Delhi High Court
Kal Airways Pvt. Ltd. vs M/S Spicejet Ltd. & Anr. on 2 September, 2020
Via video conferencing
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision:- 02.09.2020
+ E.A. 679/2019 & I.A. 6946/2019 in OMP (ENF.) (COMM.) 31/2019
KAL AIRWAYS PVT. LTD. ..... Decree Holder
Through Mr.Maninder Singh, Sr.Adv. &
Mr.ASL Sundaresan, Sr.Adv with Ms.Nandini
Gore, Ms.Natasha Sahrawat, Mr.Raghvendra
Pratap Singh, Mr.Jasvir Singh Sabharwal,
Mr.Prabhas Bajaj, Advs.
versus
M/S SPICEJET LTD. & ANR. ..... Judgement Debtor
Through Mr.Neeraj Kaul, Sr.Adv &
Mr.Abhinav Vashisht, Sr.Adv. with Mr.Atul
Sharma, Mr.Abhishek Sharma, Mr.Abhinav
Sharma, Mr.Kashish Arora, Mr.Samar Kachwaha,
Mr.Kapil Rustagi, Mr.Ramachandra Madan,
Ms.Akshita Sachdeva, Advs.
+ E.A. 680/2019 & I.A. 6947/2019 in OMP (ENF.) (COMM.) 32/2019
MR. KALANITHI MARAN ..... Decree Holder
Through Mr.Maninder Singh, Sr.Adv. with
Mr.ASL Sundaresan, Sr.Adv, Ms.Nandini Gore,
Ms.Natasha Sahrawat, Mr.Raghvendra Pratap
Singh, Mr.Jasvir Singh Sabharwal, Mr.Prabhas
Bajaj, Advs.
versus
M/S SPICEJET LTD. & ANR. ..... Judgement Debtors
Through Mr.Neeraj Kaul, Sr.Adv &
Mr.Abhinav Vashisht, Sr.Adv. with Mr.Atul
Sharma, Mr.Abhishek Sharma, Mr.Abhinav
Sharma, Mr.Kashish Arora, Mr.Samar Kachwaha,
Signature Not Verified
Signed By:GARIMA MADAN
Location: OMP (ENF.) (COMM.) 31/2019 & 32/2019 Page 1 of 27
Signing Date:05.09.2020
22:01:20
Mr.Kapil Rustagi, Mr.Ramachandra Madan,
Ms.Akshita Sachdeva, Advs.
CORAM:
HON'BLE MS. JUSTICE REKHA PALLI
REKHA PALLI, J (ORAL)
1. By way of this common order, four applications filed by the
Decree Holder (DH), two each in the two enforcement petitions, one
filed by M/s KAL Airways Private Limited and the other by Mr.
Kalanithi Maran are being decided. Since the applications filed in the
two petitions are similar in nature and both the enforcement petitions
pertain to the same award, only the applications in OMP (ENF.)
(COMM.) 31/2019 are being referred to for the sake of convenience.
2. Vide these two applications, being E.A. 679/2019 and E.A.
6946/2019, the DHs primarily seek a direction to the judgment
debtors (JDs) to deposit the interest component of the awarded sum,
with a further direction for deposit of upto date interest on the entire
awarded sum. The DHs have also sought an additional prayer to
restrain the JDs from allotting, transferring, issuing, alienating and/or
pledging and/or creating any third-party interest and/or encumbrance
over any of the promoter shares of the JD No.1 Company.
3. Before dealing with the rival submissions of the parties, it may
be apposite to note the brief factual matrix as is relevant for
adjudication of these applications. The DHs are the former promoters
and majority shareholders of the JD No. 1 Company, an airline
company, and were holding 58.46% stake therein. As the JD No.1
started facing financial difficulties from the year 2013, the DHs, being
Signature Not Verified
Signed By:GARIMA MADAN
Location: OMP (ENF.) (COMM.) 31/2019 & 32/2019 Page 2 of 27
Signing Date:05.09.2020
22:01:20
desirous of reviving the company, entered into a Sale Purchase
Agreement (SPA) with the JD No.2 on 29.01.2015. Under this
agreement, besides other mutually agreed upon arrangements between
the parties, the DH were to be allotted certain warrants and non-
convertible redeemable cumulative preference shares (CRPS) in two
tranches, the details whereof are not relevant for the purpose of
deciding these applications. As the DHs were not issued the warrants
and the CRPS in accordance with the obligations under the SPA, the
DHs invoked arbitration and also preferred petitions under Section 9
of the Act before this Court being OMP(I) 71/2016 and 72/2016, inter
alia seeking directions to the JDs to deposit a sum of INR 835 crores,
which according to them, was the then value of these untransferred
warrants and CRPS. These petitions were disposed of on 29.07.2016,
by directing the JDs to deposit a sum of INR 579 crores with this
Court, which amount, the Court found had been in fact paid by the
DHs towards the value of the warrants and CRPS shares.
