1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION (C) NO. 20417 OF 2017

M/s. DAIICHI SANKYO COMPANY LIMITED …PETITIONER

VERSUS

OSCAR INVESTMENTS LIMITED & ORS. ...RESPONDENTS

WITH

CONTEMPT PETITION (C) NO. 2120 OF 2018

IN

SPECIAL LEAVE PETITION (C) NO. 20417 OF 2017

AND

SUO MOTU CONTEMPT PETITION (C) NO. 4 OF 2019

J U D G M E N T

Uday Umesh Lalit, CJI.

1.The present proceedings arise out of an action initiated by Daiichi Sankyo

Company Limited (hereinafter referred to as “Daiichi”) for enforcing a

Foreign Arbitral Award dated 29.04.2016 made in Singapore and passed

in favour of Daiichi and against 20 Respondents i.e. Respondent 1:

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Malvinder Mohan Singh, Respondent 2: Malvinder Mohan Singh as

Karta of HUF, Respondent No.3: Malvinder Mohan Singh as Trustee of

Bhai Hospital Trust, Respondent No.4: Japna M. Singh, Respondent 5:

Nimrita Singh, Respondent 6: Shivinder Mohan Singh, Respondent 7:

Shivinder Mohan Singh as Karta of HUF, Respondent 8: Aditi Singh,

Respondent 9: Anhad Parvinder Singh, Respondent 10: Kabir Parvinder

Singh, Respondent 11: Udayveer Singh, Respondent 12: Vivan Singh,

Respondent 13: Nimmi Singh, Respondent 14: Oscar Investments Ltd.,

Respondent 15: Malav Holdings Pvt. Ltd., Respondent 16: Modland Wear

Pvt. Ltd., Respondent 17: Fern Healthcare Pvt. Ltd., Respondent 18: ANR

Securities Pvt. Ltd., Respondent 19: RHC Holdings Pvt. Ltd., Respondent

20: Oscar Traders (Partnership Firm) (“Respondents/ Judgment

Debtors"), directing them to jointly and severally pay a sum of

approximately INR 2562 crores with further additional pre-award interest

(4.44%) and post-award interest (5.33%), in Arbitration Case

No.19074/CYK. The Award was challenged in Singapore as well as in

India but the objections were dismissed and the Award became final. In

the proceedings initiated for enforcement of said Award in the High

Court

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, an objection was raised under Section 48 of the Arbitration and

Conciliation Act, 1996 (for short, ‘the Act’). However, said objection

was dismissed except insofar as original respondents No. 5 and 9 to 12,

1 High Court of Delhi at New Delhi.

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who were minors when the award was declared. The further challenge in

this Court to the rejection of the objection did not succeed and Special

Leave Petition (Civil) No. 4276 of 2018 preferred therefrom was

dismissed by this Court on 16.02.2018.

2.In the enforcement proceedings being OMP (EFA) (Comm.) No. 6 of

2016 initiated by Daiichi, an apprehension was expressed that the

Respondents were engaging in designs to move the assets outside the

reach of Daiichi. It was submitted that Fortis Healthcare Holdings

Private Limited (“FHHPL”) was a holding company under the control of

the Respondents and the value of its shares was derived solely from the

value of the downstream operating company- Fortis Healthcare Limited

(“FHL”); and that FHL shares held by FHHPL were being sold/

encumbered by the Respondents. In said proceedings, an undertaking

given by the learned counsel appearing for respondent Nos. 14 and 19

was recorded by the High Court in its order dated 21.06.2017 in

following terms:

“8. Since the petitioner has raised an issue with regard to the

shareholding of Fortis Healthcare Holding Pvt. Ltd. in Fortis Healthcare

Limited, the present order is being restricted to the value of the said

unencumbered asset disclosed in the affidavit.

9. Learned Senior Counsel appearing for respondent no. 14 and 19

submits that the value of the unencumbered asset comprising of equity

share in Fortis Healthcare Holding Private Limited has been disclosed as

Rs.452.60 Crores by respondent no. 14 and Rs.1889.30 crores by

respondent no. 19.

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10. Learned Senior Counsel appearing on behalf of respondent no. 14

and 19 undertakes that, irrespective of any transaction that the said

respondent may enter into, the value as disclosed to the court would not

be, in any manner, hampered or diminished.

11. The effect of the above statement of learned Senior Counsel for

respondent no. 14 and 19 is that the sum of Rs.2841.09 Crores (i.e.

Rs.452.60 + Rs.1889.30 crores) would always be available and

realizable as an asset of respondent no.14 and 19, in Fortis Healthcare

Holding Pvt. Ltd. Towards the satisfaction of the decretal amount as and

when the stages so arises.

12. The statement is taken on record and the undertaking accepted.”

3.In Special Leave Petition (Civil) No.20417 of 2017 the aforestated order

dated 21.06.2017 is under challenge mainly on the ground that rather than

recording said undertaking of the learned counsel, the High Court ought

to have issued appropriate process to secure the assets of those against

whom the Award was passed. As a matter of fact, the undertaking so

recorded in the order dated 21.06.2017 was the fifth assurance /

undertaking given by the learned counsel appearing for respondent Nos.

14 and 19. Previous four such

assurances were recorded by this Court in its judgment and order dated

15.11.2019

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passed in Vinay Prakash Singh vs. Sameer Gehlaut & Ors.

as under:

“Proceedings before the Delhi High Court

The first assurance

4. During the enforcement proceedings, the petitioner filed I.A. No. 6558

of 2016 before the High Court of Delhi praying that the respondents be

restrained from alienating or encumbering their assets. The petitioner

expressed an apprehension that the respondents would fritter away their

assets which would make the award unenforceable. On 24.05.2016 Mr.

2 “The judgement”, for short.

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Kapil Sibal, learned senior counsel appearing for the respondents assured

the High Court that the interest of the petitioner will be protected. Though

this assurance was not recorded by the Court, the same forms a part of the

letter sent by the counsel for petitioner, relevant portion of which reads as

follows:-

“1…Further, while directing that, inter alia, the Arbitration

Award dated 29 April 2016, be kept confidential, a formal

protective order has not been passed by the Hon’ble Court on the

strength of duly instructed oral assurance tendered by Learned

Senior Counsel Mr. Kapil Sibal (appearing for the Respondents)

that the Petitioner’s interest would be protected to the extent of

the total sum awarded under the Arbitral Award dated 29 April

2016, and there would be no fait accompli. Mr. Kapil Sibal had

also submitted that even recording of his personal statement in

the order would affect the respondents’ interest in the share

market as some of his clients are listed in stock exchange.”

It appears that the respondents had urged before the Court that their

assurance should not be recorded in the order of the Court, since that might

affect the value of their shares in the share market. This was the first

assurance given by the respondents to the High Court of Delhi. It would be

pertinent to mention that the fact that such an assurance was made is also

recorded in the order of the High Court dated 23.01.2017 wherein Mr.

Harish N. Salve, learned senior counsel appearing for the respondents 1 to

4 and 13 therein reiterated the assurance given to the Court as recorded in

the letter dated 24.05.2016.

The second assurance

5. On 25.07.2016, the High Court of Delhi passed an order directing the

respondents to disclose the details of their immovable assets and also to

disclose the details of assets that have been alienated and encumbered to

third parties. It appears that during this period reports appeared in various

newspapers that the respondents were disposing their stakes in subsidiary

companies and were also clandestinely disposing of their assets. Left with

no alternative, the petitioner filed an Interlocutory Application being I. A.

No. 618 of 2017 before the High Court of Delhi in which the following

prayer was made: -

a. “Urgently pass an order directing the Respondents to secure the

Award amount by depositing it with the Registrar of the Delhi

High Court or by providing adequate security or by bank

guarantee or by any other means that this Hon’ble Court may

deem fit;

b. Pass an order directing the attachment of the movable and

immovable assets and properties of the Respondents, and any

assets and properties in which the Respondents have any

beneficial interests until the disposal of the present petition, at

least to the extent of the amounts awarded in the Award;

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c. Pass an order restraining the Respondents and their group

companies from selling, alienating or encumbering their movable

or immovable properties/assets in any manner whatsoever;

d. Pass ex-parte, ad interim orders in terms of prayers (a), (b) and

(c) above and confirm the same after notice to the Respondents;”

On 23.01.2017, Mr. Harish N. Salve, learned senior counsel for some of the

respondents before the High Court of Delhi reiterated the assurance given

in the letter dated 24.05.2016 and sought two weeks’ time to furnish an

affidavit by one of the respondents giving the details of assets of all the

respondents. This was the second assurance.

The third assurance

6. The information was not provided in the manner sought by the High

Court which is reflected in the order dated 06.03.2017. The order records

that the respondents have been directed to furnish details of all

unencumbered assets both movable and immovable and not merely the list

of the investments, loans and advances as reflected in the affidavit filed by

the respondents. The respondents were directed to furnish further details

and the counsel for respondents had submitted that this would be done

within 1 week. The High Court in its order dated 06.03.2017 clarified as

follows: -

“8. The Court would like to clarify that the above understanding

by Respondent No.19 of what was required to be furnished in

terms of the order dated 23rd January 2017 is not correct. The

Respondents were in fact required to furnish the information

relating to all the unencumbered assets, both moveable and

immovable, and not merely investments and loans and advances.”

7. On 06.03.2017 Dr. Abhishek Manu Singhvi and Mr. Rajiv Nayar, learned

senior counsel appearing for the respondents made a statement that the

complete details/particulars of all unencumbered assets would be filed

before the Registrar within one week. Certificates of Chartered

Accountants of the respondents were also directed to be filed giving the

following details: -

(i) “the value of all the unencumbered assets, including both

movable and immovable assets of Respondents 14 and 19, both

the book value as well as the fair value;

(ii) where these assets include investments in equity shares,

preference shares and debentures, to indicate to what extent are

these investments in related/group entities of the Respondents and

in companies whose shares are listed and which of these shares

have a condition of right of first refusal.

(iii) a clarification as to how much of the borrowings reflected in

the balance sheets are secured by way of pari passu charge on the

present and future current assets of the companies.”

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The Court again noted the statement of Dr. A.M. Singhvi and Mr. Rajiv

Nayar to the following effect: -

“12. Both Dr. Singhvi and Mr. Nayar state that if any change is

proposed in the status of any of the unencumbered assets whose

details are to be furnished as directed hereinbefore, the

Respondents will first apply to the Court.”

This was the third assurance on behalf of the respondents.

The fourth assurance

8. OIL and RHC filed the certificates disclosing the value of the

unencumbered assets and investments. On 28.02.2017 OIL had

unencumbered assets of a book value of 1953.70 crores and fair value of

1204.78 crores. The fair value of the unencumbered investments of OIL in

listed entities including related/group entities was valued at 854.64 crores.

As far as RHC is concerned, the book value of the unencumbered assets

was shown as 6,346.69 crores and the fair value thereof at 3579.26 crores.

The fair value of unencumbered investments was shown as 3246.76 crores.

Therefore, it was projected by the respondents that these two companies

had a net value which was much more than the amount claimed by the

petitioner.

9. As pointed out earlier FHL is a Public Limited Company in which OIL

and RHC held majority shares amounting to 52.20% through their wholly

owned subsidiary, Fortis Healthcare Holdings Private Limited (FHHPL) up

till March, 2017. On 25.05.2017, FHL issued notice to its shareholders

proposing that the shareholding of foreign investors would be increased.

Immediately, thereafter, the petitioner filed I.A. No. 7142 of 2017 before

the High Court of Delhi praying that OIL and RHC be restrained from

reducing their 100% shareholding in FHHPL and be restrained from

indirectly transferring FHHPL shares in FHL. It was prayed that these two

companies be directed to maintain their holding of 52% in FHHPL. In the

meantime, the disclosures made by FHL to the Bombay Stock Exchange

(BSE) showed that the shareholding of FHHPL in FHL had fallen to 45.7%.

10. On 19.06.2017 the High Court of Delhi recorded in its order that the

learned senior counsel appearing for both OIL and RHC submitted that they

are not seeking to change the status of any unencumbered assets as

disclosed to the Court and the shareholding as disclosed in terms of the

order dated 06.03.2017 shall not be affected. The statement was taken on

record by the High Court and the application disposed of in terms of this

statement. This effectively meant that the Court had restrained OIL and

RHC from reducing their shareholding in FHL through FHHPL in any

manner. Relevant portion of the order passed by the High Court of Delhi

dated 19.06.2017 reads as follows: -

“5. Learned Senior Counsel for respondent no.14 and 19 submits that

they are not seeking to change the status of any unencumbered asset

as disclosed to the court and by mere passing of the impugned

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resolution, the shareholding as disclosed, in terms of order dated

06.03.2017, shall not be affected.

6. The statement is taken on record.

7. In view of the above statement, the application is disposed of.”

This was the fourth assurance given by the respondents.”

4.While dealing with said Special Leave Petition (Civil) No.20417 of 2017,

the proceedings arising from the order dated 21.06.2017 and the orders

passed by this Court were noted by this Court in the Judgment as under:

“Proceedings before this Court

13. The order dated 21.6.2017 of the Delhi High Court was challenged

by the petitioner before this Court and the main contention of the

petitioner was that despite the respondents violating the undertakings

time and again restraint orders were not being passed. In the Special

Leave Petition (Civil) No. 20417 of 2017 filed by the petitioner this

Court passed the following order on 11.08.2017: -

“In the interim it is directed that status quo as on today with

regard to the shareholding of Fortis Healthcare Holding Private

Limited in Fortis Healthcare Limited shall be maintained.”

As per the statutory disclosures made by FHHPL to the BSE and

National Stock Exchange (NSE), it was disclosed that on 14.08.2017,

30,59,260 shares of FHHPL in FHL were pledged in favour of

Indiabulls Housing Finance Limited (IHFL).

14. The petitioner filed a contempt petition being Diary No. 27334 of

2017 alleging that the conduct of the respondents in creating a 13

pledge on 14.08.2017 is violative of the order dated 11.08.2017 In the

meantime on 21.08.2017, OIL filed an application being I.A. 77497 of

2017 for directions permitting sale of encumbered shares to pay its

debts and also prayed that a clarification be issued that the order dated

11.08.2017 is limited to shares other than to those pledged to banks and

financial institutions. In I.A. 77497 of 2017, OIL had stated as follows:

-

“24. It is in these circumstances that the Respondent Company

seeks a direction from this Hon’ble Court that the order dated 11

August 2017 passed by this Hon’ble Court is limited to shares

other than those pledged to the banks and the financial

institutions, the sale of which is being made after obtaining prior

consent of the pledgee(s).

25. It is submitted that the said direction will not, in any event,

have an impact on the potential creditors and that the

availability of these funds will only help pare down the debt.

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This will only raise the value of the shares held by

Respondents.”

Similar application being I.A. No. 76959 of 2017 with identical

paragraphs 24 and 25 was filed by RHC.

15. On 31.08.2017, this Court directed as follows:-

“As the present Special Leave Petition is due to come up for a

fuller consideration on 23rd October, 2017, we do not consider

it necessary to delve into the issues raised at this stage as the

time taken to answer the same would be the same as would be

required to hear and decide the matter finally. We, therefore,

decline to pass any order in the matter, save and except, to put

on record that the interim order of this Court dated 11th August,

2017 was intended to be in respect of both the encumbered and

unencumbered shares of Fortis Healthcare Limited held by

Fortis Healthcare Holding Private Limited. Consequently, there

will be no transfer of the shares to the extent indicated above.

Parties may complete the pleadings in the meantime.

As we have now clarified the previous order of this Court dated

11th August, 2017 no case for contempt is made out. However,

it is needless to say that the present order and the above

clarification would govern the rights of the parties henceforth.

The contempt petition is accordingly disposed of.”

16. On this date, the contempt petition was disposed of and at the same

time it was mentioned that the order and the clarification contained

therein would govern the rights of the parties henceforth. The order

dated 11.08.2017 and 31.08.2017 were later clarified by this Court vide

order dated 15.02.2018 which reads as follows:-

“Having heard the learned counsels for the parties, we clarify

our interim orders dated 11th August, 2017 and 31st August,

2017 to mean that the status quo granted shall not apply to

shares of Fortis Healthcare Limited held by Fortis Healthcare

Holding Pvt. Ltd. as may have been encumbered on or before

the interim orders of this Court dated 11th August, 2017 and

31st August, 2017.

The applications for directions are disposed of in the above terms.”

It would be pertinent to mention that on 23.02.2018, this Court

passed the following order:

“Interim order of this Court dated 15th February, 2018 will

continue to hold the field till the High Court decides the matter.”

17. During the period 06.09.2018 to 18.09.2018 Indiabulls Ventures

Limited (IVL), with which FHHPL maintains a demat account

transferred 12,25,000 shares of FHL held by FHHPL to IHFL. In the

present contempt petition filed in October, 2018, it is alleged that this

transfer of shares was in contempt of the orders dated 11.08.2017,

31.08.2017, 15.02.2018 and 23.02.2018.”

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5.As stated in Paragraph 17 quoted hereinabove, Contempt Petition (C)

No.2120 of 2018 was filed in this Court alleging that transfer of shares

were effected in violation of the orders dated 11.08.2017, 31.08.2017,

15.02.2018 and 23.02.2018 passed by this Court. While dealing with the

matters in issue including the question whether 12,25,000 shares were

pledged prior to 11.08.2017 or not, this Court had set out a chart in

paragraph 3 of the Judgment as under:

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6.The issues whether there was contempt of the orders passed by this Court

and whether pledge of 12,25,000 shares was prior to 11.08.2017 or not

were considered by this Court as under:

“21. The main issue is whether these 12,25,000 shares were pledged prior

to 11.08.2017 or not. At this stage it would be pertinent to mention that

the stand of IHFL that no pledge was created after 11.08.2017 is

incorrect. The disclosure made on 21.08.2017 by FHHPL to BSE and

NSE clearly discloses that 30,59,260 shares of FHL held by FHHPL were

pledged on 14.08.2017 in favour of IHFL. This disclosure of 21.08.2017

is a part of the record and not specifically denied by IHFL.

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22. We may point out that till October 2017, IHFL was not represented in

this Court. However, on 16.08.2017 and 31.08.2017 through emails RHC

informed IHFL about the status quo order passed by this Court. Thus,

IHFL cannot claim that they were not aware of this Court’s orders.

However, from the material on record especially the replies filed by OIL,

RHC, MMS and SMS it is apparent that on 06.09.2018, 07.09.2018,

08.09.2018 IHFL transferred 6,00,000 shares of FHL held by FHHPL.

When RHC came to know about these transfers, it immediately informed

IHFL that transfers were in violation of the orders passed by this Court on

11.09.2017. Despite the communication dated 11.09.2018, IHFL

continued to transfer shares of FHL held by FHHPL on 11.09.2018,

12.09.2018, 14.09.2018, 17.09.2018 and 18.09.2018. On 24.09.2018, this

Court was informed that IHFL had transferred 12,25,000 shares held by

FHHPL in FHL in violation of the Court’s orders. As on 29.09.2018,

another transaction of 9,04,760 shares had taken place. The main issue is

whether 12,25,000 shares were encumbered or not.

23. FHL is a public company and being a listed company, it has to

disclose its shareholding patterns to the stock exchange. A chart showing

share holding pattern of FHHPL in FHL will show the position of

holdings at various stages:

S.

No.

