9911796707
TMI Blog2019 (8) TMI 1584X X X X Extracts X X X X X X X X Extracts X X X X ..... order passed by the Learned Arbitral Tribunal in relation to an application filed under Section 17 of the said Act and as well as before the Hon'ble High Court, all of which clearly disclose the petitioners have not been able to satisfy the said judicial or arbitral forums about the existence of a prima facie case. Thus it is clearly evident that an endeavor seems to be made by both the parties to pre-empt the decision of the Arbitral Tribunal, i.e., by the petitioners in filing the petition without waiting for the outcome of its application under Section 17 of the Arbitration and Conciliation Act, 1996 and on the part of the respondents 2, 3, 7 and 8 by trying to dispose of the 7 acres covered under the Sale Deed No. 3543 dated 12.05.2006 without awaiting for the decision of the Arbitral Tribunal which clearly shows that when the matter is sub judice parties are trying to act to the prejudice of each other. This Tribunal has consistently held that its predominant focus is to safeguard the interest of the company while exercising jurisdiction under Section 241 and 242 of the Companies Act, 2013 as held by the Appellate Tribunal in AMRITSAR SWADESHI WOOLEN MILLS PRIVATE LI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntly contended that no interim direction as sought for is called for in view of the fact that the parties are already before an Arbitral Tribunal at the instance of the petitioners and the said Arbitral Tribunal is seized of the dispute in relation to property covered under the sale deed No. 3543 dated 12.05.2006 amongst others and in the circumstances no intervention of this Tribunal is called for as insisted by the Ld.Counsel for the petitioners. Since certain interim orders passed by the Ld Arbitrators as well as the Hon'ble High Court of Delhi were touted to be relied on not in a formal manner, an opportunity was given to the respondents who were before us on the said day, 10.06.2019, to file a short affidavit along with the orders and judgements of the Arbitral or Judicial authorities in a form of compilation. After compliance, the same came to be listed and this Tribunal heard the submissions in relation to only the ad-interim reliefs sought for, on 02.08.2019 and 03.08.2019. 3. During the course of his submissions, Ld. Counsel for the petitioners sought to bring to the notice of this Tribunal certain essential facts for the purpose of establishing a prima facie case w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itration and that the said dispute is pending adjudication before the Arbitral Tribunal. However, in view of the acts of oppression and mismanagement committed by the respondents, this petition before this Tribunal and as the resolution passed on 13.04.2019 is in itself invalid due to non-compliance with the provisions of Section 173 of the Companies Act, 2013 read with Section 118 of the said Act read along with the Secretarial Standard on Meetings of the Board of Directors (SS-1) as prescribed by the Council of the Institute of Company Secretaries of India and as approved by the Central Government and thereby mandatory, the respondents who have been illegally authorized therein are in a position to transfer the properties falling within the ambit of sale deed No. 3543 dated 12.05.2006 registered in the name of the 1st respondent company, interim protection is sought for. During the course of oral submissions, it was also brought to the notice of this Tribunal certain sale transactions have also been subsequently effected in relation to the said properties based on the strength of the impugned board resolution dated 13.04.2019 and in the circumstances the apprehension of the petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... attention of this Tribunal is drawn to O.M.P.624/2014 wherein specifically a prayer had been made seeking a restraint order in relation to creating third party rights or interests in the assets including immovable assets of respondents No. 1 and 2 therein which are also incidentally respondents No. 1 and 2 herein as well and for appointment of a Receiver. After a detailed discussion of facts and the rival submissions therein and after taking note of the initial extent of land to be made available for the development of 150 acres and subsequent increase and reduction to 138 acres, the Hon'ble High Court at paragraph 80 in its judgement has made detailed observations as to why the petitioners in the said OMP's are not entitled to interim relief as sought for as under: It is apparent and admitted by the parties that after certain clarifications, small disputes arose and the parties have again entered into the MOU dated 13th September, 2008. The parties agree to the position at this point. The further disputes which have arisen between the parties are the breaches arising out of the obligations and compliance of the said MOU. It is already seen that parties by way of the