TMI Blog2007 (10) TMI 689X X X X Extracts X X X X X X X X Extracts X X X X ..... enefits accrued in respect of such shares from the date of death of Late Shri Ramesh Chand onwards in the alternative, if the petitioners cannot be given the prayers for rectification of the register under Section 111 of the Companies Act, 1956 they should be paid adequate compensation as was intended under the Award by transfer of 1/3rd rights in the properties owned by the Company; (ii) to cancel all consequential transfers/transmissions of shares and issue of fresh shares and to declare the same as null and void or, in the alternative, transfer the shares so issued afresh, to the petitioners in such manner that total shareholding of the company is evenly disturbed amongst the three constituents of group as 1/3rd for a value at which the shares would have been allegedly issued to the Respondents; (iii) that Respondent No. 12 be directed not to receive register or take on record any forms, documents or returns filed or presented by the Respondents; (iv) to direct investigation into affairs of the Company particularly in terms of Section 235 of the Companies Act, 1956;(v) pass such further or other order/orders, as this Hon'ble Board may deem fit and proper in the fact and circ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and); (e) Award dated 14.09.1996 the arbitrators also directed to hand over shares held by the petitioners in Mahalaxmi Glass Works Pvt. Ltd. (MGW), Kohinoor Glass Factory Pvt. Ltd. (KGF), and Western India Glass Works Ltd. (WIG) and other small companies including Commercial and Industrial Finance Pvt. Ltd. (CIF) and Kaycee Investments Pvt. Ltd. (Kaycee). The four awards deal with the petitioners' share in the Hyderabad Properties (Shiv bagh, Hydraguda, Serilingampally, Baquer Khan and Jeelani Begum), the fifth award dated 14.09.1996 deals with the compensation to be paid by the respondents to the petitioners in relation to their 1/3rd share of the businesses of the various companies. Under the Fifth Award the petitioners were to be paid a sum of ₹ 4,51,50,000/- as compensation for going out of the businesses of the group. The petitioners were directed to hand over their shares in the group companies with signed blank transfer deeds in respect thereof the NC and MC Groups. It was recorded in the said award that: 48. We direct that upon full payment of the compensation amount and other amounts awarded by us to the Claimants, there will be complete severance of connect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rds, which have been accepted by the parties. The said Awards were also confirmed in the said Fifth and Final Award. 5. It was further pointed out that the Petitioners objected to the said Fifth Award dated 14th September, 1996. The objection Petition under Sections 16, 30 and 33 of the Arbitration Act, 1940 of the Petitioners was considered and rejected by the Learned Single Judge of High Court of Bombay. The said Award was made rule of the court on 23rd January, 1998. The appeal filed before the Division Bench of the High Court of Bombay was also dismissed. The Petition for Leave to Appeal was also filed before the Supreme Court. The said Petition for Leave to Appeal was also dismissed by the Supreme Court vide order dated 18th August, 1998. However, vide the said order, the Supreme Court modified the Award to the extent that an additional sum of ₹ 5 lakhs (Rupees Five lakhs) each to be paid to the Petitioners. Review Petition to review the said order of the Supreme Court was also rejected. The Fifth Award dated 14th September, 1996 as such has also become the Rule of the Court and a fifth decree was passed. 6. Sh P.V. Kapur argued that in this view of the matter, all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ous of the fact that a winding up Petition against MGW was filed and subsequently withdrawn by consent order and as a result thereof the Arbitration Agreement was entered into and we are also conscious of the fact that there were threats of winding up the other two businesses as well. Consequently, the payment of the said sum of ₹ 4,41,00,000/- is directed to be made as and by way of compensation for preservation of the respective businesses and for buying out the Claimants and to avoid obstructions and hindrances likely to be caused by the Claimants or any of them and for smooth carrying on of the said businesses by the Respondents unhindered by the presence of any of the Claimants who might cause difficulties. 38. The Claimants are directed to hand over to Mahesh Chand Naresh Chand groups in equal shares the Shares held by the Claimants or any of them in MGW, KGF and WIG together with the relative transfer deeds duly signed in blank by the registered shareholders at nil value. Such handing over shall be against full payment to the claimants of the amount hereby awarded. 