2020 (2) TMI 1395

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....isposal of the Application under Section 8 of the Arbitration and Conciliation Act, 1996, whichever is later. d) Pass such further order (s) as this Tribunal may deem fit and proper in the facts and circumstances of the present case. 2. The counsel for Applicants/Petitioners prayed for grant of alternative relief 1 (c) as mentioned above. He has referred to the Joint Development and Collaboration Agreement (herein after referred as "JDCA") dated 29.08.2006, wherein the first Respondent Company M/s. Vipul SEZ Developers Private Limited (hereinafter referred as "First Respondent Company") is a party and the project areas is described under Schedule-B of the JDCA. The total project area (Est.) is 150 acres. However, in the description at page 246 of the compilation filed with the Petition, the grand total area is 148.05434 Acres, which is said to have been acquired as per Schedule-B for the JDCA. As can be seen from Schedule-B at Sl. No. 4 at page 245 of the compilation filed with the Petition, the name i.e., Indica Estates is indicated in the column for Sale Deed bearing No. 3543 against which 7Acres is mentioned. The applicants/Petitioners claim that 7 Acres of land was ....

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.... injunction is not maintainable. The Counsel for Respondent No. 1 & 2 has further referred to the proviso to Sub-Section (2) of Section 420 of the Companies Act, 2013 and stated that now amendments can be made in respect of any order against which the Appeal is preferred under this Act. He has been referring to the Order passed by this Bench on 09.08.2019, by which, this Tribunal has granted ad-interim injunction i.e., third party rights are not to be created on land having Sale Deed No. 3543 dated 12.05.2006, till Section 8 application is decided or the decision is taken by the Ld. Arbitral Tribunal. It is stated by the Counsel for the Respondents that the Arbitral Tribunal has already decided the matter. Therefore, the order dated 09.08.2019 has lost its life. 7. It is pertinent to note that an Appeal was filed against the order dated 09.08.2019, which was dismissed by the Hon'ble NCLAT vide order dated 02.12.2019, and then the Civil appeal No. 9400/2019 was filed before the Hon'ble Supreme Court. The Hon'ble Supreme Court, while disposing of the appeal on 09.01.2020, directed this Tribunal to decide the application under Section 8 of the Arbitration Act. However, ....

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....ich is in excess of 138.568 Acres will be dealt by the Vipul Group and Karamchand Realtech Private Limited. The land, if any, to be dealt with by the Vipul Group and Karamchand Realtech Private Limited is neither demarcated nor identified in any way in the MoU. Otherwise also there is nothing on record to suggest as to why Vipul Group and Karamchand Realtech Private Limited are entitled to take away 7 Acres of land of first Respondent Company without paying any consideration there for. 10. The first Respondent Company's Board vide Resolution dated 13.04.2019 authorized Respondent No. 2, 3, 7 & 8 to deal with 7 acres of land purchased by the first Respondent Company vide Sale Deed No. 3543 dated 12.05.2006. In other words, on 13.04.2019 the Board of directors of first Respondent Company under item 14K, has passed a Resolution giving an authority to Vipul Group and Karamchand Realtech Private Limited to deal with 7 acres of land without any consideration. The Vipul Group and Karamchand Realtech Private Limited are related parties and the Resolution passed on 13.04.2019 is prima facie in violation of the provisions of Section 188 of the Companies Act, 2013, which specifically p....

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....lia, on the ground that the transaction in question is with the related party that too without any consideration to be received by the first Respondent Company in relation to 7 acres of land, which is the subject matter of the Petition. 14. It is further submitted that the Board of the first Respondent Company has abdicated its fiduciary responsibility by passing the resolution dated 13.04.2019, with respect to 7 acres of land proposed to be transferred to the related party which is not 'at arm's length'. 15. From the perusal of the record, it is an admitted factual position that 7 acres of land was registered in the name of the first Respondent Company vide Sale Deed No. 3543 dated 12.05.2006, with regard to which a Resolution has been passed by the Board of Directors of first respondent on 13.04.2019 giving authority to Vipul Limited and Karamchand Realtech Private Limited to deal with the land in any manner. The Board resolution is under challenge and the transaction is pertaining to the related party, which prima-facie is in violation of the provisions of Section 188 of the Companies Act, 2013 and in case 7 acres of land is sold by the Respondents during the p....