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2016 (5) TMI 884
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.... it may be noted that the facts in the aforesaid three appeals are substantially similar and that only the amounts in each appeal differs. The learned Single Judge, in the impugned order, has referred to the facts in Company Petition No. 31 of 2013, which is appeal No. 102 of 2015. 3. The respondents/original petitioners' case as disclosed in the company petitions broadly is as under : According to the respondents/original petitioners, the appellant companies were incorporated under the Companies Act, 1956 as Private Companies Ltd. by shares on 1st March, 2007, and that the main objects for which the said Companies were incorporated, were set out in the Memorandum of Association, in particular clauses (1) and (2) thereof. It is further stated that the said Companies were indebted to the respondents/original petitioners for various amounts i.e. Rs. 14,84,00,000/-, Rs. 24,80,00,000/- and Rs. 19,80,00,000/-, together with interest at the rate of 15% per annum from the period mentioned in the company petitions. According to the respondents/petitioners, at the request of the said appellant companies, short term loans by way of inter corporate deposits (ICDs) of Rs. 14,84,00,00....
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....ellant in Appeal No. 109 of 2015; and Neelkanth Devansh Developers Private Limited ("Neelkanth Devansh") - appellant in Appeal No. 100 of 2015 are, companies of the Neelkanth Group. The said Neelkanth Group is stated to comprise of certain companies and entities, engaged in particular, in real estate development all over India. The said Neelkanth Group is stated to be controlled by Mohan V. Patel and his family. 5. On the other hand, the Urban Infrastructure Venture Capital Limited ("UIVCL"), one of the several companies and entities, is described by the appellants as the "Urban Group". We may note here, that the said description of the "Urban Group" is not accepted by the respondents. The said Urban Group is stated to be controlled by Anand J. Jain and his associates. Since the appellants have used the terms "Urban Group" and "Neelkanth Group" to propound their case and to show that the respondent company is part of the "Urban Group", the same terms are being used in the present Judgment. As noted earlier, the reference to "Urban Group" are not accepted by the respondents and hence using the said terms in the Judgment will not, in any way, indicate that we have accepted the con....
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....ores, NMIPL repaid Vinamra Rs. 20 crores in February, 2007 and the balance amount of Rs. 60 crores which was due to Vinamra was repaid in February/March, 2010. In February and March, 2010, respondents-UIVCL, placed two ICDs of Rs. 36 crores and Rs. 23.44 crores (totalling to Rs. 59.44 crores) with NMIPL. 9. The fact that in March, 2010, NMIPL had an ICD of Rs. 59.44 crores from UIVCL, is not disputed. However, the appellants and the respondents have given different interpretation to the events and circumstances that have led to giving of these ICDs. The appellants' contention is that the investments of the so-called Urban Group were being recycled through various joint ventures or Neelkanth Group companies to suit the Urban Group. Whereas, the Urban Group contended that the ICDs were completely independent and had nothing to do with the share subscription commitments or realty investments. According to the respondents, the ICDs were unrelated to any investments made by the Urban Group's domestic and foreign funds and that the inter-corporate deposit agreements (`ICDAs') were stand alone documents, having no nexus between the deposits and the investments of the two fu....
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....the foreign fund) in Neelkanth Ricelands and Nilayami Realtors were going on simultaneously. However, according to the appellants, these disputes were related to the ICDAs, whereas, according to the respondents, the disputes were completely independent and unrelated in any way to the ICDAs. 12. The learned Single Judge by the impugned order held that the defence of the Appellants herein/original Respondents was neither bonafide nor substantial and came to the conclusion that the Company was under an obligation to pay its debts and ordered winding-up. He, however, gave a further opportunity to the Appellants to pay the amount due within fourteen weeks, failing which directed admission of Company Petitions. 13. Following questions fall for consideration before this Court:- (i) Whether, ICD Agreement is a subject matter of Arbitration in view of the Order dated 25/08/2015 passed by the Apex Court and the procedural order passed by the learned Single Arbitrator in the arbitration proceedings? (ii) Whether ICDs form part of the larger transaction of investment by the Urban Group in the joint venture business and therefore amounts under ICDs are payable only out o....
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....nd (e) Pass any such other or further orders and directions which this Hon'ble Court may deem just, fit and proper in the circumstances of the case and in the interests of justice and equity." (D) In the said application, initially, Respondents were not parties. Three months after the application was filed, on 04/02/2015 an application was taken out for impleadment of Respondents as proposed Respondent No.7. (E) Respondents filed affidavit-in-reply opposing the said impleadment on the ground that there was no arbitration agreement between the Respondents/original Petitioners and any of the applicants and, secondly, that the ICD Agreement was a separate, distinct and independent Inter Corporate Deposit Agreement which does not have the arbitration clause. The contention that the Respondents/Petitioners are members of the Urban Group was denied. (F) No order was passed on the impleadment application filed by the Appellants. (G) Respondent Nos. 1 and 2 in Arbitration Application No.12 of 2015 gave their consent for appointing Mr. Justice R.M. Lodha, a former Chief Justice of India as a sole arbitrator in respect of all agreements and in....
