TMI Blog2022 (2) TMI 149X X X X Extracts X X X X X X X X Extracts X X X X ..... are relevant only at the stage of interim relief to the extent that the interest of Respondent No. 1 is paramount. Any transfer, alienation or creation of any encumbrance by the respondents on the shareholding and assets of respondent No. 1, can be effected only after consideration of these issues at the level of the Board of Directors and after passing a suitable resolution to that effect - respondents including Respondent No. 2 3 are required to be temporarily restrained from changing the share holding pattern and assets of Respondent No. 1 including land the land in question except with the prior approval of the Board of Directors or till the final disposal of the main petition. The applicant has prayed that the present authority may pass an order directing that the scheme sanctioned by this Tribunal by way of order dated 30.09.2021 passed in CP(CAA) No. 12/Chd/Hry/2021 be implemented and that the order dated 10.12.2021 passed in IA(CA) No. 10 of 2021 in CP No. 81/Chd/Hry/2021 shall not in any manner imply to impede the implementation of the Scheme - In this background, the records were perused and it is noticed that the two companies i.e. Orient Craft Fashion Private Li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d an email from respondent No. 2 dated 10.11.2021 and another email dated 01.12.2021 from respondent No. 2 coercing him to accede to the unlawful demands for selling the Chopanki land (in short 'land in question') of respondent No. 1. One of the major allegations of the applicant is that respondent Nos. 2 and 3 have certain understanding with the buyers of the land in question for gaining monetary benefit out of the transaction. 4. Main petition under Section 241-242 of the Companies Act, 2013 (for short the '2013 Act') bearing CP No. 81/Chd/Hry/2021 dated 16.09.2021 is pending with us, which was filed by Mr. Anoop Thatai (present applicant) against the respondents, Orient Craft Ltd. and others. The respondents in the CP No. 81/Chd/Hry/2021 are same as those in IA(CA) No. 10/2021. In the CP No. 81/Chd/Hry/2021, the applicant, amongst other things, has prayed for declaring respondent No. 2 (Sudhir Dhingra) and respondent No. 3 (Sahil Dhingra) responsible and liable for the acts of oppression against the applicant and also for mismanagement of the affairs of the respondent No. 1-company. 5. It is stated by the applicant that Orient Craft Limited (Respondent No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... each of Resolution Plan since it violates the mandatory requirement of AMC which was constituted to oversee any Asset Monetization of Respondent No. 1/Company. 8.2 It is also submitted by the applicant that the plots are being sold by the respondent No. 2 at a price which is much lower than the market price. It is pointed out that the Rajasthan State Industrial Development and Investment Corporation ('RIICO') by its notice dated 11.11.2021, has indicated the reserve price for auction the plots in the same location at ₹ 13,000 per square meter. The respondents rush to sell the land at a price far below the market price evinces their mala fide. 8.3 The applicant has stated that though he is well aware of the representations given to JLF, the same did not entitle Respondent No. 2 to bypass the Board of Respondent No. 1 and coerce the applicant into giving his sanction to sell the land at throwaway rates. 8.4 The applicant has also stated that the respondent Nos. 1 to 3 are rushing to pay off the debt of only one lender i.e. IndusInd Bank, as if the same bank is the sole lender to an entity where in respondent No. 2 is a partner, having vested interest. 8.5 It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... question since August 2020. He also participated in the first joint lenders meeting dated 28.08.2020. 15. The contesting respondents further allege that the applicant is running businesses in competition with the respondent and has a vested interest in respondent's failing to service its dues to the consortium of lenders. It is further stated that the sale of the Bhiwadi property was a commercial decision taken by all the promoters including the petitioner which was duly approved by the banks as well. 16. In the written submissions dated 21.12.2021, respondent No. 1, 2 and 3 have stated that: 16.1 The applicant's stance that he is ignorant of the sale of the land situated at Bhiwadi/Chaupanki it is not factually correct; i. the reply by respondent No. 4 corroborates the fact that all the three promoter groups, including the applicant were very well aware about the decisions to sell the land at Bhiwadi/Chaupanki; ii. the rate at which the land is being sold is higher than the rate approved by the IndusInd bank; iii. the e-auction notice issued by RIICO is not relevant for the fixation of price of the company's land under consideration because th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w as to what is in the interest of the company. The interest of parties is subservient to interest of company. It is necessary for the tribunal to first consider interest of the company. The health of the company reflects on the health of the economy and that is what matters'. 19. The respondents have also placed reliance on the findings in the case of Engineers India Ltd. vs. State of A.P. Writ Petition No. 32971 of 2016 (Para 36) which defined an escrow account as financial instrument or an asset is kept with a third party on behalf of two parties, for the purpose of completion of a transaction. The most important aspect of an escrow is that funds are held by the escrow agent until it receives appropriate instructions or until pre-determined contractual obligations have been fulfilled. 20. In his reply Respondent No. 4 has stated that: 20.1 Respondent No. 4 is a joint managing director and a minority shareholder in the respondent No. 1 company holding around 20% of the equity. 20.2 It is submitted that respondent No. 1-company has been functioning as a single entity with the general arrangement and understanding recorded through a memorandum of understanding (MO ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d earlier, the parties to this present IA are also parties to the main petition No. 81/2021, pending before this Tribunal. 22. Before analyzing the rival contentions before us, it is pertinent to point out that the financials before us confirm that respondent No. 1, Orient Craft Ltd. has suffered heavy losses. It also shows that all the three groups in the management had unitedly tried to reduce its debt by getting into negotiations with the lending banks. The minutes of the JLA Meetings indicate that all the three groups involved in the running of this company have participated in these JLA proceedings. The applicant has also admitted that he is aware of the proposals regarding the sale of assets. 23. When the current hearings started, we were given to understand that the parties involved have been trying to settle the matter amicably. As no solution was forthcoming, and the company has strict timelines for repayment of debts with the banks, we are constrained to pass this order for safeguarding the interests of Respondent No. 1 and all the other stakeholders. 24. Undoubtedly, all three groups have closely worked together to formulate the Resolution Plan under the guideli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd assets of Respondent No. 1 including land the land in question except with the prior approval of the Board of Directors or till the final disposal of the main CP No. 81/Chd/Hry/2021. 28. Now adverting to CA No. 207/2021, this application is filed under Rule 11 of the NCLT Rules by the applicant i.e. Prominent Enterprise Private Limited ('PEPL') seeking directions from this authority for the implementation of an order dated 30.09.2021, passed by this Tribunal. In the said order, this Tribunal had sanctioned a Scheme of Arrangement demerging Orient Craft infrastructure Ltd. Consequent to the demerger, the resulting companies are i) Prominent Enterprises Private Limited, Resulting Company No. 1 (Applicant herein); ii) O.C. Fashion Private Ltd. ('OCFPL'), Resulting Company No. 2; iii) Orient Craft Exchange Ltd. ('OCEL'), Resulting Company No. 3; and iv) Balyani Developers Private Limited ('BDPL'), Resulting Company No. 4. 29. It is also stated that a perusal of the scheme would show that Schedule VI refers to the promoter Group 1 which demerged into the Applicant Company. The group held 27500000 shares in OCIL (27.5% shareholding). Similarly, th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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