42. The Respondents are directed to continue to make monthly payments in terms of the Arbitrati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Industries Pvt. Ltd. shall be handed over together with the relative transfer deeds duly signed in blank by the registered share holders to Mahesh Chand and Naresh Chand groups by the Claimants at nil value. Such handing over shall be against full payment of the amount of compensation awarded by us to the Claimants. 46. With regard to Encee Investments and Arcee Associates which are associations of persons of which the Claimants or any of them are members, they shall cease to be members of such AOPs on full payments being made to them under the Award. The right, title and interest of the Claimants or any of them in the said AOPs shall vest in Naresh Chand and Mahesh Chand groups in equal shares. 48. We direct that upon full payment of the compensation amount and other amounts awarded by us to the Claimants, there will be complete severance of connections of Ramesh Chand group and the members of his family from the companies, firms, AOPs and WIG so that the Respondents can continue to carry on the businesses without any claim, demand or interest or interference of any nature whatsoever. 8. It was pointed out that the awarded amount of ₹ 4.41 crores (Rs. 4.5 cror ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Company Cases 743 equivalent to AIR (1981) SC 1298, the Respondents argued that the Petitioners are neither shareholders in any sense of the term and in any event have failed to adduce any evidence that the conduct of the Respondents lack probity or is unfair or causes prejudice to the Petitioners in the exercise of their legal and proprietary rights as a shareholder. Further, it was pointed out that during the life time of Shri Ramesh Chand he did not hold any equity Shares in his individual name in any of the Companies. Consequently, Petitioners could not have inherited any Share in any of the Companies. However, admittedly, the Shares in the Companies were held jointly by the three brothers. On demise of Ramesh Chand, the Shares vested in the other co-owners i.e. Shri Naresh Chand (Respondent No. 2) and Shri Mahesh Chand (Respondent No. 3). The Petitioners have not produced any documentary evidence which can satisfy the Company Law Board that as on the date of the presentation of the Petition or at any time, the Petitioners or any of them were or are Shareholders or have any interest therein or have any voting right. It was pointed out that the Petitioners were the only heirs o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e a party purchases Shares and presents the Certificates to the Company for transfer in the name of the Purchaser. The present case was a case where the Companies had to pay off one of their shareholders. This would have led to a reduction of share capital of the companies. To avoid that, the Petitioners' shares were ordered to be transferred to MC and NC groups at Nil value. This was a transfer by order of court. Such a transfer was thus involuntary. The companies waited until the Final Award had been confirmed by the Supreme Court and only then they gave effect to the transfers. After paying off the Petitioners the only remaining shareholders were MC and NC. The redemption of Preference Shares was done on 11th June, 1998 and the issue of fresh equity shares of the 8 companies was done in December 1998, one year before the Petitioners handed over some of the Share Certificates to the Prothonotary of Bombay High Court in December 1999. The only Companies which transferred the Equity Share held by the Petitioners to MC and NC Groups were CIF, NDGI and WIG. The land belonging to OF had already been allotted to the concerned parties in specie. In WIG the Petitioners had only cer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Master, that though the amount of ₹ 4.41 crore and ₹ 1.50 lacs were received by the appellants-interveners, they have not cared to comply with the terms of the award, not cared to deposit the shares as per the terms of the award, had not co-operated with other Respondents as per the terms of the award but held on to the shares and at this stage when an application is made by the applicants for the scheme of Arrangement, the interveners are seeking to intervene in the scheme without a semblance of any right in the Petitioner company. 