Bombay High Court
Axis Trustee Services Limited vs Metropolitan Infrahousing Privte ... on 5 October, 2018
Author: S.J.Kathawalla
Bench: S.J. Kathawalla
kpd 1 / 5 C-COMS-179-2017.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
IN ITS COMMERCIAL DIVISION
COMMERCIAL SUIT NO. 179 OF 2017
Axis Trustee Services Limited ... Plaintif
Versus
Metropolitan Infrahousing Private Limited and others ... Defendants
Mr. Akhil Tiwari alongwith Mr. Rohit Lalwani instructed by Manilal Kher Ambalal &
Co. for the Plaintif.
Mr. Vineet Naik alongwith Mr. Dhawal Mehta, Mr. Denzil Arambhan, Ms. Apeksha
Munot and Ms. Henna Goradia instructed by Wadia Ghandy & Co. for Defendant
No.4.
Mr. Fredun De'Vitre, Senior Advocate alongwith Mr. Prakash Shah and Mr.
Durgaprasad Poojari instructed by PDS Legal for Defendant No.1.
Mr. Sajit Suvarna alongwith Mr. Samit Shukla, Mr. Krushanu Pandya instructed by
DSK Legal for Defendant Nos.3 and 5.
CORAM : S.J. KATHAWALLA, J.
DATED : 5th OCTOBER, 2018 (In Chambers) P.C.:
1. Parties have today tendered in court Substituted Consent Terms dated 5 th October 2018 duly signed by the parties and their respective advocates. The same is taken on record and marked as "X-1" for identification.
2. By an order passed on 3rd October 2018, this Court had issued directions for completing the formalities of payment of consideration by Defendant No.5 in favour of Defendant No.1 for sale of the property described in the Third Schedule as set out in Substituted Consent Terms and thereafter payment/s from Defendant No.1 ::: Uploaded on - 06/10/2018 ::: Downloaded on - 07/10/2018 01:42:09 ::: kpd 2 / 5 C-COMS-179-2017.doc simultaneously, inter-alia to the Plaintif and Defendant No.2.
3. The Plaintif, Defendant No.2 and the Learned Prothonotary and Senior Master, High Court, Bombay reported that the consideration receivable by them in terms of the Substituted Consent Terms have been duly and fully received. The Learned Prothonotary and Senior Master has received the money as per the Substituted Consent Terms from the account of Defendant No.1. In view of the above, Defendant No.5 has fully and duly paid the consideration with respect to the property described in the Third Schedule as set out in the Substituted Consent Terms.
4. The Learned Prothonotary and Senior Master has confirmed issuance of instructions to HDFC Bank Limited for compliance with the mandate given in Clauses 18 and 19 of the Substituted Consent Terms.
5. In view of the receipt of the funds in the account of the Learned Prothonotary and Senior Master, High Court, Bombay i.e. account no. 50200032783399 with HDFC Bank as set out in Clause 19(b) of the Substituted Consent Terms, all charges/mortgages/pari-passu mortgages in favour of the Plaintif for the First Series NCDs and the Second Series NCDs shall stand fully discharged in respect of the properties described in (i) the Third Schedule as set out in Substituted Consent Terms (marked as "X-1"); and (ii) Fourth Schedule to the First Consent Terms and Substituted Consent Terms taken on record today and marked as X-1 for identification.
6. In view of the receipt of the funds in the account of Defendant No.2 as set out in Clause 19(a) of the Substituted Consent Terms, all charges/mortgages/pari-passu ::: Uploaded on - 06/10/2018 ::: Downloaded on - 07/10/2018 01:42:09 ::: kpd 3 / 5 C-COMS-179-2017.doc mortgages in favour of Defendant No.2 shall stand fully discharged in respect of the properties described in the Third Schedule to Substituted Consent Terms (marked as "X-1" herein).
7. The Prothonotary and Senior Master alongwith all the Parties to take all necessary steps for closure of the designated suit account being account no.
50200032783399. Any amounts to be paid on account of RTGS charges shall be borne by Defendant No.1.
8. According to the Plaintif, there is no requirement for deduction of Income Tax at source in respect of payments made to some of the Other Debenture Holders in respect of First Series NCDs towards interest. In view of the above contention of the Plaintif, the learned Prothonotary and Senior Master is directed not to deduct income tax at source on the interest portion paid to some of the Other Debenture Holders and the learned Prothonotary and Senior Master is directed to pay gross amount to such of the Other Debenture Holders as per the details provided in Annexure "F" to the Substituted Consent Terms marked as 'X-1'. All those Other Debenture Holders where no TDS is being deducted on interest paid to them are hereby ordered and directed to deposit the necessary TDS amount with Income Tax Authorities as and when Income Tax authorities call upon the Defendant No. 1 to do so. The Income Tax authorities are directed not to treat Defendant No. 1 as assessee in default for non- deduction of income tax and not to take any proceedings including proceedings to recover the tax, interest and penalty and prosecution under Income Tax Act, 1961, ::: Uploaded on - 06/10/2018 ::: Downloaded on - 07/10/2018 01:42:09 ::: kpd 4 / 5 C-COMS-179-2017.doc against Defendant No. 1 for non-deduction of income Tax at source on the amount of interest paid to such of the Other Debenture Holders under Section 201 or any other provisions of the Income Tax, Act, 1961. The Other Debenture Holders to whom no TDS is deducted are entitled to contend before Income Tax Authorities that no TDS was deductible on interest paid to them.
9. The injunction order dated 30th May, 2018 operating in the Original Application No.637 of 2018 filed by Defendant No.2 will not operate to the extent of re- conveyance / extinction of charge in respect of the property described in (i) the Third Schedule as set out in the Substituted Consent Terms, and (ii) the Fourth Schedule to the First Consent Terms and Substituted Consent Terms taken on record today and marked as X-1 for identification and sale of the property described in the Third Schedule as set out in the Substituted Consent Terms. On receipt of consideration as per Clause 19(a) of the Substituted Consent Terms, Canara Bank shall give appropriate credit to the Defendants/Respondents in Original Application No. 637 of 2018 and delete the property described in Annexure "A" and Annexure "B" to the Substituted Consent Terms from the Original Application and all claims made against MIPL in the aforesaid Original Application No.637 of 2018 shall stand withdrawn.
10. On execution and registration of the Deed of Conveyance, to be executed between Defendant No.1 and Defendant No.5, the office of the Collector and other statutory authorities to forthwith update the revenue records and other statutory records by passing appropriate mutation entries and orders to record the name of ::: Uploaded on - 06/10/2018 ::: Downloaded on - 07/10/2018 01:42:09 ::: kpd 5 / 5 C-COMS-179-2017.doc Defendant No.5 as the owner of the properties described in the Third Schedule.
11. The Plaintif and Defendant No.2 hereby accords complete satisfaction and discharge of all their claim made against Defendant No.1 and confirm that no sum is due and payable by Defendant No.1 to the Plaintif and/or Defendant No.2
12. In terms of the foregoing, the orders of injunction dated 9 th March 2017 and 4th April 2017 operating in favour of the Plaintif in Commercial Suit No. 179 of 2017 stand vacated for the properties described in (i) the Third Schedule as set out in Substituted Consent Terms (marked as "X-1"); and (ii) Fourth Schedule to the First Consent Terms and Substituted Consent Terms taken on record today and marked as X-1 for identification.
13. The captioned suit stands decreed in terms of the Substituted Consent Terms.
14. Parties to act on authenticated copy of this Order, which is expedited.
( S.J.KATHAWALLA, J. ) ::: Uploaded on - 06/10/2018 ::: Downloaded on - 07/10/2018 01:42:09 :::