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NON-REPORTABLE    

 IN THE SUPREME COURT OF INDIA  CIVIL APPELLATE JURISDICTION  

CIVIL APPEAL NO.1674 OF 2020  (Arising out of SLP(C)No.22038/2017)  

SHAKTI NATH & ORS.     …Appellants  

Versus  

ALPHA TIGER CYPRUS INVESTMENT   NO.3 LTD. & ORS.        …Respondents            

O R D E R  

 Leave Granted.  

1. The present Appeal has been filed to challenge an award  

passed in an ICC arbitration with its seat in New Delhi.   

The Appellant has challenged the judgment dated  

08.05.2017 passed under Section 37 of the Arbitration and  

Conciliation Act, 1996 (“Act”), whereby a division bench of  

the Delhi High Court rejected the Appeal.  

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2. The factual background in which the present Appeal has  

been filed is as follows : -  

2.1. The Appellant-Promoters entered into a Shareholders  

Agreement (“SHA”) and a Share Subscription and  

Purchase Agreement (“SSPA”) with Respondents No.1  

and 2 both dated 21.03.2008 to acquire 50%  

shareholding in Respondent No. 3 for the development  

of a Special Economic Zone for Information Technology  

and Information Technology Enabled Services. The  

project was to be developed on a plot of land  

admeasuring approx. 45,202 sq. mts. in NOIDA  

(“Project Land”) which was allotted to one M/s Sarv  

Mangal Real Tech Pvt. Ltd. (“M/s Sarv Mangal”). The  

Project Land was sub-leased by M/s Sarv Mangal to  

Respondent No. 3.   

2.2. The SHA and SSPA were terminated. The parties  

entered into a Restated Shareholders Agreement  

(“RSHA”) and a Restated Share Subscription and  

Purchase Agreement (“RSSPA”) both dated 02.07.2009.   

As per Clause 3.3 and 3.4 of the RSSPA,  

Respondents No. 1 and 2 were required to contribute

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Rs.45 crore to purchase and subscribe the shares in  

Respondent No.3, which was brought in by  

17.12.2009.   

2.3. The Appellants terminated both the agreements on  

17.12.2009. The Respondents No. 1 and 2 invoked  

arbitration, and submitted the Request for Arbitration  

to the ICC Court under the RSHA and RSSPA.  

2.4. The Tribunal vide its award (2:1) dated 20.01.2015  

allowed the claim of Respondents No. 1 and 2, and  

awarded the following : -   

a) payment of Rs.45,00,27,747/- together with Simple  

Interest @ 18% p.a. from 31.10.2011 to the date of the  

award;  

b) payment of Simple Interest @ 15% p.a. on all sums  

awarded to the claimants in the award, till the date of  

payment;  

c) the Appellants were not entitled to repayment of lease  

rental paid to NOIDA from Respondents No. 1 and 2,  

and the Respondent-Claimants were under no  

obligation to share future lease rental;

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d) the Appellant-Promoters were directed to pay costs of  

the arbitration comprising of:   

i. fees and expenses of the arbitral tribunal and the  

ICC administrative expenses fixed by the ICC Court  

for the total amount of USD 900,000;  

ii. Rs.2,39,08,082/- towards the legal fees of the  

Respondent-Claimants;   

iii. costs of the hearing venue in the amount of  

Rs.6,57,635/-;  

iv. a sum of Rs.1,274,931/- in respect of other costs  

and expenses of the Respondent - Claimants.  

2.5. The Appellants filed objections under S. 34 of the 1996  

Act before the Delhi High Court. The learned Single  

Judge vide Order dated 09.02.2017 rejected the  

challenge on merits, and held that it was an   

undisputed fact that Respondents No. 1 and 2 had  

brought in a sum of Rs.45,00,27,747/- for the project.  

The Appellants had terminated the RSHA and RSPA  

soon after the funds were brought in by Respondents  

No. 1 and 2. The Court found the findings of the

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arbitral tribunal to be consistent with the terms of the  

agreement.    

2.6. Aggrieved, the Appellants preferred an Appeal under S.  

37 of the Act before the Division Bench of the Delhi  

High Court. The Division Bench vide judgment and  

order dated 08.05.2017 rejected the Appeal as being  

devoid of any merit.    

3. The Appellants have challenged the Order passed under S.  

37 of the 1996 Act by way of the present Special Leave  

Petition.   

3.1. This Court vide interim Order dated 15.09.2017  

directed the Appellants to deposit an amount of  

Rs.20,00,00,000/- (rupees twenty crore) in the  

Registry of this Court, which was directed to be  

invested in a short-term fixed deposit account with a  

nationalised bank. The Appellants were injuncted  

from alienating the Project Land, so that in the  

ultimate eventuality, if the award was sustained by  

this Court, it could be realised from the sale of the  

Project Land.   

