2016 (5) TMI 884 - HC - Companies Law

Winding up - failure to replay the loan and interest thereon - Inter Corporate Deposits (ICD) Agreement as a subject matter of Arbitration - Held that - In view of the chronology of events in respect of arbitration application file under Section 11, it can be seen that the Respondents herein were not impleaded as party to the arbitration application and had not accepted that there was arbitration agreement between the Appellants herein and the Respondents and further had not accepted that the claim of the original Petitioners that the winding up Petition was required to be adjudicated upon by the Arbitrator. No decision was given by the Apex Court in the said application since it was withdrawn and, therefore, it cannot be said that the Apex Court had given any ruling on the basis of the judgment in Chloro Controls (India) Pvt. Ltd. vs. Severn Trent Water Purification Incorporated and Others (2014 (1) TMI 830 - SUPREME COURT ). The contention of Mr. Dwarkadas, the learned Senior Counsel appearing on behalf of the Appellants therefore cannot be accepted. The question No.(i) is therefore answered in the negative. Whether ICDs form part of the larger transaction of investment by the Urban Group in the joint venture business and therefore amounts under ICDs are payable only out of the profits earned by the joint venture business or whether it is a standalone transaction? - Held that - The fact, that supplemental agreement which contained all these clauses of there being a web of transactions which was delivered by the Appellants to the Respondents was, in fact, not signed, which fact indicates that from the beginning understanding between the parties was that the ICDs were to be treated as separate and distinct transaction. Moreover, if the contention of the Appellants was to be accepted then there was no need to enter into new ICDs. The flow chart and the correspondence between the parties does not establish the case of the Appellants. Defence of the Appellants is neither bonafide nor substantial defence. We are of the view that finding given by the learned Single Judge on this issue is neither perverse nor unreasonable and, therefore, we do not propose to interfere with the said finding while exercising our appellate jurisdiction under Clause 15 of the Letters Patent Act. In our view, there was no suppression of fact by the Respondents/original Petitioners since the ICDs were separate and independent agreements. There was no occasion the Respondents/original Petitioners to mention the facts which, according to the Appellants, were allegedly suppressed. The question No.(ii) is therefore answered in the negative. Whether the impugned order directing the Company to pay a sum of ₹ 23,04,59,942/- amounts to a decree when the Company Court was not justified in passing the said Order? - Held that - The learned Single Judge in his order has clearly observed that he is not deciding the case on merits but having held that the defence of the Company is sham and bogus has given an opportunity to the Company to pay the amount, failing which the Company Petition would stand admitted. The learned Single Judge therefore has not passed any decree in favour of the Respondents/original Petitioners. It is now well settled that such an order could be passed by the Company Court directing the Company to make payment of money to the petitioning creditor. Whether any interference is called for with the order passed by the learned Single Judge in an appeal filed under Clause 15 of the Letters Patent Act? - Held that - This Court therefore while exercising its appellate jurisdiction under Clause 15 of the Letters Patent Act is not expected to interfere with the order passed by the learned Single Judge, unless it comes to the conclusion that the finding is perverse or is based on material which is not part of the record. As mentioned hereinabove we are of the view that finding of the learned Single Judge is neither perverse nor is based on the material which is not there on record. The question is therefore answered in the negative.

Summary

Issues Involved:
1. Whether the ICD Agreement is a subject matter of Arbitration.
2. Whether ICDs form part of the larger transaction of investment by the Urban Group in the joint venture business or are standalone transactions.
3. Whether the impugned order directing the Company to pay a sum of Rs. 23,04,59,942 amounts to a decree.
4. Whether any interference is called for with the order passed by the learned Single Judge in an appeal filed under Clause 15 of the Letters Patent Act.

Issue-wise Detailed Analysis:

1. Arbitration of ICD Agreement:
The court examined whether the ICD Agreement was subject to arbitration based on the order dated 25/08/2015 by the Apex Court and the procedural order by the Single Arbitrator. The court concluded that the contention of the appellants was without substance, noting that the respondents were not parties to the arbitration application and had not accepted any arbitration agreement with the appellants. The Apex Court did not provide a ruling on the arbitration application as it was withdrawn, and thus, the ICD Agreement was not subject to arbitration.

2. ICDs as Part of Larger Transaction or Standalone:
The court analyzed whether the ICDs were part of a larger investment transaction by the Urban Group in the joint venture business or standalone transactions. The appellants argued that the ICDs were part of a complex web of transactions between the Neelkanth Group and the Urban Group. However, the court found that the ICDs were independent transactions, not governed by any supplemental agreement. The supplemental agreement was not executed, and the ICDs were distinct written agreements indicating loans given by the respondents to the appellants. The court confirmed that the ICDs were not part of a larger transaction and were standalone agreements.

3. Impugned Order as Decree:
The court addressed whether the order directing the Company to pay Rs. 23,04,59,942 amounted to a decree. The court held that the Single Judge had not decided the case on merits but had given the Company an opportunity to pay the amount, failing which the Company Petition would stand admitted. Thus, the order did not amount to a decree, and such an order could be passed by the Company Court directing the Company to make payment to the petitioning creditor.

4. Interference with Single Judge's Order:
The court considered whether any interference was warranted with the order passed by the Single Judge in an appeal under Clause 15 of the Letters Patent Act. The court cited the principles established in Wander Ltd. vs. Antox India P. Ltd., emphasizing that appellate courts should not interfere with the exercise of discretion by the trial court unless it was shown to be arbitrary, capricious, or perverse. The court found that the Single Judge's findings were neither perverse nor unreasonable, and thus, no interference was called for.

Conclusion:
The appeals were dismissed, and the time for making payment was extended by six weeks. The court upheld the findings of the Single Judge, confirming that the ICDs were standalone transactions, not subject to arbitration, and the order to pay did not amount to a decree. The appellate jurisdiction under Clause 15 of the Letters Patent Act did not warrant interference with the Single Judge's decision.