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HIGH COURT OF DELHI
SHIVAKRITI AGRO PVT. LTD. ..... Decree Holder
Through: Mr.Sanjeev Sindhwani, Sr.
Advocate with Mr.Lalit Gupta, Mr.Priyansh Jain, Mr.Gaurav
Sindhwani and Mr.Goutam Goyal, Advocates.
Through: Mr.Arvind Nigam, Sr. Advocate with Mr.O.P.Gaggar and
Mr.Sachindra Kam, Advocates for R-1 and 3.
Mr.Yashvardhan, Ms.Smita Kant, Ms.Kritika Nagpal, Mr.Gyanendra
Shukla and Mr.Akshay Gupta, Advocates for R2.
Mr.Apoorv Shukla, Mr.Puneet Chahar, Ms.Prabhleen A. Shukla and Mr.Abhishek Sinha, Advocates for R4.
JUDGMENT
1. This captioned petition is filed with the following prayers: a) Pass an appropriate order thereby detaining the Directors and/ or Principal Officers and/ or Designated Partners of the Respondent Nos. 1 & 4, as the case may be and Respondent Nos. 2 & 3 in civil prison; Signing Date:13.09.2023 16:37 b) Pass an appropriate order thereby issuing warrants of attachment of the movable and immovable property(ies)/ assets of the Respondents; c) Pass an appropriate order thereby suitably enforcing the interim injunction order dated 15.01.2022, passed by the Ld. Sole Arbitrator in the matter of arbitration proceedings between “Shivakriti Agro Pvt. Ltd. and Umaiza Infracon LLP and Ors.” read with previous orders dated 09.06.2021 and 09.12.2021, passed by this Hon’ble High Court in OMP (I) (COMM.) No. 180/2021, titled as “Shivakriti Agro (P) Ltd. Vs. Umaiza Infrcon LLP & Ors.”; d)Pass an appropriate order thereby appointing a District and Sessions Judge (Retd.) or any other appropriate person as receiver commissioner with appropriate directions to, forthwith and in a time bound manner, prepare inventory of the entire property(ies)/ asset(s), movable and immovable, of the Respondent Nos. 1 & 4 and to verify the same with the List of Fixed Assets of the Respondent NO. 4 filed with the present petition; e)Pass an appropriate order thereby directing the said receiver/ commissioner to take into custody, possession and management, those movable and immovable property(ies)/ assets of the Respondent Nos. 1 & 4, as are presently in custody and possession of the Respondent Nos. 1 & 4, and pass all ancillary and consequential directions for management, protection and preservation of the said movable and immovable property(ies)/ asset(s), during the pendency and till the final culmination of the arbitration proceedings; and. f) Pass any other and further order(s) as this Hon’ble Court may deem fit and proper in the facts and circumstances of the present case.
2. The learned senior counsel for decree holder refers to order dated 09.06.2021 passed in OMP (I) (COMM) No.180/2021which inter alia notes:-
9. In my view, a prima facie case is made out by the petitioner for grant of ad interim reliefs. Accordingly, till the next date of hearing, the respondents, their officers, employees, agents, associates, attorneys etc. or any other person claiming through the respondents, are restricted from: a) transferring, alienating, encumbering, or otherwise howsoever creating any third party interest in respect of any of the movable and/or immovable assets of the respondent Nos. 1 to 4, being subject matter of Facility Agreement dated 30th September, 2019; b) transferring, alienating, encumbering, or otherwise howsoever creating any third party interest in respect of any of the Securities of the respondent No.4 Company issued to and held by the respondent No. 1 described under the Facility Agreement dated 30th September, 2019; c) parting with possession to any third party and/or disturbing possession of the petitioner with regard to the Amritsar Unit and the Bahalgarh Unit of the respondent No.4 Company, as described in the Facility Agreement dated 30th September, 2019; d) dismantling any equipment/ machinery and/or from creating any other disturbance or hindrance in the day to day running of the Amritsar Unit and the Bahalgarh Unit of the respondent No.4 Company.
