PR. COMMISSIONER OF INCOME TAX-7, DELHI vs. MEERA GUPTA

OMP (I) (COMM.) 401/2023 and other connected matters Page 1 of 60

$~ * IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on: 18 September 2024 Pronounced on: 23 December 2024

+ O.M.P.(I) (COMM.) 401/2023, I.As. 4358/2024 & 34878/2024

INDIABULLS COMMERCIAL CREDIT LTD. .....Petitioner Through: Mr. Anirudh Bakhru, Mr. Ankit Banati, Mr. Adith Nair, Mr. Naman Gowda, Mr. Nikhil Rathi and Ms. Mallika Kamal, Advs.

versus

AMBIENCE PRIVATE LTD.

.....Respondent Through: Mr. Rajeeve Mehra, Sr. Adv. with Mr. Anush Raajan, Mr. Madhusudan, Mr. Pradyumn Yadav and Mr. G.S. Sachdeva, Advs.

+ O.M.P.(I) (COMM.) 405/2023, I.A. 34882/2024

INDIABULLS HOUSING FINANCE LIMITED .....Petitioner Through: Mr. Karan Bharihoke, Mr. Ankit Banati, Mr. Adith Nair, Mr. Naman Gowda, Mr. Nikhil Rathi and Ms. Mallika Kamal, Advs.

versus

SURABHI GEHLOT

....Respondent Through: Mr. Rajeeve Mehra, Sr. Adv. with Mr. Anush Raajan, Mr. Madhusudan, Mr. Pradyumn Yadav and Mr. G.S. Sachdeva, Advs.

+ O.M.P.(I) (COMM.) 406/2023, I.As. 30160/2024 & 34867/2024

Digitally Signed By:CHANDRASHEKHARAN HARI SHANKAR Signing Date:24.12.2024 16:01:54 Signature Not Verified Digitally Signed By:AJIT KUMAR Signing Date:24.12.2024 16:03:54 Signature Not Verified

OMP (I) (COMM.) 401/2023 and other connected matters Page 2 of 60

INDIABULLS COMMERCIAL CREDIT LTD. .....Petitioner Through: Mr. Rajiv Nayar, Sr. Adv. with Mr. Ankit Banati, Mr. Adith Nair, Mr. Saurabh Seth, Mr. Naman Gowda, Mr. Nikhil Rathi and Ms. Mallika Kamal, Advs.

versus

AMBIENCE PROJECTS AND INFRASTRUCTURE PVT. LTD.

.....Respondent Through: Mr. Rajeeve Mehra, Sr. Adv. with Mr. Anush Raajan, Mr. Madhusudan, Mr. Pradyumn Yadav and Mr. G.S. Sachdeva, Advs.

+ O.M.P.(I) (COMM.) 407/2023, I.A. 34872/2024

INDIABULLS HOUSING FINANCE LIMITED .....Petitioner Through: Mr. Karan Bharihoke, Mr. Ankit Banati, Mr. Adith Nair, Mr. Naman Gowda, Mr. Nikhil Rathi and Ms. Mallika Kamal, Advs.

versus

SARA ESTATES PRIVATE LIMITED & ANR ...Respondents Through: Mr. Rajeeve Mehra, Sr. Adv. with Mr. Anush Raajan, Mr. Madhusudan, Mr. Pradyumn Yadav and Mr. G.S. Sachdeva, Advs.

+ O.M.P.(I) (COMM.) 408/2023, I.As. 30159/2024 & 34883/2024

INDIABULLS HOUSING FINANCE LTD. .....Petitioner Through: Mr. Dayan Krishnan, Sr. Adv. with Mr. Ankit Banati, Mr. Adith Nair, Mr. Naman Gowda, Mr. Nikhil Rathi and Ms. Mallika Kamal, Advs.

versus Digitally Signed By:CHANDRASHEKHARAN HARI SHANKAR Signing Date:24.12.2024 16:01:54 Signature Not Verified Digitally Signed By:AJIT KUMAR Signing Date:24.12.2024 16:03:54 Signature Not Verified

OMP (I) (COMM.) 401/2023 and other connected matters Page 3 of 60

AMBIENCE PROJECTS AND INFRASTRUCTURE PVT. LTD.

.....Respondent Through: Mr. Rajeeve Mehra, Sr. Adv. with Mr. Anush Raajan, Mr. Madhusudan, Mr. Pradyumn Yadav and Mr. G.S. Sachdeva, Advs.

CORAM:

HON'BLE MR. JUSTICE C. HARI SHANKAR JUDGMENT %

Sr. No Date of ATS No. of housi- ng units Sale Consideratio -n (₹)* Amount paid (₹)* No of units cancelle- d * Amount payable by Ambience against cancelled units*§ Amount paid by Ambience towards cancellation *§ OMP (I) (Comm) 1 18 November 2022 20 484120000/- 484120000/- 14

338884000/- 126824000/

401/202 3

1 “Indiabulls” hereinafter 2 “Ambience” hereinafter 3 “Tiverton” hereinafter 4 “Caitriona” hereinafter 5 “Creacion” hereinafter 6 “ATSs” hereinafter Digitally Signed By:CHANDRASHEKHARAN HARI SHANKAR Signing Date:24.12.2024 16:01:54 Signature Not Verified Digitally Signed By:AJIT KUMAR Signing Date:24.12.2024 16:03:54 Signature Not Verified

OMP (I) (COMM.) 401/2023 and other connected matters Page 4 of 60

2 12 October 2021 1 79327528/- 75361152/- - - - 405/202 3 3 12 October 2021 1 93271076/- 88607522/- - - - 4 27 April 2022 37 959385457/- 70.68 crores 3 2120541462/- -

406/202 3 5 20 July 2022 38 960034045/- 70.70 crores - -

6 20 July 2022 22 626347171/- 44.42 crores 1 17987690/- - 7 29 July 2022 8 202206932/- 14.89 crores - - - 8 28 October 2022 13 329825378/- 18.95 crores 2 15386027/- - 9 28 October 2022 132 3681581974/- 242.28 crores 9 191889397/- - 10 4 October 2021 1 78330972/- 74414423/- - - -

407/202 3 11 4 October 2021 1 81443948/- 77371750/- - - - 12 4 October 2021 1 78327492/- 74411117/- - - - 13 4 October 2021 1 81475152/- 77401394/- - - - 14 4 October 2021 1 81475152/- 77401394/- - - - 15 4 October 2021 1 81475152/- 77401394/- - - - 16 30 September 2020 51 1277081863/- 84.52 crores 3 80275048/- -

408/202 3 17 12 April 2021 10 253987746/- 15.05 crores 1 25323940/- -

* The figures in the above chart have been collated from the pleadings, the ATSs and the cancellation deeds. § In respect of cancellations, as the figures pertaining to the cancellations which took place after the OMPs were filed are not forthcoming, they are not reflected in the table.

Resultantly, the ATS, which were in respect of a total 306 housing units, out of which Cancellation Deeds were executed in respect of 33 units, thereby resulting in 273 surviving units.

