ASSETS CARE AND RECONSTRUCTION ENTERPRISES LIMITED vs ORBIT VENTURES DEVELOPERS on 16 April 2024

J U D G M E N T

1. The Original Application has been filed by the Applicant before the Ld. DRT-II, Mumbai on 27.09.2022 which stands transferred to this Tribunal on 31.10.2022 due to change of jurisdiction vide Gazette Notification dated 04.10.2022 and registered as TOA No.12/2023. The OA has been filed for recovery of Rs.492,26,70,733 (Rupees Four Hundred Ninety Two Crore Twenty Six Lakhs Seventy Thousand Seven Hundred Thirty Three only) with further interest @24.5% p.a. from 31.08.2022 till its realization.

2. Facts as succinctly set out in the OA are that present OA is filed by the Applicant in its capacity as Trustee of Indian Real Estate 2021, Trust. The Applicant is assignee of ACIL who has assigned the debt due and payable to the Applicant herein. The Defendant No.1 is a Partnership firm duly registered under the Indian Partnership Act, 1932 and is carrying on the business of real estate development inn Mumbai. Defendant No.2 to 4 are the Partners of the Defendant No.1 and also executed Deeds of Guarantee inter alia guaranteeing the due repayments of the debt due to the Applicant from Defendant No.1. The Defendant No.5 is a private limited company and also carrying on the business of real estate development in Mumbai and executed a Deed of Guarantee inter alia guaranteeing the due repayments of the debt due to the Applicant from Defendant No.1.

3. It is stated that the Defendant No.1 is presently carrying out a redevelopment projects named “Shikhar A”, with its RERA registration number as P51800005666 and “Shikhar B”, with its RERA registration number as P51800008213, together referred to as “Project Midcity Shikhar” in Oshiwara, Jogeshwari (West), Andheri, Bombay (“Project”).

4. In or around 2016, the Defendant No.1 to 4 approached the ACIL and requested for grant of a loan facility aggregating to Rs.265,00,00,000/- for the development of the Project. Accordingly, on 30.03.2016, a Facility Agreement was executed between Defendant No.1 to 5 and ACIL. Under the facility agreement, the Defendant No.1 had availed a loan facility aggregating to Rs.265,00,00,000/- from ACIL, for the purpose of development of the Project and on the terms and conditions contained therein. Accordingly on 30.03.2016, a Facility Agreement was executed by and between the Defendant No.1 to Defendant No.5. Under the said facility agreement, the Defendant No.1 had availed a loan facility aggregating to Rs.265 crores. Pursuant to the execution of the facility Agreement, the Defendant No.1 executed and registered an Indenture of Mortgage dated 30.03.2016 in favour of the ACIL, inter alia, creating a mortgage in favour of the ACIL on all right, title and interest of Defendant No.1 over the Project and the Project Land including the development rights of Defendant No.1 pursuant to the Development Agreement dated 16.08.2007 and 17.04.2014. The Defendant No.2 to 4 have executed a Deed of Guarantee whereby they have irrevocably and unconditionally guaranteed that they shall upon the occurrence of an Event of Default and upon demand, pay, within 1 (one) Business Day from the date of delivery of Demand Certificate, the amount mentioned in the Demand Certificate. The said Deed of Guarantee is a continuing guarantee and the liability of the Guarantors i.e. Defendant No.2 to 4 is co-extensive with that of Defendant no.1. Further, in compliance with the terms and conditions of the Facility Agreement 1, the Defendants also executed the following security documents:

(i) Amended and Re-stated Share Pledge Agreement dated 30.03.2016 executed by and among Defendant No.2 to 4 and ACIL wherein Defendant No.2 and 3 pledged certain shares held by each of them in Defendant No.4 in favour of the ACIL.

(ii) Subordination Agreement dated 30.03.2016 executed by and among Defendant No.1 to 3 and ACIL, wherein the liabilities arising out of the unsecured loans provided by Defendant No.2 and 3 to Defendant No.1 were subordinated in all respect to the liabilities arising out of Facility Agreement 1;

(iii) Power of Attorney dated 30.03.2016 executed by Defendant No.2 and 3;

(iv) Demand Promissory Note dated 30.03.2016;

(v) Escrow Agreement dated 30.03.2016 executed by and among Defendant No.1 to 4, Orbit Ventures & Co., ACIL and HDFC Bank Ltd. wherein HDFC Bank Limited was appointed as the Account Bank for the purpose of the Facility Agreement 1.

