Shakti Nath vs Alpha Tiger Cyprus Investment No. … on 18 February, 2020


Supreme Court of India

Shakti Nath vs Alpha Tiger Cyprus Investment No. … on 18 February, 2020

Author: Uday Umesh Lalit

Bench: Uday Umesh Lalit, Hon’Ble Ms. Malhotra, Hemant Gupta

                                                                 NON-REPORTABLE


                                 IN THE SUPREME COURT OF INDIA
                                  CIVIL APPELLATE JURISDICTION


                                   CIVIL APPEAL NO.1674 OF 2020
                                (Arising out of SLP(C)No.22038/2017)


         SHAKTI NATH & ORS.                                        …Appellants

                                                Versus

         ALPHA TIGER CYPRUS INVESTMENT
         NO.3 LTD. & ORS.                                          …Respondents




                                              ORDER

Leave Granted.

1. The present Appeal has been filed to challenge an award

passed in an ICC arbitration with its seat in New Delhi.

The Appellant has challenged the judgment dated

08.05.2017 passed under Section 37 of the Arbitration and

Conciliation Act, 1996 (“Act”), whereby a division bench of
Signature Not Verified

Digitally signed by
MUKESH KUMAR
Date: 2020.02.18
the Delhi High Court rejected the Appeal.
17:28:20 IST
Reason:

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2. The factual background in which the present Appeal has

been filed is as follows : –

2.1. The Appellant-Promoters entered into a Shareholders

Agreement (“SHA”) and a Share Subscription and

Purchase Agreement (“SSPA”) with Respondents No.1

and 2 both dated 21.03.2008 to acquire 50%

shareholding in Respondent No. 3 for the development

of a Special Economic Zone for Information Technology

and Information Technology Enabled Services. The

project was to be developed on a plot of land

admeasuring approx. 45,202 sq. mts. in NOIDA

(“Project Land”) which was allotted to one M/s Sarv

Mangal Real Tech Pvt. Ltd. (“M/s Sarv Mangal”). The

Project Land was sub-leased by M/s Sarv Mangal to

Respondent No. 3.

2.2. The SHA and SSPA were terminated. The parties

entered into a Restated Shareholders Agreement

(“RSHA”) and a Restated Share Subscription and

Purchase Agreement (“RSSPA”) both dated 02.07.2009.

As per Clause 3.3 and 3.4 of the RSSPA,

Respondents No. 1 and 2 were required to contribute

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Rs.45 crore to purchase and subscribe the shares in

Respondent No.3, which was brought in by

17.12.2009.

2.3. The Appellants terminated both the agreements on

17.12.2009. The Respondents No. 1 and 2 invoked

arbitration, and submitted the Request for Arbitration

to the ICC Court under the RSHA and RSSPA.

2.4. The Tribunal vide its award (2:1) dated 20.01.2015

allowed the claim of Respondents No. 1 and 2, and

awarded the following : –

a) payment of Rs.45,00,27,747/- together with Simple

Interest @ 18% p.a. from 31.10.2011 to the date of the

award;

b) payment of Simple Interest @ 15% p.a. on all sums

awarded to the claimants in the award, till the date of

payment;

c) the Appellants were not entitled to repayment of lease

rental paid to NOIDA from Respondents No. 1 and 2,

and the Respondent-Claimants were under no

obligation to share future lease rental;

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d) the Appellant-Promoters were directed to pay costs of

the arbitration comprising of:

i. fees and expenses of the arbitral tribunal and the

ICC administrative expenses fixed by the ICC Court

for the total amount of USD 900,000;

ii. Rs.2,39,08,082/- towards the legal fees of the

Respondent-Claimants;

iii. costs of the hearing venue in the amount of

Rs.6,57,635/-;

iv. a sum of Rs.1,274,931/- in respect of other costs

and expenses of the Respondent – Claimants.

2.5. The Appellants filed objections under S. 34 of the 1996

Act before the Delhi High Court. The learned Single

Judge vide Order dated 09.02.2017 rejected the

challenge on merits, and held that it was an

undisputed fact that Respondents No. 1 and 2 had

brought in a sum of Rs.45,00,27,747/- for the project.

The Appellants had terminated the RSHA and RSPA

soon after the funds were brought in by Respondents

No. 1 and 2. The Court found the findings of the

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arbitral tribunal to be consistent with the terms of the

agreement.

2.6. Aggrieved, the Appellants preferred an Appeal under S.

37 of the Act before the Division Bench of the Delhi

High Court. The Division Bench vide judgment and

order dated 08.05.2017 rejected the Appeal as being

devoid of any merit.

