Delhi High Court
Bptp Ltd. vs Cpi India Limited & Ors. on 9 October, 2013
Author: Pradeep Nandrajog
Bench: Pradeep Nandrajog, V.Kameswar Rao
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on: October 03, 2013
Judgment Pronounced on: October 09, 2013
+ CM Nos.10417/2013 & 10419/2013 in FAO (OS) 507/2012
BPTP LIMITED .....Appellant
Represented by: Mr.Harish Salve, Sr.Advocate
and Mr.Parag P.Tripathi,
Sr.Advocate with
Mr.Rudreshwar Singh,
Mr.Mahesh Agarwal,
Mr.Arvind Nayar, Mr.Kaushik
Poddar and Ms.Gayatri
Goswami and Mr.Zeyaul
Haque, Advocates
versus
CPI INDIA LIMITED & ORS. ..... Respondents
Represented by: Mr.Rajiv Nayar, Sr.Advocate
and Mr.Neeraj Kishan Kaul,
Sr.Advocate with Ms.Bindi
Dane, Mr.Amit Sethi, Mr.Kapil
Rastogi, Mr.Sanyat Lodha and
Mr.Sameer Pandit, Advocates
CORAM:
HON'BLE MR.JUSTICE PRADEEP NANDRAJOG
HON'BLE MR.JUSTICE V.KAMESWAR RAO
PRADEEP NANDRAJOG, J.
1. The above captioned appeal along with connected appeals, FAO (OS) No.538/2012 & FAO (OS) No.508/2012 were disposed of by a Division Bench of this Court on November 09, 2012. The two applications above numbered seek a clarification/modification/ direction of (with respect to) the said order dated November 09, 2012.
CM Nos.10417/2013 & 10419/2013 in FAO (OS) 507/2012 Page 1 of 162. The prayer made in CM No.10417/2013 is as under:-
"PRAYERS It is, therefore, most respectfully prayed that this Hon‟ble Court may be pleased to
a) allow the Applicant to raise loans to the tune of `176.35 crores by issuance of Non-Convertible Debentures of loans from Bank/Financial Institutions or such other instrument that the Applicant deems fit; and/or
b) allow the Applicant to obtain bank guarantees to be given to the Government Authorities to the tune of `69.1 crores, by encumbering assets of the Applicant other than the Selected Projects; and/or
c) direct the parent company of the Respondent No.1 to indemnify and secure the Applicant in terms of paragraph 27 of the present Application; and/or
d) pass such other or further orders as be deemed fit and proper in the facts and circumstances of the present matter."
3. The prayer made in CM No.10419/2013 is as under:-
"PRAYERS It is, therefore, most respectfully prayed that this Hon‟ble Court may be pleased to
a) clarify and/or modify paragraph 30 (iii) of the Order dated November 09, 2012 in terms of paragraphs 8 and 28 of the present Application; and/or
b) pass such other or further orders as be deemed fit and proper in the facts and circumstances of the present matter."
4. CPI India Ltd., the appellant of FAO(OS) No.538/2012, which has been impleaded as the first respondent in the above captioned appeal filed by BPTP Ltd. had filed a petition under Section 9 of the Arbitration and Conciliation Act 1996 impleading 25 respondents, 3 of which were BPTP Ltd. (the appellant of FAO (OS) 507/2012) and CM Nos.10417/2013 & 10419/2013 in FAO (OS) 507/2012 Page 2 of 16 its directors Kabul Chawla and Anjali Chawla. The other 22 respondents were companies stated to be affiliates of BPTP Ltd. It was the case of CPI Ltd. that, relying upon representations and warranties made by Kabul Chawla, it had invested `322.5 crores in BPTP Ltd. by subscribing to 13,551,971 equity shares as well as 22,500,000 Compulsorily Convertible Preference shares on the terms set out in the Share Subscription Agreement dated August 10, 2007 (SSA), and as on the date of the petition, it held 5.67% of the Paid Up Capital of BPTP Ltd. It was asserted that the rights are further governed by a Memorandum of Understanding (MOU) dated December 19, 2009. The dispute projected was that on the respondents failing to achieve the Qualified Initial Public Offering by July 08, 2011, a requirement under clause 4 and 10 of the MOU dated December 19, 2009, followed by unauthorized debts being raised, CPI India was entitled to the remedies of the Swap Option rights or under the Put Option or to enforce the right under clause-10 of the MOU; as per which the eight projects listed in Schedule-A to the Agreement had to be executed by putting the money generated in an escrow account and share of CPI India in the profits generated would be as listed in Schedule-A. It needs to be highlighted that CPI's share in the profits range between 50% to 58%. Grievance made was that out of the 8 projects, BPTP Ltd. and its directors had commenced unilateral development and booking pertaining to project 'M' at Faridabad and project 'A' at Gurgaon.