4. The JDs, being aggrieved with the aforesaid order directing
deposit of a sum of INR 579 crores, approached the Division Bench
by way of appeals under Section 37 of the Act being
FAO(OS)(Comm) 61/2016 and 62/2016. Though the Division Bench
did not find any merit in the appeals, the direction for deposit of INR
579 Crores was modified vide order dated 03.07.2017 by permitting
the JDs to furnish a Bank Guarantee for a sum of INR 329 crores and
making a cash deposit of the remaining sum of INR 250 crores. The
JDs unsuccessfully challenged this order before the Hon'ble Supreme
Court and, consequently, secured the amount in accordance with the
Signature Not Verified
Signed By:GARIMA MADAN
Location: OMP (ENF.) (COMM.) 31/2019 & 32/2019 Page 3 of 27
Signing Date:05.09.2020
22:01:20
directions of the Division Bench. After these amounts had been
secured, the arbitration between the parties resulted in an award dated
20.07.2018, whereunder the claims of the DHs and some
counterclaims of the JDs were allowed with the following directions:
"60. The SSPA dated 29.01.2015 is the mother agreement and
constitutes the entire agreement between the parties. It only needs
to be noted that the Claims of the Claimants and the Counter
Claim by the Respondent have their matrix on the SSPA dated
29.01.2015. Therefore, the stand about non-arbitrability and/ or
Jack of jurisdiction of the Tribunal is without any substance. In
effect and essence, it is held that the Claims/Counter Claim
arising from and in relation to the SSPA are within the
jurisdiction of the Tribunal.
In conclusion, we hold as follows:-
(l) The Claimants are entitled to refund of Rs.308,21,89,461/-
from the Respondents.
(2) The parties shall explore the possibility of giving effect to and
exercise the option as described in detail. In case the efforts do
not fortify, the Respondents shall within a period of one month
thereafter refund the amount in question i.e. Rs.270,86,99,209/- to
the Claimant No. 2 (which is arrived at after adjusting the
counterclaim of Rs.100 Crores which has been allowed)
(3) Since the amount covered by conclusion (1) was with the
Respondents since November 2015, they would have become
liable to pay interest on the same Though, interest at the rate of
18% per annum has been claimed, we are of the view that since
Respondent No.1 Company took over a huge liability and also
paid interest on the tax amount payable by the Claimants, interest
at the rate of 12% on Rs.308,21 ,89,461/- would be appropriate.
The amount has to be accordingly calculated for about 30 months.
Additionally, in view of the finding relating to the CRPS claim and
the proved position that the Respondents have paid interest /
servicing charges of around Rs.29 Crores, the counter claim to
that extent is allowed.
(4) So far as costs are concerned, in view of the factual scenario
involved, both parties are directed to bear their respective costs.
The Cost of Arbitration (fee of Arbitrators, expenses including
travel., hotel expenses etc. of the Arbitrators, venue and
Secretarial
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Signed By:GARIMA MADAN
Signing Date:05.09.2020
22:01:20
assistance) shall be borne equally by the parties.
(5) In case the payments, as directed, to be made by the
Respondents are not so made within two months from the relevant
date, the Claimants shall be entitled to interest @ 18% from the
last date of the due date in terms of this Award.
(6) Claims / counter claims other than those dealt with above and
specifically granted stand rejected.
(7) The parties have furnished stamp papers ofRs.500/- each with
undertaking to pay the deficit, if any, as and when called upon to
do so.
(8) The place of Arbitration is declared to be New Delhi .
Signed by Members of the Tribunal on the 20"1 day of July,
2018. Pronounced at New Delhi on 20th day of July, 2018."
5. As is evident, the Arbitral Tribunal granted two months' time to
the JDs to pay the sum of INR 308,21,89,461/- to the DHs along with
pre-award and pendente lite interest @ 12% p.a. w.e.f. 01.11.2015.
The Arbitral Tribunal also directed the JDs to refund the sum of INR
270,86,99,209/- paid by the DHs towards the value of warrants
within a period of one month from the date on which the parties come
to a conclusion that the options exercised by the DH could not be
acted upon. Admittedly, the options exercised by the DHs for issuance
of warrants could not fructify and, therefore, this amount of INR
270,86,99,209/- became payable w.e.f. 01.09.2018, while the sum of
INR 308,21,89,461/- along with pre-award and pendente lite interest
@ 12% p.a. became payable on 21.09.2019. The award also stipulated
that incase the JDs failed to make payment within the prescribed time,
the DHs would also be entitled to post-award interest @ 18% on the
sum awarded.
6. The award has been challenged both by the DHs and the JDs,
which challenge is pending consideration before this Court in a batch
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Signed By:GARIMA MADAN
Signing Date:05.09.2020
22:01:20
of four petitions, including OMP (COMM) 450/2018. The challenge
to the award by the DHs is primarily on account of non-restitution of
their shareholding and non-grant of pre-award and pendente lite
interest accruing on the sum of INR 270,86,99,209/-, while the JDs
are aggrieved by direction of refund of the aforesaid sum of INR
270,86,99,209 as also the by award of interest in favour of the DHs. It
is an admitted position that the operation of the award has not been
stayed in any of the four petitions.
