Back
IN THE HIGH COURT OF JUDICATURE AT MADRAS
P.T. ASHA, J.
Aapico Investment Pte. Limited - Appellant
Versus
Mr. Manickam Mahalingam - Respondent
OA.No.1148 and 1100 of 2019 and A.Nos.9765, 9766, 9768, 9769 and 9491 to 9494 of 2019
Decided on : 02-06-2021
Arbitration and Conciliation Act, 1996 - Sections 9 and 2(2) - Arbitration and Conciliation (Amendment) Act, 2015 - Section 2(e)(ii) - Loan Agreement - Encumbrance mortgage - Immovable, monies - Interest by parting with possession - Applications are identical and a brief narrative is hereinbelow set out. The applicants are referred to as AAPICO Investment/AAPICO Hitech and collectively as AAPICO - dispute is between the applicant Group and the Group headed and controlled by the respondent - In the year AAPICO Investment had invested in Sakthi Global Auto Holdings Limited - Equity and a loan of an equal amount was granted for which a loan agreement was entered into. In addition to the Loan Agreement, a Deed of Guarantee was entered into between SGAH, AB - equity investment of USD 25 Million and granted a further loan of USD 40 Million - By reason of these investments - Loan Agreement was entered into between SGAH, ABT, UK and AAPICO Hitech. In addition to the Loan Agreement, a Deed of Corporate Guarantee was entered by ABT, UK and SGAH in favour of AAPICO Investment and AAPICO Hitech - respondent and ABT, UK have also entered into a Deed of Personal Guarantee in favour of AAPICO Investment and had also executed a Share Charge Deed - committed defaults in respect of both Loan Agreements - By letter sent separately in respect of Loan Agreement, AAPICO had informed SGAH that an event of default had occurred and that AAPICO reserved its rights to enforce the loan – Held, applications filed under Section 9 of the Act are maintainable since there is no agreement to contrary between the parties as contemplated in the proviso to Sec.2(2) to exclude the applicability - arbitral proceedings were at an advanced stage, was transfer of shares by the respondent which he held in ABT, India in favour of his family members that too after the notice of demand being issued by the applicants. Added to this, ABT India had sold its interest in ABT, UK to Token Communities Limited - respondent has given a Personal Guarantee and admittedly huge amounts are due to the applicants under two loan agreements. Therefore, a prima facie case has been made out by the applicant for the grant of an order of injunction as sought for in Application only in respect of the A and B schedule properties pending the SIAC Arbitration - Reliefs claimed therein cannot be granted.16. Application andA.Nos. 9494 and 9765 of 2019 are more in the form of a roving enquiry and is therefore dismissed.8.17. Considering the orders passed in A.Nos.1100 and 1148 of 2019, A.Nos.9493 and 9766 of 2019 is closed - . Nos.1100 and 1148 of 2019 b. A. Nos. 9491 and 9769 of 2019 stand dismissed c. A. Nos. 9492 and 9768 of 2019 are dismissed d. A.Nos.9493 and 9766 of 2019 are clos - A.Nos. 9494 and 9765 of 2019 are dismissed – Ordered Accordingly
ORDER :
The applicant before this Court has filed various applications seeking interim measures under Section 9 of the Arbitration and Conciliation Act, 1996, as amended by the Arbitration and Conciliation(Amendment) Act 2015, in respect of an International Commercial Arbitration. The Arbitral proceedings are underway in respect of two Loan Agreements dated 25.05.2017 and 29.09.2018. These applications are in respect of the Personal Guarantee Deeds executed by the Respondent as security for the said Loan Agreements on 25.05.2017 and 01.10.2018 respectively.
2. VARIOUS APPLICATIONS FILED:
(a) A.No.1100, 9491, 9492, 9493 and 9494 of 2019 is in respect of the Loan Agreement dated 25.05.2017.
(b) A.No.1148, 9765, 9766, 9768 and 9769 of 2019 is with regard to the Loan Agreement dated 29.09.2018.
Identical interim reliefs have been sought for in respect of the two agreements.
(a) To restrain the respondents, his representatives, agents, successors or any other person claiming through or under him from in any manner dealing with the respondents assets, movable and immovable, monies, bank accounts wherever situated and from encumbering, selling, transferring or creating any third party interest by parting with possession of the same, including but not limited to the list set out in Schedule A and Schedule B pending disposal of the SIAC Arbitration. (Application Nos.1100 and 1148 of 2019 - Identical schedule of properties are given in both the applications).
(b)To order Status-Quo ante in relation to the recent transfer of significant shares of the respondents, shareholders in ABT India to his family Members pending disposal of the SIAC Arbitration.
(c)To pass an order directing the respondent to forthwith disclose on affidavit before this Court details of all his assets, movables (including but not limited to shares) and immovables monies bank deposits and accounts held by him singly or jointly (with any person or entity) and/or severally wherever in the World pending disposal of SIAC Arbitration (Application Nos.9492 and 9768 of 2019).
(d) To direct the respondents to forthwith furnish liquid security to the tune of USD57.4 million/approximately INR 407 Crores and in the event of failure by the respondent to furnish such security pass an order of attachment of the assets of the respondents in Schedule A and Schedule B pending disposal of the SIAC Arbitration. (Application No.9493 of 2019. Similar prayer is made in Applications No.9766 of 2019 in respect of USD65 Million/approximately INR 462 Crores. Further, the A and B Schedule properties are identical in both these applications. These properties are also the schedule of properties in Application Nos.1100 and 1145 of 2019).
(e) To direct the respondents to forthwith disclose on affidavit before this Hon'ble Court full details of all transactions entered into by his disposing of/alienating/dissipating or creating any third party rights including encumbrance mortgage, pledge or lien over his assets movable and immovable within a period of one year prior to the date of filing of the application pending disposal of the SIAC Arbitration (Application Nos.9494 of 2019 and 9765 of 2019).
The application in respect of the 2017 loan Agreement is filed by the AAPICO Investment Private Limited and the applications filed with regard to the 2018 Loan Agreement has one more applicant, AAPICO Hitech Public Company Limited and in both the applications, the respondent is Mr.Manickam Mahalingam.
3. FACTS GIVING RISE TO THE ABOVE APPLICATIONS:
(i) The facts in all these applications are identical and a brief narrative is hereinbelow set out. The applicants are referred to as AAPICO Investment/AAPICO Hitech and collectively as AAPICO.
The dispute is between the applicant Group and the Group headed and controlled by the respondent. In the year 2017, AAPICO Investment had invested in Sakthi Global Auto Holdings Limited, UK, (hereinafter called SGAH) to the tune of USD50 million (approximately INR 358 Crores) as equity
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
