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TMI Blog2017 (3) TMI 693X X X X Extracts X X X X X X X X Extracts X X X X ..... which was filed in this Court in CS (OS) No.964A/1996, in which prayer made was that the award be summoned and be made a Rule of the Court. As per the award, respondent No.1 was awarded Rs.15,14,187.60 with simple interest @ 13% per annum with effect from July 30, 1990. 3. On May 25, 1996 ITDC filed objections to the award and matter concerning the award remained pending in this Court till when on November 09, 2001 the Government of India took a decision, under its policy of disinvestment to hive-off the hotel business at Gaya. As per the policy, Bodhgaya Hotel Pvt. Ltd., shares whereof were wholly owned by the Government of India was constituted under a Scheme of Arrangement as per Section 391 read with Section 394 of the Companies Act, 1956, between the ITDC and Bodhgaya Hotel Private Limited whereunder the business at Gaya was proposed to be assigned to Bodhgaya Hotel Pvt. Ltd. 4. The Scheme of Arrangement defined and described as under:- "(a) All the assets including leasehold assets, moveable assets and financial assets, together with all present liabilities and debts pertaining to such undertaking as mentioned in Schedule 1 as per the records of the transferor. (b) xxxxx ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated November 29, 2001 was executed and is filed. The relevant clauses of the Share Purchase Agreement are quoted as under. Clause J of the recitals in 'Share Purchase Agreement - A' dated November 29, 2001 notes - "J. The Purchaser has conducted a financial, technical and legal due diligence as to the affairs and financial position of the Unit transferred to the Company and in this context has done a complete and thorough review of the Date Room Documents (as defined hereafter)." 'Business' in clause 1.1 include the business of Hotel Bodhgaya Ashok comprising amongst others, litigation; all liabilities and debts. Sub clause e of clause 8.6 of Article 8 notes :- "(e) With effect from the Closing Date, all trade and other creditors and liabilities whether secured or unsecured, of the Business as detailed in the attached Balance Sheet shall, without any further act or deed stand transferred to the Purchaser. The Purchaser undertakes and represents to assume, pay and discharge the aforementioned creditors and liabilities on the same terms and conditions including in relation to the credit period and terms of interest on which these were assumed by the Purchaser, as it such credi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dvantage. 15. The ITDC had refuted the allegation of the appellant by saying that the detail of the litigations in which M/s Hotel Bodhgaya Ashok was a party was duly provided to the appellant at the time of the bid and it was so included in annexure E to the Share Purchase Agreement dated November 29, 2001 and such annexure was duly signed by the appellant after going through and understanding its contents. The ITDC had denied of sending any list of cases attached to the letter dated July 08, 2002. 16. The argument of the appellant that it came to the knowledge of the litigation only when the ITDC had sent the list of cases to it along with its letter dated July 08, 2002, and even the said list did not refer to proceedings of award, appears to be clumsy, firstly because the letter dated July 08, 2002 of GM- Legal, ITDC Limited written to the Managing Director of Lotus Nikko only refers to SLP (C) No.20035-54/2000 filed by the Bihar State Electricity Board for grant of special leave to appeal against the common judgment and order dated June 26, 2000 passed by the Division Bench of Patna High Court in CWJC No.5542/1999 and secondly reading of such letter does not reveal of any ann ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he ITDC cannot be held responsible. Under the Share Purchase Agreement dated November 29, 2001 it was certainly the responsibility of the appellant to further pursue the objections in the proceedings of CS(OS) No.964A/1996 and to assume the liability in the event of objections preferred by the ITDC being dismissed. 20. The appellant further argued that the executing court ought not to have upset the decree by discharging ITDC in exercise of power under Section 47 of Civil Procedure Code as it tantamount to fastening of liability upon appellant. It was argued that an executing court was bound to execute the decree as it is and it could not have discharged the respondent No.2 particularly when the nature of the objections taken in the execution proceedings were never taken in the suit which culminated into a decree and as the ITDC had failed to inform about the demerger to the Court or to M/s Ashok Chopra & Co., the decree could not be executed against the appellant. 21. Admittedly the Scheme of Arrangement providing for demerger stood confirmed and was made binding w.e.f. March 31, 2001 and once the Scheme stands approved it binds the creditor whether or not they may have specific ..... X X X X Extracts X X X X X X X X Extracts X X X X
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