10. Further, it was pointed out that not satisfied with the order passed by the Single Bench, the Petitioners preferred an Appeal in the Bombay High Court. After hearing the arguments in detail, the Division Bench comprising Shri B.N. Srikrishna and Smt. Nishita Mahtre, JJ, ordered, interalia, 3 We have perused the record including the order of the learned Company Judge dated November 8, 2000 and heard the counsel on both sides. We are not satisfied that the appellants continued to hold rights in the companies as shareholders of the companies which are the subject matter of the Petition, nor are we satisfied that there was any bonaf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 15. It was vehemently argued that the Petitioners did not satisfy the conditions precedent for invoking the provisions of the Sections 397 and 398 read with Section 399 of the Act. The Petitioners are not shareholders of the Company. Admittedly, Shri Ramesh Chand had 7863 Preference Shares in his individual name, 470 Preference Shares in joint holding, no individual equity holding and 334 joint equity holdings. It is settled law that on the death of one of the joint shareholders, only the survivors are to be recognized as members by the Company. No legal heir of the deceased member shall be entitled to be recognized as member. A legal heir becomes entitled to the shares only when the deceased was the sole holder. By applying this law it can be said that the Petitioners cannot claim to be members with regard to joint holdings. In this regard reference was made to the following case law: In the case of Ram Govind Mishra v. Allahabad Theatres reported in (1986) Tax LR 1681 (All.) it has been held at page 1683 that in case where shares are held jointly, the interest of the deceased shareholder passes to the survivor and not to the heir of the deceased and that the said heir nei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the matter, the Petition suffers from the vice of Res-Judicata. Company Law Board has no jurisdiction to review the correctness of any of the orders passed by the Hon'ble Bombay High Court at Bombay. In this view of the matter, these Petitions filed under Sections 397 and 398 of the Act suffer from the vice of lack of jurisdiction and should be dismissed. 17. Shri P.V. Kapur argued that the petitioners cannot approbate and reprobate. They cannot take advantage and benefit of Awards which merged into the judgments and orders of High Court and Supreme Court, and then challenge the Awards, directly or indirectly. It is well settled principle decided by a number of judicial decisions that a person acting in terms of an Order or Decree of a competent Court and taking the benefit there under cannot challenge the correctness and/or validity of Order or Decree or judgment at a subsequent stage. A person cannot at the same time blow hot and cold. In the present proceedings before the CLB, the Petitioners are seeking a review or enforcement or execution of the Awards which is not permissible nor it is within the competence of the CLB. 18. Further, my attention was drawn to the prin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gs. As the Petitioners' claim on the basis of which this Petition has been filed stands decided by the civil courts, the same question, if allowed to be agitated before the CLB, would amount to abuse of the process of the Bench and the same should be dismissed in exercise of its inherent power under Regulation 44 of the Company Law Board Regulation, 1991. Reliance was placed on the cases of Re: Bellador Silk Ltd reported in (1965) 1 All ER 667, wherein it has been held that the presentation of the Petition in order to bring pressure to bear to achieve a collateral purpose was an abuse of the process of the court ; in Mrs. Najma M. Saiyed v. Mehboob Productions P. Ltd., and Ors . reported in (2006) 129 Company Cases 603 (CLB), it has been held that a Petition for a collateral purpose should not be entertained ; and in L. Rama Subbu and Anr. v. Madura College Board reported in (1998) 3 Comp. LJ 356 (CLB), wherein it has been held at Page 364 that if we allow the Petitioners to challenge the very same resolution on practically the same grounds or one or two more, we would be simply encouraging the Petitioners to abuse the process of court. 21. Shri P.V. Kapur further ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s no jurisdiction; (10) personal grievance, if any, cannot form the subject matter of proceedings under Sections 397 and 398 of the Act; (11) the Petition relates to matters of 1998, there is no plea for condoning more than eight years of delay and latches which is fatal to proceedings; (12) There has to be finality of disputes; (13) the matter before the Company Law Board is hit by the doctrine of conclusiveness and finality in judicial proceedings; (14) all five Awards and five separate decrees are separate and cannot be co-joint or amalgamated or merged. 