Quarter EndingTotal SharesEncumbered

Shares

Unencumbered

shareholding

of FHHPL in

FHL

1 September 201632,50,91,52927,21,59,9555,29,31,574

2 December 201632,50,91,52925,22,63,2487,28,28,281

3 28th Jan 201732,50,91,52925,19,23,2487,31,68,281

4 March 2017 27,02,41,52923,18,01,4403,84,40,089

5 June 2017 22,22,11,70118,38,96,4843,83,15,217

6 September 201717,80,26,59717,53,94,82026,31,777

7 December 201717,80,26,59717,53,94,82026,31,777

8 March 2018 34,20,4516,89,084 27,31,367

9 June 2018 32,82,8515,51,484 27,31,367

10 September 201811,53,0915,51,484 6,01,607

11 December 201811,53,0915,51,484 6,01,607

It is true that we have to decide whether there is any disobedience of the

orders of this Court, but while doing so we will make reference to the

proceedings before the Delhi High Court and the above chart to show how

both sets of respondents have violated the orders of the courts. As pointed

above, on 19.06.2017 learned counsel for OIL and RHC had made a

statement before the Delhi High Court that the status of unencumbered

assets as disclosed to the court would not be changed and the shareholding

as disclosed in terms of order dated 06.03.2017 shall not be affected.

When the petitioner felt that this order is not being complied with, it filed

contempt petition in the Delhi High Court. Within two days another order

was passed by the Delhi High Court on the basis of the undertaking given

to it.

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24. The above chart would show that in the quarter ending June 2017, the

total shares held by FHHPL in FHL were 22,22,11,701 and the

encumbered shares were 18,38,96,484. Only 3,83,15,217, were

unencumbered.

25. This Court on 11.08.2017 directed that status quo with regard to

shareholding of FHHPL in FHL be maintained. On 31.08.2017 it was

clarified that the order would apply to both encumbered and

unencumbered shares. On 14.08.2017, 30,59,260, unencumbered shares

were pledged in favour of IHFL. As far as this violation of the order dated

11.08.2017 is concerned, in view of the order dated 31.08.2017, the same

stands condoned. This would further mean that the unencumbered shares

should have been reduced to 3,52,55,957.

26. However, the figures of September 2017 show a totally different

situation. The total shareholding has fallen to 17,80,26,597 and the

unencumbered shares to 26,31,777. This means that in addition to

30,59,260 shares pledged on 14.08.2017, 3,26,24,180 number of shares

were encumbered or transferred during this period. There is no explanation

by OIL, RHC, MMS or SMS, as to how these unencumbered shares were

encumbered or transferred in total violation of the orders of the courts.

27. We shall now deal with the issue as to whether IHFL and IVL had

violated the orders of this Court or not? To decide this issue, it would be

appropriate to determine whether IHFL transferred any shares which were

not encumbered up to 14.08.2017.

28. This brings us to the shareholding pattern of FHL for the period

between 01.07.2018 and 30.09.2018 because it is during this period that

IHFL transferred the shares. According to IHFL these 12,25,000 shares

stood pledged with them. Neither in I.A. No. 109493 of 2017 nor in the

reply filed by contemnor nos. 1-8, is there any clear-cut statement as to

how and when the different pledges were created. Reference has been

made to loan documents of 2016 and also to the pledge of 14.08.2017.

According to alleged contemnor nos. 1 to 8, FHL was maintaining a demat

account with IVL. The case set up is that when the value of the shares of

IHFL fell in the market, to make the security equal to the outstanding due

to IHFL, further shares were transferred by IVL to IHFL. It is urged that

this was done in view of the instructions given prior to 11.08.2017 by

FHHPL to IVL and IHFL. These transfers were done on the basis of the

delivery instructions slips executed by IHFL as power of attorney holder

of FHHPL. Even if this be true, the alleged contemnors are guilty of

violating the orders of this Court. The order dated 11.08.2017 clearly

debars FHHPL from changing its shareholding in IHFL. Vide order dated

31.08.2017, it was clarified that the order dated 11.08.2017 would apply

both to encumbered and unencumbered shares. It was only on 15.02.2018

that the order was clarified that it would not apply to shares encumbered

prior to 11.08.2017 and 31.08.2017. A reading of the 3 orders makes it

clear that no unencumbered shares could be charged after 31.08.2017 at

least. Even if FHHPL had given power of attorney empowering IVL to

transfer shares from its demat account to top up the security value, that

power of attorney could not be used to violate the orders of this Court.

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What FHHPL could not do, could obviously not be done by its agent or

attorney. The shares which were used to top up the security after

31.08.2017 were obviously unencumbered shares prior to this date. The

plea is clearly unacceptable and a lame excuse for the wilful disobedience

of the order directing maintenance of status quo which, as modified, was

to apply to the unencumbered shares. The respondents were aware and

cannot claim ignorance of the purported agreements under which they

were required to top-up upon the securities, in case of fall of market value

of the shares. In other words, the interim order passed by this Court was to

apply even if there was a fall in market value of the securities held by the

creditors.

29. To make this position clear, we may refer to the disclosures made by

FHL to BSE. The above chart shows that in the quarter ending 30.06.2018,

FHHPL held 32,82,851 shares in FHL out of which only 5,51,484 were

encumbered, meaning that the balance 27,31,367 were unencumbered

shares. The disclosure of 30.09.2018 and 31.12.2018 both reflect that the

number of encumbered shares have not changed but the total shareholding

of FHHPL in FHL has reduced from 32,82,851 to 11,53,091. This means

that what was transferred were 21,29,760 unencumbered shares and not

encumbered shares. The transaction of 12,25,000 shares therefore is out of

the unencumbered shares because after 31.03.2018, the encumbered shares

were much below 12,25,000.

30. We are not entering into the dispute whether the shares were

transferred on the basis of pre-signed slips or delivery instruction slips

based on the power of attorney but the fact remains that the official record

shows that these shares were not encumbered and the contemnors have

failed to place any cogent material on record to show that these 12,25,000

shares were pledged on or before 31.08.2017.

31. IHFL, in fact, flagrantly violated this Court’s orders and made various

transactions transferring even unencumbered shares. The best course

available to IHFL would have been to approach this Court seeking a

clarification before it made the transfers. This they did not do. We are,

therefore, clearly of the view that IHFL and IVL and their officials i.e.

contemnor nos.1 to 8 knowing fully well that this Court had passed an

order directing status quo to be maintained with regard to the holding of

FHHPL in FHL, violated the order. There can be no manner of doubt that

IHFL and IVL have violated these orders and, therefore, we find

contemnor nos.1-8 who are active directors of IHFL and IVL guilty of

knowingly and wilfully disobeying the orders of this Court and find them

guilty of committing Contempt of Court. We will hear them on the

question of sentence.”

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7.This Court thereafter considered the role of contemnor Nos. 9 and 10,

namely, Malvinder Mohan Singh (MMS) and Shivinder Mohan Singh

(SMS) respectively as follows:

“34. We have given detailed facts of the shareholding of FHHPL in FHL

during the period of quarter ending September 2016 to December 2018

hereinabove. As far as these contemnors are concerned, the first assurance

given by them to the High Court of Delhi was on 24.05.2016 when they

assured the High Court of Delhi that any dealings made by them would

not affect the rights of the petitioners. As on 30.09.2016, FHHPL held

32,50,91,529 shares in FHL out of which 27,21,59,955 shares were

encumbered shares and 5,29,31,574 shares were unencumbered shares.

For various reasons, the total number of shares fell to 22,22,11,701 in

quarter ending June 2017 and the number of encumbered shares became

18,38,96,484 and the unencumbered shares dropped by about 1.5 crore

shares to 3,83,15,217. Even after giving an assurance on 21.06.2017 to the

High Court of Delhi, unencumbered shares were encumbered or

transferred as is apparent from the above table.

35. The petitioner came to this Court when the order dated 11.08.2017 was

passed and clarified by order dated 31.08.2017. During this period also the

total shareholding of FHHPL in FHL fell from 22,22,11,701 to

17,80,26,597 by 4,41,85,104 shares. MMS and SMS have not furnished

any explanation as to how this happened. The contemnors were the best

persons to disclose how this happened. They have not done so. The only

explanation we have before us is about the pledge of 30,59,260 shares on

14.08.2017. It is difficult to ignore this huge drop in shareholding but even

if we were to ignore this, we do not understand how in March 2018, the

shareholding fell to 34,20,451 and finally in December 2018 to 11,53,091.

The undertaking given to the High Court of Delhi was that the

shareholding as on 19.06.2017 and 21.06.2017 would be maintained. On

11.08.2017, this Court injuncted the respondents from changing the

shareholding. On 11.08.2017, this Court passed the order of status quo

referred to above. Despite that specific order, on 14.08.2017 a pledge was

created. This was a violation of the orders of this Court. RHC and OIL

filed applications before this Court on 21.08.2017 praying for

modification of the order and for a direction that the order dated

11.08.2017 may be limited to the shares other than those which already

stood pledged to banks and financial institutions. Though separate

applications have been filed, Paragraph 25 of both the applications are

identical and has been quoted hereinabove.

36. These applications were filed on affidavit and it has held out to this

Court that if the order dated 11.08.2017 is limited to unencumbered shares

it would have no impact on the availability of funds to protect the interest

of the petitioner. On the basis of this statement, the order dated 31.08.2017

was passed and this Court took a lenient view on the matter and disposed

of the contempt without taking any action.

16

37. Unfortunately, the actions of these contemnors clearly show that these

statements were made without the least intention of complying with them.

These contemnors had already prepared a well thought out scheme of

diluting their shareholdings directly or indirectly in FHL to defeat the

rights of the petitioner.

38. The explanations provided are not worth consideration. According to

SMS he was not even taking part in the administration of these companies

and had gone into religious service. This is belied from the fact that he has

been attending most of the meetings of the Board of Directors. The next

defence taken by both the contemnors is that they lost control over the

companies because the encumbered shares were sold. As pointed out

above it is not only the encumbered shares but also the unencumbered

shares which have been transferred. In December 2017, the unencumbered

shares of FHHPL in FHL were 26,31,777 and in December, 2018 there

were only 6,01,607 unencumbered shares. This shows beyond any manner

of doubt that there has been wilful violation of the orders of this Court. It

is apparent that the contemnors knowingly and willingly lost control of

FHL.

39. A litigant should always be truthful and honest in court. One who

seeks equity must not hide any relevant material. In the present case, the

petitioner has violated the undertakings given to the Delhi High Court as

also the orders of this Court. The Delhi High Court will deal with the issue

in so far as the undertakings made before it are concerned. We have no

doubt in our mind that contemnor nos.9 and 10 have also wilfully and

contumaciously disobeyed the orders of this Court. What has happened

during the period when this matter has been pending in this Court is that

the shareholdings of FHHPL, which is wholly owned by OIL and RHC

which in turn are controlled by SMS and MMS, have virtually vanished in

FHL. FHHPL owns no shares in FHL now. It may be true that IHH

Healthcare Bhd. (Malaysian Company) through its actually owned

subsidiary Northern TK Venture Pte Ltd. is now the majority stake holder

but that is due to allotment of preferential shares. In addition to the

preferential shares allotted to them, the shares which were owned by MMS

and SMS through their holdings in FHHPL in FHL have vanished into thin

air and the only conclusion which we can draw is that this was a well

thought out plan to deprive the petitioner from the amounts due to it.

40. No person or institution howsoever powerful, can be permitted to

misuse the process of the Court. Contempt of court can be committed in

various ways. Civil contempt is defined under the Contempt of Courts Act,

1971 under Section 2(b) to mean wilful disobedience of any judgment,

decree, direction, order of the Court of wilful breach of an undertaking

given to the Court. Criminal contempt has been defined under Section 2(c)

to include anything which scandalizes or tends to scandalize or lower or

tends to lower the authority of the Court. Criminal contempt also means

any act which prejudices or interferes or tends to interfere with the due

course of judicial proceedings. As far as the present case is concerned, the

conduct of contemnor nos.9 and 10 definitely undermines the authority of

the Court. We are dealing with an international arbitration which has

17

fructified into an award but by misusing the legal process contemnor nos.9

and 10 have successfully avoided paying off the petitioner. In our view,

action for committing criminal contempt could have been taken against

contemnor nos. 9 and 10, but by taking a lenient view of the matter we are

only treating it as a civil contempt.

41. The order passed by this Court on 11.08.2017 with a clarification on

31.08.2017, and modification made on 15.02.2018, is not to be read in

isolation but along with the solemn undertakings and assurances given by

the contemnors on as many as five occasions before the Delhi High Court,

the last one being as late as on 21.06.2017. These assurances were to the

effect that even if the Court permits sale of encumbered shares for

payment of debt, it would not have any impact on the (potential) creditors

and availability of the funds would only pare down the debt and increase

the value of the shares. Contrary to the aforesaid solemn assurances and

undertakings, which were repeatedly reiterated to procure orders, the

shareholding went into a downward spiral, as is apparent from the table in

paragraph 23. There was a significant decline in the total number of shares

held by FHHPL, both encumbered and unencumbered, which fell down

from 27,21,59,955 and 5,29,31,574 in September 2016 to 5,51,484 and

6,01,607 in December 2018. The aforesaid fact with the impact on

valuation was never brought to the notice of the Court and was concealed

with the knowledge that these facts, if brought to the notice, would have

substantial bearing on the orders that would be passed to protect the

interest of the petitioner.

42. What is even more shocking and clearly contemptuous is the manner

in which, in a well thought off plan, the authorized capital of FHL was

increased with the objective and purpose to transfer controlling interest in

the company. Consequently, the controlling interest of MMS and SMS

came down in FHL, as the company changed hands. Controlling interest

held by the majority shareholders has considerable market value. Further,

the amount brought in by a foreign shareholder, who now has the

controlling interest in FHL, has been transferred in a dubious and

clandestine manner without full facts being brought on record. This

amount is not available for payment and satisfaction of the Award. About

Rs.4,600 crores has been transferred in a very hurried and clandestine

manner to a trust registered in Singapore i.e. RHT Health Trust (RHT).

Coincidentally, respondents no.9 and 10 themselves or through their

holding companies were at one time the biggest unitholders in the trust. It

is obvious that the respondents being debtors are maneuvering,

transferring and converting the assets of value, with the desire and intent

that the petitioners would not be able to recover the decretal amount as per

the award.

43. We would, therefore, not read the orders of this Court in isolation but

along with the five solemn assurances and undertakings given before the

High Court. Directions given by this Court and the orders passed were in

light of the fact that the contemnors always projected that the said

assurances and undertakings were binding and adhered.

18

44. There can be no manner of doubt that contemnors 9 and 10 have

changed the shareholding of FHHPL in FHL knowingly and wilfully. They

have done this with a view to defeat the rights of the petitioner. They have

also wilfully and contumaciously violated the orders of this Court dated

11.08.2017, 31.08.2017 and 15.02.2018. They are accordingly held guilty

of committing contempt of court. We shall hear them on the question of

sentence. We give one chance to the contemnors no.9 and 10 to purge

themselves of the contempt.

45. On 21.06.2017, a statement was made on behalf of contemnor nos. 9

and 10 before the High Court of Delhi that in respect of any transaction

that these respondents may enter into, a sum of Rs.2341.90 crores i.e.

Rs.452.60 crores of OIL and Rs.1889.30 crores of RHC would always be

made available and realizable from the assets of the company. We,

therefore, direct that in case each of the respondents deposits a sum of

Rs.1170.95 crores i.e. 50% of Rs.2341.90 crores in this Court within eight

weeks from today then we may consider dealing with them in a lenient

manner.

Violation of order dated 14.12.2018

46. It was also argued that contemnor nos.9 and 10 have also violated the

order dated 14.12.2018. Since this is not the subject matter of the main

contempt petition and no notice has been issued to the concerned parties in

this regard, we feel that this issue has to be segregated from the rest of the

contempt petitions because the main pleadings and replies are in respect of

the alleged contempt of orders dated 11.08.2017, 31.08.2017, 15.02.2018

and 23.02.2018.

47. However, we cannot let the matters stand as they are. On 14.12.2018,

this Court had passed the following order:

“Issue notice. The personal presence of the alleged respondents

contemnors is dispensed with for the present. Status quo with

regard to sale of the controlling stake in Fortis Healthcare to

Malaysian IHH Healthcare Berhad be maintained.”

The order directs that the status quo with respect to the sale of

controlling stake in FHL to IHH Healthcare Bhd. (Malaysian Company)

should be maintained. We are now told that this sale had already taken

place. This matter needs to be enquired into and we have to be certain

when this sale actually took place and when was the controlling stake in

FHL transferred to the IHH Healthcare Bhd. (Malaysian Company).

Furthermore, on 09.01.2019, FHL moved an application in this Court and

stated that the transaction between the FHL and IHH Healthcare Bhd.

(Malaysian Company) had been completed on 13.11.2018 and prayed that

the order dated 14.12.2018 be modified insofar as it pertains to sale of

controlling stake in IHH Healthcare Bhd. (Malaysian Company).

48. I.A. No. 8948 of 2019 was filed by the petitioner on 15.01.2019

stating that FHL is proposing to transfer Rs.4,000/- crores approximately,

received by it [as a result of the transferring of shares to the IHH

19

Healthcare Bhd. (Malaysian Company)] to RHT Health Trust, Singapore

(RHT). Petitioner prayed for restraining this transfer of funds and

compliance of order dated 14.12.2018. FHL filed a reply to this I.A.,

which made it apparent that on 15.01.2019 itself FHL had completed the

transaction involving acquisition of assets from Singapore based RHT

even though it was fully aware that this Court was seized of the matter.

49. Interestingly, the main promoters of RHC and OIL i.e. MMS and

SMS were the biggest unit holders in RHT when it was initially

incorporated. The statistics of unit holding as on 20.06.2017 of RHT

Trust, Singapore shows that SMS, MMS, their family members, FHHPL,

FHL and RHC virtually owned the RHT trust. That situation has now

changed and now the situation is such that the companies/associations of

which MMS and SMS are partners are no longer visibly present and there

are other persons who are there. When and how the holdings in RHT trust

were transferred by various people is a matter which is required to be

gone into.”

8.Having found the contemnor Nos.9 and 10 and the entities RHC, OIL and

FHL guilty of violating the assurances given to the Court, this Court

directed in the Judgment as under:

“51. In view of the above discussion, we, dispose of this contempt

petition in the following terms: -

(i) We find Sameer Gehlaut, Director of Indiabulls Housing Finance

Limited and Director of Indiabulls Ventures Limited (Contemnor

Nos.1 & 5), Gagan Banga, Director of Indiabulls Housing Finance

Limited and Director of Indiabulls Ventures Limited (Contemnor

Nos.2 & 6), Ashwini Kumar Hooda, Director of Indiabulls Housing

Finance Limited (Contemnor No.3), Sachin Chaudhary, Director of

Indiabulls Housing Finance Limited (Contemnor No.4), Divyesh

Bharat Kumar Shah, Director of Indiabulls Ventures Limited

(Contemnor No.7) and Pinank Jayant Shah, Director of Indiabulls

Ventures Limited (Contemnor No.8), who are active directors of

IHFL and IVL of knowingly and wilfully disobeying the orders of

this Court dated 11.08.2017, 31.08.2017 and 15.02.2018 as

continued on 23.02.2018 and find them guilty of committing

contempt of this Court. We will hear them on the question of

sentence. We afford an opportunity to contemnor nos.1-8 to purge

themselves of the contempt by depositing the value of 12,25,000

shares as on 31.08.2017 in the Bombay Stock Exchange within eight

weeks from today. In case, the said respondents purge themselves of

the contempt, we may take a lenient view while imposing sentence.

20

(ii) Malvinder Mohan Singh, Director of Oscar Investments Limited

and Director of RHC Holding Private Limited (Contemnor Nos.9

and 12) and Shivinder Mohan Singh, Director of Oscar Investments

Limited and Director of RHC Holding Private Limited (Contemnor

Nos.10 and 13) have knowingly and wilfully violated the orders of

this Court dated 11.08.2017, 31.08.2017 and 15.02.2018 as

continued on 23.02.2018. Therefore, we hold both of them guilty of

committing Contempt of this Court. We give one chance to them to

purge themselves of the contempt. We, direct that in case each of the

contemnors deposits a sum of Rs.1170.95 crores in this Court within

eight weeks from today then we may consider dealing with them in a

lenient manner, while imposing sentence.

