TMI Blog2009 (11) TMI 985X X X X Extracts X X X X X X X X Extracts X X X X ..... ession of the said land mentioned in paragraph 14 hereof and to develop and construct the said hospital on the said land and to use the said land for the purpose of building a super specialty hospital. (b) that this Hon'ble Court be pleased to pass an order of Declaration that the purported letter of termination dated February 1, 2008 addressed by the Defendant No. 2 to Defendant Nos. 3 4 is wrongful, illegal and not binding on the Defendant No. 1 Company and its shareholders including the plaintiff. (c) that this Hon'ble Court be pleased to pass an order of Specific performance of the agreement dated April 23, 2007 (Ex. 'H' hereto) in favour of the Defendant No. 1 by other Defendants and all ancillary orders and directions for the implementation thereof. (C 1) that this Hon'ble Court be pleased to order restrain the Defendant Nos. 2, 9 to 15 by themselves, their servants, agents or assigns or otherwise whatsoever from disturbing or interfacing with the possession of the Defendant No. 1 of the said land situated at Worli, Mumbai and from in any manner interfering with the right of the Defendant No. 1 from using the said land. (c-5) that this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r third party rights and/or encumbrances of whatsoever nature by way of any transaction, document, understanding, deed, assignment etc. in or over or in respect of the said suit land and/or in or over or in respect of the said MOU dated 14th April 2008 and/or any other document and/or agreement in respect of the said suit land. (d) that pending the hearing and final disposal of the Suit this Hon'ble Court be pleased to pass an order of injunction restraining the Defendants Nos. 2 and 9 to 15 by themselves, their servants, agents or assigns or otherwise whosoever from disturbing or interfering with the possession of the Defendant No. 1 of the said land situated at plots Nos. 73A, 74, 74A and 74B, admeasuring 7000.91 sq.mts. at Worli, Scheme No. 52, Mumbai, Maharashtra, and from in any manner interfering with the right of the Defendant No. 1 from using the said land for the purpose of setting up a hospital. (e) that pending the hearing and final disposal of the suit, this Hon'ble Court be pleased to pass an order of injunction restraining the Defendant Nos. 2 and 9 to 15 from themselves, their servants, agents or assigns or otherwise whosoever from from in any manner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that pending the hearing and final disposal of the suit, this Hon'ble Court be pleased to appoint Court Receiver, High Court, Bombay or some other fit and proper person be appointed Receiver of the land situated at plots Nos. 73A, 74, 74A and 74B, admeasuring 7000.91 sq.mts. At Worli, Scheme No. 52, Mumbai, Maharashtra, with all powers under Order XI, Rule 1 of the Code of Civil Procedure, 1908. (i) ad-interim reliefs in terms of prayers Clause (d), (e), (f), (g) and (h) above. (j) for the cost of this suit; (k) for such other and other relief as this Hon'ble Court may deem fit and proper in the circumstances of the case. 3. The basic details of the parties are as under: The plaintiff/MCPL is a shareholder of defendant No. 1 and holds 21,50,000 shares which is about 10.21% of the issued share capital of defendant No. 1. Defendant No. 1/Asian Health Care Services Ltd. (AHCSL) is a company formed pursuant to an agreement between defendants 2 to 4 whereby it was agreed that a joint venture company would be formed for carrying on the business of health-care by building a hospital. Defendant No. 2/Konkan Unnati Mitra Mandal (KUMM) is a public charitable trust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ital and/or medical college on the said land. 6. On 03.02.2004, Defendants Nos. 2 to 4 entered into a Joint Venture Agreement (JVA) to participate in the shareholding and management of a joint venture company for the purposes of carrying on the business of healthcare by building a hospital. It was agreed that the group consisting of defendant Nos. 3 and 4 ( Group A ) would be given 50% share in the JV Company and defendant No. 2 ( Group B / Defendant 2 Group ) would be allotted 50% shares for use of its said land to construct the hospital by JV Company. Each group will be equally represented on the Board of JV Co. i.e. Defendant No. 1. 