1

$~

* IN THE HIGH COURT OF DELHI AT NEW DELHI

BEFORE

HON'BLE MR. JUSTICE PURUSHAINDRA KUMAR KAURAV

+ O.M.P.(I) (COMM.) 464/2025, I.A. 27581/2025, I.A. 30059/2025

JLT ENERGY 9 SAS

THROUGH ITS AUTHORISED REPRESENTATIVE

HAVING ITS REGISTERED OFFICE AT:

26 RUE ANNET SEGERON 86580 BIARD, FRANCE

.....Petitioner

(Through: Mr. Rajshekhar Rao, Sr. Advocate with Mr. V.P. Singh,

Mr. Asif Ahmed, Ms. Meherunissa Anand, Ms. Shailja Rawal, Mr.

Suneel Kumar, and Ms. Khushi Mittal, Advocates, instructed by AZB

& Partners)

Versus

1. HINDUSTAN CLEAN ENERGY LIMITED

THROUGH ITS AUTHORIZED REPRESENTATIVE

239, OKHLA INDUSTRIAL ESTATE,

PHASE - III, NEW DELHI - 110020

2. PERIDOT POWER VENTURES PRIVATE LIMITED

THROUGH ITS AUTHORIZED REPRESENTATIVE

239, OKHLA INDUSTRIAL ESTATE,

PHASE - III, NEW DELHI - 110020

3. SOLITAIRE BTN SOLAR PRIVATE LIMITED

THROUGH ITS AUTHORIZED REPRESENTATIVE

239, OKHLA INDUSTRIAL ESTATE,

PHASE - III, NEW DELHI - 110020

4. SUNMARK ENERGY PROJECTS LIMITED

2

THROUGH ITS AUTHORIZED REPRE SENTATIVE

239, OKHLA INDUSTRIAL ESTATE,

PHASE - III, NEW DELHI - 110020

.....Respondents

(Through: Mr. Jayant K. Mehta, Sr. Advocate with Mr. Hemant

Sahai, Mr. Tushar Srivastava, Ms. Pragya Ohri, Ms. Kamya

Sharma, Mr. Harshit Dhamija, Mr. Atul S. Mathur, Prabal Mehrotra,

Mr. Shubhankar, and Mr. Pallav Arora instructed by Khaitan & Co.)

+ O.M.P.(I) (COMM.) 489/2025 & I.A. 29582/2025

1. HINDUSTAN CLEANENERGY LIMITED

THROUGH ITS AUTHORIZED REPRESENTATIVE

239, OKHLA INDUSTRIAL ESTATE,

PHASE - III, NEW DELHI - 110020

2. PERIDOT POWER VENTURES PRIVATE LIMITED

THROUGH ITS AUTHORIZED REPRESENTATIVE

239, OKHLA INDUSTRIAL ESTATE,

PHASE - III, NEW DELHI - 110020

3. SOLITAIRE BTN SOLAR PRIVATE LIMITED

THROUGH ITS AUTHORIZED REPRESENTATIVE

239, OKHLA INDUSTRIAL ESTATE,

PHASE - III, NEW DELHI - 110020

4. SUNMARK ENERGY PROJECTS LIMITED

THROUGH ITS AUTHORIZED REPRESENTATIVE

239, OKHLA INDUSTRIAL ESTATE,

PHASE - III, NEW DELHI – 110020 .....Petitioners

(Through: Mr. Jayant K. Mehta, Sr. Advocate with Mr. Hemant

Sahai, Mr. Tushar Srivastava, Ms. Pragya Ohri, Ms. Kamya

Sharma, Mr. Harshit Dhamija, Mr. Atul S. Mathur, Ms. Prabal

Mehrotra, Mr. Shubhankar, and Mr. Pallav Arora Advocates,

instructed by Khaitan & Co.)

3

Versus

JLT ENERGY 9 SAS

THROUGH ITS AUTHORISED REPRESENTATIVE

HAVING ITS REGISTERED OFFICE AT:

26 RUE ANNET SEGERON 86580 BIARD,

FRANCE ...Respondent

(Through: Mr. Rajshekhar Rao, Sr. Advocate with Mr. V.P. Singh,

Mr. Asif Ahmed, Ms. Meherunissa Anand, Ms. Shailja Rawal, Mr.

Suneel Kumar, and Ms. Khushi Mittal, instructed by Khaitan & Co.)

------------------------------------------------------------------------------------

% Reserved on: 17.12.2025

Pronounced on: 06.01.2026

-----------------------------------------------------------------------------------

J U D G M E N T

INDEX

I. FACTUAL MATRIX ......................................................................................... 4

II. SUBMISSIONS OF THE PARTIES ............................................................... 6

III. ANALYSIS ....................................................................................................... 7

A. THE ARGUMENT OF THE NA CONVERSION CONDITION

PRECEDENT BECOMING A CONDITION SUBSEQUENT .......................... 9

B. THE ARGUMENT OF CP REMAINING UNFULFILLED OWING TO THE

RESPONDENTS‘ FAULT ................................................................................ 20

C. SPECIFIC PERFORMANCE OF THE SAID AGREEMENT ..................... 25

IV. ORDER ........................................................................................................... 31

4

The petitioner has filed the instant petition under Section 9 of the

Arbitration and Conciliation Act, 1996 (hereinafter ―the Act‖) seeking a

prohibitory injunction restraining the respondents from creating any third-

party rights or interest in the assets or securities of respondent nos. 3 and 4,

except as expressly permitted under the Securities Purchase Agreements

dated 31.12.2024 (‗SPAs‘) and with the petitioner‘s prior written consent.

I. FACTUAL MATRIX

2. The petitioner JLT Energy 9 SAS is a company incorporated under

the laws of France, belonging to a multinational group Technique Solaire,

engaged in the business of developing renewable energy projects. The

respondent no. 1 and 2 are Hindustan Cleanenergy Ltd. and Peridot Power

Ventures Ltd. respectively, and they own 100% shareholding of respondent

no. 3 and 4 companies, which own and operate ground-mounted solar power

projects in the State of Tamil Nadu and Bihar respectively.