5. The Applicant stated that by 20.09.2017, a sum of Rs.265 crores was disbursed by ACIL to Defendant No.1 under the Facility Agreement

1. The Defendant No.1 was required to repay the said amount in 10 (ten) equal successive quarterly instalments of Rs.26,50,00,000/- each commencing from 31.12.2017 and the last instalment was due and payable on 31.03.2020. The Defendant No.1 made pre-payment of Rs.85 crores to ACIL under the facility agreement 1 and the said payment was appropriated towards principal instalments falling due for the quarters ending December, 2017, March 2018 and June 2018 aggregating to Rs.79,50,00,000/- and balance amount of Rs.5,50,00,000/- was adjusted towards instalment for the quarter ending September 2018. Upon making payment of the aforesaid Rs.85 crores, principal amount of Rs.180 crores with interest and other charges was payable under the Facility Agreement 1.

6. It is further stated that in or around September 2017, Defendant No.1 was desirous of availing a loan facility of up to Rs.130 crores from Axis Finance Limited. On 25.09.2017, Defendant No.1 addressed a letter to ACIL inter alia requesting ACIL to grant no objection to (i) Defendant No.1 availing loan facility from Axis Finance Limited; (ii) issuance of personal guarantees by Defendant No.2 and 3 for securing loan facility from Axis Finance Limited; and

(iii) creation of security by Defendant No.1 to secure the loan facility of Axis Finance Limited. On the same day i.e. 25.09.2017, ACIL granted a NOC subject to a condition that a total amount of at least Rs.125 crores shall be paid to ACIL towards repayment of instalments under the Facility Agreement 1.

7. It is further stated that on March 31, 2018, the Defendant No.1 committed a default by failing to make payment of the interest amount to ACIL. Hence, on 30.05.2018, a letter was addressed by ACIL to Defendant No.1 to 3 stating that a sum of Rs.6,15,09,589/- was due and payable by 31.03.2018 and called upon them to pay the dues. On 30.06.2018, the Defendant No.1 made part payment of Rs.5,92,20,700/- towards repayment of the interest amount mentioned in the notice dated 30.05.2018. The amount was paid net of TDS however, the TDS which was to be deposited with the Income Tax Department for the benefit of ACIL was not deposited by Defendant No.1.

8. It is further stated that in or around September, 2018, Defendant No.1 approached ACIL for additional funding required for inter alia project development expenses/working capital pertaining to the Project and requested ACIL to sanction an additional loan facility aggregating to Rs.95 crores. Accordingly, on 12.10.2018, a Facility Agreement was executed by and between Defendant No.1 to 5 and ACIL. Pursuant to the execution of Facility Agreement 2, Defendant No.1 and Defendant No.5 executed and registered an Indenture of Mortgage dated 12.10.2018, creating a mortgage on properties including the FSI, additional FSI and the saleable area of the Project (other than 12 unsold units of Shikhar A and sold receivables of Shikhar A), and the right to sell the saleable area and other properties. The Defendant No.2 to 5 have executed another Deed of Guarantee dated 12.10.2018 whereby they have irrevocably and unconditionally guaranteed that they shall upon the occurrence of an Event of Default and upon demand, pay, within 1 (one) Business Day from the date of delivery of Demand Certificate, the amount mentioned in the Demand Certificate. The said Deed of Guarantee is a continuing guarantee and the liability of the Guarantors i.e. Defendant No.2 to 4 is co-extensive with that of Defendant no.1.

9. Further, in compliance with the terms and conditions of the Facility Agreement 1, the Defendants also executed the following security documents on 12.10.2018:

(vi) Share Pledge Agreement executed by and among Defendant No.2 to 4 and ACIL wherein Defendant No.2 and 3 pledged certain shares held by each of them in Defendant No.4 in favour of the ACIL.

(vii) Subordination Agreement executed by and among Defendant No.1 to 5 and ACIL, wherein the liabilities arising out of the unsecured loans provided by Defendant No.2 to 5 to Defendant No.1 were subordinated in all respect to the liabilities arising out of Facility Agreement 2;

(viii) Power of Attorney executed by Defendant No.2 and 3;

(ix) Demand Promissory Note; and

(x) Amended and restated escrow Agreement dated 17.10.2018 executed by and among Defendant No.1 to 5, ACIL and HDFC Bank Limited, wherein HDFC Bank Limited was appointed as the Account Bank for the purpose of the Facility Agreement 2.

