TMI Blog2017 (3) TMI 693X X X X Extracts X X X X X X X X Extracts X X X X ..... r clause 7 of the M/s OMC Alloys Limited and the Orissa Mining Corporation Limited (Amalgamation) Order, 1991 it was obligatory for the plaintiff to implead the Government in his suit and secondly in the case before us the appellant had a notice of arbitration proceedings as noted by us. Thus the law as it emerges is a mere continuation with the proceedings for the benefit of the assignee would not make the decree executable against the assignor, in this case the ITDC. - EFA (OS) No.2/2011 - - - Dated:- 16-2-2017 - MR. PRADEEP NANDRAJOG AND MR. YOGESH KHANNA, JJ. For The Appellant : Mr.L.K.Singh, Mr.Sonal Sinha, Ms.Saira Parveen and Ms.Tanvi Khurana, Advocates. For The Respondent : Mr.Rohit K Agarwal, Advocate, Mr.Sanjeev Sindhwani, Senior Advocate instructed by Mr.R.S. Mathur and Mr.Amitabh Marwah, Advocates YOGESH KHANNA, J . 1. Indian Tourism Development Corporation Ltd. (hereinafter referred to as the ITDC) owned various buildings in different cities in India wherein Hotels were established. One such building is in Gaya. A hotel by the name Hotel Bodhgaya Ashok was being run from the building. The respondent No.1 : M/s Ashok Chopra Company was the su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the Transferor relating to the Transferred Undertaking or any third party/ies shall become the liabilities and obligations of the Transferee which it undertakes to meet, discharge and satisfy on and from the Appointed Date. 6. Further, clause No.3.4 is as under:- 3.4 All legal or other proceedings by or against the Transferor pending on the Effective Date and relating to the Transferred Undertaking (including property rights, power, liabilities, obligations and duties of Transferor) shall be continued and enforced by or against the Transferee. 7. The Scheme of Arrangement providing for demerger between the ITDC and Bodhgaya Hotels Private Limited was confirmed and sanctioned by the Department of Company Affairs, Government of India vide order dated November 09, 2001 and it became binding with effect from March 31, 2001. 8. The Government of India thereafter invited offers to purchase the shares of Bodhgaya Hotels Pvt. Ltd. M/s Lazard India Ltd., an entity tasked to complete the disinvestment made available documents for due diligence to persons whose expression of interest had been accepted to bid for the shares. One such person was the appellant. 9. On ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bmission of the bid for purchase of Hotel Bodhgaya Ashok, M/s Lazard India Limited, had only provided a copy of the balance sheet of M/s Bodhgaya Hotels Private Limited as on March 31, 2001, which merely disclose a liability of ₹3,20,000/- payable by the ITDC to M/s Ashok Chopra and Company in the form of a security deposit and that the information qua the proceedings in relation to the award dated June 02, 1994 was never furnished and that it was only when the ITDC had sent a letter dated July 08, 2002 with a two page annexure, the details of litigation pertaining to Hotel Bodhgaya Ashok was provided to it for the first time but even the said list did not make a mention of the proceedings in relation to the award. 14. It was argued by the learned counsel for appellant that even at the time of execution of the Share Purchase Agreement dated November 29, 2001, the ITDC had surreptitiously and without its knowledge had entered a list of litigation into the agreement and that the appellant had signed the agreement dated November 29, 2001 in the normal course of human conduct and initials were made on the document in the routine manner without reading its contents and under th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the High Court. Hence the appellant cannot allege the agreement dated November 29, 2001 did not contain information pertaining to an award, pending in the High Court. 18. Though, the appellant had alleged that such information was included surreptitiously and it had signed the agreement in the normal course believing that it contain the same list of litigation as was provided to it at the time of submission of the bid, but a perusal of the agreement dated November 29, 2001 do show that a document D-5 relating to a Statement showing the changes occurred in the list of employees since 28.08.2001 was cancelled and it bear the initials of the parties to the agreement. This act rather shows due application of mind by both the parties to the agreement in preparing and executing such agreement. 19. Even otherwise, allegations of misrepresentation qua the terms of contract would only make such contract voidable at the option of the appellant. Admittedly, the appellant even on coming to know of this alleged misrepresentation or alleged surreptitious inclusion of the list of litigation in the agreement dated November 29, 2001 did not rescind the contract but had preferred to continu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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