Calcutta High Court

M/S. Jagrati Trade Services Private ... vs Sanjit Kumar Singh & Ors on 4 April, 2024

                  IN THE HIGH COURT AT CALCUTTA
                 (Ordinary Original Civil Jurisdiction)
                              ORIGINAL SIDE


Present:

The Hon'ble Justice Krishna Rao



                         IA No. GA 15 of 2023

                                    With

                              GA 16 of 2023

                                    With

                              GA 17 of 2023

                                      In

                                 CS 6 of 2019



           M/s. Jagrati Trade Services Private Limited & Anr.

                                   Versus

                       Sanjit Kumar Singh & Ors.



            Mr. Rudrajit Sarkar
            Mr. Jai Kr. Surana
            Mr. A. Barman Roy
            Mr. Abhimanyu Roy
            Ms. Muskan Bangani,
                                            ... For the plaintiff.
            Mr. Suman Dutt
            Mr. Anubhav Sinha
            Mr. K.K. Pandey
                                        2


            Mr. Zeeshan Haque
            Ms. Enakshi Saha
            Ms. Paritosh Sinha
                                               ... For the defendant nos. 10,
                                              11 to 18, 21, 22 and 24.
            Mr. Ishan Saha
            Mr. Avishek Guha
            Ms. Akansha Chopra
                                           ... For the defendant nos. 3 and 4.



Hearing Concluded On : 29.02.2024

Judgment on             : 04.04.2024

Krishna Rao, J.:

1. The defendant no. 11 to 22 have filed an application being G.A. No. 15

of 2023 praying for vacating/setting aside the order dated 30th

January, 2019. Similarly, the defendant nos. 10 and 24 have filed an

application being G.A. No. 17 of 2023 praying for vacating and setting

aside the order dated 30th January, 2019, passed in G.A. No. 229 of

2019 arising out of the present suit. The plaintiff has also filed an

application being G.A. No. 16 of 2023 praying for dismissal of G.A. No.

15 of 2023 filed by the defendant nos. 11 to 22.

2. As all the applications are connected with the order dated 30th

January, 2019 passed by this Court in G.A. No. 229 of 2019 in

connection with the present suit and thus all the applications are

taken up together for consideration.

3. In the suit being C.S. No. 6 of 2019, the plaintiff had filed an

application being G.A. No. 229 of 2019 praying for an order of

injunction. By an order dated 30th January, 2019, this Court has

passed the following interim order :

"On the basis of the averments made in the petition and the documents disclosed, it appears that the defendant No.1 as an escrow agent is vested with certain powers, duties and obligations. The sale was effected in favour of the buyers jointly. The escrow agent cannot act selectively and it is the duty of the escrow agent to preserve the shares till the shares are distributed in terms of the agreement. The objection that the suit is barred in view of Section 5 of the Arbitration and Conciliation Act, prima facie, appears to be not sustainable, in view of the fact that it is not a dispute between the buyers and the sellers but is a dispute amongst the buyers inter se. Apart from the aforesaid, the plaintiffs have contended that in the arbitration proceeding, it may not be possible to seek cancellation of the mortgage. However, this is a prima facie view, subject to hearing the parties on the returnable date. The respondent No.1 is restrained from dealing with and/or parting with the shares of the plaintiffs for a period of 10 weeks or until further order, whichever is earlier. The defendant no.1 shall also not part with any company related documents without the express leave of the Court. Affidavit in opposition shall be filed within three weeks from date; reply thereto, if any, within two weeks thereafter.

The matter shall appear fairly at the top as a 'Motion Adjourned' on 18th March, 2019"

4. On 24th March, 2011, a Share Purchase Agreement was entered

between the plaintiff no. 1 and the defendant nos. 10 to 22, 24 and 25

for the transfer of 36,278 shares of the defendant no. 10 wherein the

defendant nos. 11 to 22 collectively were the Transferor Shareholders

while the plaintiff no.1, defendant nos. 24 and 25 collectively were the

Transferee of Shareholders. An Escrow Agreement was also entered

between the parties and with the mutual consent of the parties, Shri

Sanjit Kumar Singh, the defendant no. 1 was appointed as Escrow

Agent.

5. Before filing of the suit, the plaintiff had filed an application under

Section 9 of the Arbitration and Conciliation Act, 1996 being AP. No.

