Estra Enterprises Pvt Ltd v. Bwci Pension Trustees Ltd.,
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 18.06.2024
CORAM
THE HONOURABLE Mr.JUSTICE M.SUNDAR and THE HONOURABLE Mrs.JUSTICE K.GOVINDARAJAN THILAKAVADI Estra Enterprises Private Limited 6th Floor, Tower C, Tek Meadows No.51, Rajiv Gandhi Salai (OMR) Sholinganallur, Chennai - 600 119 Represented by Mr.Chinna Thalakku Thevar Shakthivel .... Appellant Vs BWCI Pension Trustees Limited As Trustee of the Deutsche Bank Group International Pension Plan P.O. Box No.68, Albert House South Esplanade, St.Peter Port Guernsey, GY13BY, Represented by Mr.Michael McKay ... Respondent Prayer : Original Side Appeal filed under Order XXXVI Rule 1 of the Madras High Court Original Side Rules r/w Clause 15 of the Letters Patent, praying to set aside the fair and decreetal order dated 21.02.2020 in Company Application No.80 of 2017 in C.P. No.93 of 2016 on the file of High Court, Madras.
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For Appellant : Mr.Naveen Kumar Murthi For Respondent : Mr.R.Murari, Senior Counsel Instructed by Ms.Meera Moganasundaram of M/s.Samvad Partners
JUDGMENT
In the captioned intra-court Appeal i.e., 'Original Side Appeal' [hereinafter 'OSA' for the sake of brevity], Mr.Naveen Kumar Murthi, learned counsel for appellant 'Estra Enterprises Pvt. Ltd.,' [hereinafter 'ESTRA' for the sake of brevity] and Mr.R.Murari, learned Senior Counsel instructed by Ms.Meera Moganasundaram of M/s.Samvad Partners (Law Firm) on record for respondent 'BWCI Pension Trustees Ltd.,' ['BWCI' for the sake of brevity, convenience and clarity] are before us.
2. Aforementioned counsel and senior counsel submit that ESTRA and BWCI have arrived at a settlement, reduced to writing the terms of settlement vide a 'settlement agreement dated 11.01.2024' [hereinafter 'said settlement agreement' for the sake of brevity, convenience and clarity] and an addendum to said settlement agreement, which we are informed was executed on 15.04.2024. To be noted, addendum to said settlement agreement is only for the limited purpose of extending the time line vide Clause 9 read with Clause 2/39
20 of said settlement agreement, to be noted time line lapsed on 27.03.2024, in and by the addendum {which we are informed is dated 15.04.2024} the time line now stands extended by 90 days i.e., upto 25.06.2024.
3. Both counsel on either side submit that, a closure to the captioned OSA may please be given by recording the said settlement agreement and aforementioned addendum to said settlement agreement. Therefore, it is really not necessary to dilate much on details, however facts (shorn of granular particulars) i.e., factual matrix in nutshell containing broad facts that are imperative for appreciating this consent closure order will suffice.
4. The factual matrix in nutshell is that the nucleus of lis is constituted by three Memoranda of Understanding dated 16.03.2012, 18.11.2015 and 03.02.2016, all of which collectively pertain to purchase of shares inter alia by ESTRA qua BWCI; that company petitions being C.P. Nos.92 and 93 of 2016 were moved by one 'Roverco Apparel Company Private Ltd.,' [hereinafter 'ROVERCO' for the sake of brevity] and ESTRA respectively with the same prayer i.e., a prayer to sanction a scheme of arrangement dated 01.04.2015; that these two company petitions were moved inter alia under 3/39
Sections 391 to 394 of 'the Companies Act, 1956' [hereinafter 'Old Companies Act' for the sake of convenience] read with Section 52 of the 'Companies Act, 2013' [hereinafter 'New Companies Act' for the sake of convenience] read with Section 100 to 104 of Old Companies Act; that these two company petitions were disposed of by Hon'ble Single Judge presiding over a Company Court in and by a common order dated 01.06.2016; that thereafter BWCI moved an application in Company Application No.80 of 2017 inter alia seeking a prayer to direct ESTRA to implement the sanctioned scheme of arrangement; that this Company Application No.80 of 2017 was contested and it was concluded in and by order dated 21.02.2020 made by another Hon'ble Single Judge presiding the Company Court; that this 21.02.