3. The Appellants have challenged the Order passed under S.

37 of the 1996 Act by way of the present Special Leave

Petition.

3.1. This Court vide interim Order dated 15.09.2017

directed the Appellants to deposit an amount of

Rs.20,00,00,000/- (rupees twenty crore) in the

Registry of this Court, which was directed to be

invested in a short-term fixed deposit account with a

nationalised bank. The Appellants were injuncted

from alienating the Project Land, so that in the

ultimate eventuality, if the award was sustained by

this Court, it could be realised from the sale of the

Project Land.

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3.2. By a subsequent Order dated 01.05.2018,

Respondent No.1 was permitted to withdraw an

amount of Rs.10 crore unconditionally, from the

amount lying deposited in this Court.

3.3. By a further Order dated 14.11.2019, the Senior

Counsel for the Appellants requested for time to find a

suitable buyer for the Project Land. It was made clear

that the sale would be under the auspices of a public

authority or a court officer, and the entire sale

consideration would be deposited in the Registry of this

Court.

It was further directed that the balance amount of

Rs.10 crore along with the accrued interest, which was

lying been deposited in the Registry of this Court,

would be released to Respondent No.1.

The counsel for the Appellants made a request to

join NOIDA as a party to the present proceedings since

the Project Land was leased out by NOIDA.

Consequently, Notice was issued to implead NOIDA in

the proceedings.

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3.4. The Appellants filed an affidavit dated 05.12.2019

stating that the Project Land was free from any and all

encumbrances, and was not subject to any pre-existing

mortgage or charge.

It was further submitted that the Appellants were

able to identify a party which was interested to acquire

the sub-lease of the Project Land, viz. M/s. Good Living

Infrastructure Pvt. Ltd. (“Bhutani group”). The Bhutani

group had submitted their Expression of Interest to

acquire the sub-lease of the Project Land from NOIDA

by acquisition of shares of Respondent No. 3 for a total

consideration of Rs.99,44,55,000/-. The Bhutani

group was willing to deposit the sale consideration in

the Registry of this Court, after deducting the dues

payable to NOIDA. A copy of the Expression of Interest

dated 26.11.2019 was placed on the record of this

Court.

The Appellants further submitted that the balance

amount would be raised by mortgaging the property

situated at Industrial Plots No. 4 and 5, Block A, Sector

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16, NOIDA, owned by Appellant No. 4, which is being

used as the Corporate Office.

The CEO of M/s Good Living Infrastructure Pvt.

Ltd. who was present in Court confirmed that his

Company stands by the offer of Rs 99,44,55,000/-

made by him before the Court.

M/s Good Living Infrastructure Pvt. Ltd. was

directed to file a Board Resolution along with an

affidavit to confirm the offer before the next date of

hearing.

3.5. M/s Good Living Infrastructure Pvt. Ltd. through its

CEO/ Additional Director, duly authorized by a Board

Resolution dated 20.12.2019, filed an Affidavit dated

06.01.2020 before this Court to place on record its

Interest to acquire the sub-lease of the property

bearing Plot No.001B situated Sector 140A in NODIA

district Guatam Budh Nagar, U.P. admeasuring

45,202.50 sq. mts. held by M/s IT Infrastructure Park

Ltd. (Respondent No.3) for a consideration of Rs.

99,44,55,000/-. This would be effectuated by

acquisition of shares of Respondent No.3 which holds

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the aforesaid property under a sub-lease executed

between NOIDA–the Lessor, M/s Sarv Mangal Real

Tech Pvt. Ltd.–the Lessee, and Respondent No.3–the

sub-lessee under Sub Lease dated 21.10.2009.

In the said Affidavit, Bhutani Group stated that it

is aware of the pending litigation before this Court, and

is willing to deposit the entire sale consideration with

the Registry of this Court, including the dues payable

to NOIDA.

3.6. With respect to the dues of NODIA, we requested the

Counsel for NOIDA to ascertain whether penal interest

on land rent and interest could be waived.

3.7. During the course of hearing on 22.1.2020, the dues

payable to NOIDA were crystallised as follows :-

(i) Pending Instalment amounts with Rs.23,21,00,000
Simple Interest @ 14% p.a.

(ii) Lease Rent dues with Simple Interest Rs.11,93,00,000
@ 14% p.a.

(iii)Time Extension charges Rs.6,57,38,900

(iv) Additional amount payable to land – Rs.93,36,577
owners as compensation @ 64.7% ________________
TOTAL Rs.42,64,75,477

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4. After having heard the Counsel appearing for all the parties,

the challenge to the ICC award is hereby rejected.

