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TMI Blog2022 (7) TMI 151X X X X Extracts X X X X X X X X Extracts X X X X ..... their servants/agents or any other person directly or indirectly acting on behalf of Defendant Nos. 1 and 2 from taking steps towards valuation of Defendant No. 3 and/or buy-out of inter alia the Defendant Nos.1 and 2's shareholding in Defendant No. 3. Other consequential relief has also been sought against Defendant Nos. 1 and 2 which have been set out in the subsequent prayers viz. prayer clauses (c) and (d). 2. The Applicants have filed the present Suit seeking specific performance of the agreement ("Minutes of Discussion") dated 14th June 2019 (annexed at Exh.A to the Plaint) and declaration that the Minutes of Discussion is valid, subsisting, enforceable and binding. 3. The Applicants along with the Defendant Nos. 1 and 2 are Directors as well as the shareholders of the Defendant No. 3 Company. Defendant No. 3 Company is a Private Limited Company, incorporated under the Companies Act, 1913 and engaged in the business of operating and running automobile dealerships having operations in the State of Maharashtra, Andhra Pradesh and Telangana, Tamil Nadu and Karnataka and Gujarat. The overall control of Defendant No. 3 Company is exercised by its Board of Directors, but for adm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed a scheme of arrangement (demerger) and the appointed date for demerger mentioned therein is 1st April 2020. It was further recorded in the Minutes of Discussion that other than what has been set out in the Minutes of Discussion, no claim from Gujarat family of any sort will be considered and the Minutes of Discussion shall be treated as full and final settlement. It is further recorded that the scheme of arrangement (demerger) was likely to be implementation by 1st April 2020. After Clause 9 of the Minutes of Discussion, parties to the Minutes of Discussion have appended their signatures. Thereafter, the concluding words which are of importance are set out as under :- "The above represents the understanding agreed to between the Gujarat family, Maharashtra family and AP & Telangana family and is without prejudice to the other rights and remedies available to the parties. The detailed understanding and the mechanics would be documented by way of family settlement agreement and Scheme of Arrangement (Demerger) to be filed with the National Company Law Tribunal and withdrawal of the existing Company Petition filed by the Gujarat family." 7. After recording of concluding words, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... institutions as on 31st August 2020. This was considering that the RBI's loan moratorium was ending and NCLT had not heard the Miscellaneous Application No. 1008 of 2020 filed by the Plaintiffs. On 31st August 2020 an order came to be passed by the NCLT in Miscellaneous Application No. 1008 of 2020 recording that the parties to undertake one more round of settlement talks and in the meantime, the Defendants will not incur any further indebtedness (recording the voluntary statement made by the Defendants' Counsel). The Advocates of the Plaintiff Nos. 2 to 4 addressed a letter dated 3rd September 2020 to the Advocates for the Defendant Nos. 1 and 2 recording the statement made by the learned Senior Counsel Mr. Dwarkadas for the Defendant Nos. 1 and 2 before the NCLT. The letter recorded that the payment of Rs. 56 Crores towards the Gujarat Division's dues to banks and financial institutions was made in terms of the Minutes of Discussion and pursuant to the statement made. This was responded to by the Advocates for the Defendant Nos.1 and 2 vide letter dated 4th September 2020 denying the contents of the letter dated 3rd September 2020 and stating that the statement of Mr. Dwarkadas h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es and rejoinders and for the Appeals to be listed on 27th August 2021 under the caption of "for admission (after notice)". 16. Being aggrieved by the said order dated 28th July 2021, the Defendant Nos. 1 and 2 filed Company Appeal Nos. 4588 and 4542 of 2021 before the Supreme Court challenging the said order passed by the NCLAT in the Appeals. 17. The Supreme Court disposed of the Civil Appeals inter alia directing the NCLAT to dispose of the Appeals pending before it by 28th October 2021 i.e. before the date fixed for the main hearing of the Company Petition. 18. The NCLAT disposed of the Appeals on 29th September 2021 directing the NCLT to hear the matter expeditiously uninfluenced by the observations made in paragraph 10(ii) and (iii) of the order dated 11th June 2021. 19. The Company Petition though listed before the NCLT, could not be heard due to paucity of time. 20. On 1st December 2021 an 'Overview Note' is filed by the advocates for Defendant Nos. 1 and 2 in the Company Petition which inter alia seeks fresh valuation and exit from Defendant No. 3 Company. 