Bombay High Court
Nisha Atul Shah And 4 Ors vs Asha T Ruia And 6 Ors on 12 April, 2021
Bench: R.D. Dhanuka, Virendrasingh Gyansingh Bisht
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
COMMERCIAL APPEAL (L) NO. 10084 OF 2021
WITH
INTERIM APPLICATION (L) NO. 10090 OF 2021
IN
COMMERCIAL APPEAL (L) NO. 10084 OF 2021
1. Atul Biharilal Shah
S/o. Mr. Biharilal Shah,
An Indian Inhabitant, residing at,
32, Akash Kiran, Azad Road,
Vile Parle (E),
Mumbai - 400 057
2. Hardik Atul Shah,
S/o. Mr. Atul B. Shah
An Indian Inhabitant, residing at
32, Akash Kiran, Azad Road,
Vile Parle (E), Mumbai 400 057
3. Hemang Charudutt Shah,
S/o. Late Mr. Charudutt Shah,
An Indian Inhabitant, residing at,
32, Akash Kiran, Azad Road,
Vile Parle (E), Mumbai 400 057
4. Hiral Hemang Shah
W/o. Mr. Hemang Shah,
An Indian Inhabitant, residing at,
32, Akash Kiran, Azad Road,
Vile Parle (E), Mumbai - 400 057
5. Kush Charudutt Shah
S/o. Late Mr. Charudutt Shah,
An Indian Inhabitant, residing at,
1
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32, Akash Kiran, Azad Road,
Vile Parle (E), Mumbai - 400 057. ...Appellants/ Orig.
Petitioner No. 1 to 5.
Versus
1. Asha T. Ruia
W/o. Late Mr. T. B. Ruia
An Indian Inhabitant,
Residing at 6A, Samudra Gaurav,
Khan Abdul Gaffar Khan Road,
Mumbai - 400 025.
2. Ramrikhdas Balkison and Sons Pvt. Ltd.
A Company Incorporated under the
provisions of the Companies Act, 1956
having registered Office at, Basement,
Commercial Union House No. 9,
Wallace Street, Fort, Mumbai 400 001.
3. Ramgopal Ganpatrai and Sons Pvt. Ltd.
A Company Incorporated under the
provisions of the Companies Act, 1956
having registered Office at, Basement,
Commercial Union House No. 9,
Wallace Street, Fort, Mumbai 400 001.
4. Snowcem Paints Pvt. Ltd.
A Company Incorporated under the
provisions of the Companies Act, 1956
having registered Office at, E-6,
MIDC, Malegaon, Sinnar,
Nashik - 422 103.
5. Mr. Ashok Mehta
An Indian Inhabitant, having address at
Rainbow Plot No. 13, Sector 24,
Turbhe, Navi Mumbai - 400 705.
2
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6. Walplast Products Pvt. Ltd.
A Company Incorporated under the
provisions of the Companies Act, 1956
having registered Rainbow Plot No. 13,
Sector 24, Turbhe, Navi Mumbai - 400 705.
7 Snowcem India Pvt. Ltd.
A Company Incorporated under the
provisions of the Companies Act, 2013
having registered Plot No. A 246,
MAHAPE MIDC, Koparkhairene,
Thane - 400 701. ... Respondents /
Org. Respondents
WITH
COMMERCIAL APPEAL (L) NO. 10081 OF 2021
WITH
INTERIM APPLICATION (L) NO. 10087 OF 2021
IN
COMMERCIAL APPEAL (L) NO. 10081 OF 2021
1. Nisha Atul Shah
W/o. Mr. Atul Shah,
An Indian Inhabitant,
Residing at 32, Akash Kiran,
Azad Road, Vile Parle (E),
Mumbai - 400 057.
2. Chetna Charudutt Shah
W/o. Late Mr. Charudutta Shah,
An Indian Inhabitant,
Residing at, 32 Akash Kiran,
Azad Road, Vile Parle (E),
Mumbai - 400 057.
3. Atul Biharilal Shah HUF
Represented by Mr. Atul Shah being Karta,
Having office at, C-253, Antop Hill,
Warehousing Complex, Saltapan Road,
Vadala (East), Mumbai - 400 037.
3
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4. Charudutt Biharilal Shah HUF
Represented by Mr. Hemang Shah
being Karta, Having Office at,
33, Ghadiali Compound, Shradhanand Road,
Vile Parle (East), Mumbai 400 057.
5. Biharilal M Shah HUF
Represented by Mr. Atul Shah
being Karta, Having Office at
A-7, Dadajee Building 56/58,
Garibdas Street, Vadgadi,
Mumbai - 400 003. ... Appellants /
Org. Petitioners No. 6 to 10.