Digitally Signed By:CHANDRASHEKHARAN HARI SHANKAR Signing Date:24.12.2024 16:01:54 Signature Not Verified Digitally Signed By:AJIT KUMAR Signing Date:24.12.2024 16:03:54 Signature Not Verified

OMP (I) (COMM.) 401/2023 and other connected matters Page 5 of 60

“AGREEMENT TO SELL

THIS AGREEMENT TO SELL alongwith its Annexures is made and executed at New Delhi, Haryana on this 30th Day of September, 2020 ("AGREEMENT");

BETWEEN

M/s. Ambience Projects and Infrastructure Private Limited, a company as defined in the Companies Act, 2013. having its registered office at L - 4, Green Park Extension New Delhi DI- 110016 & having the Corporate Identity Number U7010IDL2010PTC209128 and having PAN AAICA8660R & GSTIN 06AAICA8660R2ZW through its authorized signatory, Mr. Raj Singh Gehlot, authorized vide board resolution dated 29.09.2020 (hereinafter referred to as the “Seller”, which expression shall unless it be repugnant to the context or meaning thereof be deemed to mean and include its successors- in- interest and assigns) of the FIRST PART;

AND

M/s lndiabulls Housing Finance Limited, a company as defined in the Companies Act, 2013, and having its registered office at M - 62 & 63, 1st Floor, Connaught Place, New Delhi l10001, and having Corporate Identity Number L65922DL2005PLCl36029(hereinafter Digitally Signed By:CHANDRASHEKHARAN HARI SHANKAR Signing Date:24.12.2024 16:01:54 Signature Not Verified Digitally Signed By:AJIT KUMAR Signing Date:24.12.2024 16:03:54 Signature Not Verified

OMP (I) (COMM.) 401/2023 and other connected matters Page 6 of 60

referred to as the “Purchaser”), which expression shall un less repugnant to the context or meaning thereof be deemed to mean and include its successor(s) and permitted assign(s) through its authorized signatory, Mr. Jitesh Mor, authorized vide board resolution dated 15th September, 2020 being the party of the SECOND PART;

The Seller and the Purchaser shall, hereinafter be jointly referred to as the “Parties” and individually as a “Party”.

WHEREAS:

*****

B. The Director General, Town & Country Planning, Haryana, Chandigarh has granted the approval/ sanction to develop the Residential Group Housing Colony Project on the said Plot vide license bearing dated 48 of 2012.

C. The Seller has obtained approval on the layout plan/ demarcation/ zoning/ site plan/ building plan for the Project from Directorate of Town & Country Planning, Haryana, Chandigarh.

*****

E. The Seller has represented that the Group Housing Colony project on the Plot currently named as “Ambience Creacions” construction and development is in process in accordance of the sanctioned building plans issued by the relevant competent authorities ("Project").

*****

G. The Seller is desirous to sell and the Purchaser has agreed to purchase total 51 (Fifty One) number of apartment(s)/flat(s)/unit(s) (along-with the specifications and lay out of Property as per Annexure-B) admeasuring 161461 square feet super built-up area (53,622.70 sq. ft. carpet area along with 16,283.91 sq. ft. of Balcony Area) in the aggregate along with 1 (one) car parking for each apartment(s)/flat(s)/unit(s) along with the proportionate share, rights, title and interests in the common area , amenities, facilities and car parking space etc. described more particularly in Schedule-I attached hereunder (hereinafter referred to as the 'Property'), free from all encumbrances, easements, privileges and charges, subject to the Seller getting all the required permissions/ approvals/no-objection certificates from the existing lender(s)/charge holders, if any, connected with the Property and completion of all the condition precedents as Digitally Signed By:CHANDRASHEKHARAN HARI SHANKAR Signing Date:24.12.2024 16:01:54 Signature Not Verified Digitally Signed By:AJIT KUMAR Signing Date:24.12.2024 16:03:54 Signature Not Verified

OMP (I) (COMM.) 401/2023 and other connected matters Page 7 of 60

mentioned hereunder and to the satisfaction of the Purchaser for transfer of Property in favor of Purchaser, for a total sale consideration of INR 1,27,70,81,863/- (Indian Rupees One Hundred Twenty Seven Crore Seventy Lakh Eighty One Thousand Eight Hundred Sixty Three Only) alongwith applicable Goods and Services Taxes subject to deduction of TDS under applicable laws and on the terms and conditions hereinafter appearing.

“NOW THIS AGREEMENT WITHNESSETH AND IT IS HEREBY AGREED BY AND BETWEEN THE PARTIES HERETO AS FOLLOWS:-

All the recitals as stated above, the annexures annexed hereto and the schedules appearing hereunder shall form integral part of this Agreement as if the same were set out herein verbatim.

OMP (I) (COMM.) 401/2023 and other connected matters Page 8 of 60

*****

(18) months from the date of this Agreement. Proof of payment of the TDS with Form 16-B of Income Tax Act, 1961 will be made available by the Purchaser to the Seller.

i. That Seller has authority to sell and in possession of the Plot/Property and has a valid and marketable title to the Plot/Property and none other than the Seller has any right, title or interest in respect of the Property and that there are no easement rights over the property in favour of any other person.

ii. That other than the charge in favour of the existing lender(s), the Property is free from all encumbrances, attachments, liens, charges, prior sale, mortgage, acquisition or notification etc. and is not afinancial asset of any Bank or Institution and no proceedings whatsoever in respect of the Property are pending before any Debt Recovery Tribunal or any other Court or other Tribunal or statutory authority and the Seller confirms that it has also not received any notice from any Bank or Digitally Signed By:CHANDRASHEKHARAN HARI SHANKAR Signing Date:24.12.2024 16:01:54 Signature Not Verified Digitally Signed By:AJIT KUMAR Signing Date:24.12.2024 16:03:54 Signature Not Verified

OMP (I) (COMM.) 401/2023 and other connected matters Page 9 of 60

Institution under the Securitisation and Reconstruction of Financial Assets and Enforcement Act. The Seller further undertakes not to create any encumbrances, mortgages, charges, liens or liability of any kind whatsoever in respect of the Property subsequent to execution of this Agreement.

*****

viii. The Seller shall, within a period of 30 days from the date of this agreement and at its own cost, get all the required approvals from the concerned entities for transfer of Property in favor of Purchaser and make out a clear and marketable title to the satisfaction of the Purchaser. The aforesaid permissions / approvals/ consents shall include but not be limited to the following:

a. Shareholders' approval u/s 180 of the Indian Companies Act, 2013, if applicable;

b. NOC from existing lender(s)/creditor(s)/ chargeholder(s), duly supported with proof of discharge/ release of the Property;

c. Any other permission/approval/ consent/certificate etc., if any.

*****

OMP (I) (COMM.) 401/2023 and other connected matters Page 10 of 60

agreement and the time is the essence of this Agreement. On receipt of balance Sale Consideration by the Seller from the Purchaser, the Seller shall execute and cause the execution of all documents, deeds and any other document including the registration of Conveyance Deed/s in respect of the Property in favour of the Purchaser on or before Eighteen (18) months from the date of this agreement and simultaneously hand over the vacant peaceful and unencumbered possession of the Property to the Purchaser. However, in the event of the Purchaser not being satisfied with title and possession of the said Property of the Seller or noncompliance of conditions mentioned herein, the Purchaser at its sole discretion shall be entitled to terminate this Agreement and the Seller shall without any further delay or demur refund the payment made under this Agreement with an interest @2% (Two Percent) per annum from the date of this Agreement till the date of refund. *****

*****

*****

OMP (I) (COMM.) 401/2023 and other connected matters Page 11 of 60

against a defaulting party. The Parties acknowledge that any breach of the provisions of this Agreement will cause immediate irreparable harm to the adversely affected party for which any compensation payable in damages shall not be an adequate remedy. Accordingly, the Parties agree that the affected party shall be entitled to immediate and permanent injunctive relief, specific performance or any other equitable relief from a competent court in the event of any such breach or threatened breach by any other party. The Parties agree and covenant unequivocally and unconditionally that the affected party shall be entitled to such injunctive relief specific performance or other equitable relief without the necessity of proving actual damages. The affected party shall, notwithstanding the above rights, also be entitled to the right to any remedies at law or in equity, including without limitation the recovery of damages from the defaulting party.