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3.2. By a subsequent Order dated 01.05.2018,  

Respondent No.1 was permitted to withdraw an  

amount of Rs.10 crore unconditionally, from the  

amount lying deposited in this Court.    

3.3. By a further Order dated 14.11.2019, the Senior  

Counsel for the Appellants requested for time to find a  

suitable buyer for the Project Land.  It was made clear  

that the sale would be under the auspices of a public  

authority or a court officer, and the entire sale  

consideration would be deposited in the Registry of this  

Court.    

It was further directed that the balance amount of  

Rs.10 crore along with the accrued interest, which was  

lying been deposited in the Registry of this Court,  

would be released to Respondent No.1.    

The counsel for the Appellants made a request to  

join NOIDA as a party to the present proceedings since  

the Project Land was leased out by NOIDA.  

Consequently, Notice was issued to implead NOIDA in  

the proceedings.   

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3.4. The Appellants filed an affidavit dated 05.12.2019  

stating that the Project Land was free from any and all  

encumbrances, and was not subject to any pre-existing  

mortgage or charge.   

It was further submitted that the Appellants were  

able to identify a party which was interested to acquire  

the sub-lease of the Project Land, viz. M/s. Good Living  

Infrastructure Pvt. Ltd. (“Bhutani group”). The Bhutani  

group had submitted their Expression of Interest to  

acquire the sub-lease of the Project Land from NOIDA  

by acquisition of shares of Respondent No. 3 for a total  

consideration of Rs.99,44,55,000/-.  The Bhutani  

group was willing to deposit the sale consideration in  

the Registry of this Court, after deducting the dues  

payable to NOIDA. A copy of the Expression of Interest  

dated 26.11.2019 was placed on the record of this  

Court.   

The Appellants further submitted that the balance  

amount would be raised by mortgaging the property  

situated at Industrial Plots No. 4 and 5, Block A, Sector

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16, NOIDA, owned by Appellant No. 4, which is being  

used as the Corporate Office.   

The CEO of M/s Good Living Infrastructure Pvt.  

Ltd. who was present in Court confirmed that his  

Company stands by the offer of Rs 99,44,55,000/-  

made by him before the Court.   

M/s Good Living Infrastructure Pvt. Ltd. was  

directed to file a Board Resolution along with an  

affidavit to confirm the offer before the next date of  

hearing.   

3.5. M/s Good Living Infrastructure Pvt. Ltd. through its  

CEO/ Additional Director, duly authorized by a Board  

Resolution dated 20.12.2019, filed an Affidavit dated  

06.01.2020 before this Court to place on record its  

Interest to acquire the sub-lease of the property  

bearing Plot No.001B situated Sector 140A in NODIA  

district Guatam Budh Nagar, U.P. admeasuring  

45,202.50 sq. mts. held by M/s IT Infrastructure Park  

Ltd. (Respondent No.3) for a consideration of Rs.  

99,44,55,000/-. This would be effectuated by  

acquisition of shares of Respondent No.3 which holds

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the aforesaid property under a sub-lease executed  

between NOIDA–the Lessor, M/s Sarv Mangal Real  

Tech Pvt. Ltd.–the Lessee, and Respondent No.3–the  

sub-lessee under Sub Lease dated 21.10.2009.   

In the said Affidavit, Bhutani Group stated that it  

is aware of the pending litigation before this Court, and  

is willing to deposit the entire sale consideration with  

the Registry of this Court, including the dues payable  

to NOIDA.   

3.6. With respect to the dues of NODIA, we requested the  

Counsel for NOIDA to ascertain whether penal interest  

on land rent and interest could be waived.     

3.7. During the course of hearing on 22.1.2020, the dues  

payable to NOIDA were crystallised as follows :-  

 (i) Pending Instalment amounts with  

Simple Interest @ 14% p.a.  

Rs.23,21,00,000  

(ii) Lease Rent dues with Simple Interest  

@ 14% p.a.  

Rs.11,93,00,000  

(iii)Time Extension charges Rs.6,57,38,900  

(iv) Additional amount payable to land –  

owners as compensation  @ 64.7%  

Rs.93,36,577  

________________  TOTAL Rs.42,64,75,477  

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4. After having heard the Counsel appearing for all the parties,  

the challenge to the ICC award is hereby rejected.   

