Montreaux Resorts Pvt. Ltd And ... vs Sonia Khosla And Anr.
2010 Latest Caselaw 2212 Del

$~29
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                                    Date of decision: 27.04.2010


+      OMP 660/2009

       MONTREAUX RESORTS PVT. LTD AND ANR.                                 ..... Petitioners
                     Through : Mr. Vibhu Bhakru, Advocate.

                      versus

       SONIA KHOSLA AND ANR.                                       ..... Respondents

Through : Mr. Deepak Khosla, attorney on behalf of Resp. No.1.

CORAM:

       MR. JUSTICE S. RAVINDRA BHAT

1.     Whether the Reporters of local papers               Yes.
       may be allowed to see the judgment?

2.     To be referred to Reporter or not?                  Yes.

3.     Whether the judgment should be                      Yes.
       reported in the Digest?

S.RAVINDRA BHAT, J. (OPEN COURT)


I.A. No. 5410/2010

1. Issue notice. Sh. Deepak Khosla appears and states that he represents Ms. Sonia Khosla,

Respondent No.1 and M/s. Montreaux Resorts Pvt. Ltd, as Power of Attorney holder; he accepts

notice. The applicant petitioner seeks an ad-interim order, to restrain the first respondent from

holding any Extra ordinary meeting scheduled by her, on 28th April, 2010, or giving effect to any

resolution passed therein.

2. At the outset, Sh. Deepak Khosla objects to the application, contending that the Court

should not have entertained it on account of an order of the Division Bench in W.P. (C)

7651/2009 dated 08.10.2009, particularly para 13, (which, in turn, refers to para 21 of the

I.A. No. 5410/2010 Page 1 judgment of the Supreme Court in Uday Shankar Triyar v. Ram Kalewar Prasad Singh and Anr.

AIR 2006 SC 269). It is specifically urged that the Vakalatnama on behalf of the

petitioner/applicant, M/s. Montreaux Resorts Pvt. Ltd. does not comply with the directions

contained in para 21(b) and (d). Learned counsel for the petitioner contended that the application

is maintainable since the second petitioner, Sh. Vikram Bakshi is signatory to the agreement

dated 31.03.2006, which contains the arbitration clause, and the relief is sought by him.

3. The Vakalatnama on the record (at page 267) so far as Sh. Vikram Bakshi is concerned,

discloses his name and signatures of the second petitioner, Sh. Vikram Bakshi. In these

circumstances, the Court is of the opinion that the application as far as the said Sh. Vikram

Bakshi is concerned, is maintainable.

4. The petition seeks relief under Section 9 of the Arbitration and Conciliation Act. In the

Petitioner applicant, has referred to the agreement dated 31.03.2006 - copy of which is placed at

pages 36-57 of the record, to say that in its terms, out of the 10,000 shares of M/s. Montreaux

Resorts Pvt. Ltd. (hereafter called "the company"), Sh. Vikram Bakshi was the owner of 5100

shares and Ms. Sonia Khosla was the owner of the rest. It is argued that the objective of the

agreement was to acquire the specified properties. The petitioner/applicant submits that the

disputes as to the functioning of the company led to a Company Petition, being C.P. No.

114/2007 being preferred by Ms. Sonia Khosla, (complaining of oppression and mismanagement

of company by the present petitioner), in which initially an interim order was made, by the

Company Law Board ("the Board"). The applicant points to the order dated 31.01.2008 where

the Board recorded that status quo with regard to composition and the shareholding existing on

the date of filing of the petition (i.e. 13.08.2007) was to be restored. The said order is at page 64-

69 of the paper book.

I.A. No. 5410/2010 Page 2

5. The applicant argues that the appeals, being Co.A.(SB) No. 6/2008 and Co.A(SB) No.

7/2008 were preferred against the Board's order before this Court, which were disposed of on

11.04.2008 and 22.04.2008. The copies of the said orders are at pages 70-85 and 86-91 of the

paper book. The order of 11.04.2008 records that the parties had agreed to refer their inter se

disputes to arbitration and in terms of such agreement, the appeal was disposed of with direction

to the parties to maintain status quo with regard to possession of the Board and shareholdings of

the company. The other appeal, of Sh. R.P. Khosla, Co. A (SB). 7/2008 was disposed of by

consent.

6. Apparently, during the interregnum, on 07.04.2008, a Writ Petition was preferred by one

Sh. R.K. Garg, contending that he was affected by the Board's order (of status quo) dated

31.01.2008. On 07.04.2008, the Court, in the said writ proceeding suspended the order of

Company Law Board - dated 31.01.2008 - in so far as it affected the allotment of his shares. The

initial interim order in the writ petition was later vacated and the petition was disposed of,

sometime in 2009. The said Sh. R.K. Garg subsequently pursuant to the liberty granted, preferred

an appeal under Section 10-F of the Companies Act.