2020 order shall be referred to as 'impugned order' as this order is under challenge in the captioned OSA; that ESTRA and BWCI have now entered into aforementioned said settlement agreement and addendum and agreed to give quietus to captioned OSA vide the said settlement of agreement and addendum; that besides said settlement agreement and addendum thereto, an arbitration agreement captioned 'AGREEMENT RE ARBITRATION' dated 11.01.
submit that Hon'ble Supreme Court has appointed a former Hon'ble Judge of Supreme Court as Sole Arbitrator and arbitration is under way; that it is submitted in one voice in unison by learned counsel on both sides that the arbitral disputes will not come in the way of said settlement agreement and addendum thereat being recorded and giving quietus to captioned OSA; that this Court now proceeds to record said settlement agreement and addendum to said settlement agreement for giving a closure to the captioned OSA.
5. To be noted, Mr.V.V.Sivakumar of M/s.Dua Associates who is present in Court represents 'M/s.Axis Bank' [hereinafter 'said bank' for the sake of convenience and clarity].
6. A scanned reproduction of said settlement agreement is as follows : 5/39
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7. Addendum to said agreement is as follows : 33/39
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8. As would be evident from the narrative thus far, both learned counsel submitted that the date of aforementioned addendum is 15.04.2024. It has become necessary to write this, as the scanned reproduction gives only the month and year and we are informed that this was owing to transmission 35/39
and re-transmission between the parties i.e., ESTRA and BWCI.
9. Before we conclude, it has become necessary to advert to two aspects of the matter owing to Clauses 2, 10 and 13 of the said settlement agreement. Two aspects are payment out of deposit lying in Court and handing over of transfer certificates.
10. We are giving the following directions to the Registry : (a) As regards Clause 2, Rs.15.0 crores lying to the credit of captioned OSA will now be paid out to ESTRA without filing a separate payment out application but subject to ESTRA and its counsel adhering to the prescribed procedure;
(b) The payment out will be subject to statutory deductions if any. The payment out shall be made as expeditiously as the business of the Registry would permit but within one week i.e., by 25.06.2024; (c) As regards Clauses 10 and 13, i.e., ultimate transfer of shares to ESTRA subject to receipt of remaining principal by BWCI, Mr.Naveen Kumar Murthi, learned counsel for appellant and Mr.R.Murari, learned senior counsel representing respondent, on 36/39
instructions submit that 'Axis Bank' will be an escrow agent with regard to share certificates which are lying in the Registry of this Court;
(d)The share certificates in its entirety lying in the Registry as regards captioned OSA will be returned to Mr.V.V.Sivakumar, learned counsel for the said bank under due acknowledgement as expeditiously as the business of the Registry would permit but in any event within one week from today i.e., by 25.06.2024. Learned counsel shall adhere to any prescribed procedure in this regard.
11. We are informed that Rs.15.0 crores is lying idle. In other words, it is not in interest yielding deposit.
12. As regards the above directives, Axis Bank will be the escrow agent and as both parties have agreed that said bank will act as escrow in its professional capacity, it will be entitled to collect requisite charges, which shall be borne by ESTRA and BWCI in equal moieties but escrow agents function will obviously stand governed by the agreement between the parties i.e., said settlement agreement and addendum, dated 11.01.2024 and 37/39
15.04.2024.
13. By consent of both sides, captioned OSA is disposed of on the above terms and the aforementioned said settlement agreement and addendum thereat dated 11.01.2024 and 15.04.2024 shall form part of the decree. There shall be no order as to costs. [M.S.,J.] [K.G.T.,J.] 18.06.2024 3/3 Index : Yes / No Speaking order / Non-speaking order ds 38/39
M.SUNDAR. J., and K.GOVINDARAJAN THILAKAVADI.J., ds 18.06.2024 39/39