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....). The contention of the learned Senior Counsel for the Appellants is that the Respondents viz Urban Infrastructure Ventures Capital Ltd. (UIVCL) is a lead Company of the group which is known as Urban Group. According to him Respondents are part of the following Companies, Trusts, Funds and Entities viz. 1) Urban Infrastructure Real Estate Fund ("UIREF") 2) Urban Infrastructure Trustees Ltd. ("UITL") 3) Urban Infrastructure Venture Capital Fund ("UIVCF") 4) Urban Infrastructure Ventures Capital Ltd ("UIVCL") i.e. the Respondents herein. 5) Jai Corp. Ltd., ("Jai Corp") 6) Sharanya Trading Pvt. Ltd. ("Sharanya") 7) Dharti Investments and Holdings Pvt. Ltd. ("Dharti Investments") 8) Vinamra Universal Traders Pvt. Ltd. ("Vinamra Universal") 21. The case of the Appellants is that the Urban Group and Neelkanth Group are associated with one another since 2006-2007 for the purpose of carrying on the Real Estate Business through Special Purpose Vehicles (SPVs)/Joint Vehicles (JVs). According to the Appellants, Neelkanth Group was to bring the know-how at no cost and properties without revaluation and the Urban Group ....
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.... said submission, he relied on E-mails dated 24/03/2010, 25/03/2010, 26/03/2010 and 27/03/2010. He also relied on various additional affidavits filed by the Appellants, which showed that Respondents/Petitioners had knowledge of the said facts and had admitted the same. He took us through synopsis-cum-note which he tendered. He also showed various documents resulting in final appoint of Mr. Justice R.M. Lodha, a former Chief Justice of India as a sole arbitrator. 25. On the other hand, Dr. Tulzapurkar, the learned Counsel for the Respondents submitted that the contention of the Appellants that the ICDs form part of an integral part of the web of transactions is not borne out by any document. He submitted that this agreement of understanding was supposedly oral. He pointed out the entire history as to how ICDs came to be executed from paragraph 15 of the affidavit-in-rejoinder which is found at pages 391 to 394 of Vol-III of Appeal No.102/2015. He submitted that no reliance could be placed on the supplemental agreement since it was unexecuted and bears the endorsement "draft for discussion purposes only". Though it was stated that it was executed on 14/01/2012, in fact, it was not....
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....hareholders Agreements there is a reference to parties, which, in turn, includes the definition of the term "Affiliate'. It is obvious that the term 'Affiliate' is a defined term in relevant Shareholders Agreement and it cannot be read in isolation and, secondly, it has to be noted that Shareholders Agreement is not signed by the original Petitioners. In our view, therefore, there is no material on record to indicate that the ICDs were part of the larger web of transactions between the parties. Thirdly, the supplemental agreement is admittedly not executed. The agreement itself shows that it is only a draft for approval. There is no material on record to show that Respondents/original Petitioners were accepted as part of the Urban Group or as part of dispute resolution process. No reliance therefore can ever be placed on the supplemental agreement since it was not executed and signed by the Respondents/original Petitioners. The mediation proceedings before the Mediator do not make any reference to the ICDs. 28. Dr. Tulzapurkar, the learned Senior Counsel appearing on behalf of the Respondents/original Petitioners has relied upon two judgments of this Court; one in J.....
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....e to interfere with the said finding while exercising our appellate jurisdiction under Clause 15 of the Letters Patent Act. In our view, there was no suppression of fact by the Respondents/original Petitioners since the ICDs were separate and independent agreements. There was no occasion the Respondents/original Petitioners to mention the facts which, according to the Appellants, were allegedly suppressed. The question No.(ii) is therefore answered in the negative. 32. The third question which falls for consideration before this Court is as under:- (iii) Whether the impugned order directing the Company to pay a sum of Rs. 23,04,59,942/- amounts to a decree when the Company Court was not justified in passing the said Order? 33. The said submission of the Appellants is without any substance. The learned Single Judge in his order has clearly observed that he is not deciding the case on merits but having held that the defence of the Company is sham and bogus has given an opportunity to the Company to pay the amount, failing which the Company Petition would stand admitted. The learned Single Judge therefore has not passed any decree in favour of the Respondents/original P....