7. On 13.05.2004, defendant No. 1-company was incorporated. Articles of Association of Defendant No. 1 - Clause 1 (bb) states that land means the said Leased land as mentioned in the JVA and that defendant No. 2 has offered use of Land to the company for development and running of a hospital as per JVA. Clause 4 provides for share capital to each Group 50%-50%. To defendant No. 2, the 50% shares are for use of land for hospital . The plaintiff admits that defendant No. 2 Trust was entitled to issuance of 50% shares in defendant No. 1 compa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nutes of the Meeting of the Board of Directors at which various decisions including award of construction contract was discussed. 16. On 07.03.2007, Singhania Co. on behalf of the Hinduja Trust addressed a letter to defendant No. 9 on the project to develop the hospital. On 03.04.07, Minutes of defendant No. 1 at which various decisions taken regarding bank account etc. These MoM were confirmed at the next meeting on 16th July, 2008. 17. On 23.04.2007, defendant Nos. 1 to 3 entered into an agreement which provided, inter alia, that the construction and development of the hospital would be undertaken by defendant No. 1 and that the said land is to be assigned in favour of defendant No. 1. The plaintiff is seeking specific performance of this Agreement. Defendant No. 2's group is disputing the validity of this agreement on the ground that defendant No. 1 had no authority to execute this agreement on their behalf. 18. As alleged on 02.05.2007, defendant No. 1 acted upon the agreement and placed orders on Chorus, U.K. For the supply of approximately 2123 MT of steel value dat US $ 21,73,192. On 07.05.2007, defendant No. 9 addressed a letter to Mrs.Chanda Kochar, Deputy M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... complaint had been received under Section 234 of the Companies Act wherein it was denied that any authority had been granted. 22. On 18.06.2007, the Executive Secretary of defendant No. 2 informed defendant No. 1 that the Police Commissioner had addressed a letter that incomplete construction work posed an imminent danger to the neighbouring buildings. The Group B as alleged by filing motivated false and frivolous complaints and instigating the authorities created several hurdles in the smooth functioning the defendant No. 1 and in completion of the project. On 26.06.2007, defendant No. 1 replied to the above letter. 23. On 01.02.2008, defendant No. 2 purported to terminate the agreement dated 1st February, 2004. On 14.02.2008, defendant No. 3 replied to the above Notice of Termination. On 25.02.2008, defendant No. 2 responded to the above letter from defendant No. 3. 24. On 04.04.2008, defendant No. 2 addressed a letter to Government of Maharashtra and forwarded premium. On 05.04.2008, defendant No. 2 addressed a letter to Municipal Corporation of Greater Mumbai regarding the payment of premium for additional FSI. On 14.04.2008 a Memorandum of Understanding (MOU) between ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 16th June 2008 at the bottom of ad-interim board. 28. The matter was thereafter adjourned from time to time, but it appears that there was no continuation of the order thereafter. The basic parties have filed reply, rejoinder, sur-rejoinder, additional affidavits, except the Company (defendant No. 1). 29. As urgency is shown, therefore, by consent of the parties, the matter was listed and heard for finally on 26.08.2009/4.9.2009 and lastly closed for orders on 7.10.2009. 30. As noted, on 3.2.2004 KUMM entered into JVA with SIDCL and OVCT and thereby formed the Company AHCSL (defendant No. 1). The title of the land of KUMM was never transferred upon anyone except for development/improvement as agreed. The project, however, could not be completed for various reasons including the stability of the finance. Time period was fixed and insisted to complete the project by February, 2009, but in vain. The Memorandum and Articles of Association of Asian Health Care Services Limited, the company as formed pursuance to the JVA, itself refers various JVA clauses. Further agreement dated 23.04.2007 also alleged to have been entered into between the same parties to the JVA. 31. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t was neither duly stamped or registered and; what is the binding effect of the same on the parties, are again a matter of detail inquiry and trial. There was no permission of whatsoever nature sought from the Charity Commissioner and from the Government of Maharashtra (GoM) before and after entering into the agreement dated 24.04.2007. Therefore, unless the plaintiff gets Order of specific performance after due trial, then only the Court may consider the case of the plaintiff for interim reliefs based upon the same. As already noted, no such specific performance of development and construction agreement is enforceability at the instance of the plaintiff in such circumstances. Even the right flows from addendum of November/December 2006, if any, unless decided, the plaintiff cannot claim any advantage or benefit from the same, because of failure to complete the project by February 2008, though time was extended. 