7. It is submitted by the respondent that notice on the said appeal was issued on 13.04.2010.

Reliance is placed on that order to submit that the order of the Board dated 31.01.2008 is nullity

and ex-facie illegal. A copy of the said order dated 13.04.2010 in Company Appeal (SB) 23/2009

has been handed-over. The same is hereby taken on record.

8. The petitioner applicant states that the arbitral proceedings pursuant to this Court's order

could not proceed, and that Tribunal has virtually returned the references and that the

applications for reconstitution of the Tribunal are pending on the file of the Court. In these

circumstances, says the applicant, the respondent is attempting to change the position of the

I.A. No. 5410/2010 Page 3 Company's Board ( of Directors) and is proposing to appoint four new Directors, and for such

purpose, an Extra General Meeting (EGM) is scheduled for tomorrow, i.e 28th April, 2010.

Learned counsel submits that having regard to the entire conspectus, the Court should, as an ad-

interim measure, restrain the respondent from proceeding with such a meeting, as that would

result in creation of irretrievable situations, best avoided when parties are disputants, on the

control and shareholding of the company.

9. The respondent argues, besides the preliminary objections that Sh. Vikram Bakshi is

disentitled to maintain the proceedings or move an application, in view of the orders made

yesterday, i.e. on 26.04.2010 (in CCP (CO) 11/2009 and CCP 2/2010) where he was restrained

from transacting any business on behalf of the company or acting as its Director. It is submitted

that Sh. Vikram Bakshi cannot have any locus as his allegation of his being a shareholder or

Director has been held to be prima facie contempt. A copy of the said order was handed-over

during the course of hearing. The same is taken on record.

10. Sh. Deepak Khosla also resists the application, contending that the order of the Company

Law Board dated 31.01.2008 is further to be deemed as nullity in view of the arbitration

agreement (contained in the contract dated 31-3-2006) and in view of an application moved

under Section 8 of the Arbitration and Conciliation Act, 1996. Sh. Deepak Khosla strongly

contested the statement of the applicant that Ms. Sonia Khosla was the owner of only 4900

shares and submitted that the petitioner/applicant has, as is apparent from the pleadings, taken

different stands in eight instances and that there is no clarity in respect of 5100 shares, which are

claimed to have been transferred. It is urged that the petitioner applicant is facing contempt and

perjury proceedings, and having regard to these facts, the Court should desist from making any

order now, or otherwise.

I.A. No. 5410/2010 Page 4

11. The Court has considered the averments and submissions. Originally, the petition is

scheduled for hearing on 05.05.2010. On account of urgent mentioning, the case was directed to

be taken-up. Sh. Deepak Khosla was heard initially on his preliminary objection, beginning

02.30 p.m. for 20 minutes, (on the preliminary objections) after which Sh. Vibhu Bhakru, learned

counsel argued on behalf of the petitioner for an hour. Sh. Deepak Khosla replied to the

arguments for about half an hour; the proceedings were continued beyond the court scheduled

time to enable the respondent to complete his submissions.

12. Having considered the submissions, the Court is of the opinion that the interim order

made on 26.04.2010 in CCP 2/10 and CCP (CO) 11/2009 cannot be construed as an impediment

to the maintainability of the present application. The present application is treated as one for the

second applicant, who claims to be a signatory of the agreement dated 31.03.2006. As to what

are the inter se rights of the parties is not a matter for the Court to consider at this interim stage.

However, what is apparent is that the orders of this Court in the company appeals have become

final. The respondent had relied upon an order dated 05.02.2010, to submit that the Court had

reviewed its previous order. It is submitted by the defendant that in Co.A(SB) No. 7/2008,

consent was wrongly recorded, which was never given. He has shown this Court a copy of that

order. Prima facie the Court is of the view that there is no review; all that the order purports to

record is the respondent's stand that consent was not given.

13. In these circumstances, and having regard to the urgency, the Court is of the opinion that

unless injunction sought for is granted, prejudice would be caused as the management of

company is likely to be altered, which may have an impact on the arbitral proceedings and may

also affect the parties' rights. In these circumstances, Respondent No.1 is hereby restrained from

giving effect to any resolution or decision which may be taken at the EGM or proceeding to

I.A. No. 5410/2010 Page 5 attend or hold the same in any capacity of hers in the company, till the next date of hearing, i.e

5th May, 2010.

Order dasti under signatures of Court Master.

OMP 660/2009

List on the date fixed, i.e. 05.05.2010.

                                                                         S. RAVINDRA BHAT
                                                                                   (JUDGE)
       APRIL         27, 2010
       'ajk'




I.A. No. 5410/2010                                                                         Page 6