Bombay High Court
Axis Trustee Services Limited vs Metropolitan Infrahousing Privte ... on 3 October, 2018
Author: S.J.Kathawalla
Bench: S.J. Kathawalla
ssp 901 s 179 of 2017 .doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
COMM. SUIT NO.179 OF 2017
Axis Trustee Services Ltd. ... Plaintif
versus
Metropolitan Infrahousing Pvt. Ltd.
And Ors. ... Defendants
Mr. Sunil Tilokchandani with Mr. Akhil Tiwari, Mr. Rohit Lalwani I/by M/s. Manilal
Kher Ambalal and Co., for Plaintif.
Mr. Vineet Naik, Senior Advocate with Mr. Dhawal Mehta, Mr. Denzil Arambhan,
Ms. Apeksha Munot, Ms. Henna Goradia I/by M/s. Wadia Ghandy and Co., for
Defendant No.4.
Mr. Fredun De'Vitre, Senior Advocate with Mr. Prakash Shah, Mr. Durgaprasad
Poojari I/by M/s. PDS Legal, for Defendant No.1 in Suit No.431 of 2015 and COMS
179 of 2017.
Ms. Vinita Hombalkar I/by M/s. Orbit Law Swervices, for Canara Bank.
Mr. Sajit Suvarna with Mr. Samit Shukla, Mr. Krushanu Pandya I/by M/s. DSK
Legal, for Sunderr Niwas Properties LLP /Infotech (India) LLP.
Dr. Birendra Saraf I/by M/s. DSK Legal.
CORAM: S.J. KATHAWALLA, J.
DATE: 3rd OCTOBER, 2018 P.C.:
1. Leave to amend the Plaint in terms of addition of Out-n-Out Infotech (India) LLP as Defendant No.5 is granted. Amendment to be carried out within one week. Re-
affirmation dispensed with. Out-n-Out Infotech (India) LLP is impleaded as party Defendant No.5. M/s. DSK Legal, Advocates for Out-n-Out Infotech (India) LLP waive service of Writ of Summons and undertake to file their Vakalatnama.
2. By an order dated 6th August 2018 passed by this Court, the suit was partly 1/5 ssp 901 s 179 of 2017 .doc decreed in terms clause 14 of the Consent Terms dated 6 th August 2018 ("First Consent Terms") executed between the Parties and for passing further decree in terms of the remaining clauses of the Consent Terms, the suit was adjourned.
3. The sale in respect of the property described in the Second and Third Schedule was to be consummated on or before 20 th September 2018 or 5th October, as the case may be, subject to certain pre-conditions contained in Clause 29 of the First Consent Terms and as recorded in the order dated 6 th August 2018 passed by this Court.
4. The Parties will tender revised Consent Terms on 5 th October 2018 ("Substituted Consent Terms"), duly signed by the Parties and their respective Advocates. Draft of the unexecuted Substituted Consent Terms (without annexures) is taken on record and marked as "X-1" for identification. The duly signed Substituted Consent Terms, which will be tendered on 5th October 2018, shall be substituted in place and stead of the First Consent Terms tendered in this Court on 6 th August 2018.
5. As per the Substituted Consent Terms, the sale in respect of property described in the Third Schedule, is being consummated in favour of Out-n-Out Infotech (India) LLP (being Defendant No.5), an entity nominated by Sundar Niwas Properties LLP (being Defendant No. 3).
6. HDFC Bank Limited Sion Branch, is directed to forthwith act on the letter dated 5th October 2018 for transfer of funds issued by Defendant No. 1, Metropolitan 2/5 ssp 901 s 179 of 2017 .doc Infrahousing Private Limited to HDFC Bank Limited, a copy whereof is tendered by Defendant No. 1 which is taken on record and marked as 'X-2' for identification.