21. NCLT passed an order on 21st January 2022 directing that the Petition to be listed high on board and for fin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ade submissions on the Minutes of Discussion/Agreement which he has submitted is a family settlement and thus, enjoying a special equity. He has submitted that a bare reading of the Minutes of Discussion makes it clear that it is a family settlement. It is an undisputed position that the parties to the Minutes of Discussion are related to each other and are family members. The disputes between the parties to the Minutes of Discussion have been resolved by the execution of the Minutes of Discussion. The mere fact that the disputes in relation to Defendant No. 3 Company was the only dispute which was to be resolved, and in doing so the NCLT Petition was to be withdrawn, does not detract from the Agreement being a "family settlement". 27. Mr. Virag Tulzapurkar has relied upon the decision of the Supreme Court in Kale Vs. Dy. Director of Consolidation (1976) 3 SCC 119 - paragraph 9 to 24 in support of his submissions that the Court in favour of upholding a family arrangement instead of disturbing the same on technical or trivial grounds. Where the courts find that the family arrangement suffers from a legal lacuna or a formal defect the rule of estoppel is pressed into service and is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scussion understood the Minutes of Discussion to be a family settlement. The issues of the three families in the Minutes of Discussion are the issues to be settled. Thus, the Minutes of Discussion records a full and final settlement among the three families of the issues pending and is therefore complete. 32. Mr. Virag Tulzapurkar has also submitted that from a reading of Clause 8 of Minutes of Discussion wherein it is stated that "no claim by the Gujarat family of any sort will be considered and this shall be treated as full and final settlement" makes it clear that the Minutes of Discussion was a full and final settlement between the three families namely the Gujarat family, Maharashtra family and Andhra Pradesh/Telangana family. The concluding words of the Minutes of Discussion that it was without prejudice to other rights and remedies available to the parties was only reference to such other rights and remedies available to the parties other than that recorded in the Minutes of Discussion. The reference to detailed understanding and mechanics documented by way of family settlement agreement and scheme of arrangement (demerger) in the Minutes of Discussion were not with referen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rease of Defendant Nos.1 and 2's shareholding from approx. 17% to 19.31%. ii. Defendant No.1, promoter director of one Kimaya Enterprises Pvt. Ltd. addressed a letter dated 26th November 2019 to Defendant No.3 Company's Board, requesting issuance of the NOC to enable Kimaya Enterprises to change the name to Automotive Manufactures (Guj.) Pvt. Ltd. iii. To establish a separate and independent entity, the Board of Directors in its 582nd Board Meeting held on 2nd December 2019 unanimously consented to issue a No Objection Certificate for allowing change of name of the said Kimaya Enterprises Pvt. Ltd. to Automotive Manufacturers (Guj.) Pvt. Ltd., so that it could be the resulting entity in the proposed demerger. iv. The Board of Directors caused payment of approx. Rs.56 Crores, partly from the cashflows of Maharashtra and Andhra Pradesh Divisions and partly by selling listed investments of Defendant No.3 Company to discharge bank/ financial institution liabilities of the Gujarat Division of Defendant No.3 Company. v. Defendant No.3 refunded the Fixed Deposits belonging to Defendant Nos.1 and 2 amongst other shareholders by sale of liquid investments of Defendant No.3. vi. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Nos. 1 and 2 referred to as Gujarat family in the Minutes of Discussion was agreed upon by the parties i.e. the Gujarat Division along with its the assets and liabilities and monies/other assets at Rs.245 Crores. The parties had also agreed that the Defendant No. 3 Company shall offer buy-back of shares which would result in exit of outsider shareholders. Parties had further agreed that the appointed date for the demerger was 1st April 2020. Parties agreed that the settlement contemplated in the said Minutes of Discussion shall be treated as full and final settlement and no claims would be considered. 