Montreaux Resorts P.Tld. & Ors. vs Sonia Khosla & Ors.
2011 Latest Caselaw 6145 Del

$~31
*       IN THE HIGH COURT OF DELHI AT NEW DELHI


+       CONT.CAS(C) 165/2008
%               Judgment delivered on: 15th December, 2011
        MONTREAUX RESORTS P.TLD. & ORS.                 ..... Petitioners
                                       Through: Mr. Anand Mohan Mishra,
                                       Adv. for petitioners No. 1 to 3
                        Versus
        SONIA KHOSLA & ORS.                           ..... Respondents
                                       Through: Mr. Deepak Khosla in
                                       person
        CORAM:
        HON'BLE MR. JUSTICE SURESH KAIT

                  ORDER

%                 15.12.2011

+       Cont.Case (C) No.165/2008

1. In the instant case, notice was issued vide order dated 17.03.2008 and could not be adjudicated due the following reasons.

2. Thereafter CM. NO. 11170/2008 was moved by the applicants / respondent no.1 & 2, i.e., Sonia Khosla and her husband Deepak Khosla, and sought recall of order dated 17.03.2008. As alleged in the said application, the Petitioner has managed to obtain notice by misrepresenting the true and correct facts and on 08.08.2008 this court passed an order which is as under:-

"In my opinion the correct remedy of the applicants is to file a respondent(sic) and get the notice discharged" "Reserving rights of the respondents to urge all pleas in response to the notice issued in the contempt petition the instant application is dismissed."

3. Thereafter, CM NO. 14125/2008, CM NO. 14126/2008, CM NO. 16972/08 and CM NO. 16973/2008 were moved by the applicants / respondents. Thereon, it is recorded in the order dated 04.12.2008 that:-

"Respondent submits that no notice of the applications is required to be served in view of the judgment of the Hon'ble Supreme Court in Pritish Vs. State of Maharashtra (2002 SC

236)."

4. Thereafter CM NO. 2074/2009 and CM NO. 2075/2009 were moved by the applicants / respondents and vide order dated 12.02.2009, the said applications were directed to be listed when the main matter is listed.

5. Another application vide No.12499/2009 was moved by the applicants / respondents. The same was taken up on 03.09.2009. Notice was issued. The non-applicant was directed to file reply within 4 weeks. Rejoinder thereto was to be filed before the next date.

6. Thereafter another CM NO. 3874/10 was moved to transfer this matter to the Bench of Mr. P.K. Bhasin, J. where 27 matters of the applicant of similar nature were pending. The said application was allowed vide order dated 02.03.2010 and it was directed that this matter be placed before Mr. P.K. Bhasin. J. subject to the Order of Hon'ble Acting Chief Justice for 16.04.2010.

7. One more Crl. M.A. 10567/2010 was moved. Vide order dated 01.06.2010, notice was issued. Somehow, this matter came before me on 01.09.2011 and at the request of the applicants / respondents re-notified for 14.09.2011. I started hearing the matter. Ld. Counsel for the Petitioner advanced his arguments and matter was re-notified on 23.09.2011 for remaining arguments.

8. On 12.10.2011, when Ld. Counsel for the Petitioner were on the legs to argue the case, Mr. Deepak Khosla, respondent no. 2 who is appearing in person in all the cases has pointed out regarding the pendency of Crl. M.A. 2075/2009.

9. The issue raised in the said application is that the Advocates appearing for the Petitioner has not filed Vakalatnama. Therefore, they cannot be allowed to appear in the matter. Mr. Anand Mohan Mishra, Ld. Counsel for the Petitioner submits that he filed the Vakalatnama way back in the year 2009. On his submission, he was allowed to inspect the file in the court itself.

10. Thereafter, the matter was taken up on 13.10.2011. On that day, Mr. Vikas Kakkar, Ld. Counsel for the Petitioner appeared and submits that he is still appearing on behalf of Petitioner no. 2 & 3. This court again started hearing the matter on 13.10.2011. While, arguments were going on, Mr.Deepak Khosla, Respondent no. 2 interjected and submitted that he has filed only short reply, therefore, he is entitled to file detailed reply. This court has specifically asked Mr. Khosla whether he wishes to file a detailed reply to which he stated that until and unless the CM No.2075/2009 under Section 151 CPC read with Order XIX CPC, read with Chapter XVII

Sections (1 & 2) of Delhi High Court Rules, read with Section 17 (5) of the Contempt of Courts Act, for summoning inter alia, petitioner Nos.2 & 3 for examination / cross-examination, is decided only thereafter, he would take minimum eight weeks time to file reply because he is planning to go abroad on 20.10.2011 to China for the medical treatment of his wife, respondent No.1 Mrs.Sonia Khosla.

Mr.Khosla, has further submitted that on his application - CM No.2075/2009, even notice has not been issued since the date of its filing i.e. 31.01.2009, despite the details of the falsehood referred to in CM No.2075/2009 being stated in very great detail in Crl.Misc. Application No.16973/2008 which was filed in the November 2008. So, if CM No.2075/2009 has no merits even issuance of notice, this Court may dismiss his Crl.Misc. Application No.16973/2008, so that he may proceed in the main matter.

