M/s. DAIICHI SANKYO COMPANY LIMITED v. OSCAR INVESTMENTS LIMITED & ORS.

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A 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) B • 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 C • 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 D 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 E • 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 F • Cancellation of Pledges created or top up rights exercised after 24.⁵.2016 • Withdrawal of Amount deposited by Indiabulls on 18.11.2019 G • 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

M/S. DAIICHI SANKYO COMPANY LIMITED v. OSCAR 1065 INVESTMENTS LIMITED [UDAY UMESH LALIT, CJI]

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 B • 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 C 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 D • YBL is not a judgement debtor qua the Petitioner • YBL has several recovery proceedings pending against the JDs • FHHPL, under various pledge agreements with YBL, gave a representation that there was no litigation E pending qua the FHL Shares. • No personal guarantee obtained from SMS • Cross Collateralization is not creation of fresh encumbrances F Q. Volume 228: Axis Bank Limited • A clean chit had been given to ABL • Vol.197 Filed • No Top Ups created by ABL G • 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 H

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A R. Volume 162/229: Submissions by Lakshmi Vilas Bank (Noticee No.17): • No notice of proceedings • Bonafide Transactions(s) with Ranchem B • 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 C

2. Contempt Petition (C) 2120/2018

3. SMC (C) 4/2019 • Banks and Financial Institutions categorized into three:

D 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 24.⁵.2016

E 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 F • 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

16Copy pinpoint16. 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 Bank Ltd. (YBL), Axis Bank Ltd. (ABL) and Indiabulls Housing H Finance Limited (IHFL) submissions were advanced by Mr. Shyam

M/S. DAIICHI SANKYO COMPANY LIMITED v. OSCAR 1067 INVESTMENTS LIMITED [UDAY UMESH LALIT, CJI]

Divan, learned Senior Advocate while rest of the Noticees were A represented by the other learned Counsel.

17Copy pinpoint17. 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; B 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. (D) These transactions were not bona fide and in order to unravel the truth, this Court may consider appointing Forensic Auditor(s).

18Copy pinpoint18. 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: F “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 G 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. H

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A 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). B 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 E “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. Were it not to be so, the lenders would have asked for topping of the securities” [SLP Vol. 149/Page 18-25].

F 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 G 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 ofFHL. In respect of I.A. No. 43119 of2020 filed by MMS in the SLP, the Petitioner H filed its reply [SLP Vol 110/Page 1-11], inter alia, agreeing with

M/S. DAIICHI SANKYO COMPANY LIMITED v. OSCAR 1069 INVESTMENTS LIMITED [UDAY UMESH LALIT, CJI]

the proposal for a forensic audit of all entities in Table “A” and A 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 B 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 C 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) D 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 E 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. F

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/ G financial 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 H

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A 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 B 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 C 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 D Court along with the Judgment Debtors to obtain orders dated 15 February 2018 (modification of ordersdated 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 E 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 F 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 G 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, H

M/S. DAIICHI SANKYO COMPANY LIMITED v. OSCAR 1071 INVESTMENTS LIMITED [UDAY UMESH LALIT, CJI]

Mr Dwivedi categorized the banks and financial institutions into A 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]; B (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 E 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 F 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 G of 2018 in SLP (SLP Vol 40) seeking leave to file additional documents in the Contempt Petition. These documents disclosed the shareholding pattern ofFHL 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 H

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A 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 ofRHT Trust [SLP Vol 40/page 83-85]. The Petitioner prayed that the Judgment Debtors be directed to deposit the entire decretal B 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 C 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 D February 2018 of the status quo orders dated 11 August 2017 and 31August 2017.

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 E 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 F 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. G 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 ofRHT 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 of2019 H

M/S. DAIICHI SANKYO COMPANY LIMITED v. OSCAR 1073 INVESTMENTS LIMITED [UDAY UMESH LALIT, CJI]

[SLP Vol 50] and to I.A. No. 15162 of2019 [SLP Vol 49] in A 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], B 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 C 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 D 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]. E

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]. H

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A 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 B 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/ C 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.

