Delhi High Court
Indiabulls Housing Finance ... vs Ambience Projects And ... on 23 March, 2021
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 10th March, 2021
Pronounced on: 23rd March, 2021
+ OMP (I) (COMM) 29/2021
INDIABULLS HOUSING FINANCE LIMITED..... Petitioner
Through: Mr. Rajiv Nayar and Mr.
Maninder Singh, Sr. Advs. with Mr.
Dheeraj Nair, Ms. Anjali Anchayil,
Ms. Avni Sharma, Ms. Vishrutyi Sahni,
Mr. Prabhas Bajaj, Advs.
versus
AMBIENCE PROJECTS AND INFRASTRUCTURE
PRIVATE LIMITED & ORS. ..... Respondents
Through: Mr. Sandeep Sethi, Sr. Adv.
with Ms. Ruby Singh Ahuja, Mr. P. K.
Agarwal, Mr. Vishal Gehrana, Mr.
Ashutosh P Shukla, Mr. Utkarsh Maria,
Mr. Sidhant Kumar Marwah, Ms. Tannya
Sharma, Advs. for R-1
CORAM:
HON'BLE MR. JUSTICE C.HARI SHANKAR
% JUDGEMENT
1. The petitioner Indiabulls Housing Finance Ltd ("IHFL") has
invoked the jurisdiction of this Court under Section 9 of the
Arbitration & Conciliation Act, 1996 ("the 1996 Act"). The prayer
clause in the petition reads thus:
"In view of the aforesaid facts and circumstances and the
grounds pleaded above, it is respectfully prayed that this
Hon'ble Court may be pleased to:
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a) direct the Respondent Nos. 1-11 to deposit the
total outstanding amount of INR 14,38,44,59,993
(Indian Rupees One Thousand Four Hundred Thirty
Eight Crores Forty Four Lakhs Fifty Nine Thousand
Nine Hundred and Ninety Three only) as of January
21, 2021, along with pending TDS of INR
16,58,51,625 (Indian Rupees Sixteen Crores Fifty
Eight Lakhs Fifty One Thousand Six Hundredand
Twenty Five Only) due and payable under eighteen
loan agreements entered into with the Petitioner
(collectively, "Loan Agreements") with the Registrar
of this Hon'ble Court;
b) alternatively, an injunction against the
Respondent Nos. 1 and 12- 26 from selling,
transferring, alienating, creating any third-party rights
or interests in or dealing with the properties furnished
as security to the Petitioner for securing the loans
aggregating to INR 1327,36,92,800 (Rupees One
Thousand Three Hundred Twenty Seven Crore Thirty
Six Lakh Ninety Two Thousand and Eight Hundred
Only), being the disbursed amounts under the Loan
Agreements, pending conclusion of the arbitration
proceedings; and
c) an injunction restraining the Respondent No. 1
from making any payment to any third party or inter se
transferring any funds and assets between its group I
associate companies, and/or providing any financial
assistance, directly or indirectly, to meet the
obligations of any of the Respondent No. 1 's
promoters, directors, personal or corporate guarantors,
pending conclusion of the arbitration proceedings;
d) an injunction restraining the Respondent No. 1
from making any payment to any third party or inter se
transferring any funds andassets between its
group/associate companies, and/or providing any
financial assistance, directly or indirectly, to meet the
obligations of any of the Respondent No. 1 's
group/associate companies (including but not limited
to Ambience Private Limited) or their promoters,
directors or personal I corporate guarantors, pending
conclusion of the arbitration proceedings.
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e) grant ex-parte ad-interim relief in terms of
prayers (a)- (d);
f) award reasonable costs of this petition; and/or
g) pass such other or further orders as this Hon'ble
Court may deem fit and proper in the facts and
circumstances of the case."
2. Mr. Rajiv Nayar and Mr. Maninder Singh, learned Senior
Counsel, appear for the petitioner and Mr. Sandeep Sethi, learned
Senior Counsel appears for the respondents. Mr. Sethi opposes
issuance of notice in the petition, whereas Mr. Nayar and Mr.
Maninder Singh seek issuance of notice and grant of ad interim relief
as sought in prayer (e) in the petition, in terms of prayers (c) and (d)
thereof. Arguments were limited, therefore, to this aspect.
3. I am not examining, therefore, whether, prima facie, any case
for directing deposit of any amount, by any of the respondents, as
prayed in prayer (a) in the petition, is made out or not. The arguments
before me were restricted to the prayer to injunct, ad interim and
pending decision of the Section 9 petition, Respondent No. 1
Ambience Projects & Infrastructure Pvt Ltd ("APIPL") from making
any payment to any third party, or to any of its own sister concerns. I
propose to consider, therefore, only whether a case is made out, by the
petitioner, for granting ad interim relief in terms of prayer (e) read
with prayers (c) and (d).
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Facts
4. IHFL advanced the following loans, under 18 Loan
Agreements, to APIPL and other co-borrowers, who are also
respondents in the present petition:
Date of Agreement Borrowers Loan
Amount (₹)
28th November, 2018 (1) APIPL 165,00,00,000
(2) Raj Singh Gehlot
(3) Rockstar Buildcon Pvt Ltd
th
28 November, 2018 (1) APIPL 20,54,00,000
(2) Raj Singh Gehlot
(3) Vijeta Properties Pvt Ltd
28th November, 2018 (1) APIPL 154,46,00,000
(2) Raj Singh Gehlot
(3) Vijeta Properties Pvt Ltd
th
28 November, 2018 APIPL 245,00,00,000
28th November, 2018 APIPL 55,00,00,000
29th June, 2018 (1) APIPL 148,00,00,000
(2) Rockstar Realty Pvt Ltd
th
28 November, 2018 (1) APIPL 25,10,86,600
(2) Hitech Towers Pvt Ltd
28th November, 2018 (1) APIPL 25,10,86,600
(2) Rockstar Realty Pvt Ltd
28th November, 2018 (1) APIPL 25,10,86,600
(2) Caitriona Towers Pvt Ltd
28th November, 2018 (1) APIPL 25,10,86,600
(2) Bigboss Realty Pvt Ltd
28th November, 2018 (1) APIPL 25,10,86,600
(2) Greentech Colonizers Pvt
Ltd
28th November, 2018 (1) APIPL 25,10,86,600
(2) SupervalleyBuildtech Pvt
Ltd
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11th September, (1) APIPL 95,00,00,000
2020 (2) Rockstar Realty Pvt Ltd
28th November, (1) APIPL 25,10,86,600
2018 (2) Master Buildwell Pvt Ltd
28th November, (1) APIPL 25,10,86,600
2018 (2) Ambience Power Projects
Pvt Ltd
29th June, 2018 (1) APIPL 14,25,00,000
(2) Bigboss Realty Pvt Ltd
11th September, (1) APIPL 180,00,00,000
2020
(2) Bigboss Realty Pvt Ltd
th
11 September, (1) APIPL 170,00,00,000
2020
(2) Hitech Towers Pvt Ltd
5. The "Borrowers", under the Loan Agreements, were APIPL and
its co-borrowers, identified in the above table. The Loan Agreements
provided for securing the loans by guarantees as well as by
hypothecation and pledging of assets. The Borrowers, guarantors,
hypothecators, pledgors and mortgagors were parenthesized as
"obligors" under the Loan Agreements. Clause 2.1 of the Loan
Agreements made the obligors jointly and severally liable to pay the
borrowed dues to the lender. Clause 3.1.1 required the borrowers to
repay the entire loan with interest to the lender, as per the Repayment
Schedule annexed to the Loan Agreements. Non-payment of the
borrower's dues, or any part of, by the due date, was an "Event of
Default", under Clause 12.1.1 of the Loan Agreements. Additionally,
Clause 12.1.9 (b) deemed an Event of Default to have occurred "if
there is a failure in business, commission of an act of bankruptcy,
general assignment for the benefit of creditors, if the Obligor(s)
suspend(s) payment to any creditors or threatens to do so, in the
petition in bankruptcy of, by, or against the Obligor(s) is filed or any
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petition for winding up of the Obligor(s) is filed and not withdrawn
within 30 days of being filed". Clause 12.2 empowered the Lender,
i.e. IHFL to, if an Event of Default occurred, cancel/recall the loan,
without any notice to any of the Obligors. Upon such recall of the
loan, Clause 12.2 rendered the Obligors liable to pay/repay,
immediately, the Borrowers' Dues. IHFL was entitled, in such event,
to enforce or forfeit any part of the Security, whereby the loan was
secured. Clause 15 of the Loan Agreements provided for "Cross
Liability", and read thus:
"15. CROSS LIABILITY
Notwithstanding anything to the contrary contained in any
agreement(s), the Obligor(s) expressly accept(s) and agree(s)
that if a breach/default/event of default occurs under any
agreement(s) (including the Loan Documents) between (a) the
Obligor(s) and/or any group entity/entities/associate company
of the Obligor(s) and (b) the Lender and/or any of the
Relevant Entities, then such a breach/default/event of default
under such agreement(s) shall also be an Event of Default
under the Loan Documents and vice versa and then in such an
event the Lender and/or any of the Relevant Entities shall,
without prejudice to any of its/their specific rights under each
of the agreements, be absolutely entitled to exercise all or any
of its/their rights (including Loan recall) under any of such
agreements (including the Loan Documents) at the sole
discretion of the Lender and/or the Relevant Entities."
6. Various securities were provided by third parties (who were,
therefore, "obligors" under the Loan Documents), to secure the loan
extended to APIPL. Of these, the petitioner is concerned, in the
present case, only with (i) three deeds of hypothecation executed by
APIPL on 23rd July, 2020, 30th September, 2020 and 30th September,
2020, hypothecating the receivables from the "Project Creations"
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project at Sector-22, Gurugram, and (ii) the securities provided by
Respondents 12 to 26.
7. On or around 13th November, 2018, a petition, under Section 7
of the Insolvency and Bankruptcy Code, 2016 ("the IBC") was filed,
against Ambience Private Ltd ("APL"), which was a sister concern of
APIPL, before the National Company Law Tribunal ("the NCLT"), by
an entity known as Vistra ITCL (India) Ltd ("Vistra"). As the said
petition was not withdrawn within 30 days of its being filed, the
petitioner asserts that an "Event of Default", within the meaning of
Clauses 12.1.9(b) and 15 of the Loan Agreements, had occurred, as
APL was an Obligor thereunder.
8. The petitioner further alleges that, in respect of 15 of the 18
Loan Agreements, there was default in repayment, by Respondents 1
to 11, of the total amount of ₹ 45.05 crores, for the months of October,
November and December, 2020. As a result, 18 Loan Recall Notices
dated 5th January, 2021 were issued by the petitioner to the borrowers
in each of the Loan Agreements (which included APIPL in each case),
recalling the loans and, consequently, demanding payment of the
entire outstanding principal and interest within seven days of receipt
of the Loan Recall Notices. It was alleged, in the Loan Recall
Notices, that, on the proceedings, initiated against APL by Vistra
under Section 7 of the IBC before the NCLT not being withdrawn
within 30 days of their institution, an Event of Default, within the
meaning of Clauses 12.1.9 (b) and 15 of the Loan Agreements, had
occurred. The amount of outstanding loan repayable was specified, in
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each Loan Recall Notice, along with the quantum of interest and TDS
accrued thereon. In default, the addressees, in each of the Loan Recall
Notices (cumulatively Respondents 1 to 11) were informed of the
intention of the petitioner to proceed against the security/securities,
including mortgaged properties and receivables, provided under the
Load Documents.
9. On 30th September, 2020, Respondents 1 to 11 paid the
outstanding principal amounts of the loan advanced by the petitioner,
along with interest, due as on 31st August, 2020.
10. It is alleged that, thereafter, from October 2020 onwards,
Respondents 1 to 11 again defaulted in payment, in respect of 16 of
the 18 Loan Agreements. As a result, according to the petitioner, as
on 21st January, 2021, Respondents 1 to 11 have become liable to pay,
to the petitioner, principal and interest totally ₹ 1438,44,59,993/-,
along with TDS of ₹ 16,58,51,625/-. This, in essence, constitutes the
summum bonum of the dispute between IHFL and the respondents, the
arbitrability of which is not disputed by the respondents.
11. Cause of action as pleaded:
11.1 The petitioner asserts, as the cause of action for invoking
Section 9 of the 1996 Act, the developments in the proceedings
initiated by Vistra against APL before the NCLT under Section 7 of
the IBC and in the appeal preferred therefrom. Raj Singh Gehlot (a
director of APL and APIPL) appealed, against the order dated 21st
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December, 2020, of the NCLT, admitting the Section 7 petition of
Vistra, to the National Company Law Appellate Tribunal ("NCLAT").
That appeal is presently pending. On 18th January, 2021, Raj Singh
Gehlot submitted, before the NCLAT, that a settlement had been
worked out between Vistra and APL, towards the satisfaction of
which APIPL had paid ₹ 50 crores to Vistra. The remaining dues of
Vistra, it was further submitted by Mr. Gehlot, would be paid by 31st
March, 2021. The NCLAT, therefore, adjourned the appeal to 6 th
April, 2021. Simultaneously, the NCLAT restrained the Committee
of Creditors of APL from taking any further steps. IHFL submits that
it was also a member of the Committee of Creditors of APL, but was
not impleaded as a party in the proceedings before the NCLT or the
NCLAT, nor was made privy to the settlement between Vistra and
APL. It was only thereafter, under a Memorandum of Understanding
(MoU) dated 14th January, 2021, that IHFL claims to have received a
copy of the said settlement. The settlement, contends IHFL, provides
for payment, by APIPL and/or Raj Singh Gehlot, of the outstanding
debt of Vistra, of ₹ 135 crores, on or before 31 st March, 2021. The
upfront payment of ₹ 50 crores, submits IHFL, demonstrates the
obvious intent, of APIPL, to pay the balance amount of ₹ 135 crores,
as well, in accordance with the terms of the Settlement Agreement.
12. If this is permitted to take place, contends IHFL, it would
"grossly undermine the ability of" APIPL to make payments to IHFL
under the Loan Agreements. "Similarly", asserts the petitioner, the
assets of Respondents 12 to 26, provided as security in terms of the
Loan Agreements were at risk of being sold off/transferred/alienated
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or encumbered for the purpose of making payments under the MoU or
otherwise to fulfil debts of APIPL or of its group companies,
including APL. This would result in inability, of the petitioner, to
recover the amounts due and payable to it by Respondents 1 to 11,
which would, in turn, result in the arbitration proceedings, yet to be
initiated between the petitioner against the respondents, being
rendered abortive even before they commence. Recourse to Section 9
of the 1996 Act, according to the petitioner, became necessary owing
to the following order, passed by the NCLAT in the appeal of Raj
Singh Gehlot on 18th January, 2021:
"It is submitted by Mr. Gopal Jain, Senior Advocate that the
settlement has been worked out and in terms of settlement, 1st
tranche of ₹ 50 crores has been paid by the Appellant to
Respondent No. 1. This factual position is subscribed to and
admitted by Mr. Arun Kathpalia, Senior Advocate
representing Respondent No. 1. It is submitted that the
balance dues have to be cleared by 31st March, 2021. In view
of the same, a joint request has been made for adjournment of
the appeal to 1st April, 2021. Since IRP is not in attendance,
let notice be served upon him through electronic mode to
appear on file status report in regards to CIRP.
