Bombay High Court
Sbi Capital Markets Limited vs Videocon Hydrocarbon Holdings Ltd on 15 November, 2021
Author: R. I. Chagla
Bench: R. I. Chagla
TAUSEEF
LAIQUEE
FAROOQUI
Digitally signed by
TAUSEEF LAIQUEE
08-IA.L.22591.2021.doc
FAROOQUI
Date: 2021.11.17
10:58:56 +0530
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
IN ITS COMMERCIAL DIVISION
INTERIM APPLICATION (L) NO.22591 OF 2021
IN
COMMERCIAL SUIT (L) NO.22589 OF 2021
SBI Capital Markets Limited ...Applicant/Petitioner
V/S
Videocon Hydrocarbon Holdings Ltd. ...Defendant
Mr. Sharan H. Jagtiani, Senior Advocate a/w Mr. Indrajeet Hingane i/
by Mr. Rugved More for Applicant/Petitioner.
CORAM : R. I. CHAGLA, J.
DATED : 15th NOVEMBER, 2021.
P.C. Heard learned counsel for the Applicant/ Petitioner.
2. None appears for the Defendant. An Affidavit of service has been filed which has evidenced the fact that the Defendant has been served with the proceedings as well as notified of today's date when the ad-interim Application is moved by the Applicant/ Petitioner. The Affidavit of service dated 12th November 2021 is taken on record.
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08-IA.L.22591.2021.doc
3. By this Interim Application, the Applicant is seeking various ad-interim relief and at this stage prayer clause (d) is required to be considered. In prayer clause (d), the Applicant is seeking disclosure from the Defendant as to the particulars of all its movable and immovable assets including but not limited to land, buildings, receivables, bank accounts, list of receivables from the Defendant's borrowers, furniture, fixtures, office equipment, vehicles, as well as details of any amount received from the underlying assets.
4. The present Suit has been filed by the Applicant/ Petitioner seeking an order and decree directing the Defendant to honour its payment obligations under the two agreements dated 6 th August 2013 and 30th March 2017 by making payment of INR Rs.9,83,33,899.09 for providing the financial advisory/services and syndication services. The claim of the Plaintiff is backed by the bills issued under the said agreements for fixed fees, inception fees and out of pocket expenses in return for the services availed by the Defendant. It is the case of the Plaintiff that the Defendant defaulted in making payments against the bills under the said agreements Tauseef 2 of 7 08-IA.L.22591.2021.doc within the stipulated period of 15 days from the date of each bill which qualified as an event of default under the respective agreements. Demand letter has been sent by the Plaintiff and which has not been responded to by the Defendant and they have failed to make payments against the bills issued by the Plaintiff to the Defendant under the said agreements. The statement of the outstanding bills are more appropriately set out in the Interim Application. It has been stated in paragraph 8 of the said Application that due to the continuing wilful default on the part of the Defendant, the Plaintiff has a serious apprehension that the Defendant may make unlawful payments/disbursements to other parties/entities in preference over the Plaintiff's claim and in blatant disregard of extant law.
5. In view thereof, the Plaintiff has sought ad-interim relief in order to secure their claim of Rs.9,83,33,899.09, which according to the Plaintiff has not been disputed so far by the Defendant and which is payable to Plaintiff.
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08-IA.L.22591.2021.doc
6. The learned senior counsel for the Plaintiff has submitted that the Defendant is not under CIRP before the National Company Law Tribunal. He has referred to the order dated 12 th February 2020, passed by the National Company Law Tribunal in which the Defendant is joined as Respondent No.3 and has referred to paragraph Nos.104, 105, 108 and 110 of the said order.
7. He has submitted by the said order, the assets held by Respondent No.3/the present Defendant has been considered to be the assets of Videocon Industries Limited (Respondent No.1) in the proceedings before the National Company Law Tribunal and which is presently under CIRP.
8. The learned senior counsel for the Applicant/Petitioner has thereafter referred to an order dated 19 th February 2020 passed by the National Company Law Tribunal, New Delhi, which has stayed the order dated 12th February 2020 passed by the National Company Law Tribunal. He has submitted that although the said order dated 12th February 2020 has been stayed till the next date, a decision is still to be taken on the appeal and the stay continues till today.
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08-IA.L.22591.2021.doc
Accordingly, the assets of the Defendant cannot be considered to be the assets of Videocon Industries Limited, which is under CIRP, in view of the stay and having been granted by the National Company Law Appellate Tribunal. He has submitted that unless appropriate ad-interim relief is granted, the Defendant who has not disputed the claim of the Plaintiff will attempt to defeat the claim by making payments and disbursements to unsecured creditors of the Defendant including out of its current and future receivables in preference to the payments owed to the Plaintiff. He has submitted that the Defendant will also deal with its assets and the Plaintiff will be left without any protection in respect thereof.
9. Having the considered the submission of the learned Senior Counsel for the Plaintiff, a prima-facie case has been made out for grant of ad-interim relief in terms of prayer clause (d) of the Interim Application. It is noted that a stay has been granted by the National Company Law Appellate Tribunal vide its order dated 19 th February 2020 of the order dated 12 th February 2020, passed by the National Company Law Tribunal, which had held that the assets of Tauseef 5 of 7 08-IA.L.22591.2021.doc the present Defendant shall be considered as the assets of Videocon Industries Limited under CIRP.
10. Considering that there is no response from the Defendant as to the demand notice issued by the Plaintiff raising the claim of Rs.9,83,33,899.09, the Defendant is required to disclose on oath its movable and immovable assets which are including but not limited to the land, buildings, receivables, bank accounts, list of receivable from the Defendant's borrowers, furniture, fixtures, office equipment, vehicles, as well as details of any amounts received from the underlying assets, as specifically prayed for in prayer clause (d) of Interim Application.
11. The remaining ad-interim relief sought for by the Plaintiff is not considered at this stage and shall be considered on the next date. Hence, the following order:-
(i). Ad-interim order is granted in prayer clause (d).
Which reads thus:-
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(d). That pending the hearing and final disposal of this Suit, the Defendant be directed to disclose on affidavit, details and complete particulars of all its movable and immovable assets including but not limited to land, buildings, receivables, bank accounts, list of receivables from the Defendant's borrowers, furniture, fixtures, office equipment, vehicles, as well as details of any amounts received from the underlying assets.
(ii). The Defendant shall file the Affidavit of disclosure within a period of two weeks from being communicated this order.
(iii).The Applicant/Petitioner shall communicate this order to the Defendant by email forthwith.
(iv).The Interim Application is adjourned to 7 th December 2021 for considering grant of further ad-interim relief.
(R. I. CHAGLA, J.)
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