3. The dispute between the parties emanates from the execution of two

SPAs dated 31.12.2024 (hereinafter ―said SPAs‖) between the petitioner

and respondents for the acquisition of the said solar power projects in the

State of Tamil Nadu (hereinafter ―said Agreement‖/―Tamil Nadu SPA‖)

and Bihar (hereinafter ―Bihar SPA‖). Importantly, the said SPAs are

intrinsically interconnected. Schedule VII of the Bihar SPA stipulates that

the Closing of the Tamil Nadu SPA constitutes a Condition Precedent

(―CP‖) to the Closing of the Bihar SPA. Effectively, therefore, the lis

between the parties pertains to the Tamil Nadu SPA.

5

4. The said SPAs entered into between the parties contain an arbitration

clause at 16.2(b)-(c), which provides that if parties are unable to resolve

their dispute within a period of 30 business days, the same shall be resolved

by arbitration administered by the Singapore International Arbitration

Centre (‗SIAC’) in accordance with the Arbitration Rules of SIAC

(hereinafter ―SIAC Rules‖) for the time being in force. The said arbitration

clause has been invoked by the petitioner, on 07.08.2025 by filing of an

Emergency Relief Application before the SIAC, which ultimately

culminated into the order dated 27.08.2025, containing the dispositive

section of its award, with the detailed award having been passed on

28.08.2025. The prayer made therein was granted by the learned emergency

arbitrator.

5. Learned senior counsel appearing for the petitioner Mr. Rajshekhar

Rao has apprised this Court that the said award has been extended from time

to time, and continues to be in force till date. However, he submits that the

said award would require enforcement proceedings in Indian courts for the

respondents to be meaningfully bound by it, thus the reliefs in the present

Section 9 petition are prayed for.

6. The learned senior counsel were then heard on 03.12.2025,

09.12.2025 and 17.12.2025, and the judgements relied upon by them were

also carefully perused. The submissions advanced by them could be summed

up as under.

6

II. SUBMISSIONS OF THE PARTIES

7. Mr. Rajshekhar Rao, learned senior counsel contends that the

petitioner is ready and willing to perform its obligations under the said

SPAs, and in furtherance of it, is willing to make any payments required, to

display its bona fides. He submits that a strong prima facie case exists in

favour of the petitioner as respondents deliberately caused the non-

fulfilment of the CPs, breached their good faith obligations under the said

SPAs, and evidently caused the said SPAs to collapse owing to their own

fault, of which they cannot be allowed to take benefit.

8. It is further argued that despite the said SPAs, today, having stood

terminated, the same does not prevent an injunctive protective relief from

being granted. It is also contended by Mr. Rao that in actuality the CP

concerning the change of land use, became a condition subsequent (―CS‖)

owing to — (1) a meeting between parties dated 30.01.2025; and/or (2) the

amendment to the Tamil Nadu SPA.

9. Per contra, Mr. Jayant Mehta, learned senior counsel, and for a brief

time Mr. Atul S. Mathur, learned counsel, appearing for the respondents

submit that the said SPAs contain a self-collapsing mechanism under Clause

5.6, by the operation of which the SPAs stood terminated. Learned senior

counsel contends, that there is no prima facie case which the petitioner can

establish, inter alia, owing to the petitioner seeking specific performance of

an agreement which does not subsist as on date. Mr. Mehta submits that the

fate of the SPAs was contingent upon the concerned government authorities

granting permission under the relevant State Act and the Rules made

7

thereunder, and if the same did not fructify, specific performance in relation

to it cannot be granted.

10. Learned senior counsel submits that the CP pertaining to change of

land use was not converted into a CS, and further that it could not have been

converted into the same as the Foreign Exchange Management Act, 1999

(hereinafter ―FEMA‖) prohibits purchase of agricultural land by a non-

resident.

III. ANALYSIS

11. At the outset, it may be considered that though there is an interim

award passed by the emergency arbitrator appointed by SIAC, Mr. Rao

fairly submitted that the petitioner has to independently satisfy the Court of

it being entitled to interim protection. In support of this proposition, the

decision of this Court in Raffles Design International (India) (P) Ltd. v.

Educomp Professional Education Ltd.

1

assumes significance. Para. 105

thereof reads as under:

―105. However, in my view, a party seeking interim measures cannot

be precluded from doing so only for the reason that it had obtained a

similar order from an arbitral tribunal. Needless to state that the

question whether the interim orders should be granted under section

9 of the Act or not would have to be considered by the Courts

independent of the orders passed by the arbitral tribunal. Recourse

to Section 9 of the Act is not available for the purpose of enforcing the

orders of the arbitral tribunal; but that does not mean that the Court

cannot independently apply its mind and grant interim relief in cases

where it is warranted.‖

(Emphasis supplied)

1

2016 SCC OnLine Del 5521.

8

12. In light of the nature of controversy, it becomes necessary to begin

with an examination of the relevant clauses of the said Agreement. Clause 5

of the Tamil Nadu SPA, entered into between the parties, is titled

―Conditions Precedent and Pre-Closing Actions‖ and provides that the

obligations of the petitioner/purchaser and the respondents/sellers to

purchase/sell securities are subject to the fulfillment of each of the

conditions set out in Part A and Part B of Schedule VII (Conditions

Precedent), respectively. Clause 11 of Part A of Schedule VII (Conditions

Precedent) provides the requirement of the respondents converting the

project land into the non-agricultural category (hereinafter ―NA Conversion

Condition‖) and it reads as under:

―The Company shall have obtained: (a) the definitive and final

conversion order for the Project Land to non-agricultural from the

Local Town Panchayat under Section 47 of the Tamil Nadu Town and

Country Planning Act 1971, and (b) a confirmation from the Local

Town Panchayat that all applicable fines and penalties in connection

with utilisation of agricultural land for non-agricultural purposes

have been paid by the Company (collectively, the NA Conversion

Condition).‖

13. The consequence of the non-fulfilment of this condition precedent is

provided for under Clause 5.6 of the said Agreement, which reads as under:

―5.6 It is hereby agreed between the Parties, that in the event the

Conditions Precedent are not fulfilled by: (a) the Sellers and/or the

Company to the Purchaser’s satisfaction (acting reasonably in its sole

discretion) or (b) the Purchaser to the Sellers’ satisfaction (acting

reasonably in its sole discretion) on or before the Closing Long Stop

Date, then this Agreement shall automatically terminate.‖

14. A bare perusal of the aforenoted clause would reveal that in the event

the CPs are not fulfilled, to the other party‘s satisfaction, on or before the

Closing Long Stop Date, the Agreement shall automatically terminate. The

9

parties are ad idem that the NA Conversion Condition has not been fulfilled.