23. Shri. S. Sarkar and Shri U.K. Choudhary, Senior Advocates appearing for the petitioners argued that the petitioners have not received the consideration that they were supposed to receive under the awards, the petitioners have not signed any transfer forms for the shares, the shares were not even requested to be transmitted to the names of the legal heirs of late Sh. Ramesh Chand, the shares were in the possession of the receiver, the Respondents had filed contempt petitions in the High Court Bombay for the petitioner not having implemented the Award by not handing over the share certificates which were already with the Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter sell, dispose of, encumber or transfer in any manner any of the shares in the Companies being parties of the Fourth to the Thirteenth part herein or in WIG save and except amongst the members of the family of the group concerned which shall not be objected to by the other parties, but intimation of the same shall be given to the other parties and (c) no party hereto shall make any change in the constitution of any of the partnerships or Association of Persons set out in the First Schedule. Further, it was pointed out that Keminar Enterprises was a partnership firm in which late Shri Ramesh Chand, his two brothers, respondents No. 2 and 3 and two Group Companies Kaycee Investment Pvt. Ltd. and Emcee Investment Pvt. Ltd. were partners. All the brothers were holding 10% each and Companies were holding 35% each capital. This firm is not a signatory to the arbitration agreement, though its partners/legal heirs of Ramesh Chand are. 24. Drawing my attention to the directions in the interim award in respect of Serilingampally properties, it was pointed out that (a) the respondents were to handover all original papers, title deeds and documents to the petitioners' Advocate. This ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the scope of reference, confirms the interim award in relation to the Hyderabad Properties. By the final Award dated 14.09.1996 the arbitrators also directed to hand over shares held by the petitioners in MGW, KGF and WIG together with the relative transfer deeds duly signed against full payment of the amounts awarded to the petitioners. It was argued that by harmonious construction of the Arbitration Agreement, the consent decree, the terms of reference and the awards themselves, it is apparent that the petitioners were not liable to go out from and/or severe their connections with the businesses including the Hyderabad Properties and the said Companies, Firms, AOPs and Western India Glass Works (WIG) till such time that the petitioners were paid the value of their 1/3rd share in the said businesses including the said Hyderabad Properties and the value of their interest to the extent of 28% in the business of WIG as may be awarded to them. It was argued that it cannot be disputed that the 1/3r share of the petitioners in the said businesses including the Hyderabad Properties is comprised and/or spread over the four interim awards and the final award dated 14.09.1996. The final Aw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds are satisfied. It was argued that admittedly, the petitioners have not received their shares and the respondents have not complied with the directions given by the arbitrator in respect of the two interim awards relating to Serilingampally lands, Baquer Khan lands and Jeelani Begum lands. The respondents cannot contend that the petitioners have lost all their rights and interests in their one third shares in Mahalaxmi, Kohinoor and CIF and their rights in respect of the 28% shares in WIG. This is contrary to the Arbitration Agreement, the terms of reference and the awards themselves. It was reiterated noted that the four interim awards were converted into consent decree by consent of both parties. The final award was challenged by the petitioners but was upheld all the way to the Hon'ble Supreme Court of India. 27. Responding to the respondents' contention that the petitioners have no locus-standi as they are not the shareholders in any of the respondents' companies as they have received a sum of ₹ 4.41 crores which is the value of one-third shares in the Chand Group of Companies, and that the petitioners have lost all legal and beneficial interests in the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only be decided by this Hon'ble Board and not by the Bombay High Court in proceedings under Section 391 and 394 of the Companies Act. In proceedings under Section 391 and 394 of the Companies Act, the approval or otherwise of the scheme of arrangement or compromise is the primary concern before the Hon'ble Court. The Court in those proceedings is not empowered to and does not have the jurisdiction to adjudicate on the question as to whether the shareholding of a member or a group of members of the company has been illegally transferred