance Substitution Proceeds. This
would result in an unsecured or subsequent charge holder marching
ahead of a prior registered charge holder, thereby upturning settled
principles of banking and security law in India. IDBI and 21 other CDR
lenders of the Lanco Infratech consortium will be irretrievably prejudiced
as their registered security interest will be extinguished/rendered
nugatory and the balance Substitution Proceeds would be given to an
unsecured creditor.
37 Mr. Bharucha has then made submissions on the Bid
Document being not a public document and being available only to
prospective Bidders after paying Rs.2 lakhs and executing a
confidentiality and non disclosure undertaking. Consequently IDBI had
no occasion to even inquire about the contents of the Bid Document leave
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alone dispute or challenge the same. IDBI cannot be expected to
challenge the bidding process when there was no occasion to doubt that
the contents of the Bid Document would travel beyond the Substitution
Agreement. No delay can be attributed to IDBI on this. The Bid Document
is not an independent and/or separate document, nor does it confer any
right or entitlement in favour of any party independent of the Concession
Agreement and/or Substitution Agreement. The Bid Document cannot
override validly executed and registered security document. It is settled
law that right created in terms of a registered document cannot be
amended/obliterated by way of an unregistered document. The
Indenture of Mortgage being a duly stamped and registered document
cannot be unilaterally modified by any document, least of all by the Bid
Document, which cannot alter the inter-se status of secured lenders.
Consequently ICICI cannot claim a superior right to IDBI on the basis of
the Bid Document.
38 Mr. Bharucha has submitted that ICICI's pleaded case makes
no reference or reliance on the Bid Document. ICICI's pleaded case is that
it is entitled to the balance Substitution Proceeds, pursuant to its right as
a secured creditor of Lanco, under a Deed of Hypothecation dated
16.12.2015. He has submitted that none of the orders passed by this
Court in ICICI's Suit refers to the Bid Document and correctly so, as
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ICICI's consistent pleaded case is that its entitlement (if any) to the
balance Substitution Proceeds was under the Deed of Hypothecation and
not the Bid Document.
39 Mr. Bharucha has dealt with the issues of delay, laches and
conduct which is alleged against IDBI. He has submitted that the
impleadment application was filed by IDBI in 2019 when it first came to
the knowledge of IDBI on 21.05.2019 upon SBI (being a member of IDBI
led Lanco Infratech consortium) intimating IDBI that ICICI was seeking
priority over it. On the date of filing of the Interim Application by IDBI
i.e. 09.10.2019, the balance Substitution Proceeds had not come into the
Court and there was no adjudication of ICICI's status or ranking as a
secured creditor. Consequently, there was no delay on IDBI's part in
protecting its security interest. ICICI had not informed or served IDBI any
papers and proceedings in its Suit. ICICI, in breach of its duty to disclose
all material facts, never informed the Court that IDBI was a prior
mortgagee. He has submitted that the argument on IDBI's delay is
advanced to avoid judicial scrutiny of ICICI's claim which it knows is
subordinate to that of IDBI. Thus, ICICI cannot base its entitlement to
distribution of balance Substitution Proceeds on delay, but would have to
independently of the conduct of IDBI, satisfy this Court of its entitlement
to exclusive distribution of the balance Substitution Proceeds, which it
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cannot, given that ICICI admits to being an unsecured creditor.
40 Mr. Bharucha has submitted that delay, laches and conduct
cannot take away valuable proprietary rights. He has relied upon the
decision of the Supreme Court in Sha Mulchand and Co. Ltd. v. Jawahar
Mills Ltd. AIR 1953 SC 98 in that context. He has also relied upon the
decision of the Delhi High Court in Shri Swaran Singh Trading v. Usha
Industries, AIR 1986 Delhi 343, which has held that a statutory right
cannot be lost by delay. He has also relied upon the commentary of
Steven Gee QC. "Commercial Injunctions" wherein it is mentioned that
even if there is a delay such that a mareva injunction would be refused,
an injunction based on proprietary claim may be granted. He has
accordingly submitted that IDBI's security interest over all assets of Lanco
which is registered with the Registrar of Sub-Assurances under the
Transfer of Property Act, 1882 and with the Registrar of Companies under
the Companies Act, cannot be obliterated merely on the grounds of delay
and laches, assuming without admitting that there was any.
41 Mr. Bharucha has submitted that the order dated 01.02.2022
passed by this Court in the ICICI Suit clearly states that there is no
consent between SBI and ICICI and that distribution requires
adjudication. The prior consent order dated 18.02.2019 cannot be the
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basis for distribution of the balance Substitution Proceeds as it is now
modified by the said order dated 01.02.2022. He has submitted that the
Suit filed by ICICI only contemplates substitution of the Concessionaire
and that parties to that Suit cannot agree or compromise on a subject
matter which is not contemplated in the Suit i.e. the distribution of the
balance Substitution Proceeds. He has submitted that SBI and ICICI
cannot mutually decide and enter into consent terms to distribute IDBI's
valid proprietary/security interest in the Substitution Proceeds. It is trite
law that a consent order cannot set at naught third party rights. He has
relied upon the decision of the Supreme Court in Ram Chandra Singh v.
Savitri Devi and Others (2003) 8 SCC 319 in that context.
42 Mr. Bharucha has further dealt with the order dated
31.10.2018 passed by this Court in ICICI Suit by submitting that the order
was merely a status-quo order, without any judicial determination of
status, prima facie case or balance of convenience in favour of ICICI.
There is no judicial finding on the status or claim of ICICI by this Court.
This Court had not made any finding that ICICI could claim against the
Substitution Proceeds based on the Bid Document. He has dealt with the
orders passed in the ICICI Suit to contend that there was no finding on
distribution of the Substitution Proceeds and/or contemplating
distribution of the Substitution Proceeds solely between SBI and ICICI to
Waghmare 24/61
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the exclusion of other creditors i.e. IDBI.
43 Mr. Bharucha has accordingly submitted that IDBI has clearly
established an overwhelming prima facie case and balance of convenience
in its favour. IDBI having prior security interest over the assets of Lanco
and such statutory and registered right being a valuable proprietary
interest must be protected. IDBI cannot be denied injunctive relief merely
due to alleged delay and laches. IDBI's proprietary rights over the balance
Substitution Proceeds cannot be lost/relinquished except by a positive
action on its part, of which there is none. He has submitted that
distribution of the balance Substitution Proceeds, solely to ICICI, pending
adjudication of rival claims of secured creditors, will set an unhealthy
precedent for litigants, especially, within the banking sector which relies
heavily on security interest. Distribution of the balance Substitution
Proceeds to ICICI (an unsecured creditor) would unfairly prejudice and
disadvantage prior ranking secured creditors i.e. IDBI, who has a
stronger/higher claim than subordinate or unsecured creditors. No equity
or equitable right is created in favour of ICICI by any orders passed by this
Court that warrants denial of injunctive relief in favour of IDBI.