However, Mr. Rao seeks to overcome this non-fulfilment on two grounds—

first, by claiming that the said CP effectively became a CS and, therefore,

Clause 5.6 does not apply; and second, the non-fulfilment of the NA

Conversion Condition is owing to the fault of the respondents, and they

cannot take advantage of their own wrong. Both the contentions require a

careful consideration.

A. THE ARGUMENT OF THE NA CONVERSION CONDITION

PRECEDENT BECOMING A CONDITION SUBSEQUENT

15. The rationale for arguing this point is to exclude the NA Conversion

Condition from the lists of CPs, and, therefore, to seek an escape from the

consequence of its non-fulfilment under Clause 5.6. The claim of the said

condition becoming a CS rests on two submissions. First, that in a meeting

of the parties dated 30.01.2025, the said condition became a CS; and second,

that vide an amendment to the SPA dated 03.06.2025, the said condition

became a CS. Therefore, the submission primary suggests towards a

modification/amendment of the relevant clause of the said Agreement to

convert the CP regarding NA Land Conversion into a CS.

16. Before delving into the documents filed by the parties, the

requirement associated with amendment, modification or waiver of, the

terms of the SPAs may be considered. Clause 17.5 of the said Agreement

requires a modification, amendment, or waiver of any of the provisions of

the contract to be made in writing specifically referring to the contract and

duly signed by each of the parties to the agreement. Further, Clause 17.10

10

titled ―No waiver‖ provides that the rights of the parties under the contract

may be waived only in writing and specifically. The said clauses read as

under:

“17.5 Amendments

No modification, amendment or waiver of any of the provisions of this

Agreement shall be effective unless made in writing specifically

referring to this Agreement and duly signed by each of the Parties.

…

17.10 No waiver

(a) The rights of each Party under this Agreement:

(i) may be exercised as often as necessary;

(ii) except as otherwise expressly provided in this Agreement,

are cumulative and not exclusive of rights and remedies provided by

the Applicable Law; and

(iii) may be waived only in writing and specifically.

(b) Delay in exercising or non-exercise of any such right is not a

waiver of that right.

(c) No forbearance, indulgence or relaxation of any Party at any

time to require performance of any provision of this Agreement shall

in any way affect, diminish or prejudice the right of such Party to

require performance of the same provision, and any waiver or

acquiescence by any Party of any breach of any provision of this

Agreement shall not be construed as a waiver or acquiescence of any

continuing or succeeding breach of such provisions, a waiver of any

right under or arising out of this Agreement or acquiescence to or

recognition of rights and/or position other than as expressly stipulated

in this Agreement.‖

(Emphasis supplied)

17. The only document attached by the petitioner pertaining to the alleged

meeting dated 30.01.2025 is an email dated 30.01.2025 sent by the petitioner

to the respondents containing a minutes of meeting, the same reads as under:

―Dear Ratul,

Thank you for your time earlier today for the meeting.

I am stating out the minutes for everyone’s reference.

1. Hindustan power team is arranging an NA document from

Tehsildar which should (i) satisfy the Lender (REC) condition on

compliance [1% additional penalty as well as continuation of

11

Hindustan power corporate guarantee has to continue until NA

condition is satisfied] (ii) serve as an additional interim document

for us to proceed with the closing.

2. As a CS, Vacant land tax demand issue will be settled by

Hindustan power and then Hindustan power team will approach

the Town planning department for further issuance of the NA

order under Section 47 of the Tamil Nadu Town and Country

Planning Act 1971. Technique Solaire will go ahead with the

holdback amount in escrow as contemplated in the SPA and

proceed with the closing.

3. In case closing can be done before the REC compliance condition

is fulfilled then the hold back amount has to be topped up with the

potential FY2024-25 lender penalty (1% penalty of outstanding).

If REC compliance condition is satisfied before closing then there

is no need for penalty holdback.

With above points in mind, looking forward to receiving the draft

closing documents and escrow bank introduction from your team so as

to take the process forward to closing.‖

18. The said minutes reflect, not an agreement between the parties, but a

proposal made by the petitioner during the course of its interaction with the

respondents. Further, agreement if any, is not in writing, nor is signed by the

parties to the said Agreement. The purported amendment whereby the CP is

claimed/asserted to have been converted into a CS does not comply with the

requirement of Clause 17.5 of the said Agreement, and to that extent, it is

not a modification which can be recognized in the eyes of law.

19. The petitioner further relies upon an alleged acceptance by the

respondent of a draft dated 03.06.2025 to contend that the NA Conversion

Condition became an CS. The facts, at this stage become rather interesting.

20. The parties have admitted that the Closing Long Stop Date (‗CLSD‘)

under the said SPAs, which originally stood at 30.04.2025 was extended to

31.05.2025 with mutual consent. There is, however, a dispute whether the

CLSD was extended till 30.06.2025. The said extension was provided for in

12

a draft incorporating an amendment to the said Agreement (hereinafter ―said

Amendment‖), which also as per the petitioner provided for, inter alia, the

NA Conversion Condition to become an CS. Specifically, under the said

Amendment, it may be seen that Clause 2.1(a) provided that the CLSD was

to mean 30.06.2025 under the said Agreement. Further, Clause 2.1(e)

deleted the erstwhile Clause 5.7 of the said Agreement, and substituted it

with a new Clause 5.7, which made the NA Conversion Condition a CS. The

material parts of said Amendment read as under:

―2. AMENDMENTS TO THE SPA

2.1. The amendments to the provisions of the SPA as set out

hereinafter are reflected in italicised typeface.

(a) The definition of Closing Long Stop Date under Clause 1.1 of

the SPA shall be deleted in its entirety and substituted as follows:

“Closing Long Stop Date means 30 June 2025;”

…

(e) Clause 5.7 of the SPA shall be deleted in its entirety and

substituted as follows:

“5.7 NA Conversion Condition

5.7.1. Subject to completion of all other Conditions Precedent, in

case the Sellers are unable to satisfy the NA Conversion Condition

after completion of the Restructuring Exercise, then in such case

the Purchaser shall notify the Sellers of their intention to proceed

with Closing (NA Conversion Event Notice).

