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2023 Supreme(Del) 4250

IN THE HIGH COURT OF DELHI AT NEW DELHI
V. Kameswar Rao, J.
Pranav Ansal – Appellant
Versus
Vistra Itcl (India) Limited & Anr. – Respondents
O.M.P. (COMM) 290 of 2019, I.As. 10329 of 2019 & 15542 of 2019 & O.M.P. (COMM) 265 of 2019 & I.A. 9346 of 2019
Decided On : 23-05-2023

Advocates appeared:
Mr. Ashwini Kumar Mata, Senior Advocate with Mr. Sujoy Datta, Ms. Nishtha Khurana, Ms. Mahima Shekhawat and Mr. Karan Gaur, Advocates, for the Petitioner in O.M.P. (COMM) 290 of 2019, I.As. 10329 of 2019 & 15542 of 2019 & for the Respondent No.2 in O.M.P. (COMM) 265/2019 & I.A. 9346/2019.
Mr. Sidhant Kumar, Ms. Manyaa Chandok, Mr. Gurpreet Singh Bagga and Ms. Vidhi Udayshankar, Advocates, for the Respondent-1 in O.M.P. (COMM) 290 of 2019, I.As. 10329 of 2019 & 15542 of 2019 & O.M.P. (COMM) 265/2019 & I.A. 9346/2019.
Ms. Ruby S. Ahuja, Ms. Manmeet Kaur, Ms. Hancy Maini, Ms. Anjali Dwivedi and Mr. Lakshya Khanna, Advocates, for the Respondent-2 in O.M.P. (COMM) 290 of 2019, I.As. 10329 of 2019 & 15542 of 2019 & for the Petitioner in O.M.P. (COMM) 265/2019 & I.A. 9346/2019.

Headnote:(A) Arbitration and Conciliation Act, 1996 - Section 34 - Petitioners challenged an arbitral award alleging the absence of a valid arbitration agreement and subsequent agreements superseding prior contracts - Claims of the Debenture Trustee were examined in the context of the agreements governing the debentures and guarantees. (Para 1-119)

(B) Arbitration agreement - Validity and enforceability of arbitration clauses discussed—specific reference to arbitration agreements is essential, and mere incorporation does not suffice—court emphasized on the binding nature of the arbitration agreement between parties. (Para 103-128)

(C) Jurisdiction of the Arbitral Tribunal - The court affirmed that the Tribunal possessed jurisdiction to adjudicate claims pertaining to guarantees based on existing arbitration clauses. (Paras 105-119)

(D) Interest Rate - The tribunal granted an internal rate of return (IRR) of 27% on defaults, linked to the terms of the agreements and deemed to be contractual. (Paras 66-92)

Facts of the case:
Petitions were filed by the petitioners, who were promoters of a property group, seeking to set aside an arbitral award favoring a debenture trustee. The case involved the interpretation of various agreements related to debentures and personal guarantees.

Findings of Court:
The court upheld the validity of the arbitration agreement, determining that the arbitration mechanism as set out in agreements was enforceable, and rejected claims of supersession of earlier agreements.

Issues: The primary issues were the existence and validity of the arbitration agreement, the impact of subsequent agreements on prior obligations, and the application of interest rates on defaults.

Ratio Decidendi: The court concluded that an arbitration clause, even in a novated contract, retains its enforceability where parties indicate a clear intention to arbitrate disputes.

Result: Petitions dismissed; the arbitral award upheld.

JUDGMENT

V. Kameswar Rao, J. The present petitions have been filed under Section 34 of the Arbitration and Conciliation Act, 1996 (`Act of 1996', in short). Since the petitions are challenging the same Arbitral Award dated March 25, 2019, I shall decide these petitions by a common order.

2. The petitioners, Pranav Ansal and Gaurav Dalmia are the promoter-shareholder of Ansal Properties and Infrastructure Ltd. (`APIL', for short) and the Chairman of Landmark Group, respectively. Landmark Group and Ansal Group entered into a Joint Venture Company (`JV', for short) on September 13, 2004, which later came to be known as Ansal Landmark Township Private Limited (`ALTPL', for short), (presently under majority control of Ansal Group), to undertake real estate projects. Subsequently, the JV was terminated by the parties through a Term Sheet Agreement dated December 21, 2011, and Definitive Agreements executed as per the Term Sheet. The JV would incorporate an entity, which would be transferred to Landmark Group. This entity named Ansal Landmark (Karnal) Township Private Limited (`ALKTPL', for short), was to implement the `Karnal project..

3. As per the petitioners, a Debenture Subscription Agreement (`DSA', for short) and a Deed of Personal Guarantee (`DPG', for short), were executed on July 28, 2015. As per the DSA, an entity namely Ansal Urban Condominiums Private Limited (hereinafter referred to as `AUCPL. and `Principal Borrower' interchangeably) was to implement a Group Housing Project at Ghaziabad.

4. The DSA dated July 28, 2015, was entered into between the following parties:

    a. AUCPL

    b. ALTPL

    c. ALKTPL

    d. Sushil Ansal

    e. Gaurav Dalmia (petitioner in OMP (COMM) 265/2019)

    f. Pranav Ansal (petitioner in OMP (COMM) 290/2019)

    g. APIL

    h. Indostar Capital Finance Limited (`Indostar', hereinafter)

5. As per the DSA, Indostar invested Rs.150 crore in AUCPL by subscribing 1,50,00,000 secured, unlisted, redeemable, non-convertible debentures at the face value of Rs.100. These debentures were to be redeemed in tranches, with a validity of 36 months from the closing date. As per Article 2.1.1 read with Article 2(ii) of Terms of Debentures, AUCPL was to pay interest @ 21.75% per annum from the date Indostar remits the money.

6. AUCPL failed to make the payment for the debentures by July 31, 2017, causing an `event of default' as per the DSA. The respondent No.1 stated that the payment to AUPCL was secured by the following:

    i. Personal Guarantee dated July 28, 2015, executed by the petitioners and the respondent No.1.

    ii. Corporate Guarantee by ALTPL & ALKTPL dated July 28, 2015.

    iii. Corporate Guarantee by APIL dated October 23, 2015

7. On October 27, 2015, AUCPL redeemed 24,00,000 debentures held by Indostar, leaving Indostar with 1,26,000 debentures. These debentures were then transferred by Indostar to IIFL Income Opportunities Fund (`IIFL', hereinafter) pursuant to a Debenture Purchase Agreement (`DPA', for short) dated October 27, 2015 between Indostar, IIFL, AUCPL, ALTPL, ALKTPL, APIL, Sushil Ansal, and the petitioners herein.

8. On December 29, 2015, AUCPL redeemed another 26,00,000 debentures held by IIFL, bringing the debentures held by IIFL to 1,00,00,000.

9. Pursuant to a second DPA dated March 03, 2016 ICICI Prudential Real Estate AIF II (hereinafter referred to as `IPRU. and `Debenture Holder No. 1', interchangeably) represented by ICICI Prudential Asset Management Company Limited in its capacity as the investment manager, agreed to purchase 1,00,00,000 debentures from IIFL. On March 18, 2016 IIFL sold/transferred 57,00,000 debentures to IPRU (Debenture Holder No. 1). Thereafter, IIFL transferred 43,00,000 debentures to various entities of IIFL. On June 30, 2016, these 43,00,000 debentures were then acquired by IIFL Yield Enhancer Fund (hereinafter referred to as `Debenture Holder No.2.' and `IIFL YEF' interchangeably).

10. On March 20, 2017, Debenture Holder No.2 transferred 26,00,000 debentures to Debenture Holder No.1, bringing

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