Delhi High Court - Orders
Catalyst Trusteeship Limited vs Charms India Private Limited And Ors on 18 October, 2023
Author: Sachin Datta
Bench: Sachin Datta
$~45
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(COMM) 752/2023
CATALYST TRUSTEESHIP LIMITED ..... Plaintiff
Through: Mr. K.K. Sharma, Sr. Adv. along with
Mr. Rajiv Bakshi and Mr. Pranav
Pareek, Advs.
versus
CHARMS INDIA PRIVATE LIMITED AND ORS...... Defendants
Through:
CORAM:
HON'BLE MR. JUSTICE SACHIN DATTA
ORDER
% 18.10.2023 IA No.20769/2023 (Exemption from filing original documents and typed copies of dim documents)
1. The application is allowed with a direction to the plaintiff to file the original documents and/or certified copies thereof as and when directed.
2. The application stands disposed of IA No.20770/2023 (condonation of delay in re-filing the suit)
3. This is an application seeking condonation of delay in re-filing the suit.
4. Considering the averments made in the application, the delay of 25 days in re-filing the suit stands condoned.
5. The application stands disposed of.
CS(COMM) 752/2023
6. Let the plaint be registered as a suit.
7. Issue summons in the suit.
CS(COMM) 752/2023 Page 1 of 8This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 20/10/2023 at 00:03:09
8. Upon the plaintiff taking steps, let summons be sent to the defendants through all permissible modes. Let the summons indicate that the defendants are required to file written statement to the plaint within 30 days from the date of receipt of summons, alongwith affidavit of admission/denial of the documents filed by the plaintiff. The plaintiff may file replication to the written statement within 30 days thereafter, alongwith affidavit of admission/denial of the documents filed by defendants.
9. List before the Joint Registrar (Judicial) for completion of pleadings, for admission/denial of documents and marking of exhibits on 04.12.2023.
10. List before court on 14.02.2024.
IA No.20768/2023 (Stay)
11. Issue notice to the defendants, on necessary steps being taken by the plaintiff, through all permissible modes, including electronically. Dasti in addition.
12. Let reply be filed within a period of four weeks from service of notice. Rejoinder thereto, if any, be filed within two weeks thereafter.
13. The present suit has been filed by the plaintiff which is a Debenture Trustee registered with Securities and Exchange Board of India (SEBI) in accordance with Debenture Trustee Regulations, 1993.
14. The present suit has been filed by the plaintiff in the background of issuance of debentures by the defendant no.1 in favour of the debenture holders for an aggregate amount of Rs.1,45,00,00,000/- (Rupees One Hundred Forty Five Crores) [Debenture Trust Deed 1/DTD 1], followed by issuance of further debentures to the tune of Rs.38,00,00,000/- (Rupees Thirty Eight Crores) [Debenture Trust Deed 2/DTD 2].
15. It is the case of the plaintiff that in terms of the Debenture Trust CS(COMM) 752/2023 Page 2 of 8 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 20/10/2023 at 00:03:09 Deeds, the defendant nos.1 and 2, being the owners of various lands situated at Ghaziabad, created mortgage and charge vide registered Mortgage Deed dated 20.11.2019 bearing registration No.14461 of 2019 in favour of the plaintiff.
16. The Mortgage Deed is stated to have been executed by the defendant no.3 in his capacity as the Director of defendant nos.1 and 2.