39. Mr. Virag Tulzapurkar has submitted that the Minutes of Discussion merely contemplated entering into a detailed document, as a formality, by which the terms already agreed upon are to be put in a more formal shape. Nothing prevented the existence of it being a binding contract. The understanding and the mechanism documented by way of a family settlement agreement and scheme of arrangement (Demerger) is not a condition so as to prevent the concluded agreement. He has relied upon the decision of the Supreme Court in Kollipara Sriramulu Vs. T. Aswathanarayana AIR 1968 SC 1028 - Para ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tulzapurkar has further submitted that there is no bar on the present Suit and/or Interim Application under Section 430 of the Companies Act, 2013. Section 430 bars jurisdiction in the courts only in respect of any matter which the NCLT or the NCLAT is empowered under the said Act. In the present case, the question that arises for consideration before this Court is whether the NCLT is empowered under the Companies Act, 2013 to decide the question of specific performance of an agreement. It is only if this question is answered in the affirmative that the Plaintiff can be non suited. He has referred to the decisions of the Supreme Court under Section 9 of the Code of Civil Procedure, 1908 ("the CPC") in support of the submissions that the Civil Court has inherent jurisdiction to try civil disputes unless its jurisdiction is barred expressly or by necessary implication, by any statutory provision, and that jurisdiction is conferred on any other tribunal or authority. He has in this context, relied upon the decision in Dwarka Prasad Agarwal Vs. Ramesh Chander Agarwal (2003) 6 SCC 220. This decision has held that the a provision seeking to bar jurisdiction of a Civil Court requires str ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch is in aid of the final relief in the Suit. Since final relief of specific performance can be granted only by this Court, the interim relief can also be granted by this Court. He has referred to the second part of Section 430 of the Companies Act, 2013 and has submitted that this clearly follows from the first part. The second part of Section 430 provides that "no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act or any other law for the time being in force, by the Tribunal or the Appellate Tribunal". It thus, follows that though the NCLT and/ or NCLAT does not have jurisdiction to grant the final relief it can never be said that it still has jurisdiction to grant interim relief. Such relief would be outside the jurisdiction of the NCLT. 44. Mr. Virag Tulzapurkar has accordingly, submitted that the NCLT is not having jurisdiction over the subject matter of the captioned Suit. The Plaintiffs cannot seek such relief in the NCLT. He has accordingly, submitted that since the Minutes of Discussion is a valid and binding family settlement, it is required to be given effect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tent pleaded position. It is only at the advanced stage of arguments in Miscellaneous Application No. 1064 of 2020 and Miscellaneous Application No. 1008 of 2020 before the NCLT that Plaintiff No.1 filed an Affidavit dated 27th January 2021 stating that the Plaintiffs had filed the captioned Suit before this Court for specific performance of the Minutes of Discussion. There was no application filed/moved by the Plaintiffs before this Court seeking to injunct Defendant Nos. 1 and 2 from seeking a valuation before the NCLT which was sought in Miscellaneous Application No. 1064 of 2020 on the basis that it would run counter to the pending Suit before this Court. He has submitted that it is only with a view to undermine the disposal of the Company Petition in its entirety and deny the Defendants from seeking their just entitlements before the NCLT, that the present Interim Application has been preferred. 46. Mr. Ravi Kadam has further submitted that the Suit is barred by Section 430 of the Companies Act, 2013 as the NCLT is empowered to determine whether the dispute before it is settled by a valid and lawful compromise. He has submitted that the Plaintiffs are obligated to file an app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s therein had been settled by a valid binding compromise is to be accepted, the Plaintiffs were and are duty-bound in law obligated to approach the NCLT to record a compromise and for the NCLT to pass the order in terms of the compromise under Order XXIII Rule 3 of the CPC. The NCLT is empowered and able and has jurisdiction to record a compromise and pass an order in terms thereof. Further, the NCLT is empowered to determine the question whether there is a lawful agreement/compromise in writing and signed by the parties which effectively disposes of the pending Company Petition before the NCLT and the Civil Court is not entitled to do so, as its jurisdiction stands ousted by Section 430 of the Companies Act, 2013. 