9911796707
TMI Blog2019 (5) TMI 1354X X X X Extracts X X X X X X X X Extracts X X X X ..... the respondent No.1 company from alienating, encumbering, transferring, selling, disposing, parting, or creating any third party interest right, title of any nature whatsoever upon the assets of M/s Guild Builders Pvt. Ltd. (Guild) including pledging of shares of Omaxe Ltd. (Omaxe) held by Guild. 2. When the matter was listed on 19.09.2018, notice of the petition as well as for interim stay was issued and in the meanwhile it was directed that respondent No.1 shall not issue fresh equity shares. 3. CA No.435/2018 (Diary No.3889 dated 09.10.2018) was filed by the petitioners, under Rule 11 of NCLT Rules, 2016 to bring on record additional facts not in the knowledge of the petitioners at the time of filing of the petition. It is stated that at the time of filing of the petition, the petitioners were not aware that the Guild once again, on 12.09.2018, has further pledged 38,15,000 equity shares i.e. 2.09% shares of Omaxe owned by it without giving any information whatsoever to the petitioners. It was further stated that the petitioners owned 24.64% shares of Guild and the balance is owned by the branches comprising of other two elder brothers of petitioner No.1. It was also stated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on either dasti or by e-mail/post. 6. Again when the matter was listed on 21.12.2018, as agreed by learned counsel for the petitioners and respondent No.1 company, directions for allowing the extracts of documents to which the petitioners are entitled were issued. 7. Reply on behalf of Guild to CA No.435/2018 was filed by Diary No.5077 dated 21.12.2018. It was submitted that the petitioner/applicants have filed the present application falsely stating that the same has been filed to bring on record additional facts not within the knowledge of the petitioner/applicants at the time of filing of the petition since admittedly, the pledge dated 14.08.2018 was done with respect to and in compliance of the terms and conditions of the term loan, Bank Guarantee and letter of credit dated 30.03.2018 availed by Omaxe Chandigarh Extension Developers Pvt. Ltd. It is stated that the shareholding of the petitioners/applicants in Omaxe is merely 1.84% and that since 2011, the petitioner No.1 has himself pledged 33,00,000 shares constituting 98.92% shares of Omaxe held by him and extended his own personal guarantees to help Omaxe secure financial assistance and that the petitioner/applicants hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the reply, in order to top-up and/or margin calls, the respondent No1 company would file the statement to that effect before this Tribunal within one week of doing so with copy advance to the counsel opposite. It is stated on instruction by learned Senior Counsel for respondent No.1 company that other than the above respondent No.1 company would not create further pledge for the time being. This undertaking is taken on record. 11. CA No.25 of 2019 was filed by the petitioners under Rule 11 of NCLT Rules, 2016 inter alia seeking directions to restrain Guild from pledging/mortgaging any unencumbered shares of Omaxe held by Guild. Reference was made to the relevant part of para 5 at page No.15 of the reply filed by Guild (supra) inter alia stating that Guild is ready and willing to commit that shares of Omaxe held by Guild which are not pledged/unencumbered as on 16.12.2018 being 1,48,59,726 shall not be pledged/encumbered by Guild except on account of top-up required and /or margin calls. 12. It was submitted that contrary to the aforesaid statement, Guild in its disclosure letter dated 19.12.2018 addressed to Bombay Stock Exchange Ltd. (BSE) and National Stock Exchange of Ind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 16. As regards 3,10,94,000 shares shown as not free/committed, it was stated that often not only is there a commitment/lien on a certain number or value of shares in terms of the loan agreement, such shares are placed at the disposal of the lender and the lender takes shares into its own depository account without formally creating a pledge. The details of the shares not free/committed as on 16.12.2018 was furnished as Annexure R- 2 of Diary No.837 dated 18.02.2019. It was stated that Guild has not encumbered the shares of Omaxe held by it in any manner whatsoever in violation of the order passed by the Tribunal. 17. The rejoinder in CA No.25/2019 was filed by the petitioners by Diary No.1125 dated 08.03.3019. It was submitted that no shares of a company could possibly be committed against a loan agreement at the disposal of lender or for the lender to take shares into its own depository account without formally creating a pledge as alleged by Guild. Reference was made to Regulation 28 of Securities Exchange Board of India (Substantial Acquisition of Shares & Take Overs) Regulations, 2011 and it is stated that the term encumbrance under the Regulation has been given a wide mean ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h Builders Pvt. Ltd. for Rs.425 crores. It was pleaded that the NDU is executed on 06.12.2018 on stamp paper purchased on 27.06.2017 for executing power of attorney-GPA and that no evidence of filing the NDU with Yes Bank was submitted and therefore, the documents are suspect. 