19Copy pinpoint19. 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

E 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 F 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 G 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 been offered for sale; (ii) the lands acquired by these H

M/S. DAIICHI SANKYO COMPANY LIMITED v. OSCAR 1075 INVESTMENTS LIMITED [UDAY UMESH LALIT, CJI]

companies were acquired mostly before 2010, whereas Religare A 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 F 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 G 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.” H

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A 19. In support of the contention that IHH / NTK be directed to put the funds back in FHL,it was submittedthat matter raised following questions: “(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 D 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 E 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 F 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, G 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 H Court that the total assets were in excess of INR 10,000 crores

M/S. DAIICHI SANKYO COMPANY LIMITED v. OSCAR 1077 INVESTMENTS LIMITED [UDAY UMESH LALIT, CJI]

and that in any event, a sum of INR 2341.9 crores will always be A 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 B 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. (b) The manner in which the shareholding of Fortis Healthcare C 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. D (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 E 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. F (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 G 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 H

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A 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, B 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? C (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 Court in Delhi Development Authority v. Skipper Construction3 makes it amply clear that the court can give appropriate directions for remedying and rectifying the things done in violation of its orders. F (b) A reference can also be made to the decisions in s4, 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 lndia⁵).

G (c) At stake in the present case is the sanctity and validity of undertakings given to the Delhi High Court and the Supreme Court.

3 (2007) 15 SCC 60 I - For text, see SMC Vol 36, P 227-251 on para 24-28. 4 (1995) 2 scc584, 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.

M/S. DAIICHI SANKYO COMPANY LIMITED v. OSCAR 1079 INVESTMENTS LIMITED [UDAY UMESH LALIT, CJI]

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? C (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 D 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 Kumar6 and (ii) Vidur lmpex and Traders Private Ltd. v. Tosh apartments Private Ltd.7]. E (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 ofFHL namely lands, buildings, investments, cash account, cash in bank, etc., and can be attached to fulfill the undertaking given. F (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. (d) The first undertaking in the execution proceedings (on 24 May G 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 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. H

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A 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 8 H (1990) 2 SCC 636, (para 7, 8, 9 at page 58-60 of SMC Vol 36)

M/S. DAIICHI SANKYO COMPANY LIMITED v. OSCAR 1081 INVESTMENTS LIMITED [UDAY UMESH LALIT, CJI]

will also be an undertaking on behalf ofFHL. 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 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 ofFHL D 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.”

20Copy pinpoint20. 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 andthere 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 G 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:

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A Loan extended by Loan extended to Amount Cumulative (Rs. amount Crores) (Rs. Crores) Gurinder Singh Dhillon 1.57 223.15 Gurkirat Singh Dhillon 88.78

1. Modland Wears Private Gurpreet Singh Dhillon 79.71 Limited Nayan Tara Dhillon 0.61 Shabnam Dhillon 52.48

B 2. Devera Developers Private Gurkiran Singh Dhillon 65.47 122.62 Limited Gurpreet Singh Dhiilon 57.¹⁶ Gurkirat Singh Dhillon 101.91 292.⁵ Gurpreet Singh Dhiilon 110.81

3. Fern Healthcare Private Sanjay Godhwani 1.92 Limited Sunil Godhwani 68.60 Prime Trust 4.19 C Luminous Hol dings Pvt. 5.07 Ltd.

4. Best Healthcare Private Gurkirat Singh Dhillon 103.37 207.15 Limited Gurpreet Singh Dhiilon 103.78

5. Adept Lifespaces Private Gurkirat Singh Dhillon 85.58 152.88 Limited Gurpreet Singh Dhiillon 67.30 Total 998.3

21Copy pinpoint21. 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.

22Copy pinpoint22. 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 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 G 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 H

M/S. DAIICHI SANKYO COMPANY LIMITED v. OSCAR 1083 INVESTMENTS LIMITED [UDAY UMESH LALIT, CJI]

Assurance’ by the Judgment Debtors (before the Hon’ble Delhi A 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 B 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 C 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) D

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 E 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. F 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) G

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 H

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A 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 B 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 24.⁵.2016, 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 / E 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 24.⁵.2016 and 11.08.2017. Thus, to hold YBL, a bona-fide F 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: G “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 H (23.01.2017) and third assurances (6.03.2017) given by the IDs

M/S. DAIICHI SANKYO COMPANY LIMITED v. OSCAR 1085 INVESTMENTS LIMITED [UDAY UMESH LALIT, CJI]

to the Hon’ble Delhi High Court (Tranches 1 to 9, @Pgs. 1 to 5 A Vol. 197).

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 B 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 C 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) D

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 E 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. F 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) G

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 borrowersbefore various forums for an outstanding amount. As stated in its compliance affidavit, even today there is H

p. 1086 Copy page pinpoint

A approximately an outstanding amount of INR 624 Crores (approx.) as of22.02.2021. (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 B 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). C 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 24.⁵.2016, nor was ABL informed of any injunction existing qua the FHL shares or any other assets of the JDs’ or 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 24.⁵.2016 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.”

