Orcus Capital Advisors Pvt. Ltd v. Mr. Ajay Chandra

RAJIV SAHAI ENDLAW, J. FEBRUARY 27, 2018 bs

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 27th February, 2018. + CS(COMM) 783/2017 & IAs No.13341/2017 (u/O II R-2 CPC), 13342/2017 (for exemption), 14988/2017 (u/O XXXVII R-3 CPC) & 1361/2017 (u/O XXXVII R-3(5) CPC) ORCUS CAPITAL ADVISORS PVT. LTD. ..... Plaintiff Through: Mr. Rajat Navet and Mr. Kushagra Pandit, Advs. Versus AJAY CHANDRA ..... Defendant Through: Mr. Saket Sikri and Ms. K. Gayatri, Advs. CORAM: HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. The plaintiff has instituted this suit under Order XXXVII of the Code of Civil Procedure, 1908 (CPC) for recovery of Rs.3,65,13,000/- along with pendente lite and future interest @ 18% per annum. 2. The suit was entertained and summons for appearance and on the defendant entering appearance, summons for judgment were served on the defendant and leave to defend application being IA No.1361/2018 has been filed by the defendant and to which the counsel for the plaintiff on 30th January, 2018 stated that no reply was required to be filed. 3. The counsels were partly heard on 30th January, 2018, when during the hearing, proceedings were adjourned to enable the parties to explore the possibility of settlement. 4. No settlement has been arrived at between the parties, according to the counsel for the defendant, for the reason of the defendant being in custody in another case. 5. The counsels have been heard on the application for leave to defend. 6. The plaintiff has instituted this suit pleading (i) that the plaintiff made Inter Corporate Deposits (ICDs) aggregating to Rs.93 crores in Prakausali Investment (India) Private Limited (PIIPL) and May Fair Investments Pvt. Ltd. (MFIPL); (ii) that PIIPL was subsequently amalgamated with May Fair Capital Private Limited (MFCPL) and MFIPL was also subsequently amalgamated with MFCPL; (iii) that the said ICDs were subsequently converted into term Loan Agreements by way of two separate Loan Agreements, both dated 27th May, 2013; (iv) that the loan granted to PIIPL was in the sum of Rs.63 crores and the loan granted to MFIPL was in the sum of Rs.30 crores; (v) that the defendant also signed the Loan Agreements as a personal guarantor and has also executed two Deeds of Guarantee, both dated 27th May, 2013, and has undertaken as a guarantor to pay the dues under the said Loan Agreements; (vi) that the rate of interest payable under the Loan Agreements was @ 17.5% per annum, to be paid on the last date of every month and the term of loan facility was nine months from the date of the said Agreements with the entire loan being repayable to the plaintiff on or before 26th February, 2014; (vii) that on amalgamation of PIIPL and MFIPL with MFCPL, the loans granted by the plaintiff stood transferred to MFCPL; (viii) that on default on payment of interest, the entire loan became repayable forthwith; (ix) that as on 16th October, 2014, a principal sum of Rs.2,25,00,000/- and interest of Rs.1,10,95,479/- (net of TDS) was due from MFCPL to the plaintiff under the term Loan Agreements; (x) that by way of a confirmation letter dated 16th October, 2014 MFCPL has confirmed a sum of Rs.3,35,95,478/- to be due to the plaintiff; (xi) that MFCPL failed to pay back the outstanding amount on or before 24th December, 2014 as undertaken by way of its confirmation letter dated 16th October, 2014; (xii) that out of the aforesaid loan amount, MFCPL has paid a sum of Rs.92 lakhs to the plaintiff; (xiii) that the plaintiff has initiated winding up proceedings against MFCPL in this Court and in which proceedings also, the dues of Rs.2,25,00,000/- with interest were admitted; (xiv) that in view of the National Company Law Tribunal (NCLT) having allowed application under Section 7 of the Insolvency and Bankruptcy Code, 2016 with respect to MFCPL on 27th June, 2017, an Insolvency Professional has been appointed and moratorium period under Section 14 of the Insolvency Code has come into operation and the plaintiff as such is unable to institute recovery procee