{"id":196236,"date":"2002-09-13T00:00:00","date_gmt":"2002-09-12T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/industrial-development-bank-of-vs-spectrum-power-generation-ltd-on-13-september-2002"},"modified":"2015-07-19T13:04:48","modified_gmt":"2015-07-19T07:34:48","slug":"industrial-development-bank-of-vs-spectrum-power-generation-ltd-on-13-september-2002","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/industrial-development-bank-of-vs-spectrum-power-generation-ltd-on-13-september-2002","title":{"rendered":"Industrial Development Bank Of … vs Spectrum Power Generation Ltd. on 13 September, 2002"},"content":{"rendered":"
Delhi High Court<\/div>\n
Industrial Development Bank Of … vs Spectrum Power Generation Ltd. on 13 September, 2002<\/div>\n
Author: S Agarwal<\/div>\n
Bench: S Agarwal<\/div>\n<\/p>\n
<\/pre>\n
JUDGMENT<\/p>\n
 S.K. Agarwal, J. <\/p>\n
 1.
\nThe plaintiff by this application under Section
\n39 Rules 1 and 2 read with Section 151 of the Code of
\nCivil Procedure, 1908 (for short “CPC”), has prayed for an
\nad-interim injunction directing National Thermal Power
\nCorporation (for short “NTPC”-defendant No. 4) to keep the
\namount received by it from Spectrum Power General Ltd.
\n(for short “SPGL”-defendant No. 1) in pursuance of the
\ncompromise agreement dated 9th April, 2001, in a separate
\ninterest bearing “no lien account”, pending final disposal
\nof the suit.\n<\/p>\n
2. Brief facts are that the Industrial Development
\nBank of India (for short “IDBI”-plaintiff) filed the suit
\nagainst SPGL (defendant No. 1), Jaya Food Industries Ltd.
\n(for short, “JFIL”-defendant No. 2), M. Kishan Rao
\n(defendant No. 3), NTPC (defendant No. 4), Spectrum
\nTechnologies, USA (for short “STUSA”-defendant No. 5) in
\nits capacity as the lead institution representing a
\nconsortium of financial institutions, namely, IFCI, ICICI,
\nLIC, UTI, IIBI, GIC, NIC, NIA, OIC and UII collectively,
\n“the Lenders”. The plaintiff in this suit has challenged
\nthe legality and validity of the Compromise Agreement
\ndated 9.4.2001 being contrary to the conditions of the
\nLoan Agreements and the power of defendant No. 1-SPGL to
\nmake such payment under the compromise agreement or to
\nenter into such a settlement. It is pleaded that SPGL
\n(defendant No. 1) was incorporated under the promoters”
\nagreement between NTPC (a corporation wholly owned by The
\nGovernment of India), STUSA and JFIL; that defendant No. 1
\nSPGL planned to set up 208 MW combined cycle gas based
\npower project in the State of Andhra Pradesh and for this
\npurpose the lenders sanctioned financial assistance to the
\ncompany to the tune of Rs. 326.20 crores, out of which
\nRs. 321.30 crores have already been disbursed, which
\nincludes amount of Rs. 123.29 crores disbursed by IDBI-the
\nplaintiff. The grant of loan by the Lenders to defendant
\nNo. 1-SPGL company was subject to the terms and conditions
\nof the Loan Agreement dated 11th August, 1994 and 17th
\nMay, 1995 (hereinafter referred to as “Loan Agreements”).
