TMI Blog2015 (7) TMI 453X X X X Extracts X X X X X X X X Extracts X X X X ..... cenario 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the group on 15-08-2007. Owing to some differences between them, Tulsian group filed CP 92/2011. While the said CP was pending, both these rival groups entered into an amicable solution (MoU) with an intervention of Mr Suresh Gaggar agreeing to see it implemented by 15th June 2012 and thereafter to enter into a Share Holders Agreement. Since Suresh Gaggar Group (shortly called as Gaggar Group) expressed their desire to come as strategic investor, all these three groups agreed that Gaggar group shall invest INR 400 lacs to acquire 10% share holding in the Company, As on the date of execution of agreement, the position in the company is paid up capital of the company had 31, 75, 902 equity shares of ₹ 10/- each. Out of which, Dhanuka group had 82.34% shareholding, Tulsian group had 13.85% shareholding, and Jain group had 3.81% shareholding in the Company. However, this MoU would revise shareholding as 80.24% to Dhanuka, 15.50% to Tulsian, 4.26% to Jain group. To give effect to this revised arrangement, Dhanuka would direct Diagram Tricom (P) Ltd to transfer its entire 41,666 shares to Tulsian at a price of INR 60/- per share, which Diagram had earlier acquired from the Compan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... main as a minority shareholders/Group, without any Director on the Board, it is also said that Jain Group will be presented and protected by Tuisian Group. It is also agreed that all the strategic matters like, equity dilution by the company, expansion, shall be made only after obtaining the prior written approval of the three groups in respect to the price and number of shares to be issued, as also to the quantum and capacity of expansion. It is further agreed that Tuisian Group and Gaggar Group shall be entitled to receive monthly production and sales report, product wise, from the company by seventh of every following month. It is said that Tulsian Group and Gaggar Group shall be entitled to receive quarterly profit and loss account and financial statements within 30 days by the end of respective quarter. It is agreed that the affairs of the company shall be carried out and managed with high standards of Integrity, performance in conformity to best Corporate Governance. The important Clause upon which this application hinges is Arbitration Clause-24, which says as follows : ''Any disputes or differences, if any arising between the Groups shall be settled between the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ares for ₹ 699 lakhs. The petitioners say that two companies of Respondents No. 2 and 3, being Umang Business Venture Pvt. Ltd. and Umang Corporate Park Pvt. Ltd. have availed the funds from such multi layered shell/benami companies, involved in round tripping of the funds of over ₹ 12,000 crores. In addition to this, 4 bodies corporate, now forming part of Dhanuka Group are in addition to these 231 multi layered/benami/hawala companies, having involved in round tripping of black money, foreign funds, as also hawala money of over ₹ 12,000 crores The said 231 companies and its multi-Layered companies have made investments in various companies directly or indirectly belonging to various groups or industrial houses, including part amount in R1, as well as through process of money laundering and conversion of black money into white thereby playing fraud on the Government exchequer. He further says, of these 231 companies, some have also figured in the Purti Group, belonging to Mr. Nitin Gadkari, used for round tripping/conversion of black money, thereafter making investments in Purti Group. 9. The petitioners further submit that R1 had availed Buyers' Credit fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 filed this CA submitting that Company Law Board did not pass any interim relief in CP 92/2011; the Company Petition was disposed of on the MoU entered between the parties. It has not mentioned anything in the order except holding that the CP is disposed of in terms of the MOU entered between the parties. The respondents submit that compliance of the MoU, the petitioners seeking is covered by Arbitration Clause, it shall be referred to Arbitration as envisaged in it. The counsel says this has to be referred to the Arbitration as agreed in between them because, as per MoU, they agreed for Arbitration u/s 8 of Arbitration and Conciliation Act, 1996 as and when any of the parties want to dispute the acts covered under the MOU dated 11.012012. Since the petitioners allegations are based on non-compliance of terms of MOU, the counsel says, the same has to be referred to Arbitration in terms of Section 8 of the Arbitration and Conciliation Act, 1996. 11. The counsel without prejudice to the contention above mentioned submits that the Letter of Termination of the MOU was sent by the respondents to the petitioners, which was received on 27.06.2012, but whereas this petition was filed i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ltd. v. Shyam kumar Shrivastava [2008] 16 SCC 774 to say ratio in the cases supra covers the facts in the present case. 15. The respondents counsel also relied upon Pinaki Das Gupta v. Maadhyam Advertising (P.) Ltd. [2002] 38 SCL 170 (CLB - New Delhi) to say when Arbitrator could grant an appropriate relief which is sought before CLB, then such dispute could be referred to the Arbitration. 16. The respondents counsel relied upon P. Anand Gajapathi Raju v. P.V.G. Raju [2000] 4 SCC 539 to say that it is obligatory for the court to refer to the Arbitration any matter that falls within the ambit of section 8 of Arbitration and Conciliation Act. Since the parties in this Company Petition and subject matter in the Company Petition are covered by MoU dated 11.02.2012, it shall be referred to Arbitration. 17. The respondents counsel relied upon Reva Electric Car Company (P.) Ltd. v. Green Mobil AIR 2012 SC 739 to say that even on termination of an agreement, the Arbitration clause of that agreement would still survive. Basing on this proposition, the respondents counsel says the Arbitration Clause in MoU dated 11.02.2012 would remain binding on the parties notwithstanding the fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in terms of the said MoU, the issue present before this bench cannot be said as covered by Arbitration Clause. 21. The petitioner counsel submits that respondents unilaterally terminated MoU though there is no provision in the MoU for terminating the same unilaterally. For having this Bench disposed of earlier CP in terms of this MoU, such unilateral termination of MoU by the respondents amounts to contempt of court. 22. The petitioner counsel relied upon Bhushan Power Steel Ltd. v. Rajesh Verma [2014] 5 SCC 551 to say that non-compliance of a court order amounts to contempt. The petitioner counsel submits that the present CP is for enforcement of order dated 01.03.2012 passed by CLB in CP No. 92/2011 and also for investigation into the affairs of R1 company under section 237 and to bring oppressive acts being committed in relation to affairs of R1 company. The petitioner counsel submits that the present CP ambit as such is wider than the subject matter in the MoU and wider than averments in earlier CP, therefore, the petitioner counsel submits this CA is liable to be dismissed. 23. On hearing the submissions of either side, I do agree that all the propositions placed b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... using this MoU as a device for the withdrawal of earlier CP. 29. 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. 30. 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 pr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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