Home Case Index All Cases Companies Law Companies Law + Board Companies Law - 2015 (7) TMI Board This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2015 (7) TMI 453 - Board - Companies LawCharges of oppression and wilful misstatement u/s 397 & 398 - Wilful termination of MOU - Impact of Arbitration clause in agreement - Doctrine of Severability - Held that:- This Doctrine of Severability will come into operation when the agreement has come into effect. Here the respondents filed this application saying though this agreement entered into has not been given effect, it has to be referred to arbitration for the reason that MoU has arbitration clause notwithstanding the fact whether it is given effect or not. When Dhanuka group made allotment to their group, Tulsian group filed this CP saying that earlier CP was disposed of taking MoU into consideration, the petitioner also agreed for withdrawal of earlier CP because the MoU proposed a solution to earlier allotments arbitrarily made to the Respondents apart from a proposal for investment from Gaggar group. But whereas these Respondents after disposal of earlier CP, turned around and made further allotments without giving any opportunity to the petitioners to participate in right issue. Looking at this scenario Dhanuka group causing Tulsain group withdraw earlier CP on the MoU with a proposal to set right earlier allotment, thereafter turning around and making allotment to their group at a price far lower than the price at which the shares were allotted to Tuisain group, I am of the view if it is not oppression, what else would become oppression? In view of the same, I am of the view that the acts of the respondents prima facie amount to prejudice to the rights of the petitioners, hence this arbitration clause is not binding upon the petitioners. The remedy available under sections 397 & 398 is statutory remedy, unless the lis is strictly within the Arbitration Clause, the court is under no obligation to refer the matter to Arbitration. Since the petitioner elected remedy u/s 397 & 398 proceedings, the Respondents cannot ask for implementation of clause under MOU dated 11.02.2012. The grievances of the petitioners are not covered by either MoU or Arbitration clause of MoU, because the alleged acts cannot be coined as mere violation of the clauses of the MoU, they are, I believe, beyond the ambit of MoU and arbitration clause amounting to oppression against the petitioners, hence I dismiss the relief sought under section 8 of Arbitration and Conciliation Act, 1996. - the petitioners failed to make the parties against whom serious aspersions are made and sought reliefs - they are not even named anywhere in the petition, hence the reliefs sought against non-parties are here by dismissed as envisaged under Order 1 Rule 9 of CPC. - Decided partly in favour of appellant.
|