Learned counsel for the Appellant season disallowed to file
Terms of Settlement. Respondent No. 2 (IRP) may file a
status report in regard to the status of the CIRP.
Let the matter be fixed on 6th April, 2021.
Meanwhile, Committee of Creditors will not proceed ahead
till next date."
IHFL has candidly disclosed the fact that it has also sought
impleadment in the appeal of APL, pending before the NCLAT, and
has moved an application, in the said proceedings, for a direction to
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Vistra to return, forthwith, the amounts paid by it under the MoU, as
well as to restrain Raj Singh Gehlot and Vistra from taking any further
steps in accordance with the MoU. Inasmuch as the petitioner is not
seeking any remedy, from this Court, in respect of the MoU, the
petitioner contends that the present Section 9 proceedings are
maintainable.
13. As these aspects constitute the justification for the invocation,
by the petitioner, of the jurisdiction vested in this Court by Section 9
of the 1996 Act, I deem it appropriate to reproduce, in extenso, paras
57 to 64 of the present petition, thus:
"57. The. Petitioner's apprehension is based on certain
recent actions taken by the Respondent No. 1 and Mr. Raj
Singh Gehlot. The Petitioner has recently come to know that
Mr. Raj Singh Gehlot (who is the director of Ambience
Private Limited and the Respondent No. 1) had filed an
appeal against the order of the Hon'ble Adjudicating
Authority dated December 21, 2020 commencing the
corporate insolvency resolution process of Ambience Private
Limited ("Appeal"). The Appeal is currently pending before
the Hon'ble National Company Law Appellate Tribunal
("Appellate Tribunal"). On January 18, 2021 when the Appeal
was listed for hearing before the Hon'ble Appellate Tribunal,
it was submitted by the counsel for Mr. Raj Singh Gehlot that
a settlement had been worked out with the financial creditor,
Vistra ITCL (India) Limited who had filed the petition under
Section 7 of the Code against Ambience Private Limited. It
was submitted that in terms of the settlement an amount of
INR 50 crores (Rupees Fifty Crores) had been paid by the
Respondent No. 1 to Vistra ITCL (India) Limited. It was
further submitted that the remaining dues would be paid by
March 31, 2021 and in light of the same, the parties were
jointly seeking an adjournment of the Appeal to April 1, 2021.
In light of these submissions, this Hon'ble Appellate Tribunal
adjourned the hearing of the Appeal to April 6, 2021. The
Hon'ble Appellate Tribunal also stayed the committee of
creditors of Ambience Private Limited ("CoC") from taking
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any further steps till such date. The Hon'ble Appellate
Tribunal has not accepted the settlement nor has it passed any
directions in respect of the settlement.
58. The above reliefs were sought from the Hon'ble
Appellate Tribunal without the CoC (of which the Petitioner
is a member) or the financial creditors of the Ambience
Private Limited (including the Petitioner), being made a party
to the proceedings. Nor was the private settlement between
Mr. Raj Singh Gehlot and Vistra (ITCL) India Limited
brought to the notice of the CoC for its approval under the
provisions of the Code.
59. The Petitioner has since received a copy of the
aforesaid settlement under a memorandum of understanding
dated January 14, 2021 (" Settlement MoU").
60. The Settlement MoU has been entered into, inter alia,
for the withdrawal of the petition filed by Vistra (ITCL) India
Limited under Section 7 of the Code against Ambience
Private Limited. Under the terms of the Settlement MoU, Mr.
Raj Singh Gehlot has agreed, purportedly on behalf of the
Respondent No. 1, that the Respondent No. 1 and / or Mr. Raj
Singh Gehlot would pay the outstanding amount of INR
135,00,00,000 (Rupees One Hundred and Thirty Five Crores)
owed to Vistra ITCL (India) Limited. As part of this, the
Respondent No. I has already made a payment of INR 50
crores to Vistra ITCL (India) Limited.
61. The Petitioner submits that the Respondent No. I has
already defaulted in its payments to the Petitioner. If the
resources of the Respondent No. 1 are utilised to make
payments to Vistra ITCL (India) Limited or other creditors of
group companies of the Respondent No. 1, it would grossly
undermine the ability of the Respondent No. 1 to make
payments to the Petitioner under the Loan Agreements, which
it is contractually obliged to do.
62. The Petitioner apprehends that similarly the assets of
the Respondent Nos. 12-26 which have been provided as
security in terms the Loan Agreements are at risk of being
sold off / transferred / alienated or encumbered for the
purpose of making payments under the Settlement MoU or
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otherwise towards other debt obligations of the Respondent
No. 1 or the obligations of the group companies of the
Ambience group or their directors, promoters or personal /
corporate guarantors.
63. If this happens, the Petitioner will not be able to
recover the amounts due and payable to it by the Respondent
Nos. 1-11 and the arbitration proceedings to be commenced
by the Petitioner against the Respondents shall be rendered
infructuous as a result.
64. For the sake of completeness, it is submitted that the
Petitioner has filed an application seeking impleadment in the
Appeal proceedings before the Hon'ble Appellate Tribunal.
The Petitioner has also filed an application seeking directions
to: (i) Vistra ITCL (India) Limited to return the amounts
already paid to it under the Settlement MoU to Vistra ITCL
(India) Limited and / or Mr. Raj Singh Gehlot; and (ii) Mr.
Raj Singh Gehlot and Vistra ITCL (India) Limited to not take
any further steps under the Settlement MoU. Therefore, the
Petitioner is not seeking any relief in respect of the Settlement
MoU from this Hon'ble Court."
(Emphasis supplied)
14. After the present petition was filed, the Supreme Court, vide
order dated 23rd February, 2021 in Civil Appeal 717/2021 (Indiabulls
Housing Finance Ltd v. Raj Singh Gehlot) has stayed the order,
dated 18th January, 2021, of the NCLAT. The order of the Supreme
Court reads thus :
"1. Permission to file the appeal is granted
2. The appeal arises from an order of the
National Company Law Appellate Tribunal dated 18
January 2021. Mr. Shyam Divan, learned senior
counsel appearing on behalf of the appellant has highlighted
the following facets of the case:
(i) On 21 December 2020, the National
Company Law Tribunal admitted the application
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filed against the Corporate Debtor and initiated
the Corporate Insolvency Resolution Process;
(ii) Following the admission of the application, the
IRP was appointed;
(iii) The Committee of Creditors was
constituted some time prior to 15January 2021,
which is evident from the e-mail (Annexure A-2)
dated 15January 2021 by the IRP convening the first
meeting of the Committee of Creditors on 20 January
2021;
(iv) After the admission of the application, a
Memorandum of Settlement was arrived at on
14 January 2021 between the first respondent
and second respondent; and
(v) The agenda to the notice (page 62 of the paper
book) would indicate that the claim of the appellant to
the extent as acknowledged has been quantified at Rs
840 crores (representing 44% of the dues), while the
claim which is due to the second respondent
is quantified at Rs 297 crores (representing 15.4%
of the dues).
2. Mr. Shyam Divan has submitted that having due
regard to the provisions of Section 12A of the
Insolvency and Bankruptcy Code 2016, once the
application has been admitted under Sections 7, 9 or 10, as
the case may be, withdrawal of the application can be made
by the applicant with the approval of a 90% voting share of
the Committee of Creditors, in such manner as maybe
prescribed. Regulation 30A provides for the manner
in which the withdrawal can take place. Section 12A was
enforced with effect from 6 June 2018. Regulation 30A has
been enforced with effect from 25 July 2019.
3. Apart from the above provisions, reliance has also
been placed on Rule 8 of the Insolvency and Bankruptcy
(Application to Adjudicating Authority) Rules 2016, under
which the adjudicating authority may permit withdrawal of an
application on a request made by the applicant
before its admission. Consequently, it has been urged
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that the private settlement which was entered into
between the first and second respondents is contrary
to the express provisions of the IBC and may even
amount to a preferential transaction within the prohibition
contained in Section 43.
4. In view of the above submissions, issue notice,
returnable in three weeks.
5. Till the next date of listing, the following ad-interim
order is issued:
(i) The impugned judgment and order of the
NCLAT dated 18 January 2021 in Company Appeal
(AT) (Insolvency) No 6 of 2021 shall remain stayed;
and
(ii) In terms of the application for additional interim
reliefs, there shall be a direction restraining the first
and second respondents from taking any steps under
the Memorandum of Settlement dated 14 January
2021."
15. Detailed arguments were advanced by learned Senior Counsel,
as already noted hereinbefore. Written submissions have also been
filed by the petitioner and Respondent No 1 - against whom, alone,
prayers (c) and (d) of the petitioner are directed. Mr. Sandeep Sethi,
learned Senior Counsel for APIPL, prays that the petition be
dismissed. Mr. Nayar and Mr. Maninder Singh, learned Senior
Counsel for IHFL pray, per contra, that ad interim protective relief, in
terms of prayer (e) in the petition, read with prayers (c) and (d), be
granted.
16. As submissions were advanced, by both sides, only qua prayers
(c) and (d), read with prayer (e), and the remaining prayers in the
petition have yet to be addressed, issue notice, returnable on 7th May,
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2021. Notice is accepted by Mr. Vishal Gehrana on behalf of
Respondent No 1. Let notice be issued to the remaining respondents
by all modes, including dasti wherever possible. Counter-affidavits, in
response to the petition, be filed within a period of four weeks from
the date of pronouncement of this order, with advance copy to learned
counsel for the petitioner, who may file rejoinder thereto, if any,
within 2 weeks thereof.
Rival contentions
Initial submissions of Mr. Rajiv Nayar and Mr. Maninder Singh
17. On behalf of the petitioner, Mr. Nayar and Mr. Maninder Singh
contend thus:
(i) As many as three Events of Default have occurred in the
present case. The first Event of Default was occasioned by the
failure, of Respondent Nos. 1 to 11, to repay the loan, in
accordance with the Loan Agreements, for the months of
October, November and December, 2020. The second Event of
Default occurred when, despite the expiry of 30 days from their
institution, the proceedings initiated by Vistra against APL
under Section 7 of the IBC, in the NCLT, were not withdrawn.
The third Event of Default resulted on the failure, of
Respondent Nos. 1 to 11 to comply with the request for
repayment of the loan, as contained in the Loan Recall Notices
dated 5th January, 2021, within the period of seven days
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provided therein. Mr. Nayar submits that, in the concluding
sentence of the opening paragraph of its response dated 12th
January, 2021, to the said Loan Recall Notices (which reads as
under), APIPL had admitted the occurrence of the Event of
Default :
"We have gone through your notices and find that your
notices have been issued for wholly malafide intent
and ulterior motives in order to put us and all our
companies under great stress and pressure in order to
yield to your nefarious designs in order to part with
valuable assets to you and/or your nominee. There has
been no default committed by these Companies till
date and they continue to service the Loan Accounts in
terms of the repayment schedule under the Loan
Agreements. Your malice is apparent on the face of it
as you have issued notices without referring to any
Event of Default and basing the same on the ploy of
event of default under Clause 12 read with Clause 15
of your loan documents. Not only that you have issued
notices to even those companies including M/s Sara
Estates Pvt. Ltd. and M/s Alankar Apartments Pvt.
Ltd. which have not been Borrower or Co-
borrower/Obligors, in any of your loan accounts. We
may also point out that your malice with the intent to
ruin our business is evident from the fact that you did
not allege that 30 days have passed since the filing of
the petition by Vistra ITCL for the last about 2 years
and now suddenly got issued the above notices. You
could exercise this option in August 2019 when the
CIRP was ordered to be initiated."
(Emphasis supplied)
(ii) APIPL could not be permitted to transfer its monies to its
sister concerns or other associated companies or, for that
matter, any other entity, to liquidate the debt owed by such
other entity to a third party, while its liability, towards the
petitioner, remained outstanding. As Mr. Maninder Singh
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expressed it, the corporate freedom enjoyed by APIPL could
not extend to dissipation of its assets and monies in favour of
others, while its creditor, i.e. IHFL, remained unpaid.
(iii) IHFL was apprehensive that, if APIPL were permitted to
do so, it would not be left with any resources, in case the award
was ultimately in favour of IHFL.
Submissions of Mr. Sandeep Sethi, in response
18. Mr. Sethi submits, in response to the arguments of Mr. Nayar
and Mr. Maninder Singh, thus:
(i) The present petition amounts to gross abuse of the
process of law. IHFL has filed, seeking similar reliefs,
(a) a proceeding under Section 7 of the IBC against
APIPL,
(b) an application seeking impleadment in the appeal,
preferred by APL against the order dated 21st December,
2020 before the NCLAT and
(c) in the said appeal, an application, seeking
directions to Vistra to return, to APIPL, the amounts paid
by it to satisfy the debt of APL to Vistra and to Raj Singh
Gehlot and Vistra not to take any further steps under the
MoU dated 14th January, 2021.
IHFL, contends Mr. Sethi, cannot be allowed to move two
different fora, seeking the same relief. In fact, contends Mr.
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Sethi, the petitioner is merely seeking to derail the proceedings
before the NCLAT, and stifle the Settlement MoU from
fructifying. Having failed to obtain any relief from the
NCLAT, against the MoU dated 14th January, 2021, Mr. Sethi
submits that the petitioner is misusing the legal process, to
obtain the same relief from this Court. Copies of the petition
filed by IHFL against APIPL under Section 7, IBC, the
impleadment application filed by IHFL in the appeal preferred
by APL against the order dated 21st December, 2020 of the
NCLT, and the application for directions, filed by IHFL in the
said appeal, have also been provided along with the written
submissions. These documents, I may note, have not been
called into question by learned Senior Counsel for the
petitioner.
(ii) No Event of Default, within the meaning of Clauses 12
and 17 of the Loan Agreements, has occurred. Vistra is not a
creditor of APL. The contention that Vistra had filed a
bankruptcy petition against APL before the NCLT is also
denied. These aspects, however, it is acknowledged, are
pending in the appeal of which the NCLAT is presently in
seisin. Even during the period October 2020 till 5 th March,
2021, contends APIPL, ₹ 90,358,324/- has been credited to the
petitioner IHFL, from the Escrow Account.
