Bombay High Court
Shivalik Ventures Pvt. Ltd vs Addon Realty Pvt. Ltd. And 6 Others on 8 April, 2024
Author: Abhay Ahuja
Bench: Abhay Ahuja
908. CHSCD 969-19 in COMEX 48-21 @ Ors..doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
CHAMBER SUMMONS NO. 969 OF 2019
IN
COMMERCIAL EXECUTION APPLICATION NO. 48 OF 2021
Addon Realty Pvt. Ltd. ...Applicant
V/s.
Shivalik Ventures Pvt. Ltd. and Ors. ...Respondents
WITH
INTERIM APPLICATION (L) NO. 9445 OF 2023
IN
CHAMBER SUMMONS NO. 955 OF 2019
WITH
CHAMBER SUMMONS NO. 955 OF 2019
IN
COMMERCIAL EXECUTION APPLICATION NO. 49 OF 2021
WITH
INTERIM APPLICATION (L) NO. 31785 OF 2022
IN
CHAMBER SUMMONS NO. 955 OF 2019
WITH
INTERIM APPLICATION (L) NO. 7857 OF 2020
IN
CHAMBER SUMMONS NO. 955 OF 2019
WITH
INTERIM APPLICATION (L) NO. 7851 OF 2020
IN
CHAMBER SUMMONS NO. 955 OF 2019
WITH
INTERIM APPLICATION (L) NO. 8634 OF 2020
IN
COMMERCIAL EXECUTION APPLICATION NO. 49 OF 2021
WITH
COMPANY PETITION NO. 136 OF 2019
IN
COMPANY PETITION NO. 17 OF 2019
WITH
CONTEMPT PETITION NO. 137 OF 2019
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908. CHSCD 969-19 in COMEX 48-21 @ Ors..doc
IN
CONTEMPT PETITION NO. 55 OF 2018
WITH
INTERIM APPLICATION NO. 4465 OF 2022
IN
COMMERCIAL EXECUTION APPLICATION NO. 48 OF 2021
WITH
INTERIM APPLICATION (L) NO. 31785 OF 2022
IN
CHAMBER SUMMONS NO. 955 OF 2019
Mr. Chetan Kapadia, Senior Advocate with Mr. Karl Tamboly, Mr.
Malcolm Siganporia and Ms. Smital Sawant i/b Mr. Tushar Godadia for
Applicant in both execution applications.
Mr. Simil Purohit with Mr. Kevin Pereira i/b Ms. Disha Jain for
Respondent No.1 in CHSCD 969/2019 & CHSCD 955/19.
Mr. Venkatesh Dhond, Senior Advocate with Mr. Chinmaya Acharya i/b
Mr. Gaurav Lele for Respondents No. 2 and 3 in CHS 969/19 & CHSCD
955/19.
Mr. Viraj Jadhav i/b Samiksha Rao for Respondents No. 4 and 5 in CHS
96/19 in EXA 48/21 & CHSCD 955/19 in EXA 49/21.
CORAM : ABHAY AHUJA, J.
DATE : 8th APRIL, 2024 P.C. :
1. Pursuant to the order dated 26 th March, 2024 and 2nd April, 2024, affidavits have been filed before this Court on behalf of the contesting parties.
2. Mr. Kapadia, learned Senior Counsel appears for the Applicant and has sought to canvass before this Court that by order dated 20 th January, 2020, in Civil Appeal No(s). 10856 of 2016 along with connected interim applications, the Hon'ble Supreme Court while Nikita Gadgil 2/6 ::: Uploaded on - 08/04/2024 ::: Downloaded on - 09/04/2024 22:42:56 :::
908. CHSCD 969-19 in COMEX 48-21 @ Ors..doc superseding the Board of Directors of Unitech Limited with new directors has held in paragraph (vii) that pending further orders, there shall be a moratorium against the institution of proceedings against Unitech Limited and its subsidiaries and that the moratorium shall also extend to existing proceedings against the company as well as the enforcement of orders that may have been passed against the company.
3. Mr. Kapadia, learned Senior Counsel would submit that, therefore, this order covers moratorium against the institution of proceedings against the company and its subsidiaries and a moratorium with respect to existing proceedings and for enforcement of orders that may have been passed against the company only. That the Respondent No.1 not being a subsidiary, the first part of the order with respect to institution of proceedings would not apply and as far as the second part of the order is concerned, that would apply only to the company and not to its subsidiaries. That, therefore, these execution proceedings can continue, even though there is an application filed by the Respondent No.1 in the Hon'ble Supreme Court on 5 th April, 2021, seeking modification of subsequent order dated 24th March, 2021, with respect to the applicability of the directions contained therein to joint venture companies and the Respondent No.1 as such.
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908. CHSCD 969-19 in COMEX 48-21 @ Ors..doc
4. On the other hand, Mr. Purohit, learned Counsel for the Respondent No.1 draws the attention of this Court to a subsequent order of the Hon'ble Supreme Court dated 24th March, 2021 and submits that the said order has been passed after considering the revised plan dated 28th October, 2020, wherein in paragraph 2 (1), the Hon'ble Supreme Court has observed that the new Board shall be responsible for the management and control of the Unitech Group including all its affiliates, trusts, subsidiaries, etc.; that the order passed on 20th January, 2020, would be applicable to all group entities of Unitech Limited. Learned Counsel submits that pursuant to the said plan submitted to the Hon'ble Supreme Court, Unitech Group has been defined to collectively mean the Company viz. Unitech Limited, its subsidiaries, joint ventures, affiliates and project entities and that in the list of joint ventures as on 31 st December, 2019 at item no 5, the name of Respondent No.1 viz. Shivalik Venture Private Limited, in which Unitech's % of share holding is shown as 50%. That, therefore, the order dated 24th March, 2021, applying the moratorium to group entities of Unitech Group would also apply to Respondent No.1.
5. Mr. Purohit, learned Counsel refers to the application dated 5 th April, 2021 filed by the Respondent No.1 before the Hon'ble Supreme Nikita Gadgil 4/6 ::: Uploaded on - 08/04/2024 ::: Downloaded on - 09/04/2024 22:42:56 :::
908. CHSCD 969-19 in COMEX 48-21 @ Ors..doc Court and submits that the application seeks to modify the aforesaid order dated 24th March, 2021, passed by the Hon'ble Supreme Court, so that the directions contained in that order will not apply to the Applicant. Learned Counsel submits that the said application is pending in the Hon'ble Supreme Court and if and when the said application is allowed, the moratorium in terms of order dated 24 th March, 2021, would not apply to the Respondent No.1 and these execution proceedings can be proceeded with.
6. After the aforesaid submissions have been made by the learned Counsel, Mr. Kapadia, learned Senior Counsel submits that in view of the aforesaid, he would advise his client to seek an appropriate clarification with respect to the applicability of moratorium to the Respondent No. 1 pursuant to order dated 24th March, 2021, as claimed by the learned Counsel for Respondent No. 1 and seeks some time in the matter.
7. Accordingly, list the Chamber Summons No. 969 of 2019 on 8th May, 2024 for directions.
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908. CHSCD 969-19 in COMEX 48-21 @ Ors..doc
8. List the execution application along with Interim Application (L) No. 9445 of 2023 on 22nd April, 2024.
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