*****

OMP (I) (COMM.) 401/2023 and other connected matters Page 12 of 60

THIS SETTLEMENT DEED is signed and executed on this 18th day of November, 2022 at New Delhi between M/s Indiabulls Housing Finance Limited, having its registered office at 5th floor, 27, KG Marg, New Delhi-110 001 and M/s Indiabulls Commercial Credit Ltd., having its registered office at 5th Floor, Building No. 27, K G Marg, Connaught Place, New Delhi-110001 (hereinafter jointly referred to as the 'Lenders') being the Party of the First Part.

AND

M/s Ambience Projects and Infrastructure Pvt. Ltd., M/s Ambience Pvt. Ltd., M/s Ambience Commercial Developers Pvt. Ltd. and other associated and group companies of Ambience, duly mentioned in Annexure-A to this Settlement Deed, all having their registered office at L-4, Green Park Extension, New Delhi (hereinafter jointly referred to as the 'Borrowers') being the Party of Second Part.

WHEREAS the Lenders have extended various loan facilities to the Borrowers from time to time as per detail given in Annexure-A to this Settlement Deed, mainly/broadly summarized under four head/categories mentioned below at Sr. Nos. 1, 2 & 3. These loans are property/project loans which are secured against mortgage of various immovable properties as per details given in Annexure- B to this Settlement Deed and the Retained Security (defined later in this Settlement Deed) and loan accounts mentioned below at Sr. No.4 are lease rental discounting (LRD) loans which are secured against mortgage of receivables and property of Ambience Mall alongwith land underneath, admeasuring 8.25 acres situated at Plot No.2, Vasant Kunj Shopping Mall Complex, Vasant Kunj, Phase II, New Delhi. Details of the credit facilities and outstanding therein as on 30.09.2022 are given hereunder:

Table I Sr. No. Name of Principal Borrowers Amount of loan O/s (Rs. In Crores) 1. M/s Ambience Projects and Infrastructure Pvt. Ltd. & Others 1248.00 2. M/s Ambience Pvt Ltd. & Others 923.00 3. Sh. Raj Singh Gehlot & Smt. Sheela Gehlot 99.00

2270.00 Digitally Signed By:CHANDRASHEKHARAN HARI SHANKAR Signing Date:24.12.2024 16:01:54 Signature Not Verified Digitally Signed By:AJIT KUMAR Signing Date:24.12.2024 16:03:54 Signature Not Verified

OMP (I) (COMM.) 401/2023 and other connected matters Page 13 of 60

Add: Gross Interest till 30.09.2022 218.00

Total ‘A’ 2488.00. 4. Ambience Commercial Developers Pvt Ltd. 448.00

Total ‘B’ 448.00

***** AND WEHREAS the Lenders and Borrowers have mutually agreed to settle their outstanding dues in the property/project loans mentioned at Sr. No.1, 2 & 3 of Table I in full and final at the amount worked out in the manner mentioned in Table-II hereinafter.

Table II Sr. No. Particulars

Amount (Rs. In Crores) 1. Dues in property/project loans No.1, 2 & 3 as worked out in Table-I above Total ‘A’

2488.00

Add: - Amount payable by Borrowers in lieu of arrears in TDS dues of Lenders upto 31.03.2022

-EMI outstanding till the month of September, 2022 in loan account at Sr.No.4 above (net of TDS)

118.00

34.00

152.00

Total of all dues payable by Ambience 2640.00

Less: -Rebate towards Settlement on the basis of mutual consensus and agreement between Borrowers and Lenders

296.00

Net Settlement Amount payable/recoverable by Borrowers to/from the Lenders towards full and final payment of all dues of Lenders in relation to Property/Project Loan

Digitally Signed By:CHANDRASHEKHARAN HARI SHANKAR Signing Date:24.12.2024 16:01:54 Signature Not Verified Digitally Signed By:AJIT KUMAR Signing Date:24.12.2024 16:03:54 Signature Not Verified

OMP (I) (COMM.) 401/2023 and other connected matters Page 14 of 60

mentioned at Sr. No.1,2 & 3 of Table I and other claims/dues of Lenders and Borrowers against each other (other than and excluding the LRD loan account mentioned at Sr. No.4 of Table I)

2344.00

*****

AND WHEREAS in order to settle and pay the mutually agreed Net Settlement Amount of Rs. 2344 crore (inclusive of income tax to be deducted at source, which tax the Lenders have undertaken to deposit of its own), in the Lenders loan account at Sr. No.1, 2 & 3 in Table I above, the Borrowers have agreed to arrange the requisite amounts by way of selling/transferring/ monetizing various projects/properties/assets, listed in Table III below, owned by the Borrowers or their associated/group companies/concerns/individuals and utilize the amount realized therefrom after repayment of the dues against the properties concerned per se for settlement of all dues of the Lenders from the Borrowers in the property/project loan accounts mentioned at Sr. No.1, 2 & 3 of Table I above and other claims/dues of Lenders and Borrowers against each other as mentioned in Table-II above (excluding the dues in the LRD loan account mentioned at Sr. No.4 of Table I above). The Net Settlement Amount payable by the Borrowers to the Lenders is worked out at Rs.2344 crore as mentioned in Table-II above which amount includes an amount of Rs. 34 crore towards LRD loan account mentioned at Sr. No.4 of Table I above. Details of the properties proposed to be sold by the Borrowers and the corresponding realizable consideration thereof towards payment of Net Settlement Amount of Rs.2344 crore in full and other details are mentioned below in Table-III:

Sr. No . Particulars

Purchase value of Sale conside- ration (Net of Statutory and Other Dues/Ch- arges/ Fees etc.) (Rs. in Digitally Signed By:CHANDRASHEKHARAN HARI SHANKAR Signing Date:24.12.2024 16:01:54 Signature Not Verified Digitally Signed By:AJIT KUMAR Signing Date:24.12.2024 16:03:54 Signature Not Verified

OMP (I) (COMM.) 401/2023 and other connected matters Page 15 of 60

Crore) 1. Panipat Project (undertaking as a going concern) comprising of 314.808 acres of licenced land and 24.862 acres unlicenced land, owned by 18 companies/individual details of which are given in Annexure-C to this Settlement Deed and Licence No.6 of 2010 issued in the name of the Developer M/s Ambience Pvt. Ltd. 1325.00

Less: Deduction of TDS on Purchase of property (undertaking as a going concern) 1.51

Less: TDS to be deducted by 14 LOCs of Panipat Project on interest component charged to Ambience Pvt. Ltd. & other 35.75 1287.74 2. 28 acres of land at Sector-115, Noida allotted in the name of M/s Ambience Pvt. Ltd. by Noida Authority for residential with ancillary development by way of JDA 425.00

Less: Deduction of TDS on JDA 4.25 420.75 3. Commercial Complex at Plot No.10, at Community Centre, Block-B, Shalimar Bagh, New Delhi developed and owned by M/s Ambience Towers Pvt. Ltd. 325.00

Less: Security Deposit received from tenants 2.47

Less: Deduction of TDS on Purchase of property 3.23 319.00 4. Farm House at D-17, Pushpanjali Farms, New Delhi, developed and owned by M/s Indus Sor Urja Pvt. Ltd. 165.00

Less: Security Deposit received from tenants 2.78 162.22 5. (a) Apartment at Residential Complex at Sector 22, Gurgaon developed and owned by M/s Ambience Projects and Infrastructure Pvt. Ltd.

264.62

Digitally Signed By:CHANDRASHEKHARAN HARI SHANKAR Signing Date:24.12.2024 16:01:54 Signature Not Verified Digitally Signed By:AJIT KUMAR Signing Date:24.12.2024 16:03:54 Signature Not Verified

OMP (I) (COMM.) 401/2023 and other connected matters Page 16 of 60

Less: Deduction of TDS on Purchase of property 2.65 261.97 5.( b) Apartment at Residential Complex at Sector 50, NOIDA developed and owned by M/s Ambience Pvt. Ltd. 48.50

Less: Deduction of TDS on Purchase of property 0.48 48.02

Total Sales Consideration

2500.00

Less:

Existing Dues in the loan payable to banks in respect of Panipat Project, Shalimar Bagh and Farm House

156.00

Net amount realizable by the Borrower from sale/transfer/monetization of the assets/properties/projects owned by the Borrowers or their associated/group companies / concerns / Individuals.