7. Since this Court did not grant a stay of the Award dated
20.07.2018 in any of the Section 34 petitions, the present enforcement
petitions came to be filed on 15.02.2019. When the present
enforcement petition was taken up for consideration for the first time
on 25.03.2019, having been adjourned on 19.02.2019 at the request of
the DH, the JDs informed the court of the pending settlement talks
between the parties. In order to prove its bonafide, the JDs also
suggested that the sum of INR 250 crores it deposited with this Court,
pursuant to the orders of the learned Division Bench in FAO
(OS)(Comm) 61/2016 and 62/2016, be released to the DH subject to
an undertaking furnished by the DH that incase the settlement talks
failed and this Court directed repatriation of this amount, the same
would be duly effected within the time granted by this Court. The
amount of INR 250 crores was thereafter released in favour of the
DH. On 06.05.2019, the DH moved the present application being EA.
6946/2019 seeking a direction to the JDs to deposit the shortfall of
INR 276 crores. As per the DH, this amount comprised of INR 100
crores towards the shortfall in the principal amount deposited as also a
Signature Not Verified
Signed By:GARIMA MADAN
Signing Date:05.09.2020
22:01:20
sum of INR 1,76,68,79,708.05/- payable towards interest on the
awarded sum calculated till 13.05.2019.
8. When these applications were listed before this Court on
06.05.2019, the parties were granted time to explore the possibility of
an amicable settlement, but on 31.07.2019, when it transpired that no
settlement was possible, the court issued notice in this application as
also in the enforcement petitions. On the next date, the Court, after
noticing the fact that there was no challenge by the JDs to the award
of INR 308,21,89,461/-, as also the fact that the DHs had been paid a
sum of INR 250 crores, accepted the DHs' plea that the JDs should be
directed to pay a further sum of INR 58,21,89,461/- to the DH.
Consequently, on 20.09.2019, this Court directed Yes Bank, which
had issued the bank guarantees at the request of the JDs, to release this
sum in favour of the DHs by deducting the same from the bank
guarantee. With these directions, this Court disposed of these
enforcement petitions by granting liberty to the DHs to file a fresh
petition once the Section 34 petitions were decided. Notably, liberty
was also granted to the DH to approach the Court in case there was
any change in the status of the JDs.
9. Barely twenty days after the disposal of the enforcement
petition, the DHs once again approached this Court by way of E.A.
No. 679/2019 filed on 11.10.2019 with a grievance that the JDs were
planning an initial public offer (IPO) for its cargo unit and that the
creation of a subsidiary company for this purpose would seriously
impact the current equity capital ratio of the JDs. The DHs plea was
that this creation of an IPO would constitute a major change in the
Signature Not Verified
Signed By:GARIMA MADAN
Signing Date:05.09.2020
22:01:20
state of the JD No.1 and, therefore, notice was issued in this
application on 15.10.2019, to which the parties filed their reply and
rejoinder. Although the hearing was deferred till 28.01.2020, but the
matter was adjourned to 26.03.2020 at the joint request of parties.
However, by 26.03.2020, the regular functioning of the Court was
suspended on account of the global pandemic and the matter could not
be taken up thereafter. In these circumstances, the DHs, on
06.08.2020, preferred the applications seeking early hearing of their
earlier applications and also sought a direction to the JDs to deposit a
sum of INR 360 crores with this Court. In view of the no objection
given by the learned counsel for the JDs as also the grievance raised
by the DHs that the JD No.1 had suffered huge losses in the last one
year and EA No. 6946/2019, after being revived, was directed to be
listed today along with E.A. No. 679/2020. Consequently, both the
applications have been taken up for consideration today.
10. In support of these applications, learned senior counsel for the
Decree Holders have primarily urged that once there is no stay of the
award, there is no reason as to why the JDs should not be directed to
deposit the entire sum awarded by the Tribunal along with up to date
interest accruing on the entire awarded sum. By placing reliance on
the decision of the Hon'ble Supreme Court in Hyder Consulting (UK)
Ltd. Vs. Governor, State of Orissa (2016) 6 SCC 362, Mr Maninder
Singh, learned senior counsel submits that the total sum awarded by
an Arbitral Tribunal would include pre-award and pendente lite
interest, if any, awarded by the Tribunal and, therefore, the JDs ought
to be directed to deposit the entire awarded sum and not merely the
Signature Not Verified
Signed By:GARIMA MADAN
Signing Date:05.09.2020
22:01:20
sum of INR 579 crores, which amount was awarded only against the
main claims. He, thus, contends that the pre-award and pendete lite
interest @ 12% p.a. on the sum of INR 308,21,89,461/- for the period
between 01.11.2015 and 20.07.2018 which is 1,00,62,29,304.58/-,
would qualify as a part of the total sum awarded by the Tribunal. Mr.
Singh further submits that the JDs are also liable to deposit the upto
date post-award interest accruing on the total sum awarded. It is
further submitted that the JDs are liable to pay interest @ 12% p.a.
w.e.f. the date of the passing of the award, 21.07.2018, till
20.09.2018, i.e., the period of two months granted by the Tribunal to
the JDs to pay the awarded amount. The JDs are thereafter liable to
pay interest @ 18% on the entire awarded amount of INR
270,86,99,209/- and INR 308,21,89,461/-. He submits that the up to
date interest in respect of the payment of sum of INR 308,21,89,46/-
works out to INR 1,68,99,42,764.18 while the interest payable on the
sum of INR 2,70,86,99,209/-, wherein only the post-award interest
has been allowed, works out to INR 97,78,03,308.98/-. For this
purpose, a detailed chart setting out the calculations was handed over
in Court, which has been taken on record and produced hereinbelow.