\nThe disputes arose amongst promoters. Consequently, STUSA
\nfiled a suit (S.No. 1256\/96), praying for a decree of
\nmandatory injunction directing the Promoters in management
\nto effect necessary amendment sin the Article of
\nAssociation of defendant No. 1 SPGL, so as to bring it in
\nconformity with the requirements of the Promoters
\nAgreement. NTPC also filed a suit (S.No. 1905\/96) praying
\nfor a decree of specific performance directing SPGL
\n(defendant No. 1), and others to perform their obligations
\nas contained in the Promoters Agreement and for a decree
\nof mandatory injunction requiring SPGL to issue and
\ndeliver 77.7 lacs equity shares of NTPC by accepting its
\ncontribution for the same. In these two suits , STUSA and
\nNTPC had also filed applications for grant of interim
\ninjunction which were dismissed. Their appeals were also
\ndismissed. Against the order passed by the Division
\nBench, Special Leave Petitions (for short, SLPs), were
\nfiled in the Supreme Court. While appeals were pending in
\nthe High Court, in pursuance of the order dated 28th
\nAugust, 1998, plaintiff-IDBI convened two meetings of the
\npromoters of the company to resolve their inter-se
\ndisputes. However, it could not succeed. In the
\nmeetings, during discussion, it was indicated by the
\nrepresentative of NTPC that it was considering to opt out
\nof the project, but it was never mentioned by either NTPC
\nor other party that negotiations for out of court
\nsettlement was also being exclusively held amongst JFIL
\nand NTPC. The plaintiff-IDBI was always under the
\nimpression that promoters namely JFIL and NTPC were
\nnegotiating for a settlement without any financial
\ninvolvements of defendant No. 1 (SPGL). However, in the
\nSupreme Court JFIL and NTPC filed a compromise agreement
\ndated 9th April, 2001 whereby defendant No. 1 (SPGL
\ncompany) agreed to pay a sum of Rs. 41.57 crores to NTPC,
\nin 12 monthly Installments together with interest @ 9% per
\nannum from 1.1.1999. The plaintiff was taken by surprise
\nas such a huge amount, the company SPGL could not be made
\nto pay in consideration of NTPC agreeing to withdraw its
\nsuit. This was in additional to Rs. 15.0 crores already paid
\nby the company towards the costs of land, clearances,
\npermission, technical services etc. The plaintiff was not
\na party before the Supreme Court. The Compromise
\nAgreement was taken on record and SLP was disposed of by
\norder dated 9th April, 2001. However it was clarified
\nthat taking of the Compromise Agreement on record or
\nacceptance of undertakings etc. would not preclude
\nparties affected by it from challenging in an appropriate
\ncourt, the authority of defendant No. 1-SPGL to make such
\npayment to NTPC or to enter into any such settlement and
\nthat the competent court shall decide the same on its own
\nmerits, without being influenced by the fact that terms of
\nthe compromise agreement are taken on record and\/or that
\nundertakings have been accepted, by the Supreme Court.\n<\/p>\n
3. It is further pleaded that thereafter in April,
\n2001, STUSA (defendant No. 5) filed a suit (S.No.
\n765\/2001) for restraining SPGL in pursuance of Compromise
\nAgreement dated 9.4.2001 to make any payment of NTPC. By
\norders dated 22.3.2002 the intervention application of the
\nIDBI was dismissed by observing that the prayers made by
\nfinancial institutions were beyond the prayer made in the
\nsuit and that the financial institutions could file
\nseparate suits. On the basis of the above averments, the
\nplaintiff is seeking ad interim relief directing the NTPC
\nto keep the amount received by it in an interest bearing
\nno lien account. Defendants 1 & 3 and 4 have filed the
\nreply opposing the same (hereinafter “contesting
\ndefendants”).\n<\/p>\n
4. NTPC-defendant No. 4 in its reply has pleased
\nthat the plaintiff has failed to make out their prima
\nfacie case and the balance of convenience in their favor;
\nthat the Compromise Agreement dated 9th April, 2001 is
\nvalid, lawful and that Mr. M. Kishan Rao, Managing Director,
\non behalf of defendant No. 2-JFIL had given an undertaking
\nstating that if the company cannot make payment at any
\nstage or is prevented from making payment then he shall
\nmake payment personally of the amount, as per terms of the
\nCompromise Agreement. The undertakings were accepted by
\nthe Supreme Court on 9.4.2001 while taking Compromise
\nAgreement on record. It is also pleaded that defendant
\nNo. 5-STUSA filed a suit for declaration, perpetual and
\nmandatory injunction (S.No. 765\/2000) praying for similar
\nrelief. On 21st September, 2001 their application for
\ninterim relief was disposed of directing SPGL to continue
\nto pay Installment to NTPC; that the unsecured loan of
\nRs. 27.0 crores advanced by defendant No. 2-JFIL to
\ndefendant No. 1-SPGL, shall remain with the company as
\nguarantee of JFIL till the final outcome of the suit an
\nfor payment of remaining Installments, banking guarantees
\nwere ordered to be furnished. In appeal (FAO(OS) Nos.
