Bombay High Court
Idbi Bank Ltd vs Icici Bank Ltd And 4 Ors on 29 September, 2022
Author: R.I. Chagla
Bench: R.I. Chagla
IAL.2102.22 wt..doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
IN ITS COMMERCIAL DIVISION
INTERIM APPLICATION (L) NO. 2102 OF 2022
IN
COMMERCIAL SUIT (L) NO. 2100 OF 2022
IDBI Bank Ltd. & Anr. ... Applicants/Plaintiffs
Versus
ICICI Bank Ltd. & Ors. ... Defendants
Mr. Zarir Bharucha a/w Ms. Rishi Thakur, Mr. Rohaan Pajarigar
i/b ZBA for the Plaintiff/Applicant (IDBI) in COMS(L)/2100/2022.
Mr. Sharan Jagtiani, Senior Counsel a/w Ms. Ankita Singhania, Mr.
Siddharth Ranade, Ms. Samrudhi Chothani, Ms. Apurva Manwani,
Mr. Raghav Bhargava i/b TRILEGAL for defendant No.1.
Mr. J.P. Sen, Senior Counsel a/w Ms. Nidhi Singh, Mr. Chitrang
Gamoth i/b India Law LLP for Defendant Nos.2 and 3.
Mr. Harit Lakhani i/b Shardul Amarchand Mangaldas & Co. for
Defendant No.6 in COMS/1447/2018 and for defendant No.5 in
COMS(L)No.2100/2022.
Mr. Archit Virmani a/w Mr. Yash Jariwala, Ms. Payoja Gandhi i/b
Yash Jariwala for defendant No.4.
CORAM : R.I. CHAGLA, J.
RESERVED ON : 5th JULY, 2022.
PRONOUNCED ON : 29th SEPTEMBER, 2022.
Waghmare 1/61
IAL.2102.22 wt..doc
ORAL JUDGMENT :
1 The present Interim Application No.2100 of 2022 is taken out in the captioned Suit filed by the Applicant- IDBI Bank Ltd. ("IDBI") which has sought declaration that the charge created in favour of the Applicant/Plaintiff representing 24 Banks on the assets of Defendant No.4-Lanco Devihalli Highways Private Limited ("Lanco") in accordance with the Indenture of Mortgage dated 01.12.2014 shall have priority over the security interest created in favour of Defendant No.1- ICICI Bank Ltd. ("ICICI") under the Deed of Hypothecation dated 16.12.2015. Further relief has been sought for an order/decree holding that the Plaintiffs are entitled to the residual amount from the amount that is lying and deposited with Defendant No.2- SBI, in accordance with the order dated 18.02.2019 passed in Interim Application No.2543 of 2018 in Commercial Suit No.1447 of 2018, after the amounts due to Defendant Nos.2 and 3- State Bank of India ("SBI") and Bank of Baroda are paid off in accordance with law. The relief sought for in the Interim Application is for a temporary injunction restraining ICICI from seeking distribution and for withdrawing the funds lying with SBI in derogation of the rights of IDBI.
Waghmare 2/61
IAL.2102.22 wt..doc 2 A brief background of facts are necessary. The Concession Agreement dated 09.07.2007 was entered into between Lanco (the Concessionaire) and the National Highways Authority of India (NHAI) for construction of road on Build, Operate and Transfer (BOT) basis. This was with regard to the Nelamangala Junction on NH-4 with NH-48 to Devihalli in the State of Karnataka ("project").
3 Pursuant to the Concession Agreement, a Substitution Agreement dated 08.02.2008 was entered into between the NHAI, Lanco (referred to as the Concessionaire) and SBI on behalf of the Senior Lenders to the project which are SBI and Bank of Baroda (erstwhile Dena Bank). Under the Substitution Agreement, only the Senior Lenders were entitled to substitute or replace the Concessionaire and the substitution consideration was for satisfying the dues of the Senior Lenders and it is only the Senior Lenders who are entitled to appropriate any consideration received by the substitution of the Concessionaire. 4 On 13.06.2012 a Rupee Facility Agreement was executed between ICICI and Lanco whereby ICICI provided Rupee Facility of INR 90 crores to Lanco.
5 The Master Restructuring Agreement was executed by a consortium of 24 banks of which IDBI is the lead bank and Defendant Waghmare 3/61 IAL.2102.22 wt..doc No.5-Lanco Infratech Ltd. ("Lanco Infratech") (currently in liquidation). ICICI, SBI and Bank of Baroda are signatories to the Master Restructuring Agreement which was executed on 27.12.2013. An Indenture of Mortgage was executed on 01.12.2014 between Lanco, Lanco Infratech and IDBI under which various properties were mortgaged by Lanco in favour of IDBI. On the same date, the charge was registered with the Registrar of Companies for an amount of INR 111,55,14,00,000/-. It is relevant to note that the first proviso to Clause 4 (vii) of the Indenture of Mortgage states that the security interest created thereunder would include project assets only once there is approval from NHAI under Concession Agreement dated 09.07.2007.
6 Lanco executed a Deed of Hypothecation on 16.12.2015 in favour of ICICI as security interest under the Rupee Facility Agreement, ranking subservient to the security interest created in favour of SBI and Bank of Baroda. On that date itself the charge was registered with the Registrar of Companies. Under Clause 3 (iii) of the Deed of Hypothecation, ICICI has a charge on the accounts created by Lanco under the project document.
7 ICICI issued a notice on 03.08.2017 recalling the financial assistance granted to Lanco under the Rupee Facility Agreement. By the Waghmare 4/61 IAL.2102.22 wt..doc said notice, ICICI issued an event of default in terms of the Rupee Facility Agreement on account of Lanco's failure to repay the outstanding amounts.
8 SBI on 23.08.2018 issued an advertisement as the lender's agent that it proposed to substitute Lanco with a suitable selectee in terms of the Substitution Agreement and solicited bids from the prospective Bidders to take over the rights and obligations of the Concessionaire under the Concession Agreement for the residual period of the concession. In that connection, Bid Document was issued by SBI on 23.08.2018. It is relevant to note that "outstanding debt" is defined as amounts outstanding in the books of the Company, namely Lanco, in relation to the loan/indebtedness availed by the Company from the Senior Lenders and ICICI. Senior Lenders refers to SBI and Bank of Baroda. It is further provided in clause 2.9.7 of the Bid Document that the entire Aggregate Transaction Consideration shall be payable by the Selectee upfront in the manner prescribed in the Definitive Agreements and in any case, prior to execution of the New Concession Agreement with NHAI. The Aggregate Transaction Consideration shall be paid through an escrow mechanism detailed in the Definitive Agreements.
Waghmare 5/61
IAL.2102.22 wt..doc 9 Shortly after the issuance of Bid Document by SBI, Lanco Infratech went into liquidation. On 30.08.2018, ICICI addressed a letter to SBI intimating SBI of the charge created in its favour under the Deed of Hypothecation and requesting SBI to keep the prospective Concessionaire informed of ICICI's right of subservient charge on the hypothecated assets of Lanco and stating that all surplus left after making payment towards the Senior Lender's dues should be payable directly to ICICI towards the repayment of its outstanding dues under the Rupee Facility Agreement. 10 ICICI apprehending that a new selectee was likely to be appointed on an immediate basis filed Commercial Suit No.1447 of 2018 before this Court seeking injunctive reliefs against the Senior Lenders which are SBI and Bank of Baroda from replacing Lanco under the Concession Agreement without the prior consent of ICICI or otherwise proceeding in any manner that may be prejudicial to the security interest created in favour of ICICI under the Deed of Hypothecation. 11 An order came to be passed in the Suit filed by ICICI by which the Single Judge of this Court (S.J. Kathawalla, J.) granted time to the Defendants therein to file their affidavit in reply in view of the statement of SBI that the process of substitution will take about 2-3 months and hence no ad-interim orders were passed at that stage. Waghmare 6/61
IAL.2102.22 wt..doc 12 The Senior Lenders filed their affidavit in reply on 12.10.2018 to the Notice of Motion taken out by ICICI wherein the Senior Lenders placed on record the Term Sheet and Bid Document dated 23.08.2018. An affidavit in reply was also filed by Lanco in the said Notice of Motion on 30.10.2018.
13 The Single Judge of this Court (S.J. Kathawalla, J.) on 31.10.2018 passed order, paragraph 2 of which reads as under :
"Stand over to 22nd November, 2018. In the meantime, NHAI will not grant approval to the Agreement executed by and between the Defendants and the new Concessionaires".
14 Thereafter, on 18.02.2019 the Single Judge of this Court (K.R. Shriram, J.) passed consent order by which the parties, inter-alia agreed that (a) a new Concessionaire and NHAI were to execute all intermediate documents, within a period of 45 days; and (b) the New Concessionaire was required to deposit the consideration of INR 385.90 crores into Court, amongst other directions. The order also recorded that the "issue as to the manner of distribution of the amount paid into Court"
shall be determined in the Notice of Motion taken out by ICICI. It is necessary to note that the completion of substitution was time sensitive.Waghmare 7/61
IAL.2102.22 wt..doc The bidding was based on swiss challenge method. The terms submitted by the new Concessionaire included reduction of INR 15 lakhs per day for each day of delay in closing the transaction after 01.10.2018. By the consent order, ICICI gave up its protection granted vide order dated 31.10.2018 to facilitate the process of substitution.
15 On 22.05.2019 SBI intimated IDBI of the status of the substitution and inter-alia requesting IDBI to file an Intervention Application in the Suit.