Accordingly he has submitted that the relief sought for in the present
Interim Application be granted.
Waghmare 25/61
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44 Mr. J.P. Sen, learned Senior Counsel appearing for Defendant
Nos.2 and 3-SBI and Bank of Baroda has submitted that though SBI and
Bank of Baroda are not concerned with the merits of the dispute between
IDBI and ICICI, the documents on record including the Substitution
Agreement makes it clear the purpose for execution of the Agreements
was for satisfaction of dues of the Senior Lenders which are SBI and Bank
of Baroda. Only the Senior Lenders are entitled to appropriate any
consideration received by substitution of the Concessionaire. The reason
for including ICICI's debt was because it appeared in the financial
statements of Lanco. However, this does not mean that the other
creditors such as IDBI are not to be considered when the issue of
distribution of the Substitution Proceeds is taken up by this Court. The
Bid Document cannot travel beyond the terms of the Substitution
Agreement. He has in this context relied upon the Concession Agreement
dated 09.07.2007 between NHAI and Lanco as well as the common loan
agreement dated 31.01.2008 between Lanco, SBI and Bank of Baroda
(then known as Dena Bank) as well as the escrow agreement dated
08.02.2008 between SBI, Lanco and NHAI as well as the Substitution
Agreement dated 08.02.2008 between NHAI, SBI and Bank of Baroda. He
has submitted that there was a first charge created in favour of SBI and
Bank of Baroda on Lanco's properties including project assets and
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receivables as well as on all accounts including escrow accounts. Thus,
the Substitution Proceeds brought in by the new Concessionaire was
firstly to satisfy the Senior Lender's dues and then only any amounts
remaining could be distributed between the other creditors. He has
submitted that the orders passed in ICICI Suit cannot be relied upon by
ICICI to entitle them to claim the residue of the Substitution Proceeds to
the exclusion of other creditors which include IDBI.
45 Mr. Sharan Jagtiani, learned Senior Counsel appearing for the
Defendant No.1-ICICI has submitted that by the present Interim
Application, the Plaintiffs are seeking to stall the distribution of the
Substitution Proceeds which have been deposited in this Court in the Suit
filed by Defendant No.1 (ICICI's Suit). He has submitted that ICICI is
entitled to the Substitution Proceeds which remain in this Court after
satisfaction of the dues of the Senior Lenders by virtue of the orders
passed by this Court in ICICI's Suit; the Bid Document; and the
acknowledgment of ICICI's entitlement to such balance proceeds by both,
SBI and Lanco in their numerous affidavits filed in the ICICI's Suit.
46 ICICI had filed Suit on 25.09.2018 before this Court seeking
injunctive reliefs against the Senior Lenders from replacing Lanco under
the Concession Agreement without the prior consent of ICICI, or
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otherwise proceeding in any manner that may be prejudicial to the
security interest created in its favour under the Deed of Hypothecation.
When the suit was filed, ICICI was not aware that SBI had issued the Bid
Document dated 23.08.2018, which categorically recorded ICICI's dues as
part of the outstanding dues upon the substitution taking place. The Bid
Document came to be revealed to ICICI only in October, 2018 when SBI
filed an affidavit in ICICI's Notice of Motion, placing the Bid Document on
record. Subsequent to the filing of the Suit, ICICI moved this Court for
urgent relief and on 31.10.2018 this Court passed an injunction order in
favour of ICICI directing that "..... NHAI will not grant approval to the
Agreement executed by and between the Defendants and the new
Concessionaires". This injunction order was given up by ICICI by entering
into Consent Terms with SBI and Bank of Baroda on 18.02.2019, allowing
the process of substitution to take place. In light of the inordinate delay
in the Substitution Process, ICICI had filed an application in its Suit
seeking inter-alia vacation of the consent order and restoration of the
injunction order. ICICI did not press this prayer before this Court as the
same would have resulted in the substitution process being unravelled. In
March 2021, in the spirit of settlement, ICICI did not oppose an
application made by SBI to liquidate the moneys lying in the fixed deposit
to meet the operational expenses of Lanco and obligatory escrow
Waghmare 28/61
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payments.
47 Mr. Jagtiani by relying upon these orders has submitted that
in order to secure the balance proceeds of substitution, ICICI, in its suit
had on several crucial junctures, made several important and irreversible
concessions. He has submitted that IDBI filed its application only in
October, 2019 seeking to be impleaded as party Defendant in ICICI's Suit.
Though the impleadment application was filed on 11.10.2019, it was not
moved by IDBI on even a single occasion. IDBI appeared for the first time
in ICICI's suit only at the time of hearing on 23.03.2021. This was at a
time when ICICI was in advanced settlement talks with the Senior
Lenders. The impleadment application was rejected by this Court vide
order dated 20.12.2021 on the ground that IDBI was neither necessary
nor proper parties in ICICI's Suit as well as taking note of the considerable
delay in the IDBI moving the impleadment application. The order dated
20.12.2021 rejecting IDBI's impleadment application was confirmed on
12.01.2022 by the Division Bench of this Court.
48 Mr. Jagtiani has submitted that ever since the filing of the
Suit by ICICI, the proceedings have progressed significantly and several
orders have been passed by this Court recognizing ICICI's entitlement to
the balance Substitution Proceeds. Now it is not open for IDBI to frustrate
Waghmare 29/61
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the implementation and fruition thereof by the IDBI Suit and present
Interim Application. IDBI must fail on principles applicable to grant of
injunction i.e. their complete failure on balance of convenience, in
explaining their conduct and inaction, especially in the light of prejudice
which shall cause ICICI as well as their failure to establish a prima facie
case to establish any right or priority over ICICI over the Substitution
Proceeds deposited in this Court in terms of Clause 4 of the Indenture of
Mortgage.
49 Mr. Jagtiani has also placed reliance upon the order dated
13.01.2021 passed by this Court at which time this Court was informed
that the ATC had been received from Cube. Vide this order, this Court
directed ICICI and the Senior Lenders to consider a settlement to work
out the entire disputes since the aggregate amount of ATC and the escrow
amount came to approximately INR 340 crores and the dues claimed by
ICICI, SBI and Bank of Baroda came to approximately INR 380 crores.
