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7. Schedule 2 to the SSA listed out all the current real estate projects of BPTP. According to CPI, it was represented by BPTP as well as its promoters that they would make best efforts to complete the listing of BPTP‟s shares under a qualified and initial public offer („QIPO‟) within 24 months of 18th August 2007 which was defined as the 'closing date' under Clause 5.1 of the SSA. Under Clause 4.2 of the SHA which was executed on the same date, it was agreed that the proceeds from the shares subscribed by CPI would be utilised by BPTP only for FDI compliant real estate projects, hotels and special economic zones and to fund the capital expansion and/or land acquisition for expanding the business of BPTP in relation to such FDI compliant real estate projects.

8. Under Clause 4.10 of the SHA it was provided that in the event BPTP failed to achieve QIPO within 24 months following the closing date, CPI shall, within six months from the expiry of the said 24 months, have a swap option. Inter alia this involved an obligation on BPTP or the promoter special purpose vehicle („SPV‟) companies to buy back the investor‟s share in BPTP. The manner of issuing the swap option was set out in Clause 4.10.3 of the SHA. Under the swap option, CPI was entitled to select the projects within 30 days from the receipt of the „Company Fair Market Value from the Auditor‟ by giving a written notice to BPTP and the promoters. Separate companies were to be incorporated for each such project. CPI and BPTP were to hold shares in each of the companies in the ratio of 49.99:50.01. Under Clause 4.10.5 of the SHA, CPI had to infuse fresh funds and subscribe/purchase such shares of the project company(s) for the acquisition of 49.99% shareholding in such projects.

17. The selected projects were set out in Schedule A to the MoU. Projects A and M in Faridabad listed at Serial Nos. 2 and 5 were group housing projects. Apart from the above two, listed at Serial Nos. 1, 3, 4, 6, 7, 8 were the other projects.

18. Clause 4.4 of the MoU described what would be understood as the „Absolute Trigger Events‟. One of these was failure by BPTP to successfully implement the QIPO by the IPO deadline. Clause 10 of the MoU provided for distribution of the sale proceeds of the selected projects. Those proceeds were to be deposited directly into an escrow account which was to be in the name of BPTP and was to be operated by the escrow agent only upon receipt of joint written instructions from BPTP and CPI. Under Clause 10.2 of the MoU, all proceeds generated after the effective date i.e. 19th December 2009 from pre- sales by the BPTP of any units located on any of the selected projects were to be deposited into the escrow account. After the effective date any construction/marketing of any such selected project shall be made subject to and in accordance with the mutual agreement in writing between CPI and BPTP.

32. Accordingly, the appeal was disposed of by the DB by the aforementioned order of 9th November 2012 by permitting BPTP to raise a loan of Rs.125 crores from IFCI without altering the shareholding of BPTP; that BPTP would use the said loan to pay the government dues; that BPTP would continue with the ongoing projects i.e. Projects A and M which would entitle BPTP to enlist further flat buyers for the remaining towers proposed to be constructed in the two projects; BPTP would be permitted to receive money from the existing flat buyers and further enrol flat buyers but would open an escrow account within a week, details of which would be furnished to the AT and the amounts realised would be deposited in the said account, utilisation whereof would be as per the interim orders of the AT. BPTP was not to take any further decisions pertaining to obtaining any loans or encumbering any of its assets. It was to provide to the AT by affidavit the details of the existing flat buyers who had booked flats in Projects A and M together with the amount paid by them and to show how the amount was utilised. BPTP was not to commence any booking of flats in any of these projects enlisted in the Schedule to the MoU.