(iii) In case any of the contemnors deposits the amount as directed

hereinabove, this Court shall decide on the next date as to how this

amount is to be disbursed.

(iv) The Registry is directed to register a suo motu contempt petition

against RHC Holding Private Limited, Oscar Investments Limited,

Malvinder Mohan Singh, Shivinder Mohan Singh and Fortis

Healthcare Limited, for having wilfully violated the order of this

Court dated 14.12.2018 and issue notice to them returnable for

03.02.2020 asking them to show cause why they should not be

punished for contempt.

52. List the present contempt petition on 03.02.2020 when all the

contemnors named hereinabove shall remain present in the Court. On that

day, we shall hear them on the issue of sentence. Along with this, the

contempt petition which has been ordered to be registered shall also be

listed on 03.02.2020.”

9.In terms of leave granted in sub paragraph (i) of paragraph 51 quoted

above, the amount of Rs.17,93,40,000/- having been deposited by

Contemnor Nos.1 to 8, it was held by this Court in its order dated

18.12.2019 that said Contemnors had purged themselves of the contempt

and the matter was therefore closed as against them.

10.The Special Leave Petition and the Contempt Petition along with Suo

Motu Contempt Petition No.4 of 2019, registered pursuant to direction

(iv) in paragraph 51 as quoted above, were then taken up for hearing.

21

By order dated 11.2.2021, this Court issued notice to 17 Banks/

Financial institutions with whom certain financial transactions were

entered into by the Contemnors and companies under their control; and

some of the shares were pledged to them, so that the version of said

Banks/ Financial institutions could be taken into account.

11.The Order dated 18.02.2021 passed by this Court noted the submissions

advanced on behalf of the Contemnors, Noticees and Daiichi, whereafter

certain directions were passed by this Court as under: -

“7. Mr. Kailash Vasdev, learned Senior Advocate, appearing for one of

the contemnors had invited our attention to the affidavit filed on behalf of

Respondent No. 14 in compliance of order dated 14.05.2018 (Volume

55). The tabular chart given in paragraph 7 of said affidavit and assertions

in paragraph 8 thereof were to the following effect:

“7. The details of the number of shares held by FHHL in FHL are as

follows:

Date Encumbered

Shares

Unencumbered

Shares

Total

Number of

shares

28.02.201726,81,66,0203,84,25,509 30,65,91,529

(59.23%)

31.03.201723,18,01,4403,84,40,089 27,02,41,529

31.07.201718,64,94,06084,89,948 19,49,84,008

31.08.201717,53,94,82026,31,777 17,80,26,597

31.01.201817,53,83,820

(pursuant to a

release of

11,500 pledged

shares)

26,43,277 17,80,26,597

28.02.20187,65,584 26,54,867 34,20,451

31.03.20186,89,084 27,31,367 34,20,451

16.05.20186,31,484 27,31,367 33,62,851

(0.65%)

8. Neither Respondent no.14 nor Respondent No.19 sold and/or

further encumbered any shares after 06.03.2017. However, pursuant

22

to the existing loan/pledge agreements, various banks themselves

exercised the right of pledge/top-up of the pledge shares without any

reference or any action from Respondent Nos.14 & 19 and/or FHHL,

described in greater detail hereinbelow. Further, the Hon’ble

Supreme Court, vide its orders dated 11.08.2017 and 31.08.2017

injuncted FHHL and all financial institutions from selling/alienating

encumbered as well as unencumbered shares held by FHHL in FHL.

This order was modified by the Hon’ble Supreme Court on 15.0-2.2018, whereby the encumbered shares were permitted to be sold by

the respective lenders. Due to all above, there were sale/fresh

encumbrances from the period 06.03.2017 till 31.08.2017 but

thereafter 5ill 15.02.2018 there was no change in the said

encumbrance/sale and once again there were further sales after

15.02.2018. The unencumbered shares held by FHHL in FHL are

protected by the order dated 23.02.2018 passed by the Hon’ble

Supreme and cannot be encumbered/alienated by FHHL. Copies of

the orders dated 11.08.2017, 31.08.2017, 15.02.2018 and 23.02.2018

passed by the Hon’ble Supreme Court are annexed herewith and

marked as Annexure A (colly).”

8. This reply, thus, clearly shows that though allegedly neither

Respondent No. 14 nor Respondent No. 19 sold or further encumbered

any shares after 06.03.2017, various banks/financial institutions

themselves exercised the right of pledge/top-up of pledged shares without

any reference to or action from either Respondent No. 14 or Respondent

No. 19.

9. In the circumstances, notices were issued to various banks/financial

institutions as detailed in the order dated 11.02.2021.

10. Appearing for some of the banks/financial institutions, Mr. Shyam

Divan and Mr. Ramji Srinivasan, learned Senior Advocates; and Mr.

Jayant Mehta, Mr. Sanjay Gupta and Mr. Sharma, learned Advocates,

submitted inter alia that the issue was already gone into by this Court and

that there were no pleadings to which any response could be filed by the

concerned banks/financial institutions.

11. In reply, Mr. Rakesh Dwivedi, learned Senior Advocate invited our

attention to the chart set out in paragraph 23 of the Order, to submit that

first three entries of the chart disclose that the total number of shares

remained constant at 32,50,91,529; and that after the assurance was given

on 23.01.2017 by the concerned respondents before the High Court of

Delhi (marked as second assurance in paragraph 5 of the Order), not only

the total number of shares started dwindling but the number of

unencumbered shares went down from 7,31,68,281 to 6,01,607, as stated

in the chart. Mr. Dwivedi, then, referred to the affidavit dated 08.02.2017

filed on behalf of all the respondents in the High Court of Delhi which

held out that the value of unencumbered shares was more than Rs.4,000/-

crores and that the value of the unencumbered security was sufficient in

23

the event the award was to be enforced. The relevant paragraphs of said

affidavit were as under: -

“2. That vide order dated 23.1.2017, this Hon’ble Court had directed

an affidavit to be filed by anyone of the Respondents on behalf of all

the Respondents in respect of the unencumbered assets held by the

Respondents in support of the assurance given to the Court as

recorded in the letter dated 24.5.2016.

3. Therefore, in furtherance of the Order dated 23.1.2017, I am filing

the present affidavit on behalf of Respondent No. 19 and all other

Respondents.

4. All the Respondents had submitted their respective affidavits

disclosing their assets on 6.12.2016 to this Hon’ble Court. The

aggregate book value of investments held by all the Respondents

(excluding investments inter se amongst the Respondents) as per the

said Affidavits is Rs.10,217.10 Crores out of which investments to

the tune of Rs.1,409.93 crores are encumbered leaving the residual

investments to the tune of Rs.8,807.18 Crore as unencumbered.

Further, as on 31.12.2016, the book value of investments held only

by RHC Holding Private Limited (Respondent No.19) as on

31.12.2016 is Rs.6,510.54 Crores out of which investments to the

tune of Rs.1,513.86 Crores are encumbered leaving the residual

investments to the tune of Rs.4,996.68 Crores as unencumbered.

5. Respondent No.19 has also undertaken an internal valuation of its

unencumbered investments as on 31.12.2016 mentioned in para (4)

above and based on such internal valuations, the estimated (on a

conservative basis] fair value of its unencumbered investments as on

31.12.2016 is approximately Rs.3,453 Crores.

6. Apart from the aforesaid investments, Respondent No.19 has also

extended loans and advances (other than loans and advances to other

Respondent entities) and after netting off the loans raised on current

assets, the amount of loans and advances recoverable is Rs.252.59

Crores as on 31.12.2016 which is over and above the aforesaid

investments.

7. There is no intention of selling any of the unencumbered

investments by way of shares held by Respondent No.19. A proposal

which is under discussion may involve the sale of 29,00,000 equity

shares of SRL Limited held by Respondent No.19 and 7.05,000

equity shares of SRL Limited held by Malav Holding Private

Limited (Respondent No.15) to external investors in the near future.

These shares of SRL Limited are encumbered and thus not included

in the value of unencumbered assets mentioned at paras (4) & (5)

above. Obviously this will have to be after obtaining the consents of

the security holders. The proceeds of such sale will have to be

utilized to pare down the debt – the net assets of the Respondents

24

will thus remain unchanged. The shares being sold [36,00,000]

which are below 5% of the share capital of SRL will be sold to an

external investor. The further proposal under consideration is to

merge SRL with another listed group company at a later point of

time. Even if this does take place, this will have no implications on

the next assets of the Respondents.

8. There are proposals to issue further capital in the downstream

companies [below Respondent No.19]. The net result of issue of

shares will be accretion in the value of the shares of the upstream

company. The promoters would continue to remain the single largest

shareholders in the companies where fresh capital is being issued to

minority investors, and that will create value going forward. The

induction of a Private Equity fund or some such investor – were it to

take place – will improve the finances of the downstream companies

and thus add to the fair value of the unencumbered and encumbered

shares.

9. The value of the unencumbered assets declared is sufficient

security for the Award in the event it is enforced. This fair value of

the unencumbered assets as mentioned in para (5) does not include

value of 5 crore equity shares of Fortis Healthcare Limited held by

the underlying subsidiary of the Respondents which have been kept

aside from the aforesaid valuation for the sake of flexibility and debt

repayments of various group entities.”

12. It was, therefore, submitted that it was not just a case of creating

encumbrance or pledge but, there were instances of sale of shares and the

purpose was definitely to reduce the extent of control of FHHPL. He

further submitted that at the stage when the applications for

modification/clarification were preferred by the banks and financial

institutions, on the basis of which the order dated 25.02.2018 was passed

by this Court, none of the banks had told this Court what the

consequences of said order would be; and that in a matter of a yearand-

half, the shareholding of FHHPL stood reduced to negligible level.

13. Mr. Arvind P. Datar, learned Senior Advocate, added that there would

normally be a basic arrangement or loan agreement, in terms of which

various kinds of securities including charge over properties, corporate

and personal guarantees would be offered; and that a pledge of shares

would only be by way of an additional security. None of the

banks/financial institutions had indicated why the unencumbered shares

were sought to be put under encumbrance or the shares were sold when

other forms of securities were available. He further submitted that the

arrangements under which the shares were pledged must be disclosed so

that the purpose for which the basic accommodation or loan was obtained

would also be clear. For example, according to him, in November, 2016 a

loan agreement was entered into between India Bulls and RHC Holding

Private Limited for an amount of Rs.350 crores purportedly for

‘construction/development of residential projects’. He submitted that no

25

such project had come up and the amount of Rs.350/- crores through

successive transactions, was siphoned away. What kind of due diligence

was undertaken by the banks/financial institutions while extending the

loan facility must therefore be brought on record.

14. Both the learned Senior Counsel submitted that with various orders

passed by the High Court and this Court, the concerned individuals and

corporate entities could not sell the shares held by FHHPL directly and,

therefore, a device was employed and the arrangement was so structured

that the shares were proceeded against by the banks and financial

institutions. It was submitted that the banks/financial institutions had

intervened in the matters pending before this Court, that they were

definitely aware of the Award granted in favour of M/s. Daiichi Sankyo

Company Limited; and that the role of banks and financial institutions

would, therefore, require closer scrutiny.

15. In the premises, for the present, we direct all the noticee banks and

financial institutions: -

“(a)to place on record the basic documents pertaining to loans

advanced or financial accommodations extended in respect of

which the shares of FHL were pledged with them;

(b)to place on record the nature of securities offered in

connection with such loan arrangements;

(c)to place on record the details of the encumbered and

unencumbered shares of FHL standing in the name of

FHHPL, held by them in September, 2016;

(d)to place on record the details of encumbered and

unencumbered shares of FHL standing in the name of

FHHPL, held by them on 11.08.2017;

(e)to give details of shares of FHL standing in the name of

FHHPL, which were put by them under encumbrance after

11.08.2017;

(f)to give details of shares of FHL standing in the name of

FHHPL, sold by banks/financial institutions from January,

2017;

(g)to disclose whether such encumbrance created after

11.08.2017 was in pursuance of any fresh arrangement or

agreement and, if so, the details of such

agreement/arrangement;

(h)to disclose whether under such agreement/arrangement any

other security was given by the pledgors; and

(i) to give the value of the encumbered shares as they stood in

September, 2016, on 11.08.2017 and on subsequent dates.”

26

12.The subsequent Order dated 15.4.2021 passed by this Court noted

submissions advanced on behalf of Noticee No.4 and passed directions as

under:

“Mr. Sanjay Gupta, learned advocate appearing for M/s. RBL Bank

Ltd.- Noticee No.4 submits: -

(a)As on 11.08.2017, 38.75 crores shares of Fortis Healthcare Ltd.

stood pledged with the noticee in respect of facilities granted to

M/s. Religare Wellness Ltd (now known as RWL Healthworld Ltd.)

and to Religare Aviation Ltd. (now known as Ligare Aviation Ltd.)

(b)On 20.02.2018, 33.75 crores shares were sold for Rs. 47 crores

while another tranche of 80,000 shares was sold on 24.05.2018 for

about Rupees one crore.

(c)Thus, 4.20 lakh shares are still under the control of Noticee No.4.

(d)All the facilities now stand squared up and the amounts advanced

by the noticee have been recovered.

It is also submitted that the pledgor never approached the notice for

recovery of additional shares amounting to 4.20 lakhs shares, though all

the arrangements had squared up.

In the circumstances, we direct the Noticee No.4 to hold on to these

4.20 lakhs shares till further orders.

…”

13.All the concerned Contemnors as well as Noticees filed their responses

enclosing relevant documents and materials. The concerned documents

run into more than 200 volumes. The broad outline of submissions

advanced on behalf of the Noticees is to the following effect that for

various financial accommodations/ loans taken by the companies directly

or indirectly under the control of Contemnor Nos.9 and 10, shareholding

of FHHPL in FHL was pledged as collateral security with authorisation in

27

favour of the Noticees to sell those shares in open market to protect the

interest of the Noticees if the value of the security was getting reduced or

diminished. Various transactions have been referred to in the responses

filed on behalf of the Noticees and relevant documents in support have

been placed on record.

14.A comprehensive list of dates and events emerging from the documents

so placed on record by the Noticees is tabulated hereunder. The

abbreviations used in the list of dates are as under: -

Axis Bank Limited (ABL)

Ambit Finvest Private Limited (Ambit)

Credit Suisse Finance (India) Pvt. Ltd. (CSFIPL)

Dion Global Solutions Ltd. (DION)

ECL Finance Ltd. (ECL)

Finserve Shared Services Limited (FSSPL)

FHL (Fortis Healthcare Limited)

FHHL (Fortis Healthcare Holding Limited)

Fortis Healthcare Holding Private Limited (FHHPL)

Healthfore Technologies Ltd. (HTL)

Indiabulls Housing Finance Limited (IHFL)

Ligare Voyages Ltd. (LVL)

Lakshmi Vilas Bank (LVB)

Oscar Investments Limited (OIL)

RHC Holdings Private Limited (RHC)

Religare Enterprises Limited (REL)

Religare Aviation Limited/Ligare Aviation Ltd. (RAL/LAL)

Religare Finvest Limited (RFL)

Religare Capital Markets International (Mauritius) Limited (RCMIML)

Religare Wellness Ltd./RWL Healthworld Ltd. (RWL)

28

Rantakar Bank Limited (RBL)

Yes Bank Limited (YBL)

The relevant dates regarding arbitral and execution proceedings as well as

the undertakings given on behalf of the respondents are highlighted in the

list of dates for easy reference. The list of dates and events is as under:

Date Particulars Pg.No.

2007-2014

FHL Shares pledged on various dates in favour of ABL to secure

various credit facilities.

Upon closure of these facilities, pledged shares were released.

Vol. 197, Pg.1

2009-2013

Loans extended by YBL to Group Companies owned and

controlled by Singh Brothers since 2009.

3.3 Crores FHL Shares were pledged in favour of YBL in July

2010 to secure certain facilities. Pledged shares were released

upon closure of these facilities.

Vol. 200, Pg.2

08.11.2010

Overdraft Facility for Rs.50 Crores executed between RHC and

ABL, security being “First Charge on the entire current assets of

the company, both present and future”

Vol. 167, Pg.137

27.07.2012

Credit Facility for Rs.53 Crores (Rs.45 Crores + Rs.8 Crores)

extended to RWL by RBL under the security of:

A. “First pari pasu charge on all current assets and movable fixed

assets of the company, both present and future”

and

B. “unconditional and irrevocable corporate guarantee of RHC

Holdings Private Limited and same to remain outstanding during

currency of RBL Loan”

Vol. 178, Pg.30

12.11.2012

Initiation of Arbitration Proceedings by Daiichi in Singapore

being Arbitration Case No. 19074/CYK

29.11.2012Credit Facility for Rs.75 Crores extended to RAL by RBL on

following security:

A. Subservient charge on all current assets and movable fixed

assets of the company, both present and future

B. Mortgage of land & building located at Gurgaon owned by

Torus Buildcon Pvt. Ltd. providing minimum hard asset cover of

1.40 X based on latest market value of the land and building

C. Unconditional and irrevocable corporate guarantee of M/s

Torus Buildcon Pvt. Ltd. till the end of the tenor of the facility.

Vol. 178, Pg.18

29

03.08.2013

06.08.2013

Rs.100 Crores Loan extended by YBL to RAL against:

A. First Pari Passu charge on Current Assets and Moveable Fixed

Assets of the Borrower (both present and future).

B. Exclusive Charge on con1rnercial land (admeasuring - 10.35

acre at Sector 62, Golf course extension, Gurgaon) road owned by

RS Infrastructure Pvt Ltd. ensuring cover of 1.33x

C. Unconditional and Irrevocable Corporate Guarantee of RS

Infrastructure Private Limited to remain valid during the entire

tenor of the facility.

D. Non-Disposal Undertaking from Lowe Infra and Wellness

Private Limited for their entire shareholding in RS Infrastructure

Private Limited.

E. Debt Service Reserve Account (DSRA) equivalent to three

months interest payment shall be created upfront in the form of

lien marked Fixed Deposit with YBL

Rs.10 Crores remains outstanding from this borrower as on

23.03.2021.

Vol. 175,

Pg.543, 592

30

03.08.2013

06.08.2013

Rs.200 Crores Loan extended by YBL to HTL against:

A. First Pari Passu charge on Current Assets and Moveable Fixed

Assets of the Borrower (both present and future).

B. Exclusive Charge on con1rnercial land (admeasuring - 10.35

acre at Sector 62, Golf course extension, Gurgaon) road in owned

by RS Infrastructure Pvt Ltd. ensuring cover of 1.33x

C. Unconditional and Irrevocable Corporate Guarantee of RS

Infrastructure Private Limited to remain valid during the entire

tenor of the facility.

D. Non-Disposal Undertaking from Lowe Infra and Wellness

Private Limited for their entire shareholding in RS Infrastructure

Private Limited.

E. Debt Service Reserve Account (DSRA) equivalent to three

months interest payment shall be created upfront in the form of

lien marked Fixed Deposit with YBL

Facility closed on 16.10.2019 after recovery through sale of

securities.

Vol. 175,Pg. 556

Vol. 176, Pg.604

06.03.2014

12.03.2014

Rs.130 Crores Loan extended by YBL to DION. Vol. 175, Pg.503

Rs.10 Crores remains outstanding from this borrower as on

23.03.2021.

Vol. 176, Pg.

618, 646

27.03.2014

Facility Agreement for Term Loan of Rs.235 Crores to FSSPL by

ABL

(Agreement not put on record)

Vol. 197, Pg.1

28.03.2014

1,80,00,000 FHL Shares pledged in favour of ABL to secure

credit facility of Rs.235 Crores

Vol. 197, Pg.1

02.05.2014

1,55,00,000 FHL Shares pledged with YBL [w.r.t. DION

06.03.2014]

Pledge over 50,000 FHL Shares released on 29.07.2015.