16 On 09.10.2019 IDBI filed Intervention Application in ICICI's suit contending that it is a necessary and proper party in the suit and asserting its rights as a Senior Creditor of Lanco in terms of the Indenture of Mortgage dated 01.12.2014.
17 On 11.01.2021 the substitution process was completed and an amount of INR 260,95,00,000/- was received by the Senior Lenders from Cube Highway and Infrastructure Pvt. Ltd. (the new Concessionaire) ("Cube"). It is necessary to note that ICICI had moved this Court on 15 occasions since passing of the consent order dated 18.02.2019 to ensure its implementation.
Waghmare 8/61
IAL.2102.22 wt..doc 18 The Single Judge of this Court (B.P. Colabawalla, J.) by order dated 13.01.2021 recorded that upon deposit of the Aggregate Transaction Consideration (ATC) by the Senior Lenders, the only issue remaining to be determined in the matter related to distribution. This order was passed in the Suit filed by ICICI. Directions were issued by the learned Single Judge of this Court with regard to investing the ATC alongwith interest in a fixed deposit with SBI. The fixed deposit would be in the name of Prothonotary and Senior Master of this Court and fixed deposit receipt was also to be handed over to the Prothonotary and Senior Master of this Court. Considering that the aggregate amount of ATC and Escrow amount were coming to approximately INR 340 crores and the dues claimed by ICICI and the Senior Lenders coming to approximately INR 380 crores, this Court suggested that the parties explore the possibility of settlement. In the event of ICICI and Senior Lenders not being able to mutually agree on the distribution of ATC and the amounts lying in Escrow, as between themselves, ICICI was at liberty to file a fresh Interim Application inter-alia seeking distribution in terms of Clause 4 (f) of the Consent Minutes of order. Accordingly, the statement of the learned Senior Counsel appearing for ICICI that ICICI was not pressing prayer clause (a) in the Interim Application i.e. the vacation of the consent order and reinstatement of injunction order dated 31.10.2018 Waghmare 9/61 IAL.2102.22 wt..doc was recorded. ICICI filed Interim Application (L) No.3905 of 2021 in pursuance of order dated 13.01.2021. This was filed on 23.02.2021. 19 Lanco filed Interim Application (L) No.3582 of 2021 on 18.03.2021 claiming an amount of INR 325.20 crores is due to Senior Lenders and ICICI and that amount of INR 465.79 crores is available in the account maintained with SBI on account of penalties paid for delay in execution of Concession Agreement and penalties paid to NHAI. Lanco also impugned the Senior Lenders' claim of Right of Recompense. 20 On 23.03.2021 for the first time IDBI appeared in ICICI's Suit. The IDBI application was taken up for hearing on 20.12.2021 and the order was passed by this Bench rejecting the IDBI application on the ground of delay apart from the ground that IDBI is neither a necessary nor proper party to the Suit filed by ICICI.
21 An Appeal was preferred by IDBI. The Appellate Court by order dated 12.01.2022 disposed of the Appeal by granting liberty to IDBI to file independent Suit and seek interim/ad-interim relief while expressly keeping all contentions open.
22 On 20.01.2022, IDBI filed the present Suit and also took out the present Interim Application.
Waghmare 10/61
IAL.2102.22 wt..doc 23 On 01.02.2022 this Court in the ICICI's Suit proceedings recorded that consent has not been arrived at between ICICI and SBI on distribution of the balance Substitution Proceeds. By a subsequent order dated 27.04.2022, this Court allowed SBI and Bank of Baroda to withdraw/appropriate undisputed principal amount without prejudice the rights and contentions of the concerned parties.
24 The present Interim Application was thereafter heard and arguments concluded on 05.07.2022.
25 Mr. Zarir Bharucha, the learned Counsel appearing for the Plaintiffs has submitted that the present case is an inter creditor dispute between IDBI and the ICICI with respect to distribution of the residual Substitution Proceeds deposited in this Court which presently amounts to Rs.100 crores. He has submitted that IDBI's case is that it together with 21 other CDR lenders of Lanco Infratech Consortium has a prior in time and superior registered mortgage/charge over the balance Substitution Proceeds in priority to ICICI. He has submitted that the IDBI's valuable property rights in the Substitution Proceeds conferred under its validly created and perfected mortgage will be irretrievably lost in the event of the injunction sought for in the present Interim Application not being granted. In the event the injunction is not granted, the balance Waghmare 11/61 IAL.2102.22 wt..doc Substitution Proceeds, of which IDBI has a valid registered proprietary interest in, will be given to ICICI who has no proprietary interest or property right over the balance Substitution Proceeds or even assuming that ICICI has a proprietary interest in the balance Substitution Proceeds, such proprietary interest/right in the Substitution Proceeds is subordinate to that of IDBI.
26 Mr. Bharucha has submitted that ICICI has relied upon a Bid Document dated 23.08.2018 which is a private document and unsigned and to which the mortgagor Lanco, ICICI and IDBI are not parties to and which is not an executed, stamped or registered instrument and thus cannot override a validly executed, prior in time, stamped and registered document of security in favour of IDBI i.e. the Indenture of Mortgage dated 01.12.2014 and registered with the Registrar of Companies under Section 77 of the Companies Act, 2013, as amended. He has submitted that even assuming without admitting that the Bid Document legitimately acknowledges ICICI's status as a lender to Lanco, that at the highest, would result in ICICI being an unsecured creditor of Lanco. This is contrary to the pleaded case of ICICI of being a secured creditor under the Deed of Hypothecation dated 16.12.2015. ICICI's distribution application also proceeds on the basis that it is a secured creditor of Lanco by virtue of its Deed of Hypothecation dated 16.12.2015.
Waghmare 12/61
IAL.2102.22 wt..doc 27 The Substitution Proceeds are nothing but the assets of Lanco. Mr. Bharucha has submitted that the consideration paid by the New Concessionaire under the Substitution Agreement and Bid Document is for acquiring all assets of Lanco (including rights and obligations of Lanco under the Concession Agreement), free of encumbrances. The consideration once received by Lanco is nothing other than the monetary value of the assets of Lanco. He has submitted that these assets (including rights and obligations under the Concession Agreement i.e. Project Documents) of Lanco, are charged to secured creditors and have been acquired by the New Concessionaire and which is now replaced and represented by money in Court i.e. the Substitution Proceeds. He has relied upon clause 2.1 of the Substitution Agreement whereby NHAI irrevocably agrees to substitute the Concessionaire for securing the payments of the Lenders Dues. He has further relied upon clauses 2.3 and 6.1 of the Substitution Agreement. These clauses also provide for the new Concessionaire discharging the duties, obligation and liabilities of the Concessionaire under the Concession Agreement. The Senior Lenders are entitled to appropriate any consideration received for the substitution of the Concessionaire from the new Concessionaire towards the payment of their and NHAI's respective dues to the exclusion of the Concessionaire. 28 Mr. Bharucha has further submitted that the Bid Document Waghmare 13/61 IAL.2102.22 wt..doc provides that the New Concessionaire will acquire all rights and obligations of Lanco under the Concession Agreement which are encumbered and mortgaged in favour of IDBI led Lanco Infratech consortium. The rights and obligations of Lanco acquired by the New Concessionaire shall be unencumbered on payment of the consideration amount. He has relied upon the definition of Aggregate Transaction Consideration in the Bid Document which means aggregate consideration payable by the Bidder for (i) the acquisition of concession rights for the Project for residual terms of the Concession Agreement; and (ii) discharge of outstanding Debt in full to the satisfaction of the Lenders. He has submitted that the money payable by the Bidder i.e. the Substitution Proceeds therefore becomes a 'Receivable' in the hands of Lanco. Receivables are the assets of Lanco, which are mortgaged/charged in favour of IDBI. He has submitted that since the receivables are the assets of Lanco which are secured in favour of IDBI under the Indenture of Mortgage pursuant to Clause 4 (iii) of the Indenture of Mortgage, IDBI has a right to the Substitution Proceeds. He has submitted that if the Substitution Proceeds are not an asset of Lanco then no creditor can have any claim or entitlement to the same. He has submitted that ICICI cannot plead a case contrary to its pleading, in oral arguments, submitting that it is not a secured creditor and the Substitution Proceeds do not form part of Waghmare 14/61 IAL.2102.22 wt..doc the secured interest in favour of the secured creditors and is not covered under the charge of 'Project Documents'.
29 Mr. Bharucha has submitted that the Substitution Proceeds are not the proceeds of the Project Assets as has been asserted by ICICI during their arguments. That ICICI's argument that IDBI's charge is incomplete for failure to obtain NHAI approval is wholly misconceived. He has in this context relied upon the definition of Project Assets under the Concession Agreement as well as Clause 9.1 (xx) of the Concession Agreement which prevents Lanco from creating any encumbrance or security interest over all or any part of the Site or the Project Assets. It is clear from the definition of Project Assets read with Clause 9.1 (xx) of the Concession Agreement that no lender (including the Senior Lenders) has a charge over the Project Assets. Consequently, no lender can assert any claim to the Substitution Proceeds, if it is regarded as Project Assets. 30 Mr. Bharucha has submitted that IDBI's debt is secured by its Indenture of Mortgage over all the assets of Lanco including receivables and project documents. The Indenture of Mortgage is a duly executed, registered and stamped document. The Indenture of Mortgage is registered with the Registrar of Companies under Section 77 of the Companies Act. This instrument was executed and registered in 2014. Waghmare 15/61
IAL.2102.22 wt..doc He has submitted that IDBI's claim to the balance Substitution Proceeds is pursuant to the charge created by Lanco under its Indenture of Mortgage over all of its immovable properties; all tangible movable assets including plant and machinery; receivables; all accounts including escrow account, debt service reserve account; assignment of rights of the Concessionaire under all Project Documents (including the Concession Agreement), Government Approvals, rights under any letter of credit, guarantee, insurance contracts. The charging sections of Indenture of Mortgage clearly establishes IDBI's proprietary claim to the balance Substitution Proceeds is found in clause 4 of the Indenture of Mortgage dated 01.12.2014.