Calculation as per the DH
Warrants: Period of
Calculation
Amount to be 3,08,21,89,4
received: 61.00
Partially 2,50,00,00,0
received on 30th 00.00
April 2019
Amount 58,21,89,46
Received on 4th 1.00
October 2019
Signature Not Verified
Signed By:GARIMA MADAN
Signing Date:05.09.2020
22:01:20
Balance to be A -
received
Date of the 20th July, 2018 & Start End No.
Orders: 20th September Date Date of
2019 Day-
s
Interest payable 3,08,21,8 993 1,00,62,29,3 01- 20- 993
@ 12% from 1st 9,461.00 04.58 Nov Jul-
November 2015 -15 18
to 20th July
Interest payable 3,08,21,8 62 6,28,25,998 21- 20- 62
@ 12% from 9,461.00 .88 Jul- Sep
21st July 2018 18 -18
to 20th
September 2018
Interest payable 3,08,21,8 222 33,74,36,41 21- 30- 222
@ 18% from 9,461.00 3.32 Sep Apr
21st September -18 -19
2018 to 30th
April 2019
Interest payable 58,21,89,4 157 4,50,75,819 01- 04- 157
@ 18% from 1st 61.00 .64 Ma Oct
May 2019 to 4th y- -19
Total Interest C 1,45,15,67,5 1277
Receivable upto 36.42
4th October
Interest for 1,45,15,6 F 23,83,75,22 05- 01- 333
non-payment of 7,536.42 7.76 Oct Sep
the above -19 -20
interest:(Till 1st
September
2020)
Total:(A+C+F) 1,68,99,42,7
64.18
CRPS: Period
Calculation:
Amount to be B 2,70,86,99,2
Signature Not Verified
Signed By:GARIMA MADAN
Signing Date:05.09.2020
22:01:20
received: 09.00
Date of the 20th July, 2018 Start En- No.
Orders: Date d of
Dat Da-
-e ys
No Interest 31 - 01- 31- 31
payable from 1st Aug Au
August'2018 to -18 g-
August'2018
Interest payable 61 8,14,83,609 01- 31- 61
@ 18% from 1st .08 Sep Oct
September 2018 -18 -18
to 31st October
Interest payable 671 89,63,19,69 01- 01- 671
@ 18% from 1st 9.90 Nov Sep
November 2018 -18 -20
to 01st
September 2020
Receivable upto 97,78,03,308.
3,68,65,02,5
17.98
Total:(B+D):
SUMMARY:
Principal
Receivable - A
Principal 2,70,86,99,2
Receivable - B 09.00
Principal
Receivable
without Interest 1,00,00,00,
- E ) *(Money 000.00
Deposited in
City Union Bank
for the overdraft
Signature Not Verified
Signed By:GARIMA MADAN
Signing Date:05.09.2020
22:01:20
facility availed
by Spicejet Ltd.
Total Principal 3,70,86,99,2
Amount 09.00
Receivable:(A+
B+E)
Interest 1,68,99,42,7
Receivable - 64.18
C+F
Interest 97,78,03,308
Receivable - D .98
Total Interest 2,66,77,46,0
Receivable:(C+ 73.16
F+D)
Total Principal 6,37,64,45,2
+ Interest 82.16
Receivable:
11. By referring to this Chart, Mr. Singh submits that as against the
sum of INR 679,71,17,974.58/- awarded by the Tribunal (which
amount comprises of INR 308,21,89,461/- towards warrants+
270,86,99,209/- towards CRPS+ INR 100,62,29,304.58/- towards
interest component), the DHs have only received a sum of INR
308,21,89,461 and are yet to receive a sum of INR 371,49,28,513.58/-
out of the awarded sum. It is further submitted that even though the
JDs have furnished a bank guarantee for a sum of INR
270,86,99,209/-, they ought to be directed to deposit the entire amount
of INR 371,49,28,513.58/-. He, thus, contends that not only should the
JDs deposit the entire awarded sum, but also upto date post-award
interest in terms of the directions of the Tribunal which, according to
the DHs, is INR 68,37,13,459/- and INR 97,78,03,308.98/-.
Signature Not Verified
Signed By:GARIMA MADAN
Signing Date:05.09.2020
22:01:20
12. It is submitted that even though the petition was initially
disposed of on 20.09.2019, in view of the DH's apprehension that
after disposal of the enforcement petitions, the JDs were likely to take
steps to prejudice the rights of the DHs under the Award, liberty was
granted to the DHs to approach the Court in the event of any
subsequent development with respect to the status of the JD No. 1. It
is submitted that immediately after the disposal of the petition, the
JDs floated an IPO of the cargo unit of JD No.1 Company and since
this action of the JDs would have seriously prejudiced the value of the
DHs' shareholding therein, the DHs were compelled to approach this
Court by way of the application being E.A. 679/2019. It is submitted
that while this application was pending adjudication, the DHs learnt
that the JDs had started suffering losses and were not even following
the prescribed accounting standards, which became evident from their
audit reports. It is further submitted that the DHs also had an
apprehension that the JD No.1 was fudging its accounts and therefore
it had no other alternative except to approach this Court for early
disposal of its applications being EA 6946/2019 and 679/2020. It is
submitted that the copies of the Auditor's reports placed on record by
the DHs clearly shows that the JD No.1 is suffering huge losses and
therefore there is every likelihood that even after the JDs' challenge to
the award are rejected, the DHs may not be able to recover any
amount from the JDs. It is submitted that the JDs' plea that in view of
the order passed on 20.09.2019, DHs are not entitled to seek a prayer
for deposit of the entire awarded sum with up to date interest , is liable
to be rejected as the facts now brought on record clearly show that the
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Signed By:GARIMA MADAN
Signing Date:05.09.2020
22:01:20
status of the JDs have changed in the meanwhile and, therefore, the
DHs prayers strictly fall in line with the liberty granted to it by this
Court while disposing of the petition. It is, therefore, prayed that, in
line with the directions passed by the Apex Court and this Court in
similar matter, the JDs ought to be directed to deposit the entire
awarded amount along with up to date interest.
