9911796707
TMI Blog2012 (11) TMI 1183X X X X Extracts X X X X X X X X Extracts X X X X ..... me, RLB became owner of the undertaking of M/s Turner Asia Pacific Ventures Incorporated, i.e. the respondent (also the contempt petitioner; hereafter referred to as the petitioner company ). The appeal has annexed a copy of the approved Scheme between the Transferor company and RLB. The respondent approached this Court in a Civil Contempt proceedings complaining of deliberate and willful violation of the Court s order dated 29.03.2011. The respondent s argued that an amount of US$ 1.5 million was payable to it in terms of Clause 4 of the scheme of amalgamation and despite lapse of considerable time, that condition had not been complied with, deliberately. By the impugned order, a learned Single Judge noticed the contentions of the parties as well as Clause 11.1 (of the scheme of amalgamation) under which amount of US$ 1.5 million was to be paid to the respondent. The impugned order also took note of the submission on behalf of the alleged contemnors, i.e. present appellants, and issued directions which are impugned in the present case. 3. The relevant extracts of the discussion by the learned Single Judge and the impugned directions are in the following terms: Mr. Nayar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e required to fulfill any reciprocal obligations, as contended by the respondents, the very least that the respondents ought to have done by now, was to take recourse to an appropriate remedy, in accordance with law. Admittedly, no steps have been taken in that behalf, though the direction to deposit flows from a judgment dated 25.03.2011. As regards the submission made by the respondents, qua their purported inability to pay, no demonstrable, legally recognized steps have been taken in that regard. In these circumstances, for the moment, I propose to issue a limited direction, which is, that respondents will deposit US $ 1.5 Million, in Indian rupees, in court, at the rate of exchange which was prevalent on the date of the judgment, within six weeks from today. On the money being deposited, the same shall be invested in an interest bearing fixed deposit with a nationalized bank, by the registry. The release of the money, if deposited, would await the approval of the RBI and further orders of this court. List on 16.01.2013. 4. The appellants argued that the impugned order facially discloses several errors, the most obvious one being that the question of payment was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rrangements, authorizations, benefits, capital work-in-progress, concessions, rights and assets, industrial and intellectual property rights of any nature whatsoever and licenses in respect thereof, intangibles, investments, leasehold rights, liberties, patents, permits, powers of every kind, nature and description whatsoever, privileges, provision funds, quota rights, registrations, reserves, and all properties, movable and immovable, real, corporeal or incorporeal, wheresoever situated, right to use and avail of telephones, telexes, facsimile connections, installations and other communication facilities and equipments, tenancy rights, titles, trademarks, trade names, all other utilities held by the Transferor Company or to which the Transferor Company is entitled to on the Appointed Date and cash and bank balances, all employees engaged in the Transferor Company at their respective offices, branches at their current terms and conditions, all earnest moneys and/or deposits including security deposits paid by the Transferor Company and all other interests wheresoever situate, belonging to or in the ownership, power or possession of or in the control of or vested in or granted in fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad to be withdrawn or cancelled. 6. The respondent s counsel urged that the appellants did not dispute their liability in terms of the orders of the Court which had sanctioned the Scheme of Amalgamation. Clause 4 specifically cast a duty on them to pay the sum of US$ 1.5 million, which, concededly, had not been made. For these reasons, there was every justification for invoking the Court s power of taking suitable action against the appellants, particularly the third appellant, for violation of the Court s order. It was submitted that even though the appellants now argue that the respondent s obligations remained unfulfilled, and are now seeking to rely upon correspondence and letters and other documents, with a request for entertaining such additional evidence for the first time, no such plea was advanced before the learned Single Judge. All that the impugned order does, submitted learned senior counsel, is to direct deposit of US$ 1.5 million in Court; the same was to be subject to the final orders to be made in the contempt proceedings. Consequently, the appellants cannot claim to be aggrieved by the order of 24.09.2012 since it did not conclusively determine the rights and l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... op boxes and transmission equipment. However, learned Single Judge was unimpressed with the submission; he reasoned that if the appellants arguments were sound, they would have sought recourse to appropriate remedies in accordance with law. He noticed that no steps had been taken in that behalf despite the Court s order sanctioning the scheme on 25.03.2011. 9. The previous discussion would reveal that the appellants have approached the appropriate forum, i.e. Company Judge and sought for directions under Section 392, alleging that the respondent had not complied with their part of the obligations under the sanctioned scheme of amalgamation. This Court also notices that the impugned order, directing payment of US$ 1.5 million and also overruling the appellant s submission with regard to the non-fulfillment of the respondent s obligations was narrowly premised upon the appellants not having sought appropriate remedies in accordance with law for such alleged non-compliance. In these circumstances, this Court would in effect be a Court of first instance in discerning whether such reciprocal obligations were indeed complied with and if not, whether that justified the appellants wit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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