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2020 (6) TMI 273 - HC - Indian LawsGrant of mandatory injunction - Raising finances to meet the requirement of deposit of ₹4 crores in terms of the decision of the Hon’ble Supreme Court by creating an appropriate security in respect of such number of unsold units - raising of funds by way of issuance of non-convertible debentures (NCD’s) on a private placement basis in two tranches - HELD THAT:- Applicants in the present application are defendant No.1 and 3 in the suit who are acting in representative capacity of defendant No.4. As noted above, the present suit has been filed by the plaintiffs for recovery of a sum of ₹448,75,58,347/- from defendant Nos. 1 to 4 jointly and severally and for permanent and mandatory injunction. The dispute between the parties is investment of the plaintiff No.2 in defendant No.4 of which defendant No.3 is 99% shareholder. The plaintiffs claim that by virtue of Shares Subscription Agreement and the other documents agreed to between the parties, the plaintiff No.2 is the only secured creditor of defendant No.4 and thus has first charge on the property of defendant No.4. Case of the applicants is that as per the Resolution dated 15th January, 2018 defendant No.1 has been absolved of part liabilities post the Resolution, however he continues to be responsible for the litigation including the one in relation to POCSO where the award for a sum of ₹45 crores has been passed against defendant No.4. ₹1 crore has already been deposited from the account of defendant No.4 pursuant to the extension of time granted by the Hon'ble Supreme Court on 11th May, 2020 and if a further sum of ₹4 crores is not deposited, the defendant No.4 would have to incur the liability of a sum of ₹45 crores immediately and thus the requirement of Section 1(a) that the property in dispute in the suit i.e. property of defendant No.4 is in danger of being wasted or alienated is satisfied. Even if the suit is finally disposed of the reliefs as sought by the applicants/defendant Nos.1 and 3 cannot be granted to them in the absence of a counter claim. The reliefs sought are not in the nature of seeking restoration of status-quo ante or the position at the time when the suit was filed. The applicants/defendant Nos.1 and 3 have also not made out a strong case so that during the trial they would be in a position to assert the right as sought to be enforced by the present application. Further, the reliefs sought by the applicants/defendant Nos.1 and 3 do not arise out of the plaintiffs’ cause of action nor are incidental thereto. To consider the plea of equity raised, it would be appropriate to note that though the claim of the applicants is that in the defendant No.4 the land was brought by the applicants and they also infused a capital of ₹130 crores, however when this Court raised further queries from learned counsel for the applicants the said claim is found to be apparently incorrect, for the reason it was accepted that the land for the project was transferred to defendant No.4 on payment of approximately ₹130 crores taken as a loan and when the agreement was entered into with the plaintiffs, from the sum of ₹190 crores infused by the plaintiffs received as debenture subscriptions, the liability of ₹130 crores which was the value of the project land was discharged. Thus the investment of the applicants in the defendant No.4 project even as per their claim is to the extent of approximately ₹130 crores which fact is also refuted by the plaintiffs according to whom the defendant Nos.1 to 3 hold Series B Non-Convertible Debentures of defendant No.4 for an amount of ₹17 crores only and not ₹130 corres as claimed. Thus the investment of the plaintiff No.2 in defendant No.4 being admittedly ₹190 crores is far more than that of the applicants. This Court finds that the reliefs as sought by the applicants/defendant Nos.1 and 3 cannot be granted either under Order XXXIX Rule 1(a) CPC or by way of equity - Application dismissed.
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