49. Mr. Ravi Kadam has relied upon decisions of the Supreme Court to the effect that the NCLT has power to record and order a compromise under Order XXIII Rule 3 of the CPC. These decisions are namely State of Karnataka Vs. Vishwabharathi House Building Coop. Society & Ors. (2003) 2 SCC 412 and Industrial Credit and Investment Corporation of India Ltd. Vs. Grapco Industries Ltd. & Ors. (1999) 4 SCC 710. 50. Mr. Ravi Kadam has thereafter submitted that under Section 430 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t and Interim Application are barred under Section 430 of the 2013 Act. Following are the decisions :- (i) Shashi Prakash Khemka (Dead) through LR Vs. NEPC Micon (NEPC India Ltd.), (2019) 18 SCC 569 (ii) SAS Hospitality Pvt. Ltd. & Anr. Vs. Surya Constructions Pvt. Ltd. & Ors. - (2019) 212 Comp Cas 102 (iii) Shankar Assana Gaddam Vs. Achanak Associates Realtors Pvt.Ltd. 2021 (2) Mh LJ 159 (iv) Invesco Developing Markets Fund Vs. Zee Entertainment Enterprises Ltd., 2022 SCC OnLine Bom 630 52. Mr. Ravi Kadam has submitted that the Courts in the above decision have considered the bar under Section 430 of the Companies Act, 2013 that restrained the Courts from interfering with the wide powers of the NCLT under the 2013 Act and/or granting any order of injunction which would have the effect of preventing the NCLT from exercising such wide powers. 53. Mr. Ravi Kadam has submitted that the Minutes of Discussion is not a concluded contract at all. He has referred to the clauses in the Minutes of Discussion and has submitted that from a plain reading of these clauses, the document styled as a Minutes of Discussion would require a detailed mechanism of family settlement to be arriv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Plaintiff Nos. 2 to 4 before the NCLT wherein they expressly contended that there was no concluded settlement between the parties. Plaintiff Nos.2 to 4 had by Miscellaneous Application No. 1008 of 2020 sought to wrest control over the Gujarat Division from the Defendants, thereby clearly repudiating Clause 5 of the Minutes of Discussion where the demerged Gujarat Division was to be carved and transferred to the Defendants. 55. Mr. Ravi Kadam has further submitted that the Plaintiffs had by filing the Miscellaneous Application No. 1008 of 2020 as well as challenging to the order of the NCLT rejecting the relief sought for in the Miscellaneous Application No. 1008 of 2020 and being party to the Appeal before the Supreme Court preferred by the Defendants had at no stage contented that the proceedings before the NCLT could not be proceeded with on account of the settlement arrived at by way of Minutes of Discussion and/or cited the captioned Suit, as an impediment to the proceedings before the NCLT. In fact, the Plaintiffs at proceedings before the NCLT admitted that the settlement discussions between the parties had failed and accordingly, proceeded with the hearing before the N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d exchanged during settlement talks and discussions. In any case, the correspondence, assuming that they can be relied upon, clearly reflects that the parties were not ad idem and were only attempting to arrive at a settlement, which eventually did not fructify, as recorded in the pleadings filed before the NCLT and the orders of the NCLT and the Supreme Court. 58. Mr. Ravi Kadam has relied upon the decisions of the Supreme Court in support of his contention that the correspondence exchanged in the process of the parties seeking to compromise the action, the evidence of the content of those negotiations will, as a general rule, not been admissible. The correspondence will only be protected by without prejudice privilege if it is written for the purpose of a genuine attempt to compromise a dispute between the parties. The protection of privilege to "without prejudice" correspondence depends partly on public policy, namely the need to facilitate compromise and partly an implied agreement. 59. Mr. Ravi Kadam has relied upon the decisions of the Supreme Court in Peacock Plywood (P) Ltd. Vs. Oriental Insurance Co. Ltd. (2006) 12 SCC 673 and Oberoi Constructions Pvt. Ltd. Vs. Worli Shi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the Supreme Court, even after the filing of the present Suit. The Plaintiffs have in fact, time and again consented to the Company Petition being heard finally, even as recently as on 21st January 2022. The present Interim Application was filed on 11th February 2022 and sought to be listed on 16th February 2022, exactly one day before 17th February 2022 being the scheduled final hearing of the Company Petition before the NCLT. The Suit was filed to derail the hearing of Miscellaneous Application No. 1064 of 2020 albeit unsuccessfully. The present Interim Application has been filed in a clear attempt to stall the hearing of the Company