122 of 2018 but this Court has not granted any interim order and

before disposal of the said application, disputes have been referred to

the arbitration and by an order dated 12th December, 2018, A.P. No.

122 of 2018 was disposed of. Though the matter was referred to

arbitration but the plaintiffs have filed the present suit and obtained

an interim order and had not proceeded with the arbitration, the

defendant no.10 by a letter dated 29th July, 2019 requested the

Learned Arbitrator to act as an Arbitrator. The Learned Arbitrator has

proceeded with the matter and on 23rd June, 2023, the Arbitrator has

passed the following award:

"136. For the reasons afore-discussed this Tribunal declines to award any of the prayers made in the SOC filed by the Claimant. The Claimant has not produced any evidence in support of its claims for damages. This Tribunal also makes it clear that the Claimant is not entitled to any order on its Section 17 application which is accordingly disposed-off.

137. But this Tribunal has held that this Claimant is entitled to a refund of the amount admittedly paid by it or its entities namely Rs.19,92,30,500/-. From Annexure - J to the SOD of the Respondent Nos. 1 to 13 it appears that the said amount has been paid by the Claimant or its entities through bank-transfer on diverse dates between 2011 and 2017. But the Claimant is not entitled to get a refund of the aforesaid amount with interest from those dates. The grant of interest and the rate of such interest depends on the discretion of this Tribunal. The Claimant has filed the SOC in connection with this arbitration proceeding on 26th November, 2019. As such the Claimant is entitled to claim interest on the aforesaid amount of Rs. 19,92,30,500/- with effect from the month of December, 2019. The Respondent has claimed 18% interest in their Counter-Claim but however this Tribunal is not willing to grant interest at that rate to the Claimant.

138. It is not in dispute that the transaction between the parties is a commercial transaction. The claimant has been deprived of the use of the aforesaid money and the aforesaid amount which the Claimant paid was lying at the disposal of the Respondents for its business. Considering all these facts, the Tribunal grants interest at the rate of 9% per annum which has to be paid by the Respondents to the Claimants on the aforesaid amount of Rs. 19,92,30,500/- from the month of December, 2019, till the date of the Award at a rate of 9% per annum, which comes to about Rs. 26,34,82,336.25/- in total (i.e. Rs. 19,92,30,500/- as principal and Rs. 6,42,51,836.25/- by way of interest). Such amount has to be paid to the Claimant by the Respondents within a period of 6 weeks from date. Failing which the Respondents will have to pay the aforesaid amount of Rs. 26,34,82,336.25/-, namely the principle and the interest along with an interest at the rate of 11% on the total amount from the date of default till the date of actual payment.

139. In this matter the Respondents have not filed any cost-sheet nor have they argued on the question of cost. The Claimants have filed a cost- sheet but they are not entitled to any cost in view

of their conduct. Therefore no cost is awarded to either of the parties. Parties to bear their own cost."

6. After the award passed by the Learned Sloe Arbitrator, the plaintiff has

filed an application under Section 9 of the Arbitration and Conciliation

Act, 1996 being A.P. No. 664 of 2023 praying for the following reliefs:

"(a) An order of injunction restraining the respondent nos. 1 to 13 from operating any of their bank accounts without securing a sum of Rs.

26,34,82,336.25/- in terms of the Arbitral Award dated June 29, 2023 passed by the Learned Arbitrator Asok Kumar Ganguly (Former Judge, Supreme Court of India) in the arbitration between Jagrati Trade Services Private Limited Versus Deepak Kumar Bhargava & Ors. in favour of the Petitioner;

(b) An order of injunction restraining the respondent no.13 from dealing with and/or alienating and/or creating any third party right over and in respect of the premises being 6, Jawaharlal Nehru Road, Kolkata - 700071;

(c) An order of injunction restraining the respondent nos. 1 to13 from dealing with and/or alienating and/or creating any third party right over and in respect of the land with structure at 7/48, Tilak Nagar, Kanpur, Uttar Pradesh;

(d) An order of injunction restraining the respondent nos. 1 to13 from dealing with and/or alienating and/or creating any third party right over and in respect of the residential plot of land

in Block No. 'G' in the lay-out plan of East of Kailash Residential Scheme sanctioned by the Delhi Development Authority by Resolution No.