31 Mr. Bharucha has submitted that Lanco has categorically recognized that the distribution of balance Substitution Proceeds solely between SBI and ICICI, is wrong and that distribution must be determined on the basis of the order of priority of the competing creditors, including in particular IDBI's secured debt of Rs.11,155,14,00,000/-. Lanco in fact confirms that IDBI has a valid charge over the Substitution Proceeds prior to that of ICICI. Lanco has in fact filed an Interim Application No.3582 of 2021 seeking to modify the order dated 13.01.2021 passed by this Court to allow distribution based on priority and not simply between SBI and ICICI.
Waghmare 16/61
IAL.2102.22 wt..doc 32 Mr. Bharucha has submitted that IDBI's charge is subordinate only to that of the Senior Lenders and in fact ICICI has clearly and unequivocally admitted that the purported charge created in its favour by way of the 2015 Deed of Hypothecation is subsequent and subordinate to the charge created in favour of IDBI under its Indenture of Mortgage in 2014. He has submitted that the purported charge created in favour of ICICI by the 2015 Deed of Hypothecation is legally invalid, in absence of No Objection Certificates from SBI, Bank of Baroda and NHAI having admittedly not been obtained. In fact, ICICI by letter dated 03.08.2017, itself regarded that it had no security interest over the assets of the Concessionaire/Lanco. ICICI's arguments proceed on the basis that its claim over the Substitution Proceeds is of an unsecured creditor. He has submitted that in view of the admitted position that ICICI was unable to obtain NOCs for it to claim a security interest over the assets of the Concessionaire/Lanco, distribution of balance Substitution Proceeds solely to ICICI is legally impermissible. It is settled law that the claim of a secured creditor i.e. IDBI, has to be paid first in priority to and ahead of a claim by an unsecured creditor/ICICI.
33 In this context Mr. Bharucha has relied upon the decision of the Supreme Court in ICICI Bank Limited vs. SIDCO Leathers Limited and Others (2016) 10 SCC 452. It has been laid down by the Supreme Court Waghmare 17/61 IAL.2102.22 wt..doc that right to recover money lent by enforcing a mortgage would also be a right to enforce an interest in the property. Section 48 of the Transfer of Property Act has been relied upon which provides that the claim of the first charge holder shall prevail over the claim of the second charge holder and in a given case where the debts due to both, the first charge holder and second charge holder are to be realised from the property belonging to the mortgagor, the first charge holder will have to be repaid first. There is no dispute as regards the said legal position. He has submitted that the legal doctrine of priority articulated by the Supreme Court in SIDCO (supra) is squarely applicable to the present controversy, as this is a text book example of an inter-creditor dispute where the rights of competing creditors to a fund of money is to be determined. The doctrine of priority rests on a simple principle of law namely that the interest of all stakeholders has to be considered by the Court when determining distribution of funds being claimed by competing creditors. He has submitted that the Supreme Court has categorically held that the rights of secured creditors (which is constitutionally guaranteed) should be protected. This would be applicable equally to distribution of security proceeds, (i.e. the Substitution Proceeds) in the present case. The principles underlying Section 48 of the Transfer of Property Act are applicable here, as IDBI's mortgage extends to all immovable properties of Waghmare 18/61 IAL.2102.22 wt..doc Lanco. The balance Substitution Proceeds represents the security interest of IDBI and consequently any distribution has to be in accordance with the rule on priorities.
34 Mr. Bharucha has then relied upon Section 77 of the Companies Act which provides for registration of a charge and that is conclusive evidence of creation of charge and acts as notice to the public regarding the interest of the charge holder in the charged property. The purpose of registration of the mortgage statutorily conferred on IDBI by Section 77 would be wholly frustrated and rendered redundant if an unsecured creditor i.e. ICICI is allowed exclusive distribution of the balance Substitution Proceeds. A denial of injunction sought for by IDBI would frustrate the legislative intent underlying Section 77 of the Companies Act.
35 Mr. Bharucha has submitted that distribution cannot be allowed without determination of priorities and in that context he has relied upon the decision of the Supreme Court in Commissioner Sanchaita Investments vs. Punjab National Bank and Ors., 11 (2001) BC 278 (SC). 36 Mr. Bharucha has submitted that the order dated 13.01.2021 passed by the Single Judge of this Court (B.P. Colabawalla, J.) had expressly kept open the issue of distribution of the Substitution Proceeds. Waghmare 19/61
IAL.2102.22 wt..doc This Court has held that any Interim Application by ICICI for distribution of Substitution Proceeds would be decided on its own merit and in accordance with law and contentions of all the parties being kept open. This clearly establishes that the balance Substitution Proceeds cannot be distributed without determining priorities between all creditors (and stakeholders) and cannot be restricted only to the parties to the Suit. He has submitted that denial of injunction sought for by IDBI would result in miscarriage of justice as it would exclude and prevent IDBI from participating in distribution of the balance Substitution Proceeds. This would result in an unsecured or subsequent charge holder marching ahead of a prior registered charge holder, thereby upturning settled principles of banking and security law in India. IDBI and 21 other CDR lenders of the Lanco Infratech consortium will be irretrievably prejudiced as their registered security interest will be extinguished/rendered nugatory and the balance Substitution Proceeds would be given to an unsecured creditor.
37 Mr. Bharucha has then made submissions on the Bid Document being not a public document and being available only to prospective Bidders after paying Rs.2 lakhs and executing a confidentiality and non disclosure undertaking. Consequently IDBI had no occasion to even inquire about the contents of the Bid Document leave Waghmare 20/61 IAL.2102.22 wt..doc alone dispute or challenge the same. IDBI cannot be expected to challenge the bidding process when there was no occasion to doubt that the contents of the Bid Document would travel beyond the Substitution Agreement. No delay can be attributed to IDBI on this. The Bid Document is not an independent and/or separate document, nor does it confer any right or entitlement in favour of any party independent of the Concession Agreement and/or Substitution Agreement. The Bid Document cannot override validly executed and registered security document. It is settled law that right created in terms of a registered document cannot be amended/obliterated by way of an unregistered document. The Indenture of Mortgage being a duly stamped and registered document cannot be unilaterally modified by any document, least of all by the Bid Document, which cannot alter the inter-se status of secured lenders. Consequently ICICI cannot claim a superior right to IDBI on the basis of the Bid Document.
38 Mr. Bharucha has submitted that ICICI's pleaded case makes no reference or reliance on the Bid Document. ICICI's pleaded case is that it is entitled to the balance Substitution Proceeds, pursuant to its right as a secured creditor of Lanco, under a Deed of Hypothecation dated 16.12.2015. He has submitted that none of the orders passed by this Court in ICICI's Suit refers to the Bid Document and correctly so, as Waghmare 21/61 IAL.2102.22 wt..doc ICICI's consistent pleaded case is that its entitlement (if any) to the balance Substitution Proceeds was under the Deed of Hypothecation and not the Bid Document.
39 Mr. Bharucha has dealt with the issues of delay, laches and conduct which is alleged against IDBI. He has submitted that the impleadment application was filed by IDBI in 2019 when it first came to the knowledge of IDBI on 21.05.2019 upon SBI (being a member of IDBI led Lanco Infratech consortium) intimating IDBI that ICICI was seeking priority over it. On the date of filing of the Interim Application by IDBI i.e. 09.10.2019, the balance Substitution Proceeds had not come into the Court and there was no adjudication of ICICI's status or ranking as a secured creditor. Consequently, there was no delay on IDBI's part in protecting its security interest. ICICI had not informed or served IDBI any papers and proceedings in its Suit. ICICI, in breach of its duty to disclose all material facts, never informed the Court that IDBI was a prior mortgagee. He has submitted that the argument on IDBI's delay is advanced to avoid judicial scrutiny of ICICI's claim which it knows is subordinate to that of IDBI. Thus, ICICI cannot base its entitlement to distribution of balance Substitution Proceeds on delay, but would have to independently of the conduct of IDBI, satisfy this Court of its entitlement to exclusive distribution of the balance Substitution Proceeds, which it Waghmare 22/61 IAL.2102.22 wt..doc cannot, given that ICICI admits to being an unsecured creditor. 40 Mr. Bharucha has submitted that delay, laches and conduct cannot take away valuable proprietary rights. He has relied upon the decision of the Supreme Court in Sha Mulchand and Co. Ltd. v. Jawahar Mills Ltd. AIR 1953 SC 98 in that context. He has also relied upon the decision of the Delhi High Court in Shri Swaran Singh Trading v. Usha Industries, AIR 1986 Delhi 343, which has held that a statutory right cannot be lost by delay. He has also relied upon the commentary of Steven Gee QC. "Commercial Injunctions" wherein it is mentioned that even if there is a delay such that a mareva injunction would be refused, an injunction based on proprietary claim may be granted. He has accordingly submitted that IDBI's security interest over all assets of Lanco which is registered with the Registrar of Sub-Assurances under the Transfer of Property Act, 1882 and with the Registrar of Companies under the Companies Act, cannot be obliterated merely on the grounds of delay and laches, assuming without admitting that there was any. 41 Mr. Bharucha has submitted that the order dated 01.02.2022 passed by this Court in the ICICI Suit clearly states that there is no consent between SBI and ICICI and that distribution requires adjudication. The prior consent order dated 18.02.2019 cannot be the Waghmare 23/61 IAL.2102.22 wt..doc basis for distribution of the balance Substitution Proceeds as it is now modified by the said order dated 01.02.2022. He has submitted that the Suit filed by ICICI only contemplates substitution of the Concessionaire and that parties to that Suit cannot agree or compromise on a subject matter which is not contemplated in the Suit i.e. the distribution of the balance Substitution Proceeds. He has submitted that SBI and ICICI cannot mutually decide and enter into consent terms to distribute IDBI's valid proprietary/security interest in the Substitution Proceeds. It is trite law that a consent order cannot set at naught third party rights. He has relied upon the decision of the Supreme Court in Ram Chandra Singh v. Savitri Devi and Others (2003) 8 SCC 319 in that context. 42 Mr. Bharucha has further dealt with the order dated 31.10.2018 passed by this Court in ICICI Suit by submitting that the order was merely a status-quo order, without any judicial determination of status, prima facie case or balance of convenience in favour of ICICI. There is no judicial finding on the status or claim of ICICI by this Court. This Court had not made any finding that ICICI could claim against the Substitution Proceeds based on the Bid Document. He has dealt with the orders passed in the ICICI Suit to contend that there was no finding on distribution of the Substitution Proceeds and/or contemplating distribution of the Substitution Proceeds solely between SBI and ICICI to Waghmare 24/61 IAL.2102.22 wt..doc the exclusion of other creditors i.e. IDBI.