Versus
1. Asha T. Ruia
W/o. Late Mr. T. B. Ruia
An Indian Inhabitant,
Residing at 6A, Samudra Gaurav,
Khan Abdul Gaffar Khan Road,
Mumbai - 400 025.
2. Ramrikhdas Balkison and Sons Pvt. Ltd.
A Company Incorporated under the
provisions of the Companies Act, 1956
having registered Office at, Basement,
Commercial Union House No. 9,
Wallace Street, Fort, Mumbai 400 001.
3. Ramgopal Ganpatrai and Sons Pvt. Ltd.
A Company Incorporated under the
provisions of the Companies Act, 1956
having registered Office at, Basement,
Commercial Union House No. 9,
Wallace Street, Fort, Mumbai 400 001.
4. Snowcem Paints Pvt. Ltd.
A Company Incorporated under the
provisions of the Companies Act, 1956
4
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having registered Office at, E-6,
MIDC, Malegaon, Sinnar,
Nashik - 422 103.
5. Mr. Ashok Mehta
An Indian Inhabitant, having address at
Rainbow Plot No. 13, Sector 24,
Turbhe, Navi Mumbai - 400 705.
6. Walplast Products Pvt. Ltd.
A Company Incorporated under the
provisions of the Companies Act, 1956
having registered Rainbow Plot No. 13,
Sector 24, Turbhe, Navi Mumbai - 400 705.
7 Snowcem India Pvt. Ltd.
A Company Incorporated under the
provisions of the Companies Act, 2013
having registered Plot No. A 246,
MAHAPE MIDC, Koparkhairene,
Thane - 400 701. ... Respondents /
Org. Respondents
......
Mr. Pravin Samdani, Senior Advocate along with Mr. Ramiz Shaikh,
Mr. Akshay Bafna i/by M/s. Bafna Law Associates, Advocates for the
Appellant in COMM. APPEAL (L) No.10084/2021
Mr. Pratik Seksaria along with Mr. Nishant Chothani, Mr. Mr. Ramiz
Shaikh, Mr. Akshay Bafna i/by M/s. Bafna Law Associates, Advocates
for the Appellant in COMM. APPEAL (L) No.10081/2021
Mr. Ravi Kadam, Senior Advocate along with Mr. Ish Jain , Mr. Kiran
Jain, Ms. Priyal Jain, Mr. Satchit Bhogle and Mr. Rohit Bandekar i/by
M/s. Kiran Jain & company, Advocates for the Respondent Nos. 1, 3
and 4 in COMM. APPEAL (L) No.10084/2021
Dr. Birendra Saraf, Senior Advocate Mr. Ish Jain, Mr. Kiran Jain, Ms.
Priyal Jain Mr. Satchit Bhogle and Mr. Rohit Bandekar i/by M/s. Kiran
5
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Jain & company, Advocates for the Respondent Nos. 2 in COMM.
APPEAL (L) No.10084/2021
Mr.Shyam Mehta, Senior Advocate Mr. Ish Jain, Mr. Kiran Jain, Ms.
Priyal Jain Mr. Satchit Bhogle and Mr. Rohit Bandekar i/by M/s. Kiran
Jain & company, Advocates for the Respondent Nos. 1, 3 and 4 in
COMM. APPEAL (L) No.10081/2021
Mr. Simil Purohit along with Mr. Ish Jain Mr. Kiran Jain, Mr. Rohit
Bandekar, Mr. Priyal Jain,Mr. Satchit Bhogle and Mr. Rohit Bandekar i/
by M/s. M/s. Kiran Jain & company, Advocates for the Respondent No2
in COMM. APPEAL (L) No.10081/2021.
......
CORAM : R. D. DHANUKA &
V. G. BISHT, JJ.
DATE : 12th APRIL, 2021
JUDGMENT : (PER : R.D.DHANUKA, J.)
1. By these two Appeals filed under Section 37 of the Arbitration
and Conciliation Act, 1996 (for short, "The Arbitration Act"), the
appellants have impugned the order dated 1st April, 2021 passed by the
learned Single Judge dismissing the Arbitration Petition filed by the
appellants under Section 9 of the Arbitration Act with costs quantified
Rs. 10,55,000/- payable within two weeks from the date of the said
order.
2. By consent of parties, both these Appeals were heard together
and are being disposed of by a common order. The parties have
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addressed this Court in Commercial Appeal (L) No. 10084 of 2021 as a
lead matter and have agreed that the other Commercial Appeal (L) No.