5. In a nutshell the case was that the last alternative i.e. right under clause-10 of the MOU was violated by BPTP Ltd. and funds were being siphoned away. Resolutions passed on June 29, 2012 at the CM Nos.10417/2013 & 10419/2013 in FAO (OS) 507/2012 Page 3 of 16 Board Meeting were prayed to be stayed; alleging that the effect thereof would be to dilute the interest of CPI India.
6. On July 04, 2012, which was the first date of hearing and on which date counsel appeared for BPTP, the following interim order was passed by the learned Single Judge:-
"1. Notice. Mr. Kamal Shankar, learned counsel accepts notice on behalf of the Respondents.
2. During the course of the arguments it has been agreed by learned Senior counsel for the Respondents, on instructions, that within the next week, a meeting will he held between the representatives of Respondent No.1 BPTP Limited and the Petitioner CPI India Limited to examine what alternative options can be explored including reworking the shareholders agreement which is the subject matter of the present petition. Respondent No.1 will disclose to the Petitioner the exact amounts of statutory and government dues which are to be paid by Respondent No.1. The Petitioner will also be informed as to which unencumbered properties/assets of Respondent No.1 company will be earmarked to secure the investment made by the Petitioner thus far. It is made clear that this would be without prejudice to rights and contentions of either party.
3. List on 26th July 2012.
4. Till the next date of hearing, Respondent No.1 will not give effect to the Resolution passed by the Board of Directors of Respondent No.1 at the meeting held on 29th June 2012. It is clarified that none of the „Selected Projects‟ the list of which is at page 138 of the documents volume, shall be sold, alienated or otherwise encumbered by Respondent No.1 till the next date."
7. The OMP filed by CPI India Ltd. was disposed of by the learned Single Judge vide order dated October 03, 2012 by passing the CM Nos.10417/2013 & 10419/2013 in FAO (OS) 507/2012 Page 4 of 16 following directions:-
"41. In conclusion, it is directed as under:-
(i) The interim order passed by this Court on 4 th July, 2012 is directed to continue till such time the arbitral Tribunal passes an order, including by way of modification or variation of this order, in accordance with law in an application that may be filed by either party under Section 17 of the Act.
(ii) BPTP will furnish to CPI, within two weeks from today, the accounts of the monies collected by it by sale of units in Projects A and M, including the manner of disbursing of such monies collected by it. Till further orders that may be passed by the arbitral Tribunal, BPTP will cease further activity in relation to Projects A and M and maintain status quo in relation to the Selected Projects.
(iii) It will be open to the parties to rely on the pleadings, documents and reports forming part of the record of the present petition in the arbitral proceedings."
8. Kabul Chawla and the associate companies filed FAO(OS) No.508/2012 challenging the final order passed disposing of the OMP, BPTP Ltd. joined in the challenge by filing FAO(OS) No.507/2012. CPI India Ltd. also challenged the impugned order by filing FAO(OS) No.538/2012.