vo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 17 of the said Act to be decided in accordance with law. 6. Consequent to the above judgement dated 10.03.2015, it is pointed out that the 1st petitioner herein approached the Arbitral Tribunal for injunction/receiver by way of two applications and in the second of the applications, a specific prayer had been made before the Arbitral Tribunal in relation to the properties comprised, inter alia Sale Deed Nos. 3543 dated 12.05.2006 as has been sought in the present petition as well, and after a detailed consideration of facts and the position of law and taking into consideration the judgement of Hon'ble Delhi High Court dated 10.03.2015 had concluded vide its order dated 26.07.2017/27.07.2017 that no interim order of injunction needs to be passed as sought for by the petitioners therein in relation to the lands falling under the above noted sale deed dated 12.05.2006. 7. Again, based on an application filed under Section 17 of the Arbitration and Conciliation Act, 1996 the Arbitral Tribunal as noted has recently reserved orders after hearing submissions of the parties in relation to interim reliefs sought for by the 1st petitioner including in relation to subject sal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... This Tribunal is no doubt vested with powers under Section 242(4) of the Companies Act, 2013 to make any interim order which it thinks fit for regulating the conduct of the company's affairs upon such terms and conditions as appear to it to be just and equitable. Thus it is seen that both in relation to final orders that can be passed by this Tribunal as envisaged upon a combined reading of Section 242(2)(a) to (l) of the 2013 Act granting specific powers and 242(2)(m) where the power can be exercised by this Tribunal on the basis that it is just and equitable to do so, as well as in relation to the interim directions which can be issued, the guiding factor requires that it should be in relation to the affairs of the company and that it should be just and equitable to exercise such a power taking into consideration the facts and circumstances of the case. It is also equally important to note that the courts over a period of time have evolved certain guiding factors which are required to be demonstrated by a party seeking for ad-interim relief, the same being the existence of a prima facie case, balance of convenience in favour of the applicant, undue hardship if the interim rel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to invoke the provisions of Section 241 and 242 of the Companies Act, 2013 to their aid. Equally respondents 2,3, 7 and 8 also seems to be in undue haste, as while a decision is pending before the Arbitral Tribunal, to dispose of the 7 acres of land presently in the name of the 1st respondent company, even though claimed to be otherwise by these respondents, as evident from a query posed by one of us if that were so, what was the necessity for passing the impugned resolutions all alleged to be invalid to which Ld Counsel for respondent No. 7 and 8 answered that it was only an administrative exercise to get over technicalities which submission we find it strange and unsatisfactory, more so in view of any formal minutes being circulated by the 1st respondent to the members of the Board in relation to the Board of Directors' Meeting held on 13.04.2019 and recorded evidence being available that no such authorization was given during the presence of the petitioner No. 2 as a member of the Board. However, we are not pre-judging the issue in the absence of any pleadings filed before us by the respondents save, the short affidavits filed by some of the respondents which do not includ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Tribunal covered under Sale Deed No. 3543 dated 12.05.2006 as has been done by the respondents thereby evidencing a satisfaction of the well laid down criteria for grant of ad-interim relief from the stand point and in the interest of the 1st respondent company and its shareholders, as the said asset is to be protected until the decision of the Ld. Arbitral Tribunal arising out of its hearing on 17.05.2019 and to await the orders as are to be pronounced by it. In the circumstances, a status quo order as and from this date in relation to the immovable property covered under Sale Deed No. 3543 dated 12.05.2006 will be in order, till the decision of the Learned Arbitral Tribunal being pronounced in relation to the dispute as between the parties pending before it or the decision of this Tribunal in relation to C.A. No. -422/C-III/ND/201 questioning the jurisdiction of this Tribunal in view of Section 8 of the Arbitration and Conciliation Act, 1996 whichever is decided earlier and with a view to preserve the property reflected presently in the name of the 1st respondent company till such time. 13. In relation to other ad-interim reliefs sought for, the same to await the decision of ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