36. There is a serious dispute even to the alleged approval of the agreement dated 23.04.2007. There is a special denial to the assignment of the Lease rights of defendant No. 2 to defendant No. 1 in any manner. It is also averred that the said agreement was never approv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o construct multi-speciality hospital building in the suit land cannot be stated to be personal grievance and/or cause of action of plaintiff, specially when the company and defendants 3 and 4 are not prevented or debarred from challenging the action or inaction of other defendants. 40. The Notice of Motion, therefore, at this stage, cannot be said to be bonafide as the company has its own agreement to resolve the dispute, but not chosen to do so and now supporting the plaintiff by avoiding to follow the above terms/clauses without filing any affidavit to support the case of the plaintiff or to oppose the positive averments against the company by the contesting defendants. I am not deciding the Suit at this stage. The plaintiff, therefore, cannot be permitted to defend the default or inaction committed by the company, as referred above, as the equitable interim reliefs so sought are only in favour of the company. 41. Admittedly, the alleged derivative action of the plaintiff and even of SIDCL Group have joint and common interest, but yet only the plaintiff has initiated the proceeding by challenging the agreement/MOU. There is no specific denial and/or challenge by the compan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hows that defendants 3 and 4, the SIDCL Group is holding the majority shares of the company i.e. 50% of the shares. The company is in control and incharge of SIDCL Group. The plaintiff, therefore, also cannot defend the alleged inaction on the part of SIDCL unable to bring requisite finance in time of ₹ 50 crores as per the JVA. The defendant/company has not obtained a secured loan from the financial Bank though the time was extended. The whole project in this way was stalled for more than four years. 46. Admittedly, the plaintiff has challenged the termination of JVA dated 3.2.2004 but not specifically by defendants 3 and 4-SIDCL Group. The amount was never made available as agreed by defendants 3 and 4. The reason for withdrawal of such deposit/money cannot be sufficient to grant reliefs as claimed against the company and/or against the defendants or in favour of the plaintiff. The fact remains that they also failed to take effective and useful steps to start and complete the project, based upon the agreement between the parties. 47. It is clear that the company and the members are bound by the provisions contained in the Articles of Association. They have also establ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l ER 26, the Queen's Bench Division while dealing with the construction of wordings in a commercial contract by referring to various other English Judgments has observed as under: (203)A summary of helpful principles, drawn largely from the words of Longmore LJ in Absalom (on behalf Lloyd's Syndicate 957) v. TCRU Ltd. (2005) EWCA Civ 1586 at (7), (2006) 1 All ER (Comm) 375 at (7), (2006) 2 Lloyd's Rep 129, and based upon submissions to me by counsel, which I had approved, in the recent case of Reilly v. National Insurance Guarantee Corporation Ltd. (2008)EWHC 722 (Comm) at (13), (2008) 2 All ER (Comm) 612 at (13), was again the subject matter of agreement, and I repeat and incorporate it: (a) Ordinary Meaning. There is a presumption that the words to be construed should be construed in their ordinary and popular sense, since the parties to the contract must be taken to have intended, as reasonable men, to use words and phrases in their commonly understood and accepted sense. (See also para (7) (i)-(iii) in the judgment of Longmore LJ and in particular: The object of the inquiry is not necessarily to probe the 'real' intention of the parties, but to asce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... solated reading only of Articles will frustrate the whole scheme and the object. It is not possible to overlook the purpose and formation of the company. It was intended to construct and build the hospital. There is substantial material on record to show that defendant No. 2 has title and right over the land throughout. It was never transferred or intended to transfer and basically in view of grant of land conditions itself. There is also no statutory permission or consent on record to show that any such transfer of tile or right. The land just cannot be utilised but only as per the original grants and agreements even by the company. Defendant No. 2, in view of those terms and conditions cannot transfer the tile, ownership without prior due permission from the Department/Authorities. It is difficult to accept the contention on behalf of the plaintiff that the ownership/title of the land and has been transferred by the agreement. 