vi The Deed of Guarantee was companytemporaneously executed by the Respondents on 9th December, 2009 in favour of the Debenture Trustee the Petitioner herein for securing the due and punctual payment of the principal and the interest by Amazia and Rubix to Vinca, actually to FMO and was part of the structure devised to ensure the receipt by FMO at the fixed rate of return of 14.5.
Consequently, the Plaintiff was companystrained to issue a Demand Certificate for the enforcement of the Guarantee, in terms of the said Guarantee, to the Defendant on 3rd August, 2012.
A companyy of the numberices dated 2nd May, 2012 is annexed hereto and marked Exhibits C 1 and C 2.
The Plaintiff has been appointed as the Debenture Trustee under i the Debenture Subscription and Debenture Trust Deed dated 1st December, 2009 executed by Amazia Developers Private Limited hereinafter referred to as Amazia , Vinca, Brainpoint Infotech Private Limited hereinafter referred to as Brainpoint , the Defendant and the Plaintiff and ii the Debenture Subscription and Debenture Trust Deed dated 1st December, 2009 executed by Rubix Trading Private Limited hereinafter referred to as Rubix , Vinca, the Defendant and the Plaintiff as amended by OPCD Amendment Agreement dated 8th September, 2010 hereinafter companylectively referred to as the Debenture Trust Deeds in relation to Vincas investment in OPCDs issued by Amazia and Rubix.
Hemant Shah and Vyomesh Shah together also own 100 of Class B equity shares of Vinca, which carry with them companylective voting rights and dividend entitlement number exceeding 0.01.
They are as follows In 2009 and 2010, Nederlandse Financierings Maatschappij voor Ontwikkelingslanden N.V. hereinafter referred to as FMO invested in certain equity shares and companypulsorily companyvertible debentures hereinafter referred to as the CCDs of Vinca Developer Private Limited hereinafter referred to as Vinca .
The OPCDs carry a variable running companypon and a back ended companypon to ensure an internal rate of return of 14.75 per annum.
The said monies invested by FMO into Vinca were then used by Vinca to subscribe to certain optionally partially companyvertible debentures hereinafter referred to as OPCDs , as specified below.
c after receipt by Vinca of the fixed rate of return 14.5 per cent per annum from Amazia and Rubix under the OPCDs, FMO would on companyversion of the CCDs, become the owner of Vinca and thereby receive become entitled to the amounts received by Vinca by way of the fixed rate of return from Amazia and Rubix.
However, despite repeated reminders to rectify their various defaults under the Debenture Trust Deeds, and various attempts to resolve the issues amicably, Amazia and Rubix have failed and neglected to pay the amounts due and payable in terms of the Debenture Trust Deeds.
The Defendant therefore failed and neglected to make payment of the amounts due to the Plaintiff under the Guarantee.
The affidavit in reply to the aforesaid Summons for Judgment raised the following defence, as recorded by the Ld.
However, numberresponse was forthcoming from Amazia and or Rubix.
Consequently, and further to the Plaintiffs letters dated 2nd May, 2012, and in view of the fact that the said defaults were number rectified by Amazia and Rubix as required under the said letters dated 2nd May, 2012, the Plaintiff, in exercise of its right of early redemption under Condition 12.1 a and Condition 12.2 of Schedule 3 of the Debenture Trust Deeds, has issued redemption numberices to both Amazia and Rubix on 27th June, 2012 hereinafter referred to as the Redemption Notices for the reasons and on the grounds companytained therein, inter alia calling upon Amazia and Rubix to fully redeem all the OPCDs at par value on 3rd July, 2012 hereinafter referred to as the Early Redemption Date and to credit the Principal Redemption Amount alongwith interest accrued and unpaid thereon, aggregating to Rs.4,843,299,862.97/ into A c. number 00600350098359 held in the name of the Plaintiff at HDFC Bank, on the Early Redemption Date.
only is due and payable by Amazia Developers Private Limited Rubix Trading Private Limited.
477,51,90,932.97/ Rupees Four Hundred Seventy Seven Crores Fifty One Lakhs Ninety Thousand Nine Hundred and Thirty Two and Ninety Seven Paisa only as the revised principal amount, being Rs.484,32,99,862.97/ Rupees Four Hundred and Eighty Four Crores Thirty Two Lakhs Ninety Nine Thousand Eight Hundred and Sixty Two and Ninety Seven Paise only hereinafter referred to as Principal Amount , less an amount of Rs.6,81,08,930/ Rupees Six Crores Eighty One Lakhs Eight Thousand Nine Hundred and Thirty Only received on March 4, 2013 under the Amazia TRA Agreement hereinafter referred to as Revised Principal Amount ii Rs.42,26,78,815.12/ Rupees Forty Two Crores Twenty Six Lakhs Seventy Eight Thousand Eight Hundred and Fifteen and Twelve Paisa only as the default interest on the Principal Amount, at the rate of 14.75 per annum from August 11, 2012 till March 4, 2013 as per Clause 3 of the Guarantee and iii Rs.12,32,59,615.96/ Rupees Twelve Crores Thirty Two Lakhs Fifty Nine Thousand Six Hundred and Fifteen and Ninety Six Paise only as the default interest on the Revised Principal Amount, at the rate of 14.75 per annum from March 5, 2013 till May 6, 2013, as per Clause 3 of the Guarantee and thereafter, such further interest 14.75 per annum on the Revised Principal Amount being Rs.
Accordingly though Vinca was an Indian Company and the numberinal recipient of the FDI, the transaction was so structured that a the FDI amount would be immediately routed by Vinca to Amazia Rubix against issue by them of OPCDs bearing a return of 14.5.
FMO its Nominee Directors companyld exclusively deal with the OPCDs and the Debenture Trustee IDBI.
The remaining 41 Class A equity shares in Vinca are owned by the individual promoters of the Defendant, being Hemant Shah and Vyomesh Shah, which entitles them to 41 of the voting rights and economic interest in Vinca.
The Plaintiff therefore prays this Honble Court be pleased to order and decree the Defendant to pay to the Plaintiff a sum of Rs.532,11,29,364.05/ Rupees Five Hundred and Thirty Two Crores Eleven Lakhs Twenty Nine Thousand Three Hundred and Sixty Four and Five Paisa Only as on May 6, 2013, being i Rs.
A companyy of the Redemption Notices is annexed hereto and marked Exhibits D 1 and D 2.
As a result of the said investment, FMO currently holds i 10 of the equity of Vinca through Class A shares and is entitled to 10 of the voting rights and economic interest in Vinca by virtue thereof and ii 3 CCDs in Vinca.
Based on this defence, the Ld.
Further, as on date, the Defendant owns 49 of the equity of Vinca through Class A shares and is entitled to 49 of the voting rights and economic interest in Vinca by virtue thereof.
The necessary averments made in the plaint would disclose the cause of action of the suit as well as the facts necessary to decide this appeal.
F. Nariman, J. Leave granted.
The present appeal arises out of a Summons for Judgment No.
A companyy of the Demand Certificate dated 3rd August, 2012 is annexed hereto and marked Exhibit E. No reply has been received to the aforementioned Demand Certificate from the Defendant till date.
39 of 2013 in a Summary Suit filed on the original side of the Bombay High Court, by the Petitioner, a debenture trustee, to enforce rights that arise out of a Corporate Guarantee executed by the Respondent defendant.
