- (1.) The Petitioners mentioned this Company Petition filed u/s. 241, 242, 244 and 246 of the Companies Act, 2013 for interim reliefs against Rl namely Vinca Developer Pvt. Ltd. (hereinafter called as "Vinca"), R2 namely Nederlandse Financierings - Maatschappjj Voor Ontwikkelingslanden N.V. (Netherlands Company - hereinafter referred as "FMO"), R3 & R4 (Nominee Directors on R2 behalf), R5 namely, Hubtown Ltd. (a company owned by the Petitioners, which has shareholding in R1 -hereinafter referred as "Hubtown"), R6 to R9 (Nominee Directors on R5 behalf) and R10 namely IDBI Trusteeship Services Ltd. (hereinafter referred as "Debenture Trustee") with the reliefs as follows: "(a) To pass reliefs u/s. 241 & 242 of the Companies Act 2013 (b) To direct that the Articles of Association of Vinca be modified and be substituted by the Articles as set out in Table - F of Schedule -I of the Companies Act, 2013. (c) To restrain the Nominee Directors of FMO from acting as Directors of Vinca and restrain them from giving any further instructions to the Debenture Trustee, whose Trusteeship has been validly terminated by Vinca. (d) To declare and direct that Board of Directors of Vinca are not bound to act in accordance with instructions of the Nominee Directors of FMO, the same being illegal and unlawful. (e) To remove the Nominee Directors of FMO from the Board of Vinca. (f) To declare all the actions taken by IDBI Trusteeship Services Ltd., in its capacity as Debenture Trustee at the instance of the Nominee Directors of FMO as illegal, null and void. (g) To direct that the OPCDs (optionally partly convertible Debentures) issued in favour of Vinca by Amazia (100% subsidiary of Vinca) and Rubix (100% subsidiary of Vinca) be converted into Equity Shares of Amazia and Rubix. (h) To direct that the CCDs (Compulsorily Convertible Debentures) issued in favour of Vinca not to be converted into Equity Shares until and unless, the transaction is made in compliance with FEMA by conversion OPCDs into ordinary Equity Shares and release of all guarantees and securities. (i) To direct FMO and its Nominee Directors to compensate Vinca for loss caused on account of the failure of FMO and its Nominee Directors to perform its/their obligations and fiduciary duties in the best interest of Vinca. (j) For ad-interim and interim reliefs in terms of prayer clause (b) to (d) above. (k) Ad-interim relief directing the Debenture Trustee to release the shares of Brainpoint and permit the sale/leasing of ATC (Ackruti City Ltd.) units (l) For costs of the Petition (m) For other reliefs which are deemed fit in the circumstances."
(2.) The entire case of the Petitioners is rest on an argument that the investment structure conceived by FMO (foreign investor invested Rs. 418 crores in the year 2009) for bringing foreign investment into Amazia and Rubix (both are 100% subsidiaries of Vinca) routing through Vinca is in breach of Foreign Exchange Management Act (FEMA), therefore the rights accrued to FMO on Rs. 418 crores invested in Vinca by it shall not be exercised and all the rights vested with FMO shall be set aside by this Bench holding FMO exercising its rights for realisation of its money as oppressive conduct against the petitioners, so that these petitioners need not comply with the Honourable Supreme Court Order 15th November 2016. This is a mentioning veiled against the direction of the Honourable Supreme Court dated 5th November 2016 for deposit of these Rs. 418 crores to the satisfaction of Prothonotary and Senior Master, Bombay High Court within three months from the date of the order. The present appeal before Honourable Supreme Court arises out of a Summons for Judgment No. 39 of 2013 in a Summary Suit filed on the original side of the Bombay High Court, by the Debenture Trustee (R10), to enforce rights that arise out of Corporate Guarantee executed by Hubtown (R5 - the company of the petitioners).
(3.) Unless flavour of these historical facts is savoured, it is difficult to understand the arrangement initially entered in between the Petitioners company, Hubtown (R5), Vinca and its Subsidiaries and FMO (R2), hence we brief it as below.;