Petition. It is obvious that the attempt is to prevent the NCLT from passing orders for valuation and eventual buy-out, an event that would constrain the Sanghvi Group into giving the Kamdar Group a fair and equitable consideration for their shareholding is what motivated the Interim Application. The Interim Application has been taken out and moved by the Plaintiffs being perversely conscious of the fact that Defendant No. 2 is 99 years old and that the delay is only likely to benefit them and defeat the Defendants' cause before the NCLT. The Pla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lied upon by the Plaintiffs, the agreement had been arrived at between the parties, which contained vital terms of the contract as noted by the Supreme Court in Kollipara Sriramulu (supra). In the judgment of the Court of Appeal in England, namely, Branca Vs. Cobarro (supra) relied upon by the Plaintiffs, the agreement was styled as "agreement" albeit a "provisional agreement". The provisional agreement was to continue until drawing up of a formal agreement and that the parties intended that the documents have some efficacy. In the facts of the present case, no such term was concluded in the Minutes of Discussion. In another decision of the House of Lords in England relied upon by the Plaintiffs namely W.J. Rossiter, George Curtis & Ors. (Supra), a clear contract has been made out from the correspondence. In the present case, Minutes of Discussion merely recorded the tentative discussion held between the parties and was expressly made subject to further discussions which failed to fructify between the parties. Thus, this decision is not applicable to the facts of the present case. 65. Mr. Ravi Kadam has thereafter, distinguished the other decisions on family settlement relied upon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fered with, especially if acted upon. This is not so in the present case. 67. Mr. Virag Tulzapurkar in his rejoinder submissions has submitted that there is no merit in the Defendants' contention that the Minutes of Discussion was not a concluded contract and/or "an inchoate document" and "an incomplete document" and "a tentative document" as described by the Defendants in their oral submissions. The Minutes of Discussion was entered between the parties after several rounds of negotiations from 2014-15 onwards and thereafter, recorded/ reduced the writing. A plain reading of Clauses 6, 7 and 8 make it clear that the valid and enforceable contract came into existence and which was to be treated as in full and final settlement. 68. Mr. Virag Tulzapurkar has submitted that there is equally no merit in the Defendants' contention that other members of the respective families and / or other parties to the Petition before the NCLT have not signed the Minutes of Discussion and therefore, the Minutes of Discussion is not enforceable. He has submitted that the Defendant Nos. 1 and 2 have not pleaded this in their case Affidavit in Reply dated 22nd February 2022. The Defendant Nos. 1 and 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cussion itself. The said Minutes of Discussion was executed long prior to the said email dated 16th August 2020. The said Minutes of Discussion is not a without prejudice document. He has submitted that it is a settled position of law that the expression "without prejudice" is to be understood on the fact situation and in the context in which it is used. 71. The parties clearly understood the said Minutes of Discussion to be a concluded contract and were merely discussing the modalities for implementing the same on a "without prejudice" basis. The fact that the said Minutes of Discussion was in fact a concluded contract is well established from the correspondence prior to July 2020 leading upto Defendant No. 1's email of 24th June 2020, which clearly shows that the parties understood the said Minutes of Discussion was concluded and "in place". 72. Mr. Virag Tulzapurkar has submitted that the decisions relied upon by the Defendants namely Oberoi Constructions Pvt. Ltd. (supra) itself has noted that correspondence marked "without prejudice" may have to be interpreted in different situations. Further in Peacock Plywood (P) Ltd. (supra) the Supreme Court has held that there are circu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y (supra) which holds that when once it is shown that there is a complete contract, further negotiations between the parties cannot, without the consent of both get rid of the contract already arrived at. He has further referred to the decision of the Supreme Court in Udham Singh Vs. Ram Singh (2007) 15 SCC 529 and Gautam Sarup Vs. Leela Jetly (2008) 7 SCC 85 in support of his submission that it is a settled position of law that an admission can always be explained or clarified. 