From a reading of this order as well as the prior orders passed by this
Court in ICICI Suit leave no room for doubt that at all points of time,
distribution of the Substitution Proceeds was contemplated as between
only ICICI and the Senior Lenders. The Consent Terms was signed by all
the parties to ICICI's Suit including NHAI. The substitution had been duly
undertaken and concluded with the blessing of NHAI, pursuant to which
Waghmare 30/61
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the Substitution Proceeds have come into Court in ICICI's Suit
50 Mr. Jagtiani has then relied upon the Bid Document issued by
SBI on 23.08.2018 which as aforementioned came to the knowledge of
ICICI only when SBI filed an affidavit in reply to ICICI's Notice of Motion
No.2453 of 2018 in October, 2018 placing the Bid Document on record.
The Bid Document at multiple places, recognizes ICICI's entitlement
alongwith that of the Senior Lenders to the consideration being brought
in by the new Concessionaire. The Bid Document has recorded the basis
of ICICI's entitlement as its lending to Lanco under the Rupee Facility
Agreement in 2012. Mr. Jagtiani has relied upon the definition of
Aggregate Transaction Consideration (ATC) as well as Outstanding Debt.
Under the definition of Outstanding Debt in Clause 1.2 of the Bid
Document it refers to the Senior Lenders and ICICI only. Under clause
1.13 the terms and conditions of substitution are provided. The Bidder
has acknowledged and unconditionally assumed the liability to discharge
the Outstanding Debt on the terms approved by the Senior Lenders and in
accordance with the Definitive Agreements. Under Annexure VI the
details of Outstanding Debt have been provided and which includes the
debt of SBI and Bank of Baroda (then Dena Bank) as Senior Lenders and
under other outstanding debt only ICICI Bank has been referred to.
Accordingly, Mr. Jagtiani has submitted that ICICI is therefore entitled to
Waghmare 31/61
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the Substitution Proceeds which remain in Court after satisfaction of the
dues of the Senior Lenders by virtue of the Bid Document and the Orders
passed by this Court in ICICI's Suit.
51 Mr. Jagtiani has then placed reliance on the pleadings filed by
Lanco, namely the affidavit in reply to the Notice of Motion No.2453 of
2018 dated 27.10.2018 filed in ICICI's Suit as well as the additional
affidavit in reply to Notice of Motion No.2453 of 2018 dated 25.01.2019.
He has also placed reliance upon the pleadings in Interim Application (L)
No.3582 of 2021 dated 02.02.2021 filed by Lanco and the affidavit in
reply of Lanco to Interim Application (L) No.3905 of 2021 dated
01.07.2021 which have been filed in the ICICI's Suit. All these pleadings
proceed on the basis that the Senior Lenders are entitled to appropriate
the Substitution Proceeds and thereafter, the balance amount will be paid
to ICICI having second/subservient charge. The Outstanding Debts refer
to that of the SBI, Bank of Baroda and ICICI. Therefore, while Lanco has
maintained that payments are required to be made in priority towards
statutory dues of the Company, nowhere has Lanco denied that ICICI is
entitled to Substitution Proceeds. To the contrary, Lanco has consistently
acknowledged ICICI's entitlement to the Substitution Proceeds. In any
event, distribution of amounts to Lanco for statutory payments is the
subject matter of applications filed by Lanco in ICICI's Suit which is
Waghmare 32/61
IAL.2102.22 wt..doc
currently pending.
52 Mr. Jagtiani has submitted that IDBI has no case of priority, in
their favour on the basis of the Indenture of Mortgage. This is because
there is no charge created in their favour on the Aggregate Transaction
Consideration under the Indenture of Mortgage. The Substitution
Proceeds deposited in Court do not and cannot form the IDBI's security
under any of the sub-clauses to Clause 4 of the Indenture of Mortgage,
since the proceeds from substitution are not the property of the mortgagor
i.e. Lanco; and neither are the proceeds those which arise from the
liquidation of Lanco's assets or security. The proceeds from substitution
and the amounts lying in the escrow cease to be Lanco's property upon
the substitution taking place. The Substitution Proceeds and amounts
lying in escrow constitute a difference source of funds available through a
special/novel mechanism to discharge the dues of Lanco's lenders (i.e. the
Senior Lenders and ICICI), when Lanco ceases to be the Concessionaire in
the Project, and has no right or demand over the Project or any related
proceeds, or under any project assets (as defined under the Concession
Agreement). Both under the Substitution Agreement and the Concession
Agreement, there is no provision conferring Substitution Proceeds and
amounts lying in escrow the status of Lanco's property. Without prejudice
to the forgoing, and even though the same has not been urged by IDBI in
Waghmare 33/61
IAL.2102.22 wt..doc
the course of oral arguments, it is submitted that even the amounts lying
in escrow post substitution of Cube in place of Lanco are not the asset of
Lanco. Though there is no pleading to this effect, IDBI have in oral
arguments contended that IDBI's right to the Substitution Proceeds arises
on account of the charge created by Lanco in favour of IDBI on Lanco's
'receivables'. This argument has no merit in view of the fact that the
Substitution Proceeds cease to be Lanco's property upon the substitution
having taken place. Thus, IDBI's argument that the Substitution Proceeds
are a "receivable" of Lanco is patently erroneous, for even, Lanco has
admitted that the Substitution Proceeds are to be utilized to pay the dues
of the Senior Lenders and ICICI. As a result, IDBI's security over
'receivables' of Lanco cannot mean to include the Substitution Proceeds,
and is therefore not covered under IDBI's Indenture of Mortgage.
53 Mr. Jagtiani has then relied upon the decision of the Supreme
Court in Jitendra Nath Singh v. Official Liquidator and Others (2013) 1
SCC 462 wherein the Supreme Court discussed the interpretation of
Sections 529 and 529-A of the Companies Act, 1956 and held that a
secured creditor has only a charge over a particular property or asset of
the Company. In the absence of the Substitution Proceeds being an asset
of Lanco, IDBI cannot claim security over the Substitution Proceeds under
its Indenture of Mortgage. Mr. Jagtiani has then submitted that without
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prejudice to the forgoing and in the alternative, if the Substitution
Proceeds are to be treated as an asset of Lanco, such Substitution
Proceeds at the best constitute "Project Assets" which has been defined
under the Concession Agreement as all physical and other assets relating
to and forming part of the Project Highway and under the first proviso to
Clause 4 of the Indenture of Mortgage, the security interest stipulated in
Clause 4 is that it shall in all respects, exclude the Project Assets unless
such Security Interest is consented to by NHAI pursuant to the Concession
Agreement. It is an admitted position that IDBI do not have NHAI
consent, as required under the proviso. Thus, IDBI's security does not
even extend to Project Assets, which is wide in its definition. As opposed
to this, ICICI's entitlement under the Bid Document has been consented to
by the Senior Lenders as well as the NHAI.