Vol. 173, Pg.147

10.06.2014

Standby Letter of Credit of Rs.130 Crores extended by YBL to

LVL.

This facility was closed on 27.09.2016.

Vol. 200, Pg.3

31

27.06.2014

Facility Agreement for Term Loan of Rs.100 Crores executed

between LAL and ABL against security of:

A. Exclusive charge on the aircraft Falcon 2000 (Serial Number:

IOI)

B. Subservient charge on all current and movable fixed assets of

the company, both present & future.

C. Pledge of (in compliance with Sec 19 (2) of the Banking

Regulation Act) equity shares of FHL and REL aggregating to

Rs.32.50 Crores

D. Corporate Guarantee of RHC Holding Private Limited

E. Unconditional and irrevocable joint and several Personal

Guarantees from Singh Brothers

F. Assignment of insurance of the aircraft in favour of lender

Vol. 168, Pg.230

30.06.2014

10,00,000 FHL shares pledged in favour of ABL to secure credit

facility of Rs.100 Crores

Vol. 168, Pg.252

26.09.2014

RBL issued Modified Sanction Letter, requesting pledge of FHL

Shares.

Vol. 178, Pg.41

30.09.2014

Standby Letter of Credit for Rs.220.5 Crores extended by YBL to

LVL.

This facility was closed on 27.09.2016.

Vol. 200, Pg.3

Sep’2014

Standby Letter of Credit for USD 72.5 mn executed between

RCMIML and ABL.

75,00,000 FHL shares pledged in favour of ABL.

Vol. 197, Pg.2

08.10.2014

Credit Facility dated 27.07.2012 stood enhanced to Rs.63.75

Crores [Rs.33.75 Crores + 8 Crores + 15 Crores + 7 Crores) by

RBL against following securities:

A. First pari passu charge on all current assets and movable fixed

assets including the security deposits of the company, both

present and future.

B. Unconditional and irrevocable corporate guarantee of RHC,

and same to remain outstanding during currency of RBL Loan

Vol. 178, Pg.43

15.10.2014

52,04,000 FHL Shares pledged by FHHPL in favour of RBL

[w.r.t. 26.09.2014]

Vol. 178, Pg.65

20.02.2015

YBL sanctioned a loan amount of Rs.500 Crores to OIL.

This facility was closed on 23.02.2017

Vol. 200, Pg.4

20.02.201565,10,000 FHL Shares pledged in favour of YBL to secure

facilities extended to LAL (Rs.100 Crores) + HTL (Rs.200

Crores) + LVL (Rs.220.5 Crores + Rs.130 Crores)

Vol. 173, Pg.184

32

This facility was closed Vol. 200, Pg.4

25.02.2015Release of 40,000 FHL Shares by ABL [w.r.t. 28.03.2014]Vol. 197, Pg.2

05.06.2015

15,72,000 FHL Shares pledged in favour of YBL to secure

facilities extended to LAL (Rs.100 Crores) + HTL (Rs.200

Crores) + LVL (Rs.220.5 Crores + Rs.130 Crores)

This facility was closed.

Vol. 174, Pg.221

29.07.2015

Release of 33,50,000 FHL Shares by ABL [w.r.t. 28.03.2014]Vol. 197, Pg.3

Release of 15,04,000 FHL Shares by RBL [w.r.t. 29.11.2012]Vol. 201, Pg.3

Release of 50,00,000 FHL Shares by YBL [w.r.t. 02.05.2014]Vol. 200, Pg.5

11.09.2015

44,43,000 FHL Shares pledged in favour of YBL to secure

facilities extended to LAL (Rs.100 Crores) + HTL (Rs.200

Crores) + LVL (Rs.220.5 Crores + Rs.130 Crores)

Vol. 174, Pg.206

This facility was closed. Vol. 200, Pg.5

28.09.2015

2,15,00,000 FHL shares additionally pledged in favour of ABL in

respect of Standby Letter of Credit for USD 72.5 million

executed between RCMIML and ABL.

Vol. 197, Pg.3

29.09.2015Release of 75,00,000 FHL Shares by ABL [w.r.t. 28.03.2014]Vol. 197, Pg.3

30.09.2015

26,80,000 FHL Shares pledged with LVB against Rs.40 Crores

Credit Facility

Vol. 202, Pg.2

30.09.2015

Rs.250 Crores extended by YBL to FSSPL. This facility was

closed on 16.10.2019 via sale of securities

Vol. 200, Pg.5

Vol. 175,Pg. 578

07.10.2015Brand License Agreement executed between RHC and FHLVol. 104, Pg.292

14.10.2015Release of 1,95,00,000 FHL Shares by ABL [w.r.t. 29.09.2015]Vol. 197, Pg.3

16.10.2015

46,30,000 FHL Shares pledged in favour of YBL to secure Rs.250

Crores credit facility to FSSPL. These pledges were released on

27.11.2015.

Vol. 200, Pg.6

27.10.2015

2,37,35,000 FHL Shares pledged in favour of YBL to secure

Rs.250 Crores credit facility to FSSPL.

Vol. 174, Pg.267

29.10.2015

30.09.2015 Facility by LVB continued for Sanction Letter dated

29.10.2015

Vol. 202, Pg.2

10.11.2015

Brand License Agreement executed between RHC and SRL

Limited

Vol. 104, Pg.352

27.11.201546,30,000 FHL Shares released by YBL [w.r.t. 16.10.2015]Vol. 200, Pg.6

27.11.2015

38,28,000 FHL Shares pledged in favour of YBL to secure

facilities extended to LAL (Rs.100 Crores) + HTL (Rs.200

Crores) + LVL (Rs.220.5 Crores + Rs.130 Crores)

Vol. 174, Pg.211

This facility was closed. Vol. 200, Pg.7

33

12.01.2016

Credit Facility dated 27.07.2012 modified by RBL to Rs. 52.50

crores (Rs.22,50,00,000 + 15,00,00,000 + 8,00,00,000 +

7,00,00,000)

Vol. 178, Pg.56

18.02.2016Release of 11,00,000 FHL Shares by RBL [w.r.t. 29.11.2012]Vol. 201, Pg.3

11.03.2016

Credit Facility [w.r.t. 27.07.2012] enhanced by RBL by Rs.40

crores against pledge of FHL shares to the extent of 1.40 X of

facility amount with following security:

A. First pari pasu charge on all current assets and movable fixed

assets of the company, both present and future

and

B. Pledge of shares of REL and FHL to the extent of 1.40 X of

the facility amount

Vol. 178, Pg.59-

64

11.03.2016

30.09.2015 Facility by LVB continued for Sanction Letter dated

29.10.2015

Vol. 202, Pg.2

14.03.2016

Credit Facility Agreement containing a top up mechanism

between RHC and CSFIPL secured by pledge of 1,86,75,000 FHL

Shares

Vol. 171, Pg.25

15.03.2016

35,47,500 FHL Shares pledged in favour of YBL to secure

facilities extended to LAL (Rs.100 Crores) + HTL (Rs.200

Crores) + LVL (Rs.220.5 Crores + Rs.130 Crores)

Vol. 174, Pg.216

This facility was closed. Vol. 200, Pg.7

18.03.2016

14,75,000 FHL Shares pledged in favour of RBL [w.r.t.

11.03.2016]

Vol. 178, Pg.75

In toto, RBL held pledge over 40,75,000 FHL Shares as on

18.03.2016

Vol. 201, Pg.4

28.03.2016

Rs.300 Crores loan extended by YBL to RHC. This facility was

closed on 17.03.2017

Vol. 200, Pg.7

Pre

30.03.2016

5,41,35,500 FHL Shares were already encumbered in favour of

YBL prior to 30.03.2016.

Vol. 200, Pg.1

30.03.2016

Agreement to Pledge 2,65,02,852 FHL shares in favour of YBL

by FHHPL

Vol. 174,

Pg.346,392

Vol. 200, Pg.8

Pre

29.04.2016

1,36,50,000 FHL Shares stood encumbered in favour of ABLVol. 197, Pg.3

Pre

29.04.2016

8,06,38,352 FHL Shares were encumbered in favour of YBL

Vol. 228, Pg.4

Vol. 200, Pg.8

29.04.2016Arbitral Award in favour of Daiichi Vol.5,6, Pg.8

18.05.2016Ss.47/49 Arbitration and Conciliation Act, 1996 preferred

before the Delhi High Court by Daiichi being OMP (FEA)

Vol. 1, Pg.24

34

(Comm.) No. 06/2016

20.05.2016

Credit Facility Agreement containing a top up mechanism

between RHC and CSFIPL secured by pledge of 68,50,000 FHL

Shares

Vol. 171,

Pg.117, 232

24.05.2016

First Undertaking before the Delhi High Court by

Respondents

Vol. 1, Pg.78

30.06.2016

19.07.2016

Standby Letter of Credit of Rs.304.5 Crores extended by YBL to

LVL. Vol. 200, Pg.9

Vol. 175, Pg.508

Vol. 176,

Pg.710, 743

Vol. 224, Pg.8

Rs.72.5 Crores remains outstanding as on 23.03.2021.

YBL extended Credit Facility of Rs.304.5 Crores to Ligare

Voyages Ireland Ltd. for refinance of loan granted by ICICI Bank

and Punjab National Bank for purchase of 5 Aircrafts

27.07.2016

Put Option Agreement executed between FHHPL and YBL

recording that pursuant to various loans to group companies, YBL

had a right to call upon FHHPL to pay any amount due to YBL

Vol. 200, Pg.9,

44

27.07.2016

91,43,554 FHL Shares were encumbered in favour of YBL to

secure Put Option

Vol. 200, Pg.10

Vol. 175, Pg.424

28.07.2016

Cross Collateral by YBL over 2,65,02,852 FHL Shares [w.r.t.

30.03.2016] to secure LVL [Rs.304.5 Crores] Facility

Vol. 175, Pg.401

22.08.2016

Submission before the Delhi High Court by the Respondents

that there is no change in ownership of assets (Second

Undertaking)

Vol. 1, Pg.87

26.08.2016

Cross Collateral by YBL over 1,05,50,000 FHL Shares [w.r.t.

02.05.2014] to secure LVL [Rs.304.5 Crores] Facility

Vol. 173, Pg.160

26.08.2016

Cross Collateral by YBL over 1,99,00,500 FHL Shares [w.r.t.

20.02.2015, 05.06.2015, 11.09.2015, 27.11.2015, 15.03.2016] to

secure LAL (Rs.100 Crores), LVL [Rs.304.5 Crores], LVL

(Rs.130 Crores), HTL (Rs.200 Crores) Facility

Vol. 174,

Pg.240, 252

30.08.2016

7,25,000 FHL Shares pledged in favour of LVB against

26.10.2016 Facility

Vol. 202, Pg.2

30.09.2016

20,00,000 FHL shares additionally pledged in favour of ABL

w.r.t. Standby Letter of Credit for USD 72.5 mn executed

between RCMIML and ABL.

Vol. 169, Pg.424

30.09.2016

60,00,000 FHL shares additionally pledged in favour of ABL

w.r.t. Standby Letter of Credit for USD 72.5 mn executed

between RCMIML and ABL.

Vol. 169, Pg.424

30.09.2016

50,00,000 FHL shares additionally pledged in favour of ABL

w.r.t. Standby Letter of Credit for USD 72.5 mn executed

between RCMIML and ABL

Vol. 169, Pg.424

35

30.09.2016

10,00,000 FHL shares additionally pledged in favour of ABL

w.r.t. Standby Letter of Credit for USD 72.5 mn executed

between RCMIML and ABL

Vol. 169, Pg.424

30.09.2016

2,00,000 FHL shares additionally pledged in favour of ABL w.r.t.

Standby Letter of Credit for USD 72.5 mn executed between

RCMIML and ABL.

Vol. 169, Pg.424

30.09.2016Total 40,75,000 FHL Shares stood encumbered in favour of RBLVol. 201, Pg.4

04.10.2016Release of 20,00,000 FHL Shares by ABL [w.r.t. 29.09.2015]

Vol. 197, Pg.4,

44

07.10.2016

OIL paid back Rs.161 Crores to YBL against loan sanctioned on

20.02.2015

Vol. 224, Pg.6

31.10.2016

38,95,000 FHL Shares pledged in favour of LVB against

26.10.2016 Facility

Vol. 202, Pg.2

02.12.2016

Affidavit of Assets preferred by Singh Brothers, OIL, RHC

before the Delhi High Court

Vol. 54,

Pg.31,39,46,51

09.12.2016

LVB released 18,00,000 FHL Shares against reduction of Loan

Facility of 26.10.2016 from Rs.150 Crores to Rs.100 Crores

Vol. 202, Pg.3

15.12.2016

Total of 2,58,50,000 FHL Shares stood encumbered in favour of

YBL

Vol. 228, Pg.4

23.12.2016

YBL sanctioned a loan amount of Rs.565 Crores to OILVol. 175, Pg.521

Rs.225 Crores released immediately.

Rs.430.4 Crores remain outstanding as of 23.03.2021.

Vol. 200, Pg.11

Vol. 176,

Pg.754, 786

05.01.2017

Loan cum Pledge Agreement executed between Ambit, RHC and

FHHPL

Vol. 159, Pg.35

10.01.2017

Cross Collateral [w.r.t. 27.10.2015] over 2,37,35,000 FHL Shares

to secure LVL [Rs.304.5 Crores] Facility by YBL

Vol. 174, Pg.307

17.01.2017

Delhi High Court Order recording Respondent’s Submission

that undertaking dated 24.05.2016 still holds (Third

Undertaking)

Pre 23.1.17,

6.3.17

ABL held pledges of 2,58,50,000 FHL Shares Vol.197, Pg.5

23.01.2017

Undertaking furnished before the Delhi High Court by the

Respondents (Fourth Undertaking)

08.02.2017

Delhi High Court Order recording Respondents’ undertaking

(Fifth Undertaking)

Vol. 1, Pg.143

15.02.2017Pledge over 58,31,000 FHL Shares recorded in favour of YBLVol. 174, Pg.255

23.02.2017

OIL paid back Rs.339 Crores to YBL against loan sanctioned on

20.02.2015

Vol. 224, Pg.6

36

28.02.2017

Affidavit filed by Daiichi Sankyo annexing a list of all

outstanding charges of all Respondent Companies in the

Enforcement Petition till 27.02.2017 per filings with Ministry of

Corporate Affairs

Vol. 1, Pg.211-

2281

06.03.2017

Sixth Undertaking furnished before the Delhi High Court by

the Respondents

09.03.2017

Amendment to 27.07.2016 Put Option Agreement between

FHHPL & YBL, recording that Put Option Right would now also

cover an additional facility of OIL (Rs.565 crores)

Vol. 200, Pg.63

09.03.2017

Top up Pledge over additional shares of REL created in favour of

Ambit due to margin shortfall

Vol. 159, Pg.96

09.03.2017

Cross Collateral by YBL [w.r.t. 02.05.2014] over 1,05,50,000

FHL Shares to secure Put Option w.r.t. RHC (Rs.300 Crores),

LAL (Rs.100 Crores), HTL (Rs.200 Crores), LVL (Rs.304.5

Crores), Dion (Rs.130 Crores), OIL (565 Crores), FSSPL (Rs.250

Crores)

Vol. 176,177

Pg.797, 811

09.03.2017

Cross Collateral by YBL [w.r.t. 20.02.2015, 05.06.2015,

11.09.2015, 27.11.2015, 15.03.2016, 30.03.2016] over

2,57,31,500 FHL Shares to secure Put Option w.r.t. RHC (Rs.300

Crores), LAL (Rs.100 Crores), HTL (Rs.200 Crores), LVL

(Rs.304.5 Crores), Dion (Rs.130 Crores), OIL (565 Crores),

FSSPL (Rs.250 Crores)

Vol. 177,

Pg.815,828

09.03.2017

Cross Collateral by YBL [w.r.t. 27.10.2015] over 2,37,35,000

FHL Shares to secure Put Option w.r.t. RHC (Rs.300 Crores),

LAL (Rs.100 Crores), HTL (Rs.200 Crores), LVL (Rs.304.5

Crores), Dion (Rs.130 Crores), OIL (565 Crores), FSSPL (Rs.250

Crores)

Vol. 177, Pg.832

09.03.2017

Cross Collateral by YBL [w.r.t. 30.03.2016, 27.07.2016] over

3,56,46,406 FHL Shares to secure Put Option w.r.t. RHC (Rs.300

Crores), LAL (Rs.100 Crores), HTL (Rs.200 Crores), LVL

(Rs.304.5 Crores), Dion (Rs.130 Crores), OIL (565 Crores),

FSSPL (Rs.250 Crores)

Vol. 175, Pg.463

15.03.2017

14.03.2016 Credit Facility between CSFIPL and RHC Holdings

Ltd. closed. CFSIPL released all pledges over shares of FHL.

Vol. 203, Pg.2

22.03.2017

20.05.2016 Credit Facility between CSFIPL and RHC Holdings

Ltd. closed. CFSIPL released all pledges over shares of FHL.

Vol. 203, Pg.2

March’17

YBL released Rs.340 Crores to Oscar against loan sanctioned on

23.12.2016

Vol. 224, Pg.6

03.05.2017

Loan of Rs.150 Crores sanctioned by YBL to LAL. Vol. 200, Pg.14

Vol. 175, Pg.530Rs.10 Crores remains outstanding as of 23.02.2021.

19.05.2017

Standby Letter of Credit for Rs.100 crores executed between

DION and ABL. 42,33,333 FHL shares pledged in favour of

ABL.

Vol. 170, Pg.649

37

19.05.2017

Short Term Loan Facility for Rs.140 crores executed between

DION and ABL. 64,16,667 FHL shares pledged in favour of

ABL.

Vol. 170, Pg.672

19.05.2017

3,50,000 FHL shares additionally pledged in favour of ABL in

relation to Standby Letter of Credit for Rs.100 crores executed

between DION and ABL.