43 Mr. Bharucha has accordingly submitted that IDBI has clearly established an overwhelming prima facie case and balance of convenience in its favour. IDBI having prior security interest over the assets of Lanco and such statutory and registered right being a valuable proprietary interest must be protected. IDBI cannot be denied injunctive relief merely due to alleged delay and laches. IDBI's proprietary rights over the balance Substitution Proceeds cannot be lost/relinquished except by a positive action on its part, of which there is none. He has submitted that distribution of the balance Substitution Proceeds, solely to ICICI, pending adjudication of rival claims of secured creditors, will set an unhealthy precedent for litigants, especially, within the banking sector which relies heavily on security interest. Distribution of the balance Substitution Proceeds to ICICI (an unsecured creditor) would unfairly prejudice and disadvantage prior ranking secured creditors i.e. IDBI, who has a stronger/higher claim than subordinate or unsecured creditors. No equity or equitable right is created in favour of ICICI by any orders passed by this Court that warrants denial of injunctive relief in favour of IDBI. Accordingly he has submitted that the relief sought for in the present Interim Application be granted.
Waghmare 25/61
IAL.2102.22 wt..doc 44 Mr. J.P. Sen, learned Senior Counsel appearing for Defendant Nos.2 and 3-SBI and Bank of Baroda has submitted that though SBI and Bank of Baroda are not concerned with the merits of the dispute between IDBI and ICICI, the documents on record including the Substitution Agreement makes it clear the purpose for execution of the Agreements was for satisfaction of dues of the Senior Lenders which are SBI and Bank of Baroda. Only the Senior Lenders are entitled to appropriate any consideration received by substitution of the Concessionaire. The reason for including ICICI's debt was because it appeared in the financial statements of Lanco. However, this does not mean that the other creditors such as IDBI are not to be considered when the issue of distribution of the Substitution Proceeds is taken up by this Court. The Bid Document cannot travel beyond the terms of the Substitution Agreement. He has in this context relied upon the Concession Agreement dated 09.07.2007 between NHAI and Lanco as well as the common loan agreement dated 31.01.2008 between Lanco, SBI and Bank of Baroda (then known as Dena Bank) as well as the escrow agreement dated 08.02.2008 between SBI, Lanco and NHAI as well as the Substitution Agreement dated 08.02.2008 between NHAI, SBI and Bank of Baroda. He has submitted that there was a first charge created in favour of SBI and Bank of Baroda on Lanco's properties including project assets and Waghmare 26/61 IAL.2102.22 wt..doc receivables as well as on all accounts including escrow accounts. Thus, the Substitution Proceeds brought in by the new Concessionaire was firstly to satisfy the Senior Lender's dues and then only any amounts remaining could be distributed between the other creditors. He has submitted that the orders passed in ICICI Suit cannot be relied upon by ICICI to entitle them to claim the residue of the Substitution Proceeds to the exclusion of other creditors which include IDBI. 45 Mr. Sharan Jagtiani, learned Senior Counsel appearing for the Defendant No.1-ICICI has submitted that by the present Interim Application, the Plaintiffs are seeking to stall the distribution of the Substitution Proceeds which have been deposited in this Court in the Suit filed by Defendant No.1 (ICICI's Suit). He has submitted that ICICI is entitled to the Substitution Proceeds which remain in this Court after satisfaction of the dues of the Senior Lenders by virtue of the orders passed by this Court in ICICI's Suit; the Bid Document; and the acknowledgment of ICICI's entitlement to such balance proceeds by both, SBI and Lanco in their numerous affidavits filed in the ICICI's Suit. 46 ICICI had filed Suit on 25.09.2018 before this Court seeking injunctive reliefs against the Senior Lenders from replacing Lanco under the Concession Agreement without the prior consent of ICICI, or Waghmare 27/61 IAL.2102.22 wt..doc otherwise proceeding in any manner that may be prejudicial to the security interest created in its favour under the Deed of Hypothecation. When the suit was filed, ICICI was not aware that SBI had issued the Bid Document dated 23.08.2018, which categorically recorded ICICI's dues as part of the outstanding dues upon the substitution taking place. The Bid Document came to be revealed to ICICI only in October, 2018 when SBI filed an affidavit in ICICI's Notice of Motion, placing the Bid Document on record. Subsequent to the filing of the Suit, ICICI moved this Court for urgent relief and on 31.10.2018 this Court passed an injunction order in favour of ICICI directing that "..... NHAI will not grant approval to the Agreement executed by and between the Defendants and the new Concessionaires". This injunction order was given up by ICICI by entering into Consent Terms with SBI and Bank of Baroda on 18.02.2019, allowing the process of substitution to take place. In light of the inordinate delay in the Substitution Process, ICICI had filed an application in its Suit seeking inter-alia vacation of the consent order and restoration of the injunction order. ICICI did not press this prayer before this Court as the same would have resulted in the substitution process being unravelled. In March 2021, in the spirit of settlement, ICICI did not oppose an application made by SBI to liquidate the moneys lying in the fixed deposit to meet the operational expenses of Lanco and obligatory escrow Waghmare 28/61 IAL.2102.22 wt..doc payments.
47 Mr. Jagtiani by relying upon these orders has submitted that in order to secure the balance proceeds of substitution, ICICI, in its suit had on several crucial junctures, made several important and irreversible concessions. He has submitted that IDBI filed its application only in October, 2019 seeking to be impleaded as party Defendant in ICICI's Suit. Though the impleadment application was filed on 11.10.2019, it was not moved by IDBI on even a single occasion. IDBI appeared for the first time in ICICI's suit only at the time of hearing on 23.03.2021. This was at a time when ICICI was in advanced settlement talks with the Senior Lenders. The impleadment application was rejected by this Court vide order dated 20.12.2021 on the ground that IDBI was neither necessary nor proper parties in ICICI's Suit as well as taking note of the considerable delay in the IDBI moving the impleadment application. The order dated 20.12.2021 rejecting IDBI's impleadment application was confirmed on 12.01.2022 by the Division Bench of this Court.
48 Mr. Jagtiani has submitted that ever since the filing of the Suit by ICICI, the proceedings have progressed significantly and several orders have been passed by this Court recognizing ICICI's entitlement to the balance Substitution Proceeds. Now it is not open for IDBI to frustrate Waghmare 29/61 IAL.2102.22 wt..doc the implementation and fruition thereof by the IDBI Suit and present Interim Application. IDBI must fail on principles applicable to grant of injunction i.e. their complete failure on balance of convenience, in explaining their conduct and inaction, especially in the light of prejudice which shall cause ICICI as well as their failure to establish a prima facie case to establish any right or priority over ICICI over the Substitution Proceeds deposited in this Court in terms of Clause 4 of the Indenture of Mortgage.
49 Mr. Jagtiani has also placed reliance upon the order dated 13.01.2021 passed by this Court at which time this Court was informed that the ATC had been received from Cube. Vide this order, this Court directed ICICI and the Senior Lenders to consider a settlement to work out the entire disputes since the aggregate amount of ATC and the escrow amount came to approximately INR 340 crores and the dues claimed by ICICI, SBI and Bank of Baroda came to approximately INR 380 crores. From a reading of this order as well as the prior orders passed by this Court in ICICI Suit leave no room for doubt that at all points of time, distribution of the Substitution Proceeds was contemplated as between only ICICI and the Senior Lenders. The Consent Terms was signed by all the parties to ICICI's Suit including NHAI. The substitution had been duly undertaken and concluded with the blessing of NHAI, pursuant to which Waghmare 30/61 IAL.2102.22 wt..doc the Substitution Proceeds have come into Court in ICICI's Suit 50 Mr. Jagtiani has then relied upon the Bid Document issued by SBI on 23.08.2018 which as aforementioned came to the knowledge of ICICI only when SBI filed an affidavit in reply to ICICI's Notice of Motion No.2453 of 2018 in October, 2018 placing the Bid Document on record. The Bid Document at multiple places, recognizes ICICI's entitlement alongwith that of the Senior Lenders to the consideration being brought in by the new Concessionaire. The Bid Document has recorded the basis of ICICI's entitlement as its lending to Lanco under the Rupee Facility Agreement in 2012. Mr. Jagtiani has relied upon the definition of Aggregate Transaction Consideration (ATC) as well as Outstanding Debt. Under the definition of Outstanding Debt in Clause 1.2 of the Bid Document it refers to the Senior Lenders and ICICI only. Under clause 1.13 the terms and conditions of substitution are provided. The Bidder has acknowledged and unconditionally assumed the liability to discharge the Outstanding Debt on the terms approved by the Senior Lenders and in accordance with the Definitive Agreements. Under Annexure VI the details of Outstanding Debt have been provided and which includes the debt of SBI and Bank of Baroda (then Dena Bank) as Senior Lenders and under other outstanding debt only ICICI Bank has been referred to. Accordingly, Mr. Jagtiani has submitted that ICICI is therefore entitled to Waghmare 31/61 IAL.2102.22 wt..doc the Substitution Proceeds which remain in Court after satisfaction of the dues of the Senior Lenders by virtue of the Bid Document and the Orders passed by this Court in ICICI's Suit.