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(iii) IHFL had never raised any issue of occurrence of any
Event of Default, under the Loan Agreements, when Vistra had
petitioned the NCLT, against APL, under Section 7 of the IBC.
(iv) The money agreed to be repaid to Vistra, in the
proceedings before the NCLT/NCLAT, was only the principal
amount of ₹ 135 crores, invested by Vistra in APIPL, against
the total dues of Vistra of ₹ 296 crores admitted in the CIRP
proceedings. This refund was not being made out of the
receivables from the "Ambience Creacions" residential housing
project, at Sector 22, Gurugram, out of which the loans
extended by the petitioner to APIPL and other respondents, was
to be serviced as per the Loan Agreements. Mr. Sethi invited
my attention, in this context, to Clause 2 of the Settlement
MoU, which read thus:
"The Promoter through Ambience Projects &
Infrastructure Private Limited (SPV) have accordingly
caused to deposit the amount of INR 50,00,00,000/-
(Rupees Fifty Crores), the First Tranche Payment, on
14.01.2021 & 15.01.2021 by way of RTGS to the
account of Vistra ITCL. The said amount of INR 50
Crores shall be utilised by Vistra ITCL towards
a. INR 43,85,43,110/- against redemption
of debentures issued by Ambience Projects &
Infrastructure Private Limited (SPV); and
b. INR 6,14,56,890/- against repayment of
the unsecured loans extended to Ambience
Projects & Infrastructure Private Limited
(SPV)."
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APIPL contends that no debtor could be directed not to
liquidate its debt, to its creditors, or to prioritise one creditor
over another.
(v) The Loan Agreements, too, did not require APIPL to
liquidate its dues to IHFL, before paying its other creditors.
(vi) Even after the alleged Event of Default, IHFL advanced
loans, to APIPL and its group companies, to the tune of ₹ 445
crores, over a period of two years, during which no issue of
occurrence of any Event of Default, under the Loan
Agreements, was ever raised by IHFL. This casts serious
doubts regarding the bona fides of the present petition.
(vii) The jurisdiction of the Court under Section 9 of the 1996
Act, was to be exercised in spare and exceptional cases. The
principles governing exercise of the said jurisdiction was
analogous to those applicable to Order 38 Rule 5 of the CPC.
Reliance has been placed, in this context, on the judgment of
the Supreme Court in Raman Tech & Process Engineering Co.
v. Solanki Traders1 and of this Court in Natrip Implementation
Society v. IVRCL Ltd2, BMW India Pvt Ltd v. Libra
Automotives Pvt Ltd3 and of the High Court of Bombay in
Nimbus Communications Ltd v. B.C.C.I.4
1 (2008) 2 SCC 302
2 2016 SCC OnLine Del 5023
3 (2019) 261 DLT 579
4 2012 SCC OnLine Bom 287
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(viii) IHFL was guilty of suppressing material facts, as it had
not filed, before this Court, the petition, under Section 7 of the
IBC, preferred by the petitioner IHFL against APIPL, the
application filed by it for impleadment in the appeal of APL
against the order dated 21st December, 2020, of the NCLT, or
the application filed by it, in the said appeal, seeking directions.
(ix) The loan Agreements envisaged repayment of the loans
out of the receivables from sale of the apartments to be
constructed in the "Ambience Creacions" residential housing
project, at Sector 22, Gurugram, as well as other projects. For
this purpose, three deeds of Hypothecation dated 23 rd July,
2020, 30th September, 2020 and 30th September, 2020, already
stood executed in favour of the petitioner, hypothecating the
receivables from the Ambience Creacions project. They were
also secured by securities provided by Respondent Nos. 12 to
26. A tabular statement of the said securities has been
provided, by Respondent No. 1 with its written submissions,
and is also annexed as Annexure A to this order. The sum total
value of the securities, points out Mr. Sethi, is in the region of ₹
4563 crores, which is far in excess of the petitioner's exposure.
Mr. Sethi points out that there is no plea, in the petition, that the
security is deficient or insufficient to secure the petitioner's
exposure, or that its value has diminished at any point of time.
Mr. Sethi has invited my attention, in this context, to the
definitions of "receivables" and "said properties", in sub-
Clauses (xxi) and (xxiii) of Clause 1.1, Clause 2.1 (b) and
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Clauses 2.2 and 2.3 of the Loan Agreements, which provided
thus:
"1.1 Definitions
*****
xxi. "Receivables" means the entire sale
proceeds, advance, allotment money, rent, lease
rentals, license fees, security deposit(s) and/or
other receivables received or to be received (on
and from the date of this Agreement) by, inter
alia, the Obligor(s) from all the concerned
persons, including the buyer(s),transferee(s),
allotee(s), lessee(s), sub-lessee(s), developer(s),
tenant(s) and/or licensees of the Said Properties
and/or any portion or unit thereof and/or any
other properties as mutually agreed between the
Lender and the Obliger(s), from time to time,
pursuant to any application(s),
agreement(s),document(s) and/or contract(s)
for, inter alia, sale, transfer, allotment,
assignment development, lease,sub-lease,
renting and/or license of the Said Properties
and/or any portion or unit thereof and/or
anyother properties as mutually agreed between
the Lender and the Obligor(s).
*****
xxiii. "Said Properties" means the properties
as mentioned in Schedule III hereunder.
*****
"2.1 Loan Amount
*****
b) Hypothecation
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The Borrower(s) shall cause the Hypothecator(s) and
the Hypothecator(s) shall agree, to the satisfaction
ofthe Lender, to hypothecate, encumber, charge,
pledge and/or assign (by way of Security) the
HypothecatedAsset(s) in favour of the Lender. The
Borrower(s) shall cause the Hypothecator(s) to
promptly submit withthe Lender (if so requested by the
Lender) all the original documents of the Hypothecated
Asset(s) duly endorsing the lien/hypothecation in
favour of the Lender. The Obligor(s) shall forthwith
deposit or shallcause to be deposited the Receivables
directly in an escrow account(s) (and to no other
account) as may bestipulated/agreed by the Lender and
shall forthwith execute escrow agreement(s) in a form
satisfactory tothe Lender with respect to deposit of the
Receivables into the escrow account(s) and transfer of
amountsinto the Lender's specified bank account(s) on
the Due Date(s). The Receivables shall
beutilized/transferred in a manner as
approved/instructed by the Lender in writing from time
to time. It ishereby clarified that in case of shortfall in
the escrow account(s), payment default(s) by the
Obligor(s)and/or occurrence of an Event of Default,
the Obligor(s) is/shall be under an obligation to pay
from anysource so as to pay the amount(s) payable in
accordance with the Loan Documents to the Lender.
TheObligor(s) undertake to forthwith issue irrevocable
instructions (in a format acceptable to the Lender) to
allthe concerned persons for deposit of the Receivables
only in the escrow account(s) and obtain confirmations
in this regard (and forthwith provide a copy thereof to
the Lender) from all suchperson(s).The Obligor(s)
shall not give any instruction(s) to the escrow agent(s)
and the escrow agent(s)shall not in any circumstance
act on any instruction(s) of the Obligor(s). The
Borrower(s) undertake to, andthe Borrower(s) shall
cause the other Obligor(s) to, irrevocably appoint the
Lender as its attorney byexecution of a Power of
Attorney for collection of Receivables (in the form and
substance satisfactory tothe Lender) in favour of the
Lender for, inter alia, collection of the Receivables
from all the concernedpersons. The Borrower(s)
further, agree that such power(s) would be power(s)
coupled with interest and therefore irrevocable."
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*****
2.2 Security and additional Security
To secure, to the satisfaction of the Lender, the
fulfillment of all the obligations of the Obligor(s)
under theLoan Documents including payment of the
Borrower's Dues and other amounts by the Obligor(s)
to theLender under the Loan Documents, the
Borrower(s) hereby undertake(s) to forthwith create,
and/or shallcause the Obligor(s) to forthwith create, (a)
such Security in favour of the Lender as mentioned in
the LoanDocuments (including those mentioned
hereunder) and (b) such other additional Security of
adequate value(to the satisfaction of the Lender), if the
Lender so requests from time to time for any reason(s)
whatsoever including due to inadequate value (in the
opinion of the Lender) of any Security and/or the
Lender's righton any Security getting adversely
affected in any manner pursuant to, inter alia,
injunction/stay/order/freeze/attachment of any Security
or any part thereof. The Borrower(s) shall, and/or shall
cause the Obligor(s) to, (a) forthwith execute and
register, if required, appropriate Security Documents
and other agreements/deeds relating thereto (in a
format acceptable to the Lender) and (b) take/obtain a
written no objection certificate ("NOC") from the
Lender prior to, inter alia, any application(s),
agreement(s),document(s) and/or contract(s)
for/of/relating to, inter alia, sale, conveyance, transfer,
lease, possession,sub-lease, rent, leave and license,
negative lien, assignment, development, lien, charge,
third party rights/interests, allotment and/or
encumbrance (in any manner) of the Security (and/or
any portion/unitthereof). Unless otherwise mentioned
in the Loan Documents, the Borrower(s) further
undertake that it shall. and shall cause the Obligor(s)
to, forthwith execute the Security Documents and
create the first-ranking
mortgage/charge/pledge/hypothecation (in a
mode/manner acceptable to the Lender)over
theSecurity in favour of the Lender before or at the
time of entering into this Agreement. Any failure
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/delay inexecution of the Security Documents and
creation of the Security as aforesaid shall be an Event
of Defaultunder the Loan Documents. The Borrower(s)
shall, and/or shall cause the Obligor(s) to, execute/to
issue aPower of Attorney authorizing/empowering the
Lender to, inter alia, allot, sell, transfer, lease, sub-
lease,assign, mortgage, encumber, construct and/or
develop the Security (and/or any part/unit thereof)."
*****
2.3 Security Cover
The Borrower(s) shall , and/or shall cause the
Obligor(s) to, maintain the Security Cover as stipulated
inSchedule I hereunder at all times during the validity
of the Loan Documents ("Security Cover"). For
thepurposes of calculating the Security Cover, only the
value of the immovable properties ("Said Immovable
Properties") mortgaged in favour of the Lender to
secure, inter alia, the Group Borrower's Dues shall
betaken into consideration. If at any time during the
continuance of this Agreement, the Lender is of
theopinion that the value of the Said Immovable
Properties has become inadequate to maintain the
SecurityCover, then whether or not the Lender
advising the Obligor(s) to that effect, within two days
the Borrower(s) shall forthwith provide and furnish
and/or shall cause the Obligor(s) to forthwith provide
andfurnish to the satisfaction of the Lender, either cash
or such other Security (acceptable to the Lender) to
thesatisfaction of the Lender to make good the shortfall
in the Security Cover so as to maintain the
SecurityCover at all times. The Lender shall be entitled
to make a call for additional Security to the
Borrower(s) ifthe Security Cover is not maintained and
the Borrower(s) shall be bound to forthwith (within
two days)provide/create additional Security to the
satisfaction of the Lender. Without prejudice to the
otherprovisions of the Loan Documents, the Lender
shall have the right to recall the Loan/Borrower's Dues
inpart or in full or exercise other rights under the Loan
Documents including sell, transfer, dispose
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of,encumber and/or deal with the Security, or any part
thereof, in any manner if the Security Cover is
notmaintained.
The value of any Security shall be calculated by a
valuer acceptable to the Lender or as deemed fit by the
Lender. The cost of valuation of any Security shall be
borne only by the Obligor(s) and the same shall be for
with payable. Further, the valuation of the Security
shall be done as and when required by the Lender and
in any case, the Obligor(s) will provide the valuation
of the Security (as aforesaid) at least once in afinancial
year."
(x) Under the Loan Agreements, the receivables, upon which
IHFL had a charge, were deposited in an Escrow Account, in
accordance with the Escrow Agreement dated 24th July, to
which IHFL, M/s Indiabulls Commercial Credit Ltd, APIPL
and the Punjab and Sind Bank, were parties. These amounts
stood directly appropriated by the petitioner under Clause
2.1(b) of the Loan Agreements from time to time. There was
no allegation of diversion of any amounts from the said Escrow
Account. The receivables and immovable properties mortgaged
in favour of the petitioner were valued at ₹ 4563.29 crores. The
petitioner's exposure, which was to the tune of ₹ 1327crores
was, therefore, more than adequately secured. No case for
passing any protective orders under Section 9 of the 1996 Act,
therefore, existed. In this context, Mr. Sethi referred to various
covenants of the Escrow Agreement dated 24th July, 2020.
(xi) In any event, in view of the order, dated 23 rd February,
2021, whereby the Supreme Court has stayed the order dated
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18th January, 2021, of the NCLAT and, accordingly, execution
of the Settlement MoU, the very basis for filing the present
petition has ceased to exist. No urgent or imminent threat,
requiring protective interlocutory measures by this Court, could
be said to exist.
19. Mr. Sethi submits, therefore, that the petition deserves to be
dismissed at the outset.
Rejoinder Submissions of Mr. Nayar and Mr. Maninder Singh
20. Rejoining to the submissions advanced by Mr. Sethi, Mr. Nayar
and Mr. Maninder Singh contend thus:
(i) There was no connection, save and except by virtue of
the MoU dated 14th January, 2021, between the IBC
proceedings initiated by Vistra against APL and the present
proceedings. As such, no concealment could be alleged, against
the petitioner, for not having placed, on record, all the details of
the proceedings pending in the NCLT and NCLAT. The cause
of action, for the petitioner to invoke the Section 9 jurisdiction
of this Court, was the execution of the Settlement MoU dated
14th January, 2021, whereby and whereunder APIPL agreed to
liquidate the dues of APL to Vistra. If this arrangement had not
been accepted by APIPL, learned Senior Counsel contended
that the petitioner would have had no grievance, as the
proceedings before the NCLAT/NCLT were essentially
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between Vistra and APL. It was not open, however, to APIPL
to, in the said proceedings, transfer monies to APL, when its
loans against the petitioner were still outstanding. Mr. Nayar
has also relied on the judgment of the Supreme Court in S.J.S.
Business Enterprises (P) Ltd v. State of Bihar5, to contend that
suppression could be alleged only if material facts were
concealed.
(ii) The availability or adequacy of the securities, provided in
respect of the loans advanced by IHFL to APIPL and its co-
borrowers, could not detract from the right of IHFL to seek,
under Section 9, securing of the obligation of APIPL to repay
the loan. Reliance was placed, in this context, on S. Nazeer
Ahmed v. State Bank of Mysore6, Bihar State Electricity
Board v. Gaya Cotton & Jute Mills Ltd7and China & South
Sea Bank Ltd v. Tan8.
(iii) APIPL could not be allowed to pay creditors of other
companies, including those of APL, before liquidating its dues
to its own creditor, i.e. IHFL.