10081 of 2021 being identical to Commercial Appeal (L) No. 10084 of
2021, the decision of this Court in the said Commercial Appeal (L) No.
10084 of 2021 would apply to Commercial Appeal (L) No. 10081 of
2021.
3. Some of the relevant facts for the purpose of deciding these
Appeals are as under :
It is the case of the appellants that the appellants and the
respondent Nos. 1 to 4 entered into a Memorandum of Understanding
(MOU). The respondent Nos. 1 to 4 offered, represented and agreed to
transfer 100% shares of respondent No.4 Company on the terms and
conditions recorded therein. The director of respondent No.4
requested the appellants to infuse the sum of approximately Rs. 6
Crores into the Company. According to appellants, the appellants
brought in an investment of Rs. 6,22,20,819/- for payment towards
dues of the said company including but not limited to GST, Excise, staff
salary for the month of November 2019 to February, 2020 and for
payment of other dues.
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4. It is the case of the appellants that on 20 th March, 2020, the
appellants and the respondent Nos. 1 to 4 entered into Share Holders
Agreement. The appellants agreed to engage in the discussion with
Cosmos Bank and to negotiate and settle their dues or assume the
liabilities on an ongoing basis by replacing the corporate/ personal
guarantee to the Cosmos Bank given by the existing shareholders of the
respondent No. 4 in connection with the Cash Credit Facility and Term
Loans extended by Cosmos Bank to respondent No.4 to the satisfaction
of the Cosmos Bank. The appellants had also agreed to secure the
release of residential properties of the existing shareholders of
respondent No.4 from Cosmos Bank within 12 months from the date of
signing of the said agreement by providing adequate securities to
Cosmos Bank in exchange of the existing collaterals provided by the
shareholders.
5. Under Clause 9 of the said Share Holders Agreement, the
respondents agreed to pass a Resolution by the Board of Directors and
the Shareholders within 10 days of the said Share Holders Agreement
revoking all existing authorities to bankers in respect of the operation
of its bank accounts and giving authority in favour of such persons as
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the Board of Directors may nominate to operate such accounts by the
Acquiring Shareholders. Under Clause 10 of the said Agreement, the
Acquiring Shareholders agreed to arrange to infuse immediately
requisite funds in the Company so as to meet the critical payments and
Government and Statutory dues for smooth conduct of the business and
also to arrange for the payment of the consideration in single tranche
to the existing Shareholders as per Schedule 2 to the said Agreement.
6. It is the case of the appellants that pursuant to the said
Agreement, the appellants infused an amount of Rs. 5.05 Crores to
meet the urgent needs and liabilities as contemplated under Clause 10
(a) of the said Share Holders Agreement. The respondents allegedly
committed various breaches of the said MOU and the Share Holders
Agreement. Though the appellants tried to negotiate with the Cosmos
Bank, the respondents dealt with the said Bank directly.
7. Mr. Samdani, learned Senior Counsel, and Mr. Seksaria, learned
Counsel for the appellants, invited our attention to various clauses of
the MOU and the Share Holders Agreement and also the
correspondence exchanged between the parties and would submit that
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the respondents had not even passed a Resolution for approving the
revocation of all the existing authorities to bankers in respect of the
operation of its bank accounts, for approving transfer of equity shares,
for payment of the appellants as the Directors of respondent No.4
Company and to secure resignations of the then Directors of respondent
No.4 Company.
8. It is submitted that even before expiry of 12 months period
granted to the appellants to comply with their obligations under Clause
7 of the Share Holders Agreement, the respondents dealt with the said
Cosmos Bank and did not comply with their reciprocal obligations
under the said MOU and the Share Holders Agreement. The
respondents also refused to return the said amount of Rs. 5.05 Crores
infused by the appellants in respondent No.4 Company.
9. It is submitted by the learned Counsel that the said period of 12
months expired only on 20th March, 2021 whereas on 17th March, 2021
itself the respondents repudiated the said Agreement. The appellants
were liable to pay only a sum of Rs. 34,51,000/- for acquiring 94.95%
shares of the Shareholders/ respondent No.4 Company. It is submitted
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by learned Counsel for the appellants that respondent No.4 Company
was a loss making company. The negative value of the assets of
respondent No.4 Company as of the date of execution of the Share
Holders Agreement was Rs. 56.04 Crores. There was no time frame
prescribed for payment of the consideration amount of Rs. 34,51,980/-.
Since the respondents did not pass any Resolution within the period of
10 days from the date of execution of the said Share Holders
Agreement for doing various acts as agreed, the question of the
appellants complying with their obligations for release of the properties
within time prescribed would not arise.