51 Mr. Jagtiani has then placed reliance on the pleadings filed by Lanco, namely the affidavit in reply to the Notice of Motion No.2453 of 2018 dated 27.10.2018 filed in ICICI's Suit as well as the additional affidavit in reply to Notice of Motion No.2453 of 2018 dated 25.01.2019. He has also placed reliance upon the pleadings in Interim Application (L) No.3582 of 2021 dated 02.02.2021 filed by Lanco and the affidavit in reply of Lanco to Interim Application (L) No.3905 of 2021 dated 01.07.2021 which have been filed in the ICICI's Suit. All these pleadings proceed on the basis that the Senior Lenders are entitled to appropriate the Substitution Proceeds and thereafter, the balance amount will be paid to ICICI having second/subservient charge. The Outstanding Debts refer to that of the SBI, Bank of Baroda and ICICI. Therefore, while Lanco has maintained that payments are required to be made in priority towards statutory dues of the Company, nowhere has Lanco denied that ICICI is entitled to Substitution Proceeds. To the contrary, Lanco has consistently acknowledged ICICI's entitlement to the Substitution Proceeds. In any event, distribution of amounts to Lanco for statutory payments is the subject matter of applications filed by Lanco in ICICI's Suit which is Waghmare 32/61 IAL.2102.22 wt..doc currently pending.
52 Mr. Jagtiani has submitted that IDBI has no case of priority, in their favour on the basis of the Indenture of Mortgage. This is because there is no charge created in their favour on the Aggregate Transaction Consideration under the Indenture of Mortgage. The Substitution Proceeds deposited in Court do not and cannot form the IDBI's security under any of the sub-clauses to Clause 4 of the Indenture of Mortgage, since the proceeds from substitution are not the property of the mortgagor i.e. Lanco; and neither are the proceeds those which arise from the liquidation of Lanco's assets or security. The proceeds from substitution and the amounts lying in the escrow cease to be Lanco's property upon the substitution taking place. The Substitution Proceeds and amounts lying in escrow constitute a difference source of funds available through a special/novel mechanism to discharge the dues of Lanco's lenders (i.e. the Senior Lenders and ICICI), when Lanco ceases to be the Concessionaire in the Project, and has no right or demand over the Project or any related proceeds, or under any project assets (as defined under the Concession Agreement). Both under the Substitution Agreement and the Concession Agreement, there is no provision conferring Substitution Proceeds and amounts lying in escrow the status of Lanco's property. Without prejudice to the forgoing, and even though the same has not been urged by IDBI in Waghmare 33/61 IAL.2102.22 wt..doc the course of oral arguments, it is submitted that even the amounts lying in escrow post substitution of Cube in place of Lanco are not the asset of Lanco. Though there is no pleading to this effect, IDBI have in oral arguments contended that IDBI's right to the Substitution Proceeds arises on account of the charge created by Lanco in favour of IDBI on Lanco's 'receivables'. This argument has no merit in view of the fact that the Substitution Proceeds cease to be Lanco's property upon the substitution having taken place. Thus, IDBI's argument that the Substitution Proceeds are a "receivable" of Lanco is patently erroneous, for even, Lanco has admitted that the Substitution Proceeds are to be utilized to pay the dues of the Senior Lenders and ICICI. As a result, IDBI's security over 'receivables' of Lanco cannot mean to include the Substitution Proceeds, and is therefore not covered under IDBI's Indenture of Mortgage. 53 Mr. Jagtiani has then relied upon the decision of the Supreme Court in Jitendra Nath Singh v. Official Liquidator and Others (2013) 1 SCC 462 wherein the Supreme Court discussed the interpretation of Sections 529 and 529-A of the Companies Act, 1956 and held that a secured creditor has only a charge over a particular property or asset of the Company. In the absence of the Substitution Proceeds being an asset of Lanco, IDBI cannot claim security over the Substitution Proceeds under its Indenture of Mortgage. Mr. Jagtiani has then submitted that without Waghmare 34/61 IAL.2102.22 wt..doc prejudice to the forgoing and in the alternative, if the Substitution Proceeds are to be treated as an asset of Lanco, such Substitution Proceeds at the best constitute "Project Assets" which has been defined under the Concession Agreement as all physical and other assets relating to and forming part of the Project Highway and under the first proviso to Clause 4 of the Indenture of Mortgage, the security interest stipulated in Clause 4 is that it shall in all respects, exclude the Project Assets unless such Security Interest is consented to by NHAI pursuant to the Concession Agreement. It is an admitted position that IDBI do not have NHAI consent, as required under the proviso. Thus, IDBI's security does not even extend to Project Assets, which is wide in its definition. As opposed to this, ICICI's entitlement under the Bid Document has been consented to by the Senior Lenders as well as the NHAI.
54 Mr. Jagtiani has then dealt with IDBI's argument that the principles under Section 48 of the Transfer of Property Act as well as the judgment of SIDCO (supra) is applicable and that the Court is to determine priority of rights and IDBI having a higher charge and ICICI's charge being subordinate to that of IDBI, the balance Substitution Proceeds which represents the security interest of IDBI is required to be distributed in accordance with the rule on priorities and would necessarily have to take into consideration IDBI's charge. He has submitted that Waghmare 35/61 IAL.2102.22 wt..doc Section 48 of the Transfer of Property Act specifically deals with priority of rights created by transfer in immovable properties, thereby not being applicable to any question of priority over the Substitution Proceeds which are concerned in the present matter. The decision of the Supreme Court in SIDCO (supra) also concerns priority in respect of properties belonging to the mortgagor and that the first charge holder will have to be repaid first in that context. Considering that the Substitution Proceeds is not a property belonging to the mortgagor, the decision of Supreme Court in SIDCO (supra) is inapplicable to the present case. Further he has submitted that the decision relied upon by IDBI in Sha Mulchand and Company Limited (in liquidation) by the Official Receiver, High Court, Madras, (supra) in contending that mere laches will not take away a party's proprietary rights, does not come to the aid of IDBI since ICICI is not arguing that IDBI has relinquished their proprietary rights. In the present case, IDBI has failed to prove their entitlement to the Substitution Proceeds. Further, the decision of the Delhi High Court in Shri Swaran Singh Trading (supra) which is in similar vein and relied upon by IDBI is inapplicable in the present case. So also the passage of Stevan Gee QC in his commentary on Commercial Injunction which is in context of Mareva Injunction and not relevant to the case in hand. The passage has gone on to state that in assessing balance of convenience, the Court is seeking to Waghmare 36/61 IAL.2102.22 wt..doc take the course which will have the least risk of injustice. 55 Mr. Jagtiani has submitted that SBI has in course of oral arguments submitted that its position is neutral as regards question of entitlement of IDBI or ICICI after satisfaction of the Senior Lender's Debt. This is contrary to the pleadings filed by SBI i.e. in numerous Interim Applications across multiple affidavits acknowledging ICICI's right to the Substitution Proceeds. He has in this context relied upon the affidavit in reply to the Notice of Motion No.2453 of 2018 dated 12.10.2018 as well as affidavit in reply to Interim Application (L) No.3905 of 2021 dated 02.03.2021 filed by SBI in the ICICI Suit. In these pleadings, SBI has acknowledged the debts of ICICI and that the Substitution Proceeds can be used for satisfying the dues of ICICI after satisfying Senior Lenders entire claim. The stand of SBI in adopting neutrality is contrary to such pleadings and SBI cannot resile from its position in such multiple pleadings/affidavits.
56 Mr. Jagtiani has submitted that IDBI's claim is a claim to the monies lying in Court and not a claim to property in specie. In the circumstances, distribution of the Substitution Proceeds can well be permitted, subject to the outcome of IDBI's Suit. In the event that IDBI was to succeed in its Suit, ICICI can bring back the monies if so directed. Waghmare 37/61
IAL.2102.22 wt..doc Given IDBI's conduct, he has submitted that such an order would meet the ends of justice.