(iv) The amounts received in the Escrow Account had been
duly adjusted while issuing the Loan Recall Notices dated 5 th
January, 2021.
5 (2004) 7 SCC 166
6 (2007) 11 SCC 75
7 1976 SCC OnLine Pat 66
8 (1989) 3 All ER 839
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(v) The security of ₹ 4563 crores, cited by APIPL, was
common security for all loans advanced by IHFL to the
Ambience group, which were 34 in number, of which only 18
form subject matter of the present proceedings.
(vi) Besides, IHFL's right to recover the loan amounts from
APIPL was independent of its right to proceed against the
securities.
(vii) Intervention had been sought, by IHFL, in the NCLT, in
his capacity as a creditor of APL, in respect of loans secured by
separate loan agreements. APIPL was, therefore, needlessly
seeking to confuse the two proceedings. That apart, the right to
move the Court under Section 9 co-existed with the remedies
available under Section 7 of the IBC.
Consideration and Analysis
21. Even as per IHFL, the primary cause of action, which prompted
it to approach this Court by way of the present proceedings under
Section 9 of the 1996 Act, was the order dated 18th January, 2021, of
the NCLAT, which permitted payments to be made in terms of the
Settlement MoU. This order, admittedly, stands stayed by the
Supreme Court, vide order dated 23rd February 2021 in Civil Appeal
Diary No 4231/2021 (renumbered, thereafter, as Civil Appeal
717/2021). Before proceeding further, it would be appropriate to
view, in perspective, therefore, the proceedings before the NCLT,
NCLAT and the Supreme Court.
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IBC proceedings
22. Section 7 of the IBC entitles any and all financial creditor(s) to
apply to the adjudicating authority - i.e. the NCLT - for initiating of
the CIRP against a corporate debtor when a default has occurred.
"Default" is defined, in clause (12) of Section 3, as "non-payment of
debt when whole or any part or instalment of the amount of debt has
become due and payable and is not paid by the debtor or the corporate
debtor, as the case may be".
23. In IB-1600/ND/2018, instituted by Vistra (as the Financial
Credit) against APL (as the Corporate Debtor) before the NCLT under
Section 7 of the IBC, Vistra pleaded that
(i) APL had approached the INDIAREIT Fund Scheme-IV
in 2011, representing that it had won a bid to acquire three land
parcels situated in Gurgaon,
(ii) in view of this representation, Vistra, as trustee to the
INDIAREIT Fund Scheme, executed a Share Subscription cum
shareholders agreement whereunder the INDIAREIT Fund
Scheme agreed to invest ₹ 134,95,61,340/- in APIPL, which
was a Special Purpose Vehicle (SPV) of APL, to fund the
construction and development of a residential and commercial
project,
(iii) after Vistra had already invested ₹ 200 crores in APIPL,
APL sought for additional funding, which resulted in disputes
between Vistra and APL in 2015,
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(iv) when the dispute could not be resolved, Vistra called
upon APL, on 6th September 2016, to repay the invested amount
of ₹ 200 crores with interest,
(v) the dispute was referred to conciliation, resulting in a
Settlement Agreement dated 7th April 2017 between APL and
Vistra, and
(vi) APL, however, defaulted in payment of the amounts
payable by it under the Settlement Agreement.
24. Accepting these pleas, and rejecting those advanced by APL in
opposition thereto, the NCLT, vide order dated 21st December 2020,
admitted the application of Vistra and appointed an Interim
Resolution Professional (IRP), to oversee the affairs of APL.
25. Company Appeal (AT) Insolvency No. 06 of 2021 was
preferred (referred to, hereinafter, as "Company Appeal 6/2021"),
against this order, by Raj Singh Gehlot, Director of APL and APIPL,
before the NCLAT.
26. During the pendency of the appeal, Vistra and Raj Singh
Gehlot, entered into the MoU on 14th January 2021, proposing
settlement of the dispute between Vistra and APL on the following
terms (the "parties" being Vistra and Raj Singh Gehlot):
"1. The Parties agree that the disputes between them can
be resolved if the Promoter and/or Ambience Projects &
Infrastructure Private Limited (SPV) agree and undertake to
make the Principal Outstanding sum of INR 135,00,00,000/-
(Rupees One Hundred and Thirty Five Crores) under the
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Settlement Agreement/Arbitral Award to Vistra ITCL in the
following manner:
a. INR 50 crores on the date of signing of the
present MoU (First Tranche Payment);
b. Transfer of a floor/apartment in an apartment
complex situated in Panchsheel Park, New Delhi-
110017 at measuring 500 sq. yds on or before 31
March 2021 in favour of Piramal Fund Management or
its nominee (said "Property")
c. The balance INR 85 crores on or before 31
March 2021 (Balance Payment).
2. The Promoter through Ambience Projects &
Infrastructure Private Limited (SPV) have accordingly caused
to deposit an amount of INR 50,00,00,000/- (Rupees Fifty
Crores), the first Tranche payment, on 14.01.2021 and
15.01.2021 by way of RTGS to the account of Vistra ITCL.
The said amount of INR 50 Crores shall be utilised by Vistra
ITCL towards
a. INR 43,85,43,110/- against redemption of
debentures issued by Ambience Projects &
Infrastructure Private Limited (SPV); and
b. INR 6,14,56,890/- against repayment of the
unsecured loans extended to Ambience Projects &
Infrastructure Private Limited (SPV).
3. In acknowledgement of the above payment terms set
out at Clause 1 and receipt of first Tranche Payment, Parties
agree to keep the Appeal pending before the Hon'ble NCLAT
in abeyance till the expiry of the Balance Payment., i.e.
31.03.2021, and also consents to make a joint request to the
Hon'ble NCLAT to stay the operation of the Order
21.12.2021[sic] till 31.03.2021 and adjourned the proceedings
to 01.04.2021 or any day thereafter subject to the convenience
of the Hon'ble NCLAT.
4. Parties agree and covenant that the present MoU is
signed on a without prejudice basis, Vistra ITCL shall have
the right to continue contesting the Appeal in the event the
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Balance Payment and conveyance of said Property is not
made on or before 31 March 2021. In the event, the Balance
Payment is not made on or before 31 March 2021 and the said
Property is not conveyed in favour of Piramal Fund
Management or its nominee on or before 31 March 2021, the
stay on the Order shall be vacated and it shall become
operated without any action on part of any of the Parties and
original Outstanding Amount (less the amount received under
this MoU) will be reinstated;
5. Vistra ITCL and Promoter, the Parties, hereby
expressly agree and covenant that upon successful completion
of the Balance Payment and conveyance of the said Property
in favour of the normal Fund Management or its nominee, the
present MoU shall have the effect of a full and final
settlement agreement of all claims of Vistra ITCL under the
Settlement Agreement/Arbitral Award. No. claim / demand /
due shall survive thereafter against any of Ambience Private
Limited and/or Ambience Projects & Infrastructure Private
Limited and/or the Promoter. Vistra ITCL shall, on
completion of the Balance Payment and conveyance of the
said Property in favour of Piramal Fund Management or its
nominee:
a. Return/transfer all Investor Securities and
Unsecured Loans to Promoter/Promoter Group Entities
The terms "Investor Securities" and "Unsecured
Loans" shall have the same meaning as assigned under
the Settlement Agreement/Arbitral Award;
b. Withdraw all claims, suits, execution and
proceedings in respect of the Settlement
Agreement/Arbitral Award including but not limited
to:
i. The Petition against Ambience Private
Limited CP (IB) 1600 of 2018;
ii. The Execution/Enforcement proceedings
filed by Vistra ITCL against Ambience Private
Limited, the Promoter and Ambience Projects
& Infrastructure Private Limited before the
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Hon'ble Delhi High Court in OMP (ENF.)
(Comm) 200/2019;
c. shall instruct its representatives,
lawyers/counsels to take appropriate steps/action
including making representation to the Courts,
NCLAT and NCLT to reflect the above commercial
understanding between the parties."
27. Consequent on the execution of the above MoU on 14th
January, 2021, the NCLAT passed the order, dated 18th January, 2021,
reproduced in para 11 supra which, according to IHFL, has
necessitated filing of the present petition, invoking Section 9 of the
1996 Act.
28. On the same day, i.e. 18th January, 2021, IHFL filed an
application, before the NCLT, against APIPL, under Section 7 of the
IBC. The case set out, in the said application, is identical to that set
out in the present petition under Section 9 of the 1996 Act. This is
apparent from the Synopsis filed with the application, which reads as
under:
"The Financial Creditor is a housing finance company
regulated by the National Housing Bank. The Financial
Creditor is India's second largest housing finance company
and provides housing finance including home loans.
During the period from November 2017 to June 2018, the
Financial Creditor entered into various loan agreements with
the Corporate Debtor and its group companies, under which it
provided financing to such entities for the construction and/or
development of housing/residential projects. The details of
the various credit facilities extended to the Corporate Debtor,
which are more particularly described in the Application are
summarized below:
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a. In November 2017, the Financial Creditor
entered into 2 loan agreements dated November 28,
2017 under which it agreed to provide loan facilities of
up. to Rs. 300 crores to the Corporate Debtor; and
b. In June 2018, the Financial Creditor entered into
a loan agreement dated June 29, 2018 under which it
agreed to provide loan facilities of up to Rs. 148 crores
to the Corporate Debtor and Rockstar Realty Private
Limited;
The aggregate loan amount sanctioned vide the above loan
agreements is Rs. 448,00,00,000 (Rupees Four Hundred and
Forty Eight Crores only) and the aggregate loan amount
disbursed is Rs. 327,25,00,000(Rupees Three Hundred
Twenty Seven Crore Twenty Five Lakhs Only).
The above loan facilities were secured by way of security,
personal guarantees as well as corporate guarantees issued by
the Corporate Debtor or its group companies.
In addition to the above loan agreements, the Financial
Creditor has extended other loan facilities to the Corporate
Debtor by way of other loan agreements. The aggregate
amount sanctioned under the abovementioned loan
agreements is Rs. 1135,86,92,800 (Rupees One Thousand
One Hundred and Thi1iy Five Crores Eighty Six Lakhs
Ninety Two Thousand Eight Hundred Only) whereas the
aggregate amount disbursed is Rs. 1000,11,92,800 (Rupees
One Thousand Crores Eleven Lakhs Ninety Two Thousand
Eight Hundred Only).
On December 13, 2018, a petition under Section 7 of the
Insolvency and Bankruptcy Code, 2016 ("Code") was filed
against one of the group companies/associate companies of
the Corporate Debtor, Ambience Private Limited ("APL") on
or around November 13, 2018 and was not withdrawn within
30 days of its filing. Accordingly, an Event of Default
occurred in terms of Clause 12.1.9(b) read with Clause 15 of
each of the Loan Agreements, and the outstanding amounts
under the Loan Agreements became due and payable.
Since the Event of Default continued to persist with the
commencement of insolvency resolution process against APL
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being ordered by the Hon'ble National Company Law
Tribunal by order dated December 21, 2020, the Financial
Creditor issued Loan Recall Notices dated January 5, 2021
under Clause 12.2 of each of the Loan Facilities to the
Corporate Debtor by courier and email recalling the Loans
and demanding payment within 7 days thereof.
The Corporate Debtor, and the co-borrowers, failed to make
payment of the outstanding amounts till date. Instead, on
January 12, 2021 , the Corporate Debtor and other group
companies of the Corporate Debtor issued a reply, denying
any liability to make payment of the outstanding amounts.
Therefore, another default occurred on January 12, 2021
when the Corporate Debtor failed to make payment of the
outstanding amounts. The outstanding principal amount and
interest as on January 16, 2021 are as follows:
Outstanding principal: Rs.292,35,01,216/- (Rupees Two
Hundred Ninety Two Crores Thirty Five Lakh One Thousand
Two Hundred and Sixteen Only)
Interest: Rs.10,67,77,891/- (Rupees Ten Crores Sixty Seven
Lakhs Seventy Seven Thousand Eight Hundred and Ninety
One Only).
Given the persistent default of the Corporate Debtor, the
Financial Creditor has strong reasons to believe that the
Corporate Debtor is not financially solvent, being unable to
pay its debts. Therefore, the Financial Creditor is filing the
present Application against the Corporate Debtor.
No effective orders have, however, been passed, by the NCLT, on this
application, till date.
29. Apart from this, IHFL filed 2 applications in Company Appeal
6/2021, preferred by Raj Singh Gehlot against Vistra. One application
sought permission for IHFL to implead itself in the appeal, and the
second application sought interim directions. It was specifically
averred, in the impleadment application, that APL had defaulted in
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payment of its dues to IHFL, following which IHFL had recalled all
loans extended to APL in terms of the loan agreements and that, after
having, thereafter, liquidated the loans for the months of August and
September, 2020, APL had taken defaulted in repayment of the loan
on 30th September 2020. In the applications seeking directions, para
12 read thus:
"The Applicant is seeking certain directions from this
Hon'ble Appellate Tribunal in respect of the January Order
since the Applicant apprehends that the Appellant may seek
setting aside/withdrawal of the corporate insolvency
resolution process already initiated against the Corporate
Debtor on the basis of the purely private settlement between
the Appellant and the Respondent No.1. This is clear from
the terms of the Settlement MoU, which are annexed with this
Application. The Appellant has already caused a group
company of the Corporate Debtor, Ambience Projects and
Infrastructure Private Limited ("APIPL") to make a payment
of INR 50 crores to the Respondent No.1 under the Settlement
MoU. It is submitted that APIPL is already defaulted on
payments to the Applicant, and any such payment would lead
to further defaults, affecting its liability to make payments to
the Applicant. Thus, the Applicant is being hit with a double
whammy, on account of the default of the Corporate Debtor
and that of APIPL (who defaults are being further
worsened)."
(Emphasis supplied)
Following on the above averments, the prayer clause, in the
application for directions, preferred by IHFL before the NCLAT in
Company Appeal 6 of 2021, read, inter alia, thus:
"In light of the facts and circumstances as stated hereinabove,
it is most respectfully prayed that this Hon'ble Appellate
Tribunal may be pleased to:
a. modify the order dated January 18, 2021 of this
Hon'ble Appellate Tribunal in the captioned Appeal to
omit/exclude the state granted in respect of the
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proceedings of the Committee of Creditors of the
Corporate Debtor;
*****
d. direct the Respondent No. 1 to return the
amounts already paid to it under the memorandum of
understanding dated January 14, 2021 between the
Appellant and the Respondent No. 1 ("Settlement
MoU") to Ambience Projects and Infrastructure
Private Limited and/or the Appellant..."
30. It is an admitted position that no substantial orders been passed,
by the NCLAT, in either of the above applications filed by IHFL
before it.
