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TMI Blog2021 (10) TMI 1344X X X X Extracts X X X X X X X X Extracts X X X X ..... ably extend that time to enable that Tribunal or Court to pass a needed order, they must make the attempt to impress on that tribunal the fact that it what is sought is not contentious, that there is pressing urgency, and that both sides might conceivably be very greatly prejudiced if an order is not made. But that is all that needs - and needed - to be done. The NCLT can hardly be expected to divine the finer details of a contractual pre-condition unless something more is done than mere filing - It cannot be accepted that ILFS s refusal to extend the LSD is justifiable on the ground that the NCLT order is not received. Application disposed off. - Interim Application (L) No. 21879 of 2021 in Commercial Suit (L) No. 21864 of 2021 - - - Dated:- 13-10-2021 - G.S. Patel, J. Mr. Viraag Tulzapurkar, Senior Advocate, with Dinyar Madon, Senior Advocate, Raj Panchmatia, Jyoti Sinha, Harsh Salgia, i/b M/s. Khaitan Co., for the Plaintiffs. Mr. Aspi Chinoy, Senior Advocate, with L Vishwanathan, Abhijeet Das, Adarsh Saxena, Drishti Das, Varun Srinivasan, i/b Cyril Amarchand Mangaldas, for Defendant No. 1. Mr. Ashish Kamat, with L Vishwanathan, Abhijeet Das ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the present Suit. 6. The SPA has a concept of what was called a Long Stop Date (or, in the spirit of things today, LSD ). There is a corresponding concept of an Initial Long Stop Date or ILSD and an Extended Long Stop Date or ELSD. The LSD is extendable in certain circumstances. One of the conditions required of ILFS was that it had to obtain permission from the NCLT. There is no doubt that the LSD was once extended. ILFS and ITNL have since refused SRL s request for a second extension although ILFS has applied to the NCLT well in time for the necessary permission even before the ILSD expired. What ILFS says is that since a further extension can only be by mutual consent according to the SPA, it is entitled to not consent. If the LSD is not extended then not just the LSD but, with it, the SPA also lapses. The argument, therefore, is that since the LSD has passed, the SPA has lapsed and there is nothing now to specifically perform. SRL may have a remedy in damages but that is all. 7. In a departure perhaps from the usual manner of addressing such cases, I choose to place at the forefront Mr Chinoy s arguments on behalf of ILFS and ITNL in opposition to the application ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hey are arranged alphabetically. The definitions of Long Stop Date (page 480), Extended Long Stop Date (page 479) and Initial Long Stop Date (Page 479) read thus: Extended Long Stop Date means such extended period, as may be mutually determined, in writing, by the Seller and the Purchaser. Initial Long Stop Date means the date failing on the expiry of 180 (one hundred and eighty) days from the Agreement Date, or any other date as may be mutually determined, in writing, by the Seller and the Purchaser. Long Stop Date means the Initial Long Stop Date or the Extended Long Stop Date, as the case may be. 11. The next relevant clause relates to the conditions precedent to be performed by the seller. Obviously, the seller in this context is ITNL and it is so described at the head of the SPA at page 474. The controlling portion of Clause 4.2 at page 492 reads thus: 4.2 The Company and the Seller, as applicable, shall ensure that the following conditions are satisfied to the reasonable satisfaction of the Purchaser prior to the Closing Date, which date shall, in any event not be later than the Long Stop Date (or waiver of such conditions(s) by the Purch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erms of which Sekura has requested for an extension of the Extended Long Stop Date beyond August 6, 2021. 3. Without prejudice to the above, please note that IL FS and ITNL, are fully cognizant of their responsibilities under the Resolution Framework and have taken all actions which are consistent with the terms of the JSEL, SPA and we reserve the right to respond to your letters in more detail as we deem fit. 4. We also note that Sekura has offered to renegotiate its offer in terms of its letters referred to above. As you may be aware, the board of IL FS has been tasked with, amongst others, the objective of maximizing value for the creditors of the members of the IL FS group and will accordingly decide on the final resolution of JSEL in due course in accordance with the provisions of the Resolution Framework relating to the IL FS Group and applicable law. 17. Mr. Tulzapurkar has tendered draft amendments to the IA (and the Plaint). These are taken on record and marked X1 and X2 for identification with today s date. The amendments are permitted. They are to be carried out by 20th October 2021 without need of re-verification. 18. The prayer that Mr Tulz ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id without feat of contradiction that anyone having a right that is a legally protected interest complains of its infringement and seeks relief through court must have an unhindered, uninterrupted access to law courts. The expression court here is used in its widest amplitude comprehending every forum, where relief can be obtained in accordance with law. Access to justice must not be hampered even at the hands of judiciary. Power to grant injunction vests in the court unless the Legislature confers specifically such power on some other forum. Now access to court in search of justice according to law is the right of a person who complains of infringement of his legally protected interest and a fortiori therefore, no other court can by its action impede access to justice. This principle is deducible from the Constitution which seeks to set up a society governed by rule of law. As a corollary, it must yield to another principle that the superior court can injunct a person by restraining him from instituting or prosecuting a proceeding before a subordinate court. Save this specific carving out of the area where access to justice may be impeded by an injunction of the court, the Leg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ef cannot be granted in the terms sought for because the statute bars granting such a relief ipso facto the temporary relief of the same nature cannot be granted. To illustrate this point, let us take the relief which the Bank seeks in its suit. The prayer is that the Corporation be restrained by an injunction of the Court from presenting a winding-up petition under the Companies Act, 1956 or under the Banking Regulation Act, 1949. In other words, the Bank seeks to restrain the Corporation by an injunction of the court from instituting a proceeding for winding-up of the Bank. There is a clear bar in Section 41 (b) against granting this relief. The court has no jurisdiction to grant a perpetual injunction restraining a person from instituting a proceeding in a court not subordinate to it, as a relief, ipso facto temporary relief cannot be granted in the same terms. The interim relief can obviously be not granted also because the object behind granting interim relief is to maintain status quo ante so that the final relief can be appropriately moulded without the party s position being altered during the pendency of the proceedings. (Emphasis added) 21. My order was taken ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (one that the NCLT/NCLAT cannot, in any case, decide). 26. As to the frame of the relief, Mr Tulzapurkar points out, and I think quite correctly, that while I am not being asked to decree specific performance today, even if I were, I would have made such a decree subject to the Plaintiff seeking specific performance obtaining the necessary permissions and clearances. [Nirmala Anand v Advent Corporation (P) Ltd Ors, (2002) 5 SCC 481.] 27. For completeness, I must note that before the NCLT, ILFS has on 18th/19th December 2020 specifically filed an IA or a proceeding for approval of the sale of shares of JSEL held by ITNL to SRL. For some reason, that application is still pending, that is to say, NCLT has neither granted that relief nor refused it. It is this delay that causes Mr Chinoy to make the submission that the SPA has lapsed. 28. He also points out that under clause 4.8, which I have extracted above, there was an option to one party to notify the other in regard to an extension of any of the LSDs. 29. Mr Chinoy s submission that this is not what he calls a normal SPA does not, I think, make it any less contractual. The requirement of obtaining NCLT ..... X X X X Extracts X X X X X X X X Extracts X X X X
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