3. The orders dated 09.12.2021 and 15.01.2022 rather continue the order dated 09.06.2021.
4. Following relevant clauses of the facility agreement dated 30.09.2019 are as under:-
Yadav, had submitted a Resolution Plan dated 20th April 2019 (which, together with all relevant amendments made until 4th May, 2019 are together referred to as "Resolution Plan") and had become the successful Resolution Applicant;
Bench, at New Delhi ("NCLT") had, through its judgment delivered on 12th September 2019, approved the Resolution Plan on terms and conditions specified therein (herein "NCLT judgment");
5. The learned senior counsel for respondent No.1 herein referred to various clauses of the said facility agreement to say such right to purchase was to be exercised on or before 28.02.2020 unless extended by the petitioner and as there was no communication of the petitioner prior to 28.02.2020 to extend the date of right to purchase; such right to purchase stood extinguished and now the petitioner has right only to recover its dues, hence, petitioner cannot lay its claim on 26 acres of land now in possession of respondents No.1 to 4. It is alleged out of total 39 acres of land only 13 acres of land belong to Hello Division and 26 acres belong to Alishan Unit of respondents and facility agreement pertains only to Hello Division comprising of 13 acres of land and not the other units. It is alleged the petitioner were never in possession of entire 39 acres of land, hence respondents are not in contempt and in fact the respondents have never created any third party right in 26 acres of land.
6. I have heard the arguments advanced by the learned senior counsel for respondent No.1 and also perused the material on record.
7. Admittedly, the petitioner has extended a loan of Rs.146 Crores to respondents No.1 to 3 and a facility agreement dated 30.09.2019 was executed by the respondents in favour of the petitioner. As per the facility agreement dated 30.09.2019 the petitioner had a right to purchase the shares /securities held by the respondents No.1 to 3 in respondent No.4. Undisputedly, the amount of Rs.146 Crores have not been returned so far since September 2019. We are four years ahead. The petitioner is alleged to have exercised its right to purchase the shares/ securities etc and since respondents No.1 to 3 have been pleading the facility agreement dated 30.09.2019 is vague and a void agreement; and against the spirit of the resolution process and be not adhered to, hence the petitioner had filed a claim for specific performance of clause No.3.3.[1] of the facility agreement dated 30.09.2019, which claim is pending before the learned arbitrator.
8. It is the case of the petitioner it had exercised its right to purchase vide letter dated 20.05.2021 given to all the four respondents to the following extent:-
10. Our client, therefore, without prejudice to the other rights available to it under the Facility Agreement, and/or the contentions raised in the legal notice dated 10th March 2021, is constrained to hereby invoke the Purchase Right as defined in Clause 2.[9] and Clause 3 of the Facility Agreement, post extension of the Agreed Date therein. The said Purchase Right had in good faith been reserved so far by our client as mentioned in the legal notice dated 10th March 2021.
9. Besides this legal notice, various letters dated 10.09.2020; 23.11.2020; 12.01.2021; 22.02.2021; and 10.03.2021 qua purchase of the shares were also sent but none of such notice/letters were ever replied by the respondents and since there was a sudden spurt in electricity charges, the petitioner made investigation on its own and came to know 26 acres of land which was in occupation of the respondents have been taken over by a company M/s.K.K.Overseas, engaged in manufacturing of LED bulbs etc. and the land which was primarily meant for paddy mill is now being used as a factory for producing bulbs and other electrical appliances. It was argued the right to purchase exercised by the petitioner would rather bring the entire 39 acres of land to the kitty of the petitioner. Thus as per the case of the petitioner remaining 26 acres of land which was supposed to come to its share now is in the possession of some third party, engaged in manufacturing electrical items under the guise of a partnership firm, hence prays for an appointment of learned local commissioner to visit the property and find out the actual status of such land.
10. Admittedly, the petitioner is a lendor and the entire agreement was entered into to secure its interest and as alleged the terms of the agreement need to be interpreted in such context and options, if any, under the agreement were to be exercised only by the petitioner and by none else. Interestingly the respondents never raised any objection qua the forgiving of the right to purchase shares per clauses No.2.8, 2.9, 3.1, 3.1.[1] etc of the facility agreement dated 30.09.2019 either in its reply to petition under Section 9 of the Arbitration and Conciliation Act, 1996 or in response to the letters / legal notice sent by the petitioner to in this context.
11. Admittedly, the order dated 09.06.2021 imposes an injunction on the assets as are subject matter of the facility agreement dated 30.09.2019 and against dismantling of equipment, machinery and creating of disturbances / hindrances as also against the transferring or creating any third party interest in the movable and immovable assets of respondent No.4 – all being subject matter of the facility agreement dated 30.09.2019, hence encompasses 100% of the land at Bhalgarh. Admittedly, prayer of specific performance of clause No.3.3.[1] of the facility agreement dated 30.09.2019 is still pending before the learned arbitrator and if one looks at the job work agreement filed by respondent No.4 – it talks of manufacturing of electronic goods on the land in question and respondent No.4 is getting Rs.10.50 Lacs per month from a third party. The electricity connection of 1500 KWs was proposed to be obtained for running such factory, which prima facie shows some new person had entered the premises, primarily meant for paddy.