31. In the meanwhile, the Supreme Court, on 23rd February, 2021,
passed the order in Civil Appeal No. 717/2021, preferred by way of
challenge to the order dated 18th January, 2021 of the NCLAT,
reproduced in para 13 supra. The matter now stands adjourned, by
the Supreme Court, to 6th April, 2021 .
32. In view of the submission, of the respondent, that, with the
passing of the above order by the Supreme Court on 23 rd February
2021, the justification for seeking ad interim relief, by the petitioner,
did not survive, I had listed this matter on 15th March, and again on
19th March, 2021, on request of the Counsel for the parties, for
instructions as to whether they would prefer to await the outcome of
further proceedings in the Supreme Court. However, learned Counsel
for the petitioner requested the Court, on 19th March, 2021, to decide
the prayer for ad interim injunction.
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33. From the above sequence of proceedings in the NCLT, the
NCLAT and the Supreme Court, two issues arise; firstly, as to
whether the petitioner has been guilty of concealment, from this
Court, of material facts and, secondly, as to whether the filing of
applications, by the petitioner, before the NCLAT, for impleadment in
Company Appeal 6/2021, and for directions, restraining Vistra and
APL from enforcing the MoU dated 14th January, 2021, impacts the
maintainability of the present petition under Section 9 of the 1996
Act.
34. I am inclined to hold, on both the issues, in favour of the
petitioner and against the respondent.
35. On the first issue, I am not persuaded to agree with Mr.
Sandeep Sethi that there has been wilful or material concealment of
relevant facts, from this Court. While it is true that the petitioner has
not placed, on record, the applications, filed by it, in Company Appeal
6/2021 pending before the NCLAT, the fact of filing of the said
applications, and the prayers contained therein, have been candidly
disclosed in para 64 of the petition, already reproduced hereinabove.
No concealment of material facts can, therefore, be laid at the door of
the petitioner.
36. Qua the 2nd submission, regarding the impact, of the
proceedings in the NCLT and NCLAT, on the present petition, I am
unable to agree with the submission, of Mr. Nayar and Mr. Singh, that
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the applications, filed by IHFL in Company Appeal 6/2021 imperil, in
any manner, the present petition under Section 9 of the 1996 Act. No
authority, supporting such a proposition, has been brought to my
notice. Mr. Nayar and Mr. Singh have submitted, categorically, that
IHFL was entitled, in law, to simultaneously prosecute its applications
before the NCLAT in Company Appeal 6/2021, and the present
proceedings under Section 9 of the 1996 Act. This, to me, appears to
be an unexceptionable proposition. Indeed, it was necessary for IHFL
to, in the first instance, seek vacation of the order dated 18th January,
2021, of the NCLAT, before approaching this Court by the present
petition under Section 9. Else, a legitimate objection could have been
raised to the effect that, having accepted the order dated 18th January,
2021, IHFL was estopped from moving this Court, seeking directions
which would effectively interfere with the said order, thereby
accepting the order before one forum and questioning the order before
another. The order dated 18th January, 2021 having been passed by
the NCLAT, IHFL, as an entity claiming to have been affected,
adversely, by the said order, therefore, justifiably moved the NCLAT,
seeking impleadment in the proceedings and vacation of the order.
(When I use the word "justifiably", I do not intend to pronounce on
the merits of IHFL's application before the NCLAT, which would
have to be appreciated and addressed by the NCLAT itself.)
37. The remedy under Section 9 of the 1996 Act is sui generis, and
is intended to afford interim protection, against arbitral proceedings
being frustrated. That remedy is available to any party to an
arbitration agreement, and cannot be denied on the ground that,
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seeking relief which would result in the same consequence, the party
had moved the NCLAT. Besides, the nature of the two proceedings
are entirely different. The application of IHFL, before the NCLAT, is
for vacation of the order, dated 18th January, 2021 and, consequently,
for a direction, to Vistra and APL, not to act on the MoU dated 14th
January, 2021. The application before this Court is for interim
protection, on the ground that arbitrable disputes has arisen between
the parties and that, if APIPL were to make payments to APL, in
accordance with the MoU dated 14th January, 2021, it would render
APIPL incapable of honouring any award, which may come to be
passed in favour of IHFL at a subsequent point of time. The mere fact
that, in either case, IHFL is effectively seeking an interdiction against
implementation of the MoU dated 14th January, 2021, cannot non-suit
IHFL, in the present proceedings, which are, clearly, otherwise
maintainable in law.
38. The case of IHFL, before me, is that the MoU dated 14 th
January, 2021, if implemented, might adversely affect the ability of
APIPL to liquidate its debt to IHFL, which might, in turn, frustrate the
arbitral exercise. For this, Section 9 of the 1996 Act (or Section 17,
once the arbitral proceedings commence), is unquestionably the
provision to be invoked. The order, dated 18th January, 2021, of the
NCLAT, adjourned the proceedings to enable the parties to proceed in
accordance with the MoU. Variation, modification or vacation of this
direction had to be necessarily sought either before the NCLAT itself,
or in appeal. Both remedies have been availed by IHFL. That cannot,
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however, disentitle the petitioner to prosecute its cause under Section
9 of the 1996 Act.
39. The submission of Mr. Sethi that, by the present proceedings,
IHFL is abusing the legal process, and is effectively seeking to
interfere with the order dated 18th January, 2021, of the NCLAT is,
therefore, prima facie misconceived. In fact, the order dated 18th
January, 2021 merely adjourns the proceedings, recording the fact that
the MoU, dated 14th January, 2021, stood executed, as well as the
manner in which payments were to be made under the said MoU.
IHFL, as a member of the Committee of Creditors of APL has,
however, been disentitled, by the NCLAT, from participating in the
said exercise, and the grievance of IHFL, in that regard, cannot be
characterised as misconceived. Even for this reason, too, therefore,
IHFL cannot be faulted for having moved the present petition, before
this Court, invoking its jurisdiction under section 9 of the 1996 Act.
40. The present petition is not, therefore, prima facie, rendered
non-maintainable, because of the proceedings pending in the NCLAT,
or the participation of IHFL therein. Even so, those proceedings do
impact the entitlement, of the petitioner, to relief in the present
petition, as the discussion hereinafter would disclose.
41. This Court has, in its earlier decisions in Avantha Holdings
Limited v. Vistra ITCL India Ltd9, observed that, apart from the
existence of a prima facie case, balance of convenience and
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irreparable injury, the applicant seeking injunctive relief under
Section 9 of the 1996 Act has also to necessarily establish that, were
such a relief not to be granted, the arbitral proceedings would stand
frustrated. In the case of a pure money claim, as in the present
instance, therefore, it is not enough for the Section 9 applicant to say:
"The respondent owes me money. The dispute is arbitrable. Please
secure the amount or grant other protective interim directions."
Rather, he would have to say: "The respondent owes me money. In
case interim protection is not granted, my claim would stand
frustrated, even before I could obtain relief under Section 17, from the
Arbitral Tribunal. Interim protection is, therefore, necessary, so that
the arbitral proceedings are not rendered futile."
42. Has IHFL bridged this chasm?
43. Admittedly, even as per the averments in the petition, the
"apprehension" of the petitioner is based on the developments in the
Section 7 proceedings, initiated by Vistra against APL in the NCLT.
According to the petitioner - and as per the submissions orally
advanced by Mr.Nayar and Mr. Maninder Singh - the execution of the
MoU on 14th January, 2021, and the passing of the order, by the
NCLAT on 18th January, 2021, justify the prayer for interim
protection, under Section 9 of the 1996 Act. The specific averment in
this regard, to be found in Para 61 of the petition is that "if the
resources of (APIPL) are utilised to make payments to Vistra ITCL
(India) Ltd or other creditors of group companies of the Respondent
No. 1, it would grossly undermine the ability of the Respondent No. 1
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to make payments to the Petitioner under the Loan Agreements, which
it is contractually obliged to do." Para 62 goes on to voice the
apprehension that "similarly the assets of the Respondent Nos. 12-26
which have been provided as security in terms of the Loan
Agreements are at risk of being sold off/transferred/alienated or
encumbered for the purpose of making payments under the Settlement
MoU or otherwise towards other debt obligations of (APIPL) all the
obligations of the group companies of the Ambience group or their
directors, promoters or personal/corporate guarantors" and that "if this
happens, the petitioner will not be able to recover the amounts due
and payable to it by the Respondent Nos 1-11 and the arbitration
proceedings to be commenced by the Petitioner against the
Respondents shall be rendered infructuous as a result."
44. To my mind, on the face of it, these assertions are woefully
insufficient to maintain a prayer for interim protection, under Section
9 of the 1996 Act. No particulars, of the manner in which the making
of payments, to Vistra, by APIPL, would "grossly undermine the
ability" of APIPL to make payments to IHFL, are forthcoming. No
basis for the "apprehension" that the assets of Respondents 12 to 26
are at the risk of being sold off/transferred/alienated is, either,
provided in the petition. (This aspect is, strictly speaking, not relevant
for the present order, as Mr. Nayar restricted his prayer for ad interim
relief to a restraint, against APIPL, from making payments to APL or
to any other creditors or group companies.) How, even if payments
were to be made by APIPL to APL, or to Vistra, towards satisfaction
of the MoU dated 14th January, 2021, the arbitral proceedings relating
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to the present dispute would be rendered infructuous, is also not
apparent either from the pleadings or from the material placed on
record. There is no averment, in the petition, that, if APIPL were to
make further payments to APL, or to Vistra, it would be rendered
financially incapable of liquidating its debts towards IHFL -
assuming, that is, that these dues are found to be payable in the
arbitral proceedings, which are yet to commence.
45. While it is true that, in a given case, Section 9 of the 1996 Act
may be invoked even on a mere apprehension, that apprehension has
to be real and substantial. It is always necessary for the Court to bear
in mind the fact that the 1996 Act is intended to promote the arbitral
institution, and the arbitral process, and not to enable courts to give
interlocutory injunctions, even before arbitral proceedings commence,
save and except in the rare and deserving cases. It is only, therefore,
where it is practically, or otherwise, impossible to obtain succour from
the arbitral process that, even prior to the process being set into
motion, the Court affords "interim protection". The importance of the
use of the word "protection", in Section 9, cannot be undermined.
The intent of the provision is to protect the party to the arbitration
agreement, who intends to invoke the agreement, from frustration of
its claim, even before the arbitral Tribunal is able to address itself to
it. Where, therefore, no case, manifesting such urgency, as would
require the Court to step in at any incipient stage, even before the
arbitral process is set in motion, is made out, no relief can be provided
to the Section 9 applicant.
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46. This Court has, in its judgement in Avantha Holdings9,
observed thus, in this context:
24. Section 9 of the 1996 Act contemplates "interim measures,
etc.", by the Court. The expression "etc.", used at the end of a
definition clause has been held, in several decisions, to be required
to be interpreted noscitur a sociis and ejusdem generis (the latter
principle applying where the words, preceding the word "etc.",
constituted a genus, and the former principle applying more
universally, in all cases), the words preceding it.1 Measures, put in
place by the Court, in exercise of the jurisdiction vested by Section 9
has, therefore, to be in the nature of "interim measures". "Interim
reliefs", held the Bombay High Court in Bank of Maharashtra v. M.
v. River Oghese10 AIR 1990 Bom 107, "are granted to serve the
temporary purpose of protecting the plaintiff's interest so that the suit
is not frustrated".
25. The Court, while exercising its power under Section 9 of the
1996 Act, has to be acutely conscious of the power, vested in the
arbitrator/arbitral tribunal, by Section 17 of the same Act. A reading
of Section 9, and Section 17, of the 1996 Act, reveals that they are
identically worded. The "interim measures", which can be ordered
by the arbitral tribunal, under Section 17, are the very same as those
which can be ordered by the Court under Section 9. It is for this
reason that sub-section (3) of Section 9 proscribes grant of interim
measures, by the Court, consequent on constitution of the arbitral
tribunal, save and except where the Court finds that circumstances
exist, which may not render the remedy, under Section 17, to be
efficacious. The Court, while exercising jurisdiction under Section 9,
even at a pre-arbitration stage, cannot, therefore, usurp the
jurisdiction which would, otherwise, be vested in the arbitrator, or
the arbitral tribunal, yet to be constituted. The Court is also required
to ensure that Section 9 is not employed, by litigants, who feel that it
is easier to obtain interim relief from a Court, rather than from an
arbitrator or arbitral tribunal, to forum shop. Left unchecked, Section
9 is easily amenable to such misuse. While, in an appropriate case,
the Court must not hesitate in ordering "interim measures", under
Section 9, in judging whether a particular case is "appropriate" or
not, the Court is required to do some tightrope walking. While the
principles, to be borne in mind, while examining whether a case for
ordering interim measures, under Section 9, exists or not, the same
as those which govern Order 39 of the Civil Procedure Code, 1908,
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i.e. the existence of a prima facie case, the balance of convenience
and the possibility of irreparable loss or prejudice, were interim
relief not to be granted, apart from the consideration of public
interest, evolved by later decisions, chiefly in Ramniklal N. Bhutta
v. State of Maharashtra11 and Raunaq International Ltd. v. I.V.R.
Construction Ltd.12.
26. That said, the mere satisfaction of these criteria does not, ipso
facto, make out a case for ordering interim measures under Section
9. Additionally, the Court is also required to satisfy itself that the
relief, being sought under Section 9, cannot await the constitution of
the arbitral tribunal, or the appointment of the arbitrator, and the
invocation, before such arbitrator or arbitral tribunal, of Section 17.
Emergent necessity, of ordering interim measures is, therefore, an
additional sine qua non, to be satisfied before the Court proceeds to
grant relief under Section 9 of the 1996 Act. While passing orders
under Section 9, therefore, the Court is required to satisfy itself that
(i) the applicant, before it, manifestly intends to initiate arbitral
proceedings2, (ii) the criteria for grant of interim injunction, which
apply to Order 39 of the CPC, stands satisfied, and (iii)
circumstances also exist, which renders the requirement of ordering
interim measures an emergent necessity, which cannot await a
Section 17 proceeding, before the arbitrator, or arbitral tribunal. In
assessing whether such an emergent necessity exists, or not, the
Court would, essentially, have to satisfy itself that failure to order
interim measures, under Section 9, would frustrate, or would render
the recourse, to arbitration - which is yet to take place - futility.