50. If the company is established for a particular project, it need to be respected throughout. The document/agreements, main object and purpose just cannot be overlooked. If the defendant/company or concerned parties though agreed, but was not in a posi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (1978) 2 All ER 89. The aspect of fraud or oppression in the present case also need detained inquiry subject to proof and material. The case in Dr. K.A. Dhairyawan and Ors. v. J.R. Thakur and Ors. AIR 1958 SC 789 is not applicable on facts itself, in view of the specific Clauses of JVA and Articles of the company, besides the facts as referred above. The plaintiff has not sought any injunction order against the defendants from taking steps pursuance and/or implementation of the resolutions in respect of allotment of rights shares or for appointing any additional Directors of the company. The prayers and the reliefs are totally different from Rolta India Ltd. and Anr. v. Venire Industries 2000 (2) Bom. C.R. 241. There is no issue about giving any effect to the resolutions of the Board of Directors and/or acting upon the same as was the case in IL FS Trust Co. Limited and Anr. v. Birla Peruccinni Limited and Ors. 2003(3) Bom.C.R. 334. This is not the case also whereby any injunction is sought against the purchaser of the property. It is also difficult to accept the case of the plaintiff, in view of the above, that the wrong doers are in control of the defendant/company and hence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ringement of the defendant's rights, the balance of convenience tilting in favour of the plaintiff; and (iii) clear possibility of irreparable injury being caused to the plaintiff if the temporary injunction is not granted. In addition, temporary injunction being an equitable relief, the discretion to grant such relief will be exercised only when the plaintiff's conduct is free from blame and he approaches the court with clear hands. 55. Admittedly, there was no concluded contract between the plaintiff and the other defendants. The plaintiff being not a party to such agreement cannot claim the specific performance in such fashion. The company's readiness and willingness to perform its part of the obligation just cannot be answered or defended by the plaintiff in such proceedings. The company has its own remedy available as per the agreement itself. The plaintiff cannot seek specific performance on behalf of third party like the company or defendants 3 and 4. Even if it is accepted that it is derivative action on behalf of the company, still in the present facts and circumstances of the case, specially when there is a specific Clause of arbitration agreement. In my vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and frustrate the whole purpose and object of multispeciality hospital which is of public importance. From the affidavit and photographs and signboards on record, it is also clear that defendant No. 2 has carried out certain civil work during July/August 2008 on the suit land to prevent seepage of the water. Defendant No. 2, in view of above also, is and always was in dejure and defacto possession of the suit land. Even otherwise, in view of the grant of Lease in favour of defendant No. 2 and even in view of the JVA and subsequent documents and the averments made in the various affidavits itself it is difficult to accept the case of the plaintiff that they are owner of the land and are in exclusive possession of the same. It was never handed over as contended by the plaintiff and other supporting defendants. It is difficult to accept the case of the plaintiff by overlooking the conjoint and interlinked and interwoven Clauses read with subject and object of the JVA and its Articles, merely because defendant No. 1/company and/or defendants 3 and 4 have paid and invested and incurred expenses till date of termination In the present facts and circumstances, that itself cannot be the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said land for the purpose of building a super specialty hospital. (b) that this Hon'ble Court be pleased to pass an order of Declaration that the purported letter of termination dated February 1, 2008 addressed by the Defendant No. 2 to Defendant Nos. 3 4 is wrongful, illegal and not binding on the Defendant No. 1 Company and its shareholders including the plaintiff. (c) that this Hon'ble Court be pleased to pass an order of Specific performance of the agreement dated April 23, 2007 (Ex. 