13. On the other hand, learned counsel for the JDs have vehemently
opposed the applications by urging at the outset that the present
applications are barred by the doctrine of res judicata. Once this Court
had disposed of the enforcement petition along with EA 6946/2019 on
20.09.2019, it is evident that the Court did not find any merit in the
DHs prayer for a direction to the JD for deposit of interest. It is
submitted that the present hearing is akin to seeking a review and
attempts to reagitate an issue which this Court previously did not find
favour in. It is submitted that this would imply that there would never
be any finality to the orders passed by this Court since parties like the
DHs would approach the Court at its whim, claiming interests
accruing on an awarded sum every subsequent month. It is submitted
that the DHs, having failed to challenge the order dated 20.09.2020 till
date and having accepted the payment of INR 58,21,89,461/-, it is
estopped from now once again raising the issue of deposit of interest
or deposit of the sum of INR 270,86,99,209/-. It is submitted that
merely because liberty was granted to the DHs to approach the Court
in case of any change in circumstances, the same cannot be used a
ruse to approach the Court on such frivolous grounds as contained in
the application. It is submitted that the leave granted by this Court was
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Signed By:GARIMA MADAN
Signing Date:05.09.2020
22:01:20
intended to cover only such situations where the JD No.1 was going
into liquidation or bankruptcy and not merely on the ground that the
JDs are planning to come with an IPO for its cargo unit. It is
submitted that even though JD No.1 has not finally come out with an
IPO, but even otherwise any decision to invite IPOs would only have
enhanced the value of the JD No.1. On the aspect of the auditor's
report, it is submitted, by drawing my attention to Note 11 of the
Auditor's Report dated 29.07.2020, specifically the portion which
shows that the losses reflected in the balance sheet for the year ending
on 31.03.2020 is mainly a result of the adverse foreign exchange rates,
fuel prices, pricing pressures and the early impact of the global
pandemic triggered by COVID-19. It is submitted that in this very
note, the auditors also opined that notwithstanding the company's
financial losses, the measures taken by the company which includes
inter alia enhancement of customer experience, improving selling and
distribution, revenue management, fleet rationalization, optimizing
aircraft visualization, management and employee compensation
revisions will help the JDs achieve profitable operations and raise
funds as necessary in order to meet its liabilities as they fall due. It is
further submitted that the balance sheet also reveals that actual losses
suffered by the JDs as on 31.03.2020 are lesser than that reported for
the financial year ending on 31.03.2019. It is submitted that in these
circumstances, the apprehensions of the DH that the financial health
of the JDs is in any sort of decline is completely baseless and
unjustified.
Signature Not Verified
Signed By:GARIMA MADAN
Signing Date:05.09.2020
22:01:20
14. It is next submitted that the Tribunal had found the DHs liable
for various breaches under the terms of the SPA, but it still
erroneously proceeded to award interest in their favour which
direction was wholly without any basis and has already been
challenged before this Court. It is submitted that even the conduct of
the DHs has been inconsistent as, notwithstanding the Tribunal's
rejection of their prayers for damages and restitution of their
shareholding, the DHs are still insisting on securing the same by any
means necessary. For that purpose, the DHs have been adopting
varying tactics to compel the JDs to hand over the sums of interest
under dispute, which spans over challenging the JD's decision to
come out with an IPO on its cargo units and now the report of the
auditor dated 29.07.2020. It is prayed that since the DHs are not
entitled to claim any interest whatsoever, the present applications be
dismissed with costs.
15. I have heard learned counsel for the parties and perused the
record.
16. The admitted position which emerges from the record is that the
JDs have only paid a sum of INR 308,21,89,461/- and have furnished
a bank guarantee for a sum of INR 2,70,86,99,209/-. There is also no
dispute on the aspect that the interest component of the awarded sum
which works out to INR 1,00,62,29,304.58/-, has neither been
deposited by the JDs nor has any bank guarantee been furnished for
this amount. In essence, this amount, which is a part of the awarded
sum, remains unsecured as on date. It is also an admitted position that
till date no post-award interest has been deposited by the JDs. The
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Signed By:GARIMA MADAN
Signing Date:05.09.2020
22:01:20
JDs, while not denying the aforesaid position, have opposed the
applications on two primary grounds. Firstly, since the enforcement
petition stood disposed of on 20.09.2019 by this Court, after
observing that the DHs were already in receipt of the sum of INR
308,21,89,461/- which was payable to it and that no further amount
was required to be paid to the DHs at that stage, any question of
further payments owed by the JDs could only be arrived at once the
Section 34 petitions were finally decided. The JDs have vehemently
argued that the decision of this Court to dispose of the application as
well as the petition on 20.09.2019 binds the present issue sought to be
urged, by virtue of the doctrine of red judicata. The JDs' second
ground for opposition is that, without prejudice to the above, the
liberty granted to the DHs on 20.09.2019 does not apply in the present
case since there is no material change in the circumstances of the JDs.