Referring, thereafter, to the judgements of the Supreme Court in
Adhunik Steels v. Orissa Manganese & Minerals (P) Ltd13, Arvind
Constructions v. Kalinga Mining Corporation14, Firm Ashok
Traders v. Gurmukh Das Saluja15 and of this Court in Olex Facas
Pvt Ltd v. Skoda Export Co. Ltd16, the judgement goes on to hold
thus:
11 (1997) 1 SCC 134
12 (1999) 1 SCC 492
13 (2007) 7 SCC 125
14 (2007) 6 SCC 798
15 (2004) 3 SCC 155
16 AIR 2000 Del 161
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The categories of "interim measures", which could be
directed under Section 9, stand specifically delineated in the
provision itself. The Court can, under Section 9(i) appoint a
guardian for the purposes of arbitral proceedings, (ii) direct
preservation, interim custody or sale of the goods which are
subject matter of the arbitration agreement, (iii) secure the
amount in dispute in the arbitration, (iv) direct detention,
preservation or inspection of any property or thing which is
the subject matter of dispute in arbitration, or as to a breach
any question may arise therein, (v) grant interim injunction or
appoint a receiver and (vi) grant such other interim measure
of protection as may appear to the court to be just and
convenient. The ambit of sub-clause (ii)(e) of sub-section (1)
of Section 9, which empowers the Court to grant "such other
interim measure of protection as may appear to the court to be
just and convenient"-specifically the ambit of the expression
"just and convenient"-constitutes subject matter of the
following enunciation of the law, by Banumathi, J. (as she
then was), speaking for the High Court of Madras, in V.
Sekar v. Akash Housing17:
"The purpose of Section 9 is to provide an interim
measure of protection to the parties to prevent the ends
of justice from being defeated. Section 9(2)(e) vests
the Court with the power to grant such interim
measures of protection as may be just and convenient.
The jurisdiction under the "just and convenient" clause
is quite while in amplitude, but must be exercised with
restraint. Interim measures are to be granted by the
Court so as to protect the rights in adjudication before
the arbitral tribunal from being frustrated. It does not
allow the Coach the discretion to exercise on
restrained powers and frustrate the very object of
arbitration."
47. The case set out in the petition, and persuasively vocalized
before me by learned Senior Counsel, even at its highest, cannot, in
my view, make out a case for pre-arbitral interlocutory interdiction
under Section 9 of the 1996 Act, being based, as it is, entirely on
Signature Not Verified AIR 2011 Mad 110 : (2011) 3 Arb LR 327 (DB)
Digitally Signed
Signing Date:23.03.2021
15:38:16
presumption, conjecture, and apprehensions devoid of requisite
factual support.
48. In fact, the very basis of the premise, in the present case,
appears to be misconceived. Repeated emphasis was made, during
arguments, that APIPL should not be allowed to make any payment to
anyone, including its group companies and other creditors, before it
liquidates the debt due to IHFL.
49. There are, in my view, two fundamental fallacies in the
submission. Firstly, there is, as on date, no debt due from APIPL to
IHFL. At best, IHFL only has a claim against APIPL. That claim
cannot be equated with a debt simplicitor. The entitlement, of IHFL,
to the amount claimed is, admittedly, dependent on IHFL succeeding
in its stand that APIPL had committed Events of Default under the
Loan Agreements. APIPL, for its part, denies the allegation. I am
unable to concur with Mr. Nayar, when he submits that, in the
communication dated 12th January, 2021, in response to the Loan
Recall Notices issued by IHFL, APIPL admitted the occurrence of the
Events of Default. The mere comment, in the said communication,
that IHFL could have exercised its option in August 2019, when the
CIRP was ordered to be initiated cannot, in my view, be read as an
unequivocal admission, by APIPL, of the occurrence of any Event of
Default. No case, therefore, for any direction, to IHFL, to prioritise
the said claim over all other payments which it may seek to make to
any other entity, can be said to exist. At this stage, it cannot be
presumed that the claim of IHFL would necessarily succeed. The
Signature Not Verified
Digitally Signed
Signing Date:23.03.2021
15:38:16
claim is, in any event, inchoate, and cannot, therefore, be accorded
greater priority over other payment which APIPL may seek to make to
any other creditor or its own group companies.
50. Secondly, the law does not recognise any such concept of
"priority of debts", where the creditors are private parties. There is no
principle, known to law, which can compel APIPL to liquidate, in the
first instance, the debt due to IHFL - assuming, arguendo, that any
such debt exists - before making any payment to any other party.
Learned Senior Counsel for the petitioner have not been able to draw
my attention to any decision, enunciating such a principle. It is not as
though APIPL is prioritizing unsecured, over secured, debts. No such
case has, moreover, been either pleaded or pressed before me. I find
substance, in the submission of Mr. Sandeep Sethi, that, in the
absence of any covenant in any of the Loan Agreements requiring
APIPL to refrain from making payments to any other entity before it
liquidates the claims of IHFL, it is for APIPL to decide how to
manage its financial affairs. Section 9 of the 1996 Act cannot be used
as a vehicle to impose, on a private commercial entity, a mandamus,
regarding the manner in which it should deal with its monies. Nor can
it be used, in my view, as a basis for any direction, to a party, to
prioritise one debt over another. All that can be done under Section 9,
is to grant interim protection, subject to the Section 9 applicant
making out a case that, were such protection not to be granted, its
claim may be frustrated at a later point of time. At the cost of
repetition, it merits emphasis that IHFL has not placed once scintilla
of material, on record, from which the Court could draw the inference
Signature Not Verified
Digitally Signed
Signing Date:23.03.2021
15:38:16
that, were APIPL to effect payments under the MoU dated 14th
January, 2021, the claim of IHFL against APIPL would stand the
danger of being frustrated. A mere apprehension is expressed in that
regard. That, however, in my view, is insufficient to galvanize
Section 9 of the 1996 Act into action.
51. Mr. Sethi has, moreover, pointed out those securities, in the
form of immovable property, valued in excess of ₹ 4563 crores, stood
provided by Respondents 12 to 26. This, submits Mr. Sethi, is far in
excess of IHFL's exposure in the present case which, even as per the
petitioner, was in the region of ₹ 1327 crores. The interests of the
petitioner, therefore, submits Mr Sethi, stand more than adequately
secured. In response, all that Mr. Nayar has submitted is that the
security of ₹ 4563 crores was in respect of all loans advanced to the
Ambience group. The petitioner has itself provided, with the petition,
a tabular representation of the various securities provided, against the
loans advanced by IHFL (Annexure A to this judgement). When one
works out, from the said tabular statement, values of the securities,
provided against each of the loans, the following position emerges:
Date of Borrowers Loan Amount Total
Agreement (₹) Amount
with respect
to security
furnished
(in ₹ crores)
28th November, (1) APIPL 165,00,00,000 1760
2018 +1662.50
+807.18
Signature Not Verified
Digitally Signed
Signing Date:23.03.2021
15:38:16
(2) Raj Singh Gehlot +168.20
(3) Rockstar Buildcon +109.97
Pvt Ltd = 4507.85
28th November, (1) APIPL 20,54,00,000 1760
2018 +1662.50
+807.18
(2) Raj Singh Gehlot +168.20
(3) Vijeta Properties +109.97
Pvt Ltd = 4507.85
28th November, (1) APIPL 154,46,00,000 1760
2018 +1662.50
+807.18
(2) Raj Singh Gehlot +168.20
(3) Vijeta Properties +109.97
Pvt Ltd = 4507.85
28th November, APIPL 245,00,00,000 1760
2018 +1662.50
+807.18
+168.20
+109.97
= 4507.85
28th November, APIPL 55,00,00,000 1760
2018 +1662.50
+807.18
+168.20
+109.97
= 4507.85
29th June, 2018 (1) APIPL 148,00,00,000 1760
+1662.50
+807.18
(2) Rockstar Realty Pvt +168.20
Ltd +109.97
= 4507.85
28th November, (1) APIPL 25,10,86,600 1760
2018 +1662.50
+807.18
(2) Hitech Towers Pvt +168.20
Ltd +109.97
= 4507.85
Signature Not Verified
Digitally Signed
Signing Date:23.03.2021
15:38:16
28th November, (1) APIPL 25,10,86,600 1760
2018 +1662.50
+807.18
(2) Rockstar Realty Pvt +168.20
Ltd +109.97
= 4507.85
28th November, (1) APIPL 25,10,86,600 1760
2018 +1662.50
+807.18
(2) Caitriona Towers +168.20
Pvt Ltd +109.97
= 4507.85
28th November, (1) APIPL 25,10,86,600 1760
2018 +1662.50
(2) Bigboss Realty Pvt +807.18
Ltd +168.20
+109.97
= 4507.85
28th November, (1) APIPL 25,10,86,600 1760
2018 +1662.50
+807.18
(2) Greentech +168.20
Colonizers Pvt Ltd +109.97
= 4507.85
28th November, (1) APIPL 25,10,86,600 1760
2018 +1662.50
+807.18
(2) SupervalleyBuildte +168.20
ch Pvt Ltd +109.97
= 4507.85
11th September, (1) APIPL 95,00,00,000 1760
2020 +1662.50
+807.18
(2) Rockstar Realty Pvt +168.20
Ltd +109.97
= 4507.85
28th November, (1) APIPL 25,10,86,600 1760
2018 +807.18
(2) Master Buildwell +168.20
Pvt Ltd +109.97
= 2845.35
Signature Not Verified
Digitally Signed
Signing Date:23.03.2021
15:38:16
28th November, (1) APIPL 25,10,86,600 1760
2018 +807.18
(2) Ambience Power +168.20
Projects Pvt Ltd +109.97
= 2845.35
29th June, 2018 (1) APIPL 14,25,00,000 1760
+1662.50
+807.18
+168.20
(2) Bigboss Realty Pvt +109.97
Ltd +55.44
+55.44
= 4618.73
11th September, (1) APIPL 180,00,00,000 1760
2020 +1662.50
+807.18
+168.20
(2) Bigboss Realty Pvt +109.97
Ltd = 4507.85
11th September, (1) APIPL 170,00,00,000 1760
2020 +1662.50
+807.18
(2) Hitech Towers Pvt +168.20
Ltd +109.97
= 4507.85
52. It is apparent, from a bare glance at the above table, that each of
the loans, advanced by IHFL to APIPL and its co-borrowers, stands
secured by securities valued far in excess of the loan amounts. The
mere fact that each security may secure more than one loan does not
detract from the fact that all loans stand adequately secured. IHFL
has not chosen to aver, or contend, that the values of the securities
have diminished in any manner. For that matter, no plea, that the
securities are insufficient, either, figures, either in the pleadings or in
the arguments addressed at the bar. This, additionally, serves to
Signature Not Verified
discountenance the "apprehension", expressed by IHFL, that, were
Digitally Signed
Signing Date:23.03.2021
15:38:16
interim protection, as prayed, not granted, the arbitral proceedings
may stand frustrated.
53. Learned Senior Counsel Mr. Nayar and Mr. Maninder Singh
pressed, into service, the principle that the right of the creditor, to
proceed against the principal debtor, and the
pledgors/guarantors/obligors, is independent. As a proposition of law,
there is no gainsaying this legal position. As such, contends learned
Senior Counsel, the existence of adequate securities, pledged by
Respondents 12 to 26, is no fetter to the right of IHFL to proceed
against APIPL, or seek protective measures against APIPL, qua the
amounts owed by it to IHFL.
54. This submission, in my view, really begs the issue, and
proceeds by overlooking the fundamental position that Section 9 of
the 1996 Act is not a provision for recovery of amounts due to the
applicant. The question is not, therefore, whether the rights of IHFL,
to proceed against APIPL, and against the other entities who have
provided securities for the loans advanced to APIPL, exist
independently, or not. What has to be seen is whether, when the loans
advanced to APIPL stand more than sufficiently secured by the
securities provided against the said loans, even if by third parties, a
situation justifying pre-arbitral interim measures of protection, within
the meaning of Section 9 of the 1996 Act, can be said to exist. In my
view, the answer has necessarily to be in the negative.
Signature Not Verified
Digitally Signed
Signing Date:23.03.2021
15:38:16
55. In view of the above, it is not necessary for this Court, at least
at this ad interim stage, to enter into the issue of whether any Event of
Default had, or had not, been committed by APIPL. Ideally, this is an
aspect which would have to be considered by the Arbitral Tribunal, to
be constituted in accordance with the Loan Agreements. Suffice it to
state that the ad interim request, of IHFL, for a restraint, against
APIPL, from making any payments, to its group companies or any
other entity, till it liquidates the amount forming subject matter of the
claim of IHFL against APIPL, cannot, prima facie, be granted.
Conclusion
56. The prayer for ad interim relief is accordingly rejected.
57. Issue notice in OMP (I) (Comm) 29/2021. As the dispute
involves stakes in excess of ₹ 500 crores, it requires to be decided
expeditiously. Response, therefore, be positively filed within four
weeks with advance copy to learned Counsel for the petitioner, who
may file rejoinder, thereto, within two weeks thereof. List as the first
item for disposal at the end of the board, subject to part heard matters,
if any, on 10th May, 2021.
58. No extension of time, for filing reply or rejoinder, would be
granted, and default in compliance with the above time lines would
result in forfeiture of the right to do so.
Signature Not Verified
Digitally Signed
Signing Date:23.03.2021
15:38:16
59. Observations contained in this order are intended only to
dispose of prayer (e), for ad interim relief in terms of prayers (c) and
(d) (as was pressed during arguments by learned Senior Counsel).
They do not propose to express any final opinion on any of the other
prayers in the petition, or even on the entitlement of the petitioner, at
the stage of final hearing of the Section 9 petition, to the reliefs sought
therein.
C. HARI SHANKAR, J.
MARCH 23, 2021
HJ
Signature Not Verified
Digitally Signed
Signing Date:23.03.2021
15:38:16
15:38:16
Signing Date:23.03.2021
ANNEXURE - A 1549
By:SUNIL SINGH NEGI
Digitally Signed
Signature Not Verified
Whether the security has
been provided in respect of
No Security Date of security Particulars of security Estimated
Security Provider Loan agreements in respect of which the security has been provided other loan of Ambience
. document document provided value
group companies with
Indiabulls
1. Loan Agreement dated 11.09.2020 between Bigboss Realty Private
Limited ,
Ambience Projects and Infrastructure Private Limited and IHFL for an
aggregate amount of INR 180 Cr
2. Loan Agreement dated 11.09.2020 between HITECH TOWERS
Ambience Projects and Project Creacions on Land
DOH:- PRIVATE LIMITED, appx Rs 1760
1 DOH Infrastructure Private admeasuring 14.82 Acre Yes
30/09/2020 Ambience Projects and Infrastructure Private Limited and IHFL for an Cr.
