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IN THE HIGH COURT OF DELHI
Prathiba M. Singh, J.
Tommorrowland Limited - Appellant
Versus
Dwarkadas Harinayan Maheshwari - Respondent
CS (OS) 2156 of 2012 & I.A. 15019 of 2019
Decided On : 27-04-2022
Underwriters remain liable for obligations unless formally discharged; damages awarded under the underwriting agreement must align with actual losses and contractual frameworks.
Headnote:(A) Arbitration and Conciliation Act, 1940 - Sections 14, 16, 30, and 33 - Underwriting Agreement - Dispute between the Plaintiff and Underwriter regarding obligations arising from a public issue of Fully Convertible Debentures (FCDs) - Enhanced damages awarded by Arbitrator challenged based on alleged misinterpretation of liability in the context of an undersubscribed issue. (Paras 1-3, 19, 78-104)
(B) The Arbitrator assessed damages based on the contract's clear stipulations regarding underwriting obligations, drawing attention to the process set out prior to discharging those obligations - Significant enhancements in damages found under disputed circumstances of underlined failure of subscriptions prompted by SEBI directives. (Paras 17-24, 50-60)
(C) On service of notices, the validity of actions concerning the sale of shares and responsibility for defaults in obligations were critically analyzed; consistent deferments of notices undermined the deed's enforcement. (Paras 75-81)
Facts of the case:
Disputes arose from the Plaintiff's public issue for FCDs placed under an underwriting agreement, collectively leading to arbitration for defaults by several underwriters after a decision by the SEBI regarding the subscribers’ rights. The Plaintiff sought judgment in terms of awards issued following arbitration, while underwriters contested their liability based on asserted discharges under the irrigation of the underwriting contract.
Findings of Court:
The High Court found the liability argument of underwriters flawed in light of contractual obligations, ultimately upholding the Arbitrator's authority to adjudicate damages awarded prior to the action while enforcing delays considered necessary for legal service procedure.
Issues: Did the Underwriters' obligations cease upon closure of the subscription, and were damages for breach properly assessed?
Ratio Decidendi: The court ruled obligations of underwriters remain intact unless formally discharged or duly addressed in line with the underwriting agreements, asserting the awarding of damages was aligned with contractual stipulations of the parties concerned.
Result: The court modified the damages, ruling for a sum of Rs.3,90,980/- with reduced interest, while holding the awards sustainable under contract law frameworks.
JUDGMENT
Prathiba M. Singh, J. The present suit is one of 27 connected suits, all of which relate to disputes between the Plaintiff - M/s. MS Shoes East Ltd. (now known as Tommorrowland Limited) and various Defendants/Respondents who were Underwriters of a public issue brought out by the Plaintiff-Company in 1995. The background of the cases is the same but the underlying facts vary from case to case. Hence, separate judgements are being delivered.
Background and Summary of the Proceedings
2. The background of the disputes is that the Plaintiff had launched a public issue sometime in 1995 for issuance of Fully Convertible Debentures (hereinafter `FCDs') to public in India as well as Non-Resident Indians. The public issue was underwritten by various Underwriters, including the Defendant herein. The public issue was closed on the earliest closing date on the basis that it was over-subscribed. However, subsequently SEBI found some irregularities and directed the Plaintiff to give an option to all the subscribers to either continue their offers or withdraw the same. Pursuant thereto, several subscribers withdrew the offers and the issue was under-subscribed. The Plaintiff then sought to raise a demand against the Underwriters to subscribe to their respective portions of the underwritten FCDs. The Underwriters only partially subscribed, which led to disputes between the Plaintiff and the Underwriters. There was an arbitration clause in the Underwriting Agreements which was invoked by the Plaintiff. A ld. Single Judge of the Delhi High Court had appointed a Sole Arbitrator - Justice (Retd.) Ms. Manju Goel to adjudicate the disputes between the Plaintiff and all the Underwriters who were 267 in number. Several of the Underwriters settled their disputes during arbitral proceedings. However, the Defendants in the present 27 disputes herein, for various reasons, did not appear or remained ex parte in the arbitral proceedings, resulting in ex parte awards being passed against them. The said awards are the subject matter of the batch of cases being currently dealt with by the Court. The Plaintiff has filed suits seeking judgment in terms of the awards and the Defendants have resisted the same. Some of the Defendants have raised objections under Sections 30 and 33 of the Arbitration Act, 1940 (hereinafter, "Act") and some Defendants have sought remand under Section 16 of the Act.
Brief facts of the Present Case:
3. The Plaintiff launched a public issue for 1,75,84,800 zero interest unsecured Fully Convertible Debentures (hereinafter, `FCDs') of Rs.199 each for cash and at par aggregating to Rs.349,93,75,200/- to the public and issue of 31,28,500 FCDs of Rs.250/- each for cash at par aggregating to Rs.78,21,25,000/- to non-resident Indians/persons of Indian origin resident abroad/OCBs on firm allotment basis together aggregating to Rs.428,15,00,200/- (hereinafter `public issue'). The disputes in these cases relate only to FCDs issued to the public in India. The issue was publicized along with a prospectus, which was duly vetted by the Securities and Exchange Board of India (hereinafter `SEBI').
4. The issue was opened on 14th February, 1995 and the closing date for the issue was to be not later than 24th February 1995. The earliest closing date was 18th February, 1995. The Lead Managers to the issue were SBI Capital Markets Ltd., Tourism Finance Corporation of India Limited, Lloyds Finance Limited, Indian Merchant Banking Services Ltd. and Bank of Baroda. The Registrar to the issue was MAS Services Pvt. Ltd. The FCDs, which were to be allotted to the subscribers, were to be compulsorily and automatically converted into one equity share of Rs.10/- each fully paid up, at a premium of Rs.189/- in the case of Indian public, on the date of conversion i.e., on the expiry of seventeen and a half months from the date of allotment of these debentures. Each debenture was to have a face value of Rs.199/-. No interest was payable thereon.
5. Un
