Delhi High Court - Orders
Tata Capital Financial Services ... vs M/S Hema Engineering Industries Ltd. & ... on 26 April, 2021
Author: Vibhu Bakhru
Bench: Vibhu Bakhru
$~21
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ O.M.P.(I) (COMM.) 46/2021
TATA CAPITAL FINANCIAL SERVICES
LIMITED ..... Petitioner
Through Ms Ekta Bhasin, Mr Sanidhya Sonthalia,
Advocates.
versus
M/S HEMA ENGINEERING INDUSTRIES
LTD. & ORS. ..... Respondents
Through Mr Vikas Dutta, Mr Siddharth Siiwal,
Mr Nivedita Grover, Advocates.
CORAM:
HON'BLE MR. JUSTICE VIBHU BAKHRU
ORDER
% 26.04.2021 [Hearing held through videoconferencing]
1. The petitioner has filed the present petition, inter alia, praying as under:-
"a) That pending the Arbitral proceedings, making of the Arbitral Award and until final execution of the Arbitral Award, the Respondents jointly and/ or severally be ordered and directed to either furnish security/ies and/ or bank guarantee in favour of the Petitioner towards a sum of Rs. 39,58,97,659.14 /-
(Rupees Thirty Nine Crores Fifty Eight Lacs Ninety Seven Thousand Six Hundred Fifty Nine and Fourteen Paise Only) due as on 11.12.2020, together applicable and additional interest from 12.12.2020, till payment and/or realization and Signature Not Verified digitally signed by:DUSHYANT RAWAL other expenses, costs, charges etc. due and payable to the Petitioner in terms of the said Working Capital Demand Loan Agreement dated 30.10.2019 and Loan Cum Guarantee (Channel Finance) Agreement dated 30.10.2019 as per the Summary of dues set out in Document - 62 of the Petition;
b) that pending the Arbitral proceedings, making of the Arbitral Award and until final execution of the Arbitral Award, the Respondents, their agents/s, servant/s, and any third person/ s claiming through them be restrained by an Order or injunction of this Hon'ble Court from in any manner selling, transferring, disposing off, and/ or alienating or encumbering or mortgaging or charging or parting with possession of or transferring, or inducting anyone else into or creating any right, title or interest or license in favour of anyone else in respect of properties not mortgaged with the Petitioner and all the moveable and immoveable assets (including stock and trade) disclosed by the Respondents pursuant to the direction of this Hon'ble Court and in addition to and inter alia including the property stated above which is:-
i. FC - 1 & 4, lF, MGF Metropolitan Mall, MG Road, DLF City Phase 2, Gurugram in name of Respondent No. 2 and 3.
ii. 917 A, Aralias Golf Link, DLF Phase V, Gurugram- 122002.
iii. Land located at Khasra No. 444, 445 and 443, Village Bawli, Kalanjari, Paragana, Tehsil Roorkee, Dist. Haridwar, Uttarakhand.
c) that pending the Arbitral proceedings, making Signature Not Verified digitally signed by:DUSHYANT RAWAL of the Arbitral Award and until final execution of the Arbitral Award, the Respondents may be directed to submit the Bank Account Statements of all their accounts from the date of disbursement of the Loan till date along with a list of assets and liabilities by way of an affidavit for disclosure before this Hon'ble Court and based on the said Bank Statement the Respondents be directed not to make any high value transactions from their bank accounts and the bank accounts of the Respondents be frozen till the Arbitration proceedings are going on.
d) that pending the Arbitral proceedings, making of the Arbitral Award and until final execution of the Arbitral Award, the Directors of Respondent No.1 and Respondent Nos. 2 and 3 be restrained from leaving the Country without the permission of this Hon'ble Court and/or be directed to deposit their respective passports in this Hon'ble Court;"
2. Admittedly, the petitioner had sanctioned a Short Term Working Capital Loan Facility (STWCL Facility) for an aggregate amount of Rs.5 crores to the respondent. The said STWCL Facility was renewed on 26.10.2017 and the amount was enhanced to Rs.30 crores. In addition, the petitioner also sanctioned a Channel Finance/Inventory Funding facility of Rs.10 crores on dated 27.11.2019 to the respondent company. These facilities were further renewed on 29.10.2019.
3. It is the petitioner's case that respondents have failed to comply with their payment obligations. It is also claimed that respondent nos. 2 and 3 have personally guaranteed due performance of payment obligations by respondent no.1. The petitioner states that the said respondents were called Signature Not Verified digitally signed by:DUSHYANT RAWAL upon to repay the amounts due, however, they have also failed to perform their obligations.
4. It is in the aforesaid context that the petitioner prays that the aforementioned properties belonging to the respondents be attached for securing its dues.
5. The present petition was taken up for hearing for the first time on 03.02.2021. On that date Mr Dutta, learned counsel appearing for the respondents had stated that the property bearing No. FC - 1 & 4, 1F, MGF Metropolitan Mall, MG Road, DLF City Phase 2, Gurugram had already been sold. He had also stated that respondents have no objection if interim orders are passed restraining the respondents from disposing of or in any manner alienating the following properties:-
"(i) 917 A, Aralias Golf Link, DLF Phase V, Gurugram- 122002.
(ii) Land located at Khasra No. 444, 445 and 443, Village Bawli, Kalanjari, Paragana, Tehsil Roorkee, Dist. Haridwar, Uttarakhand."
6. He had also stated that he has certain objections to the maintainability of the present petition.
7. Mr Dutta, contends that the petitioners have filed an application under Section 11 of the Arbitration and Conciliation Act, 1996, which is being considered by another Bench of this Court. The respondents have also raised their objections regarding the existence of an arbitration agreement in those proceedings. He states that the respondents have no objection if the interim order in respect of the aforementioned two properties is extended for a Signature Not Verified digitally signed by:DUSHYANT RAWAL further period of three months while clarifying that it is open for the respondent to urge all its contentions before the arbitral tribunal and in other proceedings.
8. In view of the above, the respondents are restrained from selling, transferring, encumbering or in any manner alienating the following properties for a period of three months from today :
"(i) 917 A, Aralias Golf Link, DLF Phase V, Gurugram- 122002.
(ii) Land located at Khasra No. 444, 445 and 443, Village Bawli, Kalanjari, Paragana, Tehsil Roorkee, Dist. Haridwar, Uttarakhand.
9. It is clarified that all rights and contentions of the parties including as to the existence of the arbitration agreement, are reserved.
10. Mr Dutta, also states that the parties have opened a dialogue for an amicable resolution of the disputes. He states that the petitioner has confirmed that if a sum of ₹2 crores is paid, the petitioner would have no objection if interim orders passed by this court, are lifted.
11. In view of the above it is clarified that this order will not impede the respondents in dealing with the properties if the same is consented to by the petitioner in writing.
VIBHU BAKHRU, J APRIL 26, 2021 pkv Signature Not Verified digitally signed by:DUSHYANT RAWAL