54 Mr. Jagtiani has then dealt with IDBI's argument that the
principles under Section 48 of the Transfer of Property Act as well as the
judgment of SIDCO (supra) is applicable and that the Court is to
determine priority of rights and IDBI having a higher charge and ICICI's
charge being subordinate to that of IDBI, the balance Substitution
Proceeds which represents the security interest of IDBI is required to be
distributed in accordance with the rule on priorities and would necessarily
have to take into consideration IDBI's charge. He has submitted that
Waghmare 35/61
IAL.2102.22 wt..doc
Section 48 of the Transfer of Property Act specifically deals with priority
of rights created by transfer in immovable properties, thereby not being
applicable to any question of priority over the Substitution Proceeds
which are concerned in the present matter. The decision of the Supreme
Court in SIDCO (supra) also concerns priority in respect of properties
belonging to the mortgagor and that the first charge holder will have to
be repaid first in that context. Considering that the Substitution Proceeds
is not a property belonging to the mortgagor, the decision of Supreme
Court in SIDCO (supra) is inapplicable to the present case. Further he has
submitted that the decision relied upon by IDBI in Sha Mulchand and
Company Limited (in liquidation) by the Official Receiver, High Court,
Madras, (supra) in contending that mere laches will not take away a
party's proprietary rights, does not come to the aid of IDBI since ICICI is
not arguing that IDBI has relinquished their proprietary rights. In the
present case, IDBI has failed to prove their entitlement to the Substitution
Proceeds. Further, the decision of the Delhi High Court in Shri Swaran
Singh Trading (supra) which is in similar vein and relied upon by IDBI is
inapplicable in the present case. So also the passage of Stevan Gee QC in
his commentary on Commercial Injunction which is in context of Mareva
Injunction and not relevant to the case in hand. The passage has gone on
to state that in assessing balance of convenience, the Court is seeking to
Waghmare 36/61
IAL.2102.22 wt..doc
take the course which will have the least risk of injustice.
55 Mr. Jagtiani has submitted that SBI has in course of oral
arguments submitted that its position is neutral as regards question of
entitlement of IDBI or ICICI after satisfaction of the Senior Lender's Debt.
This is contrary to the pleadings filed by SBI i.e. in numerous Interim
Applications across multiple affidavits acknowledging ICICI's right to the
Substitution Proceeds. He has in this context relied upon the affidavit in
reply to the Notice of Motion No.2453 of 2018 dated 12.10.2018 as well
as affidavit in reply to Interim Application (L) No.3905 of 2021 dated
02.03.2021 filed by SBI in the ICICI Suit. In these pleadings, SBI has
acknowledged the debts of ICICI and that the Substitution Proceeds can
be used for satisfying the dues of ICICI after satisfying Senior Lenders
entire claim. The stand of SBI in adopting neutrality is contrary to such
pleadings and SBI cannot resile from its position in such multiple
pleadings/affidavits.
56 Mr. Jagtiani has submitted that IDBI's claim is a claim to the
monies lying in Court and not a claim to property in specie. In the
circumstances, distribution of the Substitution Proceeds can well be
permitted, subject to the outcome of IDBI's Suit. In the event that IDBI
was to succeed in its Suit, ICICI can bring back the monies if so directed.
Waghmare 37/61
IAL.2102.22 wt..doc
Given IDBI's conduct, he has submitted that such an order would meet the
ends of justice.
57 Mr. Jagtiani has placed reliance on judgments passed by this
Court, the Calcutta High Court and the Supreme Court in cases of
Ambalal Sarabhai Enterprise Limited v. KS Infraspace, (2020) 5 SCC 410;
Prabhakar v. Joint Director, Sericulture, (2015) 15 SCC 1; Rajesh v. Mrs.
Bhavna, 2008 (6) Mh.LJ 853; Triloki Nath Singh v. Anirudh Singh, (2020)
6 SCC 629 and Jadu Nath Gupta v. Chandra Bhusan Sur and Others, AIR
1932 Cal 493 para 13 in support of his submissions that conduct of a
party seeking equity is analyzed at the time of granting relief and that
acquiescence disentitles a party from claiming relief. Further a
compromise decree creates an estoppel by judgment. Third parties cannot
challenge a consent decree by way of a separate suit and when waiver or
abandonment by the Plaintiff induces the Defendant to change his
position, the Plaintiff ought not to be granted any relief. IDBI have not
dealt with these judgments cited by ICICI in its rejoinder arguments.
58 Mr. Jagtiani has placed reliance on the decision of the
Calcutta High Court in Jadu Nath Gupta (supra) which holds that mere
delay is not a ground for refusing relief to the Plaintiff if there has been
no change in status quo since the contract, but where the conduct of the
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Plaintiff is such that though it does not amount to abandonment but
shows waiver or acquiescence especially when inaction on his part
induces the Defendant to change his position, the Plaintiff ought not to be
allowed any relief. The two circumstances which are to be borne in mind
is a length of the delay and the nature of the acts done during the interval
which may affect either party to cause a balance of justice or injustice in
taking the one course or the other, so far as it relates to the remedy. Mr.
Jagtiani has in this context submitted that ICICI while diligently
prosecuting its Suit, has made compromises and irreversibly altered its
position on several occasions, either pursuant to suggestions of this Court
or based on the position adopted by SBI as well as with intent to resolve
the dispute in an amicable manner as between the parties to the ICICI
suit. Accordingly, IDBI's delay coupled with the irreversible steps taken by
ICICI during such time ought to weigh against IDBI and in favour of ICICI,
as per the settled law.
59 Mr. Jagtiani has submitted that it cannot only be the Senior
Lenders who are guaranteed the Substitution Proceeds in ICICI's Suit by
virtue of signing the Consent Minutes, while ICICI is deprived of the
Substitution Proceeds, by an order of injunction which will resultantly
stall the distribution process completely. It is also imperative to note that
SBI's acceptance of distribution of the Substitution Proceeds to ICICI after
Waghmare 39/61
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satisfaction of the Senior Lenders' dues is consistent with the consent
order passed by this Court. Grave harm, loss and prejudice will be caused
to ICICI if the orders passed by this Court read with the Bid Document are
not implemented in the manner contemplated by this Court. No such
harm will be caused to IDBI if distribution of the Substitution Proceeds
take place in ICICI's suit.