He further submits and requested this Court to split up the Crl.Misc. Application No.16973/2008 from the main matter, as per the precedents set by the Division Bench of this Court, while hearing Contempt Case No.4/2009 in which also the very same petitioners are the contemnors in Criminal Contempt and in their reply to save themselves from the Criminal Contempt whose punishment is six months and fine against Civil Contempt in which punishment is 07 years and fine. Division Bench - III while appreciating the facts, has agreed that the perjury proceedings under Section 340 Cr.P.C. be separated from the main petition. Similarly, this Crl.Misc. Application No.16973/2008 can be carved out from civil contempt proceedings and hear the main petition as far as application is concerned. This can also be done in the light of the judgment of the Supreme Court

passed in the case of United Insurance Company Limited Vs. Rajender Singh & Ors, (2000) 3 SCC 581, this Court will be compelled to recall its order issuing notice, because notice was issued ex-parte in the year 2008 and petitioners played a fraud. The fraud has now started to be unveiled in different Court including the Trial Court at Tis Hazari Courts, Company Court and before the Division Bench of this Court, hearing the criminal contempt proceedings.

Here, I make it clear that whatever was stated by Mr.Khosla (contemnor No.2) has been recorded verbatim above.

Admittedly, I note that vide order dated 17.03.2008, notice was issued in the instant petition and thereafter, matter could not be proceeded on one pretext or the other.

Further, I note that vide the noting of Joint Registrar (Listing) dated 28.03.2011, this matter was listed before S. N. Dhingra, J. and in the same noting it is noted that this matter not to be listed before P.K. Bhasin, J; G.S. Sistani, J; & Ajit Bharihoke, J.

Re-notify for directions on 17.10.2011.

11. Thereafter, C.M. No. 19121/2011 Under Section 151 CPC read with Order 1 Rule 9 & 10 and C.M. NO. 19123/2011 Under Section 151 CPC read with Court of Contempt Act and C.M. No 19124/2011 Under Section 151 CPC read with Chapter V of Rule 1 of Delhi High Court Rules was moved.

12. In Crl.M.A. No. 16973/2008 moved by the Respondents for prosecution of perjury and related offences against injustice committed by the prospective accused (Who are the Petitioners in CCP No. 165 of 2008

filed before the Hon'ble Delhi High Court in March, 2008). Contempt Petition No. (CC) 165 of 2008 arising from Company Petition No. (CP) 114 of 2007 pending adjudication before the Hon'ble Company Law Board (Principal Bench, New Delhi )Titled "Sonia Khosla. Vs. Montreaux Resorts (P) Ltd. and Ors. and it is prayed to initiate:

i. Criminal proceedings under 191/192//196/197/198/199/200/

201/202/203/207/209/211 of the Indian Penal Code, read with Sections 120- B and 34 of the Indian Penal Code, 1860, read with Sections 176, 181 and 182 of the Indian Penal Code, 1860, read with Sections 465, 366, 467, 468, 469, 409, 471, 474, 477 and 477-A of the Indian Penal Code, 1860 and other provisions of the law, by initiating an inquiry within the provisions of Section 340(1) of the Cr.P.C. read with Section 195(1)(b) of the Cr.P.C. (Only if such enquiry be deemed necessary by this Hon'ble Court), and more particularly, may be pleased to initiate as under:-

"a) In the event that this Hon'ble Court deems it necessary to make such inquiry, to first record a finding to the effect that it is necessary and expedient in the interests of justice that an enquiry should be made into an offence(s) referred to in clause

(b) of sub-section (1) of Section 195 of the Cr.P.C. which appears to have been committed by the following Prospective Accused and such other person (s) deemed necessary by this Hon'ble Court who abetted these perjurious act(s) / action (s) in, or in relation, proceedings before this Hon'ble Court in CCP no. 165 of 2008 preferred by the Prospective Accused through Prospective Accused Nos.1 and 2, in respect of false statements

made therein, for forged documents filed therein, and for suppression of vital and material facts from the same:

i. Mr. Vikram Bakshi - Prospective Accused / Proforma Party No. 1 (Non-Applicant).

ii. Mr. Wadia Parkash - Prospective Accused / Proforma Party No. 2 (Non-Applicant).

iii. Mr. Vinod Surha - Prospective Accused / Proforma Party No. 3 (Non-Applicant).

iv. Any other person (s) deemed culpable by this Hon'ble Court as guilty of conspiring and / or aiding and / or abetting and / or actively participating in these acts.

b) to appoint an Officer of this Hon'ble Court and to direct him to make a complaint thereof in writing into the offences under Sections 191/192/196/197/198/199

/200/201/202/203/207/209/209/211 of the Indian Penal Code, read with Sections 120-B and 34 of the Indian Penal Code, 1860, read with Sections 176,181 and 182 of the Indian Penal Code, 1860, read with Sections 465, 466,467,468,469,409,471,474,477 and 477-A of the Indian Penal Code, 1860 and to sign the said complaint; and

c) to send, or direct such Officer to send, this complaint to the concerned Metropolitan Magistrate having jurisdiction; and

d) take sufficient security for the appearance of the prospective Accused before such Magiastrate, or if the alleged offence (s) is / are non-bailable and this Hon'ble Court thinks it necessary to do so, send the Prospective Accused in custody to such Magistrate; and

e) bind over any person (s) to appear and give evidence before such Magistrate; and

f) to take such other actions as this Hon'ble Court may deem fit and proper in view of the abovementioned facts and circumstances of the present matter so as to be in the interest of justice as well as in the interests of the applicant."