Vol. 170, Pg.649

24.05.2017

Letter of Intent issued by IHH Healthcare Berhad to FHL and

connected entities in furtherance of a proposal for acquisition

Vol. 86, Pg.32

02.06.2017

Top up Pledge over additional shares of FHL created in favour of

Ambit due to margin shortfall

Vol. 159, Pg.95

07.06.2017Release of 1,06,50,000 FHL Shares by ABL [w.r.t. 28.03.2014]

Vol. 197, Pg.84-

92

07.06.2017

Pledge Agreement in respect of 22,00,000 FHL Shares already

encumbered in favour of RBL w.r.t. 29.11.2012 to also secure

credit facility w.r.t. 27.07.2012

Vol. 178, Pg.92

15.06.2017

Pledge Agreement to create a Cross Collateral over 1,42,00,000

FHL Shares already pledged [w.r.t. 30.09.2016] to secure Ligare

Facilities

Vol. 168, Pg.294

15.06.2017

Pledge Agreement to create a Cross Collateral over 1,42,00,000

FHL Shares already pledged [w.r.t. 19.05.2017] to secure DION

Facility

Vol. 170, Pg.695

15.06.2017

Pledge Agreement to create a Cross Collateral over 1,42,00,000

FHL Shares already pledged [w.r.t. 19.05.2017] to secure DION

Facility

Vol. 170, Pg.718

19.06.2017

Seventh Undertaking before the Delhi High Court by the

Respondents

21.06.2017

Eighth Undertaking before the Delhi High Court by the

Respondents [Order under challenge in the present SLP]

20 -23.6.17

Release of 60,00,000 FHL Shares by ABL [w.r.t. 30.09.2016]

Release of 18,25,000 FHL Shares by ABL [w.r.t. 30.09.2016]

Vol. 197, Pg.7,8

22.06.2017

SLP (C) 20417/2017 preferred before the Supreme Court

against 21.06.2017 Delhi High Court Order

Vol. 1

Post

23.06.2017

ABL continued to hold pledge over 1,83,75,000 FHL SharesVol. 197, Pg.9

11.07.2017LVB released 1,00,000 FHL Shares on payment of Rs.1.6 CroresVol. 202, Pg.3

17.07.2017

Ambit issued a Loan Recall Notice to RHC and called upon RHC

to repay entire loan amount with interest

Vol. 159, Pg.97

17.07.2017RBL issued a Loan Recall Notice w.r.t. 29.11.2012 FacilityVol. 201, Pg.7

18.07.2017

Pledge Agreement to create a Cross Collateral over 45,83,333

FHL Shares already pledged [w.r.t. 19.05.2017 ABL] to secure

RHC Holding Facility

Vol. 167, Pg.155

38

18.07.2017

Pledge Agreement to create a Cross Collateral over 64,16,667

FHL Shares already pledged [w.r.t. 19.05.2017 ABL] to secure

RHC Holding Facility

Vol. 167, Pg.180

18.07.2017

Pledge Agreement to create a Cross Collateral over 10,00,000

FHL Shares already pledged [w.r.t. 30.06.2014 & 28.07.2016

ABL] to secure RHC Holding Facility

Vol. 168, Pg.204

18.07.2017

Pledge Agreement to create a Cross Collateral over 45,83,833

FHL Shares already pledged [w.r.t. 19.05.2017 ABL] to secure

Ligare Facility

Vol. 168, Pg.319

18.07.2017

Pledge Agreement to create a Cross Collateral over 64,16,667

FHL Shares already pledged [w.r.t. 19.05.2017 ABL] to secure

Ligare Facility

Vol. 168, Pg.344

18.07.2017

Pledge Agreement to create a Cross Collateral over 10,00,000

FHL Shares already pledged [w.r.t. 30.06.2014 & 28.07.2016

ABL] to secure 30.09.2016 Facility

Vol. 169, Pg.446

18.07.2017

Pledge Agreement to create a Cross Collateral over 45,83,333

FHL Shares already pledged [w.r.t. 19.05.2017 ABL] to secure

30.09.2016 Facility

Vol. 169, Pg.470

18.07.2017

Pledge Agreement to create a Cross Collateral over 64,16,667

FHL Shares already pledged [w.r.t. 19.05.2017 ABL] to secure

30.09.2016 Facility

Vol. 169, Pg.493

18.07.2017

Pledge Agreement to create a Cross Collateral over 64,16,667

FHL Shares already pledged [w.r.t. 19.05.2017 ABL] to secure

another 19.05.2017 ABL Facility

Vol. 170, Pg.764

18.07.2017

Pledge Agreement to create a Cross Collateral over 45,83,333

FHL Shares already pledged [w.r.t. 19.05.2017 ABL] to secure

another 19.05.2017 Facility

Vol. 170, Pg.741

18.07.2017LVB sold 5,00,000 FHL shares and realised Rs.7,44,96,752Vol. 202, Pg.4

18.07.2017

Cross Collateral over 1,05,50,000 FHL Shares [w.r.t. 02.05.2014]

to secure LAL Facility by YBL (Rs.150 Crores)

Vol. 173, Pg.176

18.07.2017

Cross Collateral over 2,57,31,500 FHL Shares [w.r.t. 20.02.2015,

05.06.2015, 11.09.2015, 27.11.2015, 15.03.2016, 30.03.2016] to

secure LAL Facility by YBL (Rs.150 Crores)

Vol. 174, Pg.260

18.07.2017

Cross Collateral over 2,65,02,852 FHL Shares [w.r.t. 30.03.2016]

to secure LAL Facility by YBL (Rs.150 Crores)

Vol. 406, Pg.175

18.07.2017Pledge invoked against 5,00,000 FHL Shares by LVB Vol. 202, Pg.4

19.07.2017

Pledge invoked against 2,80,000 + 7,25,000 + 38,95,000 FHL

Shares by LVB

Vol. 202, Pg.4

19.07.2017LVB sold 11,00,000 FHL shares and realised Rs.16,61,19,096Vol. 202, Pg.4

19.07.2017LVB sold 10,00,000 FHL shares and realised Rs.15,20,65,630Vol. 202, Pg.4

19.07.2017LVB sold 5,50,000 FHL shares and realised Rs.8,29,46,812Vol. 202, Pg.4

39

19.07.2017LVB sold 10,00,000 FHL shares and realised Rs.15,06,83,015Vol. 202, Pg.4

21.07.2017RHC repaid Ambit’s entire outstanding Vol. 231, Pg.2

21.07.2017

Pledge over 2,98,15,406 FHL Shares recorded in favour of YBL

[w.r.t. 30.03.2016, 27.07.2016]

Vol. 200, Pg.15

24.07.2017Ambit released the pledge over shares of FHL and RELVol. 231, Pg.2

08.08.2017

RBL released 2,00,000 FHL Shares [w.r.t. 29.11.2012]

Total no. of encumbered shares of FHL with RBL stood at

38,75,000

Vol. 201, Pg.7

10.08.2017RBL received Rs. 3.20 Crores [w.r.t. 29.11.2012] Vol. 201, Pg.8

11.08.2017

Order by this Court directing Status Quo w.r.t. shareholding

of FHHPL in FHL

11.08.2017

Total FHL shares that stood encumbered in favour of ABL were

1,83,75,000

Vol. 228, Pg.4

14.08.2017Loan Recall Notice issued by RBL w.r.t. 27.07.2012 Facility

Vol. 201, Pg.8

Vol. 23, Pg.42

14.08.2017LVB sold 1,00,000 FHL shares and realised Rs.1,49,79,271Vol. 202, Pg.4

14.08.2017LVB sold 4,00,000 FHL Shares and realised Rs.6,06,50,588Vol. 202, Pg.4

14.08.2017LVB sold 3,34,350 FHL Shares and realised Rs.5,02,68,887.26Vol. 202, Pg.5

14.08.2017LVB sold 65,000 FHL Shares and realised Rs.98,60,578Vol. 202, Pg.5

14.08.2017LVB sold 1,50,650 FHL Shares and realised Rs.2,28,54,809Vol. 202, Pg.5

14.08.2017LVB sold 2,00,000 FHL Shares and realised Rs.2,99,49,031Vol. 202, Pg.5

14.08.2017Pledge created by Indiabulls

Vol. 1, LOD

filed by Kunal

Chhaterji Pg.20

31.08.2017Order by this Court recording that 11.08.2017 Order

operative w.r.t. encumbered and unencumbered shares of

08.02.2018

Singh Brothers tendered their resignation from the Fortis and

Religare Board of Directors

Vol. 1, LOD

filed by Kunal

Chhaterji Pg.23

12.02.2018

Master Purchase Agreement executed in Singapore for acquisition

of RHT Assets for Rs.4650 Crores. It was endorsed by Gurpreet

Singh Dhillon on behalf of RHT.

Vol. 1, LOD

filed by Kunal

Chhaterji Pg.24

14.02.2018

Singh Brothers resigned from the Board of Religare Enterprises

Limited

Vol. 67, Pg.33

15.02.2018

This Court modified its Order and allowed the banks to enforce

their pledges created prior to 11.08.2017

16.02.2018YBL invoked its pledge over 8,97,81,906 FHL Shares Vol. 200, Pg.16

40

20.02.2018ABL invoked its pledge over 1,83,75,000 Shares Vol. 197, Pg.10

20.02.2018RBL sold 33,75,000 Shares and realised Rs.47,04,11,504Vol. 201, Pg.11

01.03.2018Pledge over 16,500 FHL shares released by Ambit Vol. 101, Pg.159

March’ 18

Invocation of pledges held by various banks caused fall in

shareholding of FHHPL in FHL from 71.7% to 0.66%

Vol. 1, LOD

filed by Kunal

Chhaterji Pg.28

24.05.2018

RBL sold 80,000 Shares and realised Rs.1,14,54,502

RBL left with 4,20,000 Shares

Vol. 201, Pg.11

Jun-Sep’18

Board of Directors of Religare entities were reconstituted and

initiated insolvency proceedings against 23 entities which owed

Rs.2,300 crores

Vol. 227, Pg.28

13.07.2018Share Subscription Agreement executed between FHL and IHH

Vol. 1, LOD

filed by Kunal

Chhaterji Pg.36

24.09.2018

RHC Holdings’ Affidavit informing this Court about violation of

11.08.2017 SCI Order by IHFL having pledged 12,25,000 shares

of FHL

Vol. 38

06.10.2018Daiichi filed Contempt Petition before this Court Vol. 39, Pg.5

29.10.2018

Daiichi granted permission to file formal intervention Application

for Intervention in NCLT

Vol. 119 @

Pg.97

07.12.2018Daiichi preferred Application for Intervention before NCLTVol. 75 @ Pg.10

17.12.2018

REL preferred Complaint u/Ss. 210, 212 and 447 of Companies

Act 2013 against Singh Brothers and known associates

Vol. 67 @ Pg.62

18.12.2018

RFL preferred Complaint against Singh Brothers and their

associates before Economic Offences Wing, Delhi Police – FIR

50/2019

Vol.67 @ Pg.98

14.03.2019

SEBI passed an order consequent to an independent investigation

which found large scale diversion of funds from the REL and its

subsidiaries at the behest of promoters.

REL and RFL directed to recall the loans and take recovery steps

for entities belonging to promoter group

Vol.67 @

Pg.145

22.03.2019

Complaint preferred by REL against erstwhile promoters and

their entities including Oscar Investments Limited with EOW,

Delhi Police for misappropriation to the tune of Rs.525 crores

Vol. 227 @

Pg.29

27.03.2019NCLT reserved order in the Daiichi matter

Vol. 119 @

Pg.106

05.04.2019

I.A. 58004/2019 mentioned before SCI and interim stay was

granted against NCLT proceedings in favour of Daiichi

Vol. 67 @ Pg.28

10.04.2019

Application for vacation of interim stay dated 05.04.2019

preferred by Religare

Vol. 67

41

08.08.2019

RFL preferred complaint against OSPL Infradeal Ltd, the Singh

Brothers and RHC Holding for misappropriation to the tune of

Rs.250 crores – FIR 64/2020

Vol. 227 @

Pg.29

11.09.2019

Vide separate order, SEBI confirmed directions issued by it on

14.03.2019

Vol. 75 @

Pg.231

21.09.2019

RFL preferred Complaint against ZEE Group Companies, Singh

Brothers and RHC Holdings for causing wrongful loss of Rs.150

crores – FIR 82/2020

Vol. 227 @

Pg.29

23.09.2019

FIR 189/2019 registered based on Complaint filed by RFL on

15.05.2019

Vol. 227 @

Pg.30

15.11.2019

This Court held Singh Brothers and officials of IFHL guilty of

contempt

Vol. 226, Pg.4

06.01.2020Chargesheet in FIR 50/2019 filed by EOW

Vol. 120 @

Pg.131

03.02.2020

This Court granted time to Singh Brothers to come up with

proposal to purge contempt

Vol. 226, Pg.5

23.03.2020Chargesheet in FIR 189/2019 filed by EOW

Vol. 121 @

Pg.269

15.10.2020Delhi High Court judgement

12.11.2020

SEBI passed order directing initiation of adjudication proceedings

against 10 entities for diversification of funds

Vol. 211 @ Pg.9

11.02.2021

Notice Issued to Lenders – Banks and Financial Institutions by

this Court

18.02.2021Questions posed to Lenders by this Court [18.02.2021 Order]

15.The submissions advanced on behalf of the concerned Contemnors,

Respondents, Noticees and other parties, with salient points are in the

following volumes: -

A.Volume 126: Submissions by Securities and Exchange Board of India

B.Volume 157: Brief Submissions by Mr. Arvind P. Datar regarding Banks and

Financial Institutions and Creation of Wrongful Pledges

C.Volume 160: Julius Baer Capital India Private Limited

D.Volume 161: Indiabulls Housing Finance Limited

E.Volume 163: ECL Finance Ltd.

F.Volume 178: RBL Bank Ltd.

G.Volume 182: Aditya Birla Finance Limited

H.Volume 183: First Abu Dhabi Bank Limited

I.Volume 191: Kotak Mahindra Bank Limited

J.Volume 203: Credit Suisse Finance Limited

42

Released all pledges and closed both ANR and RHC Facilities before

Supreme Court passed its status quo order.

K.Volume 214: Submissions by Religare Finvest Limited (Respondent No.17)

L.Volume 215: Submissions by Religare Enterprises Limited, Religare Finvest

Limited, Religare Comtrade Limited (Respondent No. 16, 17, 18)

No final relief has been claimed by the Petitioner against Religare

Group

Petitioner’s Intervention resulted in interim stay in the 23 Matters

initiated at the instance of this Respondent before NCLT

Respondent, being a financial creditor of the debtor entities, its

financial debts rank higher in the waterfall mechanism upon

liquidation, as compared to Petitioner’s.

Religare didn’t participate in fraud and was not a beneficiary

M.Volume 218, 225, 226: Submissions on behalf of Shivender Mohan Singh &

Malvinder Mohan Singh (Contemnor No. 9,10,12,13)

N.Volume 222: The Petitioner’s proposal for purging of contempt by the

Respondents

8 Properties being Land Areas and 1 Property being a Building

3 Brands/Trademarks being Religare, SRL and Fortis

Cash in Bank available with Ligare Voyages (Ireland) Limited

Cancellation of Pledges created or top up rights exercised after

24.05.2016

Withdrawal of Amount deposited by Indiabulls on 18.11.2019

Recovery from FHL based on assurances made by Singh Brothers

before the Delhi High Court

O.Volume 223: Petitioner’s Submissions regarding role of Shivender Mohan

Singh

In every aspect, the Singh Brothers were together till Delhi High

Court pronounced 31.01.2018 Judgement and Singapore High Court

pronounced judgement dated 21.12.2018

P.Volume 224: Submissions by Yes Bank Limited (Noticee No.1)

YBL is a secured creditor

A clean chit has been given to YBL insofar as Subject

Encumbrances are concerned

YBL, vide submissions in Volumes 173 – 177, 199, clarified that it

had created no encumbrances over FHL Shares post 11.08.2017, and

subject encumbrances were invoked only pursuant to 15.02.2018

Order by SCI

YBL was not a party before the Delhi High Court when the

assurances were given by the Judgement Debtors

YBL is not a judgement debtor qua the Petitioner

YBL has several recovery proceedings pending against the JDs

43

FHHPL, under various pledge agreements with YBL, gave a

representation that there was no litigation pending qua the FHL

Shares.

No personal guarantee obtained from SMS

Cross Collateralization is not creation of fresh encumbrances

Q.Volume 228: Axis Bank Limited

A clean chit had been given to ABL

Vol.197 Filed

No Top Ups created by ABL

Cross Collateralization Agreements only in relation to Pledges that

were already encumbered and as per standard industry lending

practices

ABL invoked all pledges after 15.02.2018 Order

R.Volume 162/229: Submissions by Lakshmi Vilas Bank (Noticee No.17):

No notice of proceedings

Bonafide Transactions(s) with Ranchem

Pledging and Invocation of Pledge on Shares of FHL

S.Volume 230: Submissions on behalf of Daiichi Sankyo (Petitioner)

3 Proceedings pending before this Court –

1.SLP(C)20417/2017

2.Contempt Petition (C) 2120/2018

3.SMC (C) 4/2019

Banks and Financial Institutions categorized into three:

4.8 Banks that have wilfully violated the orders and assurances

given to DHC as well as to SCI

5.4 Banks that released the shares and sold no shares after

24.05.2016

6.4 Banks and Financial Institutions which neither appeared nor

filed any affidavit in compliance with order dated 18.02.2021.

Petitioner be permitted to withdraw the Contempt Deposit

Direction to FHL/IHH to bring back Rs.4000 Crores and

consequences thereof

T.Volume 231: Ambit Finvest Private Limited

Pledge over the shares never invoked

16.We heard Mr. Mukul Rohatgi, Mr. Rakesh Dwivedi, Mr. Arvind P. Datar

and Mr. Joydeep Gupta, learned Senior Advocates on behalf of Daiichi

while Contemnors Nos.9 and 10 were represented by Mr. Kailash Vasdev

and Ms. Meenakshi Arora, learned Senior Advocates. On behalf of YES

44

Bank Ltd. (YBL), Axis Bank Ltd. (ABL) and Indiabulls Housing Finance

Limited (IHFL) submissions were advanced by Mr. Shyam Divan,

learned Senior Advocate while rest of the Noticees were represented by

the other learned Counsel.

17.The basic submissions made on behalf of Daiichi were:

(A)The respondents having suffered a Foreign Award, devised a well-

planned scheme to dilute the share-holdings held by companies

controlled by said Contemnors Nos.9 and 10; and thus, attempted

to frustrate the execution of said award.

(B)Various transactions referred to in the documents submitted before

the Court clearly show that multiple forms of Security including

charge on immovable properties, personal undertakings and other

securities were available to the banks and financial institutions.

However, what was proceeded against were the shares held by

FHHPL in FHL.

(C)The manner in which the controlling interest in FHL, which

company in turn controlled all the physical assets, was diluted,

was doubtful and questionable. Similarly, the acquisition of the

controlling interest by IHH/NTK would show that the very same

assets are now being controlled by RHT which was nothing but a

trust established by Contemnor Nos. 9 and 10.

45

(D)These transactions were not bona fide and in order to unravel the

truth, this Court may consider appointing Forensic Auditor(s).

18.In the written submissions filed by Daiichi, the roles of the Judgment

Debtors as well as of various entities were specifically dealt with as

under:

“A. Judgment Debtors:

I. The Petitioner filed SLP [Vol 1and2] on 22 June 2017 [SLP Vol I

and 2]. Mr. Rakesh Dwivedi, Senior Advocate, made submissions on

behalf of the Petitioner [SLP Vol 221, 223], inter alia, against

arguments made by counsel for MMS and SMS (Mr. Kailash Vasdev

and Ms. Meenakshi Arora, respectively). Petitioner has also

specifically responded to this Hon'ble Court's query regarding the

pleadings against Judgment Debtors in the Contempt Petition [SLP

Vol 217] on the basis of which the Contempt Judgment was passed,

against them.

2. The Judgment Debtors were given full opportunity to respond and

defend their case before this Hon'ble Court. MMS and SMS filed

separate replies to the SLP and the Contempt Petition. MMS filed its

reply affidavit in SLP dated 13 March 2019 (SLP Vol 54, 55) and

SMS filed its reply to SLP on 12 March 2019 (SLP Vol 53). MMS

also filed its reply to Contempt Petition (SLP Vol 59). In addition,

MMS filed a sur-rejoinder in the Contempt Petition (SLP Vol 65).

SMS also filed a sur-rejoinder in the Contempt Petition (SLP Vol

62). The Petitioner filed a rejoinder-affidavit to the reply of MMS

(SLP Vol. 61). The Petitioner in its rejoinder-affidavit explained how

MMS and SMS blatantly misled the court by asserting that the banks

and financial institutions had acted on their own accord in invoking

their right to top-up under pre-existing contractual obligations.

Petitioner also showed how the Respondents obstructed the course of

justice by falsely asserting that five crore shares had already been

kept aside for satisfying the debts of the banks and financial

institutions and that a sufficient number of unencumbered shares

were available to satisfy and realize the Award. The Respondents

never informed the courts of the existence of "pre-signed slips"

which could be used by the banks and financial institutions on

account of Respondents' poor economic condition and inability to

service the debt or the "manufactured defaults". The Respondents

submitted before the DHC that " ...[On a Group basis, the market fair

value of assets pledged is more than sufficient to meet the liabilities.