With respect to the amount awarded towards Interest

and Penal Interest under the award, the same has been

modified by consent of parties, as a prudent commercial

decision, in the following terms :-

i) The Appellants agree to make a total payment of

Rs.107.50 Crores (Rupees One Hundred and Seven

Crores and Fifty Lacs) to Respondents No. 1 and 2 as full

and final settlement of their dues under the award dated

20.01.2005.

ii) Out of the total amount of Rs.107.50 crores,

Respondents No.1 and 2 have already received an

amount of Rs.21,53,00,000/- (Rupees Twenty One Crore

FiftyThree Lacs) pursuant to the Interim Orders dated

01.05.2018 and 14.11.2019 passed by this Court.

The balance amount payable to Respondents No.1 and

2 would be Rs.85,97,00,000/- (Rupees Eighty Five Crore

Ninety Seven Lacs).

iii) M/s. Good Living Infrastructure Private Ltd. of the

Bhutani Group agreed and undertook to pay

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Rs.99,44,55,000/- for the purchase of the entire

shareholding of Respondent No.3 – IT Infrastructure Park

Pvt. Ltd. from the Appellants and Respondents No.1

and 2.

Out of this amount, Rs. 42,64,75,477/- would be

paid directly towards the dues of NOIDA. The Bhutani

Group would be at liberty to make a representation to

NOIDA within one week for re-schedulement as per its

prevailing policy, which would be decided within a further

period of one week.

iv) The balance sale consideration of Rs.56,79,79,523/-

(99,44,55,000 minus 42,64,75,477) would be deposited

by M/s Good Living Infrastructure in the Registry of this

Court. The deposit by M/s Good Living Infrastructure

would be made in 2 tranches :-

Rs.10,00,00,000/- Upfront payment to be deposited within 10
days of the passing of this Order.

Rs.56,79,79,523/- To be deposited within 6 months from the
date of this Order.

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The aforesaid amounts would be made over to

Respondent Nos.1 and 2 towards payment of the balance

sale consideration.

v) The balance amount of Rs.29,17,20,477/- payable by the

Appellants to Respondents Ns.1 and 2 would be carried

out within a period of 3 months from the passing of this

Order.

vi) The orders of injunction dated 24.03.2017 and 17.08.2017

passed by the Delhi High Court restraining the Appellants

from alienating Industrial Plots No.4 and 5, Block A,

Sector-16, NOIDA is hereby lifted, to enable the Appellants

to raise funds for payment of the balance amount as stated

in para (ii) hereinabove.

5. The Appellants were directed to file an Affidavit of

Undertaking before this Court, with respect to the

obligations to be discharged as per the Consent Terms set

out hereinabove.

6. The Appellant No.1- Mr. Shakti Nath has filed an Affidavit of

Undertaking dated 10.02.2020 on behalf of all the

Appellants, stating that:

“1. I am the Petitioner No.1 in the above mentioned Petition and
am filling this affidavit on behalf of all Petitioners. Petitioners
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No.2 and 3 are my wife and son, respectively, and the
Petitioner No.4 is a private limited company of which I am the
Managing Director and 96.26% shareholder while the
remaining shareholding is held by the Petitioners No.2 and 3,
respectively.

2. Under the kind supervision of this Hon’ble Court, the parties
have agreed to settle the dispute forming part of the present
Petition at a total settlement amount of Rs.107,50,00,000/-
(Rupees One Hundred Seven Crore Fifty Lakhs Only). It has
further been agreed that the Respondent No.3 will be
purchased by way of purchase of its entire shareholding from
the Petitioners and the Respondents No. 1 & 2 by Good Living
Infrastructure Pvt. Ltd. (“GLI’), for Rs.99,44,55,000/- (Rupees
Ninety Nine Crore Forty Four Lakhs Fifty Five Thousand only),
out of which an amount of Rs.42,64,75,477/- (Rupees Forty
Two Crore Sixty Four Lakhs Seventy Five Thousand Four
Hundred Seventy Seven Only) or thereabouts shall be paid to
NOIDA directly by GLI towards payments of dues to NOIDA
as determined by this Hon’ble Court. The balance amount of
Rs.56,79,79,523/- (Rupees Fifty Six Crore Seventy Nine
Lakhs Seventy Nine Thousand Five Hundred Twenty Three
only) shall be deposited by GLI with this Hon’ble Court for
payment to the Respondents No.1 & 2.

