9911796707
TMI Blog2019 (8) TMI 1584X X X X Extracts X X X X X X X X Extracts X X X X ..... raphs (xvi) to (xxx) and Ld. Counsel for the Petitioners at the time of moving the petition has particularly stressed for the prayers to be granted ad-interim as contained in clauses (xvi) to (xviii). While clause (xvi) pertains to the three Board Resolutions dated 13.04.2019 authorizing respondents 2, 3, 7 & 8 to deal with 7 acres of land purchased vide sale deed No. 3543 dated 12.05.2006 and that the same is not to be exercised by the respondents in any manner, the other two clauses, namely clause (xvii) and clause (xviii) pertain to the appointment of any independent agency as an external co-ordinator and for the appointment of the statutory auditor of the 1st respondent company and for which convening of Extra Ordinary General Meeting (EOGM) at shorter notice is sought for. 2. Upon service of advance copy of application, it is seen that all the respondents save respondent No. 5 impleaded had entered their appearance when the company petition was posted first before the Hon'ble Principal Bench on 07.06.2019 where upon the specific directions of the Hon'ble Principal Bench, the same came to be listed before this Bench of the Tribunal subsequently. On 10.06.2019 when the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as to contribute 150 acres of land. 4. While so, in relation to the contribution of 150 acres by respondent No. 2 it was brought to the notice of the petitioners there has been an overlapping of lands to the extent of 28.156 acres as it was also a part of the JDA as between respondent 2 and 7 and with a view to avoid dispute as between the parties, an MOU was executed on 13.09.2008 between the petitioners, some of the respondents and third parties wherein the contribution of respondent No. 2 to the project was scaled down to 138.568 acres and the excess payments made if any by the parties to be adjusted against project expenses. However, it is alleged that respondent No. 2 played a fraud in this connection as well projecting that it had contributed land to the project of an additional 17.956 acres to the project, even after removing 29.205 acres of land, even though it was paid for by the respondent No. 1 company and belongs to the said company and not as a contribution of respondent No. 2. Since an alleged fraud had been played on the petitioner no, 1 it was forced along with the other to cancel the MOU dated 13.09.2008 vide letter dated 15.05.2015 and in view of the arbitration ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) being the Presiding Arbitrator along with two other former Hon'ble Judges of the High Court of Delhi comprising of the panel of arbitrators and while so, there was no necessity for the petitioners to approach this Tribunal seeking for the same interim protection which is nothing but a forum shopping indulged by the petitioners and hence the same should not be entertained. In addition, it is also pointed out by Ld. Senior Counsel for the respondents no, 1 and 2 that an application under Section 8 of the Arbitration and Conciliation Act, 1996 in Application No. CA - 422/C-III/ND/2019 has been filed by respondent No. 2, in view of the disputes raised in the petition pending before the Arbitral Tribunal and hence the petition to be dismissed. In this connection Ld Sr. Counsel draws the attention of this Tribunal to the judgement dated 10.03.2015 pronounced by the Hon'ble High Court of Delhi in a proceeding initiated by the 1st petitioner herein along with others against the 1st respondent herein as well as others in relation to O.M.P.1123/2012 and O.M.P.624/2014 and the respective I.A.'s fifed therein all under Section 9 of the Arbitration and Conciliation Act, 1996 seeki ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laims before the arbitral tribunal. This court acting under Section 9 of the Act would therefore not pass any interim order either in the form of interim injunction or mandatory injunction which would run contrary to the express terms of the contract entered into between the parties. Accordingly, the breaches and defaults arising out of MOU and the monies recoverable there from would be at the highest form the claims of the petitioners or other investor before the arbitral tribunal but would not alter the position which have agreed between the parties entitling them to claim the right over the land measuring 150 or 165 acres when the parties expressly agreed to contrary and treat 138 acres as project land between the parties. Consequently, no orders of interim nature preserving the rights in OMP No. 551/2014 can be passed for the residual peace of the land as the said land is outside the purview of the agreed project land between the parties. And at paragraph 88 of the said judgement, declined to pass an order as prayed for in the above OMP's as referred to earlier, -however giving a liberty to the petitioners therein to raise all the pleas raised therein before the learned Ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... raw the appeal filed in relation to the order of the Arbitral Tribunal passed on 27th July 2017 with liberty being granted to file any application before the Arbitral Tribunal which was required to consider the same if any filed without being prejudiced or influenced by any observations of the order of the Arbitral Tribunal dated 27th July 2017 and that consequent to the same, an application under Section 17 of the Arbitration and Conciliation Act, 1996 which was filed and which has been reserved for orders on 17th May 2019 as brought forth by the Ld. Sr. Counsel for respondents No. 1 and 2. There has been a deliberate attempt on the part of petitioners to not bring forth the various orders passed by the different judicial forums, which in itself disentitles them for any relief, leaving alone ad-interim reliefs as sought for, due to suppression of material particulars as intended by Ld Counsel for the respondents. 9. The other respondents who have been impleaded as parties even though have entered appearance, however, have neither chosen to make any written representations nor have advanced any submissions, save supporting the petitioners in case of respondent No. 5 and the other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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, more so evident in light of the observations made by the Hon'ble High Court of Delhi vide its judgement dated 10.03.2015 at paragraph No. 80 of the said judgement. However, in recent spate of litigations initiated by the petitioners, liberty has been granted by the Hon'ble High Court to the parties to move applications under Section 17 of the Arbitration and Conciliation Act, 1996 and the same has also been availed by the petitioners and as brought forth in paragraphs supra and after hearing the parties, orders have been reserved by the Learned Arbitral Tribunal on the very same issue on 13.05.2019. Pending disposal of the said application by the Ld. Arbitral Tribunal, while the petitioners have chosen to initiate the present proceedings before this Tribunal of a dispute whose origin can be traced to the year 2006 and subsequent MOU entered into on the volition of the parties and out of which dispute seems to have arisen being an arbitrable dispute and the same pending before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the following effect: "It is settled law when a matter is before NCLT or before this Appellate Tribunal; arising under Sections 241 and 242 of the new Act, read with Rule 11, irrespective of what the parties plead, say or do, the paramount consideration of the Tribunal is to keep in view as to what is in the interest of the Company. The interest of parties is subservient to interest of Company. It is necessary for the Tribunal to first consider interest of the Company." And in the normal course this Tribunal would not have interfered in light of the observations of the Hon'ble High Court of Delhi at paragraph 80 of its judgement rendered on 10th March 2015 and the conclusion reached therefrom. However, in view of the liberty granted by the same court vide its order dated 22.04.2019 and which liberty has also been exercised by the petitioners before the Arbitral Tribunal by filing a fresh application under Section 17 of the Arbitration and Conciliation Act, 1996 and in relation to which orders have been reserved on 17.05.2019, the interest of the 1st respondent company will be greatly prejudiced if third party rights are allowed to be created further in respect of the immova ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