12. Thus, prima facie the entire land at Bahlagrah being within the purview of the facility agreement dated 30.09.2019 under which the right to purchase the shares of the petitioner is alleged exercised; whether rightly or wrongly is still to be considered by learned arbitrator, hence such land being within the ambit of an injunction order passed on 09.06.2021, needs to be protected.
13. The stand taken by respondents that the petitioner’s rights are only limited to 13 acres of Hello Division in possession of petitioner and order dated 09.06.21, though refers to Facility Agreement, did not grant any right to petitioner in any other portion other than 13 acres or no order referring to purchase right was passed, seems to be a frivolous stand taken by respondents. Upon invocation of purchase rights as provided in Facility Agreement, the existing interim restraint order, obviously pertains to all the assets, movable and immovable, of respondents.
14. Interestingly in response to the present petition, respondent no.4 has set up a plea of having entered into a Job Work Agreement dated 01.04.2021 with another party in Alishan Division, namely, M/s. Saakaar Casting. The said job work is claimed to be for manufacturing electronic goods. The subject property is a Rice Mill/Plant. The job work agreement filed with index dated 18.11.2022 conceals more than it reveals and clearly show an outsider in the premises. The reading of the Job Work Agreement show it is a document created to circumvent and defeat the rights of the petitioner. During pendency of present proceeding, petitioner filed a Section 9 application; requested it to be treated as Section 17(2) being O.M.P.(I) (COMM) 93/2023. In reply thereto, the requesting parties (R[1] & R[3]) interalia stated in para 4 they are using the boiler in Alishan Unit in “Partnership”. No details of the alleged partnership were given or stated nor any copy filed till date.
15. Compelled by the aforesaid reply and other circumstances, petitioner filed the application under consideration inter alia praying for appointment of local commissioner.
16. The stand of the respondents qua alleged Job Work Agreement or partnership, clearly shows there may be various third parties in the property, being subject matter of Facility Agreement and which properties are duly protected by an interim restraint order dated 09.06.2021. It is the case of the petitioner the existing restraint order have been violated with impunity and inter-alia third-party interests have been created and no honest disclosures or documents have been filed by the respondents, which allegations, prima facie, appears to be correct.
17. In the circumstances, there exist a need for appointment of local commissioner who should undertake the following tasks: a) inspect and verify the ownership and possession, including land survey and preparation of site plan, inspection of original title deeds of the land owned by M/s.Sunstar Overseas Limited located at 40 K.M. Milestone, G.T. Karnal Road, Bahalgarh, District-Sonipat, Haryana -131021. The said land ad-measures an area of 26 acres and is currently in possession of Umaiza/Sunstar Management; b) conduct videography and photography of the above premises during execution of local commission; c) prepare comprehensive inventory/ list of fixed and movable items at above premises ad-measuring 26 acres, presently in possession of Umaiza/ Sunstar; d) during execution of local commission, permission for breaking open of doors/ locks is also given to the local commissioner.
18. In the circumstances, Ms.Ina Malhotra, (Mobile No.9910384651) former District Judge is hereby appointed learned local commissioner to physically inspect the portion of Bahalgarh Unit, occupied by respondents so as to enquire about status of possession and regarding nature of activities being currently carried out at the portion of Bahalgarh unit, occupied by Respondents, having an area measuring around 26 Acres, situated at 40 KM Milestone, G.T. Karnal Road, Bahalgarh, Sonipat, Haryana-131021. The learned local commissioner should comply with para 17 above.
19. Considering the nature of work, the fees of the learned District Judge (Retd.) is fixed at Rs.[2] (Two) lacs, besides out of pocket and incidental expenses to be borne by the petitioner. The commission be executed upon issuance of due notice to both the parties who are expected to extend all cooperation for execution of the commission. The report of the commission shall be filed within two weeks after the execution.
20. The SHO concerned shall ensure to provide the protection to the learned Local Commissioner in case any need arises.
21. The application stands disposed in above terms.
22. The registry is directed to serve the copy of this order upon the learned Local Commissioner as well as the SHO concerned for compliance.
23. List on 15.12.2023.
YOGESH KHANNA, J. SEPTEMBER 13, 2023 M/DU