75. Mr. Virag Tulzapurkar has submitted that there is no merit in the contention of the Defendant Nos.1 and 2 that by proposing to sell the Pune property, the Plaintiffs have repudiated the Minutes of Discussions. Clause 4 of the Minutes of Discussion itself contemplates sale of Pune property. The draft scheme of demerger also contemplated such sale. 76. Mr. Virag Tulzapurkar has further submitted that there is no merit in the Defendants' contention that there is delay in filing the captioned Suit and seeking interim relief. He has submitted that delay by itself is no ground to deny the relief, where, as in this case, no prejudice has been caused to Defendant Nos.1 and 2 by any such alleged delay. The Def ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resent case there is no ambiguity in the admission "proposed settlement proposal", namely that the Minutes of Discussion was not a concluded contract. He has also distinguished the decisions relied upon by the Plaintiffs in support of their contention that abandonment is a positive voluntary act and inactivity or passive attitude does not constitute abandonment. He has submitted that in the present Suit there are positive acts on the part of the Plaintiffs by filing Miscellaneous Application No. 1008 of 2020 before the NCLT, dealing with the Pune property and repeatedly referring to the Minutes of Discussion, as a settlement proposal and representing to the NCLT that the matter could not be settled. 80. Mr. Ravi Kadam has further submitted that the decision of the Supreme Court in Embassy Property Developments Pvt. Ltd. (supra), which was relied upon by the Plaintiffs in support of the submission that Sections 420 to 424 of 2013 Act indicated only the procedure to be followed by the NCLT does not address Defendants arguments under Order XXIII Rule 3 of the CPC or Sections 420 or 424(1) of the Companies Act, 2013. He has submitted that NCLT's orders are not toothless and the Plaint ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Discussion was filed subsequent to the Company Petition having been filed by the Defendants before the NCLT under Section 241, 242 and 244 of the Companies Act, 2013 which sought to restrain the alleged oppressive acts of the Plaintiffs against Defendant Nos. 1 and 2. I am further mindful of the fact that the said Company Petition is at the stage of hearing and final disposal subsequent to the orders passed by the NCLT as well as by the NCLAT and the Supreme Court. However, in my prima facie view, adetermination of the issue as to the Minutes of Discussion being a family settlement is an issue which arises before this Court having jurisdiction and for considering whether interim relief is to be granted in the Interim Application such a prima facie determination would be necessary. I will herein below deal with the submission of Mr. Ravi Kadam for the Defendants that there is an express bar under Section 430 of the Companies Act, 2013 and which would bar such Suit being determined by a Civil Court as NCLT is empowered to determine whether the dispute before it is settled by a valid and lawful compromise. 84. It is to be noted that the Minutes of Discussion has admittedly been e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Gujarat family." 85. The above concluding words in the Minutes of Discussion make it clear that this was an understanding agreed to between the Gujarat family, Maharashtra family and Andhra Pradesh/Telangana family. The words "and is without prejudice to the other rights and remedies available to the parties" are required to be interpreted according to its plain language and literal interpretation. The words "without prejudice" are followed by the words "to the other rights and remedies available to the parties" have been interpreted by Mr. Virag Tulzapurkar as encompassing those rights and remedies other than the matters covered by the Minutes of Discussion without affecting the binding nature of the Minutes of Discussion. This interpretation is in my view a plausible interpretation and one which requires acceptance. The contention of Mr. Ravi Kadam on behalf of the Defendants that the words "without prejudice to the others rights and remedies available to the parties" are to be read as the Minutes of Discussion not being of a binding nature would in my prima facie view be destructive of the plain language of the words used. Further, it is clear from the other clauses in the M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sole question is whether that paragraph introduces an element which destroys and contractual efficacy in the rest of the documents. It is in rather an unusual form. "This is a provisions agreement until." That the parties contemplated and wished that there should be what they call a "fully legalized agreement" drawn up by and signed is quite clear. But the