\n426-427\/2001) last direction by which JFIL and M. Kishan
\nRao were directed to furnish bank guarantees was set
\naside. And in appeal of STUSA (FAO(SO) No. 518\/2201) it
\nwas ordered that undertaking furnished in pursuance of the
\norder of the Supreme Court dated 9th April, 2001 shall
\ncontinue to remain in force till the decision in the suit
\nfiled by them. The plaintiff-IDBI’s application for
\nintervention was also declined.\n<\/p>\n
5. It is further pleaded that the amount of
\ncompensation was agreed to be paid on the basis of the
\nreport of CRISIL, an independent agency, as an
\n“opportunity costs” to the NTPC and its associated
\ngood-will. It is denied that it was in the nature of a
\npayment being made by one promoter to opt out another
\npromoter and that if on trial of the suit it is found that
\nthe payment should not have been made, in that eventuality
\nthe interest of SPGL is fully safeguarded by the
\nundertakings of defendant-JFIL and M. Kishan Rao, to pay
\nthe amount to the company; that it was for this reason
\nthat the court directed that the unsecured loan of Rs. 27
\ncrores advanced by JFIL to SPGL shall remain with the
\ncompany as guarantee of JFIL till the final outcome of the
\nsuit filed by STUSA. It is also pleaded that NTPC is a
\nprofit making undertaking company of the Government of
\nIndia. In the year 2000-2001 a net profit after tax, of
\nthe company is R.s 3733.80 crores and in case any decree is
\npassed against NTPC it would be in a position to comply
\nwith the decree. Defendant No. 1-SPGL in its reply has
\nalso taken the similar stand. Reliance is placed on the
\nobservations made in order dated 21st September, 2001
\nwhile disposing of interim application in the suit filed
\nby STUSA.\n<\/p>\n
6. I have heard the learned counsel for the parties
\nand have considered their respective arguments. At the
\noutset, it would be useful to refer to the law regarding
\ngrant of interlocutory injunctions, during pendency of the
\nproceedings, which is well settled by several
\nauthoritative pronouncements of the Apex Court as well as
\nof this Court. In  Gujarat Bottling Co. Ltd. and Ors. v.
\nCoca Cola Co. & Ors.<\/a>  it was held:\n<\/p>\n
“The grant of an interlocutory injunction
\nduring the pendency of legal proceedings is
\na matter requiring the exercise of
\ndiscretion of the court while exercising the
\ndiscretion the court applies the following
\ntests – (i) whether the plaintiff has a
\nprima facie case; (ii) whether the balance
\nof convenience is in favor of the
\nplaintiff; and (iii) whether the plaintiff
\nwould suffer an irreparable injury if his
\nprayer for interlocutory injunction is
\ndisallowed. The decision whether or not to
\ngrant an interlocutory injunction has to be
\ntaken at a time when the existence of the
\nlegal right assailed by the plaintiff and
\nits alleged violation are both contested and
\nuncertain and remain uncertain till they are
\nestablished at the trial on evidence.
\nRelief by way of interlocutory injunction is
\ngranted to mitigate the risk of injustice to
\nthat plaintiff during the period before the
\nuncertainty could be resolved. The object
\nof the interlocutory injunction is to
\nprotect the plaintiff against injury by
\nviolation of his right for which he could
\nnot be adequately compensated in damages
\nrecoverable in the action if the uncertainty
\nwere resolved in his favor at the trial.
