Document Fragment View

Matching Fragments

27. Learned senior counsel for Omkara has submitted that DLF has concealed the MOU dated 27.10.2022 executed between the subsidiary of DLF and PNBHFL, which incorporated an alleged understanding to (1992) 4 SCC 683 (2022) 2 SCC 25 2020 SCC Online Bom 6369 [2020] SGCA 28 [1990] 2 Lloyd's Rep 11 purchase the shareholding of the JHL by the subsidiary of DLF. It is submitted that disputes, if any, that have arisen between DLF and PNBHFL are under the letters dated 02.11.2022 and 10.11.2022, which letters, it is submitted, have been issued in pursuance of the MOU dated 27.10.2022. It is submitted that DLF have failed to disclose any provision of the SPA that has been breached / violated by PNBHFL or Omkara, and it is ex facie clear that no disputes have arisen under the SPA. It is submitted that DLF and Chinsha despite having received the notice of invocation of pledge dated 05.08.2023, did not come forward to redeem the pledged shares by offering to pay the entire loan amount and therefore, there cannot be any arbitrable dispute under the SPA. Furthermore, it is submitted that bare allegations have been made regarding collusion between the PNBHFL, Omkara and Hubtown. DLF/Chinsha, it is submitted, cannot challenge the assignment deed, and thus the aspect of collusion does not arise. It is further submitted that there was no impropriety in selling 75% of the pledged shares of DLF and Chinsha, resulting in the discharge of the outstanding dues of Omkara. It is submitted that it is the sole prerogative of the secured creditor to elect to sell secured assets. Further, financial institutions can only exercise security interest over assets that lead to the satisfaction of its debt and cannot, in law, seek to enforce security interest exceeding the debt amount. It is also submitted that 25% of the pledged shares of Hubtown were not sold since the same were in physical form and blank transfer deeds for the same were not furnished by Hubtown. It is further submitted that the submission of DLF to the effect that the sale of pledged shares by Omkarra was an undervalued transaction is factually incorrect. It is also submitted that claims even if maintainable would be subject to exclusive jurisdiction of courts at Delhi as per Clause 17.12 of SPA. In support of these submissions reliance has been placed on Sidha Neelkanth Paper Industries (P) Ltd. v. RBI14, Ravi Development v. Shree Krishna Prathistha 15 , PTC India Financial Services Ltd. v. Venkateswarlu Kari and Anr.16, Magic Eye Developers (P) Ltd. v. Green Edge Infrastructure (P) Ltd. 17 and Cox and Kings (supra).

"4. ....... 
                                a.     .......
                                b.     Once the shares (75%) were held in dematerialized form, on the
invocation of the Pledge by PNB, the same came to be recorded in the beneficial ownership of PNB, and hence the right to transfer/sell/assign the same vested in PNB in terms of Section 10(3) of the Depositories Act, 1996.

63. From the aforesaid pleas of the petitioner, it is evident that:

a. The DLF/petitioner has invoked non-consensual "alter ego theory" referred to in para 103.2 of Chloro Controls (supra), b. It also invoked "direct benefits estoppel theory" and "third- party beneficiary theory" inasmuch as acquisition of the substantial shareholding by respondent nos.6 and 7 in respondent no.3 was pursuant to the alleged illegal invocation of the pledge and the collusive sale of shares by Omkara.
c. The petitioner also invoked the "intertwined estoppel theory"
inasmuch as the acquisition of shareholding by respondent no.6 and respondent no.7 is inextricably linked to the legality of the first limb of the transaction viz. invocation of the pledge and the legality of the assignment. The intertwined estoppel theory which can be used to bind a non-signatory has been expressly recognized in ONGC v. Discovery Enterprises (supra) and Gaurav Dhanuka (supra).