5.7.2. Upon receipt of the NA Conversion Event Notice and

subject to compliance with Clause 5.5, the Parties shall proceed

with Closing of the Transaction and the NA Conversion Condition

shall become a Conditions Subsequent which shall be completed

on or before expiry of the Escrow Period (NA Conversion

Extended Period) and holdback an amount of INR 100,000,000

(Indian Rupees One Hundred million only) less any amount paid or

deposited by the Sellers with the Governmental Authority towards

the NA Conversion Conditions (NA Conversion Holdback Amount)

from the Purchase Consideration shall be deposited in the Escrow

Account and shall be payable to the Sellers in the manner and

upon the occurrence of the events specified in Clause 4.4.4(b).

Provided that in case the relevant Governmental Authority reduces

the amount of vacant land tax or other levy payable by the

Company for complying with the NA Conversion Conditions (“NA

13

Reduction Amount”) then such NA Reduction Amount shall stand

reduced from the NA Conversion Holdback Amount and only such

amount remaining after deduction of the NA Reduction Amount

shall be deemed to constitute the NA Conversion Holdback Amount

hereunder.

5.7.3. If the Sellers are unable to procure completion of the NA

Conversion Condition to the reasonable satisfaction of the

Purchaser within the time period specified in Clause 5.7.2, then:

(a) the Purchaser shall have no obligation to pay, and the Sellers

shall not be entitled to receive, the NA Conversion Holdback

Amount; (b) the Purchaser shall be entitled to pursue the NA

Conversion Condition in the manner determined in its sole

discretion, and the Sellers shall reasonably cooperate with the

Purchaser with respect to the completion of the NA Conversion

Condition; and (c) other than as specified in this Clause 5.7.3, the

Sellers shall have no further obligation or liability with respect to

completion of the NA Conversion Condition.‖

21. Before delving into the communication between the parties pertaining

to the said Amendment. A few aspects of the amendment document itself

may be considered.

22. The first page of the said Amendment bears an endorsement at the top

right the following words–―Draft for discussion purposes only RS Revised

Draft – 2 June 2025‖. Subsequently, every page of the said Amendment

contains the words ―Draft for discussion purposes only‖. Internal page 2,

which comes after the opening/cover page of the said amendment, begins

with the words ―To be executed on stamp paper of adequate value‖. Internal

page 7 of the said Amendment then provides the signature page for the

petitioner/purchaser which evinces that the said Amendment was to be

signed by one Mr. Manu Bishnoi, the authorized signatory of the petitioner.

The date importantly, has been left blank. Similarly, internal pages 8, 9, 10

of the said Amendment then provide the signature pages for respondent nos.

1, 2, and 3, to be signed by their respective authorised directors. Again, the

14

signature dates are left empty. Notably, the said Amendment is also left

undated.

23. In terms of the communication between the parties, it appears that on

03.06.2025 at 6:12 PM one Bhavik Oza, from the legal department of

respondent no. 1, sent an email to the petitioner which contained the said

Amendment document. The said email reads as under:

―From: bhavik.oza

Date: Tuesday, 3 June 2025 at 6:12 PM

To: Prashant SHAH

Cc: ashok.gupta, deepshikha.singh, sandeep.kaushik, lalit.s, Manu

BISHNOI, punit.agrawal

Subject: RE: Sanctions from REC- Amendment in SPA

Dear Prashant,

Please find attached the final draft of the Agreement.

Bhavik Oza

Legal

Hindustan Power‖

24. The said email was replied to on the very same day at 6:17 PM by one

Manu Bishnoi, the representative of the petitioner, stating that the

amendment is acceptable and that the petitioner await the respondents‘

instructions to sign. The said email reads as under:

“From: Manu BISHNOI

Sent: Tuesday, June 3, 2025 6:17 PM

To: bhavik.oza; deepshikha.singh; Prashant SHAH

Cc: ashok.gupta; sandeep.kaushik; lalit.jain; punit.agrawal; Gautier

FRANTZ

Subject: RE: Sanctions from REC- Amendment in SPA

Hello Bhavik,

Thanks for sharing the final amendment draft. We confirm the

15

amendment is good to go from our side. Based on my call with

Deepshikha, we further await your instructions to sign.

Best Regards/Cordialement

Manu Bishnoi

Director, India”

(Emphasis supplied)

25. Thereafter, on 05.06.2022 i.e., about two days after the last email, the

petitioner, through its legal counsel one Prashant Shah sent an email to the

respondents attaching a revised draft of the amendment agreement to the

said Agreement. The said email reads as under:

―From: Prashant SHAH

Sent: 05 June 2025 16:22

To: Manu BISHNOI; bhavik.oza; deepshikha.singh

Cc: ashok.gupta; sandeep.kaushik; lalit.jain; punit.agrawal; Gautier

FRANTZ

Subject: Re: Sanctions from REC- Amendment in SPA

Attachments: First Amendment Agreement (Solitaire SPA) 5 June

2025 VPS Revised.docx

Dear all,

Please see attached the revised draft of the Amendment Agreement for

Tamil Nadu basis our discussions yesterday.

Please do let us know should you wish to discuss. Look forward to

hearing from you soon.