\nThe need for such protection has, however,
\nto be weighed against the corresponding need
\nof the defendant to be protected against
\ninjury resulting from his having been
\nprevented from exercising his own legal
\nrights for which he could not be adequately
\ncompensated.”\n<\/p>\n
7. In this case, the plaintiff has challenged the<\/p>\n
legality and validity of the compromise agreement dated
\n9th April, 2001 on the ground that the same is violative
\nof the conditions of the loan agreement particularly
\nSection 7.3(2). On the other hand, case of the defendants
\nis that the loan agreements do not prohibit compromise
\nbetween the defendants and NTPC. This section, inter
\nalia, provides that the borrower will not issue any
\ndebenture or raise any loan or change capital structure of
\nthe company or crate any charge on the assets or give any
\nguarantee without prior approval of Lead Institutions.
\nSections 7.3(2) of Loan Agreements runs as under:-\n<\/p>\n
Section 7.3  GENERAL COVENANTS <\/p>\n
 The borrower shall, <\/p>\n
 (i) xxxxx  <\/p>\n
(ii)  LOANS AND DEBENTURES <\/p>\n
Not issue any debentures, raise any loans,
\naccept deposits from public, issue equity
\nor preference capital, change its
\ncapital-structure or create any charge or
\nits assets or give any guarantees without
\nthe prior approval of the Lead
\nInstitution. This provision shall not
\napply to normal trade guarantees or
\ntemporary loans and advances granted to
\nstaff or contractors or suppliers in the
\nordinary course of business or to raising
\nof unsecured loans, overdrafts, cash
\ncredit or other facilities from banks in
\nthe ordinary course of business.\n<\/p>\n
 (iii) to (xii) xxxxx   <\/p>\n
 (xiii)  MERGER, CONSOLIDATION ETC.\n<\/p>\n
 Not undertake or permit any merger,
\nconsolidation, reorganisation scheme of
\narrangement or compromise with its
\ncreditors or shareholder or effect any
\nscheme of amalgamation or reconstruction.\n<\/p>\n
(xiv) to (xvii) xxxxx   <\/p>\n
8. Analysis of the above Section shows, that it
\nconsists of two parts. First part is that the borrower is
\nprohibited from issuing any debenture, raise any loan, accept
\nany deposit from public, issue equity or preferential
\ncapital, change in its capital structure, create any charge
\non the assets, or give any guarantee without prior “approval”
\nof the Lead Institutions. The second part is the proviso to
\nthe first. It provides that conditions contained in the
\nfirst part would not apply to the normal trade guarantees,
\ntemporary loans and advances granted to the staff or
\ncontractors or suppliers in ordinary course of business or to
\nraising of unsecured loans, overdrafts, cash credit or other
\nfacilities from banks ” in the ordinary course of business”.
\nThus, the restrictions contained in this section only apply
\nwhen the capital structure etc. of the company is sought to
\nbe changed. These restrictions would have no application to
\nthe day-to-day business transactions. The argument that if
\nthe plaintiff’s interpretation of the loan agreement is
\naccepted then the borrower would have to take permission of
\nthe lenders even for buying furniture for the company, is
\nwithout merit.\n<\/p>\n
9. Learned counsel for plaintiff argued that giving
\nof Rs. 52.0 crores by the company to NTPC in terms of the
\ncompromise has changed the capital structure of the company,
\ntherefore, sanction of the Lead Institutions was required.
