JUDGMENT :

1. The present Suit is filed in its Commercial Division under Order XXXVII of the Code of Civil Procedure. The plaintiff seeks an order and decree against the defendants to jointly and severally pay to the plaintiff a sum of Rs 15,80,00,000/- along with IRR @ 20% per annum on Rs.15,80,00,000/- from 31st March 2018 till 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 Defendant nos.1 and 2 are promoters of Sai Ashray Developers Pvt. Ltd. (‘the Company’) and Gajanana Land & Developers Pvt. Ltd. (‘Primary Obligor’). The defendant no.1 is a director on the board of the Company.

4. By the present suit the Plaintiff seeks seeking a judgment and a decree jointly and severally against the defendants as guarantors under the deeds of guarantee dated 21st March 2018 executed by the defendants respectively in favour of the plaintiff.

5. The plaintiff’s under a Debenture Subscription Agreement (‘DSA’) dated 31st January 2014 and an addendum thereto dated November 2014 subscribed to and held an aggregate of 86 secured, optionally convertible, cumulative, redeemable debentures of face value Rs.1,00,00,000/- issued and allotted by the company aggregating to a sum of Rs.86,00,00,000/- (‘Subscription Amount’). A Debenture Trust Deed (‘DTD’) was executed to secure the payments under the DSA on 4th February 2014.

6. On the due date the Company failed to make payment upon request for redemption of the Debentures by the Plaintiff. On 21st March 2018 the Plaintiff and the Defendants arrived at an understanding and executed a Settlement Agreement. It was recorded in Recital D, Clause 1.2 (f) and (g) in the Settlement Agreement that ECL Finance Limited had agreed to lend the sum of Rs 72,00,00,000/- which would be utilized entirely to redeem the debentures held by the plaintiff. The Plaintiff’s condition under the agreement was that the Primary Obligor and 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 provided a cheque bearing no.472432 drawn on Cosmos Bank, Vile Parle Branch, Mumbai for the amount of Rs.15,80,00,000/-. The Primary Obligor also issued a demand promissory note dated 21st March 2018 for an amount of Rs. 15,80,00,000/-. In addition to the aforesaid, a Debenture Trust Deed (‘G DTD’)was executed between the Primary Obligor, Defendants, and Plaintiffs for 5 secured redeemable and optionally convertible debentures of the Primary Obligor aggregating to Rs. 5,00,000/-. The repayment obligation under the G DTD was secured inter alia by a mortgage of 36 flats in the Prasadam Project allotted by the Company to the Primary Obligor under an allotment letter dated 19th March 2018.