Best regards,

Prashant‖

26. Notably, in the legal notice dated 23.06.2025 (hereinafter ―said Legal

Notice‖), the petitioner called upon the respondents to, inter alia, sign the

said Amendment, thereby, admitting to its non-execution till then. The

material portion of the said notice reads as under:

―24. …Given Our Client’s continued intent and willingness to

complete the transactions agreed upon, Our Client calls upon the

16

Sellers to undertake the following actions in compliance with their

obligations under the Agreements:

…

(iv) Sellers shall execute the final form amendment agreements (as

attached) as agreed by the Parties on June 03, 2025 inter alia

extending the CLSD to June 30, 2025 within three [3] business days of

receiving this Notice.‖

27. The trailing discussion noted above leads to the prima facie

conclusions that — first, the said Amendment document was non-binding,

and contained sufficient textual indications of it being a mere discussion

draft; and second, the parties to the said Agreement have not till date

signed/executed the said Amendment or any other document which

modifies/amends the said SPAs so as to extend the CLSD to 30.06.2025 and

make the NA Conversion Condition a CS. Thus, the draft never attained

finality and assumed binding value, which was contingent upon a specified

procedure. Importantly, the signature pages at internal pages 7-10 of the said

Amendment, appear to have been put to comply with the procedure provided

for under Clause 17.5, which requires each of the parties to the said

Agreement, to sign a given amendment, for it to have effect. The rationale

for the said Legal Notice seeking the execution of the said Amendment, was

again, to comply with the requirements of Clause 17.5. Notably, also, the

email dated 03.06.2025 from the petitioner, by using the expression ―we

further await your instructions to sign‖ further evinces the intention of the

petitioner to be bound by, the mechanism for amendment provided for under

Clause 17.5.

28. Reliance on any other document/conduct as amending the said SPAs

would fall ill of the mechanism provided for under the said Agreement for

17

amendment, and naturally, the will of the parties expressed through the said

Agreement.

29. At this stage, two specific arguments of Mr. Rao may be considered.

First, while relying on Clause 5.8.3 read with Clause 1.2(f) of the said

Agreement, it is contended by the learned senior counsel that the CLSD can

be extended by way of written email exchange, and there is no need for an

amendment to the said Agreement. The said clauses provide, inter alia, that

―the parties may discuss in good faith, to extend the Closing Long Stop Date

by such number of days as may be agreed by the Parties in writing‖. While a

bare perusal of Clause 5.8.3 would reveal its inapplicability, even if for the

sake of analysis, the argument was to be accepted, and the CLSD was

deemed to have been extended till 30.06.2025, it is rather obvious that the

said date has also passed. This argument, in particular, does not relate to the

NA Conversion Condition becoming a CS, and in the absence of that, even

if CLSD was extended till 30.06.2025, the automatic termination provided

for under Clause 5.6 of the said Agreement, would naturally apply. In the

absence of any material supporting the formal conversion of the CP into a

CS, termination would have its intended effect.

30. Secondly, learned senior counsel argued that the NA Conversion

Condition CP was waived by the procedure provided for under the said

Agreement. At the outset, there is no ―specific‖ waiver of the NA

Conversion Condition as is required by Clause 17.10 of the said Agreement.

There is but a purported amendment, which also, falls ill of the procedure

provided for under the said Agreement. Even if it is assumed that a waiver

18

was provided for under the said Agreement, it was to be governed by Clause

17.5 which deals with amendments, and includes within it the act of waiver.

31. Further, independent of the above analysis, it could be observed that

the NA Conversion Condition also does not appear to be a CP which could

be simplicitor waived. Clause 5.3 is the general provision which allows a

party to waive a CP or to treat it as a CS. A waiver of a CP is fundamentally

different from its fulfilment being deferred and it being treated as a CS; and

the said Agreement also takes note of the said distinction in its clauses.

32. Importantly, the NA Conversion Condition is the only CP which is

specifically dealt with in the substantive part of the contract. While the

treatment of other CPs seems to be governed by Clauses 5.3 and 5.5 read

with the VII

th

Schedule. Clause 5.7 titled ―NA Conversion Condition‖, on

the other hand, is the specific Clause dealing with the manner in which the

said CP could be converted into an CS.

2

There is no clause that deals with a

waiver of the said Condition.

33. The NA Conversion Condition being governed by Clause 5.7 would

not fall within the scope of Clause 5.3, as the specific clause would prevail

over the general clause.

3

The lack of a provision dealing with the waiver of

the NA Conversion Condition, also appears to be deliberate.

4

It is, therefore,

the case that the NA Conversion Condition could not have been waived, but

2

The said procedure has also not been followed.

3

Generalia non specialibus derogant, see The Interpretation of Contracts, Sir Kim Lewison, 5th Ed.,

Sweet and Maxwell, Chapter 7, ‗The Canons of Construction‘, Pg. 350 – 352.

4

Expressio unius est exclusio alterius, see The Interpretation of Contracts, Sir Kim Lewison, 5th Ed.,

Sweet and Maxwell, Chapter 7, ‗The Canons of Construction‘, Pg. 352-358.

19

only converted into a CS as per the mechanism provided for under Clause

5.7.

34. It is possible to also contend that the requirement under the said

Agreement, for an amendment to be signed by the parties, could itself be

amended through the conduct of the parties. However, the petitioner‘s email

dated 03.06.2025 as also the said Legal Notice, evince the petitioner not

having amended/waived such a requirement, assuming such an

amendment/waiver is possible in law.

35. It is important to clarify that the finding qua the NA Conversion

Condition not being capable of being waived is an independent and

additional ground, which in exclusion to the findings detailed in paras 29

and 30, which assumes the said CP to be capable of being waived, but

ultimately not complying with the requirements of a waiver under the said

Agreement. Be that as it may, either way the grounds of waiver or

amendment is not made out.

36. Further, it also appears that the decision of the respondents to not

extend the CLSD to 30.06.2025 was a conscious commercial decision

undertaken by them. The scheme of the transaction, as it bears from the

Agreement, appears to be a fast paced acquisition of shares contingent upon

the NA Conversion Condition being granted, and but for that happening, the

SPA collapsing. For this reason the purchase price under the said Agreement

was fixed as on 01.01.2024 and no advance money was paid to the

respondents. Naturally, a given party may want to get out of a deal which

has lasted its course, and which did not ultimately fructify.

20

37. The reliance placed by Mr. Rao on Trimex International FZE Ltd. v.

Vedanta Aluminium Ltd.

5

is also misplaced as the said case related to the

issue of whether an arbitration agreement has come into existence owing to

email exchanges. The said case did not deal with the issue of an amendment

undertaken in violation of the express procedure provided for in the contract

itself.

38. From the discussion above, it could prima facie be concluded that the

NA Conversion Condition neither became a CS nor was the CLSD extended

to 30.06.2025. In light of the this finding, the issue as to whether the NA

Conversion Condition could have ever become a CS owing to it seeking

non-compliance with FEMA need not be gone into. However, if the same is

considered appropriate, the learned arbitrator, if he is called upon to

determine, may adjudicate upon it without being influenced by this Court‘s

observations.