10. Under the facility Agreement 2, the Defendant No.1 was required to repay the said amount in 2 (two) equal instalments commencing. The

11. It is further stated that on 30.10.2018, Defendant No.1 shared a copy of its audited Annual Accounts for the financial year 2017-2018 with ACIL. Upon perusal of the audited Annual Accounts, it is clear that the Defendant No.1 has admitted the existence of Facility Agreement 1 and have also admitted that as on 31.03.2018, an

amount of Rs.185,92,20,700/- was payable with interest due thereon. However, in its Audited Annual Accounts for the financial year 2017-2018, Defendant No.1 had not accounted for default interest of Rs.10,13,04,704/-. Subsequently between December 2018 to January 2019, Defendant No.1 made payment of an aggregate amount of Rs.47.50 crores which was appropriated towards payment of the principal instalments under Facility Agreement 1 for the quarters ending September 2018 and December 2018. Upon making payment of Rs.47.50 crores, principal amount of Rs.132.50 crores remained payable under the Facility Agreement

1.

12. It is further stated that on 08.04.2019, ACIL addressed two letters to Defendant No.1 in connection with the audit of ACIL for the period ended 31.03.2019. By the said letters, ACIL requested Defendant No.1 to confirm the balance in favour of ACIL as on 31.03.2019 receivable from Defendant No.1. The Applicant submits that by an email dated 07.05.2019, ACIL received scanned copies of letters dated 08.04.2019 wherein Defendant No.1 confirmed in writing that principal sum of Rs.132.50 crores with interest of Rs.5,45,19,906/- was payable under the Facility Agreement 1 and Rs.80 crores plus interest of Rs.3,24,65,219/- was due and payable under the Facility Agreement 2. In the month of June 2019, the Defendant No.1 made payment of Rs.26.50 crores towards payment of instalment for the quarter ending March 2019. Upon making this payment, principal amount of Rs.106 crores with interest payable under the Facility Agreement 1.

13. However, the Defendant No.1 failed and neglected to make payment of instalments of the principal amount and interest amount under the Facility Agreements. Thus, the account of Defendant No.1 was classified as NPA on 30.09.2019. Accordingly, the ACIL addressed an Acceleration and Enforcement Notice dated 11.10.2019 and called upon the Defendants to pay the outstanding dues but they failed to pay the dues. On the same day, the ACIL addressed a Guarantee invocation and Demand Certificate to Defendant No.2 and 3 and Defendant No.4 but they failed to pay the dues.

14. It is stated that an application has been filed under Section 7 of the Insolvency and Bankruptcy Code, 2016 read with Rule 4 of the IBC, 2016 against Defendant No.4, which is presently pending before the Ld. NCLT.

15. It is further stated that on 22.10.2019, a Demand Notice under the amended and restated Share Pledge Agreement dated 12.10.2018 was issued by ACIL to Defendant No.2 and 3 to pay the outstanding dues but they failed to pay the dues. Hence, the ACIL on 04.12.2019 addressed a notice under Section 13(2) of the SARFAESI Act, 2002 to Defendant No.1 and 5 and called upon them to pay the outstanding dues but neither the Defendant No.1 nor Defendant No.5 have replied to the said letter. Subsequently on 09.01.2020, ACIL filed a complaint before the Ld. MM, 58th Court, Bandra, Mumbai, against Defendant No.1 to 4 and one Mr. Vinay Vinayak Ambardekar, Director of Defendant No.4, under Section 138 r/w Section 141 of NI Act, 1991 which is pending before the Ld. MM.

16. It is further stated that on 04.03.2021, an Assignment Agreement was executed between ACIL and the Applicant herein. Vide the Assignment Agreement, ACIL assigned all its right, tile and interest arising out of the Facility Agreements, in favour of the Applicant.