Limited situated at Sec -22 Gurgaon`
aggregate amount of INR 170
3. Loan Agreement dated 11.09.2020 between Rockstar Realty Private
Limited,
Ambience Projects and Infrastructure Private Limited and IHFL for an
aggregate amount of INR 95
1. Loan Agreement dated 28.11.2018 between Rockstar Buildcon Private
Limited and IHFL for an aggregate amount of INR 165 Cr
2. Loan Agreement dated 28.11.2018 between Vijeta Properties Private
Limited and IHFL for an aggregate amount of INR 154.46 Cr
3. Loan Agreement dated 28.11.2018 between Vijeta Properties Private
Limited and IHFL for an aggregate amount of INR 20.54 Cr
4. Loan Agreement dated 28.11.2017 between APIPL and IHFL for an
Ambience Projects and Project Creacions on Land
DOH:- aggregate amount of INR 245 Cr appx Rs 1760
2 DOH Infrastructure Private admeasuring 14.82 Acre Yes
30/09/2020 5. Loan Agreement dated 28.11.2017 between APIPL and IHFL for an Cr.
Limited situated at Sec -22 Gurgaon`
aggregate amount of INR 55 Cr
6. Loan Agreement dated 29.06.2018 between Rockstar Realty Private
Limited, APIPL and IHFL for an aggregate amount of INR 148 Cr
7.Loan Agreement dated 29.06.2018 between Bigboss Realty Private
Limited ,
Ambience Projects and Infrastructure Private Limited and IHFL for an
aggregate amount of INR 150 Cr (Further reduced to Rs.14.25 Cr
15:38:16
Signing Date:23.03.2021
By:SUNIL SINGH NEGI
Digitally Signed
Signature Not Verified
1.Loan Agreement dated 28.11.2018 between Rockstar Realty Private
Limited, APIPL and ICFL ( Further assigned to IHFL) for an aggregate
amount of INR 25 Cr.
2. .Loan Agreement dated 28.11.2018 between Caitriona Towers Private
Limited, APIPL and ICFL ( Further assigned to IHFL) for an aggregate
amount of INR 25 Cr.
3..Loan Agreement dated 28.11.2018 between Greentech Colonizers
Private Limited, APIPL and ICFL ( Further assigned to IHFL) for an
aggregate amount of INR 25 Cr.
4..Loan Agreement dated 28.11.2018 between Supervalley Buildtech
Private Limited, APIPL and ICFL ( Further assigned to IHFL) for an
Ambience Projects and Project Creacions on Land
DOH:- aggregate amount of INR 25 Cr. appx Rs 1760
3 DOH Infrastructure Private admeasuring 14.82 Acre Yes
23/07/2020 5..Loan Agreement dated 28.11.2018 between Supervalley Buildtech Cr.
Limited situated at Sec -22 Gurgaon`
Private Limited, APIPL and ICFL ( Further assigned to IHFL) for an
aggregate amount of INR 25 Cr.
6..Loan Agreement dated 28.11.2018 between Hitech Towers Private
Limited, APIPL and ICFL ( Further assigned to IHFL) for an aggregate
amount of INR 25 Cr.
7..Loan Agreement dated 28.11.2018 between Master Buildwell Private
Limited, APIPL and ICFL ( Further assigned to IHFL) for an aggregate
amount of INR 25 Cr.
8.Loan Agreement dated 28.11.2018 between Ambience Power Projects
Private Limited, APIPL and ICFL ( Further assigned to IHFL) for an
aggregate amount of INR 25 Cr
1. Loan Agreement dated 28.11.2018 between Rockstar Buildcon Private
Limited and IHFL for an aggregate amount of INR 165 Cr
2. Loan Agreement dated 28.11.2018 between Vijeta Properties Private
Limited and IHFL for an aggregate amount of INR 154.46 Cr
3. Loan Agreement dated 28.11.2018 between Vijeta Properties Private
D&A:- Limited and IHFL for an aggregate amount of INR 20.54 Cr
26/06/2019 Land admeasuring 16.62 Acres 4. Loan Agreement dated 28.11.2017 between APIPL and IHFL for an
DOH:- Prime Commercial Private situated in the revenue estate of aggregate amount of INR 245 Cr
4 DOH, D&A, MO 1662.50 Cr Yes
25/06/2019 Limted Village Nathupur, Tehsil & 5. Loan Agreement dated 28.11.2017 between APIPL and IHFL for an
MOE:- District Gurgaon, Haryana aggregate amount of INR 55 Cr
26/06/2019 6. Loan Agreement dated 29.06.2018 between Rockstar Realty Private
Limited, APIPL and IHFL for an aggregate amount of INR 148 Cr
7.Loan Agreement dated 29.06.2018 between Bigboss Realty Private
Limited ,
Ambience Projects and Infrastructure Private Limited and IHFL for an
aggregate amount of INR 150 Cr (Further reduced to Rs.14.25 Cr
15:38:16
Signing Date:23.03.2021
By:SUNIL SINGH NEGI
Digitally Signed
Signature Not Verified
1.Loan Agreement dated 28.11.2018 between Rockstar Realty Private
Limited, APIPL and ICFL ( Further assigned to IHFL) for an aggregate
amount of INR 25 Cr.
2. .Loan Agreement dated 28.11.2018 between Caitriona Towers Private
Limited, APIPL and ICFL ( Further assigned to IHFL) for an aggregate
amount of INR 25 Cr.
D&A:-
3..Loan Agreement dated 28.11.2018 between Greentech Colonizers
24/07/2020 Land admeasuring 16.62 Acres
Private Limited, APIPL and ICFL ( Further assigned to IHFL) for an
DOH:- Prime Commercial Private situated in the revenue estate of
5 DOH, D&A, MO aggregate amount of INR 25 Cr. 1662.50 Cr Yes
23/07/2020 Limted Village Nathupur, Tehsil &
4..Loan Agreement dated 28.11.2018 between Supervalley Buildtech
MOE:- District Gurgaon, Haryana
Private Limited, APIPL and ICFL ( Further assigned to IHFL) for an
24/07/2020
aggregate amount of INR 25 Cr.
5..Loan Agreement dated 28.11.2018 between Supervalley Buildtech
Private Limited, APIPL and ICFL ( Further assigned to IHFL) for an
aggregate amount of INR 25 Cr.
6..Loan Agreement dated 28.11.2018 between Hitech Towers Private
Limited APIPL and ICFL ( Further assigned to IHFL) for an aggregate
1. Loan Agreement dated 11.09.2020 between Bigboss Realty Private
Limited ,
Ambience Projects and Infrastructure Private Limited and IHFL for an
D&A:- aggregate amount of INR 180 Cr
01/10/2020 Land admeasuring 16.62 Acres 2. Loan Agreement dated 11.09.2020 between HITECH TOWERS
DOH:- Prime Commercial Private situated in the revenue estate of PRIVATE LIMITED,
6 DOH, D&A, MO 1662.50 Cr Yes
30/09/2020 Limted Village Nathupur, Tehsil & Ambience Projects and Infrastructure Private Limited and IHFL for an
MOE:- District Gurgaon, Haryana aggregate amount of INR 170
01/10/2020 3. Loan Agreement dated 11.09.2020 between Rockstar Realty Private
Limited,
Ambience Projects and Infrastructure Private Limited and IHFL for an
aggregate amount of INR 95
1. Loan Agreement dated 11.09.2020 between Bigboss Realty Private
Limited ,
Ambience Projects and Infrastructure Private Limited and IHFL for an
D&A:- aggregate amount of INR 180 Cr
Land admeasuring 5.1501
01/10/2020 2. Loan Agreement dated 11.09.2020 between HITECH TOWERS
Acres and 5.31 Acre situated in
DOH:- RSG Housing & Finance PRIVATE LIMITED,
7 DOH, D&A, MO the revenue estate of Village 807.18 Cr Yes
30/09/2020 Private Limited Ambience Projects and Infrastructure Private Limited and IHFL for an
Nathupur, Tehsil Gurugram,
MOE:- aggregate amount of INR 170
Haryana
01/10/2020 3. Loan Agreement dated 11.09.2020 between Rockstar Realty Private
Limited,
Ambience Projects and Infrastructure Private Limited and IHFL for an
aggregate amount of INR 95
15:38:16
Signing Date:23.03.2021
By:SUNIL SINGH NEGI
Digitally Signed
Signature Not Verified
1.Loan Agreement dated 28.11.2018 between Rockstar Realty Private
Limited, APIPL and ICFL ( Further assigned to IHFL) for an aggregate
amount of INR 25 Cr.
2. .Loan Agreement dated 28.11.2018 between Caitriona Towers Private
Limited, APIPL and ICFL ( Further assigned to IHFL) for an aggregate
amount of INR 25 Cr.
3..Loan Agreement dated 28.11.2018 between Greentech Colonizers
Private Limited, APIPL and ICFL ( Further assigned to IHFL) for an
aggregate amount of INR 25 Cr.
D&A:- 4..Loan Agreement dated 28.11.2018 between Supervalley Buildtech
Land admeasuring 5.1501
24/07/2020, Private Limited, APIPL and ICFL ( Further assigned to IHFL) for an
Acres and 5.31 Acre situated in
DOH:- RSG Housing & Finance aggregate amount of INR 25 Cr.
8 DOH, D&A, MO the revenue estate of Village 807.18 Cr Yes
23/07/2020 , Private Limited 5..Loan Agreement dated 28.11.2018 between Supervalley Buildtech
Nathupur, Tehsil Gurugram,
MOE:- Private Limited, APIPL and ICFL ( Further assigned to IHFL) for an
Haryana
24/07/2020, aggregate amount of INR 25 Cr.
6..Loan Agreement dated 28.11.2018 between Hitech Towers Private
Limited, APIPL and ICFL ( Further assigned to IHFL) for an aggregate
amount of INR 25 Cr.
7..Loan Agreement dated 28.11.2018 between Master Buildwell Private
Limited, APIPL and ICFL ( Further assigned to IHFL) for an aggregate
amount of INR 25 Cr.
8.Loan Agreement dated 28.11.2018 between Ambience Power Projects
Private Limited, APIPL and ICFL ( Further assigned to IHFL) for an
aggregate amount of INR 25 Cr
1. Loan Agreement dated 28.11.2018 between Rockstar Buildcon Private
Limited and IHFL for an aggregate amount of INR 165 Cr
2. Loan Agreement dated 28.11.2018 between Vijeta Properties Private
Limited and IHFL for an aggregate amount of INR 154.46 Cr
3. Loan Agreement dated 28.11.2018 between Vijeta Properties Private
D&A:- Limited and IHFL for an aggregate amount of INR 20.54 Cr
Land admeasuring 5.1501
26/06/2019 4. Loan Agreement dated 28.11.2017 between APIPL and IHFL for an
Acres and 5.31 Acre situated in
DOH:- RSG Housing & Finance aggregate amount of INR 245 Cr
9 DOH, D&A, MO the revenue estate of Village 807.18 Cr Yes
25/06/2019 Private Limited 5. Loan Agreement dated 28.11.2017 between APIPL and IHFL for an
Nathupur, Tehsil Gurugram,
MOE:- aggregate amount of INR 55 Cr
Haryana
26/06/2019 6. Loan Agreement dated 29.06.2018 between Rockstar Realty Private
Limited, APIPL and IHFL for an aggregate amount of INR 148 Cr
7.Loan Agreement dated 29.06.2018 between Bigboss Realty Private
Limited ,
Ambience Projects and Infrastructure Private Limited and IHFL for an
aggregate amount of INR 150 Cr (Further reduced to Rs.14.25 Cr
15:38:16
Signing Date:23.03.2021
By:SUNIL SINGH NEGI
Digitally Signed
Signature Not Verified
1. Loan Agreement dated 11.09.2020 between Bigboss Realty Private
Limited ,
Ambience Projects and Infrastructure Private Limited and IHFL for an
D&A:- aggregate amount of INR 180 Cr
Land measuring 3.9937 and
01/10/2020, 2. Loan Agreement dated 11.09.2020 between HITECH TOWERS
Ambience Infrastructure 3.6562 Acres situated in the
DOH:- PRIVATE LIMITED,
10 DOH, D&A, MO Developers Private revenue estate of Village 168.20 Cr Yes
30/09/2020 Ambience Projects and Infrastructure Private Limited and IHFL for an
Limited Lakhnaula(Nakhnoula), Sector
MOE:- aggregate amount of INR 170
82, District Gurgaon, Haryana
01/10/2020 3. Loan Agreement dated 11.09.2020 between Rockstar Realty Private
Limited,
Ambience Projects and Infrastructure Private Limited and IHFL for an
aggregate amount of INR 95
1. Loan Agreement dated 28.11.2018 between Rockstar Buildcon Private
Limited and IHFL for an aggregate amount of INR 165 Cr
2. Loan Agreement dated 28.11.2018 between Vijeta Properties Private
Limited and IHFL for an aggregate amount of INR 154.46 Cr
3. Loan Agreement dated 28.11.2018 between Vijeta Properties Private
D&A:- Limited and IHFL for an aggregate amount of INR 20.54 Cr
Land measuring 3.9937 and
06/10/2020 4. Loan Agreement dated 28.11.2017 between APIPL and IHFL for an
Ambience Infrastructure 3.6562 Acres situated in the
DOH:- aggregate amount of INR 245 Cr
11 DOH, D&A, MO Developers Private revenue estate of Village 168.20 Cr Yes
05/10/2020 5. Loan Agreement dated 28.11.2017 between APIPL and IHFL for an
Limited Lakhnaula(Nakhnoula), Sector
MOE:- aggregate amount of INR 55 Cr
82, District Gurgaon, Haryana
06/10/2020 6. Loan Agreement dated 29.06.2018 between Rockstar Realty Private
Limited, APIPL and IHFL for an aggregate amount of INR 148 Cr
7.Loan Agreement dated 29.06.2018 between Bigboss Realty Private
Limited ,
Ambience Projects and Infrastructure Private Limited and IHFL for an
aggregate amount of INR 150 Cr (Further reduced to Rs.14.25 Cr )
15:38:16
Signing Date:23.03.2021
By:SUNIL SINGH NEGI
Digitally Signed
Signature Not Verified
1.Loan Agreement dated 28.11.2018 between Rockstar Realty Private
Limited, APIPL and ICFL ( Further assigned to IHFL) for an aggregate
amount of INR 25 Cr.
2. .Loan Agreement dated 28.11.2018 between Caitriona Towers Private
Limited, APIPL and ICFL ( Further assigned to IHFL) for an aggregate
amount of INR 25 Cr.
3..Loan Agreement dated 28.11.2018 between Greentech Colonizers
Private Limited, APIPL and ICFL ( Further assigned to IHFL) for an
aggregate amount of INR 25 Cr.
D&A:- 4..Loan Agreement dated 28.11.2018 between Supervalley Buildtech
Land measuring 3.9937 and
06/10/2020 Private Limited, APIPL and ICFL ( Further assigned to IHFL) for an
Ambience Infrastructure 3.6562 Acres situated in the
DOH:- aggregate amount of INR 25 Cr.
