TaxTMI 
TaxTMI 
2025 (8) TMI 338
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....f 2023 in CP No.40/2023. 2. The case of the appellants is as under: - a) Three companies i.e. M/s. Vardhman Roller Flour Mills Pvt. Ltd., M/s. Raj Sneh Auto India Pvt. Ltd. and M/s. Raj Sneh Wheels Pvt. Ltd. took a loan from Punjab National Bank. Since these companies defaulted in repayment of the loan and consequently, a notice under Section 13(2) of the SARFAESI was issued by the Bank and physical possession of the secured asset was taken over by the Bank in terms of Section 13(4) of the SARFAESl Act. Subsequently, various OTS proposals were exchanged between the management of the companies and the Punjab National Bank. b). On 28.09.2022 a combined OTS letter was issued by the Bank with the following terms: "The Highlights of the OTS are: i. Amount of Rs. 58.5 crore is to be paid by the borrower companies. ii. The NOC for sale of immovable properties mortgaged to the Bank shall be issued by the Bank and the entire sale consideration shall be deposited by the purchaser directly with the Bank. iii. A tripartite agreement will be executed between the borrower, prospective purchaser of the mortgaged property and the Bank and sa....
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....ble Delhi High Court vide order dated 17.05.2023 permitted the petitioner to approach the concerned Bank with a proposal and in that case, the Bank would consider the same in accordance with the law. Accordingly, the Bank vide letter dated 28.11.2023 revised the OTS dated 28.09.2022 with certain terms and conditions; k). the purchaser of the property in question i.e. 'Arihant Roller Flour Mills' assigned it's right under the Agreement to Sell dated 23.12.2022 to Hot`age India' and thereby the Hotage India became a prospective purchaser and was ready to deposit upfront amount of Rs. 7 Cores to the Bank; l) vide order dated 06.12.2023, the Hon'ble High Court of Delhi took note of the fact the matter has been amicably settled and the parties will abide by the terms and conditions of the OTS letter dated 28.11.2023 and dismissed the Writ Petition No. 103 of 2023 as withdrawn. m). the Applicant therefore has prayed that the order dated 28.02.2023 be modified so as to enable the Applicant to proceed with the sale of the property in question and give effect to the OTS letter dated 28.11.2023 by which the OTS was revived by the Bank; n). ....
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.... purchaser or for payment of Rs. 7 Crores to the Bank. 25. We, therefore, do not see any reason to modify our order dated 28.02.2023 to enable the Applicant to go ahead with the sale of the property in question and give effect to the OTS which according to our considered view, is not in the interest of the company. On the other hand, the Respondent has made an offer of Rs. 16.75 Crores as against the amount of Rs. 15.75 Crores towards the OTS with PNB. 26. Keeping in view, the interest of the company, we deem it appropriate that the Respondents who are majority shareholders of the Company should be given an opportunity to buy the property by paying Rs. 16.75 Crores. The Respondents are therefore directed to take necessary steps to deposit the said amount and give effect to the OTS within the stipulated time. 4. We have heard the arguments advanced by the learned counsels for the parties in both the appeals. Admittedly Respondent No.1 to 12 (Anil Jain/Manoj Gupta Group) are 52.66% shareholder of Vardhman Roller Flour Mills Pvt Ltd and Ashok Jain Group is holding 36.69% shareholding and balance shareholding of 7.65% is held by some other person(s). There were 14 ....
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....herein or by M/s Hotage India Ltd in any of the Board Meetings of M/s Vardhman (the company). 9. In the meanwhile OTS was entered into by Ashok Jain Group, appellant herein with PNB, allegedly without taking into confidence the majority shareholders viz Respondents No.1 to 12. It was in terms of this OTS dated 28.11.2023, M/s Hotage India was asked to deposit an amount of Rs.2 crores with PNB and on 01.12.2023 it was deposited. 10. Admittedly in the OTS letter dated 28.11.2023 issued by PNB it was the condition that a tripartite agreement shall be executed between M/s Vardhman, the prospective purchaser i.e. M/s Hotage India and the Bank and it shall be subject to the approval/permission of the Ld. NCLT. 11. Thus the main limb of argument of the Respondents No.1 to 12 is M/s Hotage India, per OTS dated 28.11.2023 was required to take permission from Ld. NCLT upon entering into any agreement with the appellant (Ashok Jain Group) for sale/purchase of the subject property of the company and such permission, admittedly was never obtained by M/s Hotage India, thus it had no vested right in subject property. Admittedly during the pendency of OTS; two writ petitions were filed (a....
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....t hands in glove with the appellant (Ashok Jain) or that Ashok Jain/the appellant No.1 did not allegedly disclose of the proceedings before the Ld. NCLT to M/s Hotage India. 16. It is to be noted while CA No.436/2023 filed by the Appellant No.1 for modification of order dated 23.02.2023 was pending, the Appellant No.1 parrallelly on 23.01.2024 had entered into an agreement to sell with M/s Hotage India without disclosing this fact to the Ld. NCLT and thus Respondents No.1 to 12 filed contempt petition No.7/2023 before Ld. Adjudicating Authority against the appellant (Ashok Jain Group), M/s Hotage India, M/s Arihant and PNB wherein notices were issued vide order dated 04.04.2024 and such contempt petition is still pending. Respondents No.1 to 12 had also filed an application under Section 340 CrPC before the High Court of Delhi viz Cr(Misc) Application No.22818/2024 against the appellants (Ashok Jain Group), M/s Arihant and PNB wherein also a notice has been issued by the Hon'ble High Court vide order dated 22.04.2024. 17. Interestingly on 09.02.2024 the appellant No.1, Ashok Jain Group, had stated they have no objection if Respondents No.1 to 12 deposit the entire amount of O....
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....le; c). the tripartite agreement dated 23.01.2024 executed between the Appellants was never a part of the record before the Ld NCLT, thus there was no occasion for the Ld. NCLT to modify it or amend it or pass any observation in relation to any such agreement; d). the OTS sanction letter dated 28.11.2023 clearly mentioned the settlement was subject to the permission of the Ld. NCLT. Admittedly, M/s Hotage India neither sought such permission nor participated in any of the proceedings before the Ld. NCLT; e). even the alleged Tripartite agreement dated 23.01.2024 was subject to an approval of the Ld. NCLT, which approval admittedly was never sought by the Appellant. Therefore, there is no question of any modification/termination of any agreement before the Ld. NCLT in terms of Section 242(2)(f) of the Companies Act, 2013, as no such agreement was ever placed by the appellants before the Ld.NCLT. Thus there was no occasion for the Ld. Tribunal to exercise its powers under Section 242(2)(f) of the Act, as alleged. 21. Now admittedly, in accordance with the OTS Sanction Letter dated 28.11.2023 and the Impugned Order dated 05.02.2024 of the Ld. NCLT; an amount of Rs. 15.75 crores has....