first thing to notice about these words is that they are not words expressive of a condition of stipulation to that effect. The familiar words "subject to contract," and many other forms of words that one has come across in this class or case are words of condition. ..." [Pg.856 & 857] "... An agreement which is only to last until it is replaced by a formal document containing the same terms and drawn up by solicitor could I should have thought, be described by no more apt word than the word 'provisional". When the word "provisional" is linked up with the word "until", the whole thing seems to me to fall into shape. My reading of this document is that parties were determined to hold themselves and one another bound. They realized the desirability of a formal document, as many contracting parties do, but they were determined tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rice to be paid, and all those matters, be clearly and distinctly stated, although only by letter, an acceptance clearly by letter will not the less constitute an agreement in the full sense between the parties, merely because that letter may say, We will have this agreement put into due form by solicitor... Both parties may desire that it shall be put into a formal shape by a solicitor who, in that case, will not be able to vary the agreement which had been completely formed with unity of purpose with reference to the sale and purchase by the two parties to the contract..." [Pg.1143 & Pg. 1144] "... Thereupon, I think, with the Master of the Rolls, that the contract was complete. Everything essential to the completion of it appears on the written documents - the parties, the premises, the conditions and the price. As offer is made; those who had full power to accept it did it, in terms, by their fully authorized agent. The purchaser thinks they are making a fresh condition; they answer that they are not, and again accept it, simply and absolutely, as he had asked them to do. I cannot conceive that anything remained but to carry out the bargain which was then and thus consummated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prevent the existence of it being a binding contract. The decision of the Supreme Court in Kollipara Sriramulu (supra) is apposite in the present case. 91. Mr. Ravi Kadam has contended that the Minutes of Discussion contemplates an alleged compromise of the disputes pending before the NCLT, namely the Company Petition, as it requires the Defendant Nos. 1 and 2 to withdraw the Company Petition and completely disposes of the case before the NCLT. He has submitted that the Plaintiffs were obligated to file an application under Order XXIII Rule 3 of the CPC (read with Rule 11 of the NCLT Rules) before the NCLT based on the alleged compromise contained in the Minutes of Discussion. He has further submitted that the NCLT has the power to decide the question of whether "an adjustment or satisfaction has been arrived at" when one party asserts and the other party denies a compromise/agreement. He has further relied upon the wide powers of NCLT including Section 424(1) of the Companies Act, 2013, which provides that the NCLT is not bound by the provisions of the CPC. 92. In my prima facie view, the Minutes of Discussion cannot be contemplated to be a mere compromise of the proceedings be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .e. payment of Rs. 56 Crores in discharge of bank liabilities. I am of the view that since the Defendant No. 3 Company was being run as a whole and the Plaintiffs being in management of the Defendant No. 3 Company, in order to protect the interest of the Defendant No. 3 Company, any decision made in good faith and in continuation of the discussions to finalise the scheme of arrangement and the formal family settlement cannot be considered to be an act in repudiation of the Minutes of Discussion. Further, the Defendants themselves have acted in furtherance of the Minutes of Discussion by unanimously approving the buy-back of shares, which resulted in the increase of their own shareholding. It has been held by this Court in Shivanand Vassudev Salgaocar (supra) that the ordinary doctrine of estoppel apply where although no contract has come into existence, the conduct of a party has been such that he is estopped from denying the existence of a valid and enforceable contract. In the present case, it would appear from the conduct of the Defendants that the Defendants have acted in implementation of the Minutes of Discussion and thus, will be estopped from denying the existence of a vali ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prima facie an agreement/family settlement between the parties. I am thus not inclined to accept the submission of Mr. Ravi Kadam that the Plaintiffs had admitted the Minutes of Discussion not to be a full and final settlement and referred to it as a settlement proposal/ proposal for settlement which had failed. 