46

Were it not to be so, the lenders would have asked for topping of the

securities" [SLP Vol. 149/Page 18-25].

3. Mr. Dwivedi made rebuttal submissions against the Judgment

Debtors [SLP Vol 221/Page 1-9, 17-23]. His submissions were (i)

Judgment Debtors made active misrepresentations regarding

unencumbered shares/ existence of top-up clauses to the Petitioner,

DHC and this Hon'ble Court; (ii) the value of assets of RHC and

Oscar in the form of FHHPL shares derived their value solely from

the value of the shares of FHL owned by FHHPL; (iii) there was no

fall in the share price of FHL shares due to any steps taken by

Daiichi to enforce the Award; and (iv) Judgment Debtors did not take

steps in the commercial interest of FHL. In respect of I.A. No. 43119

of 2020 filed by MMS in the SLP, the Petitioner filed its reply [SLP

Vol 110/Page 1-11], inter alia, agreeing with the proposal for a

forensic audit of all entities in Table "A" and Table "B" [SLP Vol

222/Page 2]. Furthermore, the Petitioner also agreed to MMS's

request for the sale of land parcels, brand/trademarks and operating

companies, and the monies so realized to be deposited with this

Hon'ble Court in the Petitioner's favour.

4. In response to this Hon'ble Court's query regarding the proposal

for purging of contempt, the Petitioner has proposed certain reliefs

against the Judgment Debtors: ([SLP Vol 222/Page 2-4]

B. Banks and Financial Institutions

5. The Petitioner, pursuant to the Contempt Judgment, in its response

to reply filed by FHL in the SMC [SMC Vol 26/Page 27- 37],

apprised this Hon'ble Court of the creation of pledges and the

exercise of top-ups by banks and financial institutions in collusion

with MMS, SMS, other Judgment Debtors, IHH Healthcare Berhad

and FHL, which ultimately led to the dilution of the controlling

shareholding of OIL and RHC (through FHHPL) in FHL.

6. Thereafter, Mr. Arvind P. Datar, Senior Advocate, on behalf of the

Petitioner, by way of oral submissions and brief written submissions

- filed on 17 February 2021 [SLP Vol 157], informed this Hon'ble

Court that wrongful pledges were created after the first assurance

was given to the DHC on 24 May 2016. Since these pledges were

created in violation of court orders, Mr. Datar requested this Hon'ble

Court to pass orders to, inter alia, restore the status quo ante in

respect of the shareholding of FHHPL in FHL, as on 24 May 2016,

and to restitute the Petitioner in respect of creation of all wrongful

pledges after 24 May 2016.

7. In its written submissions [SLP Vol 125/Page 3], the Petitioner has

requested this Hon'ble Court to void the impugned pledges

and/securities created after 24 May 2016 or, in the alternate, to

compensate and restitute the Petitioner for the loss caused due to the

creation of pledges and subsequent sale of shares by banks/financial

47

institutions on or after 24 May 2016 [SLP Vol 125/Page 6-7]. The

Petitioner has also informed this Hon'ble Court of the scheme

adopted by the banks and financial institutions in collusion with

MMS, SMS, FHL and IHH, to deprive the Petitioner of the rights

accorded to it on FHL shares by the systemic dilution of controlling

stake of FHHPL in FHL [SLP Vol 138/Page 7/Paragraph/9-11, 15].

8. In view of the above submissions, this Hon'ble Court, by order

dated 18 February 2021, directed various banks and financial

institutions to file affidavits responding to certain queries by this

Hon'ble Court. In purported compliance with the order dated 18

February 2021, some of the banks and financial institutions have

filed their affidavits. The Petitioner has filed additional submissions

dated 23 March 2021 [SLP Vol 187] informing this Hon’ble Court of

the contemptuous acts of the banks and financial institutions in

collusion with the Judgment Debtors. The Petitioner informed this

Hon'ble Court that, until May 2017, there could not have been any

occasion for a top up by banks or financial institutions as the share

price of FHL shares had remained more or less stable and the share

price had not been impacted. It was submitted that the banks and

financial institutions had actively misled this Hon’ble Court along

with the Judgment Debtors to obtain orders dated 15 February 2018

(modification of orders dated 11 August 2017 and 31 August 2017 in

SLP) from this Hon'ble Court by submitting that "any change in the

status of encumbered assets of the said downstream companies or

any change in the shareholding of Respondent No. 1 and 8 herein in

the downstream companies in order to reduce liabilities, will not

have any negative impact, either on the value of assets or the no. of

unencumbered shares" [SLP Vol. 187/Page 4/Paragraph 4]. It was

thus submitted by the Petitioner that the banks and financial

institutions were fully aware of the court orders and the assurances

given to the DHC by the Judgment Debtors and are, therefore, guilty

of a deliberate and wilful violation of the orders of the DHC.

9. Following detailed oral submissions by Senior Counsel on behalf

of the banks and financial institutions - Mr. Shyam Divan (Yes, Axis

and IHFL), Mr. Gopal Jain (L VB, Julius Baer and First Gulf), Mr.

Pinaki Mishra (Credit Suisse), Mr. Ramji Srinivasan (Ambit Finvest)

and Mr. Amit Sibal (ECL Finance), the Petitioner filed its

rebuttal/rejoinder submissions on 12 May 2021 [SLP Vol. 221/11/10-

16, 24-103]. Mr. Dwivedi also made extensive oral submissions

rebutting the submissions made by the banks and financial

institutions. For the convenience of this Hon'ble Court, Mr Dwivedi

categorized the banks and financial institutions into the following

three categories:

(i)Category I: Eight banks that have wilfully violated the orders

and assurances given to the DHC as well as to this Hon'ble

Court should be issued a notice of contempt [SLP Vol 221/Page

47-64];

48

(ii)Category II: Four banks that have released shares and have

sold no shares after 24 May 2016 [SLP Vol 221/Page 65-71];

and

(iii)Category III: Four banks and financial institutions which

neither appeared nor filed any affidavit in compliance with the

order dated 18 February 2021 [ SLP Vol 221/Page 83].

10.In response to this Hon'ble Court's query regarding the proposal

for purging of the contempt by the contemnors, the Petitioner has

proposed certain reliefs with respect to the wrongful pledges created

by the banks and financial institutions contemptuously and for a

direction to conduct a forensic audit. [SLP Vol 222/Page 4-5].

C. Fortis Healthcare Limited and IHH Healthcare Berhad

11. Mr. Mukul Rohatgi, Senior Counsel, on behalf of the Petitioner

submitted that at the time of issuance of the Award, the Singh

Brothers, through their group companies, RHC and OIL, enjoyed a

controlling shareholding (71.7%) in FHL, a listed company which

owns and controls various hospitals across India [SLP Vol 133]. The

ownership of FHL at the relevant times is described in a chart filed

by the Petitioner [Annexure W- 1/SLP Vol 133/Page 10] [Also, SMC

Vol 26/Page 20]. The Petitioner, at all times, has submitted that the

value of shares of RHC and Oscar in FHHPL was derived solely

from FHHPL's controlling stake in FHL [SLP Vol 221/Page 2].

12. On 06 December 2018, the Petitioner filed I.A. No. 176128 of

2018 in SLP (SLP Vol 40) seeking leave to file additional documents

in the Contempt Petition. These documents disclosed the

shareholding pattern of FHL for the quarter ending June 2017 to the

quarter ending September 2018 in order to highlight the diminution

of shareholding held in FHL through FHHPL. The Petitioner had

also filed application - IA No. 9264 of2018 before the DHC on 16

July 2018 in the enforcement proceedings drawing attention to the

press releases dated 27 March 2018 and 13 July 2018 showing that

IHH was proposing to acquire FHL and assets of RHT Trust [SLP

Vol 40/page 83-85]. The Petitioner prayed that the Judgment Debtors

be directed to deposit the entire decretal amount and FHL be

injuncted from proceeding ahead with the transaction with IHH

Healthcare [SLP Vol 40/page 94]. FHL filed a reply to IA 9264 of

2018 on 31 July 2018 [SLP Vol 40/Page 98-127]. The Petitioner has

submitted that sufficient material was placed before this Hon'ble

Court which established that (i) the Judgment Debtors not only

breached the undertakings given to the DHC but they also violated

the orders of this Hon'ble Court; (ii) false affidavits were filed by the

Judgment Debtors both in the DHC as well as before this Hon'ble

Court; and (iii) this Hon'ble Court had been deliberately misled by

the Judgment Debtors, and banks and financial institutions to obtain

a modification on 15 February 2018 of the status quo orders dated 11

August 2017 and 31August 2017.

49

13. The Petitioner also filed an application for directions (I.A. No.

8948 of 2019) in the Contempt Petition on 15 January 2019, upon

learning that, despite this Hon'ble Court's order dated 14 December

2018, the transaction of transferring the controlling stake in FHL to

IHH was proceeding ahead and the amount of INR 4000 crores

received by FHL was being transferred to RHT Trust, in which the

Singh Brothers and Judgment Debtors had a substantial interest. The

Petitioner had prayed in this application that the transfer of funds to

RHT be injuncted until the undertaking recorded in DHC order dated

21 June 2017 was fulfilled/satisfied, and also to ensure compliance

with the order dated 14 December 2018. [SLP Vol 45/page 9-19].

14. The Petitioner filed another application for directions (IA No.

15162 of 2019) in the Contempt Petition on 24 January 2019 [SLP

Vol 46/Page 1-5] after ascertaining that FHL had completed the

acquisition of portfolio assets of RHT and on 15 January 2019 INR

4650 crores had been transferred in violation of this Hon'ble Court's

order dated 14 December 2018 within a few hours of Petitioner's

application. FHL filed a reply to I.A. No. 8948 of 2019 [SLP Vol 50]

and to I.A. No. 15162 of 2019 [SLP Vol 49] in February 2019.

15. On 09 March 2021, during the course of oral submissions, FHL

defended the RHT transaction and submitted that FHL's actions did

not amount to an act of contempt. Mr. Datar, in his oral and written

submissions dated 18 March 2021 [SLP Vol 185], while addressing

this Hon'ble Court's queries related to the role of IHH, FHL and

RHT, highlighted the clandestine method by which the amount of

INR 4000 crores was transferred out of India, despite knowledge of

the pending application and the status quo order dated 14 December

2018. Mr. Datar also submitted that the remittance of INR 4000

crores was in clear violation of the status quo order dated 14

December 2018. He submitted that since RHT had, on 31 December

2018, made a disclosure to the Singapore stock exchange of the

extension of the long stop date to 26 March 2019 for the RHT

Transaction, there was no apparent urgency to remit this amount to

RHT on 15 January 2019. To frustrate the claims of the Petitioner

further, the monies received in violation of the order dated 14

December 2018 were immediately distributed by RHT to its

unitholders [SLP Vol 185/Page 9]. Of this amount, FHL has

admittedly received - INR 817 crores [SMC Vol 37/Page 81].

16. Mr. Datar briefly reiterated the Petitioner's position on the RHT

transaction during the closing arguments on 12 May 2021. Mr. Datar

also placed reliance on the principle of tort of conspiracy to explain

the large-scale conspiracy carried out by the banks and financial

institutions in tandem with the Respondents, FHL and IHH, and

argued that that it is only just and proper that FHL is directed to

make available the amount of INR 4000 crores for Daiichi to ensure

restitution in respect of the undertaking given by its Chief Executive

50

Officer and Managing Director (SMS and MMS respectively) on 21

June 2017 [SMC 26/Page 63/Paragraph 97].

17. In response to this Hon'ble Court's query regarding the proposal

for purging of contempt, the Petitioner has proposed certain reliefs

against Fortis Healthcare Limited and IHH Healthcare Berhad [SLP

Vol 222/Page 6].

D. RHT Trust, Singapore

18.Mr. Datar made oral submissions regarding the FHL-IHH-RHT

transaction. In a nutshell, the submissions were as follows: (i) Mr.

Gurinder Singh Dhillon and Mr. Gurpreet Singh Dhillon are

unitholders of RHT. Mr Gurpreet Singh Dhillon was an executive

director and chief executive officer of RHT [SLP Vol 26/Page 61-

62]; (ii) FHL-IHH-RHT transaction was initially negotiated in 2017

between the Singh Brothers and IHH [SLP Vol 26/Page 37]; and (iii)

FHL-IHH-RHT transaction was undertaken at the behest of and for

the mutual benefit of the Singh Brothers, FHL, IHH and various

banks and financial institutions [SLP Vol 26/Page 43]. It should be

noted that Mr. Gurinder Singh Dhillon and Mr. Gurpreet Singh

Dhillon are close relatives of the Singh Brothers and it is probable

that the Dhillon family (of which Mr. Gurinder Singh Dhillon and

Mr. Gurpreet Singh Dhillon are members) also benefitted from the

FHL-IHH-RHT transaction.

19. In response to this Hon'ble Court's query regarding the proposal

for purging of contempt, the Petitioner has proposed certain reliefs

against RHT including a notice to RHT. [SLP Vol 222/Page 6].

E. Religare

20.Mr. Krishnan Venugopal, Senior Counsel, made extensive oral

submissions on behalf of the Petitioner in reply to the arguments

made by Mr. C.U. Singh, Senior Advocate, appearing for Religare

Enterprises Limited, Religare Comtrade Limited and Religare

Finvest Limited ("Religare Group"). The Religare Group has sought

vacation of the order dated 05 April 2019 passed by this Hon'ble

Court in SLP thereby staying the insolvency proceedings against 23

entities before the National Company Law Tribunal, Delhi.

21.Mr. Venugopal relied on his rebuttal submissions [SLP Vol 220]

and convenience compilation [SLP Vol 209]. Further, reliance was

also placed on the application for additional documents [SLP Vol

211] where he highlighted that the order passed by SEBI on 14

March 2019 had, in fact, been revoked by order dated 12 November

2020. The submissions made by Mr. Venugopal, in a nutshell, were

as follows: (i) Religare Group has not initiated insolvency

proceedings against eight out of the nine entities whose lands have

51

been offered for sale; (ii) the lands acquired by these companies

were acquired mostly before 2010, whereas Religare Group gave

loans only in 2016-2018 and therefore, Religare Group's loans could

not possibly have been used to acquire those lands; (iii) entities in

Religare Group are not decree holders and are therefore not entitled

to share in any amounts recovered pursuant to the present

proceedings, which proposition has been settled in the facts of this

case itself by the High Court of Delhi as well as by this Hon'ble

Court; and (iv) since Religare Group's insolvency petitions are

admittedly premised on fraud, they must not be permitted to be

admitted.

22. During the course of closing submissions on behalf of the

Petitioner, Mr. Rakesh Dwivedi, sought a continuance of the stay

order dated 05 April 2019 as it has a direct bearing on the outcome

of the present Contempt Petition. It was submitted on behalf of the

Petitioner that, in the absence of continuation of this order, the assets

that may be utilized for the purging of contempt committed by the

Singh Brothers will become subject to insolvency proceedings

thereby jeopardizing the process of purging of contempt. [SLP Vol

222/Page 7].

F. Miscellaneous

23. Withdrawal of INR 17,93,40,000 deposited by Contemnor Nos.

1- 8 (IHFL and IVL, and its directors) ("Contempt Deposit") in

compliance with the direction contained in paragraph 51 (i) of the

Contempt Judgment. Mr. Jaideep Gupta, Senior Advocate, made

submissions on behalf of Daiichi on 12 May 2021. He submitted that

the Petitioner is entitled to receive the Contempt Deposit and, hence,

it should be permitted to withdraw the Contempt Deposit, as prayed

for in IA No. 50764 of 2020 in the Contempt Petition. [SLP Vol 91].

24. The Contempt Deposit was made as a result of the contemptuous

conduct of the contemnors that has severely affected the interest of

the Petitioner. No third parties can claim a share in the deposit made

by a party committing contempt of protective orders passed in favour

of the Petitioner. Further, these are monies deposited in contempt

proceedings and Section 73 of the Code of Civil Procedure, 1908 is

not applicable in these proceedings.”

19.In support of the contention that IHH / NTK be directed to put the funds

back in FHL, it was submitted that matter raised following questions:

52

“(i) Whether Fortis Healthcare Limited/ IHH etc. in remitting the sum

of approximately INR 4000 crores on 15 January 2019 have violated

the status quo order dated 14 December 2018, and thus committed

contempt?

(ii) Whether INR 4000 crores should be brought back by IHH and

deposited with Fortis Healthcare Limited?

(iii) Whether the deposit of INR 4000 crores, if directed to be made,

could be utilized to honour the undertakings recorded and

representations made on various occasions before the Delhi High

Court and this Hon'ble Court?

The additional questions raised during the hearing on 12 May 2021,

and submissions made by Mr. Datar on behalf of the Petitioner are set

out below:

Additional Q. No. 1: Whether the submissions on tort of

conspiracy and the theory of attribution were made in the

absence of pleadings?

(a) A specific plea regarding conspiracy was made by the Petitioner in

para 97 of SMC Volume 26 at page 63. For ready reference, the

paragraph is reproduced below:

"97. Given the large-scale conspiracy carried out by the banks

and financial institutions in tandem with the Respondents, FHL

and IHH, Daiichi Sankyo submits that it is only just and proper

that FHL be required to make this amount of INR. 4000 crores

available for Daiichi Sankyo in respect of the undertaking given

by its CEO and Managing Director on 21 June 2017. Daiichi

Sankyo further says and submits that until and unless FHL makes

available this amount for realization of the decretal sum,

FHL/IHH should not be allowed to proceed with the Open Offer

or utilize the amount of INR 4000 lying in the escrow account

for that purpose. "

The award dated 29 April 2016 was against 19 respondents. Repeated

assurances I undertakings were given to the Delhi High Court that the

total assets were in excess of INR 10,000 crores and that in any event,

a sum of INR 2341.9 crores will always be available to satisfy the

award I decretal debt. These undertakings were on behalf of the entire

group, including Fortis Healthcare Limited ("FHL"), as has been

pointed out in written submissions [SLP Vol 185] and reiterated in

these submissions. In I.A. No. 9264 of 2018 was filed by Daiichi on

16 July 2018 in the Delhi High Court to stop the takeover of FHL by

IHH. A reply dated 2018 filed by R19 (RHC) inter alia that: "Given

the group's liabilities, including the award .... ". Thus, the award is

equally the liability of FHL, as it is of other group companies of the

Singh Brothers.

53

(b) The manner in which the shareholding of Fortis Healthcare

Holding Private Limited ("FHHPL") in FHL was reduced from 71.1

% to 0.66% was in complete violation of eight undertakings given to

the Delhi High Court and to the Supreme Court and could not have

been done without the active knowledge of the banks and IHH.

(c) Apart from specific pleadings, the conspiracy is also revealed

from the extensive pleadings in these matters and the role of the

following entities:

(i) Banks, which gave large amount of loans to group companies of

the Singh Brothers without any scrutiny on end utilization of the

loans (this has been explained by Mr. Rakesh Dwivedi, Senior

Advocate)

(ii) FHL and IHH Healthcare Berhad, in transferring INR 4000 crores

in violation of the status quo order and to frustrate the decree.

(iii) RHT Health Trust, Singapore, in participating in the transaction

of receipt of INR 4000 crores from FHL and IHH, being transferred

out of India in violation of the status quo order dated 14 December

2018. This was done while Mr. Gurpreet Singh Dhillon (maternal

cousin of Singh Brothers) was the signatory and at the helm of the

affairs of RHT.

(d) Theory of attribution: It is a settled principle that acts of

directors, who are in management and control, are deemed to be acts

of a company which is a legal entity but has no mind or body to think

and act. It is well settled that the acts of the directors in control are

attributable as the acts of the company and treated as such. There are

extensive pleadings which show that the group companies, including

FHHPL and FHL, were under the management and control of the

Singh Brothers. Thus, the theory or principle of attribution applies.

