TMI Blog2013 (1) TMI 174X X X X Extracts X X X X X X X X Extracts X X X X ..... which was not adhered to by the, petitioner themselves in this case, as such, the Agreement the basis of the petition, has no value in the eye of law. In favour of respondent Possession of the property - Held that:- Prima facie, it is not convincing that a party, who fails to make initial payments under the agreement, will be handed over the possession of the property. In addition to above, there is no endorsement in the agreement that the possession was delivered to the petitioner at the time of execution of the agreement Therefore, balance of convenience does not He in favour of the petitioner. - C.P. NO. 616 OF 2012 - - - Dated:- 27-7-2012 - A.K. TRIPATHI, J. S.N. Mookerjee, Tilak Bose, Debangshu Basak, Sanjoy Bose, Souvik Majumdar and Ms. Abha Alley for the Petitioner. Ranjan Bachhawat, Ms. Manju Bhotoria, S.M. Gupta, T.K. Gupta, Ratnanko Banerji, Ms. Swapna Choubey, Paritosh Sinha, Soubhik Chowdhury, Ms. S. Saha, Rajesh Upadhyay, Amitesh Banerjee, Ms. Tanistha Lahiri and Mainak Bose for the Respondent. ORDER 1. Vide this order I shall dispose of the interim relief(s) prayed for In CP No. 616 of 2012. 2. This is an application filed by the petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 to 36 and each one of them from utilizing fund of the company for the purpose of defending the instant litigation or any other litigation initiated by the petitioner; (p) Injunction restraining the respondent Nos. 1 to 36 and/or their men, agents and servants from transferring and/or selling and/or alienating and/or encumbering and/or creating third party interest and/or parting with possession over and in respect of any part or portion of the assets and properties of the company in any manner whatsoever of howsoever; (q) Injunction restraining the respondent Nos. 1 to 36 and/or their men, agents and servants from carrying out any further construction at the immovable property of the company lying and situate at DN-20, Sector-V, Salt Lake, Kolkata 700 091; (r) Injunction restraining the respondent Nos. 1 to 36 and/or their men, agents and servants from applying change of user of the land with the Nabadiganta Industrial Township Authority in any manner whatsoever; (s) Injunction restraining the respondent Nos. 1 to 36 and/or their men, agents and servants and/or each of them from disturbing the user, occupation and possession of the plot of land by the petitioner in a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of agreement dated 30-6-2011. 9. Immediately upon coming to know the aforesaid, facts, the petitioner, vide its letter dated 29.12.2011, placed such facts on record and called upon the respondent Nos. 1 to 3 to disclose all the documents and to sign necessary application requiring for conversation. But they did not pay any heed to their request and started raising disputes and also started pursuing for amicable solution. 10. It is submitted that since the respondent Nos.2. 3 were acting in suspicious manner and not acting in terms of their earlier representation, therefore, the petitioner caused searches to be made before the ROC, The petitioner, thus, came to know from the perusal of the various documents obtained from ROC website that the respondent Nos. 2 3 have wrongly reduced the petitioner's shareholding in the company from majority to minority by appointing respondent: Nos. 4 to 8 as directors of the company. It is further alleged that the respondent Nos. 2 3 have transferred the shares of the company to the respondent No. 4 and have issued allotment of capital of the company in favour of respondent nos. 9 to 36. 11. Upon corning to know the entire affairs,, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respondent Nos,37 38 who were executants within the stipulated time, therefore, such agreement cannot be looked into and the petitioner is not entitled to any relief on the basis of such agreement. 20. The Ld. Counsel for the further submits that this agreement has already expired due to efflux of time stipulated in the same and therefore, the transfer of shares made on the basis of such agreement are also of no use and the petitioner is not entitled to any benefit from such shares. 21. The Ld. Counsel for the respondents has strenuously argued that the respondent Nos. 2 . 3 have already filed a civil suit before the Hon'ble High Court prior to this petition and the civil suit has already been registered and is being listed for hearing. The respondents have prayed injunction in the said civil suit against the petitioner claiming any benefit out of the impugned shares obtained on the basis of the purported agreement dated 30-06-2011, as modified on 30-08-2011. 22. The ld. Counsel for the respondents has also argued that any person seeking equity must do equity. According to him, the petitioner who entered into an agreement and agreed to invest a sum of Rs. 20 crore within ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... First Party. (3) The First Party shall not create any liability on the company from 1st July, 2011 and the 'cut-off date' for transfer of the company and the shares is 30th June, 2011. (4) The First Party shall not destroy and/or diminish the value of the assets or portion thereof in any manner whatsoever or howsoever on and from 1st July, 2011. (5) On and from 1st July, 2011 Mr. Pinaki Roy and Mr. Avishek Roy of the Second Party shall be inducted as Directors In the Board of the said company but without, any security and liability, and no meeting of the Board of Directors of the company shall be held without all the Directors being present and if any resolution is taken by the first Party only, then and in such event, same shall be treated as null and void from 1st July, 2011. From the date of execution of this Agreement, the said company will be run under a joint management of the First Party and Second Party until the entire shareholdings are transferred by the Second Party in the name of the First Party on the terms and conditions mentioned in this Agreement. One of the directors of both the parties will be the signatories in the bank account of the said company and fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nclined to accept the contention of the Id, Counsel for the petitioners that since the share certificates stand transferred in their name and they, being 50% shareholder, are entitled to get the reliefs prayed for. The decision rendered by the Hon'bie Apex Court in the case of Dale Carrington Investment (P) Ltd. v. P.K. Prathappan [2005] SCC 212), relied upon by the Ld. Counsel for the petitioner, in my opinion, does not apply having regards of the facts of the case in hand. 28. Further, to my view, the basis on which these shares, were received by the petitioner has itself become disputed and. is under challenge in the regular civil suit filed by the respondent Nos. 2 3 before the Hon'ble High Court prior to this case. Further, this, agreement already stands expired due to efflux of time and due to non-compliance of its terms by the petitioner. Time was the essence of the contract/agreement which was not adhered to by the, petitioner themselves in this case, as such, the Agreement the basis of the petition, has no value in the eye of law. Therefore, I hold that the petitioner has failed to prove any prima facie cases in the favour. The cases referred to by the Ld. Counsel fo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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