and/or allowed in favour of another member/group of members of the company. This jurisdiction and the power to grant this relief is specifically conferred upon this Hon'ble Board by Section 397, 398 and 111 of the Companies Act. It is settled principle of law that if a particular type of relief sought for can only be given in an appropriate proceedings under Sections 397, 398 and 111 of the Companies Act which, are the Code by themselves, it is not possible to circumvent that procedure by instituting the proceedings in any other forum. Reliance was placed on the case reported at AIR 1982 Calcutta 94 At Page 95 (Paragraph 3) 103 (2001) Com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e relevant law applicable to be determination of the transaction which is the source of the right is resjudicata. In this case, as aforesaid, the Bombay High Court was not the Court competent to look into the issues raised in the present petition. Reliance was placed on the case reported at 1970 (1) SCC 613 at 617 (paragraph 5). Secondly it was pointed out that only when the issue has been heard and finally decided can it be said to be resjudicata in subsequent proceeding between the same parties. In the amalgamation proceedings in the Bombay High Court the order of the Bombay High Court reveals that the petitioners seeking leave to intervene in these proceedings was dismissed on the ground that the petitioners were not able to prima-facie demonstrate that their name appeared on the register of members and/or they were shareholders of the respondent company. Hence, the issue whether the petitioners shareholding was illegal and/or legal taken away was never gone into, adjudicated or decided by the Bombay High Court in those proceedings. It is settled law that in order that a matter may be said to have been heard and finally decided, the decision in the former proceedings must have b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts to reduce the Petitioners' shareholding to nil in illegal and null and void in the eyes of law. The individual preference shares of Ramesh Chand was shown as nil in the year 1998-99. The Petitioners argued that this action of the Respondents is also illegal and null and void in the eyes of law. It is important that the final award is dated 14.09.1996 which was finally upheld by the Supreme Court on 18.08.1998. During this time neither the equity nor the preference shareholding of the petitioners could have been dealt with by the Company or by the other two groups. By a direction dated 01.12.1999 issued by the then Prothonotary of the Bombay High Court, the petitioner, without prejudice to their rights and contentions, actually deposited the original shares of the following Companies together with transfer forms duly signed: (a.) Mahalaxmi Glass Works; 7863 shares (Preference); (b) Kohinoor Glass Factory: 6012 shares (Preference); (c) Westernindia Glass Works: -100 shares (Equity); (d) Commercial and Industry Finance: -1300 shares (Equity); (e)New Delhi Glass Industry: -1904 shares (Equity); It was pointed out that by 01.12.1999 the equity as well as the preference sharehold ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ional Commissioner of Police (Economic Offence Wing, Bombay).The respondents have sought to illegally transfer the shares belonging to the Late Shri Ramesh Chand Group and have thereby usurped contrary in the shareholding of the Company and have denied rights of the petitioners without complying with their obligations under the arbitration awards. The shares of the petitioners were transferred/issued without proper transfer forms or signatures of the petitioners. The respondents No. 3 Mahesh Chand has been convicted of a criminal offence under Section 420 of the Indian Penal Code. Shri Mahesh Chand was sentenced to imprisonment for one year and also fined ₹ 1000/- on 04.07.2003 by the Special Judicial First Class Magistrate, Hyderabad in CC No. 908/2002. No resolution have been passed by Company for sale of substantial plant or machinery. The respondent No. 2 3 have systematically hutched a conspiracy to deferred the Companies' property to a third party. Findings have already been recorded in this regard by the Bombay High Court in its order dated 17.11.2002 and 10.02.2003, whereby a receiver was appointed to take charge of the affairs of the Company. Respondents had be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m the Award and if any of the directions of the Award have not been adhered to by any Company then the Petitioners should move the appropriate court for execution of the Award instead of filing Petition under Sections 397 and 398 of the Act. When the Petitioners have sufficient and efficacious remedy available to them, they cannot be allowed to agitate the matter before