17. It is also stated that the dispute arose between Axis Finance Ltd. and Defendant No.1 and the Applicant was compelled to intervene in the said dispute to protect its interest under the Facility Agreements and other Finance Documents. The Division Bench of the Hon’ble High Court vide order dated 23.02.2022 recorded the statement of the counsel appearing for the Applicant qua the development right in the Project bearing mortgaged in favour of the Applicant. Defendant No.2 and 3 breached the order dated 23.03.2022 passed by the Hon’ble High Court of Bombay and failed to make payment of the instalments as per scheduled provided in the order dated 23.03.2022, therefore, vide an order dated 21.07.2022, the Hon’ble High Court directed Defendant No.2 and 3 to surrender and present themselves before the Hon’ble Court. Since Defendant No.2 and 3 did not remain present, on 22.07.2022, the Hon’ble High Court issued a look out notice against them. Defendant No.2 and 3 filed a Special Leave Petition (SLP) before the Hon’ble Supreme Court bearing No.13016-13017/2022 challenging orders dated 21.07.2022 and 22.07.2022 passed by the Hon’ble High Court. When the Applicant became aware of the order dated 26.08.2022 passed by the Hon’ble Supreme Court in the SLP wherein it was recorded that “On hearing learned counsel for the parties it transpires that the only three creditors of the petitioners are Axis Finance Limited, India Bulls Commercial Credit Limited and India Bulls Housing Finance Ltd…”. Therefore, the Applicant filed an interim application bearing IA No.128032/2022 in the SLP. Vide order dated 07.09.2022, the Hon’ble Supreme Court clarified that the Applicant was free to enforce its rights under the arrangement with the Defendants/their companies and further clarified that the subject matter of the SLP pending before the Hon’ble Supreme

Court was with respect to Shikhar A and the claims of the Applicant were with respect to Shikhar B and Additional FSI of Shikhar A.

18. It is further stated that Defendants have committed default in complying with the various terms and conditions of the Facility Agreements and other Security Documents, hence, the present OA has been filed by the Applicant.

19. Notices were issued to the Defendants. Defendants appeared through their counsel however, no WS has been filed on behalf of the Defendants.

20. The Applicant has produced all the original documents and other relevant documents alongwith their Claim Affidavit filed through Manish Kumar Manav, Associate Vice President and the Authorized Signatory, who has proved all the loaning and security documents such as Exb.A to Exb.XX.

21. I have heard the Ld. Counsel for the Applicant. Despite opportunities, the Defendants failed to argue the matter. Perused the record.

22. Record reveals that on 14.06.2023, the Applicant moved an IA No.2203/2023 seeking issuance of the Recovery Certificate in favour of the Applicant for the Admitted Debt. This Tribunal vide order dated 12.09.2023, allowed the said IA and issued Interim Recovery Certificate for the admitted amount by the Defendant No.1 i.e. Rs.185,69,85,125. However, the Defendants failed to pay the same.

23. The witness of the Applicant has fully corroborated the averments made in the OA/TA, even otherwise the whole case of the Applicant is based on documents and the witness has duly proved all these documents as against the Defendants. In my view there is no question of disbelieving the evidence led by the Applicant and the Applicant has proved its case beyond reasonable doubt against the Defendants.

24. In the light of above discussions, the Original Application deserves to be allowed against the Defendants.

O R D E R

(i) The present O.A. is hereby allowed and Defendant No.1 to 5 are hereby directed to pay to the Applicant Bank, within a period of 60 days, a sum of Rs.492,26,70,733 (Rupees Four Hundred Ninety Two Crore Twenty Six Lakhs Seventy Thousand Seven Hundred Thirty Three only) with further interest @24.5% p.a. from 31.08.2022 till its realization.

(ii) Failing which the aforesaid amount shall be recovered from the sale of mortgaged properties, hypothecated assets, pledged shares as well as other personal moveable and immoveable assets of the Defendants.

(iii) Defendant No.1 to 5 are hereby directed not to deal with their properties till further direction of the Ld. Recovery Officer.

(iv) Defendant No.1 to 5 shall also pay the cost and expenses of the OA/TA.

(v) It is important to note here that as per order dated 12.09.2023 in IA No.2203/2013 filed by the Applicant seeking issuance of the Interim Recovery Certificate, this Tribunal issued the Interim Recovery Certificate for the admitted amount by the

Defendant No.1 i.e. Rs.185,69,85,125, and the same is pending before the Ld. Recovery Officer of this Tribunal therefore, final Recovery Certificate be issued forthwith and be sent to the Ld. Recovery Officer of this Tribunal. Copy of this order be sent to the parties as per rules. File be consigned to record. Place: Mumbai. (Dr. Rekha G. Dhakar) Date: 16.04.2024

Presiding Officer,

DRT-1, Mumbai SC/-