23Copy pinpoint23. 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 capitalinto 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 G 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. H It was for the purpose of acquisition of such proprietary interest that the

M/S. DAIICHI SANKYO COMPANY LIMITED v. OSCAR 1087 INVESTMENTS LIMITED [UDAY UMESH LALIT, CJI]

amount of Rs.4,666/- crores was transferred by FHL in favour of RHT A Trust. These transactions were completely bona fide and entered into for the purposes of securing and protecting the 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: B (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 C 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. D (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 H

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24Copy pinpoint24. In its response to the submissions made on behalf of the Contemnors regarding purging of Contempt, following submissions were made on behalf of Daiichi: F “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 G 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. H

M/S. DAIICHI SANKYO COMPANY LIMITED v. OSCAR 1089 INVESTMENTS LIMITED [UDAY UMESH LALIT, CJI]

An illustrative list of such entities is annexed herewith as Annexure A “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 B 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”.

3. As per MMS and SMS, the following assets are available for sale to purge a part of the contempt: S. NO. LOCATION OF OWNED BY LAND/BUILDING & AREA LAND

1. Land at Ulhasnagar, Dist. Thane, Green Grass Estates Pvt Maharashtra: 35.150 Acre Ltd. E

2. Land at Ulhasnagar, Dist. Thane, White Feather Estates Maharashtra: 31.775 Acre Pvt. Ltd.

3. Land at Badlapur, Maharashtra: Vitoba Realtors Pvt. Ltd. 129.560 Acre

5. Land at Mehsana, Gujarat RHC Holding Pvt. Ltd.

6. Land at Mehsana, Gujarat RHC Holding Pvt. Ltd.

7. Land [Noida/Ludhiana]- 12,845 Green Biofuels Farms Sq Feet- Noida Pvt. Ltd. 3578.96 Sq Yard-Ludhiana G

8. Land-Gawalpahari, Gurgaon- Greenline Buildwell Pvt 27.57 Acre Ltd. BUILDING

9. Flat C-4/5. Ist Floor, Taj A-1 Book Company Pvt Building, Fort, Mumbai Ltd. H

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A 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 B Limited (Group company- owned by the Contemnors)

2. SRL Headway Brands Private Limited (group company- owned by the Contemnors)

3. Fortis RHS Healthcare C 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 D mat by pleased 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 Ligare Voyages (Ireland) Limited E [US$ 10.89 Mn]

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. F 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 G 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, H Aditya Birla Finance Limited and Lakshmi Vilas Bank) have

M/S. DAIICHI SANKYO COMPANY LIMITED v. OSCAR 1091 INVESTMENTS LIMITED [UDAY UMESH LALIT, CJI]

engaged in this reprehensible conduct and, as per the share price A 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). B 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 C 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”. D

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 E they should be directed to deposit the equivalent amount with the Hon’ble Court. [Vol.210/Page 82]

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 F Eighty-Nine Thousand Only) which were injuncted from being transferred or sold by order dated 15 April 2021 of the SC.

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A (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.

B 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

C (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

15. Daiichi Sankyo has the right to recover the amount of INR G 2341.90 crores from FHL because FHL is also subject to and bound by the 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 H

M/S. DAIICHI SANKYO COMPANY LIMITED v. OSCAR 1093 INVESTMENTS LIMITED [UDAY UMESH LALIT, CJI]

debtors) form part of the Fortis Group. It is submitted that FHL is A 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 B 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. C

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 D (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 E 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 F 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 G 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. H

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A 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 B 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 directed to examine all arguments without prejudice to any arguments under Section 65 of the IBC. C

4. The proceedings against 23 entities initiated by Religare Finvest Limited, if permitted, will directly impact the outcome of the contempt proceedings.”

25Copy pinpoint25. In the backdrop of these submissions, following questions arise D 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? E (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 institutionssold 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? (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? H

M/S. DAIICHI SANKYO COMPANY LIMITED v. OSCAR 1095 INVESTMENTS LIMITED [UDAY UMESH LALIT, CJI]

26Copy pinpoint26. 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 C 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 imprisonment andimpose fine of Rs.⁵,000/- for having committed contempt of court with default sentence of two months.

27Copy pinpoint27. 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 arrangementswhich 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.

28Copy pinpoint28. 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 H

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A put beyond the 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 auditas 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.

29Copy pinpoint29. 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 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.

30Copy pinpoint30. 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 2019, Contempt Petition No.2120 of 2018 in SLP(C) No.20417 of 2019 and Suo G 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.

M/S. DAIICHI SANKYO COMPANY LIMITED v. OSCAR 1097 INVESTMENTS LIMITED [UDAY UMESH LALIT, CJI]

(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 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. F (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 G pleadings filed by the parties in the instant matters to the executing court for facility and record.

Divya Pandey Directions issued. (Assisted by : Preetam Bharti, LCRA) H