With respect to the amount awarded towards Interest  

and Penal Interest under the award, the same has been  

modified by consent of parties, as a prudent commercial  

decision, in the following terms :-  

i) The Appellants agree to make a total payment of  

Rs.107.50 Crores (Rupees One Hundred and Seven  

Crores and Fifty Lacs) to Respondents No. 1 and 2 as full  

and final settlement of their dues under the award dated  

20.01.2005.   

ii) Out of the total amount of Rs.107.50 crores,  

Respondents No.1 and 2 have already received an  

amount of Rs.21,53,00,000/- (Rupees Twenty One Crore  

FiftyThree Lacs) pursuant to the Interim Orders dated  

01.05.2018 and 14.11.2019 passed by this Court.    

The balance amount payable to Respondents No.1 and  

2 would be Rs.85,97,00,000/- (Rupees Eighty Five Crore  

Ninety Seven Lacs).    

iii)   M/s. Good Living Infrastructure Private Ltd. of the  

Bhutani Group agreed and undertook to pay

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Rs.99,44,55,000/- for the purchase of the entire  

shareholding of Respondent No.3 - IT Infrastructure Park  

Pvt. Ltd. from the Appellants and Respondents No.1      

and 2.  

      Out of this amount, Rs. 42,64,75,477/- would be  

paid directly towards the dues of NOIDA. The Bhutani  

Group would be at liberty to make a representation to  

NOIDA within one week for re-schedulement as per its  

prevailing policy, which would be decided within a further  

period of one week.   

iv) The balance sale consideration of Rs.56,79,79,523/-  

(99,44,55,000 minus 42,64,75,477) would be deposited  

by M/s Good Living Infrastructure in the Registry of this  

Court.  The deposit by M/s Good Living Infrastructure  

would be made in 2 tranches :-    

Rs.10,00,00,000/- Upfront payment to be deposited within 10  

days of the passing of this Order.  

Rs.56,79,79,523/- To be deposited within 6 months from the  date of this Order.  

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The aforesaid amounts would be made over to  

Respondent Nos.1 and 2 towards payment of the balance  

sale consideration.   

v) The balance amount of Rs.29,17,20,477/- payable by the  

Appellants to Respondents Ns.1 and 2 would be carried  

out within a period of 3 months from the passing of this  

Order.   

vi) The orders of injunction dated 24.03.2017 and 17.08.2017  

passed by the Delhi High Court restraining the Appellants  

from alienating Industrial Plots No.4 and 5, Block A,  

Sector-16, NOIDA is hereby lifted, to enable the Appellants  

to raise funds for payment of the balance amount as stated  

in para (ii) hereinabove.   

5. The Appellants were directed to file an Affidavit of  

Undertaking before this Court, with respect to the  

obligations to be discharged as per the Consent Terms set  

out hereinabove.   

6. The Appellant No.1- Mr. Shakti Nath has filed an Affidavit of  

Undertaking dated 10.02.2020 on behalf of all the  

Appellants, stating that:  

“1.   I am the Petitioner No.1 in the above mentioned Petition and  

am filling this affidavit on behalf of all Petitioners. Petitioners

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No.2 and 3 are my wife and son, respectively, and the  

Petitioner No.4 is a private limited company of which I am the  

Managing Director and 96.26% shareholder while the  

remaining shareholding is held by the Petitioners No.2 and 3,  

respectively.  

2. Under the kind supervision of this Hon’ble Court, the parties  

have agreed to settle the dispute forming part of the present  

Petition at a total settlement amount of Rs.107,50,00,000/-  

(Rupees One Hundred Seven Crore Fifty Lakhs Only). It has  

further been agreed that the Respondent No.3 will be  

purchased by way of purchase of its entire shareholding from  

the Petitioners and the Respondents No. 1 & 2 by Good Living  

Infrastructure Pvt. Ltd. (“GLI’), for Rs.99,44,55,000/- (Rupees  

Ninety Nine Crore Forty Four Lakhs Fifty Five Thousand only),  

out of which an amount of Rs.42,64,75,477/- (Rupees Forty  

Two Crore Sixty Four Lakhs Seventy Five Thousand Four  

Hundred Seventy Seven Only) or thereabouts shall be paid to  

NOIDA directly by GLI towards payments of dues to NOIDA  

as determined by this Hon’ble Court. The balance amount of  

Rs.56,79,79,523/- (Rupees Fifty Six Crore Seventy Nine  

Lakhs Seventy Nine Thousand Five Hundred Twenty Three  

only) shall be deposited by GLI with this Hon’ble Court for  

payment to the Respondents No.1 & 2.  

3. Of the total settlement amount of Rs.107.50 Crores, the  

Respondents have already received an amount of Rs.21.53  

Crores from the Registry of this Hon’ble Court, which  

comprises the amount of Rs.20 Crores deposited by the  

Petitioners pursuant to the order dated 15.09.2017 of this  

Hon’ble Court, along with the interest accrued thereon. Thus,  

the total amount now payable to the Respondents No.1 & 2

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comes to Rs.85.97 Crores. Since the Respondents No.1 & 2  

will receive an amount of Rs.56,79,79,523/- from GLI, there  

will be a shortfall of Rs.29,17,20,477/- (Rupees Twenty Nine  

Crore Seventeen Lakhs Twenty Thousand Four Hundred  

Seventy Seven only) approximately, which will be deposited  

by the Petitioners with this Hon’ble Court.  