\nLearned counsel for defendants argued to the contrary that
\nthe said payment made by the company to NTPC in terms of
\ncompromise does not change its capital structure. Black’s
\nLaw Dictionary (Sixth Edition) defines “capital structure” as
\nfollows:-\n<\/p>\n
“Capital structure. The composition of a
\ncorporation’s equities; the relative
\nproportions of short-term debt, long-term
\ndebt, and owner’s equity. In finance the
\ntotal of bonds (or long-term money) and
\nownership interests in a corporation; that is,
\nthe stock accounts and surplus. See also
\nCapitalization.”\n<\/p>\n
In the plaint it is pleaded that as a result of
\nthe said payment, coupled with non-availability of equity
\ncapital, the debt equity ratio of the company has been
\ndisturbed. The same is 84:16 as against 70:30 as per the
\ninstitutional norms. Para 19 of the plain reads:-\n<\/p>\n
“19) That the stake of the Financial Institutions
\nin the project is much higher than that of all
\nthe equity holders, what to talk about JFIL
\nGroup and hence the Financial Institutions are
\nvitally interested in the affairs of Defendant
\nNo. 1-Company. In brief, the investment of
\ndifferent stake holders in the project is as
\nunder:-\n<\/p>\n
  EQUITY CAPITAL<\/p>\n
  Bambino\u00a0Group<\/p>\n
  32.69\u00a0Crores<\/p>\n
  Spectrum\u00a0Technologies\u00a0Inc. USA<\/p>\n
  29.19\u00a0Crores<\/p>\n
  Rolls\u00a0Royce<\/p>\n
  56.05 Crores<\/p>\n
  Total<\/p>\n
  117.93\u00a0Crores<\/p>\n
  Financial\u00a0Institutions<\/p>\n
  Rs. 32.1.30\u00a0Crores<\/p>\n
  Banks<\/p>\n
  Rs.4.40.76\u00a0Crores<\/p>\n
  Total<\/p>\n
  Rs.762.06\u00a0Crores<\/p>\n
As a consequence of the above payment
\ncoupled with the non-availability of equity
\ncapital, the debt equity ratio of the Company
\nhas been completed disturbed and is 84:16 as
\nagainst 70:30 as per the institutional norms.”\n<\/p>\n
10. Learned counsel for defendants in support of their
\narguments, heavily relied upon the observations made by
\nHon’ble Mr. Justice J.D. Kapoor in the order dated 21st
\nSeptember, 2001, while disposing of the interim
\napplications in the suit filed by STUSA. The observations
\nare:-\n<\/p>\n
“(a) As regards the apprehension of
\nIDBI, it is misplaced as company-SPGL has not
\nraised any loans nor have accepted any
\ndeposits or issued any equity. The IDBI has
\nonly agreed to this arrangement on the
\nconsideration that the 10% equity shall be
\nshared by the STUSA. This agreement has not
\ncaused any prejudice to the IDBI as the
\ncompany has drawn up the schedule for payment
\nwhich take scare of the interest of the IDBI.\n<\/p>\n
(b) However, as regards the concerns of
\nthe IDBI, it appears to be justified mainly
\nfor the reason that the debt equity ratio
\nshould not be disturbed but so far as the
\nlocus standi of the IDBI to challenge the
\nagreement or undertaking given by M. Krishan
\nRao is concerned it is of doubtful nature as
\nin the instant case IDBI had not only agreed
\nto this arrangement but also participated in
\nmooting the proposal for the agreement that
\n10% equity shall be shared by the
\nplaintiff-STUSA. Moreover the company has
\nalready drawn up the schedule of payment to
\nIDBI.\n<\/p>\n
(c) The present agreement is not a bolt
\nfrom the blue for the plaintiff. It is
\napparent from the affidavit of P. Mohan Ram of
\nIDBI that pursuant to an order of the Division
\nBench of this Court passed way back in the
\nyear 1998, IDBI took initiative to resolve the
\ndispute. It is pertinent to mention here that
\nthe plaintiff is also one of the respondents
\nin the suit filed by the NTPC. Various orders
\npassed in the proceedings show that the matter
\nat one stage was adjourned for NTPC to pass
\nthe resolution as to the settlement between
\nthe NTPC and defendant company and the matter
\nwas adjourned from time to time as the talks
\nfor settlement were going on between the
\nparties that the instant settlement vis-a-vis
\nNTPC fruitified whereas it failed with the
\nplaintiff.\n<\/p>\n
The question whether the agreement is
