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TMI Blog2023 (9) TMI 52X X X X Extracts X X X X X X X X Extracts X X X X ..... l 31st July 2020, amounting to Rs. 24,19,35,000/- along with further IRR @ 20% per annum from 1st August 2020 till payment and a realization thereof. 2. The plaintiff further seeks an amount of Rs. 17,07,256/- as interest @ 2% per month on the amount of Rs. 22,58,50,000/- from 16th March 2020 till 31st July 2020 and further interest of 2% per month on the amount of Rs 22,58,50,000/- from 1st August 2020 till payment and a realization thereof. As per the particulars of claim. (Exhibit N to the Plaint). Brief Facts 3. The plaintiff is a limited liability partnership and is registered with the Security and Exchange Board of India as category-II Alternative Investment Fund under the SEBI (Alternative Investment Funds) Regulations 2012. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Defendants would pay on the Difference amount of Rs 15,80,00,000/- an IRR of 20% from the date on which Rs 72,00,00,000/- is paid till the Plaintiff converts the Difference amount of Rs. 15,80,00,000/- into equity shares in accordance with clause 7 or 1.2 (b) of the Settlement Agreement. 7. Based on the covenants and promises recorded in the Settlement Deed, the defendants executed unconditional and irrevocable Deeds of Guarantee dated 21st March 2018 in favour of the plaintiff. It is stated that the terms of both the Deeds of Guarantee are identical to each other. Pursuant to the Settlement Agreement, the plaintiff was paid the Refinancing Amount by the Company on 31st March 2018. 8. As per the Settlement Agreement, the Defendant no. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment Deed by 30th September 2019. Despite email dated 20th February 2019 and sharing of details of Chembur Project by the consultant of the Primary Obligor/Defendants by email in or around March/April 2019 the Defendants failed to make the payment to the Plaintiff by 30th September 2019 as per clause 1.2(e) of the Settlement Agreement. 11. On 27th January 2020 the Plaintiff called upon the Primary Obligor and the Defendants to fulfill their obligations jointly and/or severally and pay the difference amount of Rs. 15,80,00,000/- along with IRR @ 20% p.a. till payment and/or realization within 7 days of the date of receipt of the notice. In view of the failure to fulfill their obligation, on 16th March 2020 the Plaintiff invoked the Deeds of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the rate of 2% per month on the amount of Rs. 22,58,50,000/- from 16th March 2020 till June 31st July 21st 2020 amounting to Rs. 17,07,256/- along with further interest of 2% per month on the amount of Rs. 22,58,50,000/- from 1st August 2020 till payment and realization thereof. 15. The learned counsel for the plaintiff submitted that the defendants have been adjudged to be insolvents by an order dated 24th June 2022 after filing of the present suit. It is submitted that they have filed a reply to the summons for judgement taken out by the plaintiff. The learned counsel for the plaintiffs took me through the reply to submit that the defendants admitted the liability and had every intention to comply with the terms of exit. He fairly pointe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 SCC (Civ) 386 : 2016 SCC OnLine SC 1274 to submit that there is no impediment in proceeding with the matter and getting a decree when a defendant is adjudged insolvent during the pendency of a commercial suit. 18. The learned counsel relied upon the judgment of the Madras High Court in the case of The Official Assignee, High Court, Madras and Ors V/s. Mangalambal and Ors. 1980 SCC OnLine Mad 48 : AIR 1980 Mad 200. He submitted that the claim in the suit by any stretch of imagination cannot be construed to relate to in (the property) of the insolvent and therefore, the presence of the official assignee is unnecessary. He accordingly submitted that the defendant being adjudged insolvent subsequent to the filing of the suit would not neces ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deemed to have admitted the allegations in the plaint and therefore, the plaintiff becomes entitled to a decree. The material on record indicates that the claim of the plaintiff is admitted by the defendants. The defendant is now adjudged an insolvent pursuant to an order of the court. 22. With regard to the Court's query as to whether the suit can proceed when the Defendant is adjudicated insolvent pending the suit, in view of the Division Bench judgement of this Court in the case of Om Prakash Nihalani (supra) I find no impediment in proceeding to pass a decree. The Division Bench has concurred with the view taken by the Madras High Court in the case of Official Assignee, High Court Madras & Ors. (supra). The Madras High Court held that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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