9. The appeal filed by CPI India Ltd. was dismissed vide order dated November 09, 2012 and the two appeals filed by BPTP Ltd. and Kabul Chawla and others were partially allowed, issuing 6 directions as per para 30 of the decision dated November 09, 2012, which read that subject to such interim orders which may be passed by the learned Arbitrators, BPTP Ltd. and its Directors shall:-
(i) be permitted to raise `125 crores by way of loan CM Nos.10417/2013 & 10419/2013 in FAO (OS) 507/2012 Page 5 of 16 from IFCI Ltd. but without altering the shareholding of BPTP Ltd.;
(ii) the loan would be used to pay Government dues by BPTP Ltd. or its associate companies and details would be furnished to the learned Arbitrator;
(iii) BPTP Ltd. shall continue with the ongoing projects pertaining to the lands mentioned as Project „A‟ and Project „M‟ in the Schedule to the MOU, which would entitle BPTP Ltd. to enlist further flat buyers for the remaining towers proposed to be constructed in the two projects and BPTP Ltd. would be permitted to receive money from the existing flat buyers and further enroll flat buyers but would open an escrow account within a week from today, details whereof would be furnished to the learned Arbitrator and the amounts realized would be deposited in the said account; utilization whereof would be as per interim orders obtained from the learned Arbitrator;
(iv) BPTP Ltd. would not take any further decision pertaining to obtaining loans or encumbering any of its asset and likewise neither associated company, which has been impleaded as a respondent in the OMP, would do so;
(v) BPTP Ltd. shall provide, by filing an affidavit of Sh.Kabul Chawla before the learned Arbitrator within four weeks from today, a detail of the existing flat buyers who have booked flats in the two projects „A‟ and „M‟ with details of the amounts received from them including the details as to how the money received was utilized;
and
(vi) BPTP Ltd. shall not commence any booking of flats in the remaining six projects enlisted in the Schedule to the MOU dated December 19, 2009."
10. In passing the order dated November 09, 2012, the Division CM Nos.10417/2013 & 10419/2013 in FAO (OS) 507/2012 Page 6 of 16 Bench noted that the principal grievance of BPTP Ltd. and Kabul Chawla and others was that as a result of the impugned order passed by the learned Single Judge the two ongoing projects having been stayed as per direction No.(ii) passed by the learned Single Judge. The same cause injury to the company and as a consequence to all its shareholders which would include CPI India Ltd. Further grievance was that as per direction No.(i) passed by the learned Single Judge, interim order passed on July 04, 2012 was continued and since the interim order dated July 04, 2012 was to restrain BPTP to give effect to the Board Resolution dated June 29, 2012, the said company was prohibited from obtaining a loan which was sanctioned by IFCI in sum of `125 crores which was to be utilized to pay dues to the Government of Haryana with respect to the other six projects listed in Schedule 'A' to the MOU. It was highlighted that if the dues were not paid, the value of the land would fall causing injury to all. The Division Bench noted that the backdrop of the principal grievance urged was the express recording by the learned Single Judge that he was not going into the merits of the rival versions because the parties had already nominated arbitrators to decide the substantive disputes and Section 17 of the Arbitration and Conciliation Act 1996 would be the proper forum for the parties to obtain interim measures.
11. It was noted by the Division Bench that the record would reveal that BPTP had collected `213 crores for projects 'A' and 'M' and had not deposited the same in an escrow account as per the MOU. With reference to a cash flow statement showing status of the projects up to September 30, 2012 it was noted by the Division Bench that it appears to be a case where `111.3 crores out of `213 crores generated from projects 'A' and 'M' had been diverted by BPTP Ltd.
CM Nos.10417/2013 & 10419/2013 in FAO (OS) 507/2012 Page 7 of 1612. It was noted by the Division Bench that the response of BPTP Ltd. was that letters written by RBI to them would reveal that the Swap Option, Put Option as also the condition of the MOU creating interest in land (8 projects) on the strength of which CPI India has laid a claim, are contrary to Foreign Exchange Management Act.
13. The Division Bench noted that notwithstanding the pious intention of the learned Single Judge, a problem in law has arisen, inasmuch as the fulcrum of the challenge in the appeals filed by BPTP and Kabul Chawla was that the half baked order has caused prejudice to them and that the sine qua non for passing interim orders is prima facie findings being recorded; not in the manner as done by the learned Single Judge, but by considering the rival viewpoints.
14. The Division Bench noted that the signature tune of the order passed by the learned Single Judge was that `322.5 crores invested by CPI India in BPTP Ltd. needs to be protected and that there was a violation of the MOU. It was also noted by the Division Bench that the learned Single Judge has just not discussed whether the shareholders agreement and the MOU foul the Foreign Exchange Management Act.