B. THE ARGUMENT OF CP REMAINING UNFULFI LLED OWING

TO THE RESPONDENTS’ FAULT

39. The other ground taken by the petitioner to overcome the rigours of

Clause 5.6 of the said Agreement may now be considered. It is submitted by

the learned senior counsel for the petitioner that the said clause has no

application as the NA Conversion Condition remained unfulfilled owing to

the respondents‘ own fault, and they cannot be allowed to take advantage of

their own wrong.

5

(2010) 3 SCC 1.

21

40. The respondents have issued on 30.01.2025, 12.02.2025, 16.03.2025,

16.05.2025 letters (hereinafter ―said Letters‖) to the Executive Officer,

Gangavarpatti Town Panchayat, Theni District, which is the appropriate

―Local Authority‖ under Rule 2(v) read with Rule 9 of the Tamil Nadu

Change of Land Use (From Agricultural to Non Agricultural Purposes in

Non Planning Areas) Rules, 2017, for the purposes of obtaining a change of

land use for satisfying the NA Conversion Condition.

41. The petitioner contends more was to be done, to which the

respondents have put on record flight tickets of their officers visiting the

office of the concerned authority; the veracity of the intended purpose of the

visits is then doubted by the petitioner. The Court is a bit unsure what really

would satisfy the petitioner. If there was in fact a particular form of effort

that was required on the part of the respondents, the same should have been

provided for in the said Agreement. Additionally, on the respondents bona

fides, it may also be noted that without there being an obligation, in good

faith, the respondents extended the CLSD from 30.04.2025 to 31.05.2025.

42. Thus, at the stage of this Section 9 petition, in the absence of evidence

having been led, strictly on the basis of the material on record, a prima facie

conclusion regarding the respondents‘ bad faith cannot be made out.

Assuming, however, that bad faith is indeed made out, the consequences

may be analysed.

43. Clause 5.6 of the said Agreement, does not in itself, create a

distinction between cases where non-fulfilment of CP is due to a party‘s

fault and where it is as a consequence of no-fault. The said clause

22

categorically provides that in the event a CP is not fulfilled by the sellers

and/or the company (i.e., the respondents), to the purchaser‘s satisfaction

(acting reasonably in its sole discretion), on or before the CLSD, the

agreement shall automatically terminate. The clause resembles the classic

condition of satisfaction. Chitty on Contracts

6

has dealt with such clauses in

the following words:

―Condition of “satisfaction”

The possibility of excluding the implied term discussed in para. 2-162

above by an express contrary provision⁸⁸⁹ is further illustrated by a

provision making the operation of a contract depend on the

“satisfaction” of one of the parties with the subject-matter or other

aspects relating to the other’s performance.⁸⁹⁰ Thus it has been held

that there was no contract where a house was bought “subject to

satisfactory mortgage”,⁸⁹¹ and where a boat was bought “subject to

satisfactory survey”⁸⁹² it was held that the buyer was not bound if he

expressed his dissatisfaction,⁸⁹³ in spite of the fact that such

expression was a deliberate act on his part which prevented the

occurrence of the condition. The same is true where goods are

bought on approval and the buyer does not approve them,⁸⁹⁴ and

where an offer of employment is made “subject to satisfactory

references”, and the prospective employer does not regard the

references as satisfactory.⁸⁹⁵ There is some apparent conflict in the

authorities on the question whether the law imposes any restriction on

the freedom of action of the party on whose satisfaction the operation

of the contract depends. In one case⁸⁹⁶ a proposed royalty agreement

relating to the use by a manufacturer of an invention was “subject to

detailed evaluation of production and marketing feasibility” by the

manufacturer. It was held that his discretion whether to enter into the

contract was “unfettered by any obligation to act reasonably or in

good faith”⁸⁹⁷ and that, as his satisfaction had not been

communicated⁸⁹⁸ to the other party, the agreement had not acquired

contractual force. On the other hand, where a ship was sold “subject

to satisfactory completion of two trial voyages” it was said that such a

stipulation was to be construed as “subject to bona fides”.⁸⁹⁹ The

distinction between the two lines of cases turns, ultimately, on the

construction of the agreement. Even if this requires the discretion to

be exercised in good faith, it does not follow that it must be exercised

reasonably; the matter may be left to the relevant party’s “subjective

6

Chitty on Contracts, 33rd Ed., Sweet and Maxwell, Volume 1, Pg. 305-306, para. 2-164.

23

decision”.⁹⁰⁰ It has also been held that the party on whose satisfaction

the operation of the contract depends must at least provide facilities

for, or not impede, the inspection referred to in the agreement.⁹⁰¹ Of

course if the result of the inspection is unsatisfactory, the principal

obligation of the contract will not take effect.⁹⁰² ‖

(Emphasis supplied)

44. Evidently, the CP relating to the NA Conversion Condition has not

been fulfilled to the purchaser/petitioner‘s satisfaction, and resultantly, the

other obligations under the contract did not come into effect, and the said

Agreement automatically terminated. Effect must be given to the word

―automatic‖ as it appears in Clause 5.6. If contingencies and carve-outs were

to be read between the stage of a CP(s) not being fulfilled on CLSD, and

that of termination of the said Agreement, the word ―automatic‖ would lose

its meaning. It would be unwise to re-write the terms of the contract, or to

read into it an implied term, where a CP‘s non-fulfilment, owing to the fault

of the other party, would act as an exception to the automatic termination

under Clause 5.6. The court, especially while dealing with matters based on

written contracts, must adopt a hands-off approach from such creative

indulgence which could frustrate the contractual wisdom of the parties.

45. The argument of the respondent not complying with Clause 5.3 may

also be considered at this stage, the said clause reads as under:

―5.3 The Seller and/or the Purchaser (as the case maybe) shall, upon

becoming aware of anything which shall or may prevent any of its

respective Conditions Precedent from being satisfied, shall forthwith

notify the other Party in writing as soon as practicable. The other

Party may, in its sole discretion (acting reasonably) and to the extent

permitted under Applicable Law, waive any or all such Conditions

Precedent in whole or in part, or defer the completion of such

Conditions Precedent by a later date as a Conditions Subsequent,

subject to any indemnification obligation in relation to breach or non-

completion of any such Conditions Precedent as deemed necessary by

24

such other Party.‖

It is contended that the respondents‘ did not inform the petitioner of the

circumstances which would or could have prevented the fulfilment of the

CP, which is a breach of Clause 5.3. Further, under Clause 5.7.1, if the

respondents were unable to satisfy the NA Conversion Condition, they were

to notify, not earlier than 28.02.2025, the petitioner of the same.