57 Mr. Jagtiani has placed reliance on judgments passed by this Court, the Calcutta High Court and the Supreme Court in cases of Ambalal Sarabhai Enterprise Limited v. KS Infraspace, (2020) 5 SCC 410; Prabhakar v. Joint Director, Sericulture, (2015) 15 SCC 1; Rajesh v. Mrs. Bhavna, 2008 (6) Mh.LJ 853; Triloki Nath Singh v. Anirudh Singh, (2020) 6 SCC 629 and Jadu Nath Gupta v. Chandra Bhusan Sur and Others, AIR 1932 Cal 493 para 13 in support of his submissions that conduct of a party seeking equity is analyzed at the time of granting relief and that acquiescence disentitles a party from claiming relief. Further a compromise decree creates an estoppel by judgment. Third parties cannot challenge a consent decree by way of a separate suit and when waiver or abandonment by the Plaintiff induces the Defendant to change his position, the Plaintiff ought not to be granted any relief. IDBI have not dealt with these judgments cited by ICICI in its rejoinder arguments. 58 Mr. Jagtiani has placed reliance on the decision of the Calcutta High Court in Jadu Nath Gupta (supra) which holds that mere delay is not a ground for refusing relief to the Plaintiff if there has been no change in status quo since the contract, but where the conduct of the Waghmare 38/61 IAL.2102.22 wt..doc Plaintiff is such that though it does not amount to abandonment but shows waiver or acquiescence especially when inaction on his part induces the Defendant to change his position, the Plaintiff ought not to be allowed any relief. The two circumstances which are to be borne in mind is a length of the delay and the nature of the acts done during the interval which may affect either party to cause a balance of justice or injustice in taking the one course or the other, so far as it relates to the remedy. Mr. Jagtiani has in this context submitted that ICICI while diligently prosecuting its Suit, has made compromises and irreversibly altered its position on several occasions, either pursuant to suggestions of this Court or based on the position adopted by SBI as well as with intent to resolve the dispute in an amicable manner as between the parties to the ICICI suit. Accordingly, IDBI's delay coupled with the irreversible steps taken by ICICI during such time ought to weigh against IDBI and in favour of ICICI, as per the settled law.
59 Mr. Jagtiani has submitted that it cannot only be the Senior Lenders who are guaranteed the Substitution Proceeds in ICICI's Suit by virtue of signing the Consent Minutes, while ICICI is deprived of the Substitution Proceeds, by an order of injunction which will resultantly stall the distribution process completely. It is also imperative to note that SBI's acceptance of distribution of the Substitution Proceeds to ICICI after Waghmare 39/61 IAL.2102.22 wt..doc satisfaction of the Senior Lenders' dues is consistent with the consent order passed by this Court. Grave harm, loss and prejudice will be caused to ICICI if the orders passed by this Court read with the Bid Document are not implemented in the manner contemplated by this Court. No such harm will be caused to IDBI if distribution of the Substitution Proceeds take place in ICICI's suit.
60 Mr. Jagtiani has submitted that IDBI has failed to establish a prima facie case in its favour. Furthermore, IDBI has failed to explain the delay in approaching this Court to seek injunctive reliefs, let alone demonstrate their bonafides. Accordingly, the relief sought for by IDBI ought not to be granted by this Court as it will only displace and negate orders passed by this Court since October, 2018 causing irreparable harm to ICICI and render the sanctity of the orders of this Court void. 61 Having considered the submissions, it would be necessary to note that the Concession Agreement had been executed on 09.07.2007 between Lanco and NHAI for construction of road on build, operate and transfer (BOT) basis. In the Concession Agreement, the Senior Lenders were defined and which includes financial institutions, banks, funds and agents or trustees of debenture holders, non banking financial companies or other major lending agencies approved by Reserve Bank of India Waghmare 40/61 IAL.2102.22 wt..doc including their successors and assignees, who have agreed to guarantee or provide finance to the Concessionaire under any of the finance documents for meeting costs of all or any part of the project and who hold pari passu charge on the concession granted by this agreement. The object of the Concession Agreement was for the Concessionaire to enjoy and oblige as Concessionaire by levying, demanding, collecting and appropriating fees from vehicles and persons liable to payment of fees for using the project highway or any part thereof and refuse entry of any vehicle to the project highway if the due fee is not paid. Further, the Concessionaire was not to assign or create any lien or encumbrance on the concession granted by the Concession Agreement on the whole or any part of the project highway nor transfer, lease or part possession therewith save and except as expressly permitted by the said Concessionaire Agreement or the Substitution Agreement. It was further provided under the Assignments and Charges provision in the Concession Agreement i.e. Clauses 35.1 and 35.2 thereof that the Concession Agreement shall not be assigned by the Concessionaire save and except with prior written consent of NHAI and the Concessionaire shall neither create nor permit to subsist any encumbrance over or otherwise transfer or dispose of all or any of its rights and benefits under the Concession Agreement or any Project Agreements to which the Concessionaire is a party except with prior Waghmare 41/61 IAL.2102.22 wt..doc written consent of NHAI which consent NHAI shall be entitled to decline without assigning any reasons whatsoever. In Clause 35.4 of the Concessionaire Agreement it was provided that the Senior Lenders may exercise the rights of step-in or substitution as provided in the Substitution Agreement to be entered into among the Concessionaire, NHAI and Senior Lenders provided that the person substituting the Concessionaire shall be deemed to be the Concessionaire under the Concession Agreement and shall enjoy all rights and be responsible for all obligations under the Concession Agreement as if it was the Concessionaire.
62 In the Substitution Agreement executed on 08.02.2008 between NHAI, SBI and Bank of Baroda, the Lenders' Dues were defined under Clause 1.1.8 thereof which means the aggregate of all monies owed by the Concessionaire to the Senior Lenders under the Financing Documents on account of principal thereunder for funding the Project Cost, and all accrued interest, additional interest, liquidated damages, commitment fees, commission, prepayment premium, costs, charges and other monies including financing charges and fees owed by the Concessionaire to the Senior Lenders under the Financing Documents for the Project upto the transfer date, payable under the Financing Documents. In clause 6.1 of the Substitution Agreement, it was provided Waghmare 42/61 IAL.2102.22 wt..doc that the Senior Lenders shall be entitled to appropriate any consideration received for the substitution as provided from the Selectee towards the payment of their and NHAI's respective dues to the exclusion of the Concessionaire.
63 Thus it can be seen from both the Concession Agreement and the Substitution Agreement that the Senior Lenders' dues were to be taken care of from the Concessionaire and upon his failure to pay the dues of the Senior Lenders, the Senior Lenders have the option to substitute the Concessionaire by the Selectee under the Substitution Agreement and appropriate consideration received for the substitution from the Selectee towards payment of their and NHAI's respective dues to the exclusion of the Concessionaire.
64 The purpose for filing the suit by ICICI was to seek injunctive reliefs against the Senior Lenders from replacing the Concessionaire under the Concession Agreement without prior consent of ICICI who are also creditors having executed Rupee Facility Agreement with the Concessionaire on 13.06.2012 whereby ICICI had provided a Rupee Facility of INR 90 crores. The injunctive relief against the Senior Lenders was necessary according to ICICI as the Senior Lenders would appoint the Selectee without the consent of ICICI and that may be prejudicial to the Waghmare 43/61 IAL.2102.22 wt..doc security interest created in favour of ICICI under the Deed of Hypothecation which was executed by the Concessionaire on 16.12.2015 in favour of ICICI as security interest under the Rupee Facility Agreement ranking subservient to the security interest created in favour of SBI and Bank of Baroda (the then Dena Bank). At the time of filing of the Suit, ICICI was not aware that SBI had issued a Bid Document dated 23.08.2018, which categorically recorded ICICI's dues as part of the Outstanding Dues upon the substitution taking place. 65 The Bid Document was issued by SBI pursuant to an advertisement issued stating that as lender's agent it proposed to substitute the concessionaire with a suitable Selectee in terms of the Substitution Agreement and solicited debts from prospective bidders over the rights and obligations of the Concessionaire under the Concession Agreement for the residual period of the concession. It is necessary to note that in the Bid Document issued by SBI on 23.08.2018, under Clause 1.2 of the definitions, "Aggregate Transaction Consideration" has been defined as under :
Clause 1.2 Definitions "Aggregate Transaction Consideration" shall mean the aggregate consideration payable by the Bidder for (i) the acquisition of concession rights for the Project for residual Waghmare 44/61 IAL.2102.22 wt..doc term of the concession under the Concession Agreement and (ii) discharge of Outstanding Debt in full to the satisfaction of the Lenders.
Further, "outstanding debts" has also been defined as under:
"Outstanding Debt" shall mean all the amounts outstanding in the books of the Company in relation to the loan/ indebtedness availed by the Company from the Senior Lenders and ICICI Bank. The details of the Outstanding Debt as on March 31, 2018 are set out in detail in Annexure VI of Appendix.
"Senior Lenders" shall mean the banks and financial institutions from which the Company has availed financial assistance to finance the cost of construction of the Project, as specifically set out in Annexure VI of Appendix.
Under Clause 1.13, terms and conditions of substitution have been provided as under :
Clause 1.3 Terms and conditions of substitution 1.13.1 By admitting a Bid in terms of this Bid Document, a Bidder is deemed to have (i) acknowledged the following and undertaken the following obligations, and (ii) made the following representations to the Lenders' Agent, the Senior Lenders and the Authorised Representative:
(a) ...
(b) The Bidder acknowledges and unconditionally as -
sumes the liability to discharge the Outstanding Waghmare 45/61 IAL.2102.22 wt..doc Debt on the terms approved by the Senior Lenders and in accordance with the Definitive Agreements.
(k) The Bidder undertakes that it shall comply with all the terms of the Bid Document and the Definitive Agreements including discharge of the Outstanding Debt to the Senior Lenders as subsisting on the Substitution Date, if it is declared as a Selectee upon the completion of the Bidding Process.