17. The following immovable properties have been mortgaged by defendant nos.1 and 2 which have been detailed under Schedule I of the Mortgage Deed :
" Schedule I (Details of the Mortgaged Properties) Part A I. Details of First Mortgaged Properties All right, title, interest, (both present and future) of whatsoever nature of Mortgagor NO.1 in respect of (i) all those part and parcel of land admeasuring 40.,763.88 square meters bearing Khasra no. 1055, 1056 and 1099 situate, lying and being at Village Noor Nagar, Raj Nagar Extension, Ghaziabad, Uttar Pradesh (ii) all its right, title, interest, benefits, entitlements (both present and future) of whatsoever nature in respect of the Project 1, buildings / structures constructed/ being constructed/ to be constructed on such Project Land 1; TOGETHER WITH all buildings, constructions and structures thereon not limited to the unsold units and structures/ constructions of every description which are erected/constructed or to be erected/constructed, standing or attached or shall at any time hereafter during the continuance of the security hereby constituted be erected and standing or attached to the aforesaid lands and premises or any part thereof and all furniture, fixtures, fittings and all trees, fences, hedges, ditches, ways, sewerages, drains, waters, water courses, liberties, privileges, easements and appurtenances whatsoever to the aforesaid lands or any part thereof belonging to or in anywise appertaining or usually held, occupied, enjoyed therewith or reputed to belong or be appurtenant whether thereto or any part thereof whether presently in existence or in the future belonging to or in any way appurtenant thereto AND ALL the present and future FSI (floor space index) available to said Project CS(COMM) 752/2023 Page 3 of 8 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 20/10/2023 at 00:03:10 Land 1 or granted by authority including the transferable development rights (TOR) whether presently in existence or in the future belonging to or usually held, occupied or enjoyed therewith or expected to belong or be appurtenant thereto; AND ALL the estate, right, title, interest, property claim and demands whatsoever of the Mortgagor No.1 into and upon the same which description shall include all properties of the above description whether presently in existence, constructed or acquired hereinafter;
II. Details of Second Mortgaged Properties All right, title, interest, (both present and future) of whatsoever nature of Mortgagor No.1 in respect of (i) in all those part and parcel of land admeasuring approx.. 5,376 square meters bearing Khasra no. 1102 situate, lying and being at Village Noor Nagar, Raj Nagar Extension, Ghaziabad, Uttar Pradesh (ii) all its right, title, interest, benefits, entitlements (both present and future) of whatsoever nature in respect of the Project 3, buildings / structures constructed/ being constructed/ to be constructed on such Project Land 3; TOGETHER WITH all buildings, constructions and structures thereon not limited to the unsold units and structures/ constructions of every description which are erected/constructed or to be erected/constructed, standing or attached or shall at any time hereafter during the continuance of the security hereby constituted be erected and standing or attached to the aforesaid lands and premises or any part thereof and all furniture, fixtures, fittings and all trees, fences, hedges, ditches, ways, sewerages, drains, waters, water courses, liberties, privileges, easements and appurtenances whatsoever to the aforesaid lands or any part thereof belonging to or in anywise appertaining or usually held, occupied, enjoyed therewith or reputed to belong or be appurtenant whether thereto or any part thereof whether presently in existence or in the future belonging to or in any way appurtenant thereto AND ALL the present and future FSI (floor space index) available to said Project Land 3 or granted by authority including the transferable development rights (TOR) whether presently in existence or in the future belonging to or usually held, occupied or enjoyed therewith or expected to belong or be appurtenant thereto; AND ALL the estate, right, title, interest, property claim and demands whatsoever of the Mortgagor No.1 into and upon the same which description shall include all properties of the above description whether presently in existence, constructed or acquired hereinafter;
CS(COMM) 752/2023 Page 4 of 8This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 20/10/2023 at 00:03:10 III. Details of Third Mortgaged Properties All right, title, interest, (both present and future) of whatsoever nature of Mortgagor No.1 in respect of in all the piece and parcel of land admeasuring 10,140 square meters bearing Khasra No.295 at village Marta, Ghaziabad (Uttar Pradesh), together with buildings / structures constructed/being constructed/ to be constructed on such said Land; TOGETHER WITH all buildings, constructions and structures thereon not limited to the unsold units and structures/ constructions of every description which are erected/constructed or to be erected/constructed, standing or attached or shall at any time hereafter during the continuance of the security hereby constituted be erected and standing or attached to the aforesaid lands and premises or any part thereof and all furniture, fixtures, fittings and all trees, fences, hedges, ditches, ways, sewerages, drains, waters, water courses, liberties, privileges, easements and appurtenances whatsoever to the aforesaid lands or any part thereof belonging to or in anywise appertaining or usually held, occupied, enjoyed therewith or reputed to belong or be appurtenant whether thereto or any part thereof whether presently in existence or in the future belonging to or in any way appurtenant thereto AND ALL the present and future FSI (floor space index) available to said Land or .granted by authority including the transferable development rights (TOR) whether presently in existence or in the future belonging to or usually held, occupied or enjoyed therewith or expected to belong or be appurtenant thereto; AND ALL the estate, right, title, interest, property claim and demands whatsoever of the Mortgagor No.1 into and upon the same which description shall include all properties of the above description whether presently in existence, constructed or acquired hereinafter;
IV. Details of Fourth Mortgaged Properties All right, title, interest, (both present and future) of whatsoever nature of Mortgagor No. 2 in respect of (i) in all those part and parcel of land admeasuring approx. 17,997. 90 sq mtr. bearing Khasra no. 1218,1219, 1228 and 1229 situate, lying and being at Village Noor Nagar, Raj Nagar Extension, Ghaziabad, Uttar Pradesh (ii) all its right, title, interest, benefits, entitlements (both present and future) of whatsoever nature in respect of the Project 2, buildings / structures constructed/ being constructed/ to be constructed on such Project Land 2; TOGETHER WITH all buildings, constructions and structures thereon not limited to the unsold units and structures/constructions of every description which are erected/constructed or to be CS(COMM) 752/2023 Page 5 of 8 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 20/10/2023 at 00:03:10 erected/constructed, standing or attached or shall at any time hereafter during the continuance of the security hereby constituted be erected and standing or attached to the aforesaid lands and premises or any part thereof and all furniture, fixtures, fittings and all trees, fences, hedges, ditches, ways, sewerages, drains, waters, water courses, liberties, privileges, easements and appurtenances whatsoever to the aforesaid lands or any part thereof belonging to or in anywise appertaining or usually held, occupied, enjoyed therewith or reputed to belong or be appurtenant whether thereto or any part thereof whether presently in existence or in the future belonging to or in any way appurtenant thereto AND ALL the present and future FSI (floor space index) available to said Project Land 2 or granted by authority including the transferable development rights (TDR) whether presently in existence or in the future belonging to or usually held, occupied or enjoyed therewith or expected to belong or be appurtenant thereto; AND ALL the estate, right, title, interest, property claim and demands whatsoever of the Mortgagor No.2 into and upon the same which description shall include all properties of the above description whether presently in existence, constructed or acquired hereinafter."
