G.P. Mittal:

1. By virtue of the application being I.A. No. 8777/ 2014 under Order I Rule 10 r/w Section 151 of the Code of Civil Procedure, 1908 (CPC), the applicant ICICI Bank Limited seeks impleadment as a necessary and proper party for proper adjudication of the suit; whereas by virtue of I.A. No. 8779/ 2014 under Order XXXIX Rule 4 CPC r/w Section 151 CPC, the applicant seeks vacation/setting aside of the order dated 23.01.2014 whereby an injunction was granted in favour of the Plaintiff IDBI Trusteeship Services Ltd. and against the Defendants.

2. For the sake of convenience, it will be appropriate to extract para 8 of the order sought to be varied hereunder:-

“8. I am satisfied that the plaintiffs have made out a prima facie good case on merits for grant of ad interim ex parte injunction. The balance of convenience is also in favour of the plaintiff and in case an ad interim ex parte injunction is not granted, the plaintiffs shall suffer an irreparable loss and injury. The defendants no. 1 to 5 and defendants no. 7 to 9 by way of an ad interim ex parte injunction, till the next date of hearing, are hereby restrained

(i) from selling, transferring or otherwise disposing of in any manner whatsoever, any of the assets of the defendants except in the ordinary course of business;

(ii) from undertaking any sale, slump sale of any undertaking, and from undertaking any corporate or debt restructuring; and

(iii) from altering the shareholding pattern or the share capital structure as of today.”

3. A suit for declaration, mandatory and permanent injunction was filed by IDBI Trusteeship Services Limited (IDBI TSL) and India Infoline Finance Limited (IIFL Finance) against Arch Pharmalabs Limited (Arch Pharma) and its promoters (Defendants no. 2 to 4), its Directors and sister companies with the allegations that in the year 2010, the promoters approached IIFL Finance, holding company of Plaintiff no. 2 requesting it to undertake the Initial Public Offer (IPO) of equity shares of Defendant no. 1. Same was agreed to. Promoters also requested IIFL Finance to procure third parties to purchase the unlisted shares of Arch Pharma from Arch Pharma’s private equity investors like ICICI Ventures, IL&FS etc. Thus, investors (HNI) were identified who were to purchase 20,00,080 equity shares of Arch Pharma @ Rs. 400/- to 420/- per share for an aggregate amount of Rs. 70-75 crores.

4. On 29.03.2011, Arch Pharma with the intention to undertake an IPO, filed a Draft Red Herring Prospectus (DRHP) through India Infoline Ltd., IIFL Finance’s parent company. On 25.11.2011 SEBI approved Arch Pharma’s DRHP.

5. However, on 16.04.2012, DRHP of Arch Pharma was withdrawn due to market scenario and on advice of IIFL Finance. On 10.08.2012, the promoters (Defendants no. 2 to 4) of Arch Pharma (Defendant no. 1) gave an offer in writing to HNI, proposing to purchase the shares of Defendant no. 1. @ Rs. 490 per share within 6 months (by 10.02.2013). This offer was accepted by most of the HNI. However, the same was not done. Further, promoters of Arch Pharma on 18.03.2013 gave an offer to HNI investors to convert the earlier said shares in NCDs of one year, to be issued by their group entities. Thus, Defendant no. 6 Arch Impex Private Limited offered to acquire the equity shares of Defendant no. 1 held by NHI in consideration of NCD’s of Defendant no. 5 (Arch Agro Industries Private Limited). Defendant no. 5 therefore issued 76,402 NCD’s to Defendant no. 6 for an aggregate amount of Rs. 76,40,20,000/- and Defendant no. 6 transferred the same to the HNI investors.

6. On 12.04.2013, Debenture Subscription Agreement (DSA) was entered into between shareholders/ NCD Holders and Defendant no. 5 at New Delhi in respect of 76,402 NCDs for an aggregate amount of Rs. 76,40,20,000/- and IDBI TSL (Plaintiff no. 1) was appointed to act as the Debenture Trustee. The NCD’s were secured by:-

a. Share Pledge Agreement (SPA) - Pledge of equity shares 46,77,674 of Defendant