17. From the above, it is evident that undoubtedly, the JDs'
primary opposition to the prayer for deposit of the interest amount is
that the present issue is barred by the doctrine of res judicata since this
Court, on 20.09.2019, had already examined its prayers for deposit of
interest and disposed of the applications by issuing directions as were
relevant at that time. It has been vehemently urged, and in my view
rightly so, that the legal principles of res judicata and constructive res
judicata are applicable in execution proceedings. However, whether
the doctrine of res judicata would bar the consideration of these
applications cannot be decided in isolation and it would be necessary
to examine the order dated 20.09.2019, in the light of the DHs plea
that the present applications have been filed only as per the liberty
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granted by this Court, and do not amount to readjudication of the
matter. The relevant extract of the order dated 20.09.2019 reads as
under:
"5. These petitions are disposed of with liberty to the petitioner to
file fresh petition after the decision on the objections under Section
34 of the Arbitration and Conciliation Act.
6. Learned senior counsel for the decree holder submits that in
the event of any subsequent development with respect to the status
of the judgment debtor, they shall approach this Court. The decree
holders are at liberty to do so."
18. A perusal of this extracted portion of the order reveals that
while it is correct to say that the application and the petition were
disposed of on 20.09.2019, but this disposal was qualified by this
Court in a significant manner. Evidently, the DHs had been granted
liberty to approach this Court in case the status of the JD No.1
Company was found to have changed in any significant manner. The
specific phrase employed in the order to describe a situation for which
the DHs had been granted liberty to approach this Court again was 'in
the event of any subsequent development with respect to the status of
the JDs. The interpretation of this phrase has differed across the aisle.
The JDs believe that this clause refers to any radical change in its
position, such as insolvency or bankruptcy proceedings instituted
against the JDs. On the other hand, the DHs urge that the IPO offer for
the cargo unit and the auditor's report show material changes in the
financial health of the JD No.1 Company and, even if they are not,
they still leave no manner of doubt that the financial health of the JD
is suffering.
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19. Moreover, it is evident that it is not as if the DHs have
instituted a fresh petition seeking the reliefs sought in enforcement
petition which came to be disposed of on 20.09.2019. On the other
hand, what emerges is that the DHs have preferred EA 679/2019 only
as per the liberty granted by this Court. Soon after the disposal of the
execution petition, the JDs decided to issue IPOs on the cargo unit of
JD No.1 and the DHs, upon learning of this decision, moved this
Court by way of EA 679/2019 since they apprehended that such a
move would have a serious impact on the current equity capital ratio
of the JD No.1 Company and was a direct violation of the JDs'
undertaking before this Court to refrain from diluting the equity shares
of the JD No.1 Company or from selling or transferring its promoter
shares. The plea of the DHs in the application was that the JDs'
undertaking was taken to protect the interests of the DHs who are
entitled to inter alia restoration of these shares, restitution of their
58.46% shareholding from the JD No. 1 and refund of the amounts
paid towards Warrants and CRPS along with interest. The fact that
this Court issued notice in the said application, that too within 25 days
of disposing the execution petition in itself reveals that the Court, at
that stage itself, was prima facie convinced of the change in
circumstances.
20. Today this material change in circumstances is compounded by
the picture emerging from the Independent Auditor's Report on the
Quarterly and Year to Date Audited Standalone Financial Results of
the JD No. 1 Company dated 29.07.2020. Although the auditor's
reports were filed with the early hearing application being E.A. (OS)
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733/2020, to which the JD did not file a reply, the fact remains that
these reports are not disputed. The relevant extract of the auditor's
report, namely Notes 3 and 11, which has triggered the apprehensions
of the DHs reads as under:
"To
The Board of Directors of SpiceJet Limited
Report on the audit of the Consolidated Financial Results
1. Qualified Opinion
xxx
2. Basis for Qualified Opinion
xxx
3. Material Uncertainty Related to Going Concern
We draw attention to Note 11 in the accompanying Statement which.
indicate that the Group has accumulated losses and its net worth has
been fully eroded, the Group has incurred a net loss during the
current and previous year and, the Group's current liabilities
exceeded its current assets as at the balance sheet date. These
conditions, along with other matters set forth in Note 10, indicate the
existence of a material uncertainty that may cast significant doubt
about the Group's ability to continue as a going concern.
Our opinion is not qualified in respect of this matter."
21. The JDs have rebutted the contents of this note, by placing
reliance on Note 11 furnished by the JD No.2 on behalf of the JD
No.1 which reads as under:
11. The Company had a negative net worth of Rs 14,852 million as at
March 31, 2015, after which it had been consistently profitable for
three financial years up to 2017-1 R. However. due to net losses of Rs
3,160.83 million for the year ended March 31, 2019, and Rs.