60 Mr. Jagtiani has submitted that IDBI has failed to establish a
prima facie case in its favour. Furthermore, IDBI has failed to explain the
delay in approaching this Court to seek injunctive reliefs, let alone
demonstrate their bonafides. Accordingly, the relief sought for by IDBI
ought not to be granted by this Court as it will only displace and negate
orders passed by this Court since October, 2018 causing irreparable harm
to ICICI and render the sanctity of the orders of this Court void.
61 Having considered the submissions, it would be necessary to
note that the Concession Agreement had been executed on 09.07.2007
between Lanco and NHAI for construction of road on build, operate and
transfer (BOT) basis. In the Concession Agreement, the Senior Lenders
were defined and which includes financial institutions, banks, funds and
agents or trustees of debenture holders, non banking financial companies
or other major lending agencies approved by Reserve Bank of India
Waghmare 40/61
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including their successors and assignees, who have agreed to guarantee or
provide finance to the Concessionaire under any of the finance documents
for meeting costs of all or any part of the project and who hold pari passu
charge on the concession granted by this agreement. The object of the
Concession Agreement was for the Concessionaire to enjoy and oblige as
Concessionaire by levying, demanding, collecting and appropriating fees
from vehicles and persons liable to payment of fees for using the project
highway or any part thereof and refuse entry of any vehicle to the project
highway if the due fee is not paid. Further, the Concessionaire was not to
assign or create any lien or encumbrance on the concession granted by
the Concession Agreement on the whole or any part of the project
highway nor transfer, lease or part possession therewith save and except
as expressly permitted by the said Concessionaire Agreement or the
Substitution Agreement. It was further provided under the Assignments
and Charges provision in the Concession Agreement i.e. Clauses 35.1 and
35.2 thereof that the Concession Agreement shall not be assigned by the
Concessionaire save and except with prior written consent of NHAI and
the Concessionaire shall neither create nor permit to subsist any
encumbrance over or otherwise transfer or dispose of all or any of its
rights and benefits under the Concession Agreement or any Project
Agreements to which the Concessionaire is a party except with prior
Waghmare 41/61
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written consent of NHAI which consent NHAI shall be entitled to decline
without assigning any reasons whatsoever. In Clause 35.4 of the
Concessionaire Agreement it was provided that the Senior Lenders may
exercise the rights of step-in or substitution as provided in the
Substitution Agreement to be entered into among the Concessionaire,
NHAI and Senior Lenders provided that the person substituting the
Concessionaire shall be deemed to be the Concessionaire under the
Concession Agreement and shall enjoy all rights and be responsible for all
obligations under the Concession Agreement as if it was the
Concessionaire.
62 In the Substitution Agreement executed on 08.02.2008
between NHAI, SBI and Bank of Baroda, the Lenders' Dues were defined
under Clause 1.1.8 thereof which means the aggregate of all monies owed
by the Concessionaire to the Senior Lenders under the Financing
Documents on account of principal thereunder for funding the Project
Cost, and all accrued interest, additional interest, liquidated damages,
commitment fees, commission, prepayment premium, costs, charges and
other monies including financing charges and fees owed by the
Concessionaire to the Senior Lenders under the Financing Documents for
the Project upto the transfer date, payable under the Financing
Documents. In clause 6.1 of the Substitution Agreement, it was provided
Waghmare 42/61
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that the Senior Lenders shall be entitled to appropriate any consideration
received for the substitution as provided from the Selectee towards the
payment of their and NHAI's respective dues to the exclusion of the
Concessionaire.
63 Thus it can be seen from both the Concession Agreement and
the Substitution Agreement that the Senior Lenders' dues were to be
taken care of from the Concessionaire and upon his failure to pay the
dues of the Senior Lenders, the Senior Lenders have the option to
substitute the Concessionaire by the Selectee under the Substitution
Agreement and appropriate consideration received for the substitution
from the Selectee towards payment of their and NHAI's respective dues to
the exclusion of the Concessionaire.
64 The purpose for filing the suit by ICICI was to seek injunctive
reliefs against the Senior Lenders from replacing the Concessionaire under
the Concession Agreement without prior consent of ICICI who are also
creditors having executed Rupee Facility Agreement with the
Concessionaire on 13.06.2012 whereby ICICI had provided a Rupee
Facility of INR 90 crores. The injunctive relief against the Senior Lenders
was necessary according to ICICI as the Senior Lenders would appoint the
Selectee without the consent of ICICI and that may be prejudicial to the
Waghmare 43/61
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security interest created in favour of ICICI under the Deed of
Hypothecation which was executed by the Concessionaire on 16.12.2015
in favour of ICICI as security interest under the Rupee Facility Agreement
ranking subservient to the security interest created in favour of SBI and
Bank of Baroda (the then Dena Bank). At the time of filing of the Suit,
ICICI was not aware that SBI had issued a Bid Document dated
23.08.2018, which categorically recorded ICICI's dues as part of the
Outstanding Dues upon the substitution taking place.
65 The Bid Document was issued by SBI pursuant to an
advertisement issued stating that as lender's agent it proposed to
substitute the concessionaire with a suitable Selectee in terms of the
Substitution Agreement and solicited debts from prospective bidders over
the rights and obligations of the Concessionaire under the Concession
Agreement for the residual period of the concession. It is necessary to
note that in the Bid Document issued by SBI on 23.08.2018, under Clause
1.2 of the definitions, "Aggregate Transaction Consideration" has been
defined as under :
Clause 1.2 Definitions
"Aggregate Transaction Consideration" shall
mean the aggregate consideration payable
by the Bidder for (i) the acquisition of
concession rights for the Project for residual
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term of the concession under the Concession
Agreement and (ii) discharge of
Outstanding Debt in full to the satisfaction
of the Lenders.
Further, "outstanding debts" has also been defined as under:
"Outstanding Debt" shall mean all the amounts
outstanding in the books of the Company in relation to
the loan/ indebtedness availed by the Company from the
Senior Lenders and ICICI Bank. The details of the
Outstanding Debt as on March 31, 2018 are set out in
detail in Annexure VI of Appendix.
"Senior Lenders" shall mean the banks and financial
institutions from which the Company has availed
financial assistance to finance the cost of construction of
the Project, as specifically set out in Annexure VI of
Appendix.
Under Clause 1.13, terms and conditions of substitution have been
provided as under :
Clause 1.3 Terms and conditions of substitution
1.13.1 By admitting a Bid in terms of this Bid
Document, a Bidder is deemed to have (i)
acknowledged the following and undertaken the
following obligations, and (ii) made the following
representations to the Lenders' Agent, the Senior
Lenders and the Authorised Representative:
(a) ...