46. The respondents‘ case is not that they were prevented by anything, or

they could not, owing to their own disability, obtain the permissions

required to satisfy the NA Conversion Condition. Rather, it is that despite

their efforts, the said permissions could not be obtained. Assuming,

however, that there was in fact a breach of the said Clauses, the consequence

does not appear to be Clause 5.6 becoming infructuous or non-applicable.

Rather, it is the ability of the petitioner to treat the CP as a CS which gets

compromised owing to the conscious drafting of the parties.

47. Clause 5.6, it must be stressed, is without any qualification, caveat, or

proviso. It is, read with Clause 15, a mechanism through which the said

Agreement, would automatically terminate. To use Mr. Mehta‘s words, the

said clause is a self-collapsing mechanism agreed to by the parties to the

contract. Therefore, even assuming there has been a breach of Clauses 5.3

and 5.7.1 of the said Agreement, the same would not prevent the application

of Clause 5.6, as first there is no contractual stipulation which makes Clause

5.6 subject to a compliance with Clauses 5.3 and 5.7.1, and second, the said

Agreement when read as a whole, evinces the primacy of Clause 5.6.

25

48. Having said so, it does not imply that the petitioner is remediless. The

petitioner could have, certainly, sought enforcement of its rights, upon there

being a breach of Clauses 5.3 and 5.7.1, but the said action ought to have

been initiated before Clause 5.6 was triggered. For the purposes of Clause

5.7.1, in light of the findings that the CLSD was extended only till

31.05.2025, there were effectively, three long months with the petitioner to

approach a court of law, and pray for appropriate reliefs. Admittedly, the

same was not done. The petitioner waited for the CLSD to arrive, the

automatic termination to happen, and then ask this Court to resurrect a dead

contract from its ashes. The same reasoning applies to an argument of the

respondents‘ breaching their general obligations, under Clauses 5.4 and 17.9

of the said Agreement, to act in good faith towards each other, to comply

with obligations, including fulfilments of CPs, and refrain from acts which

could damage the lawful rights and interests of the parties, under the said

Agreement.

49. From the discussion above, it can be safely concluded that owing to

the NA Conversion Condition CP not being satisfied to the petitioner‘s

satisfaction, the said Agreement automatically terminated on the CLSD i.e.,

31.05.2025. Before analysing the effect of this conclusion on the reliefs

sought in the instant petition, it would also be apposite to analyse whether,

assuming Clause 5.6 of the said Agreement did not apply, and there was in

fact a breach/fault on the part of the respondents‘, specific performance

could be granted in such a scenario or not.

C. SPECIFIC PERFORMANCE OF THE SAID AGREEMENT

26

50. Specific performance entails a claimant insisting upon, and the Court

in turn directing, the defendant to perform a contract in accordance with its

terms.

7

In the instant case a decree for specific performance of the said

Agreement would naturally, owing to the conclusion reached above that the

NA Conversion Condition did not become a CS, require the said CP to be

satisfied. The respondents‘ would have to satisfy the said condition and get a

conversion order from the Local Town Panchayat, as also a confirmation

from the Local Town Panchayat that all applicable fines and penalties in

connection with the utilisation of agricultural land for non-agricultural

purposes have been paid.

51. It does not, however, appear that specific performance could ever be

granted for such a condition. Reliance may be placed on the decision of the

Supreme Court in Nandkishore Lalbhai Mehta v. New Era Fabrics Pvt.

Ltd. and Ors.

8

, para. 43 of which reads as under:

―43. The submission that the appellant has waived the condition

regarding taking of consent from the labour for the proposed sale and,

therefore, this could not be a ground for cancelling the contract is

misconceived. In the agreement dated 19-10-1977, it was specifically

mentioned that the sale also be subject to your (the defendants) being

able to settle with your labour and your labour agreeing to the sale

contemplated herein and if you are not able to settle with your labour

and to get them to agree to the sale herein contemplated you will not

be bound to complete the sale. The moment labour do not agree to the

sale contemplated, under the terms of the contract, the respondents

were not bound to complete the sale. The maximum period of nine (9)

months does not mean that once the labour had declined to give their

consent for the proposed sale, the contract subsists for a period of

nine (9) months and it cannot be terminated before that period. The

7

See Anson‘s Law of Contract, Sir Jack Beatson, Andrew Burrows, John Cartwright, 29th Ed., Oxford

University Press, Pg. 575 and A Treatise on the Specific Performance of Contracts, Fry L.J., 6th Ed., Pg.

21.

8

(2015) 9 SCC 755.

27

agreement for sale is a contingent agreement depending upon

obtaining permission under Section 22 and Section 27 of the ULC Act,

property being converted from industrial zone to residential use and

settlement with the labour and the labour agreeing to the sale

contemplated therein. If any of the conditions are not fulfilled, the

respondents were not bound to complete the sale and the appellant

was only entitled for return of the money with interest @ 18% p.a.

from the date of refusal of any of the permission or consent or

agreement mentioned above. As in the present case we find that the

Mill Mazdoor Sabha has not given its consent to the proposed sale,

agreement for sale could not have been performed and had ceased.

The appellant is only entitled to refund of the amount along with

interest @ 18% p.a. stipulated therein.‖

Further, in Chitty on Contracts

9

under the heading ―Conditional contracts‖,

the following position of law has been taken note of:

―Conditional contracts

On a principle similar to that stated in para. 27-058 above, an

obligation which, under the contract alleged to give rise to it, is

subject to a condition precedent not within the control of the party

seeking the remedy will not be specifically enforced before the

condition has occurred; here too the making of the order could turn

out to be nugatory if the condition were not satisfied. The occurrence

of the condition removes this obstacle to specific performance.‖

(Emphasis supplied)

52. Granting specific performance of such a contract, and particularly the

NA Conversion Condition, also, effectively amount to compelling the

government authorities, who are not privy to the said Agreement, to grant

the change of land use permission. It is but obvious that such a decree

cannot be granted by a Court. Reliance may be placed on para. 25 of

Puravankara Projects Ltd. v. Hotel Venus International and Ors.