the CLB. In fact, two execution proceedings have commenced for enforcement of two of the Awards namely, the Seri Lingampally Award and the Miyapur Award by the Petitioners in Hyderabad which are pending. By filing the two execution petitions, the petitioners have by their action conceded that each decree is separate and separately executable, independently of the other decrees. Hence by now linking the separate decrees, they are contradicting their own stand. Responding to the petitioner's contention that all the five awards are to be read and implemented conjointly, non fulfilment of one of awards by the respondents will not entitle them the fulfillment of the other awards, mainly the final and the fifth award, the Respondents had no complied with award relating to Hyderabad Property and, therefore, the petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thereby all the legal process involved in the proceeding where the decrees were passed as near futile exercises. The petitioners' contentions in this behalf are patently illegal and wrong. 34. The respondents stand is that the petitioner's contention is erroneous firstly because all the five awards are separate and independent dealing with different subject. These cannot be interfered with or joined together for any purpose and secondly, in view of Sections 31, 32 and 33 of the Arbitration Act, the Company Law Board cannot adjudicate either the objections to any of Awards or, interpretation of the agreement to refer the disputes to arbitration as the jurisdiction to entertain the same exclusively vests in the Competent Court in which Award had been filed and no other Court or Company Law Board. In the present case the Competent Court has already heard the objections of the petitioners to the Award and has adjudicated on the same and appeal against the same was carried upto the Supreme Court and, the Supreme Court had also dismissed the appeal. The Bombay High Court has considered the matter seven times and even it has been considered by the Supreme Court three times. Al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o iota of evidence of prejudicial oppressive or unfair conduct in carrying on the business of the Company. There are, however, baseless allegations against individual persons which cannot be subject matter of a Petition under Sections 397 and 398 of the Act. Palghat Exports Pvt. Ltd. v. T.V. Chandran (1994) 79 Company Cases 213 (Kerala) refer. 37. Further, it was argued that the Petition relates to matters of 1998. The Petition has been filed in the year 2006. There has been considerable delay in making this Petition. Even if the provisions of Limitation Act are not applicable to proceedings before the Company Law Board yet there is an abnormal delay in bringing the matter before the Company Law Board and on this ground alone, the Petition should be dismissed. A.P. Jain v. Faridabad Metal Udyog Pvt. Ltd . (1999) 95 Company Cases Page 76. 11.2 Delay and latches are fatal to the proceedings. It was contended that the Company Law Board should take into account that the Petitioners have come before it after a lapse of more than 8 years. There is no plea for condoning delay and latches on the part of the Petitioners in initiating proceedings before the Company Law Board. Union of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d out that Arbitration Final Award (Fifth Award) dated 14th September, 1996 by the Arbitral Tribunal was challenged before (i) Bombay High Court: Order of the single Judge Shri V.R. Datar, J, dated 23rd January, 1998 dismissed the Petition field by the Petitioners challenging the Final Award dated 14th September, 1998; (ii) Bombay High Court Order dated 2nd April, 1998 of the division Bench, Coram: Shri M.B. Shah, C.J., and Shri A.Y. Sakhare, J. dismissed with costs and Petitioners' Appeals against the Order of the learned Single Judge dated 23rd January, 1998; (iii) Bombay High Court Order dated 27th April, 1998 Coram: Smt. K.K. Baam, J., lifted the stay on the Decree ordered and stayed for Appeal by Shri V.R. Data, J. of the Bombay High Court in his order dated 23rd January, 1998 and ordered that the Decree in terms of the Final Award (Fifth Award) was made the Rule of the Court; (iv) Supreme Court: Order of Justice A.S. Anand and Justice V.N. Khare dated 18th August, 1998 confirmed the Final Award (Fifth Award), but awarded additional ₹ 5 lakhs as interest to each of the three Petitioners; (v) Supreme Court Order dated 15th March, 1999 by the Hon'ble Chief Justice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jointly with his brothers namely Sh. Mahesh Chand and Sh. Naresh Chand. The deceased did not hold equity shares in individual name. On his demise, the equity shares jointly held by the three brothers vested in the