2344.00

***** “NOW THIS SETTLEMENT DEED WITNESSETH AS FOLLOWS: 1. The Lenders and Borrowers have mutually agreed to settle all their outstanding loan, dues, claims, counter claim, or disputes etc. of whatsoever nature against each other in respect of the Loans mentioned at Sr. No.1, 2 & 3 of Table I, only upon an amount of Rs.2344 crore (Rupees Two Thousand Three Hundred Forty Four Crore Only) inclusive of amount of TDS as worked out and mentioned in Table II above is remitted by the Borrowers to the Lenders and received by the Lenders from/on behalf of the Borrowers. The funds for such remittance are being arranged by the Borrowers by selling/transferring/monetizing the properties as mentioned in Table III in consultation with the Lenders. Out of the aforesaid amount of Rs. 2344 crore an amount of Rs. 260.18 crore has already been remitted by the Borrowers and received by the Lenders. ***** 3. That the Borrowers undertake that all amounts aggregating Rs. 2344 crore (including Rs. 25 crore by way of cheque dated 25.12.2022) to be received by the Lenders from/on behalf of the Borrowers under the loans mentioned at Sr. No.1, 2 & 3 of Table I Digitally Signed By:CHANDRASHEKHARAN HARI SHANKAR Signing Date:24.12.2024 16:01:54 Signature Not Verified Digitally Signed By:AJIT KUMAR Signing Date:24.12.2024 16:03:54 Signature Not Verified

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above shall be received within 5 (five) working days from the date of this Settlement Deed subject to payment of total sale consideration by the respective buyers to the respective owners of the respective property, as mentioned at Sr. No.1 to 5 in Table-III above failing which this Settlement Deed shall be null and void unless otherwise extended with mutual consent of both the parties in writing and on this Settlement Deed becoming null and void the amounts received till such date shall automatically stand appropriated towards the outstanding and continuing loans (towards principal and/or interest) referred to at Sr. No.1, 2 & 3 of Table I above. 4. That upon the Lenders receiving the net amount of Rs.2344 crore (Rupees Two Thousand Three Hundred Forty Four Crore Only) inclusive of TDS in accordance with this Settlement Deed under the loans as mentioned under Sr. Nos.1, 2 & 3 of Table I above, the Lenders shall not lay any further claim of any nature or demand or any interest, penalty or compensation in lieu from the Borrowers in respect of various loans/facilities extended by it as mentioned under Sr. Nos. 1, 2 & 3 of Table I above and the amount of Rs.2344 crore (Rupees Two Thousand Three Hundred Forty Four Crore Only) is full and final payment, which includes TDS on interest, all interest, charges and penalty or other amounts or claims etc. by whatever name it may be called and shall never be called in question and reviewed on any ground whatsoever. ***** 6. That upon receipt of net amount of Rs.2344 crore (Rupees Two Thousand Three Hundred Forty Four Crore Only) inclusive of TDS by the Lenders from/on behalf of the Borrowers in accordance with this Settlement Deed all dues, charges, mortgages, liens and encumbrances etc. of whatsoever nature of the Lenders against the properties mortgaged in respect of the Loans mentioned at Sr. No.1, 2 & 3 of Table I above along with personal/corporate guarantees of the companies/concerns/individuals in the abovementioned three loan accounts at mentioned in the Annexure- B to this Settlement shall stand paid and satisfied and the Lenders will release all the title deeds of the properties mortgaged in respect of the Loans mentioned at Sr. No.1, 2 & 3 of Table I above along with personal /corporate guarantees of the companies/concerns/individuals in the abovementioned three loan accounts as mentioned in the Annexure-B to this Settlement Deed immediately and the respective owners shall collect the envelop of title deeds etc. in relation to their respective property and the Borrowers shall collect the No Dues Certificates/NOCs/letters for release of charge/mortgage, original Share Certificates, PDCs, letters to trustee/agent to release original title deeds/share Digitally Signed By:CHANDRASHEKHARAN HARI SHANKAR Signing Date:24.12.2024 16:01:54 Signature Not Verified Digitally Signed By:AJIT KUMAR Signing Date:24.12.2024 16:03:54 Signature Not Verified

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certificates etc. as per list given hereinabove and the Lenders shall collect the bank drafts aggregating Rs.147.87 crore from the custodian Mr. Mukul Rohtagi. The Lenders shall thereafter facilitate the Borrower in obtaining the original title deeds of the properties mortgaged/share certificates (that are deposited with the trustee/agent IDBI Trusteeship) in respect of the Loans mentioned at Sr. No.1, 2 & 3 of Table I and also for filing satisfaction of charge with ROC, New Delhi. ***** 11. That in relation to the inventories at Sector 22, Gurgaon being purchased by the Lenders as part of this Settlement Deed and inventories purchased on earlier occasions in the project being developed by the Borrowers at Sector 22 Gurgaon, (“Sec-22 Inventories”), the Borrowers shall be entitled to buy-back the Sec- 22 Inventories over the said period of 14 months i.e. w.e.f. November, 2022 to December, 2023 on the Borrower remitting and the Lender receiving buy-back consideration of not less than the price paid by the Lenders to the Borrowers (without any interest) as given in Annexure G. In the event the Borrowers require transfer of any part of the Sec-22 Inventories directly in favour of any third party buyer, the same shall be done on receipt of actual consideration, being an amount not less than the price paid by the Lenders to the Borrowers, being received by the Lenders directly from such third party buyer. 12. That in case of failure of Borrower to buy-back the projected sale of Sec-22 Inventories in a particular month the Lenders shall be at liberty to sell the inventory so left from the buy-back for that particular mouth at its free will. This will be applicable for each month independent of the previous month performance. Further, the Sec-22 Inventory sold in excess in a particular month will be counted as buy-back of the Sec-22 Inventory to be purchased in the following month and amount of that inventory to be brought-back in the following months will stand reduced by the amount of excess sale of Sec-22 Inventory in the preceding mouths. 13. That in the event the Borrowers defaults in its buy-back obligations for three consecutive months and/or delays/defaults in remittance of buy-back consideration and/or fails to record transfer of any inventory within 7 (seven) working days from its resale by the Lender in terms of this Settlement Deed, then the right to buy- back on and from the date of such default shall automatically stand terminated and extinguished. ***** Digitally Signed By:CHANDRASHEKHARAN HARI SHANKAR Signing Date:24.12.2024 16:01:54 Signature Not Verified Digitally Signed By:AJIT KUMAR Signing Date:24.12.2024 16:03:54 Signature Not Verified

OMP (I) (COMM.) 401/2023 and other connected matters Page 19 of 60

“On or before March 31, 2023, the Borrowers will procure the NOC’s from their bankers (Punjab National Bank) for the 20 units in ‘Ambience Tiverton’ a residential complex situated at Sector-50, Noida, for which ATS has already been executed in favour of the Lenders and execute and register the lease deeds for such units in accordance with such ATS;”

Trajectory of these proceedings

(i) OMP (I) (Comm) 401/2023 was filed on 7 December 2023.

(ii) On 8 December 2023, while issuing notice in OMP (I) (Comm) 401/2023, Ambience was restrained from creating any third party interest in respect of the 12 units forming part of the said OMP.

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(iii) On 14 December 2023, notice was issued in the remaining OMP (I) (Comm) 405/2023, OMP (I) (Comm) 406/2023, OMP (I) (Comm) 407/2023 and OMP (I) (Comm) 408/2023, while declining to pass any interim orders.

