Delhi High Court - Orders
Brilliant Estates Limited vs S.A.R.E. (Cyprus) Limited & Ors on 3 September, 2024
Author: Navin Chawla
Bench: Navin Chawla
$~28
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(COMM) 751/2024
BRILLIANT ESTATES LIMITED
.....Plaintiff
Through: Mr.Dayan Krishnan, Sr. Adv.
with Mr.Sahil Monga &
Mr.Alekhya, Advs.
versus
S.A.R.E. (CYPRUS) LIMITED & ORS.
.....Defendants
Through: Ms. Pooja Mehra Saigal &
Mr.Jatin Dua, Advs. for D-1 to
D-3.
Ms.Nikita Garg, Adv. for D-5.
Mr.Anupam Lala Das, Sr. Adv.
with Mr.Aviral Kapoor, Advs.
for D-6.
CORAM:
HON'BLE MR. JUSTICE NAVIN CHAWLA
ORDER
% 03.09.2024
I.A. 38222/2024 (Exemption)
1. Allowed, subject to all just exceptions.
I.A. 38221/2024
2. This is an application filed by the plaintiff seeking exemption from pre-institution mediation as required under Section 12A of the Commercial Courts Act, 2015.
3. For the reasons stated in the application, the plaintiff is held entitled to the grant of exemption from pre-institution mediation as required under Section 12A of the Commercial Courts Act, 2015.
4. The application is allowed.
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 05/09/2024 at 00:43:18 I.A. 38223/2024
5. This is an application seeking permission to place on record additional documents.
6. The additional documents shall be filed within the statutory period.
7. The application is disposed of.
CS(COMM) 751/2024 & I.A. 38220/2024
8. It is the case of the plaintiff that the plaintiff and the defendant no.1 constituted a joint venture, that is, the defendant no.6. Certain disputes arose between the parties, which finally led to the plaintiff and the defendant no.1 and defendant no. 6 entering into a Security Purchase Agreement dated 17.02.2023 and an Addendum thereto dated 15.01.2024. In terms of the said Agreement, the defendant no.1, was to transfer its 48 lakhs Class B equity shares and Rs.3,04,76,263/- fully convertible debentures to the plaintiff for a consideration of Rs.112,59,21,408/-, subject to the adjustment of Rs.23,77,00,000/- owed by defendant no.1/defendant no.6 to the defendant no.5. The plaintiff claims that the plaintiff has already paid a total of Rs.88,82,21,408/-, leaving a balance of Rs.23,77,00,000/-, which the plaintiff is detaining as the defendant no.1/defendant no.6 is to repay this amount to defendant no.5 in discharge of its Inter-Corporate Deposit (in short, 'ICD') liability. Defendant no.5, in turn, for recovering the said amount, initiated insolvency proceedings against the defendant no.6.
9. The learned senior counsel for the plaintiff submits that without prejudice to the rights and contentions of the plaintiff, the plaintiff is 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 05/09/2024 at 00:43:18 ready and willing to deposit the balance amount of Rs.23,77,00,000/- with this Court within a week from today.
10. The learned counsel for the defendant nos.1 to 3, who appears on advance notice of the present suit, states that apart from the amount of Rs.23,77,00,000/- due under the above Agreement, the plaintiff is also liable to pay interest on the delayed payment. She further submits that in terms of the Resolution Plan approved by the learned NCLT Delhi vide Order dated 24.04.2023 passed in petition CP.(IB) 300(PB)/2020, the defendant no.1/defendant no.6 has been held liable to pay only 25% of the amount of the ICD to the defendant no.5, which will be approximately Rs.5,94,24,000/-. She further submits that, therefore, only the said amount is due and payable by the defendant no.1/defendant no.6 to the defendant no.5, while the remaining amount has to be paid to the creditors as per the Resolution Plan. She submits that in terms of the Agreement, the plaintiff is also to obtain necessary permissions from the Reserve Bank of India for the transmission of the amounts under the Agreement to the Defendant no. 1, which is a foreign based company.
11. The learned senior counsel appearing for the defendant no.6 supports the case of the plaintiff.
12. At the same time, the learned counsel for the defendant no.5 prays for time to seek instructions.
13. Defendant no.4 is stated to be only a pro forma party as it is an escrow agent appointed under the above-mentioned Agreement.
14. As the learned counsel for the defendant no.5 is praying for time to seek instructions, list the Suit and pending application on 9th 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 05/09/2024 at 00:43:19 September, 2024.
15. As is evident from the submissions of the learned senior counsel for the plaintiff and the learned counsel for the defendant no. 1, the bone of dispute is the liability owed by the defendant no. 1/defendant no. 6 to the defendant no. 5, and the insolvency action taken by the defendant no. 5 to recover the said amount from the defendant no. 6. The plaintiff is ready and willing to pay the amount due, which the plaintiff claims is only Rs. 23,77,00,000/- on account of defendant no. 1 to the defendant no. 5, provided it is recorded as being in satisfaction of the liability of the plaintiff under the Agreement and on receipt of the same, the defendant no. 5 drops the Insolvency proceedings against the defendant no. 6.
16. Keeping in view the submissions made, it is directed that till the next date of hearing, on the plaintiff depositing an amount of Rs.25 crores with the Registry of this Court on or before the next date of hearing, the defendant no.1 is restrained from creating any third-party interest in the above-mentioned securities/shares held by it in the defendant no.6. Defendant no.4 is stated to be holding these shares as an escrow agent. The defendant no.4 shall equally remain restrained in dealing with the said shares held by it as an escrow agent under the above-mentioned Agreement.
17. The learned counsel for the defendant nos.1 to 3 submits that the only hindrance in bringing a satisfaction to the Agreement is that the plaintiff, in terms of the Agreement, has to pursue with the Reserve Bank of India for obtaining necessary permission for the transmission of the amount under the Agreement. The defendant no.1 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 05/09/2024 at 00:43:19 is to render necessary assistance for the same.
18. The parties shall continue to adhere to the said obligations under the Agreement.
19. As the amount allegedly owed to the defendant no.5, for which the defendant no.5 has instituted insolvency proceedings against defendant no.6, is being directed to be deposited by the plaintiff in the court, the defendant no.5 shall restrain itself from taking further coercive steps or continuing the insolvency proceedings against the defendant no. 6, till the next date of hearing.
NAVIN CHAWLA, J SEPTEMBER 3, 2024/rv/DG Click here to check corrigendum, if any 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 05/09/2024 at 00:43:19