(b) The Bidder acknowledges and unconditionally as -
sumes the liability to discharge the Outstanding
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Debt on the terms approved by the Senior Lenders
and in accordance with the Definitive Agreements.
(k) The Bidder undertakes that it shall comply with all
the terms of the Bid Document and the Definitive
Agreements including discharge of the
Outstanding Debt to the Senior Lenders as
subsisting on the Substitution Date, if it is declared
as a Selectee upon the completion of the Bidding
Process.
Further Clause 2.9.7 of the Bid Document provided for payment of
Aggregate Transaction Consideration as under :
Clause 2.9.7 Payment of Aggregate Transaction
Consideration
The entire Aggregate Transaction Consideration shall
be payable by the Selectee upfront in the manner prescribed
in the Definitive Agreements and in any case, prior to
execution of the New Concession Agreement with NHAI. The
Aggregate Transaction Consideration shall be paid through an
escrow mechanism detailed in the Definitive Agreements.
Under Annexure V Primary Offer has been mentioned as under :
Annexure V PRIMARY OFFER
1. Proposed Transaction and Aggregate Trans-
action Consideration
(i)...
(ii) The Road Company shall acquire the conces-
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sion rights of the Company (free of any and all en-
cumbrances from any lender including ICICI Bank)
in the Project pursuant to the Proposed Transac-
tion for an Aggregate Transaction Consideration of
INR 385.90 Crore which upon payment of the
aforesaid amount on the Closing Date (as defined
hereinafter) shall be the full and final discharge of
all the dues of the Company towards the Senior
Lenders under the Financing Documents. This Ag-
gregate Transaction Consideration is as on Sep-
tember 30, 2018 and does not include actual cash
balance as on September 30, 2018. For Sake of
clarity, actual cash balance as on September 30,
2018 shall be retained in the Company.
(iii) The Aggregate Transaction Consideration
shall be paid through an escrow mechanism that
will be detailed in the binding agreement to be ex-
ecuted between the Senior Lenders, the Primary
Offeror and such other third parties (as are mutu-
ally agreed between the Senior Lenders and the
Primary Offeror) for the purpose of giving effect to
the Proposed Transaction ("Definitive Agree-
ment").
5. Conditions Precedent to effectiveness of Defini-
tive Agreements and Closing
"Upon receipt of Aggregate Transaction
Consideration by Senior Lenders and ICICI Bank in
accordance with the terms detailed in the
Definitive Agreements the Senior Lenders shall
within a reasonable period, provide a confirmation
to the Road Company that they have no
charges/encumbrances on the Project Assets."
[emphasis supplied]
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Annexure VI of the Bid Document provides details of outstanding debt as
under:
ANNEXURE VI - DETAILS OF OUTSTANDING DEBT
The Outstanding Debt as on March 31, 2018 is given below:
Senior Sanctione Outstand Overdue Overdue Total
Lenders d loan (in ing Principal Interest Outstanding
Rupees/ Principal (in (in Debt (in
crore) (in Rupees/ Rupees/ Rupees/
Rupees/ crore) crore) crore)
crore) (2) (3) (1)+(2)+ (3)
State 225.69 219.82 0.00 0.00 219.82
Bank of
India as
Senior
lender
Dena 16.72 16.29 0.00 0.00 16.29
Bank as
Senior
Lender
Other Sanctione Outstand Overdue Overdue Total
Outstand d Loan (in ing Principal Interest Outstanding
ing Debt Rupees/ Principal (in (in Debt (in
crores) (in Rupees/ Rupees/ Rupees/
Rupees/ crores) crores) crores)
crores) (2) (3) (1)+(2)+ (3)
ICICI 90.00 83.70 3.15 17.30 104.15
Bank
Total 332.41 319.81 3.15 17.30 340.26
Outstand
ing Debt
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66 Thus it can be seen from the Bid Document that apart from
the Senior Lenders dues which were shown under the definition of
Outstanding Debt, the dues of ICICI Bank were also clearly mentioned
and this is further borne out from Annexure VI which provides the details
of outstanding debt wherein under other outstanding debt, the ICICI debt
is mentioned as part of the total outstanding debt of Rs.340.26 crores.
Though it has been stated during the arguments by Mr. J.P. Sen for SBI
and Bank of Baroda that the reason for including ICICI's debt was because
it appeared in the financial statements of Lanco, it is clear from the
pleadings of SBI as well as that of Lanco that it was clearly envisaged in
the Bid Document that the moneys being brought in by the selectee was
for satisfying not only the Senior Lenders dues which would be first
satisfied but also any residue of the Substitution Proceeds being used to
satisfy the outstanding debts of ICICI. It has been stated by ICICI that the
Bid Document was revealed to them only in October, 2018 when SBI filed
an affidavit in ICICI's Notice of Motion, placing the Bid Document on
record. It is further necessary to note that in the Suit filed by the ICICI,
an application had been taken out by ICICI for urgent relief and on
31.10.2018, this Court passed an injunction order in favour of ICICI,
directing that ".... NHAI will not grant approval to the agreement
executed by and between the Defendants and the new Concessionaires".
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67 After settlement discussions which took place between the
parties to the ICICI's suit, on 18.02.2019, the parties to ICICI's Suit i.e.
ICICI, the Senior Lenders, Lanco, NHAI and the selectee Cube entered into
Consent Terms which were filed before this Court and the Consent Terms
recorded the modalities of the substitution, including inter-alia the
deposit of the amount brought in by Cube in this Court. It is necessary to
note that in the said order which came to be passed by this Court in terms
of the Consent Minutes of Order filed by the parties, a direction was
issued that the manner of distribution of the amount paid into Court as
mentioned in the consent minutes shall be determined in the Notice of
Motion filed by ICICI i.e. Notice of Motion No.2453 of 2018 in the ICICI
suit. By the execution of the consent minutes, ICICI had given up the
injunction order for the substitution process to take place. By giving up
the injunction order, ICICI had enabled substitution eventually to take
place and for the substitution proceeds to be received from the
substitution process. However, for the substitution process to ultimately
take place it took nearly 23 months after the filing of the consent minutes.
ICICI had during this time taken out several applications and this was
necessitated on account of the fact that for each day of delay in
completion of the substitution process, the aggregate transaction
consideration was reducing by an amount of INR 15 lakhs. In fact ICICI
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went to the extent of seeking vacation of the consent order and
reinstatement of the injunction order in light of the inordinate delay in
the substitution process by taking out Interim Application No.1870 of
2020 in March, 2020.