15. The Division Bench noted that it understood the dilemma faced by the learned Single Judge, who advisedly did not delve deep into the matter, considering the voluminous record and thought it advisable that keeping in view that the parties had nominated their arbitrator, the Arbitral Tribunal would be the best Fora where interim orders could be obtained.
16. But a hiatus having come into existence was noted.
17. The Division Bench noted that the Arbitral Tribunal had been constituted which had fixed the schedule by which pleadings had to be CM Nos.10417/2013 & 10419/2013 in FAO (OS) 507/2012 Page 8 of 16 completed and the date was mid March 2013. In other words, by April 2013 the learned Arbitral Tribunal would have been in a position to hear the parties on interim measures and pass directions. Accordingly, the Division Bench noted that its job could be restricted to finding a workable solution till the Arbitral Tribunal heard the parties and passed interim orders. In other words, what should be the ad-interim order and not the interim order? 'Ad-interim' was the phrase used for the reason, learned counsel for the parties agreed before the Division Bench that the Arbitral Tribunal would be the best Fora to pass „interim‟ orders.
18. Accordingly, arguments were heard only limited to the balance of convenience, and the same was recorded in paragraph 16 of the order dated November 09, 2012.
19. The Division Bench noted and reasoned that the blanket restraint order, as per direction No.(ii) in the final order dated October 03, 2012, that BPTP will cease further activity in relation to projects 'A' and 'M' and maintain status quo in relation to the selected projects has adversely affected rights of third parties. Nearly 50% of flats in one project and 70% flats in the other project had been booked. Third parties have made payments to the tune of `213 crores. The Division Bench noted that it is settled law that interim orders affecting third party rights should normally not be passed. Accordingly, the Division Bench opined that on balance of convenience, direction No.(ii) needs to be vacated but upon the term that further money received with respect to projects 'A' and 'M'; which would include further installments payable by the existing flat buyers would be put in an escrow account, details whereof would be made available to the Arbitral Tribunal within two weeks from the CM Nos.10417/2013 & 10419/2013 in FAO (OS) 507/2012 Page 9 of 16 date of the order and utilization of the said amount would be only with the permission of the Arbitral Tribunal.
20. This, was opined by the Division Bench necessary to prevent third party litigation.
21. The Division Bench thereafter highlighted the problem with respect to direction No.(i) in the order dated October 03, 2012. It continued the injunction passed on July 04, 2012 i.e. prohibited BPTP to give effect to the resolution passed by the Board of Directors on June 29, 2012. The Division Bench noted that with respect to the various resolutions passed at the Board Meeting on June 29, 2012, Sh.Rajiv Nayar, Sr.Advocate and Sh.N.K.Kaul, Sr.Advocate conceded that such resolutions which were passed unanimously need not be stayed and suitable orders be passed. The Division Bench noted that said counsel vehemently urged that the resolution permitting the company to raise a loan from IFCI Ltd. should be stayed because the terms on which the loan was proposed to be taken would encumber the land pertaining to project 'A' and project 'M'.
22. Taking into account that there was a valuation by Cushman & Wakefield as per which the value of the land comprising 6 other listed projects was `1176.6 crores, the Division Bench opined that the loan could be availed of but without altering the shareholding of BPTP Ltd. The Division Bench accordingly permitted loan to be raised from IFCI Ltd. The Division Bench noted that future collections pertaining to project 'A' and project 'M' would be put in an escrow account. The conclusion was the 6 directions issued, which have been noted in paragraph 9 above.
23. Having constituted an Arbitral Tribunal comprising Hon'ble Justice A.S.Anand (Retd. Chief Justice of India), Hon'ble Justice CM Nos.10417/2013 & 10419/2013 in FAO (OS) 507/2012 Page 10 of 16 B.N.Srikrishna (Retd.) and Hon'ble Justice B.Sudershan Reddy (Retd.) the parties had a problem when Justice B.Sudershan Reddy (Retd.) recused and the vacancy being filled up by Justice S.N.Variava (Retd.). This consumed time.
24. Three Civil Miscellaneous applications were filed by BPTP Ltd. seeking modifications of the order dated November 09, 2012 which were disposed of on May 08, 2013 declining relief prayed for noting that the Tribunal was seized of an application under Section 17 of the Arbitration and Conciliation Act, 1996. It was observed that the principle of comity compels the court to relegate the parties to the remedy before the Arbitral Tribunal. It was observed that the principle of comity could be defeated if the doctrine of necessity warranted so i.e. immediate directions were required and for some reason or the other the Tribunal could not assemble.