'H' hereto) in favour of the Defendant No. 1 by other Defendants and all ancillary orders and directions for the implementation thereof. (C 1) that this Hon'ble Court be pleased to order restrain the Defendant Nos. 2, 9 to 15 by themselves, their servants, agents or assigns or otherwise whatsoever from disturbing or interfacing with the possession of the Defendant No. 1 of the said land situated at Worli, Mumbai and from in any manner interfering with the right of the Defendant No. 1 from using the said land. (c-5) that this Hon'ble Court be pleased to order and declare (i) that the said Memorandum of Understanding dated 14 April 2008 (Exhibit Z1 ) h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in or over or in respect of the said suit land and/or in or over or in respect of the said MOU dated 14th April 2008 and/or any other document and/or agreement in respect of the said suit land. (d) that pending the hearing and final disposal of the Suit this Hon'ble Court be pleased to pass an order of injunction restraining the Defendants Nos. 2 and 9 to 15 by themselves, their servants, agents or assigns or otherwise whosoever from disturbing or interfering with the possession of the Defendant No. 1 of the said land situated at plots Nos. 73A, 74, 74A and 74B, admeasuring 7000.91 sq.mts. at Worli, Scheme No. 52, Mumbai, Maharashtra, and from in any manner interfering with the right of the Defendant No. 1 from using the said land for the purpose of setting up a hospital. (e) that pending the hearing and final disposal of the suit, this Hon'ble Court be pleased to pass an order of injunction restraining the Defendant Nos. 2 and 9 to 15 from themselves, their servants, agents or assigns or otherwise whosoever from from in any manner negotiating, disposing of, alienating, transferring, encumbering or creating any right, title or interest in favour of any third party i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y or some other fit and proper person be appointed Receiver of the land situated at plots Nos. 73A, 74, 74A and 74B, admeasuring 7000.91 sq.mts. At Worli, Scheme No. 52, Mumbai, Maharashtra, with all powers under Order XI, Rule 1 of the Code of Civil Procedure, 1908. (i) ad-interim reliefs in terms of prayers Clause (d), (e), (f), (g) and (h) above. (j) for the cost of this suit; (k) for such other and other relief as this Hon'ble Court may deem fit and proper in the circumstances of the case. 3. The basic details of the parties are as under: The plaintiff/MCPL is a shareholder of defendant No. 1 and holds 21,50,000 shares which is about 10.21% of the issued share capital of defendant No. 1. Defendant No. 1/Asian Health Care Services Ltd. (AHCSL) is a company formed pursuant to an agreement between defendants 2 to 4 whereby it was agreed that a joint venture company would be formed for carrying on the business of health-care by building a hospital. Defendant No. 2/Konkan Unnati Mitra Mandal (KUMM) is a public charitable trust under the Bombay Public Trusts Act, 1950 and a society registered under the Societies Registration Act, 1860. Defendant No. 3/Shristi In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o participate in the shareholding and management of a joint venture company for the purposes of carrying on the business of healthcare by building a hospital. It was agreed that the group consisting of defendant Nos. 3 and 4 ( Group A ) would be given 50% share in the JV Company and defendant No. 2 ( Group B / Defendant 2 Group ) would be allotted 50% shares for use of its said land to construct the hospital by JV Company. Each group will be equally represented on the Board of JV Co. i.e. Defendant No. 1. 7. On 13.05.2004, defendant No. 1-company was incorporated. Articles of Association of Defendant No. 1 - Clause 1 (bb) states that land means the said Leased land as mentioned in the JVA and that defendant No. 2 has offered use of Land to the company for development and running of a hospital as per JVA. Clause 4 provides for share capital to each Group 50%-50%. To defendant No. 2, the 50% shares are for use of land for hospital . The plaintiff admits that defendant No. 2 Trust was entitled to issuance of 50% shares in defendant No. 1 company for offering the use of the land for hospital. 