10. The learned Counsel would submit that there was neither any
demand ever made by the respondents for recovery of any amount for
infusing the additional funds by the appellants in respondent No. 4
Company nor for payment of the consideration for transfer of those
shares in the name of appellants. They relied upon the correspondence
exchanged between the appellants, respondents and Cosmos Bank
while negotiating for settlement of the dues payable by respondent
No.4 Company to the Cosmos Bank under one time settlement
proposal.
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11. The learned Counsel for the appellants placed reliance on Section
64 of the Contract Act, 1872 in support of their submission that the
respondents having rescinded the Agreement entered into with the
appellants, the respondents were liable to restore the benefits accrued
under the said Share Holders Agreement by refunding the amount of
Rs. 5.05 Crores infused by the appellants.
12. The learned Counsel for the appellants placed reliance on the
judgment of this Court in case of Essar House Private Limited Versus
Arcellor Mittal Nippon Steel India Limited 1 and the judgment delivered
by the learned Single Judge (one of us R.D.Dhanuka, J.) in case of
Baker Hughes Singapore v. Shiv-Vani Oil and Gas Exploration Services
Ltd.2 in support of their submission that since the respondent No.4
Company was a loss making company and since its value of the assets
of the respondent No.4 were in negative, the learned Single Judge
ought to have passed an order to secure the amount of Rs. 5.05 Crores
at least by directing the respondents to deposit the said amount in
Court or by providing a solvent security.
1 2021 SCC OnLine Bom 146
2 2014 SCC OnLine Bom 1663
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13. It is submitted by the learned Counsel that even if the
respondents would have any claim against the appellants by way of
counter claim in the arbitral proceedings as and when filed, that could
not be a ground for not furnishing the security so as to secure the
undisputed claim of the appellants at least in a sum of Rs. 5.05 Crores.
14. Mr. Kadam, learned Senior Counsel for respondent Nos. 1, 3 and
4 in Commercial Appeal (L) No. 10084 of 2021, Dr.Saraf, learned
Senior Counsel for respondent No.2 in Commercial Appeal (L) No.
10084 of 2021, Mr. Mehta, learned Senior Counsel for respondent Nos.
1,3 and 4 in Commercial Appeal (L) No. 10081 of 2021 and Mr.
Purohit, learned Counsel for respondent No.2 in Commercial Appeal
(L) No. 10081 of 2021 invited our attention to various provisions of the
MOU and the Share Holders Agreement and submit that though the
appellants had been authorized to negotiate with the Cosmos Bank and
to release the personal guarantees of the Directors and to release the
mortgage flats of the guarantors, the appellants did not comply with
this part of their obligations under the MOU and the Share Holders
Agreement.
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15. Learned counsel invited our attention to various correspondence
exchanged between the appellants, respondents and the said Cosmos
Bank in this regard. They also invited our attention to averments
made by the appellants in the affidavit in rejoinder and in particular
paragraph No. 8 and would submit that the appellants themselves had
shown their alleged willingness to pay the Cosmos Bank by 30 th
September, 2021 though the one time settlement proposal given by
Cosmos Bank was valid only till 31st December, 2020.
16. Before the learned Single Judge, the appellants also conceded
that due to pandemic situation in the country, the appellants could not
clear the dues of the respondent No.4 Company payable to Cosmos
Bank. It is submitted by the learned Counsel that a contract entered
into between the parties was not a voidable contract and thus the
question of any consequence provided on rescission of a voidable
contract would not arise.
17. Learned counsel submitted that Section 64 of the Contract Act
sought to be pressed into service by the appellants was not attracted to
the facts of this case. Since the appellants had repudiated the contract
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and the respondents accepted such repudiation, there was no question
of restitution under Section 64 of the Contract Act as canvassed by the
appellants.
18. It is submitted that though the appellants were authorized to
deal and negotiate with the Cosmos Bank on behalf of the respondents
under the said MOU and the Share Holders Agreement within time
prescribed, the appellants failed to comply with their obligations. The
Cosmos Bank thus withdrew the said one time settlement proposal
which posed a big threat to the residential properties of the Directors of
the respondent No.4 Company which were mortgaged in favour of the
Cosmos Bank and also invited an action under Section 14 of the
Securitisation and Reconstruction of Financial Assets and Enforcement
of Security Interest Act, 2002 (for short, " The Securitisation Act")
19. It is submitted by the learned Senior Counsel for the respondents
that the respondents have already entered into a Tripartite Agreement
with Saurashtra Cement Ltd on 31st March, 2021 and also for business
transfer. None of the prayers in the Arbitration Petition filed by the
appellants thus survive. The learned Counsel distinguished the
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judgments relied upon by the learned Counsel for the appellants on the
ground that the facts in this case and the facts before this Court in
those two matters were totally different. In this case, because of the
breaches committed by the appellants, the respondents have suffered
losses. It is not a case of admitted liability on the part of the
respondents. The respondents have good chances of success in the
arbitral proceedings.