25. It is apparent that said observations pertaining to the doctrine of necessity is now being used by BPTP to claim the reliefs prayed for in the two applications, notwithstanding the label given in the two applications as seeking a clarification. We would be failing not to highlight that three expressions : „clarification‟, „modification‟ and „directions' have been used.
26. Though not pleaded in the applications, learned counsel for the applicants as also the non-applicants conceded that the Hon'ble retired Judges who were members of the Tribunal were not finding time to hear arguments in the application filed under Section 17 of the Arbitration and Conciliation Act, 1996.
27. Concededly, the learned Single Judge as also the Division Bench had clearly recorded that the interim orders passed would be subject to such modifications and directions which the parties may CM Nos.10417/2013 & 10419/2013 in FAO (OS) 507/2012 Page 11 of 16 obtain from the Arbitral Tribunal. In fact, the Division Bench had taken pain to highlight that its order would be in the nature of an ad- interim order and not an interim order.
28. Now, who suggested to the parties to constitute the Arbitral Tribunal by nominating three Hon'ble retired Judges who reside in three cities?
29. The essence of arbitration is speedy justice. This would mean the ready availability of Arbitral Tribunal. If the Arbitral Tribunal has to comprise of three members, prudence demands that the three members of the Tribunal should be residing in the same city so that, if the urgency of a matter requires an impromptu sitting of the Tribunal, the same can take place.
30. Thus, merely because the members of the Arbitral Tribunal cannot assemble to hold sittings would be no ground for the Court to modify its decision or to pass any further direction in the instant case.
31. We would thus deal with the subject of clarifying the decision dated November 09, 2012, for the argument was that only an author of an opinion can clarify on an ambiguity, should one be found. For the reason, an idea lies cocoon in the brain of the author.
32. Vide CM No.10417/2013, directions are sought and this is plain evident from the three main prayers made in the application. In the application it is prayed that the delaying tactics employed by CPI India Ltd. before the Arbitral Tribunal have created a situation where BPTP Ltd. is left in a „state of limbo'. It is pleaded in paragraph 7 of the application that the doctrine of necessity has triggered the filing of the application. The fact attracting the doctrine of necessity is that the Tribunal has deferred further hearing to October 14 and October 15, 2013.
CM Nos.10417/2013 & 10419/2013 in FAO (OS) 507/2012 Page 12 of 1633. As we read the pleadings of CM No.10417/2013 we do not find a word whispered on the subject of the order dated November 09, 2012 requiring any clarification.
34. We would be failing not to note that the two applications were listed for the first time before a Bench comprising S.Ravindra Bhat, J. and Najmi Waziri, J. on July 15, 2013 when it was directed that the applications be listed before a Bench presided over by Pradeep Nandrajog, J. on July 19, 2013 for the reason that the author of the order dated November 09, 2012 is Pradeep Nandrajog, J. On said date i.e. July 19, 2013, at joint request of parties the two applications were adjourned for August 01, 2013 on which date learned counsel for the non-applicants waived notice and took time to file a reply to the two applications. Adjourned to August 26, 2013 and pleadings being completed, both applications were adjourned for September 26, 2013 at joint request of counsel for the parties, a date which was cancelled at the asking of the parties and changed to September 27, 2013 on which date part arguments were heard and full arguments completed on October 03, 2013.
35. It is apparent that there is no such grave urgency, attracting doctrine of necessity as pleaded in CM No.10417/2013, prayer whereof clearly evidences that by way of further directions, BPTP seeks further relaxation in the terms of the interim order, and we see no reason why the matter should not be argued before the Arbitral Tribunal. Thus we do not even note the contentions urged with respect to the said application.
36. Accordingly, we dismiss CM No.10417/2013.
37. Pertaining to the prayer of CM No.10419/2013, contents whereof have been extracted by us in paragraph 3 above, we find that CM Nos.10417/2013 & 10419/2013 in FAO (OS) 507/2012 Page 13 of 16 under the label of clarifying what is actually prayed for is a modification of paragraph 30 (iii) of the order dated November 09, 2012 and for which the pleadings are in paragraph 8 and 28 of the applications.