surviving co-owners. The petitioners though the only legal heirs could not have inherited any equity shares in any of these companies. The petitioners by themselves never held any equity shares in these companies. As regards the preference shares of the Ramesh Chand Group, the same had to be compulsorily redeemed in compliance with the relevant provisions of the law by 15 June 1998. These were redeemed on 11th June 1998. The R.C. Group had already been paid off by the Companies in terms of the Final Award dated 14.9.1996 for the deceased's 1/3rd share in the businesses. The consideration was accepted and received. The redemption amount pertaining to the preference shares was paid to MC and NC Group as a consequence of the Final Award. It was not a usual transfer. This was a transfer by order of Court. After paying off the petitioners as per the Award, the remaining shareholders were MC and NC groups. Even the petitioners' attempt to intervene in the proceedings Un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to 104, 108 and 111/111A of the Act, the Awards were not implemented, no consideration was paid to the petitions, payment before the Awards was not possible, after the Awards no payment was made, in compliance with the Awards the Respondent had to give the petitioners power of attorney which was never given on the contrary, in the execution proceedings the Respondents' pleading was at the land cannot be sold which is dishonest legal plea as there are two documents on record showing sale deeds, before the arbitrator the Respondents did not disclose the facts that there were encroachments and it was not possible to sell the lands, the petitioner were never Permitted to sell the land, CIF was disposing of the property can by no way be considered by the Company Law Board. The petitioners further plea that all Awards are interrelated which are part of the final award which among other matter relates to the transfer of impugned shares, complete directions were given in para 48 of the final Award, language used is much wider than what is used in para 43, these Award are not execution proceedings the Respondents' pleading not exclusive of each other, by the final award the other t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d for instance in Naveen Kedia and Ors v. Chennai Power Generation Ltd. and Ors . (1998) 4 Comp LJ 128 (CLB); Escorts Finance Ltd. v. G.R. Solvents and allied Industries Ltd. Ors . (1999) 96 Comp Cas 323 (CLB) and Pinaki Das Gupta v. Maadhyam Advertising (P) Ltd . (2003) 114 CC 346 which is whether the matter in a petition under 397/398 is to be relegated to arbitration is to examine as to whether the allegations of oppression/mismanagement contained therein can be adjudicated without reference to the terms of the arbitration agreement. If it can be, then the question of referring the matter to arbitration does not arise even if the agreement covers the same matter. When all issues raised in the petition are covered by the arbitration agreement, the matter has necessarily to be referred to arbitration. Examining the respondents' claim on the touchstone of the tests applied by the Company Law Board, I find that they pass all the tests. These petitions are not maintainable in view of the fact that admittedly there is Arbitration Agreement; there are decrees in respect of all the awards given. The awards have attained finality after having been repeatedly challenged before th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies dealing with the same subject matter must be avoided. There has to be finality of the dispute. Even if the Award(s) is (are) not complied with the Company Law Board is not the forum. 46. In this view of the matter, the petitioners' contentions and reliance on the cases cited is a futile attempt to somehow get under the jurisdiction of Company Law Board and thus indirectly endeavor to get orders as per their wishes and undo the consequences of the Awards which have already attained finality. And this attempt is made after having accepted the Awards, after having received the benefits and having utilized the consideration received in this behalf. 47. There is no answer given to the principles of acquiescence, waiver, estoppel, res judicata which are obviously and undoubtedly applicable in the present cases. The same claim cannot be raised again and again between the same parties. This principle extends to all matters of law and fact which the decision necessarily establish as the foundation of the conclusion reached by the judicial pronouncement in the present cases. It is well established principle of law that any judgment or order or decree of a judicial authority con ..... X X X X Extracts X X X X X X X X Extracts X X X X
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