12 DOH, D&A, MO Developers Private revenue estate of Village 168.20 Cr Yes
05/10/2020 5..Loan Agreement dated 28.11.2018 between Supervalley Buildtech
Limited Lakhnaula(Nakhnoula), Sector
MOE:- Private Limited, APIPL and ICFL ( Further assigned to IHFL) for an
82, District Gurgaon, Haryana
06/10/2020 aggregate amount of INR 25 Cr.
6..Loan Agreement dated 28.11.2018 between Hitech Towers Private
Limited, APIPL and ICFL ( Further assigned to IHFL) for an aggregate
amount of INR 25 Cr.
7..Loan Agreement dated 28.11.2018 between Master Buildwell Private
Limited, APIPL and ICFL ( Further assigned to IHFL) for an aggregate
amount of INR 25 Cr.
8.Loan Agreement dated 28.11.2018 between Ambience Power Projects
Private Limited, APIPL and ICFL ( Further assigned to IHFL) for an
aggregate amount of INR 25 Cr
1. Loan Agreement dated 11.09.2020 between Bigboss Realty Private
Limited ,
Ambience Projects and Infrastructure Private Limited and IHFL for an
D&A:- aggregate amount of INR 180 Cr
Land admeasuring 22 Kanals
01/10/2020 2. Loan Agreement dated 11.09.2020 between HITECH TOWERS
and 1 Marla (i.e 2.75625 Acres)
DOH:- Rockstar Infratech Private PRIVATE LIMITED,
13 DOH, D&A, MO situated in the village 109.97 Cr Yes
30/09/2020 Limited Ambience Projects and Infrastructure Private Limited and IHFL for an
Mullahera, Tehsil and District
MOE:- aggregate amount of INR 170
Gurugram , Haryana,
01/10/2020 3. Loan Agreement dated 11.09.2020 between Rockstar Realty Private
Limited,
Ambience Projects and Infrastructure Private Limited and IHFL for an
aggregate amount of INR 95
15:38:16
Signing Date:23.03.2021
By:SUNIL SINGH NEGI
Digitally Signed
Signature Not Verified
1. Loan Agreement dated 28.11.2018 between Rockstar Buildcon Private
Limited and IHFL for an aggregate amount of INR 165 Cr
2. Loan Agreement dated 28.11.2018 between Vijeta Properties Private
Limited and IHFL for an aggregate amount of INR 154.46 Cr
3. Loan Agreement dated 28.11.2018 between Vijeta Properties Private
D&A:- Limited and IHFL for an aggregate amount of INR 20.54 Cr
Land admeasuring 22 Kanals
06/10/2020 4. Loan Agreement dated 28.11.2017 between APIPL and IHFL for an
and 1 Marla (i.e 2.75625 Acres)
DOH:- Rockstar Infratech Private aggregate amount of INR 245 Cr
14 DOH, D&A, MO situated in the village 109.97 Cr Yes
05/10/2020 Limited 5. Loan Agreement dated 28.11.2017 between APIPL and IHFL for an
Mullahera, Tehsil and District
MOE:- aggregate amount of INR 55 Cr
Gurugram , Haryana,
06/10/2020 6. Loan Agreement dated 29.06.2018 between Rockstar Realty Private
Limited, APIPL and IHFL for an aggregate amount of INR 148 Cr
7.Loan Agreement dated 29.06.2018 between Bigboss Realty Private
Limited ,
Ambience Projects and Infrastructure Private Limited and IHFL for an
aggregate amount of INR 150 Cr (Further reduced to Rs.14.25 Cr )
1.Loan Agreement dated 28.11.2018 between Rockstar Realty Private
Limited, APIPL and ICFL ( Further assigned to IHFL) for an aggregate
amount of INR 25 Cr.
2. .Loan Agreement dated 28.11.2018 between Caitriona Towers Private
Limited, APIPL and ICFL ( Further assigned to IHFL) for an aggregate
amount of INR 25 Cr.
3..Loan Agreement dated 28.11.2018 between Greentech Colonizers
Private Limited, APIPL and ICFL ( Further assigned to IHFL) for an
aggregate amount of INR 25 Cr.
D&A:- 4..Loan Agreement dated 28.11.2018 between Supervalley Buildtech
Land admeasuring 22 Kanals
06/10/2020 Private Limited, APIPL and ICFL ( Further assigned to IHFL) for an
and 1 Marla (i.e 2.75625 Acres)
DOH:- Rockstar Infratech Private aggregate amount of INR 25 Cr.
15 DOH, D&A, MO situated in the village 109.97 Cr Yes
05/10/2020 Limited 5..Loan Agreement dated 28.11.2018 between Supervalley Buildtech
Mullahera, Tehsil and District
MOE:- Private Limited, APIPL and ICFL ( Further assigned to IHFL) for an
Gurugram , Haryana,
06/10/2020 aggregate amount of INR 25 Cr.
6..Loan Agreement dated 28.11.2018 between Hitech Towers Private
Limited, APIPL and ICFL ( Further assigned to IHFL) for an aggregate
amount of INR 25 Cr.
7..Loan Agreement dated 28.11.2018 between Master Buildwell Private
Limited, APIPL and ICFL ( Further assigned to IHFL) for an aggregate
amount of INR 25 Cr.
8.Loan Agreement dated 28.11.2018 between Ambience Power Projects
Private Limited, APIPL and ICFL ( Further assigned to IHFL) for an
aggregate amount of INR 25 Cr
15:38:16
Signing Date:23.03.2021
By:SUNIL SINGH NEGI
Digitally Signed
Signature Not Verified
D&A:-24-07- land Admeasuring 15.74 acres
2020 situated in Village Akbarpur
1.Loan Agreement dated 29.06.2018 between Bigboss Realty Private
DOH:- 23-07- Barota and Jathedi, Tehsil &
Armaan Buildcon Private Limited ,
16 DOH, D&A, MO2020 Distt. Sonepat, Haryana No
Limited Ambience Projects and Infrastructure Private Limited and IHFL for an
MOE:-24-07- owned by M/s. Armaan
aggregate amount of INR 150 Cr (Further reduced to Rs.14.25 Cr )
2020 Buildcon Private Limited
55.44 Cr
D&A:-24-07- Land admeasuring 12.54 acre
2020 situated in situated in Village
1.Loan Agreement dated 29.06.2018 between Bigboss Realty Private
DOH:- 23-07- Akbarpur Barota and Jathedi,
Greenvalley Realtors Limited ,
17 DOH, D&A, MO2020 Tehsil & Distt. Sonepat, No
Private Limited Ambience Projects and Infrastructure Private Limited and IHFL for an
MOE:-24-07- Haryana
aggregate amount of INR 150 Cr (Further reduced to Rs.14.25 Cr )
2020 owned by M/s. Greenvalley
Realtors Private Limited.
1. Loan Agreement dated 28.11.2018 between Rockstar Buildcon Private
Limited and IHFL for an aggregate amount of INR 165 Cr
2. Loan Agreement dated 28.11.2018 between Vijeta Properties Private
Limited and IHFL for an aggregate amount of INR 154.46 Cr
3. Loan Agreement dated 28.11.2018 between Vijeta Properties Private
Limited and IHFL for an aggregate amount of INR 20.54 Cr
4. Loan Agreement dated 28.11.2017 between APIPL and IHFL for an
aggregate amount of INR 245 Cr
5. Loan Agreement dated 28.11.2017 between APIPL and IHFL for an
aggregate amount of INR 55 Cr
Pledge on shares of Pledge on shares of Rockstar
6. Loan Agreement dated 29.06.2018 between Rockstar Realty Private
Rockstar Infratech Private Infratech Private Limited held
Limited, APIPL and IHFL for an aggregate amount of INR 148 Cr
18 Pledge Agreemen30-09-2020 Limited held by Shekhar by Shekhar SIngh and Surender N.a Yes
7.Loan Agreement dated 29.06.2018 between Bigboss Realty Private
SIngh and Surender Singh Singh
Limited ,
Ambience Projects and Infrastructure Private Limited and IHFL for an
aggregate amount of INR 150 Cr (Further reduced to Rs.14.25 Cr )
8. Loan Agreement dated 11.09.2020 between Bigboss Realty Private
Limited ,
Ambience Projects and Infrastructure Private Limited and IHFL for an
aggregate amount of INR 180 Cr
9. Loan Agreement dated 11.09.2020 between HITECH TOWERS
PRIVATE LIMITED,
Ambience Projects and Infrastructure Private Limited and IHFL for an
aggregate amount of INR 170
15:38:16
Signing Date:23.03.2021
By:SUNIL SINGH NEGI
Digitally Signed
Signature Not Verified
1. Loan Agreement dated 28.11.2018 between Rockstar Buildcon Private
Limited and IHFL for an aggregate amount of INR 165 Cr
2. Loan Agreement dated 28.11.2018 between Vijeta Properties Private
Limited and IHFL for an aggregate amount of INR 154.46 Cr
3. Loan Agreement dated 28.11.2018 between Vijeta Properties Private
Pledge on shares of Limited and IHFL for an aggregate amount of INR 20.54 Cr
Ambience Infrastruture 4. Loan Agreement dated 28.11.2017 between APIPL and IHFL for an
Pledge on shares of Ambience
Developers Private aggregate amount of INR 245 Cr
Infrastruture Developers Private
Limited held by Surbhi 5. Loan Agreement dated 28.11.2017 between APIPL and IHFL for an
Limited held by Surbhi
Gehlot,Sheela Gehlot aggregate amount of INR 55 Cr
Gehlot,Sheela Gehlot ,Shahista
,Shahista Gehlot , M/s. 6. Loan Agreement dated 29.06.2018 between Rockstar Realty Private
Gehlot , M/s. Aman Holdings
Aman Holdings Private Limited, APIPL and IHFL for an aggregate amount of INR 148 Cr
19 Pledge Agreemen30-09-2020 Private Limited ,M/s. Aman N.a Yes
Limited ,M/s. Aman 7.Loan Agreement dated 29.06.2018 between Bigboss Realty Private
Growth Funds Private
Growth Funds Private Limited ,
Limited,M/s. Nutan Growth
Limited,M/s. Nutan Ambience Projects and Infrastructure Private Limited and IHFL for an
Funds Private Limited and M/s.
Growth Funds Private aggregate amount of INR 150 Cr (Further reduced to Rs.14.25 Cr )
Rajsheela Growth Funds
Limited and M/s. 8. Loan Agreement dated 11.09.2020 between Bigboss Realty Private
Private Limited
Rajsheela Growth Funds Limited ,
Private Limited Ambience Projects and Infrastructure Private Limited and IHFL for an
aggregate amount of INR 180 Cr
9. Loan Agreement dated 11.09.2020 between HITECH TOWERS
PRIVATE LIMITED,
Ambience Projects and Infrastructure Private Limited and IHFL for an
aggregate amount of INR 170
15:38:16
Signing Date:23.03.2021
By:SUNIL SINGH NEGI
Digitally Signed
Signature Not Verified
1. Loan Agreement dated 28.11.2018 between Rockstar Buildcon Private
Limited and IHFL for an aggregate amount of INR 165 Cr
2. Loan Agreement dated 28.11.2018 between Vijeta Properties Private
Limited and IHFL for an aggregate amount of INR 154.46 Cr
3. Loan Agreement dated 28.11.2018 between Vijeta Properties Private
Limited and IHFL for an aggregate amount of INR 20.54 Cr
4. Loan Agreement dated 28.11.2017 between APIPL and IHFL for an
aggregate amount of INR 245 Cr
5. Loan Agreement dated 28.11.2017 between APIPL and IHFL for an
aggregate amount of INR 55 Cr
Pledge on 51% shares of Pledge on 51% shares of 6. Loan Agreement dated 29.06.2018 between Rockstar Realty Private
APIPL held by M/s. APIPL held by M/s. Ambience Limited, APIPL and IHFL for an aggregate amount of INR 148 Cr
20 Pledge Agreemen30-09-2020 N.a Yes
Ambience Private Limited Private Limited and Mr. Raj 7.Loan Agreement dated 29.06.2018 between Bigboss Realty Private
and Mr. Raj Singh Gehlot Singh Gehlot Limited ,
Ambience Projects and Infrastructure Private Limited and IHFL for an
aggregate amount of INR 150 Cr (Further reduced to Rs.14.25 Cr )
8. Loan Agreement dated 11.09.2020 between Bigboss Realty Private
Limited ,
Ambience Projects and Infrastructure Private Limited and IHFL for an
aggregate amount of INR 180 Cr
9. Loan Agreement dated 11.09.2020 between HITECH TOWERS
PRIVATE LIMITED,
Ambience Projects and Infrastructure Private Limited and IHFL for an
aggregate amount of INR 170
Pledge on shares of
Greenvalley Realtors
Pledge on shares of Greenvalley
Private Limited held by
Realtors Private Limited held
Surbhi Gehlot,Sheela
by Surbhi Gehlot,Sheela Gehlot
Gehlot ,Shahista Gehlot ,
,Shahista Gehlot , M/s. Aman 1.Loan Agreement dated 29.06.2018 between Bigboss Realty Private
M/s. Aman Holdings
Holdings Private Limited ,M/s. Limited ,
21 Pledge Agreemen27-07-2020 Private Limited ,M/s. N.a Yes
Aman Growth Funds Private Ambience Projects and Infrastructure Private Limited and IHFL for an
Aman Growth Funds
Limited,M/s. Nutan Growth aggregate amount of INR 150 Cr (Further reduced to Rs.14.25 Cr )
Private Limited,M/s.
Funds Private Limited and M/s.
Nutan Growth Funds
Rajsheela Growth Funds
Private Limited and M/s.
Private Limited
Rajsheela Growth Funds
Private Limited
15:38:16
Signing Date:23.03.2021
By:SUNIL SINGH NEGI
Digitally Signed
Signature Not Verified
Pledge on shares of
Armaan Buildcon Private
Pledge on shares of Armaan
Limited held by Surbhi
Buildcon Private Limited held
Gehlot,Sheela Gehlot
by Surbhi Gehlot,Sheela Gehlot
,Shahista Gehlot , M/s.
,Shahista Gehlot , M/s. Aman 1.Loan Agreement dated 29.06.2018 between Bigboss Realty Private
Aman Holdings Private
Holdings Private Limited ,M/s. Limited ,
22 Pledge Agreemen27-07-2020 Limited ,M/s. Aman N.a No
Aman Growth Funds Private Ambience Projects and Infrastructure Private Limited and IHFL for an
Growth Funds Private
Limited,M/s. Nutan Growth aggregate amount of INR 150 Cr (Further reduced to Rs.14.25 Cr )
Limited,M/s. Nutan
Funds Private Limited and M/s.
Growth Funds Private
Rajsheela Growth Funds
Limited and M/s.
Private Limited
Rajsheela Growth Funds
Private Limited