Further Clause 2.9.7 of the Bid Document provided for payment of Aggregate Transaction Consideration as under :
Clause 2.9.7 Payment of Aggregate Transaction Consideration The entire Aggregate Transaction Consideration shall be payable by the Selectee upfront in the manner prescribed in the Definitive Agreements and in any case, prior to execution of the New Concession Agreement with NHAI. The Aggregate Transaction Consideration shall be paid through an escrow mechanism detailed in the Definitive Agreements.
Under Annexure V Primary Offer has been mentioned as under :
Annexure V PRIMARY OFFER
1. Proposed Transaction and Aggregate Trans-
action Consideration
(i)...
(ii) The Road Company shall acquire the conces-
Waghmare 46/61
IAL.2102.22 wt..doc
sion rights of the Company (free of any and all en-
cumbrances from any lender including ICICI Bank) in the Project pursuant to the Proposed Transac- tion for an Aggregate Transaction Consideration of INR 385.90 Crore which upon payment of the aforesaid amount on the Closing Date (as defined hereinafter) shall be the full and final discharge of all the dues of the Company towards the Senior Lenders under the Financing Documents. This Ag- gregate Transaction Consideration is as on Sep- tember 30, 2018 and does not include actual cash balance as on September 30, 2018. For Sake of clarity, actual cash balance as on September 30, 2018 shall be retained in the Company.
(iii) The Aggregate Transaction Consideration shall be paid through an escrow mechanism that will be detailed in the binding agreement to be ex-
ecuted between the Senior Lenders, the Primary Offeror and such other third parties (as are mutu-
ally agreed between the Senior Lenders and the Primary Offeror) for the purpose of giving effect to the Proposed Transaction ("Definitive Agree-
ment").
5. Conditions Precedent to effectiveness of Defini-
tive Agreements and Closing
"Upon receipt of Aggregate Transaction
Consideration by Senior Lenders and ICICI Bank in accordance with the terms detailed in the Definitive Agreements the Senior Lenders shall within a reasonable period, provide a confirmation to the Road Company that they have no charges/encumbrances on the Project Assets."
[emphasis supplied] Waghmare 47/61 IAL.2102.22 wt..doc Annexure VI of the Bid Document provides details of outstanding debt as under:
ANNEXURE VI - DETAILS OF OUTSTANDING DEBT The Outstanding Debt as on March 31, 2018 is given below:
Senior Sanctione Outstand Overdue Overdue Total Lenders d loan (in ing Principal Interest Outstanding Rupees/ Principal (in (in Debt (in crore) (in Rupees/ Rupees/ Rupees/ Rupees/ crore) crore) crore) crore) (2) (3) (1)+(2)+ (3) (1) State 225.69 219.82 0.00 0.00 219.82 Bank of India as Senior lender Dena 16.72 16.29 0.00 0.00 16.29 Bank as Senior Lender Other Sanctione Outstand Overdue Overdue Total Outstand d Loan (in ing Principal Interest Outstanding ing Debt Rupees/ Principal (in (in Debt (in crores) (in Rupees/ Rupees/ Rupees/ Rupees/ crores) crores) crores) crores) (2) (3) (1)+(2)+ (3) (1) ICICI 90.00 83.70 3.15 17.30 104.15 Bank Total 332.41 319.81 3.15 17.30 340.26 Outstand ing Debt Waghmare 48/61 IAL.2102.22 wt..doc 66 Thus it can be seen from the Bid Document that apart from the Senior Lenders dues which were shown under the definition of Outstanding Debt, the dues of ICICI Bank were also clearly mentioned and this is further borne out from Annexure VI which provides the details of outstanding debt wherein under other outstanding debt, the ICICI debt is mentioned as part of the total outstanding debt of Rs.340.26 crores.
Though it has been stated during the arguments by Mr. J.P. Sen for SBI and Bank of Baroda that the reason for including ICICI's debt was because it appeared in the financial statements of Lanco, it is clear from the pleadings of SBI as well as that of Lanco that it was clearly envisaged in the Bid Document that the moneys being brought in by the selectee was for satisfying not only the Senior Lenders dues which would be first satisfied but also any residue of the Substitution Proceeds being used to satisfy the outstanding debts of ICICI. It has been stated by ICICI that the Bid Document was revealed to them only in October, 2018 when SBI filed an affidavit in ICICI's Notice of Motion, placing the Bid Document on record. It is further necessary to note that in the Suit filed by the ICICI, an application had been taken out by ICICI for urgent relief and on 31.10.2018, this Court passed an injunction order in favour of ICICI, directing that ".... NHAI will not grant approval to the agreement executed by and between the Defendants and the new Concessionaires". Waghmare 49/61
IAL.2102.22 wt..doc 67 After settlement discussions which took place between the parties to the ICICI's suit, on 18.02.2019, the parties to ICICI's Suit i.e. ICICI, the Senior Lenders, Lanco, NHAI and the selectee Cube entered into Consent Terms which were filed before this Court and the Consent Terms recorded the modalities of the substitution, including inter-alia the deposit of the amount brought in by Cube in this Court. It is necessary to note that in the said order which came to be passed by this Court in terms of the Consent Minutes of Order filed by the parties, a direction was issued that the manner of distribution of the amount paid into Court as mentioned in the consent minutes shall be determined in the Notice of Motion filed by ICICI i.e. Notice of Motion No.2453 of 2018 in the ICICI suit. By the execution of the consent minutes, ICICI had given up the injunction order for the substitution process to take place. By giving up the injunction order, ICICI had enabled substitution eventually to take place and for the substitution proceeds to be received from the substitution process. However, for the substitution process to ultimately take place it took nearly 23 months after the filing of the consent minutes. ICICI had during this time taken out several applications and this was necessitated on account of the fact that for each day of delay in completion of the substitution process, the aggregate transaction consideration was reducing by an amount of INR 15 lakhs. In fact ICICI Waghmare 50/61 IAL.2102.22 wt..doc went to the extent of seeking vacation of the consent order and reinstatement of the injunction order in light of the inordinate delay in the substitution process by taking out Interim Application No.1870 of 2020 in March, 2020.
68 The Interim Application was considered by this Court on 13.01.2021 at which time this Court was informed that the ATC had been received from Cube. ICICI accordingly consciously did not press its prayer for vacation of the consent order and reinstatement of the injunction order before this Court, as it was cognizant of the fact that the same would result in the substitution process being unravelled. This Court recorded that ICICI had "fairly stated" that it is accepting the consent order. This Court accordingly directed ICICI and the Senior Lenders to consider a settlement to work out the entire dispute, upon considering that the ATC and the escrow amount aggregated to approximately INR 340 crores and the dues claimed by ICICI, S.B.I. and Bank of Baroda in the ICICI Suit came to approximately INR 380 crores. It was recorded in the said order that the learned Senior Counsel appearing on behalf of ICICI had fairly stated that it was not pressing prayer Clause (a) that and is accepting the consent order dated 18.02.2019. Prayer Clause (a) was pending the hearing and final disposal, this Court be pleased to vacate the consent order and reinstate the stay order dated 31.10.2018. Waghmare 51/61
IAL.2102.22 wt..doc 69 Thus ICICI, time and again, pursuant to the suggestions of this Court as well as with intent of bringing a quietus to the dispute, made compromises and altered its position, in my prima facie view irreversibly. IDBI in the present suit had only in October, 2019 filed an application seeking to be impleaded as party Defendant in ICICI suit. However, this impleadment application, though filed on 11.10.2019 was not moved by IDBI and it was only on 23.03.2021 that IDBI appeared for the first time in ICICI's Suit. This coincided with the period when ICICI was in advanced settlement talks with the Senior Lenders. As aforementioned, the impleadment Application filed by IDBI in the ICICI's Suit was rejected by this Court on 20.12.2021. This Court has found IDBI to be neither necessary nor proper parties in ICICI's Suit apart from noticing the considerable delay in the IDBI moving the impleadment application. The order passed by the Single Judge on 20.12.2021 was confirmed on 12.01.2022 by the Division Bench of this Court. 70 IDBI by the present Interim Application have pleaded that there is a right of priority of IDBI over ICICI in that the charge created in favour of IDBI by Lanco is a prior in time and superior charge than the charge created by Lanco in favour of ICICI. That IDBI has priority over ICICI in respect of the distribution of Substitution Proceeds deposited in this Court. It is necessary to note that IDBI are lenders to Lanco Infratech Waghmare 52/61 IAL.2102.22 wt..doc which is the parent company of Lanco and it is Lanco as the original Concessionaire who was thereafter substituted by Cube. IDBI seem to proceed on the premise that there is a charge created in their favour on the Substitution Proceeds and that the Substitution Proceeds are nothing but Lanco's receivables in respect of which IDBI have a charge under Clause 4 of the Indenture of Mortgage. The relevant portion of Clause 4 of the Indenture of Mortgage is required to be reproduced which is as under :
"4. GRANTS AND TRANSFER For the consideration aforesaid and as continuing security for the payment and discharge of the Outstandings hereby secured or intended to be hereby secured, the Mortgagor doth hereby, subject however to the proviso for redemption hereinafter contained:-
(vi) grant, convey, assign, assure, charge, transfer, by way of security unto and in favor of the Security Trustee in trust for the benefit of the CDR Lenders all amounts owing to and received by, the Mortgagor and rights, title, interest, benefits, claims and demands whatsoever of the Mortgagor in, to or in respect of all Receivable including those under any letter of credit, liquidated, damages, contractor guarantees, guarantee and performance bond provided by any party to the Project Documents and other amounts owing to and receive by the Mortgagor and on all intangible assets of the Mortgagor in-
cluding but not limited to goodwill, trademarks and patents, present and future which description shall include all proper- ties of the above description whether presently in existence or acquired hereafter (collectively the "Sixth Mortgaged Properties") TO HAVE AND TO HOLD by way of security all and singular the Sixth Mortgaged Properties unto and to use Waghmare 53/61 IAL.2102.22 wt..doc of the Security trustee in trust for the benefit of the CDR Lenders; ..."