444 dated 30th August, 1965 being butted and bounded on the North by Plot No.47;

(e) An order directing the respondent nos.1 to 13 to disclose their bank accounts;

(f) Ad interim orders in terms of prayers above;

(g) Such further or other order(s) and/or direction(s) as Your Lordships may deem fit and proper."

7. By an order dated 13th September, 2023, this Court has passed the

following order in A.P. No. 664 of 2023:

"Considering all the facts and material presented on behalf of the parties, this Court deems it fit to direct that the respondent no.1 - 13 will not operate their individual or collective bank accounts without keeping aside a sum of Rs. 26,34,82,336.25/-. The interim order will remain in place for a period of ten weeks from today or until the respondent nos. 1 -13 and/or the award- debtors apply for stay of the Award and obtain necessary orders therein, whichever is earlier."

8. In the meantime, defendant no. 10 and the plaintiffs have filed three

separate applications under Section 34 of the Arbitration and

Conciliation Act, 1996 challenging the Award dated 23rd June, 2023.

The plaintiff has filed another application being G.A. No. 1 of 2023 in

A.P. No. 664 of 2023. By an order dated 20th November, 2023, this

Court directed the award debtors to pay the first tranche of Rs. 7.5

crores on 22nd November, 2023 and the second tranche of Rs. 8.5

crores on 5th December, 2023 and it was further observed that

question of stay of the Award would be considered after the entirety of

amount of Rs. 26.34 crores is paid by the award debtors on 15th

December, 2023. The defendant no.10 secured the amount of Rs.

26,34,82,664.36/- by depositing the same with the Registrar, Original

Side of this Court in between 22nd November, 2023 to 12th December,

2023.

9. Learned Sole Arbitrator has not passed any award in terms of the

prayer of statement of claim made by the plaintiffs as the plaintiffs

have not produced any evidence in support of its claim for damages.

The Learned Arbitrator has also held that the plaintiff no. 1 is not

entitled to get any order in terms of the prayer made by the plaintiff

no. 1 under Section 17 of the Arbitration and Conciliation Act, 1996.

The Learned Sole Arbitrator held that the plaintiff no. 1 is entitled to a

refund of amount admittedly paid by its entity amounting to Rs.

19,92,30,500/- as the plaintiff no. 1 or its entity has paid the said

amount through bank transfer in between 2011 to 2017 but the

plaintiff no. 1 is not entitled to get interest on the said amount. The

Learned Sole Arbitrator has granted interest to the plaintiff no. 1 on

the amount of Rs. 19,92,30,500/-with effect from the month of

December, 2019. The Learned Sole Arbitrator has granted interest to

the plaintiff no. 1 from the month of December, 2019 as the plaintiff

has filed its statement of claim before the Learned Sole Arbitrator only

on 26th November, 2019.

10. The plaintiff has filed an application under Section 34 of the

Arbitration and Conciliation Act, 1996 challenging the Award dated

23rd June, 2023 on limited ground with respect to quantum of interest

awarded on the refund amount but the plaintiff has not challenged the

findings of the Learned Sole Arbitrator wherein it is held that the

plaintiff no. 1 is not entitled to shares of the defendant no.10

company.

11. Learned Counsel for the defendants submitted that the defendants

have secured the amount with interest in terms of the Award dated

23rd June, 2023 amounting to Rs. 26,34,82,664.36/- with the

Registrar, Original Side of this Court and the plaintiff has not

challenged the finding of the Learned Sole Arbitrator wherein it is held

that the plaintiff is not entitled to shares of the defendant no. 10

company and thus the order of injunction passed by this Court dated

30th January, 2019 is required to be vacated.

12. Learned Counsel for the defendants submitted that the defendants

have secured the amount of the plaintiff with interest and if the order

of injunction passed by this Court dated 30th January, 2019

continues, the defendants will be double jeopardized. He submits that

prayer (a) and (b) of the instant suit have already been adjudicated by

the Learned Sole Arbitrator by passing the Award and thus if the order

of injunction dated 30th June, 2019 continued on record, the

defendants will be badly prejudiced and the plaintiffs would be double

benefitted.