10

which

reads as under:

―25. Government by a contract cannot be compelled to grant

9

Supra note 5, Pg. 2021, para. 27-059.

10

2007 SCC OnLine SC 154.

28

permission. The statutory parameters have to be kept in view. A

condition may be there, as appears to be in present case, to take steps

to obtain permission. An agreement may fail because of absence of

permission. Then it becomes unenforceable.‖

53. Cumulatively, since the petitioner has not been able to overcome the

application of Clause 5.6 of the said Agreement, and the contract between

the parties as on date stands terminated, specific performance for it cannot

be granted. The reason being that there is no breach, as such of the contract,

which would inhere in the petitioner the right to insist upon the performance

of the contract. The automatic termination clause being paramount, shall be

enforced, and the contract would meet a peaceful death.

54. Even otherwise, assuming Clause 5.6 was not attracted, the Court

cannot lose sight of the fact that the satisfaction of NA Conversion

Condition was dependent upon the government authorities granting an

approval, which is beyond the control of the respondents‘, and it is trite that

specific performance for such a contract, cannot be granted.

55. Reverting to the authorities cited by Mr. Rao, the decisions in K.S.

Manjunath v. Moorasavirappa,

11

Narendra Hirawat and Co. v. Sholay

Media Entertainment Pvt. Ltd.,

12

Narendra Hirawat & Co. v. Sholay

Media Entertainment (P) Ltd.,

13

and A. Murugan v. Rainbow Foundation

Ltd.

14

pertain to the determinability of the contract. The said issue did not

really arise in the present case. The findings relating to the said Agreement

not being capable of specific performance is not because of there being an

11

2025 SCC OnLine SC 2378.

12

2020 SCC OnLine Bom 391.

13

(2023) 16 SCC 102.

14

2019 SCC OnLine Mad 37961.

29

inherent flaw in the contract,

15

or it being in the nature of a determinable

contract, but rather because the terms of the contract, particularly Clause 5.6,

are such that the very enforcement of the terms of the said Agreement would

prevent, post its automatic termination, the re-birth of the contract. The

contract has come to an end on its own strength in the manner contemplated

therein, and not due to any factor attributable to either side.

56. The discussion in Annamalai v. Vasanthi

16

at para. 33, was in the

context of whether the plaintiff therein was required to seek a declaratory

relief, and the same has no bearing to the facts of the instant case. Similarly,

DLF Home Developers Limited v. Shipra Estate Limited

17

involved a

clause fundamentally different from those in the said Agreement. The

decision of Global Music Junction (P) Ltd. v. Shatrughan Kumar

18

was

also delivered in the context of the plaintiff therein approaching the Court

during the subsistence of the agreement.

57. The decision of the Bombay High Court in Sekura Roads Ltd. v.

IL&FS Transportation Networks Ltd.,

19

is also distinguishable on facts. In

para. 14 of the judgement, it narrates that there was no provision for an

automatic termination in the agreement in issue; and the observations made

by the learned judge at para. 29 are to be appreciated in that very context.

15

To the contrary, see para. 48 of this judgement.

16

2025 SCC OnLine SC 2300.

17

2021 SCC OnLine Del 4902.

18

2023 SCC OnLine Del 5479.

19

2021 SCC OnLine Bom 13991.

30

58. Lastly, while the principle in Upma Khanna v. Tarun Sawhney,

20

that no person can be allowed to take benefit of their own wrong is not

doubted, the same does not really apply to the instant case. In Upma

Khanna (supra), the agreement to sell therein required the sellers to convert

the land, subject matter of the agreement, from leasehold to freehold under

L&DO. In para 7, the said judgement records that L&DO would not have

executed the conveyance deed unless the demand outstanding in its records

was cleared. This was, unequivocally, not been done by the sellers. It, thus,

allowed the Court, to conclusively arrive at the finding of fault qua the

sellers. In the instance case, as is noted in paras 40-42 of this judgement,

such a view at this stage cannot be taken.

59. Further, even if fault is attributed on the part of the respondents, the

consequence of the fault appears to be provided for in the agreement itself.

Specific performance to enforce the said Agreement, in any case, will not

lie. In light of the discussion above, it is clear that out of the triple test which

a claimant needs to satisfy for an interim injunction, it being a prima facie

case in its favour, balance of convenience, and irreparable injury, the

petitioner has faltered on the very first step. There is no prima facie case

made out for the grant of an interim injunction.

60. However, since the present dispute would be the subject matter of

arbitration to be conducted before the arbitral tribunal. It would be

appropriate to secure the interest of the petitioner insofar as its investment in

securing a credit line is concerned. The petitioner, if in case it succeeds

20

2012 SCC OnLine Del 2716

31

before the tribunal, depending upon the satisfaction of the learned

arbitrators, may be awarded either a decree for specific performance or

damages, but in either case, it becomes important to secure the monies spent

by it in maintaining the credit line to close the SPAs. The amount so spent as

interest payments in maintaining the credit line is, as per the petition,

€208,532/- which is equivalent to INR 2,20,85,783.52/-. The respondents

are, therefore, directed to deposit a lump sum amount of INR 3,00,00,000/-,

or furnish a bank guarantee of an equivalent amount with the arbitral

tribunal, so constituted, within a period of 15 days from today.

61. In light of the submission made by Mr. Mehta in O.M.P. (I) (Comm.)

489/2025, that the fate of their petition is contingent on the outcome of

O.M.P. (I) (Comm.) 464/2025, and that their petition would be infructuous if

the latter petition is dismissed, O.M.P. (I) (Comm.) 489/2025 also, deserves

to be, dismissed.

IV. ORDER

62. Accordingly, the present petition O.M.P. (I) (Comm.) 489/2025 is

disposed of. O.M.P. (I) (Comm.) 464/2025 is hereby dismissed as having

been rendered infructuous. Pending applications, if any, in the said petitions,

also stand disposed of.

PURUSHAINDRA KUMAR KAURAV, J

JANUARY 06, 2026

P