8. On 6.09.2004, the Charity Commissioner granted permission under Section 36 of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... On 07.03.2007, Singhania Co. on behalf of the Hinduja Trust addressed a letter to defendant No. 9 on the project to develop the hospital. On 03.04.07, Minutes of defendant No. 1 at which various decisions taken regarding bank account etc. These MoM were confirmed at the next meeting on 16th July, 2008. 17. On 23.04.2007, defendant Nos. 1 to 3 entered into an agreement which provided, inter alia, that the construction and development of the hospital would be undertaken by defendant No. 1 and that the said land is to be assigned in favour of defendant No. 1. The plaintiff is seeking specific performance of this Agreement. Defendant No. 2's group is disputing the validity of this agreement on the ground that defendant No. 1 had no authority to execute this agreement on their behalf. 18. As alleged on 02.05.2007, defendant No. 1 acted upon the agreement and placed orders on Chorus, U.K. For the supply of approximately 2123 MT of steel value dat US $ 21,73,192. On 07.05.2007, defendant No. 9 addressed a letter to Mrs.Chanda Kochar, Deputy Managing Director of the ICICI Bank, asking that instructions should be issued that no cheque issued by defendant No. 1 is honoured unles ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 18.06.2007, the Executive Secretary of defendant No. 2 informed defendant No. 1 that the Police Commissioner had addressed a letter that incomplete construction work posed an imminent danger to the neighbouring buildings. The Group B as alleged by filing motivated false and frivolous complaints and instigating the authorities created several hurdles in the smooth functioning the defendant No. 1 and in completion of the project. On 26.06.2007, defendant No. 1 replied to the above letter. 23. On 01.02.2008, defendant No. 2 purported to terminate the agreement dated 1st February, 2004. On 14.02.2008, defendant No. 3 replied to the above Notice of Termination. On 25.02.2008, defendant No. 2 responded to the above letter from defendant No. 3. 24. On 04.04.2008, defendant No. 2 addressed a letter to Government of Maharashtra and forwarded premium. On 05.04.2008, defendant No. 2 addressed a letter to Municipal Corporation of Greater Mumbai regarding the payment of premium for additional FSI. On 14.04.2008 a Memorandum of Understanding (MOU) between defendant No. 2 and defendants Nos. 22 and 23 as alleged signed to construct Hospital on the land which is the subject matter of the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere was no continuation of the order thereafter. The basic parties have filed reply, rejoinder, sur-rejoinder, additional affidavits, except the Company (defendant No. 1). 29. As urgency is shown, therefore, by consent of the parties, the matter was listed and heard for finally on 26.08.2009/4.9.2009 and lastly closed for orders on 7.10.2009. 30. As noted, on 3.2.2004 KUMM entered into JVA with SIDCL and OVCT and thereby formed the Company AHCSL (defendant No. 1). The title of the land of KUMM was never transferred upon anyone except for development/improvement as agreed. The project, however, could not be completed for various reasons including the stability of the finance. Time period was fixed and insisted to complete the project by February, 2009, but in vain. The Memorandum and Articles of Association of Asian Health Care Services Limited, the company as formed pursuance to the JVA, itself refers various JVA clauses. Further agreement dated 23.04.2007 also alleged to have been entered into between the same parties to the JVA. 31. As there was no satisfactory and sufficient progress of the project apart from various notices from various Departments referring to var ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y and trial. There was no permission of whatsoever nature sought from the Charity Commissioner and from the Government of Maharashtra (GoM) before and after entering into the agreement dated 24.04.2007. Therefore, unless the plaintiff gets Order of specific performance after due trial, then only the Court may consider the case of the plaintiff for interim reliefs based upon the same. As already noted, no such specific performance of development and construction agreement is enforceability at the instance of the plaintiff in such circumstances. Even the right flows from addendum of November/December 2006, if any, unless decided, the plaintiff cannot claim any advantage or benefit from the same, because of failure to complete the project by February 2008, though time was extended. 