20. Mr.Samdani and Mr.Seksaria, learned Counsel for the appellants,
in rejoinder submitted that the appellants had taken various steps in
negotiating with Cosmos Bank to settle the dues of the Cosmos Bank.
The respondents, on the other hand, had not complied with their
obligations under the said MOU and the Share Holders Agreement.
The appellants even during the lock down period tried their best to
comply with their obligations. The respondents neither terminated the
said MOU nor the said Share Holders Agreement nor refunded the
amount infused by the appellants.
21. A perusal of the record prima facie indicates that the appellants
had agreed to infuse the additional funds in respondent No.4 Company
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by way of subscription of new equity shares and to engage in discussion
with the Cosmos Bank and settle their dues or assume the liability on
an ongoing basis by replacing the corporate/ personal guarantee to
Cosmos Bank in connection with the Cash Credit Facility and Term
Loans extended by Cosmos Bank to the respondent No.4. The
appellants had agreed to take over the business at agreed enterprise
valuation of Rs. 64.04 Crores. The appellants only infused Rs. 5.05
Crores.
22. A perusal of the correspondence exchanged between the
appellants, respondents and Cosmos Bank prima facie indicates that
though the appellants were given an authority to deal with the said
Cosmos Bank on behalf of the respondent No.4 and the guarantors, the
appellants could not negotiate with the Cosmos Bank. The one time
settlement proposal given by the Cosmos Bank thus stood withdrawn.
The appellants had proposed to settle the dues of the Cosmos Bank not
as per the terms of the one time settlement but at their own terms.
23. The Cosmos Bank had initiated action under Section 14 of the
Securitisation Act against respondent No.4. The respondents have
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already entered into a Tripartite Agreement with Saurashtra Cement
Ltd on 31st March, 2021 and also for transfer of business. In our prima
facie view, the respondents were not required to wait for indefinite
period. The appellants had repudiated the contract with the
respondents which was accepted by the respondents. The appellants
had not even paid the consideration for transfer of shares to the
respondent No.4.
24. The allegations and counter allegations made between the
parties about alleged breaches committed by either appellants or
respondents would be finally decided by the Arbitral Tribunal on
consideration of pleadings, documents, evidence and provisions of law.
25. The learned Single Judge has dealt with the arguments advanced
by both these parties and have interpreted some of the provisions of the
contract entered into between the parties and have recorded various
prima facie observations against the appellants while dismissing the
Arbitration Petition with costs.
26. In our view, the appellants have not made out a case for
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interference with the order passed by learned Single Judge. Insofar as
the submission by learned Counsel for the appellants that under
Section 64 of the Contract Act, the respondents were liable to restore
the benefits accrued under an alleged voidable contract to the
appellants is concerned, in our prima facie view, on perusal of the
provisions of the MOU and the Share Holders Agreement, no
conclusion can be drawn that the said Agreements were voidable. In
our view, prima facie Section 64 of the Contract Act thus would not be
attracted to the facts of this case. The reliance placed on the said
provisions of the Contract Act is thus misplaced.
27. Insofar as the judgments of this Court in case of Essar House
Private Limited (supra) and Baker Hughes Singapore (supra) are
concerned, in the facts of that case, the Division Bench of this Court
and the learned Single Judge of this Court respectively had dealt with
the situation where there were admitted liabilities and no valid defence
raised by the respondents in those Petitions filed under Section 9 or 17
of the Arbitration Act. The facts in these two Appeals are totally
different. Those judgments are thus clearly distinguishable in the facts
of this case and would not advance the case of the appellants. In
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our view, no case is made out for interference with the impugned order
passed by the learned Single Judge.
28. It is, however, made clear that the observations made by the
learned Single Judge in the impugned order and by us in this order are
prima facie. The Arbitral Tribunal shall decide the matter on its own
merits. Learned counsel for the appellants did not make any
submissions on payment of cost awarded by the learned Single Judge.
29. Parties are directed to take steps for appointment of Arbitral
Tribunal expeditiously in accordance with the Arbitration Agreement
which is not in dispute.
30. Both the Appeals are devoid of merits and are dismissed.
31. In view of the dismissal of the Appeals, nothing survives in the
Interim Applications and the same are accordingly disposed of. No
order as to costs.
(V. G. BISHT, J.) (R. D. DHANUKA, J.)