Undertakings by the Singh Brothers are undertaking of the group

companies, including and, in particular, that of FHL.

Additional Q. No.2: Whether this Hon'ble Court can issue

directions in addition to imposing any punishment for contempt?

(a) This Hon'ble Court has the power to punish for contempt under

Article 129 of the Constitution of India. Willful breach of an

undertaking given to a court is a civil contempt under section 2(b) of

the Contempt of Courts Act, 1971. Further, the doing of "any other act

whatsoever" which "interferes with or tends to interfere with, or

obstructs or tends to obstruct the administration of justice in any other

manner" is a criminal contempt under section 2(c)(iii) thereof.

(a) The Contempt of Courts Act, 1971 only provides for imposing

punishment for contempt of court. But the contempt jurisdiction of

this Hon'ble Court enables not only imposition of punishment but

granting relief by way of restitution. The judgment of this Hon'ble

54

Court in Delhi Development Authority v. Skipper Construction

3

makes it amply clear that the court can give appropriate directions

for remedying and rectifying the things done in violation of its

orders.

(b) A reference can also be made to the decisions in s

4

, which held

that this Hon'ble Court can take cognizance even for violation of

orders of the High Court. (This was overruled on another point in

Supreme Court Bar Association v. Union of lndia

5

).

(c) At stake in the present case is the sanctity and validity of

undertakings given to the Delhi High Court and the Supreme Court. If

these can be violated with impunity, it will be a serious setback to the

rule of law and the image and the prestige of the superior judiciary in

India. It is humbly stated that it should be made clear that if an

undertaking is violated, particularly in the context of group

companies, the High Courts and the Supreme Court have sufficient

power under Articles 129 and 215 to pass whatever directions are

necessary to ensure that the undertakings are fulfilled.

Additional Q. No. 3: If FHL/ IHH is directed to bring back INR

4000 crores, whether Petitioner will be entitled to recover the

award/ decretal amount from these funds?

(a)In the answer to Question No.2 of the earlier written

submissions [SLP Vol 185/Page 9], submissions have been made as to

why it is imperative that INR 4000 crores should be brought back.

The extraordinary and unseeming haste in sending INR 4000 crores

outside India was in breach of the status quo order of this Hon'ble

Court dated 14 December 2018. It is well settled that any act in

violation of court's order is void and the status quo ante must be

restored. [(i) Satya Brata Biswas v. Kalyan Kumar

6

and (ii) Vidur

lmpex and Traders Private Ltd. v. Tosh apartments Private Ltd.

7

].

(b)If the sum of INR 4000 crores is brought back, it will be an

asset in the books of accounts of FHL. This will be like any other

asset of FHL namely lands, buildings, investments, cash account, cash

in bank, etc., and can be attached to fulfill the undertaking given.

(c)As pointed out in detail later in this additional written

submission, there were multiple undertakings given by the Singh

Brothers and judgment debtors that the award will be binding on the

group companies.

3 (2007) 15 SCC 60 I - For text, see SMC Vol 36, P 227-251 on para 24-28.

4 (1995) 2 scc 584, 602-603 (paras 22 and 23).

5 (1998) 4 SCC 409 - the Supreme Court could not remove an advocate's name from the rolls of the State Bar

Council.

6 (1994) 2 SCC 266 (para 23 and pages 106-117 of SMC Vol 36.

7 (2012) 8 SCC 384 (para 49. page 118-150 of SMC Vol 36.

55

(d)The first undertaking in the execution proceedings (on 24 May

2016) was given only to ensure that the listed entities, primarily FHL,

Religare, etc. remained unaffected. Further, undertakings were also

given to ensure that no prejudice was caused to FHL which was a

flagship company.

(e)There is no dispute that FHHPL and FHL are part of the group

companies on whose behalf the undertakings were given. Thus, even

though these two companies are not the judgment debtors in the

arbitral award, the obligation to ensure that the award is satisfactorily

complied with is upon all these group companies including FHHPL

and FHL.

(f)At the time of the first undertaking, the Singh brothers held

71.7% ownership directly and indirectly in FHL through FHHPL.

They were in control of the management of FHL. The undertakings

that were given to prevent of the award, execution has directly enured

to the benefit of FHL whose business operations continued without

any hindrance.

(g)The undertakings given by Singh Brothers are thus binding on

FHL as well. These undertakings, given at the time when they had

more than 71 % control, would be binding even after their FHL

shareholding was reduced. It is submitted that an undertaking given to

the court by a person or persons who are majority shareholders, will

continue to bind that company even if their shareholding is

subsequently reduced to a minority. This is particularly important

when such shareholding is reduced in violation of assurances and

undertakings to a court.

(h)In Rosnan Sam Boyce v. B.R. Cotton Mills Ltd.,

8

it was held

that the undertaking given by the person in management and control,

will be the undertaking of the company itself. In the same way, the

undertaking given by the Singh Brothers would equally bind FHL.

The systematic attempt to frustrate the undertaking should not be

permitted. In the B.R. Cotton Mills case, it was held that under Article

142, the court could do complete justice and that the undertaking

given by the director was an undertaking by the first respondent

company would be treated as having committed contempt. In the

same way, FHL may be equally bound by the undertaking.

(i)Thus, the undertakings I assurance that a sum of INR 2341. 9

crores will always be available for satisfaction of the award amount

will also be an undertaking on behalf of FHL. Once the undertakings

were given on behalf of the group and was been made amply clear

that FHL was the most valuable member of this group/ single

economic entity, the undertakings are binding on all the entities on

8 (1990) 2 SCC 636, (para 7, 8, 9 at page 58-60 of SMC Vol 36)

56

whose behalf the undertaking was given. Daiichi will be entitled to

recover the amount by attaching assets of any of these entities,

including FHL as well.

(j)FHL cannot escape liability on the ground that it is a listed

entity or that Singh Brothers along with their investment companies

had less than 1 % shares of FHL on the date on which INR 4000

crores was sent out. IHH, the new investor in FHL and now in charge

of the management of FHL, had full knowledge of the various

undertakings given to the High Courts and the Supreme Court. IHH

and its directors cannot now escape the liability to honour the

understandings I assurances by taking shelter under the concept of

separate corporate personality. The assets of FHL are liable to be

attached in execution of the award at the present moment as they

would be when the Singh brothers were m control and gave the

undertakings / assurances.

(k)If FHL is permitted to evade liability, then undertakings can

be given on behalf of a group of companies and these will be

rendered meaningless if a new management takes over or there are

new shareholders who have a majority.”

20.On behalf of Contemnor No.9 – Malvinder Mohan Singh, it was

submitted that the transactions in question were entered into in normal

course of business and there was no attempt on part of the contemnors to

put the assets beyond the reach and control of Daiichi. It was submitted

that whatever the Noticees, banks and financial institutions did was

pursuant to the transactions entered into well before the assurances /

undertakings were given to the High Court and this Court. In his attempt

to purge himself of contempt, Contemnor No.9 submitted that certain

properties held by his relations and Companies under the control of his

group could still be proceeded against. The details of such properties

given in the written submissions, were as under:

Loan extended by Loan extended to AmountCumulative

57

(Rs.

Crores)

amount

(Rs.

Crores)

1.Modland Wears Private

Limited

Gurinder Singh Dhillon1.57 223.15

Gurkirat Singh Dhillon88.78

Gurpreet Singh Dhillon79.71

Nayan Tara Dhillon0.61

Shabnam Dhillon 52.48

2.Devera Developers Private

Limited

Gurkiran Singh Dhillon65.47122.62

Gurpreet Singh Dhiilon57.16

3.Fern Healthcare Private

Limited

Gurkirat Singh Dhillon101.91292.5

Gurpreet Singh Dhiilon110.81

Sanjay Godhwani 1.92

Sunil Godhwani 68.60

Prime Trust 4.19

Luminous Holdings

Pvt. Ltd.

5.07

4.Best Healthcare Private

Limited

Gurkirat Singh Dhillon103.37207.15

Gurpreet Singh Dhiilon103.78

5.Adept Lifespaces Private

Limited

Gurkirat Singh Dhillon85.58152.88

Gurpreet Singh

Dhiillon

67.30

Total 998.3

21.It was submitted by Contemnor No.10 – Shivendra Mohan Singh that he

was neither involved in the management nor in the negotiations or talks in

respect of any of the transactions entered into which was seriously being

questioned. According to said Contemnor, it was his brother namely

Contemnor No.9, who was completely responsible for all said

transactions.

22.As the record shows, the bulk of the shareholding held by FHHPL in FHL

was pledged with YES Bank Ltd. (YBL) and Axis Bank Ltd. (ABL). Mr.

Shyam Divan, learned Senior Advocate advanced submissions on behalf

58

of these two entities and took us through various documents placed on

record.

The preliminary submissions advanced on behalf of YBL were as under:

“7. The crux of YBL's case is that 8,97,81,906 FHL shares were

encumbered in favour of YBL, by 28.07.2016. Out of the 8,97,81,906

FHL shares, 5,41,35,500 FHL shares were encumbered under various

agreements, prior to 30.03.2016. A further 2,65,02,852 FHL shares were

encumbered under agreement to pledge dated 30.03 .2016. Thus, prior to

the date of the arbitral award (29.04.2016), a total of 8,06,38,352 FHL

shares were encumbered in favour of YBL. Subsequently, on 28.07.2016,

i.e. after the 'First Assurance' by the Judgment Debtors (before the

Hon'ble Delhi High Court in OMP EFA 6 of 2016) and prior to the

Second and Third assurance, a further 91,43,554 FHL shares were

encumbered under another agreement to pledge. Therefore, by

28.07.2016, 8,97,81,906 FHL shares were encumbered in favour of YBL,

prior to the second to fifth assurances given by the JDs before the Hon'ble

Delhi High Court. These 8,97,81,906 FHL shares were sold only pursuant

to this Hon'ble Court's Order of 15.02.2018.(Pg. 1, Vol 200)

8. It is pertinent to reiterate that YBL was never a party before the

Hon'ble Delhi High Court when the assurances were given by the JDs.

Furthermore, YBL was not even a party to the captioned SLP filed

against the Order dated 21.06.2017 passed by the Hon'ble Delhi High

Court. YBL was also not aware of the contents of the affidavits being

filed by the JDs nor was it aware of the nature of the assurances being

given by the JDs to the Hon'ble Delhi High Court. (Para 47, Pg. 34, Vol

173)

9. Admittedly, FHHPL is not a judgment debtor qua Daiichi. Further, the

Orders of the Hon'ble Delhi High Court and this Hon'ble Court make it

clear that there was no injunction qua the shares of FHL held by FHHPL

at any time prior to 11.08.2017. There was also no restriction on lending

to the JDs or their group companies at any point of time. In fact, even the

Hon'ble Delhi High Court vide its judgment dated 15.10.2020 passed in

EA No. 615, 625 and 815 in OMP EFA 6 of2016 (order upheld by this

Hon'ble Court) ("15 October 2020 Judgment") has categorically held that

there was neither any restriction on lending to the JDs nor was there any

injunction qua the JDs assets till 19.02.2018. The Hon'ble Delhi High

Court's reasoning was based on the premise that the foreign arbitral

award in favour of Daiichi became a decree only on 31.01.2018, after

Daiichi's enforcement petition was allowed, in terms of Section 49 of the

Arbitration and Conciliation Act, 1996. (Paras 49 to 52, Pg. 37, Vol 173)

59

10. Further, all allegations of collusion between the JDs and YBL for the

purpose of defeating Daiichi's rights are completely incorrect, meritless

and baseless, and are unsupported by any evidence. This is also evident

from the fact YBL has several recovery proceedings pending against the

JDs and the borrowers before various forums for an outstanding amount

of INR 532.9 Crore (excluding interest) (as of 22.02.2021). (Paras 43 to

46, Pg. 33, Vol.173)

11. Moreover, there were contemporaneous public disclosures made by

FHL / FHHPL with the stock exchange concerning the Subject

Encumbrances, thereby negating the argument that these encumbrances/

pledges were being created in a discreet and collusive manner.

Additionally, it also appears that JD Nos. 14 and 19, in their affidavit of

unencumbered assets dated 14.03.2017 had mentioned that 5 crore

unencumbered shares of FHL held by FHHPL would be kept aside for

repayment of debt obligations of the group companies (Para 4, Pg. 254,

Vol 2, Pg. 444, 455, Vol 6). Furthermore, admittedly, neither the JDs nor

Daiichi had ever informed YBL that there was any restriction on either

lending to the JDs or their group companies post 24.05.2016, nor was

YBL informed of any injunction existing qua the FHL shares or any other

assets of the JDs' or their group companies. Moreover, FHHPL, under the

various pledge agreements executed with YBL, also gave a representation

that there was no litigation pending qua the FHL shares. (For eg., Clause

4.l(o), Pg. 439, Vol 175) This shows that it was a well-accepted position

among the different stakeholders including Daiichi that there was no such

injunction / restriction qua the FHL shares, prior to 11.08.2017. (Paras 43

to 46, Pg. 33, Vol 173)

12. Therefore, there is absolutely no legal basis to nullify YBL's subject

loan and security agreements executed between 24.05.2016 and

11.08.2017. Thus, to hold YBL, a bona-fide secured creditor, accountable

for certain unilateral assurances given by the JDs to the Hon'ble Delhi

High Court, would be a travesty of justice.”

Similarly, preliminary submissions advanced on behalf of ABL were

as under:

“7. The crux of ABL's case is that 1,36,50,000 FHL shares were

encumbered in favour of ABL under various agreements prior to

29.04.2016 (the date of the arbitral award in favour of Daiichi). Further, a

total of2,58,50,000 FHL shares were encumbered in favour of FHL by

15.12.2016 which is even prior to the second (23.01.2017) and third

assurances (6.03.2017) given by the IDs to the Hon'ble Delhi High Court

(Tranches 1 to 9, @ Pgs. 1 to 5 Vol. 197).

60

8. Contrary to Daiichi' s claim, after the third undertaking, the total

encumbrance in favour of ABL in fact reduced to 1,83,75,000 FHL shares

from previously held 2,58,50,000 shares. Thus, as of 11.08.2017, ABL

had in its favour an encumbrance over 1,83,75,000 FHL shares. These

encumbrances were invoked only pursuant to the Supreme Court's Order

of 15.02.2018 (Pgs. 9, 10 Vol. 197).

9. It is pertinent to reiterate that ABL was never a party before the

Hon'ble Delhi High Court when the assurances were given by the JDs.

Furthermore, ABL was not even a party to the captioned SLP filed against

the Order dated 21.06.2017 passed by the Hon'ble Delhi High Court.

ABL was also not aware of the contents of the affidavits being filed by

the JDs nor was it aware of the nature of the assurances being given by

the JDs to the Hon'ble Delhi High Court. (Para 43, Pg. 26, Vol 167)

10. Admittedly, FHHPL is not a judgment debtor qua Daiichi. Further, the

Orders of the Hon'ble Delhi High Court and this Hon'ble Court make it

clear that there was no injunction qua the shares of FHL held by FHHPL

at any time prior to 11.08.2017. There was also no restriction on lending

to the JDs or their group companies at any point of time. In fact, even the

Hon'ble Delhi High Court vide its judgment dated 15.10.2020 passed in

EA No. 615, 625 and 815 in OMP EFA 6 of 2016 (order upheld by this

Hon'ble Court) ("15 October 2020 Judgment") has categorically held that

there was neither any restriction on lending to the JDs nor was there any

injunction qua the JDs' assets till 19.02.2018. The Hon'ble Delhi High

Court's reasoning was based on the premise that the foreign arbitral

award in favour of Daiichi became a decree only on 31.01.2018, after

Daiichi's enforcement petition was allowed, in terms of Section 49 of the

Arbitration and Conciliation Act, 1996. (Paras 45 to 48, Pg. 27 to 30, Vol.

167)

11. Further, all allegations of collusion between the JDs and ABL for the

purpose of defeating Daiichi's rights are completely baseless, and are

unsupported by any evidence. This is also evident from the fact ABL has

several recovery proceedings pending against the JDs and the borrowers

before various forums for an outstanding amount. As stated in its

compliance affidavit, even today there is approximately an outstanding

amount of INR 624 Crores (approx.) as of 22.02.2021. (Paras 39 to 42,

Pg.25, Vol 167)

12. Moreover, there were contemporaneous public disclosures made by

FHL / FHHPL with the stock exchange concerning the Subject

Encumbrances, thereby negating the argument that these encumbrances

were being created in a discreet and collusive manner. Additionally, it

also appears that JD Nos. 14 and 19, in their affidavit of unencumbered

assets dated 14.03.2017 had mentioned that 5 crore unencumbered shares

of FHL held by FHHPL would be kept aside for repayment of debt

obligations of the group companies (Para 4, Pg. 254, Vol 2, Pg. 444, 455,

Vol 6). Furthermore, admittedly, neither the JDs nor Daiichi had ever

informed ABL that there was any restriction on either lending to the JDs

or their group companies post 24.05.2016, nor was ABL informed of any

injunction existing qua the FHL shares or any other assets of the JDs' or

61

their group companies. This shows that Daiichi was also well aware that

that there was no such injunction / restriction qua the FHL shares, prior to

11.08.2017. (Paras 39 to 42, Pg. 25, Vol 167).

13. Therefore, there is absolutely no legal basis to nullify ABL's subject

loan and security agreements executed between 24.05.2016 and

11.08.2017. Thus, to hold ABL - a bona-fide secured creditor -

accountable for certain unilateral assurances given by the IDs to the

Hon'ble Delhi High Court, would be a travesty of justice.”

23.Mr. Harish N. Salve, learned Senior Advocate advanced submissions on

behalf of the IHH/ NTK. It was submitted that the shareholding held by

FHHPL in FHL was not in any way transferred in favour of IHH/ NTK

but what was allocated to IHH/ NTK was subscription of fresh shares.

The money so put in by way of capital into the company was then utilized

by FHL for streamlining its business structure. It was submitted that

under an antecedent arrangement, the proprietary interest in the hospitals

and diagnostic centres was held by RHT, a trust set up in Singapore and

those assets were being utilized by FHL for its business purposes; and in

return FHL was paying a huge amount of money by way of lease rentals.

The liability to pay these lease rentals was affecting the financial health of

FHL considerably and as such a decision was taken by the management to

gain a proprietary interest in said assets rather than continue under the

lease arrangement. It was for the purpose of acquisition of such

proprietary interest that the amount of Rs.4,666/- crores was transferred

by FHL in favour of RHT Trust. These transactions were completely

bona fide and entered into for the purposes of securing and protecting the

62

business structure and interest of FHL. In the written submissions the

concerned events were set out as under:

“2. As explained below, the events that took place were as follows:

(a) Daiichi had initiated an arbitration against the Singh Brothers and

others in relation to allegations of fraud in the sale of their shares of

Ranbaxy Ltd. It is pertinent to note that the present transaction has no

connection with that transaction.

(b) Having secured an award in their favour, the Decree Holder then took

to enforcing the award in India. In the course of these enforcement

proceedings, undertakings were given on behalf of the Singh Brothers to

the Hon'ble Delhi High Court that they would not alienate their assets. At

some point, the Decree Holder also carried the matter to this Court, and

undertakings were also given in this court by the Decree Holder to the

same effect.

(c) It appears that in the meantime since there was a fall in the value of

the shares of FHL, the banks from whom loans had been obtained against

the security of the shares, invoked pre existing pledges. In the petition for

leave to appeal filed by the Decree Holder, initially on 11 August 2017,

this Hon'ble Court injuncted the banks from encashing any pledges. This

order however came to be modified on 15 February 2018 when this court

clarified that the injunction would relate only to pledges created after 11

August 2017.