9,347.61 million for the year ended March 31, 2020 (after
considering the impact of the matter in note 9 above), the Company's
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Signing Date:05.09.2020
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negative net worth stands at Rs.15,792,65 million as at March 31,
2020 (after considering adjustments on account of Ind AS 116
implementation - Refer note 4 above. and foreign exchange losses
including those referred to in Note 12 below).
The losses for the year ended March 31. 2019 and March 31, 2020
have been primarily driven by adverse foreign exchange rates, fuel
prices, and pricing pressures, and the early impact of COVID-19 in
the period February-March 2020. On account of its operational and
financial position, and the impact of the ongoing COVlD-19
pandemic (refer note 10), the Company has deferred payments to
various parties, including vendors and its dues to statutory
authorities. Where determinable, the Company has accrued for
additional liabilities, if any, on such delays in accordance with
contractual terms applicable laws and regulations and based on
necessary estimates and assumptions. However, it is not practically
possible to determine the amount of all such costs or any penalties or
other similar consequences resulting from contractual or regulatory
non-compliances. Management is confident that they will be able to
negotiate settlements in order to minimise/avoid any or further
penalties. In view of the foregoing, no amounts of such penalties have
been recorded in these financial results.
The Company continues to imp1ement various measures such as
enhancing customer experience, improving selling and distribution,
revenue management, fleet rationalisation, optimising aircraft
utilization, redeployment of capacity in key focus markets)
management and employee compensation revisions, renegotiation of
contracts and other cost control measures, to help the Company
establish consistent profitable operations and cashflows in the future,
Further, improvements in certain macroeconomic factors relevant to
the Company's business and operations, the resumption of airlines
operations (which includes the Company's expectations of the timing
of re -introduction of Boeing 737 Max aircraft into its operations), as
well as the renegotiations with vendors discussed in Note 10 above,
are expected to increase operational efficiency and support cash-
profitable operations. The Company also continues to remain
confident of compensation in respect of the matier discussed in Note
9 above, Based on the foregoing and their effect on business plans
and cash flow projections, management is of the view that the
Company will be able to achieve profitable operations and raise
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funds as necessary, in order to meet its liabilities as they fall due.
Accordingly, these financial results have been prepared on the basis
that the Company will be able to continue as a going concern for the
foreseeable future. The auditors have drawn an emphasis of matter in
their report in this regard."
22. However, the fact remains that the independent auditor, despite
the explanation sought to be given by the JD No.2 in Note 11, did not
change its opinion and reiterated that the net worth of the JD No.1
Company had fully eroded. This audit report paints a grim picture of
the financial health of the JD No.1 company and, after noting that the
JD's current liabilities exceeded its current assets, remarks that there
is a material uncertainty casting significant doubt about the ability of
the Group to continue functioning. Although the JDs have expressed
their disagreement with Note 3 of the Auditor's Report, they have
sought to draw the attention of this Court to Note 11 of the report
instead and have not disputed the balance sheet itself.
23. In the light of these facts, it is clear that the DHs have not
preferred any fresh enforcement petition, but have instead sought only
a revival of the enforcement petition, strictly in accordance with the
liberty granted by this Court. The fact remains that Audit report dated
29.01.2020 was not placed on record in September 2019, thus it was
neither relied upon by either of the parties nor considered by this
Court at the time of disposing of the petitions and the applications.
Undoubtedly, the auditor has opined that as on date, the JD No.1 is a
loss making concern and has also expressed doubts on its ability to
revive its financial health, which is a grim diagnosis for the JD No.1
Company. The DHs have contended, and in my view rightly so, that
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these circumstances constitute a 'subsequent development in the status
of the JD'. Thus, when this Court specifically granted the DHs the
liberty to bring up the matter in such a situation, neither can the
present applications be deemed as seeking review of the order dated
20.09.2019 nor can they be barred by the doctrine of red judicata. I,
therefore, find that these applications strictly fall within the purview
of the liberty granted by this Court.
24. The other ground taken by the JDs to oppose these applications
is that the DHs, having been found to also be in breach by the
Tribunal, may not be successful in defending their claim for refund of
interest of INR 270 crore and that the finding of the Tribunal in this
regard is likely to be set aside in the JDs' Section 34 petition.
However, while exercising its powers of execution, these are not
issues which this Court can delve into, since they deal with the merits
of the case. Ultimately, this Court has a duty to ensure that the Award
in favour of the DH is not rendered into a mere paper decree and pass
appropriate directions for that purpose. Therefore, irrespective of the
prospective success or failure of the JDs' challenge under Section 34
of the Act, the position as of date is that the award has admittedly not
been stayed and that face has to be seen as it is by this Court.
25. The only other ground taken by the JDs to oppose these
applications is that the DHs have increased their claim for interest
with every successive application they file, which is dishonest and
cannot be permitted since it results in this Court issuing directions to
the JDs to deposit further interest on every successive day of hearing.