Receivables have been defined in the Indenture of Mortgage as under :
"Receivables shall mean all monies receivable (whether evidences as book debts or otherwise) under contracts, deeds or documents or under law and any revenues of whatsoever nature and wherever arising present and future, including the Project Proceeds and those receivable under the Concession Agreement."
71 In my prima facie view Substitution Proceeds deposited in this Court by the Selectee/new Concessionaire/Cube cannot be considered to be IDBI's security under any of the sub-clauses to Clause 4 of the Indenture of Mortgage, since the Substitution Proceeds are not the property of the mortgagor i.e. Lanco and neither are those proceeds arising from liquidation of Lanco's assets or security. This can be seen from the Substitution Agreement which is aforementioned and in particular Clause 6.1 thereof which expressly provides that the Senior Lenders shall be entitled to appropriate any consideration received for the substitution as provided from the Selectee towards payment of their and NHAI's respective dues to the exclusion of the Concessionaire. Thus the proceeds from substitution as well as the amounts lying in escrow which have also been referred to in Clause 6.1 of the Substitution Agreement Waghmare 54/61 IAL.2102.22 wt..doc cease to be Lanco's property upon the substitution taking place. There is much substance in the contention of Mr. Jagtiani on behalf of ICICI that the Substitution Proceeds and amounts lying in escrow constitute a different source of funds available through a special/novel mechanism to discharge the dues of Lanco's lenders which would include the Senior Lenders and ICICI, when Lanco ceases to be the Concessionaire in the project, and has no right or demand over the project or any related proceeds, or under any Project Assets (as defined under the Concession Agreement). Under both the Substitution Agreement and the Concession Agreement, there is no provision conferring the Substitution Proceeds and amounts lying in escrow as the status of Lanco's property. The Substitution Proceeds cannot be considered to be a receivable of Lanco as the Substitution Proceeds are to the exclusion of Lanco and are brought in by the selectee. Thus in my prima facie view the Substitution Proceeds are not covered under IDBI's Indenture of Mortgage. 72 The decision of the Supreme Court in Jitendra Nath Singh vs. Official Liquidator and others (supra) relied upon by Mr. Jagtiani clearly provides that a secured creditor has only a charge over a particular property or asset of the company. This was a case discussing the interpretation of Section 529 and 529-A of the Companies Act, 1956. Considering that the Substitution Proceeds are not an asset of Lanco, the Waghmare 55/61 IAL.2102.22 wt..doc Plaintiffs cannot claim security over the Substitution Proceeds under its Indenture of Mortgage.
73 Now it would be necessary to consider "Project Assets" which have been defined in the Concession Agreement as under :
"All physical and other assets relating to and forming part of the Project Highway including but not limited to (i) rights over the Site in the form of license, right of way or otherwise, (ii) tangible assets such as civil works including the foundation, embankments, pavements, road, surface, interchanges, bridges, approaches to bridges and flyovers, road over bridges, drainage works, lighting facilities, traffic signals, sign boards, milestones, toll plazas, equipment for the collection of tolls or relating to regulation of traffic, electrical works for lighting on the Project Highway, telephone and other communication systems and equipment for the Project, rest areas, administration and maintenance depots, relief centers, service facilities etc."
[emphasis supplied] It is clear from the definition of Project Assets that they include all physical and other assets relating to and forming part of the project i.e. including but not limited to what is provided in the said definition. However, under the first proviso to Clause 4 of the Indenture of Mortgage, the security interest stipulated in Clause 4 "shall in all respects exclude the project assets unless such security interest is consented to by NHAI pursuant to the Concession Agreement". In the present case the Plaintiffs do not have NHAI consent, as required under the proviso and thus the Waghmare 56/61 IAL.2102.22 wt..doc Plaintiffs security cannot extend to Project Assets. 74 The decision relied upon by Mr. Bharucha, learned Counsel of the Plaintiffs, namely SIDCO (supra) is a decision which considered Section 48 of the Transfer of Property Act and dealt with priority of rights created by transfer in immovable properties as provided under that Section. This decision has no bearing on the question of priority over Substitution Proceeds which is being considered in the present matter. The Supreme Court in that decision considered a case where debts due to both, first charge holder and the second charge holder, are to be realized from the property belonging to the mortgagor, the first charge holder will have to be repaid first. The Substitution Proceeds is not a property belonging to the mortgagor, thereby the said decision of the Supreme Court will have no applicability to the facts of the present case. Further, the decision in Sha Mulchand and Company Limited (in liquidation) by the Official Receiver by the High Court, Madras (supra) was relied upon by Mr. Bharucha in support of his contention that mere laches will not take away a parties vested right. In the present case there is no case of relinquishment of IDBI's vested rights. IDBI would have to establish that they have an entitlement to the Substitution Proceeds, to place any reliance upon the said decision which is in my prima facie view it has not. Further, the passage on commercial injunctions by Stevan Gee QC (Sixth Waghmare 57/61 IAL.2102.22 wt..doc Edition) was relied upon by Mr. Bharucha to contend that delay is immaterial in cases when injunction based on a proprietary claim has been sought, in my view does not come to the aid of IDBI, since that case was concerning a mareva injunction, which does not apply in the present case. Further, IDBI's claim is a claim to the monies lying in Court and not a claim to property in specie. Thus IDBI's reliance on the passage is entirely misplaced.
75 Having considered that IDBI's claim cannot be considered to be a claim to property in specie but in fact is a claim to the monies lying in the Court, there is much merit in the submission of Mr. Jagtiani that distribution of these monies which are the Substitution Proceeds can be permitted, subject to IDBI's Suit. It is not that if IDBI were ultimately to succeed in their suit, ICICI would not be good for the monies and they can certainly be directed in that eventuality to bring back the monies if so directed. The decisions on which Mr. Jagtiani has placed reliance for ICICI namely Ambalal Sarabhai Enterprise Limited (supra); Prabhakar (supra); Rajesh (supra); Triloki Nath Singh (supra) and Jadu Nath Gupta (supra) in support of his submission that conduct of the party seeking equity has to be analysed at the time of granting relief; acquiescence disentitles a party from claiming relief and a compromise decree creates an estoppel by judgment/third parties cannot challenge a consent decree Waghmare 58/61 IAL.2102.22 wt..doc by way of a separate suit; and when waiver or abandonment by the Plaintiff induces the Defendant to change his position, the Plaintiff ought not to be granted any relief, are cases which would apply in the present case. It is noted that IDBI has not dealt with these judgments in rejoinder. 76 In the present case as noted above, ICICI has in fact made compromises and in my prima facie view have irreversibly altered its position on several occasions, both on suggestions of this Court, as well as on the pleadings of SBI as well as in order to resolve dispute with SBI in an amicable manner by agreeing to the Substitution Proceeds being deposited in this Court to settle the outstanding dues of the Senior Lenders as well as the residuals thereof to settle the dues of ICICI. IDBI's delay in firstly bringing the impleadment application and then moving it as well as the delay in filing the present suit coupled with the irreversible steps taken by ICICI during such delay weighs against IDBI and in favour of ICICI as per the settled law.
77 Mr. J.P. Sen, learned Senior Counsel for SBI and Bank of Baroda had submitted that the SBI has taken a neutral stand in the matter and is not concerned with the dispute between ICICI and the Plaintiffs. However, the various pleadings of SBI is clearly to the contrary. These pleadings have been referred to above and which clearly show that SBI Waghmare 59/61 IAL.2102.22 wt..doc had taken into consideration that the outstanding dues/debt would include that of ICICI and that the Substitution Proceeds could be used for satisfying the dues of ICICI after satisfying the Senior Lenders entire claim. Further, SBI had inspite of such pleadings addressed a letter dated 22.05.2019, by which it specifically requested the Plaintiffs to intervene in ICICI's Suit. This is despite having signed the consent minutes and being party to the consent order. In my prima facie view, the Senior Lenders having been guaranteed the Substitution Proceeds in the ICICI suit by virtue of the consent minutes, cannot be heard to adopt a position contrary to the interest of ICICI and/or dilute the stand in prior pleadings and stand taken before this Court prior to the IDBI Suit. 78 Thus in my prima facie view IDBI has failed to establish that they have a claim on the Substitution Proceeds which have been deposited in this Court in ICICI's Suit. Further, IDBI's application for injunctive relief suffers from gross delay and laches and no injunction can be granted in the manner sought for by IDBI which would result in stalling the distribution process of the Substitution Proceeds, particularly given the fact that ICICI has made compromises and irreversibly altered its position in its suit. Any such injunction granted stalling the distribution process of the Substitution Proceeds would result in negating orders passed by this Court, which orders have been passed from time to Waghmare 60/61 IAL.2102.22 wt..doc time since October, 2018 and which would cause irreparable harm to ICICI. Accordingly the relief sought for in the present Interim Application cannot be granted.
79 The Interim Application (L) No.2102 of 2022 is accordingly disposed of.
Digitally signed
(R.I. CHAGLA, J.) by WAISHALI SUSHIL WAISHALI WAGHMARE SUSHIL Date:
WAGHMARE 2022.09.30 15:20:54 +0530 Waghmare 61/61