38. A perusal of the order dated November 09, 2012 would reveal that with reference to the MOU between the parties requiring an escrow account to be opened when the 8 listed projects would be executed i.e. flats constructed and sold on the land listed therein, the Division Bench noted that pertaining to project 'A' and 'M' a violation had taken place, but it was the interest of the flat buyers which had compelled the Division Bench to modify the blanket injunction order passed by the learned Single Judge. It was accordingly directed that future monies collected would be put in an escrow account, operation whereof would be subject to such interim orders which the parties could obtain from the Arbitral Tribunal.
39. In the application it is pleaded that pertaining to project 'M' availing a loan in sum of `50 crores from Allahabad Bank, an escrow account had already been opened with the Bank having a lien on the account as also a charge on the project. It is pleaded that said fact was to the knowledge of the opposite party, but inadvertently was not made known to the Court. Pleading that the ethos of the order dated November 09, 2012 is to secure further money realized from project 'A' and project 'M' by putting the same in an escrow account, since pertaining to project 'M' an escrow account was already open, the applicant be permitted to open an escrow account with Punjab National Bank; and the clarification sought for is that the intention of the Court was that the money would be kept in „a escrow account' and not „an escrow account'. It was urged that this clarification could CM Nos.10417/2013 & 10419/2013 in FAO (OS) 507/2012 Page 14 of 16 be given only by the Court.
40. Now, a Court or a private adjudicatory forum being required to interpret judicial decision is not an unknown phenomenon. Each day we witness parties interpreting decisions of courts, each projecting a view point in the opposite.
41. The so called clarification sought for is actually an interpretation of the order i.e. whether the order intends only one escrow account to be maintained or does it leave scope for another escrow account to be maintained. The basis for the debate is the Division Bench not being informed that an escrow account, pertaining to project 'M' had already been opened, and the area of the debate is :
if said fact was made known, what would have been the language of the order.
42. It is plain logic that if a fact is not informed to a court, any interim order based on said fact is capable of being modified with reference to the said unknown fact being stated.
43. In other words, within the scope of the authority vested in the Arbitral Tribunal, to modify the order dated November 09, 2012, it would well be within the jurisdiction of the Tribunal to modify the order pertaining to the opening and maintaining an escrow account relatable to project 'A' and project 'M' keeping in view the fact that when the order was passed neither party had told the Division Bench that pertaining to project 'M' an escrow account with Allahabad Bank had already been opened.
44. We need not enter into the debate whether CPI India knew that pertaining to project 'M' an escrow account had been opened with Allahabad Bank, with a lien of the Bank. We therefore, need not note the extensive arguments addressed to us by Sh.Harish N.Salve, CM Nos.10417/2013 & 10419/2013 in FAO (OS) 507/2012 Page 15 of 16 learned Senior Counsel who appeared for BPTP Ltd. and the copious record shown to us in the form of minutes of a meeting dated December 21, 2011, the presence of the Directors shown therein and the previous minutes of a meeting dated June 16, 2011, a sanction letter dated June 01, 2011; the cash flow statements in the Cushman's report, indicative of a knowledge of the representatives of CPI India Ltd. pertaining to loan being obtained in sum of `50 crores from Allahabad Bank and an escrow account opened. Whether or not said fact was in the knowledge of the representatives of the CPI India Ltd. is a matter of fact and the Arbitral Tribunal can opine upon the same. Further, if the matter of fact was that it was in the knowledge of the representatives of CPI India Ltd., the effect thereof has to be considered by the Tribunal. In the reverse, if the said fact was not in the knowledge of the representatives of CPI India Ltd., the effect thereof has to be considered by the Tribunal, of course, keeping in view the underlying ethos of the order dated November 09, 2012 that the money had to be secured with transparency in a escrow account and not an escrow account. Thus, even CM No.10419/2013 is dismissed.
45. No costs.
(PRADEEP NANDRAJOG) JUDGE (V.KAMESWAR RAO) JUDGE OCTOBER 09, 2013 Mamta/rk CM Nos.10417/2013 & 10419/2013 in FAO (OS) 507/2012 Page 16 of 16