I find merit in this contention as undoubtedly, once a party has
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deposited the awarded amount in Court, it cannot be directed to
deposit interest, which accrues every month, merely on account of the
pendency of the petition. However, the advantage of this principle
only vests in favour of the judgment debtor in case the entire award
amount has been deposited before the Court as per the decree. In the
present case, the entire sum awarded to the DHs, which includes pre-
award and pendente lite interest as per the decision of the Hon'ble
Supreme Court in Hyder Consulting (UK) Ltd. (supra), has not been
deposited which would result in a continuing liability of the JDs to
pay post-award interest on the amount which has not been deposited
yet.
26. At this stage, I may also note the JDs plea that once EA
6946/2019 was disposed of, the reliefs sought thereunder cannot be
granted by this Court today. No doubt the application being E.A.
6946/2019 had been preferred by the DHs in 2019 and came to be
disposed along with the enforcement petition on 20.09.2019, however
a conjoint reading of the orders passed on 15.10.2019 and 06.08.2020
reveals their intent to revive both the enforcement petition and the
application. In fact, the JDs had even provided their consent to have
EA 6946/2019 listed before this Court for hearing. In any event, the
DHs have moved both these applications in order to protect the
amount awarded in their favour by the Tribunal as the interest payable
and, in fact, there is a common prayer in both applications being EA
6946/2020 and EA 679/2020, i.e., to secure deposit of the amount of
interest of INR 200 crores awarded on refund of payments made by
the DHs for issuance of Warrants and CRPS. Thus, the EA 679/2019,
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Signing Date:05.09.2020
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which was moved in accordance with the liberty granted to the DHs
on 20.09.2019, is sufficient in itself to pass directions for deposit of
the entire upto date interest amount, excluding the amount which
already stands paid and deposited. The applications are, therefore,
entitled to succeed.
27. Having come to the conclusion that the DHs prayer for
direction to deposit the entire awarded sum and upto date interest
deserves to be allowed, it is now time to determine the amounts which
the JDs should be directed to deposit at this stage. As noted earlier,
the sum awarded by the Tribunal comprises of three figures; INR
308,21,89,461/- towards refund of payment made towards warrants,
with pre-award and pendente lite interest which amounts to INR
100,62,29,304.58/-, against this sum the JDs have paid INR
308,21,89,461/-. A further sum of INR 270,86,99,209/- towards
refund of payment towards CRPS has also been awarded to the DHs,
against which the JDs have already furnished a bank guarantee. Thus,
admittedly, as of date, the JDs have neither deposited nor furnished
any security for this sum of INR 100,62,29,304.58/-, which is a part of
the sum awarded by the Tribunal. In my view, it is incumbent on the
JDs to deposit this amount of INR 100,62,29,304.58/- before this
Court.
28. The DHs have claimed a sum of INR 1,68,99,42,764.18
towards interest on the sum of INR 308,21,89,461.00 as pre-award,
pendente lite and post-award interest, which amount however includes
the sum of INR 100,62,29,304.58/-, being a part of the sum awarded.
A perusal of the chart furnished by the DHs further shows that they
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have also claimed a sum of INR 23,83,75,227/- towards upto date
interest @ 18% p.a. on the pre-award, pendente lite and post-award
interest, which, in my view, would not be appropriate to grant at this
stage. Therefore, the amounts of INR 100,62,29,304.58/-, and INR
23,83,75,227/- need to deducted from the DH's claim for a sum of
INR 1,68,99,42,764.18 towards post-award interest, which therefore
works out to a net amount of INR 44,53,38,232/-.
29. Though the DHs have also claimed that the amount of INR
270,86,99,209/-, i.e., the amount payable for refund of payments made
by the DHs towards CRPS, should also be directed to be deposited
before this Court, I am of the view that this prayer ought to be rejected
since this amount stands sufficiently secured by the bank guarantees.
However, the DHs claim for upto date post-award interest on this sum
of INR 270,86,99,209/- deserves to be accepted and, therefore, the
JDs are directed to deposit this sum, i.e., INR 97,78,03,308.98/-, as
well.
30. Resultantly, the applications are allowed by directing the JDs to
deposit a sum of INR 242,93,70,845.56/- within a period of 6 weeks,
which amount comprises of the following components:-
i. INR 100,62,29,304.58/-
ii. INR 44,53,38,232/- and
iii. INR 97,78,03,308.98/-
31. Needless to say, this deposit will be subject to any final orders
passed in the present petition and would also be subject to any orders
passed in the pending challenge OMP (Comm) 450/2018, 451/2018,
42/2019 and 43/2019. In the event the amount is not deposited by the
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Signing Date:05.09.2020
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JDs within the time granted, the DHs shall be at liberty to revive their
prayer seeking directions to the JDs to maintain status quo with
respect to their shareholding.
32. The applications are disposed of in the aforesaid terms.
E.A. 749/2020, E.A. 750/2020 & E.A. 751/2020 in OMP (ENF.)
(COMM.) 32/2019
33. In view of the order passed hereinabove, these applications do
not survive for adjudication and the same are dismissed as
infructuous.
OMP (ENF.) (COMM.) 31/2019 & OMP (ENF.) (COMM.)
32/2019
34. At joint request, list on 04.11.2020.
REKHA PALLI, J
SEPTEMBER 02, 2020
sr
Signature Not Verified
Signed By:GARIMA MADAN
Signing Date:05.09.2020
22:01:20