13. Mr. Rudrajit Sarkar, Learned Advocate representing the plaintiffs

submitted that both the parties have challenged the Award passed by

the Learned Sole Arbitrator and on depositing the amount with

interest, the Award is put on hold and thus the Award passed by the

Learned Sole Arbitrator is not finally adjudicated. He submits that the

defendants have not shown any change of circumstances for the

purpose of vacating the order of stay granted by this Court dated 30th

January, 2019.

14. Mr. Sarkar submitted that the application being G.A. 15 of 2023 is not

only defective but has no locus standi to seek vacating the interim

order as the said order does not affect them.

15. Mr. Ishan Saha, Learned Advocate representing the defendant nos.3

and 4 submitted that the bank has nothing to do with this matter and

no relief has been prayed for against the defendant nos. 3 and 4 by the

plaintiffs and he prays for deletion of their names from the cause title

of the suit as well as from the present application.

16. This Court by an order dated 30th January, 2019 restrained the

defendant no.1 from dealing with and/ or parting with the shares of

the plaintiffs for a period of 10 weeks or until further order, whichever

is earlier. This Court also directed the defendant no.1 not part with

any company related documents without the express leave of the

Court. The interim order dated 30th January, 2019 is still continuing.

17. The Learned Sole Arbitrator by an Award dated 23rd June, 2023,

declined to pass any Award in terms of the statement of claim of the

plaintiffs as the plaintiffs failed to produce any evidence in support of

its claim and the Learned Sole Arbitrator has also not granted any

relief in terms of prayer made in the application under Section 17 of

the Arbitration and Conciliation Act, 1996. As per the Award and in

terms of the order passed by this Court, the defendants have secured

an amount of Rs. 26,34,82,664.36/- with the Registrar, Original Side

of this Court and the plaintiff has not challenged the finding of the

Learned Sole Arbitrator wherein it is held that the plaintiff is not

entitled to shares of the defendant no.10.

18. The plaintiff in the present suit has prayed for:

"(a) A Decree for mandatory injunction directing the

defendant No.1 to deliver the Jagriti Shares, together

with the original bank transfer deed, more fully described

om Schedule A written hereunder to the plaintiffs;

(b) A Decree directing the defendant no.1 to pay the

plaintiffs a sum of Rs.100 Crores on account of the Trust

reposed and created in favour of the defendanr no.1;

(c) A decree directing impounding of the beneficial interest

of the defendant Nos. 10,24 to 27 and each one of them

in the Trust Property created under the Escrow

Agreement dated March 24, 2011 with a further directing

to have the same applied for compensation of the loss

suffered by the plaintiffs by reason of such breaches of

the Trust;

(d) A Decree for declaration declaring the encumbrance

created by way of registered mortgage deed dated

September 22, 2015 is null and void;

(e) A Decree for deliver up and cancellation of the

registered deed of mortgage dated September 22, 2015

executed in favour of the defendanr no.3;

(f) A Decree for declaration declaring the encumbrance

created by way of deed of hypothecation dated

September 28,2015 is null and void;

(g) A Decree for declaration declaring the encumbrance

created by way of deed of hypothecation dated

September 28,2015 executed in favour of the defendant

no.3;

(h) A Decree for mandatory injunction directing the

defendants to deliver the original title deeds of premises

No.6, Jawaharlal Nehru Road, Kolkata - 700013 to the

plaintiffs;

(i) A Decree for perpetual injunction restraining the

defendant No.1 from acting in breach of the Excrow

Agreement dated March 24,2011;

(i) A Decree of declaration that all actions taken by the

defendanrrs on the basis of such original title deeds

delivered by the defendant No.1 as null and void;"

19. The learned Sole Arbitrator has decided the prayers (a) and (b) of the

suit in the arbitration proceedings and the plaintiff has not challenged

the finding of the Arbitrator. The plaintiff has challenged the Award

only with regard to the interest awarded on the refund amount.

20. In view of the above, this Court finds that the defendants have already

secured the amount by depositing with the Registrar, Original Side of

this Court. At the time of hearing of injunction application, no Award

was passed and only to secure the interest of the plaintiff, this Court

passed an ad-interim order dated 30th January, 2019 in favour of the

plaintiff. Now the claim of the plaintiff has already decided by the

Arbitrator by publishing an Award dated 23rd June, 2023. After the

Award is published, the defendants have filed the present application,