9911796707
TMI Blog2021 (3) TMI 1333X X X X Extracts X X X X X X X X Extracts X X X X ..... disbursed to the Corporate Debtor an amount aggregating to Rs. 375,00,00,000 through two Debenture Trust Deeds dated 04.12.2015 and dated 24.11.2016 and through one Facility Agreement dated 14.05.2018 as mentioned in the chart given below:- 3. Altico disbursed monies through three transactions to the corporate debtor as mentioned. Soon thereafter, the entire debt has been assigned to the present petitioner by way of Assignment Agreement dated 23.03.2019. The petitioner has also filed an Amended and Restated Declaration of Trust dated 22.03.2019 appointing the Financial Creditor as the trustee of ACRE-81 -Trust. 4. The petitioner submits that upon execution of Debenture Trust Deed dated 04.12.2015 between Ramprastha SARE Reality Pvt. Ltd. and Axis Trustee Services Ltd. for issuance of 9,500 secured, rated, to be listed, redeemable, non-convertible debentures of a face value of Rs. 1,00,000 each aggregating to nominal value of Rs. 95,00,00,000 being issued for cash, on private placement basis, in single series. Altico has also subscribed for another 2,200 secured, unlisted, redeemable, non-convertible debentures of a face value of Rs. 10,00,000 each aggregating to Rs. 220,00,00,00 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issued by S.A.R.E Public, to which Wafra and SARE Public Company Ltd., in between them, executed a Secured Convertible Bond Purchase Agreement dated 28.04.2011 for the purpose of investments in India by SARE Public. Upon such investments, the Purchase Agreement was executed by SARE Public for itself and on behalf of all its subsidiaries through the Purchase Agreement dated 28.04.2011. 8. In addition to this Purchase Agreement, Wafra and SARE Public had entered into several other supporting/ancillary agreements forming part of the composite transaction entered between them. The purpose of these supplementary and ancillary agreements was only to aid the execution and performance of the Purchase Agreement which is the Principal Agreement. This agreement has been entered into on 28.04.2011 between Wafra and SARE Public inter-alia providing that the Security created under the Debentures becomes enforceable upon occurrence of an Event of Default and upon the Security become enforceable, Wafra will have right to appoint a Receiver to perform various functions as illustrated under the Debenture Trust Deed. 9. Similarly, Share Pledge and Assignment Agreement dated 28.04.2011, was also ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... brance, mortgage, lien, pledge of shares, etc. already created/sought to be created by the Defendant Nos. 1 to 15 in favour of Defendant Nos. 16 to 19 or any other person or entity pursuant to and/or in furtherance of the Facility Agreement dated 14.05.2018 or any other agreement are non-est, null and void. 13. On hearing the submissions of various parties including Altico and KKR, the Hon'ble High Court passed a judgment/order on 08.01.2020 discussing various issues with regard to jurisdiction, binding nature of the Facility Agreement entered into between SARE Public and Wafra, and held that defendants in the suit are permitted to create charge over the assets of the subsidiary Company, when appeal was filed by KKR over the said order dated 08.01.2020, Division Bench of Hon'ble High Court of Delhi on 07th & 17th July, 2020 restrained the mandate given by Single Judge to the extent saying that the defendant Nos. 1 to 15 shall not create any charge over the assets of the respective companies. 14. On appointment of Receiver for the reason SARE Public failed to repay around US$60 Million repayable to Wafra, the intervener counsel has submitted that since holding company of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by Creditor i.e. Asset Care and Reconstruction Enterprises Ltd. based on the Assignment deed dated 23.03.2019. 19. It is evident on record and it is also not in dispute that the Corporate Debtor is a subsidiary to its holding Company i.e. SARE Public and distinct entity having its properties in its name. The case of the intervener is that the Receiver has been appointed to take the control of the assets of the SARE Public upon which Receiver obtained a default judgment from Hon'ble Supreme Court of the State of New York thereafter the said Receiver has filed a declaration suit before the Hon'ble High Court of Delhi against its Indian Subsidiary Companies as well as the Lenders who have provided loans to Indian Subsidiaries for development of their projects. It is no doubt that on 12.10.2018 Hon'ble High Court of Delhi passed an interim order restraining this Corporate Debtor from creating any third party rights and the defendant nos. 16 & 17 i.e. KKR and Altico are restrained from giving effect to the Facility Agreement dated 14.05.2018 to the extent of charge, security, mortgage or pledge of any of the assets of defendant nos. 1 to 15 till the next date of hearing. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etween 2015 and 2018 i.e. before the Hon'ble High Court of Delhi passed order on 12.10.2018. In the said order, it has only been said that Altico should not create any third party right in favour of others. However, since there are two transactions one is Debenture transaction and another is Facility Agreement, out of these two, none being repaid by the Corporate Debtor despite notice has been served upon it, even if Facility Agreement issue is excluded as per the order of Honourable High Court of Delhi passed on 12.10.2018 then also, the financial creditor could establish its case by saying that Assignment with respect to Debentures is valid and not in violation of the orders of Hon'ble High Court and there being no contest with regard to the debt and default from the Corporate Debtor side, we believe that the applicant herein has proved the existence of debt and default under both the transactions. With regard to facility agreement, that issue being pending before the Hon'ble High Court of Delhi, since the petitioner has proved existence of debt and default in relation to debentures issued for an amount of Rs. 95 Crore and Rs. 220 Crore along with interest, we hereby ..... 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