INDEPAY NETWORKS PVT. LTD. AND RAJIB SAHA MANAGING DIRECTOR OF INDEPAY NETWORKS PVT. LTD. Vs. INDEPAY NETWORKS PVT. LTD. AND EROS CORPORATE TOWER, NEW DELHI

JUDGEMENT

(1.) THE above Chamber Summons is taken out by the Defendant No. 1 "to refer the parties to the suit to arbitration as contemplated under the Arbitration Agreement between the Plaintiff and Defendant No. 1". The Plaintiffs are Companies incorporated under the provisions of the Companies Act, 1956 and carry on the business of software development, information technology services and software services. Plaintiff No. 1 is the subsidiary of Plaintiff No. 2. Defendant No. 1 is a Company incorporated under the provisions of the Companies Act, 1956 and is engaged in the business of financial payments and transaction processing services. Defendant No. 2 is the Managing Director of Defendant No. 1 and has executed a Deed of Personal Guarantee dated 20th January, 2012, guaranteeing repayment of the liability of Defendant No. 1 to the Plaintiffs.

(2.) ACCORDING to the Plaintiffs, in or about January, 2012, Defendant No. 1 approached the Plaintiff No. 1 and requested for loan facilities to fund Defendant No. 1's financial need to capitalize on certain new opportunities available to Defendant No. 1 at the relevant time. Pursuant to the discussions and negotiations in that behalf, the Plaintiff No. 1 and Defendant No. 1 executed a Convertible Loan Agreement dated 20th January, 2012 ("the Loan Agreement") by which the Plaintiff agreed to lend upto Rs. 1,00,00,000/ - (Rupees One Crore only) to Defendant No. 1 for the consideration and on the terms and conditions set out in the Loan Agreement. Clause 2.1 (vi) (a) of the Loan Agreement provided that Defendant No. 1 would mortgage all present and future movable and immovable properties of the Defendant No. 1 including all plant, machinery, furniture, fittings, equipment, book debts, stocks, computer hardware and software and IP rights therein (defined therein as the Mortgaged Assets) in favour of Plaintiff No. 1. Clause 2.1 (vi) (b) provided that Defendant No. 2 shall execute a personal guarantee in order to secure the facility being granted by the Plaintiff No. 1 to the Defendant No. 1.

(3.) THEREAFTER , by an Agreement dated 30th January, 2012, called Master Agreement for Projects ("the Services Agreement"), the Plaintiff No. 2 agreed to provide certain services to Defendant No. 1 for the consideration and on the terms and conditions set out in the Services Agreement. Clause 26 of the Services Agreement provides that the parties thereto shall refer their disputes arising out of the said Services Agreement to arbitration under the provisions of the Arbitration and Conciliation Act, 1996.