TaxTMI 
TaxTMI 
2016 (12) TMI 1773
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.... and two addendums attached with it dated 13.03.2010 and 26.03.2010. A reference has been invited to the averments made in the petition by urging that even the foundation of the reliefs sought are the MOU dated 18.03.2009 and the aforesaid two addendums. According to the MOU there is mandatory provision for referring the dispute between the parties for adjudication by way of arbitration. It has been asserted that the prayers for relief seek to give colour of oppression and mismanagement which infact are the prayer for implementation of the agreement of the parties executed in the form of MOU and the addendums. 2. The application has been vehemently opposed by taking a preliminary objection that the MOU dated 18.03.2009 has been signed by non applicant-petitioner, applicant-Respondent No. 2 and one Mr. Navdeep Kumar Sharma (Respondent No. 4). The addendum dated 13.03.2010 has been signed by three parties mentioned above and in addition by Respondent No. 1-company. However the second addendum dated 26.03.2010 has only been signed by the petitioner and Respondent No. 2. On the aforesaid basis it has been urged that the petition clearly sets out a case of 'oppression and mismanag....
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.... for relief in a properly filed petition under sections 397 and 398 as the petitioner may also invoke arbitration which result in payment of damages which may emerge out of the breach committed by the respondents. Learned counsel has placed reliance on a judgment of Bombay High Court rendered in the case of Rakesh Malhotra v Rajinder Kumar Malhotra (2015) 192 Comp Cas 516 (Bom). 5. Having heard the learned for the parties at a considerable length we are of the view that the question which arises for determination in this case is "whether in the facts and circumstances of this case the dispute raised in the company petition filed u/s. 397, 398, 402 and 403 of the Companies Act could be referred to arbitration on the basis of identical reliefs having been claimed". The law on the subject is fairly well settled. In the case of Sukanya Holdings Pvt. Ltd. v. Jayesh H. Pandya (2003) 5 SSC 531 Hon'ble the Supreme Court has, inter alia observed as under :- "13. Secondly, there is no provision in the Act that when the subject-matter of the suit includes subject-matter of the arbitration agreement as well as other disputes, the matter is required to be referred to arbitration. There i....
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....by the section 402 of the Companies Act, 1956, then there is no question of a dismissal of the petition on the ground of existence of the arbitration clause. The aforesaid view has also been expressed by Hon'ble Delhi High Court in 20TH Century Finance Corporation Ltd. (supra). 7. We have to thus closely examine the averments made in various paras of the petition alongwith ground and reliefs. The facts have been narrated in paras 6 to 51. A perusal of the averments made in para 7 would show that it opens with the general allegations of acts of oppression and mismanagement and then goes on to allege that applicant-Respondent No. 2 is holding the company to ransom after having agreed to sell his 47.8% of its equity shares to the petitioner. There are no specific allegation of oppression except general remarks that the acts of Respondent No. 2 have severely prejudiced the interest of the company. The reference to agreement to sell obviously is to the MOU and the two addendums. In para 8 the date of incorporation and the objects of the company have been given. In para 9, 10 & 11 the shareholding pattern of all the three shareholders have been given with further allegations that Re....
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....39;s Lab Pharma Private Limited. (f) It was also agreed between the petitioner and the Respondent No. 2 that Logos of Respondent No. 1 shall be retained by the Petitioner." 9. In para 16 reference has been made to the detail chart of stock transferred to Respondent No. 2 which has been prepared as per the provisions of the MOU by Respondent No. 1-company. (P6). The petitioner has further averred that he then started pursuing the enforcement of terms for division with Respondent No. 2 as per the provisions of the MOU. However it is alleged that despite repeated requests respondent No. 2 failed to initiate the process of division, demerger on account of mala fide intention. 10. There are allegations against respondent No. 2 in para 17 that he started making fresh demand for share of a net profit as on 12.2.2009 which was not even stipulated in the MOU for Respondent No. 2 to exist from Respondent No. 1-company. A reference has been made to the effort made by the petitioner to seek cooperation of respondent No. 2 for implementation of the terms of the MOU. In that regard a reference has also been made to the letter dated 13.6.2009 and the email dated 13.1.2010, 15.1.2010 and 22.11....
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....new packaging with their respective name of company in the other party reserved territories with effect from 1.8.2010. (v) The Brands divided as per the MOU dated 18.3.2009 shall be launched in the other party reserved territories in new packaging only. However, the New changed Brands/new Bands stock owned by the respective parties may be sold in the old packaging in the other party territories till it exhausted for example Old Brand magma cannot be launched in reserved territories in old packaging but Beta EC that is new changed Brand unsold stock may be sold in reserved territories till the stock exhausted. (vi) The launching of the products of the new companies represented by both the parties shall be in the new design of packaging and shall not use the pattern of the Principle company i.e. M/s. D.R. John's Lab Pvt. Ltd." 12. In pursuance to addendum dated 26.3.2010 the petitioner had made payment in lieu of 2nd tranche of Rs. 30,70,000/- to the Respondent No. 2 on 27.3.2010. However it is alleged that respondent No. 2 failed to transfer the shares and cooperate for the demerger. 13. The whole petition is modeled on the aforesaid MOU dated 18.3.2009 and two addendums d....
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....y Respondent No. 1 the value of stock transferred and/or purchased by the Respondent No. 2 as per paragraphs 16 and 36 of this petition. (xiv) Direct the Respondent No. 2 to pay immediately all the contingents liabilities in respect of which notices have been received by the Respondent No. 1 and as its stands on 31.7.2010 in terms of the MOU and the a addendums thereto. (xv) Direct Respondent No. 2 to pay Rs. 20 crores as damages in lieu of breach of his fiduciary duty towards the Respondent No. 1 and perpetration of conflict of interest as a Director of Respondent No. 1 and his own company Respondent No. 3 during the pendency of the demerger process. (xvi) Any other relief(s)/order(s)/direction(s) which in opinion of Hon'ble Board is/are just and equitable and are in the interest of the company." 15. A perusal of prayer (i), (ii) and (iv) would show that all these prayers are based on the MOU dated 18.3.2009, and the two addendums 13.3.2010 and 26.3.2010. As per the provisions of MOU it was broadly agreed that respondent No. 2 was to transfer his shares on acceptance of value thereof. It was later agreed that the payment of value of the share to the extent should preven....