36. There is a serious dispute even to the alleged approval of the agreement dated 23.04.2007. There is a special denial to the assignment of the Lease rights of defendant No. 2 to defendant No. 1 in any manner. It is also averred that the said agreement was never approved by the President of defendant No. 2 or defendant No. 2-Trust itself. 37. The submission based upon Article 7.2 of the JVA that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntiff, specially when the company and defendants 3 and 4 are not prevented or debarred from challenging the action or inaction of other defendants. 40. The Notice of Motion, therefore, at this stage, cannot be said to be bonafide as the company has its own agreement to resolve the dispute, but not chosen to do so and now supporting the plaintiff by avoiding to follow the above terms/clauses without filing any affidavit to support the case of the plaintiff or to oppose the positive averments against the company by the contesting defendants. I am not deciding the Suit at this stage. The plaintiff, therefore, cannot be permitted to defend the default or inaction committed by the company, as referred above, as the equitable interim reliefs so sought are only in favour of the company. 41. Admittedly, the alleged derivative action of the plaintiff and even of SIDCL Group have joint and common interest, but yet only the plaintiff has initiated the proceeding by challenging the agreement/MOU. There is no specific denial and/or challenge by the company except oral supporting arguments. There is nothing on record to show or even otherwise, whereby the company has authorised or resolved ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntrol and incharge of SIDCL Group. The plaintiff, therefore, also cannot defend the alleged inaction on the part of SIDCL unable to bring requisite finance in time of ₹ 50 crores as per the JVA. The defendant/company has not obtained a secured loan from the financial Bank though the time was extended. The whole project in this way was stalled for more than four years. 46. Admittedly, the plaintiff has challenged the termination of JVA dated 3.2.2004 but not specifically by defendants 3 and 4-SIDCL Group. The amount was never made available as agreed by defendants 3 and 4. The reason for withdrawal of such deposit/money cannot be sufficient to grant reliefs as claimed against the company and/or against the defendants or in favour of the plaintiff. The fact remains that they also failed to take effective and useful steps to start and complete the project, based upon the agreement between the parties. 47. It is clear that the company and the members are bound by the provisions contained in the Articles of Association. They have also established a contract between the company and the members and between the members interse. Naresh Chandra Sanyal v. The Calcutta Stock Exchan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other English Judgments has observed as under: (203)A summary of helpful principles, drawn largely from the words of Longmore LJ in Absalom (on behalf Lloyd's Syndicate 957) v. TCRU Ltd. (2005) EWCA Civ 1586 at (7), (2006) 1 All ER (Comm) 375 at (7), (2006) 2 Lloyd's Rep 129, and based upon submissions to me by counsel, which I had approved, in the recent case of Reilly v. National Insurance Guarantee Corporation Ltd. (2008)EWHC 722 (Comm) at (13), (2008) 2 All ER (Comm) 612 at (13), was again the subject matter of agreement, and I repeat and incorporate it: (a) Ordinary Meaning. There is a presumption that the words to be construed should be construed in their ordinary and popular sense, since the parties to the contract must be taken to have intended, as reasonable men, to use words and phrases in their commonly understood and accepted sense. (See also para (7) (i)-(iii) in the judgment of Longmore LJ and in particular: The object of the inquiry is not necessarily to probe the 'real' intention of the parties, but to ascertain what the language they used in the document would signify to a properly informed observer. ) (aaa) Businesslike Interpretation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of the company. It was intended to construct and build the hospital. There is substantial material on record to show that defendant No. 2 has title and right over the land throughout. It was never transferred or intended to transfer and basically in view of grant of land conditions itself. There is also no statutory permission or consent on record to show that any such transfer of tile or right. The land just cannot be utilised but only as per the original grants and agreements even by the company. Defendant No. 2, in view of those terms and conditions cannot transfer the tile, ownership without prior due permission from the Department/Authorities. It is difficult to accept the contention on behalf of the plaintiff that the ownership/title of the land and has been transferred by the agreement. 