20. It was also pleaded that for grant of interim relief the pre requisite are prima facie case; balance of convenience; irreparable loss and all these conditions are satisfied in the present case and any further encumbrance would be to the disadvantage of the petitioners. Reference was made to details of shares of Omaxe held and pledged by Guild (Annexure R-1 of reply to the CP filed by Diary 1046 dated 01.03.2019). It was submitted that the petitioner No.1 was Joint Managing Director of Omaxe and decision on his non-appointment as Joint Managing Director was taken in AGM dated 27.09.2017. It is pleaded that up to March, 2017, the number of shares encumbered were 6,13,21,159 and these increased substantially to 7,60,00,971 shares encumbered in December, 2018 and such increase was prejudicial to the interests of the petitioners. 21. In reply, the learned Senior Counsel for Guild argued that the shares not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e records. CP No.183/Chd/Hry/2018 was filed under Sections 241, 242, 244 and 246 of the Act. The instances of oppression and mismanagement are given in para 7 thereof. It is stated that through a chain of unfair and inequitable acts, all grossly oppressive, the petitioner No.1 (representing interest of petitioners) has been systematically ousted by the respondent No.2 from the affairs of Guild and through it of Omaxe to gain control over the company and all its subsidiaries. It is further stated that Guild has failed to safeguard its interest as shareholders of Omaxe and that the primary source of income of Guild is dividend and Guild did not object to nonpayment of dividend to promoter shareholders (including Guild) in 2017. Oppressive and illegal actions while holding 15Annual General Meeting and failure to provide information sought by the shareholders were also stated to be made. Notice of the petition was directed to be issued by order dated 19.09.2018. 25. Interim relief was also sought as per para 10 of the petition. Vide order dated 19.09.2018 (supra), notice regarding stay was also directed to be issued and in the meanwhile, it was directed that Guild shall not issue fre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by Guild that it was ready and willing to commit that the shares of Omaxe held by Guild which are not pledged/unencumbered as on 16.12.2017 being 1,48,59,726 shares shall not be pledged/encumbered by Guild except on account of top-up required and/or margin calls. Vide order dated 31.12.2018 and during the course of the hearing of CA No.435/2018, it was directed that in case further pledge of the shares is required, as per the statement made in the reply, in order to top-up and/or margin calls, Guild would file the statement to that effect before the Tribunal within one week of doing so with copy advance to the counsel opposite. It was further observed that it is stated on instructions by learned Senior Counsel for Guild that other than the above, Guild would not create further pledge for the time being and the undertaking was taken on record. 30. CA No25/2019 was thereafter filed by the petitioners stating that as per disclosure dated 19.12.2018 addressed to BSE and NSE, 4,11,81,726 shares of Omaxe held by Guild were unencumbered as on 19.12.2018. Notice of CA No.25/2019 was directed to be issued to Guild by order darted 21.01.2019 and the notice was accepted by the learned Sen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not the disbursal of the loans. During the course of the hearing, it was specifically accepted that in respect of claim of 1,34,22,000 shares committed in relation to Yes Bank, the loan was still to be received. Therefore, it is presently being presumed that the shares not pledged/unencumbered were 1,48,59,726 shares as stated in the reply to CA No.435/2018 and 3,10,94,000 shares claimed as not free/committed as per reply filed by Diary No.837 dated 18.02.2019. 33. The petitioners have contended that as a result of continuous and indiscriminate pledging of shares of Omaxe held by Guild coupled with failure of Guild to question the decision of declaration of dividend by Omaxe only to public shareholders has resulted in erosion of net worth and valuation of Guild and consequently loss to the petitioners and that any default in the loans by Omaxe and consequent invocation of pledge would result in irreparable loss to the petitioners, especially when the petitioners have no control in the management of Guild or Omaxe. As regards the pledging of shares of Omaxe, Guild has stated that during the period when the petitioner No.1 was Joint Managing Director, he never objected to the prac ..... X X X X Extracts X X X X X X X X Extracts X X X X
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