TaxTMI 
TaxTMI 
TaxTMI 
2023 (6) TMI 252
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....tamp Act, the stamp duty payable for the Option Agreement is at least above Rs. 23,00,000/-, whereas the said Agreement has been recorded on a stamp paper of Rs. 100/- only. In view of Section 38 of the Indian Stamp Act, 1899 (in brief, "the 1899 Act") the court cannot refer the matter to arbitration. In such context, the learned Senior Advocate appearing for the respondent cites N.N. Global Mercantile Private Limited Vs. Indo Unique Flame Ltd. And others, reported at 2023 SCC OnLine SC 495. 3. Next, it is argued that the application is misconceived and bad for non-joinder of the Special Purpose Vehicle (SPV), namely Orissa Steel Expressway Private Limited, which a party to the Option Agreement containing the arbitration clause. 4. Clauses 5.2 and 7(b) imposes certain obligations and undertakings on the said SPV. Hence, it is argued that any order or award passed in an arbitration arising out of the Option Agreement would affect the SPV and its rights. The SPV may refuse to register any transfer of shares inter se the parties as under Section 58 of the Companies Act, 2013 (for the sake brevity, "the 2013 Act") and the private company may refuse the transfer of any securities in p....
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....different and did not relate to the purported Option Right of the petitioner, it is argued. It was the respondent herein who had filed proceedings under Sections 58, 59, 241 and 242 of the 2013 Act in relation to the affairs of the SPV, complaining of acts of oppression and mismanagement. The present application under Section 11, however, is founded on a totally separate and independent footing, that is, the exercise of Option Right by the petitioner under a private arbitration agreement. 9. Moreover, the order passed under Section 8 of the Cuttack Bench only refers some disputes in the Company Petition to arbitration, which do not pertain to the exercise of Option Right by the petitioner. It is further argued that the Company Petition was filed in 2020 whereas the exercise of Option Right purportedly took place only in the year 2022. Thirdly, it is argued that the NCLT order is at present under challenge in an appeal pending before the NCLAT and no finality can, thus, be attached to the same. 10. It is contended by the respondent that, on the above grounds, the application under Section 11 of the 1996 Act ought to be dismissed. 11. Learned counsel for the petitioner submits tha....
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....e letter dated July 29, 2011, there remained no fixed time for the performance of obligations by the respondent and the time for the petitioner started to run only when the petitioner first had the notice of refusal. 17. Hence, the limitation period started running from January 6, 2020 and not from January 13, 2017. 18. Learned counsel for the petitioner also places reliance on Vidya Drolia (supra) to argue that the court, at the reference stage, can interfere only when it is manifest that the claims are ex facie time-barred and dead or there is no succeeding dispute. 19. In the very least, the Option Agreement, as amended, including all documents executed pursuant to the amendment dated July 29, 2011, has to be interpreted to ascertain whether there was any fixed time for performance or whether the time originally fixed ceased to exist by reason of the amendment of July 29, 2011. The effect of the letter dated July 29, 2011 on the Option Period is also to be explored by interpreting the contract documents, which is beyond the scope of an application under Section 11 of the 1996 Act. 20. The claim of the petitioner, it is argued, cannot be classified as deadwood. Hence, the rel....
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....sfied inasmuch as the petitioner is neither an employee nor a member nor a creditor, nor the Central or State Government or local authority to whom a debt in respect of the payment of dues under law in force has arisen. The petitioner is also not a guarantor or stakeholder of the respondent involved in the Resolution Plan. Hence, Section 31 does not operate as a bar against the petitioner's claim against the respondent. 28. As such, the judgments of Ghanashyam Mishra and Sons Private Limited through the authorised signatory Vs. Edelweiss Asset Reconstruction Company Limited through the Director and others, reported at 2021 SCC OnLine SC 313 and Essar Steel India (supra), it is argued, do not affect the petitioner's claim. 29. The agreement between the parties forming the subject of the present dispute is not rendered unenforceable by reason of the CIRP. Learned counsel for the petitioner also places reliance on the definitions of 'creditor' in Section 3(10), 'debt' in Section 3(11) and 'claim' in Section 3(6) of the IBC. In addition, it is argued that in CP No. 09/CTB/2020, the NCLT, Cuttack Bench recorded in the order dated August 30, 2022 that the petitioner had sent a letter f....
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....f so directed. 35. As such, it is argued that none of the objections of the respondents are tenable in the eye of law. The dispute arisen between the parties is squarely arbitrable as per Clause 11(f) of the Option Agreement dated October 18, 2010 and the respondent does not have any cogent ground for refusing to nominate its Arbitrator. 36. Upon hearing learned counsel for the parties, it is of utmost importance to look into the plain meaning of the relevant clauses of the Option Agreement dated October 18, 2010. 37. In Clause 1.1.26, "Option Period" is defined as the period starting from Option Start Date and ending immediately after the completion of the Concession Period. 38. Clause 1.1.27 provides that "Option Start Date" shall mean the earlier of the date (a) immediately after the completion of the lock-in period, (b) on which NHAI permits the transaction contemplated in the agreement and/or (c) of termination of the Concession Agreement. 39. Clause 1.1.32 defines "settlement date" as a date on which the Option Shares are transferred from the respondent and/or its affiliate/associates to the exercising party and the exercising party is registered as the owner of such Opt....
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....the letter dated July 29, 2011 (Annexure D at page 130 of the application). The same was a unilateral undertaking and irrevocable confirmation by the petitioner that if the petitioner and/or AMRCL fails to make the payment of the balance amount of Option Premium to the respondent on the same business day on which the petitioner and AMRCL respectively receives payment from the Rithwik-AMR-MBL JV/OSEPL out of the first disbursement made by the Senior Lenders to OSEPL, the Rithwik-AMR-MBL JV shall not release any further funds/payments to the petitioner, AMRCL and/or on their behalf, till the payment of the aforesaid balance amount of Option Premium is paid to the respondent. Certain other related undertakings were also made by the petitioner. 50. The next relevant communication by the petitioner is Annexure E at page 132 of the application, dated July 2, 2022, whereby the petitioner sought to invoke the provision of mutual conciliation as per Clause 11(f) of the Option Agreement and indicated that in case of failure, the petitioner would seek resolution of the dispute by invoking arbitration. 51. Another communication dated October 29, 2022 has been annexed by the petitioner to its....
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....e date and duration of the obligations of the parties under the Option Agreement. As per sub-clause (a) of Clause 10, the Agreement was to be effective from the date of execution and was to remain in full force and effect until the earlier of three possible dates. Out of the three, admittedly Clause (i), that is, the expiration of the Option Period, was the earliest. As per the above discussion, the Option Period started and ended with the termination of the Concession Agreement on January 13, 2017, on which date the petitioner did not issue any notice whatsoever. 60. Clause 10(b) clarifies that if a notice has been served on or prior to the expiry of the above period, the agreement would continue in force until the fulfilment of all the obligations, even though such obligations may fall beyond the Option Period. The expression "on or prior to the expiry" has to be read in conjunction with the rest of the provisions discussed above, which unerringly indicate that the Option was to be exercised during the Option Period by issuing a notice as per Clause 3.1 of the Agreement. Hence, read in such fashion, Clause 10(b) has to be read to stipulate that the notice was to be served on or ....