68 The Interim Application was considered by this Court on
13.01.2021 at which time this Court was informed that the ATC had been
received from Cube. ICICI accordingly consciously did not press its prayer
for vacation of the consent order and reinstatement of the injunction
order before this Court, as it was cognizant of the fact that the same
would result in the substitution process being unravelled. This Court
recorded that ICICI had "fairly stated" that it is accepting the consent
order. This Court accordingly directed ICICI and the Senior Lenders to
consider a settlement to work out the entire dispute, upon considering
that the ATC and the escrow amount aggregated to approximately INR
340 crores and the dues claimed by ICICI, S.B.I. and Bank of Baroda in
the ICICI Suit came to approximately INR 380 crores. It was recorded in
the said order that the learned Senior Counsel appearing on behalf of
ICICI had fairly stated that it was not pressing prayer Clause (a) that and
is accepting the consent order dated 18.02.2019. Prayer Clause (a) was
pending the hearing and final disposal, this Court be pleased to vacate the
consent order and reinstate the stay order dated 31.10.2018.
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69 Thus ICICI, time and again, pursuant to the suggestions of
this Court as well as with intent of bringing a quietus to the dispute,
made compromises and altered its position, in my prima facie view
irreversibly. IDBI in the present suit had only in October, 2019 filed an
application seeking to be impleaded as party Defendant in ICICI suit.
However, this impleadment application, though filed on 11.10.2019 was
not moved by IDBI and it was only on 23.03.2021 that IDBI appeared for
the first time in ICICI's Suit. This coincided with the period when ICICI
was in advanced settlement talks with the Senior Lenders. As
aforementioned, the impleadment Application filed by IDBI in the ICICI's
Suit was rejected by this Court on 20.12.2021. This Court has found IDBI
to be neither necessary nor proper parties in ICICI's Suit apart from
noticing the considerable delay in the IDBI moving the impleadment
application. The order passed by the Single Judge on 20.12.2021 was
confirmed on 12.01.2022 by the Division Bench of this Court.
70 IDBI by the present Interim Application have pleaded that
there is a right of priority of IDBI over ICICI in that the charge created in
favour of IDBI by Lanco is a prior in time and superior charge than the
charge created by Lanco in favour of ICICI. That IDBI has priority over
ICICI in respect of the distribution of Substitution Proceeds deposited in
this Court. It is necessary to note that IDBI are lenders to Lanco Infratech
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which is the parent company of Lanco and it is Lanco as the original
Concessionaire who was thereafter substituted by Cube. IDBI seem to
proceed on the premise that there is a charge created in their favour on
the Substitution Proceeds and that the Substitution Proceeds are nothing
but Lanco's receivables in respect of which IDBI have a charge under
Clause 4 of the Indenture of Mortgage. The relevant portion of Clause 4
of the Indenture of Mortgage is required to be reproduced which is as
under :
"4. GRANTS AND TRANSFER
For the consideration aforesaid and as continuing security for
the payment and discharge of the Outstandings hereby
secured or intended to be hereby secured, the Mortgagor
doth hereby, subject however to the proviso for redemption
hereinafter contained:-
(vi) grant, convey, assign, assure, charge, transfer, by way
of security unto and in favor of the Security Trustee in trust
for the benefit of the CDR Lenders all amounts owing to and
received by, the Mortgagor and rights, title, interest, benefits,
claims and demands whatsoever of the Mortgagor in, to or in
respect of all Receivable including those under any letter of
credit, liquidated, damages, contractor guarantees, guarantee
and performance bond provided by any party to the Project
Documents and other amounts owing to and receive by the
Mortgagor and on all intangible assets of the Mortgagor in-
cluding but not limited to goodwill, trademarks and patents,
present and future which description shall include all proper-
ties of the above description whether presently in existence
or acquired hereafter (collectively the "Sixth Mortgaged
Properties") TO HAVE AND TO HOLD by way of security all
and singular the Sixth Mortgaged Properties unto and to use
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of the Security trustee in trust for the benefit of the CDR
Lenders; ..."
Receivables have been defined in the Indenture of Mortgage as under :
"Receivables shall mean all monies receivable (whether
evidences as book debts or otherwise) under contracts, deeds
or documents or under law and any revenues of whatsoever
nature and wherever arising present and future, including
the Project Proceeds and those receivable under the
Concession Agreement."
71 In my prima facie view Substitution Proceeds deposited in
this Court by the Selectee/new Concessionaire/Cube cannot be
considered to be IDBI's security under any of the sub-clauses to Clause 4
of the Indenture of Mortgage, since the Substitution Proceeds are not the
property of the mortgagor i.e. Lanco and neither are those proceeds
arising from liquidation of Lanco's assets or security. This can be seen
from the Substitution Agreement which is aforementioned and in
particular Clause 6.1 thereof which expressly provides that the Senior
Lenders shall be entitled to appropriate any consideration received for the
substitution as provided from the Selectee towards payment of their and
NHAI's respective dues to the exclusion of the Concessionaire. Thus the
proceeds from substitution as well as the amounts lying in escrow which
have also been referred to in Clause 6.1 of the Substitution Agreement
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cease to be Lanco's property upon the substitution taking place. There is
much substance in the contention of Mr. Jagtiani on behalf of ICICI that
the Substitution Proceeds and amounts lying in escrow constitute a
different source of funds available through a special/novel mechanism to
discharge the dues of Lanco's lenders which would include the Senior
Lenders and ICICI, when Lanco ceases to be the Concessionaire in the
project, and has no right or demand over the project or any related
proceeds, or under any Project Assets (as defined under the Concession
Agreement). Under both the Substitution Agreement and the Concession
Agreement, there is no provision conferring the Substitution Proceeds and
amounts lying in escrow as the status of Lanco's property. The
Substitution Proceeds cannot be considered to be a receivable of Lanco as
the Substitution Proceeds are to the exclusion of Lanco and are brought in
by the selectee. Thus in my prima facie view the Substitution Proceeds
are not covered under IDBI's Indenture of Mortgage.
72 The decision of the Supreme Court in Jitendra Nath Singh vs.
Official Liquidator and others (supra) relied upon by Mr. Jagtiani clearly
provides that a secured creditor has only a charge over a particular
property or asset of the company. This was a case discussing the
interpretation of Section 529 and 529-A of the Companies Act, 1956.
Considering that the Substitution Proceeds are not an asset of Lanco, the
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Plaintiffs cannot claim security over the Substitution Proceeds under its
Indenture of Mortgage.