(iv) On 19 February 2024, Ambience filed IA 4358/2024, for vacation of the interim order dated 8 December 2023 passed in OMP (I) (Comm) 401/2023. This application is pending.

(v) On 23 February 2024, Ambience submitted that the disputed units in OMP (I) (Comm) 401/2023 were subject matters of a settlement between the parties which had not been placed on record.

(vi) On 22 April 2024, Ambience undertook not to create any third party interest in respect of the 6 surviving units in OA (I) (Comm) 401/2023.

(vii) On 27 July 2024, Indiabulls filed

(a) IA 34878/2024, for a direction to Ambience to deposit, pending arbitration, the amount of ₹ 19,87,44,000/- paid by Indiabulls towards the 6 surviving units in OMP (I) (Comm) 401/2023, (b) IA 34882/2024, for a direction to Ambience to deposit, pending arbitration, the amount of ₹ 24,55,06,635/- paid by Indiabulls towards the 2 surviving units in OMP (I) (Comm) 405/2023, Digitally Signed By:CHANDRASHEKHARAN HARI SHANKAR Signing Date:24.12.2024 16:01:54 Signature Not Verified Digitally Signed By:AJIT KUMAR Signing Date:24.12.2024 16:03:54 Signature Not Verified

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(c) IA 34867/2024, for a direction to Ambience to deposit, pending arbitration, the amount of ₹ 1,119,87,12,000/- paid by Indiabulls towards the 235 surviving units in OMP (I) (Comm) 406/2023, (d) IA 34872/2024, for a direction to Ambience to deposit, pending arbitration, the amount of ₹ 68,63,54,295/- paid by Indiabulls towards the 6 surviving units in OMP (I) (Comm) 407/2023 and (e) IA 34883/2024, for a direction to Ambience to deposit, pending arbitration, the amount of ₹ 25,088,98,000/- paid by Indiabulls towards the 57 surviving units in OMP (I) (Comm) 408/2023.

(viii) On 17 May 2024, Ambience filed IA 30160/2024 in OMP (I) (Comm) 406/2023 and IA 30159/2024 in OMP (I) (Comm) 408/2024 for dismissal of the OMPs.

(ix) On 30 July 2024, OMP (I) (Comm) 401/2024 was tagged with OMP (I) (Comm) 405/2023, OMP (I) (Comm) 406/2023, OMP (I) (Comm) 407/2023 and OMP (I) (Comm) 408/2023. Thereafter, all five OMPs were always listed together.

(x) On 12 August 2024, apropos the Settlement Deed dated 18 November 2022, the rival contentions were noted thus:

“4. … Mr Nayar’s contention is that, if one peruses the Settlement Agreement, there is breach by the respondents of Clauses 11 to 13 of the Settlement Agreement which, Digitally Signed By:CHANDRASHEKHARAN HARI SHANKAR Signing Date:24.12.2024 16:01:54 Signature Not Verified Digitally Signed By:AJIT KUMAR Signing Date:24.12.2024 16:03:54 Signature Not Verified

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therefore, disentitles the respondents to rely on the Settlement Agreement as a defence to the petitions.

Nonetheless, Ambience undertook not to create any third party interest in respect of any of the surviving units in OMP (I) (Comm) 405/2023, OMP (I) (Comm) 406/2023, OMP (I) (Comm) 407/2023 and OMP (I) (Comm) 408/2023.

(xi) Judgment was reserved, in all OMPs and pending applications, on 18 September 2024. The pending applications, I may note, are`

(a) IA 4358/2024 filed by Ambience in OMP (I) (Comm) 401/2023, for vacation of the stay granted by this court in the said OMP on 8 December 2023, (b) IA 30160/2024 in OMP (I) (Comm) 406/2023 and IA 30159/2024 in OMP (I) (Comm) 408/2023, seeking dismissal of the Section 9 petitions, and (c) IA 34878/2024 in OMP (I) (Comm) 401/2023, IA 34882/2024 in OMP (I) (Comm) 405/2023, IA 34867/2024 in OMP (I) (Comm) 406/2023, IA 34872/2024 in OMP (I) (Comm) 407/2023 and IA 34883/2024 in OMP (I) (Comm) 408/2023, whereby Indiabulls has sought a direction for Ambience to deposit, with this Court, the sale consideration paid by Indiabulls Digitally Signed By:CHANDRASHEKHARAN HARI SHANKAR Signing Date:24.12.2024 16:01:54 Signature Not Verified Digitally Signed By:AJIT KUMAR Signing Date:24.12.2024 16:03:54 Signature Not Verified

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to Ambience in respect of the surviving units forming subject matter of the said OMPs, which have not been cancelled and of which no Sale Deeds, transferring the units to Indiabulls, have been executed by Ambience.

Rival Stands

Submissions of Mr. Nayar and Mr. Dayan Krishnan

7 9. Interim measures, etc. by Court. – (1) A party may, before or during arbitral proceedings or at any time after the making of the arbitral award but before it is enforced in accordance with Section 36, apply to a Court:— (i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or (ii) for an interim measure of protection in respect of any of the following matters, namely:— (a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement; (b) securing the amount in dispute in the arbitration; Digitally Signed By:CHANDRASHEKHARAN HARI SHANKAR Signing Date:24.12.2024 16:01:54 Signature Not Verified Digitally Signed By:AJIT KUMAR Signing Date:24.12.2024 16:03:54 Signature Not Verified

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predicated on the arbitration clause, which is contained in all the ATSs, and the fact that, despite substantial payments having been made by Indiabulls to Ambience towards the ATSs, no Sale Deed, in respect of any unit, has been executed by Ambience in favour of Indiabulls. Interlocutory protective orders have, therefore, been sought. By way of example, the prayer clause in OMP (I) (Comm) 401/2023 may be reproduced:

“In the circumstances stated herein above, it is humbly prayed that this Hon’ble Court may be pleased to:

(a) Restrain the Respondents from transferring, selling, alienating, encumbering or creating any third party rights or interest in the following 12 Units, more particularly defined in Schedule 1 of the Agreement to Sell dated 18.11.2022:

S. No. Apartment No. Block Super Area (sq. ft) 1. G-101 G 2547.95 2. G-201 G 2547.95 3. G-202 G 2547.95 4. G-301 G 2547.95 5. G-302 G 2547.95 6 G-401 G 2547.95 7 G-501 G 2547.95 8 G-502 G 2547.95

(c) the detention, preservation or inspection of any property or thing which is the subject-matter of the dispute in arbitration, or as to which any question may arise therein and authorising for any of the aforesaid purposes any person to enter upon any land or building in the possession of any party, or authorising any samples to be taken or any observation to be made, or experiment to be tried, which may be necessary or expedient for the purpose of obtaining full information or evidence; (d) interim injunction or the appointment of a receiver; (e) such other interim measure of protection as may appear to the Court to be just and convenient, and the Court shall have the same power for making orders as it has for the purpose of, and in relation to, any proceedings before it. (2) Where, before the commencement of the arbitral proceedings, a court passes an order for any interim measure of protection under sub-section (1), the arbitral proceedings shall be commenced within a period of ninety days from the date of such order or within such further time as the court may determine. (3) Once the arbitral tribunal has been constituted, the court shall not entertain an application under sub-section (1), unless the court finds that circumstances exist which may not render the remedy provided under Section 17 efficacious.