3. Of the total settlement amount of Rs.107.50 Crores, the
Respondents have already received an amount of Rs.21.53
Crores from the Registry of this Hon’ble Court, which
comprises the amount of Rs.20 Crores deposited by the
Petitioners pursuant to the order dated 15.09.2017 of this
Hon’ble Court, along with the interest accrued thereon. Thus,
the total amount now payable to the Respondents No.1 & 2

13
comes to Rs.85.97 Crores. Since the Respondents No.1 & 2
will receive an amount of Rs.56,79,79,523/- from GLI, there
will be a shortfall of Rs.29,17,20,477/- (Rupees Twenty Nine
Crore Seventeen Lakhs Twenty Thousand Four Hundred
Seventy Seven only) approximately, which will be deposited
by the Petitioners with this Hon’ble Court.

4. The Petitioners undertake to deposit the above mentioned
shortfall of Rs.29,17,20,477/- or thereabouts within 3 months
of the lifting of the status quo upon their immovable properties,
which has been ordered by the Hon’ble Delhi High Court by
its orders dated 24.03.2017 and 17.08.2017 passed in
Execution Petition bearing OMP (ENF) (COMM) No.45 of 2017.
The said status quo is required to be lifted in order to enable
the Petitioners to raise loan against the said immovable
properties so as to enable them to deposit the shortfall amount
with this Hon’ble Court.

5. The Petitioners hereby undertake that till such time that the
entire settlement amount is paid to the Respondents No.1 &
2, the Petitioners shall not create any third party rights or
interest over the above mentioned immovable properties for
the purpose of raising loans to deposit with this Hon’ble Court
the amounts payable to the Respondents No.1 & 2 as per the
settlement reached between the parties.”

7. M/s Good Living Infrastructure Pvt. Ltd. (“GLI”) has also

filed an Affidavit of Undertaking dated 10.02.2020 stating

that :

“1. I am the CEO/Additional Director of M/s Good Living
Infrastructure Pvt. Ltd. (“GLI”) and have been duly

14
authorized by GLI vide Resolution of Board of Directors
dated 20.12.2019 to give the present undertaking on its
behalf.

2. That GLI undertakes to pay a sum of Rs.99,44,55,000/-

towards the purchase of entire shareholding of IT
infrastructure Park Pvt. Ltd. (Respondent No. 3) from the
Petitioners and Alpha Tiger Cyprus Investment No.2 Ltd.
and Alpha Tiger Cyprus Investment No.3 Ltd. in order to
acquire the sub lease of the property bearing Plot No. 001B
situated at Sector 140A in Noida, District Gautam Budh
Nagar, Uttar Pradesh.

3. That out of total sum of Rs.99,44,55000/-. GLI undertakes
to pay the dues payable to NOIDA, amounting to
Rs.42,64,75,477/-, directly to NOIDA. In this regard, GLI
seeks liberty from this Hon’ble Court to approach NOIDA for
reschedulement of payment of the above mentioned sum.
GLI undertakes to make the appropriate representation/
application to NOIDA for such reschedulement within one
week of the receipt of the order passed by this Hon’ble
Court granting the liberty sought herein.

4. That GLI undertakes to deposit the balance purchase price
after deducting the NOIDA dues therefrom with the Hon’ble
Court i.e. an amount of Rs.56,79,79,523/-, in the following
manner:

Rs. 10,00,00,000/- Upfront deposit to be made with the
Court within 10 days of the signing of
the Share Purchase Agreement
between all the Parties, which shall

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also be deposited in the custody of
the Hon’ble Court.

Rs. 46,79,79,523/- To be deposited within a period of
four months with an additional grace
period of two months after the
passing of the final order by the
Hon’ble Court.

5. It is prayed that the balance amount of Rs.46,79,79,523/-

be distributed to Alpha Tiger Cyprus Investment No.2 Ltd.
and Alpha Tiger Cyprus Investment No.3 Ltd by this
Hon’ble Court after the transfer of the entire shareholding
of Respondent No.3 to GLI.

6. I say that the above mentioned undertaking is voluntary
and unconditional.”

8. In the event of any default in payment of the amounts by

Appellants, the entire amount awarded as per the award

dated 20.01.2015, would become enforceable. However,

prior to enforcement, a window of 2 months would be

granted to the Appellants to make provision for compliance.

On the expiry of the aforesaid period of 2 months, the entire

decree would become executable forthwith.

9. M/s Good Living Infrastructure Pvt. Ltd. is bound by the

unconditional undertaking submitted on Affidavit before

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this Court. Any default by M/s Good Living Infrastructure

Pvt. Ltd. would be treated as a breach of the undertaking

submitted to this Court.

The present Appeal is accordingly disposed of as per

the aforesaid Consent Terms.

Pending applications, if any, stand disposed.

..….………………………J.

(UDAY UMESH LALIT)

…..……………………….J.

(INDU MALHOTRA)
New Delhi;

February 18, 2020.

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