Delhi High Court - Orders
Morgan Securities & Credits Pvt. Ltd vs Ganesh Benzoplast Limited & Ors on 28 September, 2022
Author: V. Kameswar Rao
Bench: V. Kameswar Rao
$~41
* IN THE HIGH COURT OF DELHI AT NEW DELHI
EX.APPL.(OS) 3509/2022
in
+ OMP (ENF.) (COMM.) 108/2019
MORGAN SECURITIES & CREDITS PVT. LTD.
..... Decree Holder
Through: Mr. Abhishek Puri and Ms. Surbhi
Gupta, Advs.
versus
GANESH BENZOPLAST LIMITED & ORS.
..... Judgment Debtors
Through: Mr. Sandeep Sethi, Sr. Adv. with
Mr. Ashwani Kumar, Ms. Iti Sharma,
Mr. Kuljeet Rawal, Mr. Anshary,
Mr. Aditya Joshi and Mr. Puneet
Sharma, Advs. for Ganesh Benzoplast
Ltd.
CORAM:
HON'BLE MR. JUSTICE V. KAMESWAR RAO
ORDER
% 28.09.2022
EX.APPL.(OS) 3509/2022
1. This is an application filed by the decree holder with the following prayers:
"It is accordingly prayed that this Hon'ble Court may be pleased to grant the following prayers:
A. Restrain the Judgment Debtor Company from acting in furtherance to the Resolutions passed in the Board meeting dtd. 30.08.2022 and the special resolutions proposed to be passed on 27.09.2022, with respect to to grant loan or give guarantee or provide security in respect of any loan to Sagar Signature Not Verified Digitally Signed By:ASHEESH KUMAR YADAV Signing Date:06.10.2022 17:26:14 Industries & Distilleries Private Limited, wholly owned subsidiary of associate company, for the amount in aggregate not exceeding Rs. 10 Crores (Rupees Ten crores), in any manner, whatsoever, directly or indirectly. B. Direct the Judgment Debtor Company to make a Full and complete Disclosure of the terms of the proposed business being conducted through Sagar Industries & Distilleries Pvt. Ltd., Bluebrahma Clean Energy Solutions Pvt. Ltd. And GBL Clean Energy Pvt. Ltd to the Decree holder, by way of Affidavit.
C. Pass any other orders that this Hon'ble Court may deem fit in the facts of the present case."
2. It is the submission of Mr. Abhishek Puri, learned counsel for the decree holder / applicant that the decree holder has an award, which as of today, is worth Rs. 104 crore. He states that on the strength of the order dated January 21, 2021 passed by this Court in O.M.P.(I) (COMM.) 363/2020 an amount of Rs.3 crore has been deposited by the judgment debtors.
3. He states, additionally a property worth Rs.3 crore has been given as a security. According to him, the said amount / value of the security is far less than the amount liable to be paid by the judgment debtors to the decree holder.
4. This submission of Mr. Puri is contested by Mr. Sandeep Sethi, learned Senior Counsel appearing for the judgment debtors by stating that in terms of order dated January 21, 2021, more specifically paragraph 15, the decree holder is secured by an amount of Rs.238 crore. Mr. Puri disputes Signature Not Verified Digitally Signed By:ASHEESH KUMAR YADAV Signing Date:06.10.2022 17:26:14 this submission of Mr. Sethi.
5. Mr. Sethi would also submit that the order dated January 21, 2021 is under appeal before the Division Bench and the Division Bench has, from time to time passed orders, which show the issue that whether the judgment debtors have secured the decree holder to the extent of awarded amount is pending consideration before that Bench. In fact in furtherance thereof, the Division Bench has asked the judgment debtors to file an affidavit.
6. In this regard, he has drawn my attention to the order dated September 6, 2022.
7. I have seen the order dated September 6, 2022. Paragraphs 2 to 4 of the same, which reads as under, clearly reveals that the awarded amount is sought to be secured by the Division Bench. So, the present application filed to seek a restraint order against the judgment debtors from proceeding further in terms of the resolution dated August 30, 2022 by which an amount of Rs.10 crore is sought to be transferred to an Associate Company of the subsidiary of the judgment debtors is not required to be filed in these proceedings. :
"2. The learned Senior Advocate for the appellant submits that none of the assets alluded to in the affidavit could possibly secure the appellant's interests because all the properties already stand encumbered. He submits that the appellant would be best secured against unencumbered properties of value equivalent to the awarded amount. Thus far the appellant has been secured only for Rs. 3 crores against the awarded amount, which according to the appellant is now over Rs.90 crores.Signature Not Verified Digitally Signed By:ASHEESH KUMAR YADAV Signing Date:06.10.2022 17:26:14
3. The learned Senior Advocate for the respondent submits that there is an outstanding loan of Rs.34.39 cores as on 28.12.2020, which have been secured against properties whose value has been assessed by Union Bank of India at Rs.196.96 crore (page 388 Vol.-I).
4. The respondent will explore whether some of its encumbered assets could be segregated or otherwise made available unencumbered so as to provide the appellant first charge on the same, to the extent of the awarded amount. Let an affidavit be filed in this regard. It will also be open to the respondent to file a fresh valuation report through a government approved valuer apropos its properties."
8. At this stage, Mr. Puri has drawn my attention to the order dated August 23, 2022, more specifically the latter part of paragraph 5 wherein, the following has been stated by the Division Bench to contend that the remedy for the decree holder is to file an application before this Court:
"5. It is another matter though that the share allotment has been made in the interim. There is a lock-in period at least till March 2023 regarding the foreign entity and till Feb 2024 for Promoters. In effect, both sets of allotted shares are not tradable till March 2023 and February 2024, respectively. The subsequent orders passed by the learned Single Judge on 25.02.2021 and 11.04.2022 show that the present impugned order was primarily passed in O.M.P 363/2020. In other words there is no impediment to hearing of Section 34 or the enforcement petition under section 36 of the Act. The Signature Not Verified Digitally Signed By:ASHEESH KUMAR YADAV Signing Date:06.10.2022 17:26:14 respondent seeks to file an affidavit apropos the aforesaid contentions i.e. the allotted shares are not tradable."
9. I am not in agreement with the submission made by Mr. Puri in view of the subsequent order passed by the Division Bench dated September 6, 2022, which I have already reproduced above. It is one thing to say that the petition under Section 36 can be heard but it is different to say whether the awarded amount has been secured.
10. I am of the view that, on a perusal of the aforesaid paragraphs of order dated September 6, 2022, the issue being pending before the Division Bench, no orders can be passed by this Court.
11. The application is closed.
V. KAMESWAR RAO, J SEPTEMBER 28, 2022/aky Signature Not Verified Digitally Signed By:ASHEESH KUMAR YADAV Signing Date:06.10.2022 17:26:14