97. The decision relied upon by Mr. Virag Tulzapurkar namely Perry (supra) which is of the English courts has clearly held that when once it is shown that there is a complete contract, further negotiations between the parties cannot, without the consent of the parties get rid of the contract already arrived at. It is settled law that an admission of a party can always be explained. 98. Further, I do not accept the submissions on behalf of the Defendants that the Plaintiffs repudiated the Minutes of Discussion by proposing to sell the Pune property. In my view, the Plaintiffs have acted in conformity with the terms of the Minutes of Discussion and in particular, Clause 4 thereof which contemplates sale of the Pune property and that if the sale proceeds of the Pune property is less than Rs. 40 Crores, Andhra Pradesh and Telangana family would compensate the Gujarat family f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e purchase of shares or interest of any member of the company by other members or by the company. He has submitted that in view of the NCLT being empowered under the Companies Act, 2013, to order purchase of shares and, as a consequence the power to direct valuation, it would not be open for this Court to restrain the NCLT from exercising such power. In my view, this submission has lost sight of the fact that in the first part of Section 430 of the Companies Act, the NCLT would necessarily have to be empowered to determine the subject matter of the present Suit filed before this Court and then only the second part, of not granting injunction shall follow. 103. It has been held in paragraph 31 of the decision relied upon by Mr. Virag Tulzapurkar namely Embassy Property Developments Pvt. Ltd. (supra) as under :- "31. NCLT and NCLAT are constituted, not under the IBC, 2016 but under Sections 408 and 410 of the Companies Act, 2013. Without specifically defining the powers and functions of the NCLT, Section 408 of the Companies Act, 2013 simply states that the Central Government shall constitute a National Company Law Tribunal, to exercise and discharge such powers and functions as a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... / or distinguish the ratio set out in the extracted paragraph, namely paragraph 31 of the judgement in Embassy Property Developments Pvt. Ltd. (supra). Thus, the Defendants reliance on this judgment is misplaced. 105. I have considered the decisions relied upon by Mr. Virag Tulzapurkar in support of his submission that the Civil Court has inherent jurisdiction to try all types of civil disputes unless its jurisdiction is barred expressly or by necessary implication by any statutory provision and/or jurisdiction conferred in any other Tribunal or Authority. Having arrived at a prima facie finding that the NCLT/NCLAT are not empowered by any of the provisions of the Companies Act, 2013 to grant specific performance, this well settled position of Civil Court having inherent jurisdiction to try all types of civil disputes would be apposite. 106. It is further of significance that the Courts have held that the NCLT/NCLAT does not have jurisdiction to deal with the issues relating to enforcement of contractual provisions between the parties and they have no jurisdiction to decide a civil Suit of specific performance. 107. The decisions relied upon by Mr. Virag Tulzapurkar are of sign ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terim relief. There is much substance in the submission of Mr. Virag Tulzapurkar that the question of delay, if at all, is required to be balanced against the likelihood of the Plaintiffs ultimately succeeding in the action and where the strength of the Suit is prima facie strong, the Plaintiffs' delay (assuming there is delay) in filing the action would not disentitle the Plaintiff to the relief. The Supreme Court in Dehri Rohtas Light Railway Company Limited (supra) has held that the principle on which the relief to the party on the grounds of latches or delay is denied, is that the rights which have accrued to others by reason of the delay in filing the petition should not be allowed to be disturbed unless there is a reasonable explanation for the delay. In my view, there has been no right which has accrued to the Defendants by reason of alleged delay in filing the captioned Suit and seeking interim relief. 110. Considering that the Minutes of Discussion which in my prima facie view, amounts to a family settlement was being implemented in its true spirit and intent as well as the fact that it was in September 2020 that the Defendant Nos. 1 and 2 in correspondence chose not to e ..... X X X X Extracts X X X X X X X X Extracts X X X X
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