(d) Upon the modification of the order, the bankers who now became

entitled to enforce the pledges took steps to transfer the shares to

themselves or their nominees including the sale of the shares, and this

caused a drastic fall in the shareholding of the Singh Brothers in FHL.

(e) By March 2018, the shareholding of the Singh Brothers in FHL had

dropped to below 1 %. The Singh Brothers also resigned from the Board

of Directors of FHL. The new shareholders nominated professional

directors and professional management to run the affairs of FHL.

(f) The financial condition of FHL was precarious and that is why the

board of FHL decided to induct fresh capital to salvage the company. This

was done by a public process inviting bids from interested parties. The

highest premium was quoted by IHH Healthcare Berhad ("IHH") and it is

through this process that NTK (100% indirectly owned subsidiary of

IHH) came to subscribe to shares issued by FHL.

(g) This transaction of issuance of shares was consummated by 13

November 2018, i.e., prior to the Stay Order of 14 December 2018.

However, as a consequence of the acquisition of shares pursuant to the

investment of 4000 crores (at 170 per share, with a premium of around

₹ ₹

20% above the prevailing market price) which was by way of a

preferential allotment under the Share Subscription Agreement dated 13

July 2018 between NTK and FIIL ("Share Subscription Agreement").

63

[SMC Compilation/Vol.15/Page 410-4 71] and NTK became obliged to

make a public offer to acquire the shares of such of those (it members of

the public who would like to exit FHL.

(h) The consequence of the order of injunction passed on 14 December

2018 is to render this process of acquisition of shares of the members of

the public in an Open Offer (as defined below) under a freeze. It is

submitted that the injunction is not serving anybody's purpose and in fact,

is contrary to the interests of the public shareholders. The only interest

the Decree Holder has in pursuing this course of action is to try to

pressurize IHH to pay them their decretal dues, for the reason that the

prospects of recovery from the Singh Brothers (who are already in jail for

non-payment) appear to be bleak.”

24.In its response to the submissions made on behalf of the Contemnors

regarding purging of Contempt, following submissions were made on

behalf of Daiichi:

“A. Judgment Debtors

1.As sought by the contemnor MMS in (and as proposed in) I.A.

No.43119 of 2020, this Hon’ble Court may direct a forensic audit of the

group companies of MMs and SMS identified in Vol. 90/Table A/pages 4

and 5 and the companies and individuals to which loans have been

advanced by the judgment debtors and associate companies as set forth in

Vol. 90/Table B/pages 6 and 7. Extracts from I.A. 43119 of 2020

describing Table ‘A’ and Table ‘B’, are annexed herewith as Annexure “P-

1”. The SC may also direct forensic audit of entities (indirectly owned and

controlled by MMS and SMS) which are registered outside India. An

illustrative list of such entities is annexed herewith as Annexure “P-2”.

2.The SC may also direct a forensic audit of all the concerned companies

that borrowed from banks and financial institutions (Dion Global Solutions

Limited, Ligare Aviation Private Limited, Ligare Voyages Private Limited,

Ranchem Private Limited, ANR Securities Private Limited, RHC Holding

Private Limited, Oscar Investments Limited, Fortis Healthcare Holding

Private Limited (“FHHPL”), RWL Healthworld Limited and Religare

Capital Markets International Mauritius Limited) and for which the shares

of Fortis Healthcare Limited (“FHL”) owned by FHHPL were pledged

from time to time, including where top-ups with respect to the pledges

were made, in violation of the orders and undertakings given to the

Hon’ble Delhi High Court (“DHC”) and the SC. A list of borrower entities

is annexed herewith as Annexure “P-3”.

64

3.As per MMS and SMS, the following assets are available for sale to

purge a part of the contempt:

S. NO.LOCATION OF

LAND/ BUILDING &

AREA

OWNED BY

LAND

1. Land at Ulhasnagar, Dist.

Thane, Maharashtra: 35.150

Acre

Green Grass Estates

Pvt Ltd.

2. Land at Ulhasnagar, Dist.

Thane, Maharashtra: 31.775

Acre

White Feather Estates

Pvt. Ltd.

3. Land at Badlapur, Maharashtra:

129.560 Acre

Vitoba Realtors Pvt.

Ltd.

4. Land and Building at Asola,

Delhi: 5 Bigha 16 Biswas

Bindas Realtors Pvt.

Ltd.

5. Land at Mehsana, GujaratRHC Holding Pvt. Ltd.

6. Land at Mehsana, GujaratRHC Holding Pvt. Ltd.

7. Land [Noida/Ludhiana]-

12,845 Sq Feet- Noida

3578.96 Sq Yard-Ludhiana

Green Biofuels Farms

Pvt. Ltd.

8. Land-Gawalpahari, Gurgaon-

27.57 Acre

Greenline Buildwell

Pvt Ltd.

BUILDING

9. Flat C-4/5. Ist Floor, Taj

Building, Fort, Mumbai

A-1 Book Company

Pvt Ltd.

4.In addition to the aforesaid land parcels, MMS and SMS have also

stated that the following brands/trademarks are available for sale to purge a

part of the contempt:

BRAND/ TRADEMARK OWNER

1. Religare Elive Infotech Private

Limited (Group

company-owned by the

Contemnors)

2. SRL Headway Brands Private

Limited (group

company-owned by the

Contemnors)

3. Fortis RHS Healthcare

Management Services

(group company-owned

by the Contemnors)

5.As per SMS, an amount of US$ 10.89 million is available with Ligare

Voyage (Ireland) Limited. Accordingly, this Hon’ble Court mat by pleased

65

to direct the Contemnors deposit this amount, i.e., US$ 10.89 million held

by Ligare Voyages, with this Hon’ble Court [Vol. 88/Page 7,9,33]

TYPE OF ASSET ENTITY

Cash in Bank

[US$ 10.89 Mn]

Ligare Voyages (Ireland) Limited

6.The request for the aforesaid sale of lands/properties given by MMS

and SMS should be considered favorably by this Hon’ble Court, and a

retired judge of this Hon’ble Court may be appointed to undertake this sale

process in a time-bound manner.

B. Banks

7.Banks and financial institution who have created additional pledges or

exercised right of top-ups after 24 May 2016 (i.e., the date of the first

assurance) have been instrumental in the systematic dilution of the FHL

shares owned by FHHPL. The Judgment Debtors have deliberately

pledged the shares in relation to (and as collateral for) dubious loans

extended to the various group companies of FHL (owned and controlled by

the Singh Brothers). Eight banks and financial institutions (Axis Bank,

Yes Bank, RBL Bank, ECL Finance Limited, First Abu Dhabi Bank,

Indiabulls, Aditya Birla Finance Limited and Lakshmi Vilas Bank) have

engaged in this reprehensible conduct and, as per the share price as on 11

May 2021, the vale of the shares pledged after 24 May 2016, is

approximately and amount of INR 2859,45,32,748/- (That is, Indian

Rupees Two Thousand Eight Hundred Fifty-Nine Crores Forty-Five Lakhs

Thirty-Two Thousand Seven Hundred Forty-Eight Only).

Banks and financial institution who have created pledges or exercised right

of top-ups after 24 May 2016 (i.e., the date of the first undertaking), should

be directed to deposit the equivalent amounts with this Hon’ble Court.

This Hon’ble Court may also direct that the money being deposited by the

banks and financial institution is pursuant to the exercise of its contempt

jurisdiction and, therefore, any and all monies if so directed to be

deposited to purge the contempt can only be released in favour of Daiichi

who has suffered as a result of the contemptuous acts. A table of pledges

created (after 24 May 2016) by each bank and the total value is annexed as

Annexure “P-4”.

8.DCB Bank, HDFC Limited and Citi Corp Finance (Noticee Nos. 12, 10

and 13 respectively) have not appeared before this Hon’ble Court despite

service of the notice on them. This Hon’ble Court should cancel the

pledges created by them on the shares of FHL as owned by FHHPL in

violation of the court orders and they should be directed to deposit the

equivalent amount with the Hon’ble Court. [Vol.210/Page 82]

66

9.This Hon’ble Court may direct RBL Bank to deposit a sum equivalent

to the value of 4,20,000 shares of FHL i.e., approx., INR 9,88,89,000

(Indian Rupees Nine Crores Eighty-Eight Lakhs Eighty-Nine Thousand

Only) which were injuncted from being transferred or sold by order dated

15 April 2021 of the SC.

10. While Indiabulls sold 12,25,000 shares of FHL in violation of the

orders of the SC and has been held guilty for this, it has also sold 9,04,760

shares during the period of 05 September 2018 – 21 September 2018 I

gross violation of orders of this Hon’ble Court. Therefore, the SC should

direct Indiabulls to deposit an amount of INR 21,30,25,742 (Indian Rupees

Twenty-One Crores Thirty Lakhs Twenty-Five Thousand Seven Hundred

and Forty-Two Only), which is an amount equivalent of the value of these

shares (as on 11 May 2021). No separate suo motu contempt proceedings

are required.

11. Axis Bank still retains 90,00,000 shares of FHL and these shares must

be directed to be sold and the monies so realized must be deposited with

this Hon’ble Court.

12. There was an unlawful top-up of shares by banks of:

(i)5,00,000 shares by First Abu Dhabi Bank on 31 May 2017 (Approx.

value: INR 11,74,00,000 (Indian Rupees Eleven Crores Seventy-Four

Lakhs Only)); and

(ii)1,10,00,000 shares by Axis Bank on 30 November 2016 (Approx.

value: INR 11,77,25,000 (Indian Rupees Eleven Crores Seventy-Seven

Lakhs Twenty-Five Thousand Only)).

First Abu Dhabi Bank and Axis Bank should therefore be directed to

deposit the aforesaid amounts equivalent to the value of the shares which

were unlawfully topped-up in blatant violation of orders of the DHC and

the SC.

13. This Hon’ble Court may allow Daiichi Sankyo to withdraw INR

17,93,40,000 deposited by Indiabulls on 18 November 2019 in compliance

with the directions in the judgment dated 15 November 2019. Daiichi has

filed I.A. No. 50764 of 2019 seeking withdrawal of these monies. [Vol.91]

C. Fortis Healthcare Limited

14. By their undertaking as recorded in DHC’s order dated 21 June 2017,

Respondents/Judgment Debtors had assured that a sum of INR 2341.90

crores will always be available and realizable to satisfy the Award dated

29 April 2016. At this juncture, the Singh Brothers were the Chairman and

the Managing Director of FHL.

15. Daiichi Sankyo has the right to recover the amount of INR 2341.90

crores from FHL because FHL is also subject to and bound by the

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undertakings given from time to time by the Singh Brothers. By the theory

of attribution, the undertakings/representations/assurances made from time

to time are as if they have been (and, indeed, should be deemed to have

been made by FHHPL and FHL, both of whom (although there are not

judgment debtors) form part of the Fortis Group. It is submitted that FHL

is as bound by the assurances/undertakings given eight times because,

inter alia, the Singh brothers were the directing mind and will of FHL.

16. FHL and IHH have violated the order dated 14 December 2020 of this

Hon’ble Court by transferring an amount of INR 4000 crores (that is,

Indian Rupees Four Thousand Crores) outside India to RHT Trust,

Singapore. This amount should be brought back and deposited with this

Hon’ble Court. This Hon’ble Court has initiated suo moto contempt action

against FHL in this regard. FHL, IHH and NTK must be directed to

deposit this amount with this Hon’ble Court.

D. RHT Trust

17.Notice of contempt to be issued to RHT Trust and its following

officials;

(i)Tank Kang Fun-CEO/CFO-Trustee Manager; and

(ii) Gurpreet Singh Dhillon – former CEO and Executive Director of the

RHT Trust and a close relative of the Singh Brothers.

This Hon’ble Court may direct RHT Trust and Gurpreet Singh Dhillon to

explain their roles in:

(i)the transfer of INR 4000 crores by FHL to RHT Trust in breach of the

order dated 14 December 2018 of the SC:

(ii)the further transfer of the monies to RHT’s unitholders (including

directly/indirectly members of the Dhillon family and the Singh

Brothers) which was also in violation of the order dated 14 December

2018. This transfer involved a further transfer of INR 817 crores to

FHL (as a unitholder); and

(iii)the execution of definitive agreement dated 13 February 2018 between

FHL and RHT for the buy-back of RHT portfolio assets based on the

term sheet dated 14 November 2017 and disclosure to the SGX dated 15

November 2017 that resulted in the transfer of a controlling stake in

FHL to IHH. This was in breach of the assurances given to the DHC

and the status quo order of this Hon’ble Court.

E. Religare

1.Any IBC proceeding should be subject to the outcome of the contempt

proceedings and orders passed by this Hon’ble Court.

2.No IBC proceeding should be admitted against the judgment debtors,

Fern Healthcare Private Limited, Modland Wears Private Limited and

ANR Securities Private Limited.

3.This Hon’ble Court may reserve the right of Daiichi Sankyo to raise all

the arguments raised before this Hon’ble Court and the NCLT may be

68

directed to examine all arguments without prejudice to any arguments

under Section 65 of the IBC.

4.The proceedings against 23 entities initiated by Religare Finvest

Limited, if permitted, will directly impact the outcome of the contempt

proceedings.”

25.In the backdrop of these submissions, following questions arise for our

consideration: -

(a)Whether the acts of commission or omission on part of Contemnor

Nos.9 and 10 and the entities controlled by them, were calculated

to put the assets of the companies under their control beyond the

reach of Daiichi?

(b)Having given clear assurances to the High Court and this Court,

whether such acts of commission and omission on part of

Contemnor Nos.9 and 10 amount to contempt of the orders passed

by the High Court and this Court?

(c)Whether the banks and financial institutions sold the shares which

were pledged with them, purely as a matter of commercial

expediency or whether there was any deliberate act of defiance to

defeat the rigour and width of the orders passed by the High Court

and this Court?

(d)Whether the acts committed by them were in connivance with

Contemnor Nos.9 and 10?

69

(e)Whether the transactions entered into by or with IHH/ NTK were

bona fide or whether there was a deliberate attempt to defeat the

processes of Court and thereby keep the assets beyond the reach of

Daiichi?

26.The first two questions raised hereinabove need no further elaboration as

the conduct of contemnor Nos.9 and 10 was considered and they were

held guilty of having committed contempt of the orders passed by the

High Court and this Court. While holding them guilty, by its judgment

and order dated 15.11.2019 this Court had given them an opportunity to

purge themselves of contempt. Therefore, insofar as the role played by

Contemnor Nos.9 and 10 is concerned, the matter rests in a narrow

compass i.e., whether they have purged themselves of contempt or not?

The kind of assets that have been offered by said Contemnor Nos.9 and

10 in their affidavit are so inadequate that it is impossible to satisfy the

amount awarded in favour of Daiichi in the foreign arbitral award. We

are, thus, left with no alternative but to hold that said Contemnor Nos.9

and 10 have failed to purge themselves of contempt. As a matter of fact,

there is no genuine attempt on their part. The question then comes up is

about the quantum of sentence. Considering the enormity of their actions,

in our view, the maximum sentence that can be awarded, must be

imposed. We, therefore, sentence them to suffer six months

70

imprisonment and impose fine of Rs.5,000/- for having committed

contempt of court with default sentence of two months.

27.That takes us to the next set of questions regarding the role played by the

noticee banks and financial institutions. With the assistance of the

learned counsel appearing for the parties we made an attempt to go

through the documents placed on record but find ourselves unable to

come to a definite conclusion whether there were antecedent

arrangements which enabled said banks and financial institutions to keep

attaching the shares and keep on converting large quantity of shares from

the compartment of “unencumbered shares” to that of “encumbered

shares” and thereafter keep disposing of said shares. We are also unable

to come to a clear conclusion whether all those actions were protected by

the order dated 15.02.2018 passed by this Court enabling the banks and

financial institutions to sell encumbered shares.

This exercise will require going into issues of fact, comparing of

the documents and accounts as well as considering the expediency

whether the shares were required to be sold in order to keep affording

comfort and sufficient security to said banks and financial institutions.

28.It is true that it is possible for a court, while exercising jurisdiction in

contempt, to pass consequential orders in the nature of sequestration

orders to secure the properties which the contemnor had put beyond the

71

reach of the court or which were acquired by the contemnor for himself or

for any other person or entity by his wrongful acts. But there are two

difficulties to undertake such exercise in contempt jurisdiction in the

present matter. First, these noticees were not parties to the initial

proceedings in this Court. Secondly, they have come up with a defence

that all their acts were purely commercial in nature and it was the

expediency of the situation which demanded such actions on their part.

These issues need to be gone into at the appropriate stage(s). But before

reacting that level, a factual analysis in the form of forensic audit as

suggested by Daiichi is also required to be undertaken. Such exercise

will certainly help the court in arriving at an appropriate conclusion and

in passing appropriate orders or directions. We, therefore, refrain from

passing any directions against said banks and financial institutions for the

present but observe that the executing court or any other authority

competent to exercise such power shall do well to appoint forensic

auditor(s) to undertake proper exercise to unravel the truth.

29.Insofar as the issues concerning the acquisition of proprietary interests in

hospitals and diagnostics centers at a price of Rs.4,666 crores by FHL is

concerned, facts on record are not quite adequate to enter into such arena.

Prima facie, it appears to be acquisition of proprietary interest to subserve

the business structure of FHL as suggested by IHH/NTK. But again, that

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is a matter to be enquired into and facts to be assessed in the light of any

forensic analysis, if the court so deems appropriate.

30.In the premises we pass following directions:

(a)Contemnor Nos. 9 and 10 are sentenced to suffer six months

imprisonment and pay fine in the sum of Rs.5,000/- each within four

weeks from today. In case of default of payment of fine, the contemnors

shall undergo further imprisonment of two months.

(b)Special Leave Petition (Civil) No.20417 of 2017, Contempt

Petition No.2120 of 2018 in SLP (C) No.20417 of 2017 and Suo Motu

Contempt Petition (C) No.4 of 2019 are disposed of with a direction to

the High Court, before whom the proceedings in execution are pending,

to consider appointment of forensic auditor(s) to analyse the transactions

entered into by the noticee banks and financial institutions and to look

into whether such transactions were bona fide and entered into in

commercial expediency.

(c) The executing court may also consider issuing appropriate process

and appointing forensic auditor(s) to analyse the transactions entered into

between FHL and RHT and other related transactions.

(d) The amount of Rs.17,93,40,000/- which stands deposited in the

Registry of this Court shall be transmitted to the executing court along

73

with interest accrued thereon. The said amount shall be available to the

executing court while considering execution of the instant foreign arbitral

award.

(e)Certain shares which are still lying with the noticee banks and

financial institutions, for example, the shares of FHL pledged with and

continued to be held by RBL Bank which were dealt with in the order

dated 15.04.2021 passed by this Court, shall be available to the executing

court and shall abide by such order as the executing court may deem

appropriate to pass.

(f) All the properties offered by Contemnor Nos.9 and 10 in their

attempt to partially purge themselves of contempt shall also be available

to the executing court and shall abide by such directions as the executing

court may deem appropriate to pass. Consequently, there shall be

attachment of all those assets which may await the decision or direction

to be passed by the executing court in due course of time which may also

include the questions whether the assets in question apparently in the

names of certain persons/ entities can be proceeded against.

(g)Needless to say that it shall be open to the executing court to pass

such directions as the facts and circumstances presented before it may

justify.

74

(h) All pending proceedings before the concerned courts, including the

First Information Reports and proceedings before NCLT shall be taken to

logical conclusion in accordance with law.

(i)The Registry shall send copies of all volumes, submissions and

pleadings filed by the parties in the instant matters to the executing court

for facility and record.

.…………………………….CJI.

[Uday Umesh Lalit]

………………………………..J.

[Indira Banerjee]

………………………………..J.

[K.M. Joseph]

New Delhi;

September 22, 2022.