\nlawful or not is going to be a subject matter
\nof the suit filed by the NTPC wherein an
\napplication under Order 23 Rule 3 CPW has been
\nfiled and is pending consideration. The fact
\nthat IDBI has also not taken away action for 2
\nyears in spite of its Director being one of
\nthe Directors of the Board of the Company
\ncannot be lost sight of. So much so in the
\nyear 1998 itself the proposal for NTPC opting
\nout of the Promoters Agreement was also
\nconsidered at one stage. Negotiations failed
\nas Krishna Rao wanted to remain the Managing
\nDirectors and also wanted the shares at par
\nand not at the market rate.\n<\/p>\n
As regards the concern of the IDBI that
\nagreement if implemented would jeopardise the
\ninterests of the IDBI, it has not basis as IDBI
\nwas involved right from the beginning when
\nmodalities of negotiation were being worked
\nout. Compensation was determined by the
\nCRISIL on the criteria and principles of
\n‘opportunity cost’.\n<\/p>\n
In the teeth of these facts to hold the
\nagreement being bereft of legal authority or
\noutside the ambit of day-to-day affairs for
\nthe purpose of injunction would be
\npreposterous and improper. Furthermore, Board
\nmeeting was held on 30th March, 2001. The
\nBoard was informed about the impugned
\nagreement. On 30th June a copy of the
\nagreement was placed on record. This prima
\nfacie shows that the SPGL was competent to
\nenter into the settlement.\n<\/p>\n
(d) Again the question whether there has
\nbeen a breach of the Promoters Agreement or
\nnot or whether the same cannot be honoured
\nvis-a-vis NTPC are such questions which cannot
\nbe taken into consideration at this stage.
\nThis a subject matter of the SLP pending
\nbefore the Supreme Court as the plaintiff has
\nnot been successful in getting the injunction
\nfor restraining the breach of the promoters
\nagreement. Similarly, the question whether
\nthe agreement comes within the ambit of
\nday-to-day affairs of major policy decision
\nneeds no consideration at stage as the
\nefforts by IDBI to effect negotiation or
\nsettlement commenced more than two years ago
\nin which all the parties including the
\nplaintiff participated. To hold the
\nsettlement at the stage as unauthorised would
\nbe not only negating but also nugating the
\nefforts of IDBI and also the authority of the
\ncompany.”\n<\/p>\n
11. On the basis of above observations, learned
\ncounsel vehemently argued that IDBI was involved right
\nform the very beginning, when the modalities of
\nnegotiations were being worked out amongst the
\nco-promoters; compensation was determined by the CRISIL
\non the criteria of the principles of opportunity cost;
\narguments of IDBI that the compromise was in violation of
\nthe loan agreement was rejected, as efforts by the IDBI to
\neffect negotiations and settlement commenced more than two
\nyears ago in which parties had participated. Learned
\ncounsel argued that it has already been held that the
\ncompromise agreement was not a bolt from the blue, as is
\napparent from the affidavit of P. Mohan Ram of IDBI; in
\npursuant to the orders of Division Bench in 1998, IDBI
\ntook initiation to resolve the dispute; the IDBI had
\nagreed on consideration that 10% of equity shall be shared
\nby STUSA and that the agreement has not caused any
\nprejudice to the IDBI, as the company had drawn up the
\nschedule for payment which take scare of the interest of
\nthe IDBI. Thus, the IDBI cannot be heard at this stage
\nthat the compromise agreement was in violation of the
\nlender agreement. Learned counsel for the plaintiff
\nargued to the contrary.\n<\/p>\n
12. It may be re-called that by orders dated 21st
\nSeptember, 2001, while disposing of interim application,
\nit was ordered (i) that the company shall continue to pay
\nInstallments to NTPC (ii) that the unsecured loan of
\nRs. 27.0 crores advanced by JFIL to SPGL shall remain with
\nthe company as guarantee of JFIL till the disposal of the
\nsuit of STUSA; and (iii) that for the remaining amount of
\nInstallments JFIL was directed to furnish bank guarantees.
