AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2023 (10) TMI 1221
X X X X Extracts X X X X
X X X X Extracts X X X X
.... hereinafter referred to as "Hexagon". Whereas Defendant No. 1 hereinafter referred to as "Arcadia" is lender, who has financed loan to Hexagon. In between them, there are following documents executed :- a) Memorandum of Understanding thereof 29/08/2013 and 13/07/2015. b) Share Transfer Agreement c) Shareholders' Agreement dated 29/08/2013. 3. In consideration of the loan, the shares possessed by Defendant Nos. 5 and 6 in the Company Hexagon were transferred in the name of the lender Defendant No. 1-Arcadia. They have agreed to re-transfer the shares once the money will be repaid. This is the area of dispute in the present suit. Furthermore, the said Arcadia has also obtained loan from Kotak Mahindra Bank Limited. Company-Hexagon has offered their two flats by way of Corporate guarantee for repayment of the said loan. Those flats are subject matter of a dispute before DRT, Mumbai. 4. As shares are transferred in the name of the Arcadia, the said Company has nominated Defendant Nos. 2 and 3 on the board of the Directors of the D-4-Hexagon. Now the present suit is filed by one of the shareholder of the Hexagon asking for the following reliefs:- a) For the declaration th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e a loan of Rs. 13,50,00,000/- in fact have advanced only a loan of Rs. 10,32,40,000/-; b) When Arcadia has not fulfilled their promise as per the Memorandum of understanding, the transfer of the shares belonging to Defendant Nos. 5 and 6 in the Company Hexagon has not taken place. c) Arcadia has not taken any action against Hexagon for recovery of the loan amount and simply on the basis of the transfer of the shares in their name wants to oust the Plaintiff and its nominees from the board of directors of the Hexagon. In other words, Arcadia wants to take control on the entire company. Grievances about corporate guarantee. d) Arcadia is defaulter of Kotak Mahindra Bank Limited and instead of repaying the loan, they have created such a situation due to which the Corporate guarantee offered by Hexagon in respect of two flats will be encashed by Kotak Mahindra Bank Limited by selling those flats. e) Plaintiff and Defendant Nos. 5, 6 and 7 are residing in those flats and if their possession is taken, they will be without roof. f) There is an emphasis on the provisions of Section 60 of the Transfer of Property Act which gives right to mortgagor i.e. Hexagon to ask for d....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... at all are to be sold it is by Kotak Mahindra Bank Limited and not by them. He further submitted that independently he also has right to sell those flats if Hexagon will not pay the amount of the arrears of loan within 30 days on the receipt of the notice and in fact they have already issued the notice on 29/12/2022. It is part of their affidavit-in-reply and the Plaintiff has not dealt with it. About Memorandum of Understanding. f) He submitted that the Memorandum of Understanding executed on 13/07/2015 mentions that there is an outstanding of Rs. 15,20,83,733/-. He also contends that there is no merit in the grievance raised for not financing entire amount for the reason that it was not raised at any time earlier. g) He submitted that the transfer of the shares has already taken place. He invited my attention to three of the documents. About arbitration clause. h) According to him, there is an Arbitration clause in the Memorandum of Understanding dated 29/08/2013. There is clause after clause no. 18. He also submitted that there is similar clause by clause no. 17 in the share holders agreement dated 29/08/2013. i) He submitted that such clause is not there in the....
X X X X Extracts X X X X
X X X X Extracts X X X X
....iff is not fair in his dealing. 11. By way of reply, learned Advocate for the Plaintiff made following submissions :- a) The issue arisen in the plaint and in the interim application are outside the purview of the tribunal and to buttress his submission he relied upon the following judgments:- i) Aruna Oswal Vs. Pankaj Oswal and Others (2020) 8 SCC 79 (Para 25) It is observed more specifically para no. 25 that the claim made on the basis of the inheritance to share cannot be decided in the proceedings under Sections 241/242 of the Companies Act (It is on the basis of observations from the earlier judgment). ii) Pradip R. Kamdar and Anr. Vs. Rajiv Sanghvi and Others which is affirmed by the Division Bench in 2022 SCC Online Bom 3147. If the parties intend to enforce contractual obligations, the N.C.L.T., will not be having jurisdiction. b) According to him, if smaller part of the relief even though falls outside jurisdiction of this Court, still Court can entertain the suit if major part of the relief falls within the purview of this Court. To buttress his submission, he relied upon the judgment in case of Ishar Singh Vs. National Fertilizers and Another 1991 Supp (2) S....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... legal aspects. Only when Arcadia will fail on legal aspects, then only factual aspects can be gone into. Factual aspects 16. Firstly, Arcadia gave a notice dated 29/11/22 to Board of Directors of Hexagon to call EOGM. Then Arcadia themselves called extra ordinary general meeting on 20/2/23 and it was subject matter of earlier interim application. However the meeting was not held. There is subsequent notice dated 15/7/23 to hold extra ordinary general meeting on 25/7/23 and it is subject matter of present interim application. As said above the holding of requisition meeting is challenged on various grounds by plaintiff. 17. One of the ground is non fulfillment of terms of MoU. There are two MoUs. They are :-- a. MoU dated 29/8/2013 mentions about advancing loan of Rs. 13,50,00,000/- to Hexagon but in fact only an amount of Rs. 10,32,40,000/- was advanced. b. whereas second MoU., of 2015 (which mentions about advancing of Rs. 15,20,83,733/-) was never acted upon. Grievance is when the full amount is not advanced, the transfer of shares of defendant nos. 5 and 6 are ineffective. And hence representation on those shares by Arcadia in the board of directors of Hexagon is ine....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... resolution passed by Hexagon for issuing corporate guarantee and mortgage of two flats as a security for repayment of load of Rs. 21 crores availed by Arcadia from Kotak Mahindra Bank Ltd., 21. Whereas contention of the Plaintiff is that they got knowledge of these documents when direction was given on 28/07/2021 by the Division bench of this Court in Writ Petition (L) No. 15950 of 2021 filed by the plaintiff. This is disputed on behalf of the Arcadia. 22. Prima-facie the allegation about the transaction of two flats is found to be after thought. Because how the documents referred above could have been executed in the year 2013. The issue relating to mortgage of the flats is certainly outside the purview of the inquiry of this application. So while hearing this present interim application now the only issue arises is in the Extra Ordinary General meeting, if the resolution is passed then the Defendant nos. 2 and 3 being nominees of the Arcadia will be nominated by the Arcadia on the Board of directors and in that case Arcadia will be in control of Hexagon. The copy of the notice calling of the meeting dated 29/11/2022 is annexed on page no. 159. It is true that it recommends pa....