50. If the company is established for a particular project, it need to be respected throughout. The document/agreements, main object and purpose just cannot be overlooked. If the defendant/company or concerned parties though agreed, but was not in a position to complete the project and in fact committed various defaults and suffering from Departmental notices for inaction or defaults, be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case in Dr. K.A. Dhairyawan and Ors. v. J.R. Thakur and Ors. AIR 1958 SC 789 is not applicable on facts itself, in view of the specific Clauses of JVA and Articles of the company, besides the facts as referred above. The plaintiff has not sought any injunction order against the defendants from taking steps pursuance and/or implementation of the resolutions in respect of allotment of rights shares or for appointing any additional Directors of the company. The prayers and the reliefs are totally different from Rolta India Ltd. and Anr. v. Venire Industries MANU/MH/0189/2000MANU/MH/0189/2000 : 2000 (2) Bom. C.R. 241. There is no issue about giving any effect to the resolutions of the Board of Directors and/or acting upon the same as was the case in IL FS Trust Co. Limited and Anr. v. Birla Peruccinni Limited and Ors. 2003(3) Bom.C.R. 334. This is not the case also whereby any injunction is sought against the purchaser of the property. It is also difficult to accept the case of the plaintiff, in view of the above, that the wrong doers are in control of the defendant/company and hence the company would be unable to maintain action and, therefore, the present derivative action. Theref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ff; and (iii) clear possibility of irreparable injury being caused to the plaintiff if the temporary injunction is not granted. In addition, temporary injunction being an equitable relief, the discretion to grant such relief will be exercised only when the plaintiff's conduct is free from blame and he approaches the court with clear hands. 55. Admittedly, there was no concluded contract between the plaintiff and the other defendants. The plaintiff being not a party to such agreement cannot claim the specific performance in such fashion. The company's readiness and willingness to perform its part of the obligation just cannot be answered or defended by the plaintiff in such proceedings. The company has its own remedy available as per the agreement itself. The plaintiff cannot seek specific performance on behalf of third party like the company or defendants 3 and 4. Even if it is accepted that it is derivative action on behalf of the company, still in the present facts and circumstances of the case, specially when there is a specific Clause of arbitration agreement. In my view the suit is not bonafide, specially when the material and evidence and the proof in support of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . From the affidavit and photographs and signboards on record, it is also clear that defendant No. 2 has carried out certain civil work during July/August 2008 on the suit land to prevent seepage of the water. Defendant No. 2, in view of above also, is and always was in dejure and defacto possession of the suit land. Even otherwise, in view of the grant of Lease in favour of defendant No. 2 and even in view of the JVA and subsequent documents and the averments made in the various affidavits itself it is difficult to accept the case of the plaintiff that they are owner of the land and are in exclusive possession of the same. It was never handed over as contended by the plaintiff and other supporting defendants. It is difficult to accept the case of the plaintiff by overlooking the conjoint and interlinked and interwoven Clauses read with subject and object of the JVA and its Articles, merely because defendant No. 1/company and/or defendants 3 and 4 have paid and invested and incurred expenses till date of termination In the present facts and circumstances, that itself cannot be the reason to grant interim relief in favour of the plaintiff and against the defendant which will frustra ..... X X X X Extracts X X X X X X X X Extracts X X X X
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