\nAgainst this order, three different appeals were filed.
\nBy orders dated 22nd March, 2002, Division Bench of this
\nCourt, set aside the directions whereby the JFIL and
\nM. Kishan Rao were asked to furnish bank guarantees (Civil
\nAppeal Nos. 426-27\/2001). And in the appeal filed by STUSA
\nit was ordered that the undertakings furnished by JFIL and
\nM. Kishan Rao, in pursuance of orders dated 9.4.2001 by the
\nSupreme Court shall remain in force until decision of the
\nsuit field by STUSA. On the application filed by
\nplaintiff-IDBI before the appellate court, it was observed
\nthat the prayer made by the Financial Institutions were
\noutside the scope of the suit filed by STUSA, and that
\nFinancial Institutions-IDBI could file its own substantive
\nsuit. Thus, the order dated 21st September 2001 stood
\nmerged in the order passed by the appellate court. After
\nthe order of the Division Bench, the observations made in
\nthe order dated 21st September, 2001 cannot be of any help
\nto the contesting defendants. Reference in this regard
\ncan be made to the Supreme Court decision in  Kunyahmed v.
\nState of Kerala, . Even otherwise,
\nadmittedly, IDBI was not a party to the earlier suits.
\nThe observations were collateral and made while disposing
\nof only interim applications in the suit filed by NTPC and
\nSTUSA. Those suits are based on the rights flowing from
\nthe Promoters’ Agreement, whereas the present suit has
\nbeen filed by IDBI on the basis of the rights emerging
\nfrom the lenders’ Agreement, therefore, in my view, the
\nsaid observations cannot be pressed in service for
\ndetermining issues involved here.\n<\/p>\n
 13. In view of the above, I prima facie find merit
\nin the contention of the plaintiff that payments made by
\nSPGL (defendant No. 1) in terms of compromise agreement
\ndated 9th April, 2001, would change capital structure of
\nthe company, and as such it requires prior approval of the
\nLead Institutions. The “approval” is the act of
\nconfirming, ratifying or sanctioning to something done by
\nanother. “Approval” implies knowledge and exercise of
\ndiscretion after the knowledge. Mere participation at
\nsome stage in the negotiations by the IDBI itself may not
\nbe enough to be termed as the “approval” as envisaged by
\nthe lender agreement.\n<\/p>\n
14. Learned counsel for plaintiff next argued that
\nthe balance of convenience is in its favor, as no
\nprofessional management could have agreed to pay
\nsubstantial amount of Rs. 52.0 crores, to settle the
\ninter-se disputes of the promoters; the action is not
\ntenable in law having regard to the well settled principle
\nthat corporate body is a separate legal entity different
\nfrom the promoters\/shareholders; the compromise agreement
\nwas in violation of Article 7.3(2) of the loan agreement;
\nthe lenders are aggrieved by payments made to NTPC under
\nthe compromise agreement, inasmuch as it has seriously
\naffected the liquidity of defendant No. 1-company and
\nimpaired the capacity of the company to honour its debt
\nservicing obligations to the lenders, under the loan
\nagreement; and that the company has not paid for the fuel
\ncharges to GAIL. It is further argued that the compromise
\nagreement has seriously disturbed the capital structure of
\ndefendant No. 1-company; NTPC which is one of the
\npromoters of defendant No. 1-company had in fact made no
\ncontribution to the capital of the company even though it
\nwas expected to contribute 10% equity share capital of the
\ncompany under the promoters’ agreement in June 1993;
\nhence the payment to NTPC so as to ensure withdrawal of
\nNTPC from defendant No. 1-company is contrary to the
\nfinancial health and interest of defendant No. 1-company;
\nKishan Rao, Managing Director, is not competent or
\nauthorised to divert the company’s funds to settle
\ninter-promoters disputes; defendant No. 1-company is not
\nbenefited by such compromise in any manner whatsoever;
\nthat compensation out of the company’s funds amounts to
\nunjust enrichment as NTPC has not even prayed for
\ncompensation or award of damages in the plaint. Learned