Digitally Signed By:CHANDRASHEKHARAN HARI SHANKAR Signing Date:24.12.2024 16:01:54 Signature Not Verified Digitally Signed By:AJIT KUMAR Signing Date:24.12.2024 16:03:54 Signature Not Verified

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9 G-601 G 2547.95 10 F-102 F 2547.95 11 F-201 F 2547.95 12 A-201 A 2547.95

b) Restrain the Respondents from transferring, selling, alienating, encumbering or creating any third party rights or interest in Unit Nos. A-301, G-1801, G-1201, G-702, G- 901, G-1301, G-801 and G-402 in the Group Housing Complex known as “Ambience Tiverton Residential Apartment Complex” situated at Plot No. F-033, Sector 50, Noida, Gautam Budh Nagar, Uttar Pradesh, till such time the Respondent pays the balance amount of Rs. 6,68,24,000/- to the Petitioner due under Cancellation Deeds;

(c) In the alternative to prayer (b), direct the Respondent to deposit a sum of Rs. 6,68,24,000/- with the Registrar General of this Hon'ble Court;

(d) Pass ad-interim ex-parte Order(s) in terms of prayer (a) and (b) above;

(e) Pass such other further order/orders as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.”

The prayers in other OMPs are similar, except that, in OMP (I) (Comm) 405/2023 and OMP (I) (Comm) 407/2023, as there is no cancellation deed involved, no prayer for deposit of the amounts payable by Ambience to Indiabulls under the Cancellation Deeds is made. In OMP (I) (Comm) 406/2023 and OMP (I) (Comm) 408/2023, there are prayers for directing deposit, by Ambience, of the entire amounts payable under the Cancellation Deeds, of ₹ 5.82 crores and ₹ 13,26,21,945/-, pending the decision in the arbitral proceedings to follow.

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obligations under the Settlement Deed. Ambience is, therefore, needlessly invoking the Settlement Deed, so as to conflate unconnected issues and create confusion.

“In this context, it may be noted that the Respondent has itself issued a Notice of Default on 29.03.2023 upon the Petitioner seeking the balance of advances agreed upon under the ATSs to be released, failing which the Respondent will exercise its right to cancel the ATSs and return the advances paid. Even till date the Digitally Signed By:CHANDRASHEKHARAN HARI SHANKAR Signing Date:24.12.2024 16:01:54 Signature Not Verified Digitally Signed By:AJIT KUMAR Signing Date:24.12.2024 16:03:54 Signature Not Verified

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Petitioner has not released the balance advances under the ATSs which were subsumed in the Settlement Deed.”

Mr. Nayar also places reliance, in this context, on Clause 2(c) of the Addendum Agreement dated 6 December 2022, which specifically required Ambience to procure NOCs from the Punjab National Bank for the 20 units in Tiverton, for which the ATS already stood executed in favour of Indiabulls. He further draws attention to Clause 27 of the ATSs in OMP (I) (Comm) 408/2023, which clearly stated that the ATSs, and the Annexures thereto, constituted “a complete and exclusive understanding of the terms of this Agreement between the parties on the subject here of”, further clarified that “no amendment or modification here to shall be valid and effective unless agreed to by all the Parties hereto and evidenced in writing”.

Submissions of Mr. Rajeeve Mehra in reply

8 2024 SCC OnLine Del 5631 Digitally Signed By:CHANDRASHEKHARAN HARI SHANKAR Signing Date:24.12.2024 16:01:54 Signature Not Verified Digitally Signed By:AJIT KUMAR Signing Date:24.12.2024 16:03:54 Signature Not Verified

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sale, whereunder housing units were to be sold and purchased. According to Mr. Mehra, the loans of ₹ 2344 Crores, earlier availed from Indiabulls, have been repaid by Ambience, out of amounts advanced by Indiabulls under the ATSs. The ATSs were, therefore, according to Mr. Mehra, merely instruments whereunder advances were extended by Indiabulls to Ambience, secured against the housing units forming subject matter of the ATSs. Inasmuch as the loan amount of ₹ 2344 Crores has been paid back to Indiabulls, Mr. Mehra’s contention is that the ATSs have worked themselves out, and Indiabulls could no longer seek to enforce the security in the form of the housing units forming subject matter of the ATSs.

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and avail the facility of buy back, in respect of which e-mail dated 5 July 2024 stands addressed by Ambience to Indiabulls.

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Analysis

The nature of the consideration by the Court

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tribunal. The second aspect, which arises only if the answer to the first aspect is in the affirmative, is the scope and extent of interim protection, which ought to be granted.

Scope of power to direct deposit by way of security, under Section 9

9 5. Where defendant may be called upon to furnish security for production of property. – (1) Where at any stage of a suit, the Court is satisfied, by affidavit or otherwise, that the defendant, with intent to obstruct or delay the execution of any decree that may be passed against him,— (a) is about to dispose of the whole or any part of his property, or (b) is about to remove the whole or any part of his property from the local limits of the jurisdiction of the Court, the Court may direct the defendant, within a time to be fixed by it, either to furnish security, in such sum as may be specified in the order, to produce and place at the disposal of the Court, when required, the said property or the value of the same, or such portion thereof as may be sufficient to satisfy the decree, or to appear and show cause why he should not furnish security. (2) The plaintiff shall, unless the Court otherwise directs, specify the property required to be attached and the estimated value thereof. (3) The Court may also in the order direct the conditional attachment of the whole or any portion of the property so specified. (4) If an order of attachment is made without complying with the provisions of sub-rule (1) of this rule, such attachment shall be void.

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(1)(ii)(b), to secure the amount in dispute there is a cleavage of opinion. The ultimate eventuate appears to be that while the Court may be guided by the principles that govern Order XXXVIII Rule 5, while considering a prayer for directing the respondent to secure the amount in dispute, the interest of justice and the overall facts of the case must ultimately pre-dominate, and the strict tests laid down by the Supreme Court in the judgments rendered in the context of Order XXXVIII Rule 5 may not always apply.

10 2022 SCC OnLine SC 1219 11 2022 SCC OnLine SC 1243 12 2022 SCC OnLine SC 1329 Digitally Signed By:CHANDRASHEKHARAN HARI SHANKAR Signing Date:24.12.2024 16:01:54 Signature Not Verified Digitally Signed By:AJIT KUMAR Signing Date:24.12.2024 16:03:54 Signature Not Verified

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suffice and that relief, by way of direction for deposit, should not be refused only because requisite averments, incorporating ground for attachment before judgment under Order XXXVIII Rule 5, are not forthcoming in the pleadings. Essar House and Sepco affirm and approve, in this context, the following passage from the judgement of a Division Bench of this Court in Ajay Singh v Kal Airways Pvt Ltd13, as enunciating the correct law. The following passages from Essar House, which also figure in Sepco, merit reproduction in this context: “37. Mr. Shyam Divan argued that while deciding a Section 9 application filed under the provisions of the Arbitration Act, the principles of the CPC are to be strictly followed. The principles enunciated by this Court in Raman Tech. & Process Engg. Co.14 were required to be followed in letter and spirit.

“31. In our view, the paragraphs of the aforesaid pleadings of the respondent in arbitration petition filed under section 9 filed by the respondent were sufficient to secure the claim of the respondent under section 9 of the Arbitration Act and to invoke the principles of Order 38 Rule 5 of the Code of Civil Procedure even if it is strictly made applicable to the facts of this case.”

13 2017 SCC OnLine Del 8934 14 (2008) 2 SCC 302 Digitally Signed By:CHANDRASHEKHARAN HARI SHANKAR Signing Date:24.12.2024 16:01:54 Signature Not Verified Digitally Signed By:AJIT KUMAR Signing Date:24.12.2024 16:03:54 Signature Not Verified

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to advance the cause of justice cannot be interpreted in such manner, as would defeat justice.

(i) secure the amount in dispute in the arbitration; or (ii) such other interim measure of protection as may appear to the Court to be just and convenient, and the Court shall have the same power for making orders as it has for the purpose of, and in relation to, any proceedings before it.