7. The Prothonotary and Senior Master, High Court, Bombay is directed to act and remit on 5th October 2018, the amounts in terms of clauses 19 of the Substituted Consent Terms, which are reproduced below:
"19. Ordered and decreed that the amount of Rs.47,37,57,004.33 (Rupees Forty Seven Crores Thirty Seven Lakhs Fifty Seven Thousand Four and paise Thirty Three only) in the designated bank account no. 50200032785646 opened by Defendant No.1 with HDFC Bank Limited shall be forthwith transferred by Defendant No.1 in the following manner: -
(a) A sum of Rs.37,34,63,084/- (Rupees Thirty Seven Crores Thirty Four Lakhs Sixty Three Thousand and Eight Four Only) to Canara Bank towards repayment of the Canara Bank Loan by RTGS to account no. 5310295000001 with Canara Bank with IFSC Code: CNRB0005310; and
(b) A sum of Rs.10,02,93,920.33 (Rupees Ten Crores Two Lakhs Ninety Three Thousand Nine Hundred Twenty and paise Thirty Three) to the designated suit account being account no.
50200032783399 opened by the Learned Prothonotary and Senior Master, High Court, Bombay with HDFC Bank Ltd., which will be forthwith transferred by the Learned Prothonotary and Senior Master, High Court, Bombay in the following manner: -
(i) Rs.9,17,79,457.33 (Rupees Nine Crores Seventeen Lakhs Seventy Nine Thousand Four Hundred and Fifty Seven and paise 3/5 ssp 901 s 179 of 2017 .doc Thirty Three) to the Other Debenture Holders towards full redemption / repayment of the First Series NCDs by way of fund transfer / RTGS as per the details annexed hereto and marked as Annexure "F" after deducting income tax at source as per the details provided by the Plaintiff in Annexure "D" hereto. This amount of income tax deducted at source as set out in Annexure "D" will be forthwith deposited by the Prothonotary and Senior Master, Bombay High Court with the Income Tax Authorities under the PAN and TAN of Defendant No.1, and the Defendant No. 1 will issue the appropriate TDS certificate within the period required by applicable law to enable the concerned Other Debenture Holders to claim credit. All those Other Debenture Holders where no TDS is being deducted on interest payments to them, as may be directed by the Hon'ble High Court, are hereby ordered to and do hereby undertake to deposit the necessary TDS amount with the income tax authorities as and when called upon to do so and Defendant No.1 will not be liable for this;
(ii) Rs.82,69,485/- (Rupees Eighty Two Lakhs Sixty Nine Thousand Four Hundred Eighty Five Only) to be paid directly to TCFSL by way of fund transfer to bank account no. 00600310012676 with HDFC Bank and IFSC Code: HDFC0000060 towards full redemption/repayment of the Second Series NCDs;
(iii) Rs.2,44,978/- (Rupees Two Lakhs Forty Four Thousand Nine Hundred and Seventy Eight Only) towards tax be deducted at source by Defendant No.1 on the payment made to TCFSL which shall be deposited by the Learned Prothonotary and Senior Master, High Court, Bombay with the Income Tax Authorities towards tax to be deducted at source, under the PAN and TAN of Defendant No.1 which 4/5 ssp 901 s 179 of 2017 .doc undertakes to issue the appropriate TDS certificate within the period required by applicable law to enable TCFSL to claim credit".
8. HDFC Bank Limited Sion Branch, is directed to forthwith act on the oral instructions of the Learned Prothonotary and Senior Master, High Court, Bombay.
9. Pending clarification in respect of the alleged claim of Maharashtra State Electricity Board ("MSEB") emanating from an ex-parte decree dated 3rd November 2012 passed by Joint Civil Judge, Sr. Division, Kalyan, in Special Civil Suit No. 147 of 2002, any alleged claim of MSEB in this regard, shall be restricted only to the property described in the Third Schedule to the Substituted Consent Terms. Such alleged claim of MSEB shall not in any manner afect the properties described in the First Schedule and Second Schedule which has been / agreed to be sold to Defendant No.4.
10. The Learned Prothonotary and Senior Master, High Court, Bombay to report compliance at 2.30 pm on 5th October 2018.
11. The parties concerned to act on an ordinary copy of this order duly authenticated by the Associate/Private Secretary of this Court.
( S.J.KATHAWALLA, J. )
Swaroop Digitally signed
by Swaroop
Sharad Sharad Phadke
Date: 2018.10.04
Phadke 15:10:20 +0530
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