\ncounsel for defendants relying upon observations made in
\nthe order dated 21.9.2001, argued to the contrary. For
\nreasons recorded earlier, there is merit in the contention
\nof the plaintiff and balance of convenience is in its
\nfavor.\n<\/p>\n
15. Now the stage is reached to consider whether
\nthe plaintiff would suffer an irreparable loss or injury
\nif the interlocutory injunction is disallowed. Learned
\ncounsel for the plaintiff argued that the defendant
\ncompany SPGL has already made substantial default to the
\nFinancial Institutions regarding payment under the lender
\nagreement; that SPGL is in default to the financial
\ninstitutions, to the extent of Rs. 226.0 crores including
\nthe interest default of Rs. 123.0 crores despite having
\nreceived regular payments for servicing the principal and
\ninterest dues from the financial institutions. It was
\nfurther argued that the share capital of Rs. 32.5 crores
\nwas brought by Kishan Rao Group has already been utilised
\nin the project and equity shares have been allotted in
\nlieu thereof; that 27.5 crores has not been deposited by
\nKishan Rao Group and that out of 27.5 crores, Rs. 10.0
\ncrores each has been raised by Kishan Rao and M. Raghuveer
\nhas been obtained from the banks including Indian Overseas
\nBank. Payment of interest on these amounts are being
\nserviced by the company. This amount is actually a loan
\nto the company, therefore, it cannot be treated as a
\ndeposit. Reference in this regard was made to the letter
\ndated 25th October, 1999 which confirmed that the
\ninterests on loans, are paid entirely by it to the banks.
\nOn the other hand, NTPC has pleaded that it is a profit
\nmaking undertaking of Government of India. Its Annual
\nReport for the year 2000-2001 shows that it had a
\nturn-over of Rs. 19,064.76 crores (an increase of 18.24 per
\ncent over the previous year) and a net profit after tax of
\nRs. 3733.80 crores. The plaintiff has not denied these
\naverments. Therefore, the sound financial condition of
\nthe NTPC stands admitted. The argument that it may go bad
\nat any day in future cannot be accepted in the absence of
\nany such material at present. In view of this, I am not
\ninclined to accept the argument that the plaintiff (which
\nis also a Government undertaking) would suffer irreparable
\nloss and injury if the prayers for interlocutory
\ninjunction is disallowed.\n<\/p>\n
For the foregoing reasons, a case for grant of
\ninterim injunction is not made out. However, in the
\ninterest of justice, it is ordered that the undertaking
\nfurnished in pursuant to the orders of the Supreme Court
\ndated 9th April, 2001 would continue to hold good till
\nfinal disposal of this suit. Further the unsecured loan
\nof Rs. 27.0 crores advanced by the JFIL to SPGL shall also
\nremain with the company as guarantee till final outcome of
\nthe suit.\n<\/p>\n
With the above observations, application stands
\ndisposed of. The observations made herein, are prima
\nfacie and will not prejudice any of the parties during the
\ntrial of the suit on merits.<\/p>\n","protected":false},"excerpt":{"rendered":"
Delhi High Court Industrial Development Bank Of … vs Spectrum Power Generation Ltd. on 13 September, 2002 Author: S Agarwal Bench: S Agarwal JUDGMENT S.K. Agarwal, J. 1. The plaintiff by this application under Section 39 Rules 1 and 2 read with Section 151 of the Code of Civil Procedure, 1908 (for short “CPC”), has […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[14,8],"tags":[],"class_list":["post-196236","post","type-post","status-publish","format-standard","hentry","category-delhi-high-court","category-high-court"],"yoast_head":"\nIndustrial Development Bank Of ... vs Spectrum Power Generation Ltd. on 13 September, 2002 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/industrial-development-bank-of-vs-spectrum-power-generation-ltd-on-13-september-2002\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Industrial Development Bank Of ... vs Spectrum Power Generation Ltd. on 13 September, 2002 - 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