“…Section 9 grants wide powers to the courts in fashioning an appropriate interim order, is apparent from its text. Nevertheless, what the authorities stress is that the exercise of such power should be principled, premised on some known guidelines - therefore, the analogy of Orders 38 and 39. Equally, the court should not find itself unduly bound by the text of those provisions rather it is to follow the underlying principles…”

“6. As far as Section 9 of the Act is concerned, it cannot be said that this court, while considering a relief thereunder, is strictly bound by the provisions of Order 38 Rule 5. As held by our Courts, the scope of Section 9 of the Act is very broad; the court has a discretion to grant thereunder a wide range of interim measures of protection “as may appear to the court to be just and convenient”, though such discretion has to be exercised judiciously and

15 2020 SCC OnLine Bom 849 Digitally Signed By:CHANDRASHEKHARAN HARI SHANKAR Signing Date:24.12.2024 16:01:54 Signature Not Verified Digitally Signed By:AJIT KUMAR Signing Date:24.12.2024 16:03:54 Signature Not Verified

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not arbitrarily. The court is, no doubt, guided by the principles which civil courts ordinarily employ for considering interim relief, particularly, Order 39 Rules 1 and 2 and Order 38 Rule 5; the court, however, is not unduly bound by their texts. As this court held in Nimbus Communications Limited v. Board of Control for Cricket in India16 (Per D.Y. Chandrachud J, as the learned Judge then was), the court, whilst exercising power under Section 9, “must have due regard to the underlying purpose of the conferment of the power under the court which is to promote the efficacy of arbitration as a form of dispute resolution.” The learned Judge further observed as follows:

“Just as on the one hand the exercise of the power under Section 9 cannot be carried out in an uncharted territory ignoring the basic principles of procedural law contained in the Code of Civil Procedure 1908, the rigors of every procedural provision in the Code of Civil Procedure 1908 cannot be put into place to defeat the grant of relief which would subserve the paramount interests of justice. A balance has to be drawn between the two considerations in the facts of each case.”

“88. … It is now a well settled legal position, that at least with respect to Chartered High Courts, the power to grant temporary injunctions are not confined to the statutory provisions alone. The Chartered High Courts had an inherent power under the general equity jurisdiction to grant temporary injunctions independently of the provisions of the Civil Procedure Code, 1908…”

***** 93. Insofar as judgment of Supreme Court in case of Raman Tech. & Process Engg. Co. relied upon by Mr. Narichania, learned senior counsel for the VML is concerned, it is held by the Hon'ble Supreme Court that merely having a just or valid claim or a prima facie case, will not entitle the plaintiff to an order of attachment before judgment, unless he also establishes that the defendant is attempting to remove or dispose of his assets with the intention of defeating the decree that may be passed. The

16 2012 SCC OnLine Bom 287 17 2021 SCC OnLine Bom 75 Digitally Signed By:CHANDRASHEKHARAN HARI SHANKAR Signing Date:24.12.2024 16:01:54 Signature Not Verified Digitally Signed By:AJIT KUMAR Signing Date:24.12.2024 16:03:54 Signature Not Verified

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Hon'ble Supreme Court has further held that the purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. The said judgment of the Hon'ble Supreme Court was not in respect of the powers of court under section 9 of the Arbitration and Conciliation Act, 1996 but was in respect of power under Order 38 Rule 5 of the Civil Procedure Code, 1908 in a suit. Even otherwise, the said judgment is distinguishable in the facts of this case.

*****

18 (2007) 7 SCC 125 19 National Shipping Company of Saudi Arabia v Sentrans Industries Ltd, AIR 2004 Bom 136 Digitally Signed By:CHANDRASHEKHARAN HARI SHANKAR Signing Date:24.12.2024 16:01:54 Signature Not Verified Digitally Signed By:AJIT KUMAR Signing Date:24.12.2024 16:03:54 Signature Not Verified

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when it determines an application under Section 9 of the Arbitration and Conciliation Act, 1996. The underlying basis of Order 38 Rule 5 therefore has to be borne in mind while deciding an application under Section 9(ii)(b) of the Arbitration Act.

***** 104. The Division Bench of this court in case of Deccan Chronicle Holdings Limited v. L & T Finance Ltd.20, after adverting to the judgment of Supreme Court in case of Adhunik Steel Ltd. (supra), judgment of the Division Bench of this court in case of Nimbus Communications Ltd. (supra) held that the rigors of every procedural provision of the Code of Civil Procedure cannot be put into place to defeat the grant of relief which would sub-serve the paramount interests of the justice. The object of preserving the efficacy of arbitration as an effective form of dispute resolution must be duly fulfilled. This would necessarily mean that in deciding an application under Section 9, the Court would while bearing in mind the fundamental principles underlying the provisions of the Code of Civil Procedure, at the same time, have the discretion to mould the relief in appropriate cases to secure the ends of justice and to preserve the sanctity of the arbitral process. The Division Bench of this Court in the said judgment did not interfere with the order passed by the learned Single Judge directing the parties to furnish security so as to secure the claim of the original petitioner in arbitration by applying principles of Order 38 Rule 5 of the Code of Civil Procedure. …”

“An application under section 9 of the Arbitration & Conciliation Act, 1996 for interim relief is not to be judged as per the standards of a plaint in a suit. If the relevant facts pleaded, read with the documents annexed to the petition, warrant the grant of interim relief, interim relief ought not to be refused by recourse to technicalities…”

20 2013 SCC OnLine Bom 1005 21 2008 SCC OnLine Cal 974 Digitally Signed By:CHANDRASHEKHARAN HARI SHANKAR Signing Date:24.12.2024 16:01:54 Signature Not Verified Digitally Signed By:AJIT KUMAR Signing Date:24.12.2024 16:03:54 Signature Not Verified

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arbitral award, but before its enforcement in accordance with Section 36 of the Arbitration Act. All that the Court is required to see is, whether the applicant for interim measure has a good prima facie case, whether the balance of convenience is in favour of interim relief as prayed for being granted and whether the applicant has approached the court with reasonable expedition.

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opposite/opponent party which may tantamount to any attempt on the part of the opponent/opposite party to defeat the award that may be passed in the arbitral proceedings, the Commercial Court may pass an appropriate order including the restraint order and/or any other appropriate order to secure the interest of the parties. However, unless and until the conditions mentioned in Order XXXVIII Rule 5 of the CPC are satisfied such an order could not have been passed by the Commercial Court which has been passed by the Commercial Court in the present case, which has been affirmed by the High Court.” (Emphasis supplied)

22 (2017) 16 SCC 680 23 2023 SCC OnLine SC 1140 Digitally Signed By:CHANDRASHEKHARAN HARI SHANKAR Signing Date:24.12.2024 16:01:54 Signature Not Verified Digitally Signed By:AJIT KUMAR Signing Date:24.12.2024 16:03:54 Signature Not Verified

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Applying the law to the facts

(i) Agreements to sell stand executed between Indiabulls and Ambience, whereunder, against amounts which are payable by Indiabulls, residential units in the Tiverton, Caitriona and Creacion housing units of Ambience are to be sold to Indiabulls.

(ii) The ATSs, on their face, are standalone agreements. There is no reference, in any of the ATSs, to the Settlement Deed dated 18 November 2022 or to the Addendum dated 6 December 2022. Nor, in the Settlement Deed, is there any reference to the ATSs. The attempt by Mr. Mehra to conflate the ATSs and the Settlement Deed, by submitting that the ATSs were not actually intended to be instruments of sale, but were only agreements whereunder the residential units of Ambience were provided as security towards the advances extended by Indiabulls, is not borne out by any recital either in the ATSs or in the settlement deed. While it would always be open to Ambience to demonstrate this interconnect in the arbitral proceedings, no prima facie case to that effect can be set to have been made out at this stage.

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(iii) Against the aforesaid payment of ₹ 638,07,75,728/- made by Indiabulls to Ambience under the ATSs, no sale deed has been executed by Ambience, in respect of even a single unit covered by the ATSs.