18. It is submitted that in addition to the mortgage of the above properties, the defendant no.3, vide Agreement for Pledge of Shares dated 18.11.2019 pledged his 99.90% shareholding i.e. 9,990 shares in defendant no.2 in favour of the plaintiff. Further, the defendant no.3, vide Agreement for Pledge of Shares dated 18.11.2019 also pledged his 92.98% shareholding i.e. 759,150 shares in Defendant no.1 in favour of the plaintiff.
19. A deed of hypothecation is also stated to have been issued in favour of the plaintiff creating a charge in respect of the revenues/receivables in respect of the project being developed on the mortgaged property/ land. An escrow account is stated to have been set up (as per UPRERA Regulations) to realize the project receivables.
20. The defendant nos.3 and 4 are also stated to have secured the debentures by furnishing their personal guarantees vide separate Deeds of CS(COMM) 752/2023 Page 6 of 8 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 20/10/2023 at 00:03:10 Guarantee both dated18.11.2019, duly executed by them.
21. Further, the defendant nos.1, 2 and 3 executed various documents like demand promissory note, undertakings in favour of the plaintiff to secure the amount of the debentures.
22. It is submitted that there have been persisting defaults on part of the defendants inasmuch as the defendants are stated to have, inter-alia, (i) siphoned off monies; (ii) failed to develop the project; (iii) failed to pay the requisite amount/s towards interest/ redemption of debentures. It is stated that the plaintiff is entitled to recover a sum of Rs.2,97,93,32,173/- (Rupees Two Hundred Ninety Seven Crores Ninety Three Lakhs Thirty Two Thousand One Hundred Seventy Three Only) outstanding as on 31.03.2023 from the defendants.
23. It is submitted that the estimated value of the mortgaged properties and hypothecated assets is less than the amount to be recovered by the plaintiff from defendants.
24. It is apprehended that the defendant nos.3 and 4 are in the process of entering into transactions for the purpose of alienating the mortgaged property.
25. In the circumstances, urgent protective orders are sought to ensure that the defendant nos.1 to 4 do not defeat the plaintiff's legitimate entitlement.
26. Having considered the averments made in the suit and the submissions of learned senior counsel for the plaintiff, it is directed that till the next date of hearing, there shall be an ad-interim injunction in terms of prayer (a) of the application; Further, the defendant nos.1 to 4 are directed to file an affidavit disclosing their assets both in India as well as in abroad CS(COMM) 752/2023 Page 7 of 8 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 20/10/2023 at 00:03:10 along with documentary evidence, including but not limited to:
i. List of all bank accounts and fixed deposits (both in India and outside India) with copies of the same for the last 5 years; ii. List of all immoveable properties along with copies of the deeds; iii. Details of all the movable assets and other investments directly and/or indirectly made by the Defendants (through trust or any other instrument) both in India as well as in foreign countries, including investments in mutual funds.
27. Let compliance with Order 39 Rule 3 CPC be done within a period of seven days.
28. List before the Joint Registrar (Judicial) for completion of pleadings on 04.12.2023.
29. List in court on 14.02.2024.
SACHIN DATTA, J OCTOBER 18, 2023/cl CS(COMM) 752/2023 Page 8 of 8 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 20/10/2023 at 00:03:10