4. The Petitioners undertake to deposit the above mentioned  

shortfall of Rs.29,17,20,477/- or thereabouts within 3 months  

of the lifting of the status quo upon their immovable properties,  

which has been ordered by the Hon’ble Delhi High Court by  

its orders dated 24.03.2017 and 17.08.2017 passed in  

Execution Petition bearing OMP (ENF) (COMM) No.45 of 2017.  

The said status quo is required to be lifted in order to enable  

the Petitioners to raise loan against the said immovable  

properties so as to enable them to deposit the shortfall amount  

with this Hon’ble Court.  

5. The Petitioners hereby undertake that till such time that the  

entire settlement amount is paid to the Respondents No.1 &  

2, the Petitioners shall not create any third party rights or  

interest over the above mentioned immovable properties for  

the purpose of raising loans to deposit with this Hon’ble Court  

the amounts payable to  the Respondents No.1 & 2 as per the  

settlement reached between the parties."  

7. M/s Good Living Infrastructure Pvt. Ltd. (“GLI”) has also  

filed an Affidavit of Undertaking dated 10.02.2020 stating  

that :   

“1.   I am the CEO/Additional Director of M/s Good Living  

Infrastructure Pvt. Ltd. (“GLI”) and have been duly

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authorized by GLI vide Resolution of Board of Directors  

dated 20.12.2019 to give the present undertaking on its  

behalf.  

2.  That GLI undertakes to pay a sum of Rs.99,44,55,000/-  

towards the purchase of entire shareholding of IT  

infrastructure Park Pvt. Ltd. (Respondent No. 3) from the  

Petitioners and Alpha Tiger Cyprus Investment No.2 Ltd.  

and Alpha Tiger Cyprus Investment No.3 Ltd. in order to  

acquire the sub lease of the property bearing Plot No. 001B  

situated at Sector 140A in Noida, District Gautam Budh  

Nagar, Uttar Pradesh.   

3. That out of total sum of Rs.99,44,55000/-. GLI undertakes  

to pay the dues payable to NOIDA, amounting to  

Rs.42,64,75,477/-, directly to NOIDA. In this regard, GLI  

seeks liberty from this Hon’ble Court to approach NOIDA for  

reschedulement of payment of the above mentioned sum.  

GLI undertakes to make the appropriate representation/  

application to NOIDA for such reschedulement within one  

week of the receipt of the order passed by this Hon’ble  

Court granting the liberty sought herein.  

4. That GLI undertakes to deposit the balance purchase price  

after deducting the NOIDA dues therefrom with the Hon’ble  

Court i.e. an amount of Rs.56,79,79,523/-, in the following  

manner:  

Rs. 10,00,00,000/- Upfront deposit to be made with the  

Court within 10 days of the signing of  

the Share Purchase Agreement  

between all the Parties, which shall

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also be deposited in the custody of  

the Hon’ble Court.   

Rs. 46,79,79,523/- To be deposited within a period of  

four months with an additional grace  

period of two months after the  

passing of the final order by the  

Hon’ble Court.   

5. It is prayed that the balance amount of Rs.46,79,79,523/-  

be distributed to Alpha Tiger Cyprus Investment No.2 Ltd.  

and Alpha Tiger Cyprus Investment No.3 Ltd by this  

Hon’ble Court after the transfer of the entire shareholding  

of Respondent No.3 to GLI.   

6. I say that the above mentioned undertaking is voluntary  

and unconditional.”  

8. In the event of any default in payment of the amounts by  

Appellants, the entire amount awarded as per the award  

dated 20.01.2015, would become enforceable. However,  

prior to enforcement, a window of 2 months would be  

granted to the Appellants to make provision for compliance.  

On the expiry of the aforesaid period of 2 months, the entire  

decree would become executable forthwith.   

9. M/s Good Living Infrastructure Pvt. Ltd. is bound by the  

unconditional undertaking submitted on Affidavit before

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this Court. Any default by M/s Good Living Infrastructure  

Pvt. Ltd. would be treated as a breach of the undertaking  

submitted to this Court.   

    The present Appeal is accordingly disposed of as per  

the aforesaid Consent Terms.    

   Pending applications, if any, stand disposed.   

..….…….....................J.  (UDAY UMESH LALIT)  

…..….........................J.  (INDU MALHOTRA)  

New Delhi;  February 18, 2020.