73 Now it would be necessary to consider "Project Assets" which
have been defined in the Concession Agreement as under :
"All physical and other assets relating to and forming part of
the Project Highway including but not limited to (i) rights over
the Site in the form of license, right of way or otherwise, (ii)
tangible assets such as civil works including the foundation,
embankments, pavements, road, surface, interchanges, bridges,
approaches to bridges and flyovers, road over bridges, drainage
works, lighting facilities, traffic signals, sign boards, milestones,
toll plazas, equipment for the collection of tolls or relating to
regulation of traffic, electrical works for lighting on the Project
Highway, telephone and other communication systems and
equipment for the Project, rest areas, administration and
maintenance depots, relief centers, service facilities etc."
[emphasis supplied]
It is clear from the definition of Project Assets that they include all
physical and other assets relating to and forming part of the project i.e.
including but not limited to what is provided in the said definition.
However, under the first proviso to Clause 4 of the Indenture of Mortgage,
the security interest stipulated in Clause 4 "shall in all respects exclude
the project assets unless such security interest is consented to by NHAI
pursuant to the Concession Agreement". In the present case the Plaintiffs
do not have NHAI consent, as required under the proviso and thus the
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Plaintiffs security cannot extend to Project Assets.
74 The decision relied upon by Mr. Bharucha, learned Counsel of
the Plaintiffs, namely SIDCO (supra) is a decision which considered
Section 48 of the Transfer of Property Act and dealt with priority of rights
created by transfer in immovable properties as provided under that
Section. This decision has no bearing on the question of priority over
Substitution Proceeds which is being considered in the present matter.
The Supreme Court in that decision considered a case where debts due to
both, first charge holder and the second charge holder, are to be realized
from the property belonging to the mortgagor, the first charge holder will
have to be repaid first. The Substitution Proceeds is not a property
belonging to the mortgagor, thereby the said decision of the Supreme
Court will have no applicability to the facts of the present case. Further,
the decision in Sha Mulchand and Company Limited (in liquidation) by
the Official Receiver by the High Court, Madras (supra) was relied upon
by Mr. Bharucha in support of his contention that mere laches will not
take away a parties vested right. In the present case there is no case of
relinquishment of IDBI's vested rights. IDBI would have to establish that
they have an entitlement to the Substitution Proceeds, to place any
reliance upon the said decision which is in my prima facie view it has not.
Further, the passage on commercial injunctions by Stevan Gee QC (Sixth
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Edition) was relied upon by Mr. Bharucha to contend that delay is
immaterial in cases when injunction based on a proprietary claim has
been sought, in my view does not come to the aid of IDBI, since that case
was concerning a mareva injunction, which does not apply in the present
case. Further, IDBI's claim is a claim to the monies lying in Court and not
a claim to property in specie. Thus IDBI's reliance on the passage is
entirely misplaced.
75 Having considered that IDBI's claim cannot be considered to
be a claim to property in specie but in fact is a claim to the monies lying
in the Court, there is much merit in the submission of Mr. Jagtiani that
distribution of these monies which are the Substitution Proceeds can be
permitted, subject to IDBI's Suit. It is not that if IDBI were ultimately to
succeed in their suit, ICICI would not be good for the monies and they can
certainly be directed in that eventuality to bring back the monies if so
directed. The decisions on which Mr. Jagtiani has placed reliance for
ICICI namely Ambalal Sarabhai Enterprise Limited (supra); Prabhakar
(supra); Rajesh (supra); Triloki Nath Singh (supra) and Jadu Nath Gupta
(supra) in support of his submission that conduct of the party seeking
equity has to be analysed at the time of granting relief; acquiescence
disentitles a party from claiming relief and a compromise decree creates
an estoppel by judgment/third parties cannot challenge a consent decree
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by way of a separate suit; and when waiver or abandonment by the
Plaintiff induces the Defendant to change his position, the Plaintiff ought
not to be granted any relief, are cases which would apply in the present
case. It is noted that IDBI has not dealt with these judgments in rejoinder.
76 In the present case as noted above, ICICI has in fact made
compromises and in my prima facie view have irreversibly altered its
position on several occasions, both on suggestions of this Court, as well as
on the pleadings of SBI as well as in order to resolve dispute with SBI in
an amicable manner by agreeing to the Substitution Proceeds being
deposited in this Court to settle the outstanding dues of the Senior
Lenders as well as the residuals thereof to settle the dues of ICICI. IDBI's
delay in firstly bringing the impleadment application and then moving it
as well as the delay in filing the present suit coupled with the irreversible
steps taken by ICICI during such delay weighs against IDBI and in favour
of ICICI as per the settled law.
77 Mr. J.P. Sen, learned Senior Counsel for SBI and Bank of
Baroda had submitted that the SBI has taken a neutral stand in the matter
and is not concerned with the dispute between ICICI and the Plaintiffs.
However, the various pleadings of SBI is clearly to the contrary. These
pleadings have been referred to above and which clearly show that SBI
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had taken into consideration that the outstanding dues/debt would
include that of ICICI and that the Substitution Proceeds could be used for
satisfying the dues of ICICI after satisfying the Senior Lenders entire
claim. Further, SBI had inspite of such pleadings addressed a letter dated
22.05.2019, by which it specifically requested the Plaintiffs to intervene in
ICICI's Suit. This is despite having signed the consent minutes and being
party to the consent order. In my prima facie view, the Senior Lenders
having been guaranteed the Substitution Proceeds in the ICICI suit by
virtue of the consent minutes, cannot be heard to adopt a position
contrary to the interest of ICICI and/or dilute the stand in prior pleadings
and stand taken before this Court prior to the IDBI Suit.
78 Thus in my prima facie view IDBI has failed to establish that
they have a claim on the Substitution Proceeds which have been
deposited in this Court in ICICI's Suit. Further, IDBI's application for
injunctive relief suffers from gross delay and laches and no injunction can
be granted in the manner sought for by IDBI which would result in
stalling the distribution process of the Substitution Proceeds, particularly
given the fact that ICICI has made compromises and irreversibly altered
its position in its suit. Any such injunction granted stalling the
distribution process of the Substitution Proceeds would result in negating
orders passed by this Court, which orders have been passed from time to
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time since October, 2018 and which would cause irreparable harm to
ICICI. Accordingly the relief sought for in the present Interim Application
cannot be granted.
79 The Interim Application (L) No.2102 of 2022 is accordingly
disposed of.
Digitally signed
(R.I. CHAGLA, J.)
by WAISHALI
SUSHIL
WAISHALI WAGHMARE
SUSHIL
Date:
WAGHMARE 2022.09.30
15:20:54
+0530
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