(iv) The incontrovertible position is, therefore, that Ambience has retained, with itself, the entire amount paid by Indiabulls under the ATSs, without executing any document of sale, in respect of any of the units forming subject matter of the ATSs, in favour of Indiabulls.

Regarding the Settlement Deed

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Indiabulls to pay the balance consideration under the ATSs. This request, coming as it did on the heels of Indiabulls’ communication dated 22 March 2023, clearly indicates Ambience’s awareness that its right of buy back no longer survived, and all that survived were the ATSs.

The equities of the case

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Mr Mehra’s objections

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forming subject matter of the ATSs. This was a mere allegation, and no more. The apprehension of Indiabulls that, if it is not secured, the arbitral proceedings may be rendered a futility, is therefore, he submits, imaginary.

Re. objection that prayer for deposit, contained in IAs, exceeds prayer in the OMPs

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to the IAs filed by Indiabulls seeking securing of Indiabulls’ claim by deposit, but has also been heard at length on the point. Written submissions have also been filed by both sides. The question is whether, even so, the Court must refuse to examine Indiabulls’ claim for a direction to Ambience to deposit the amounts paid by Indiabulls to Ambience under the ATSs in relation to the disputed units, or consider the said prayer on merits.

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by way of deposit, by a further Section 17 application? The answer, clearly, has to be in the negative. Were arbitral proceedings between Indiabulls and Ambience to have been ongoing, Indiabulls would clearly be within its right in filing two applications under Section 17 before the Arbitral Tribunal, seeking, in the first, a restraint against Ambience creating third party rights in respect of the disputed units and, in the second, a direction to Ambience to secure Indiabulls’ claims by way of deposit. It would not be open, in such an eventuality, for Ambience to contend that the second application was not maintainable and that the prayers in the second application could not be entertained, as it went beyond the prayer in the first application. The Arbitral Tribunal would have to consider and decide both applications. Of course, it would always be open to the Arbitral Tribunal to hold that only one of the two prayers could be granted, or even that neither prayer had merit. The Tribunal could not, however, refuse to consider the second prayer for deposit merely because, in the first application, the prayer was for a direction to Ambience not to create third party interests in respect of the disputed units.

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maintainable under Section 9. The Court cannot refuse to consider the second prayer merely because it goes beyond the first prayer. Both prayers have, therefore, to be considered on merits and decided.

Re. objection that there was no evidence of Ambience disposing of the disputed units

Digitally Signed By:CHANDRASHEKHARAN HARI SHANKAR Signing Date:24.12.2024 16:01:54 Signature Not Verified Digitally Signed By:AJIT KUMAR Signing Date:24.12.2024 16:03:54 Signature Not Verified

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Assertion in OMP

“15. However, in the 1st week of December, the Petitioner has learnt from market sources that the Respondent contrary to its assurances and representations to the Petitioner and more significantly in breach or Clause 8(ii) of the ATS is seeking to alienate and create third party rights in the Units which arc a subject matter of the ATS dated 18.11.2022. The Petitioner has reliably learnt from brokers dealing in Units relating to the Tiverton Project of the Respondent, that the Units agreed to be sold and transferred to the Petitioner under the ATS have been placed on the market by the Respondent and are being offered for sale by the Respondent. It is therefore clear that the Respondent is acting in breach of the terms of the ATS and seeking to resile therefrom in a clandestine manner and behind the back of the Petitioner. While on the Petitioner' race the Respondent is assuring to perform the terms or the ATS and fulfill its obligations, while on the other hand, the Respondent is seeking to alienate the units behind the Petitioner's back.

Reply by Ambience

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was issued restraining the Respondent from dealing with the Noida Apartments, even though the Settlement Deed provides for such a right of sale.

*****

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*****

“9. The Petitioner without making any reference to the Settlement Deed dated 18.11.2022 and the Addendum to Settlement Deed dated 06.12.2022, providing a right to the Respondent to sell the ATS units, obtained an ex-parte ad-interim injunction against the Respondent from this Hon'ble Court.”

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granted, the possibility of the disputed units being alienated by Ambience looms large.

Re. submission that Indiabulls stands sufficiently secured

Essar House

Digitally Signed By:CHANDRASHEKHARAN HARI SHANKAR Signing Date:24.12.2024 16:01:54 Signature Not Verified Digitally Signed By:AJIT KUMAR Signing Date:24.12.2024 16:03:54 Signature Not Verified

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24 “Essar House” hereinafter 25 “Arcellor” hereinafter Digitally Signed By:CHANDRASHEKHARAN HARI SHANKAR Signing Date:24.12.2024 16:01:54 Signature Not Verified Digitally Signed By:AJIT KUMAR Signing Date:24.12.2024 16:03:54 Signature Not Verified

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35,51,89,875/- and ₹ 47.41 crores represented the security deposits which Essar Steel had to make in agreements executed with Essar Services and Essar House respectively. Pursuant to proceedings under Section 7 of the Insolvency and Bankruptcy Code, 201626 having been initiated against Essar Steel by the Standard Chartered Bank and the State Bank of India, Corporate Insolvency Resolution Process27 was initiated against Essar Steel by the National Company Law Tribunal28.

26 “IBC” hereinafter 27 “CIRP” hereinafter 28 “NCLT” hereinafter Digitally Signed By:CHANDRASHEKHARAN HARI SHANKAR Signing Date:24.12.2024 16:01:54 Signature Not Verified Digitally Signed By:AJIT KUMAR Signing Date:24.12.2024 16:03:54 Signature Not Verified

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Court against, which Essar House and Essar Services appealed to the Supreme Court.

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substantial part of the sale consideration, towards the said ATSs, having been paid by Indiabulls to Ambience. Moreover, Clause 31 of the ATSs specifically entitles Indiabulls to apply for specific performance of the ATSs. A prima facie case is clearly made out in that regard, as a substantial part of the sale consideration stands paid by Indiabulls to Ambience and, despite such payment, no sale deeds, in respect of even a single unit forming subject matter of the seventeen ATSs has, till date, been executed by Ambience to Indiabulls.

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retaining control over all the disputed units with which it would then be free to do as it liked. To my mind, the suggestion was wholesome. Mr. Mehra, however, on instructions, was unable to accede to the said offer.

Conclusion

Digitally Signed By:CHANDRASHEKHARAN HARI SHANKAR Signing Date:24.12.2024 16:01:54 Signature Not Verified Digitally Signed By:AJIT KUMAR Signing Date:24.12.2024 16:03:54 Signature Not Verified

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(i) Ambience shall deposit, with the Registry of this Court, the entire amount paid by Indiabulls under the ATSs, relating to the units covered by the ATSs which have not been cancelled till date, total to ₹ 638,07,75,728/-29 within a period of four weeks from the date of uploading of this judgment on the website of this Court.

(ii) Till then, Ambience shall continue to remain restrained from creating any third party rights in respect of the disputed units. On deposit being made as aforesaid, the restraint against dealing with the disputed units shall stand lifted.

(iii) These directions shall abide by further orders, if any, to be passed in the arbitral proceedings, as and when they are initiated.

C. HARI SHANKAR, J.

29 As taken from Indiabulls’ written submissions dated 25 September 2024, and not disputed by Ambience in its written submissions Digitally Signed By:CHANDRASHEKHARAN HARI SHANKAR Signing Date:24.12.2024 16:01:54 Signature Not Verified Digitally Signed By:AJIT KUMAR Signing Date:24.12.2024 16:03:54 Signature Not Verified

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DECEMBER 23, 2024/aky

Click here to check corrigendum, if any Digitally Signed By:CHANDRASHEKHARAN HARI SHANKAR Signing Date:24.12.2024 16:01:54 Signature Not Verified Digitally Signed By:AJIT KUMAR Signing Date:24.12.2024 16:03:54 Signature Not Verified