13. In my opinion, the instant application Under Section 340 CPC is not maintainable for the reason this very issue is the subject matter of contempt petitions filed by Deepak Khosla and his wife Sonia Khosla and the attempt is to stall the contempt proceedings initiated against them by the opposite group.

14. Another CM. no. 2075/2009 was filed by respondents seeking presence, examination and cross-examination of the Petitioners and their Counsels.

15. In my opinion, since the detailed reply has not been filed by the respondents, therefore this is not a stage to consider the examination and cross-examination as sought for. The application stands dismissed as pre- mature.

C.M. No. 19121/2011

16. The instant application Under Section 151 of CPC read with Section 1 Rule 9 & 10 CPC was filed by the respondent seeking dismissal of the petition for misjoinder of parties, and / or for being in the name of the "Wrong plaintiff" and it is prayed to:-

i) Dismiss the petition for misjoinder of parties and / or for being in the name of the wrong plaintiff viz., the Company Montreaux Resorts (P) Ltd.

ii) Issue an ex-parte ad interim order and / or direction in terms of the prayers above.

iii) Pass such other order (s) or direction (s) as may be deemed just and proper in the facts and circumstances of the case.

17. In my opinion, the issue raised by the applicants can be raised in his detailed reply. Accordingly, the application stands dismissed.

C.M. No. 19122/2011

Exemption is allowed subject to just exceptions.

C.M. No. 19123/2011

18. The instant application under Section 151 of the CPC, read with the Contempt of Courts Act was moved by the respondent seeking direction for strict compliance with order dated 25.08.2008 of this Hon'ble Court; in the alternative, to initiate proceedings for civil and criminal contempt against the violators and it is prayed that:-

i) Direct Mr. P. Nagesh and Mr. Anand Mohan Mishra (Advocates) and the Petitioners, to strictly comply with the Order of 25.08.2009 of this Hon'ble court, as orally undertaken to them to do so on 25.08.2009 in order to thwart penal proceedings against them on that day.

ii) Direct them to comply with that order even if the petition is being dismissed, in order to legally justify their appearances for the three petitioners since 25.08.2009.

iii) In the alternative to (1) (2):

Initiate civil contempt proceedings against Mr. P. Nagesh, Mr. Anand Mohan Mishra and their clients for deliberate and conscious violation of the order dated 25.08.2009, and initiate criminal contempt proceedings against Mr. P. Nagesh, Mr. Anand Mohan Mishra and their clients for unauthorized appearance on 25.08.2009 and thereafter, including on 13-10- 2011.

iv) Issue an ex-parte ad interim order and / or direction in terms of the prayers above.

v) Pass such other order(s) or direction (s) as may be deemed just and proper in the facts and circumstances of the case.

19. In my opinion, this court cannot issue direction as prayed for. Therefore, this application is not maintainable in these proceedings.

20. The application stands dismissed.

CM. No. 19124/2011

21. The instant application was filed Under Section 151 CPC read with Chapter 5 Rule 1 of the Delhi High Court Rules, read with Section 34 of the Advocates Act, read with the Bar Council Rules (Rules39) moved by the applicant / respondent wherein it was prayed that:-

i) This Hon'ble Court may be pleased to exercise its powers, inter alia, under Section 34 of the Advocates Act, read with Rule 39 of the Bar Council Rules, read with the Delhi High Court Rules and bar from appearance before this Hon'ble Court, or from acting in the present matter, or from pleading in the present matter, any advocate purporting to appear for the Petitioner no. 2 and Petitioner no. 3 other than Mr. Rajinder Pal Singh, Advocate.

ii) Issue an ex parte ad interim order and / or direction in terms of the prayers above.

iii) Pass such other order (s) or direction (s) as may be deemed just and proper in the facts and circumstances of the case.

22. Under Section 34 of the Advocates Act, no rules have been framed by this Court Under Rule 39 of Bar Councils Rules as sought by the applicants / respondents, whether the counsel can bar or not except Rajinder Pal Singh. In my opinion, the said Counsel may be on record. But since Mr. Vikas Kakkar has filed the Instant Petition and he is appearing in the matter, therefore, it is right of the Petitioner to engage any Counsel whomsoever he wants.

23. The application stands dismissed.

24. The applicants / respondents had moved 4 more applications.

Crl.M.A. No. 19340/2011

Exemption is allowed subject to just exceptions. Crl. M.A. No. 19337/2011

25. The instant application was moved by the applicant / respondent no.1 seeking permission to Lay "Shock" at the "Scandalous" proposal of the petitioners on the record of this Hon'ble Court, and other matters, including making of reference Under Chapter II Section 2 of the Delhi High Court Rules to a Bench of two or more judges to decide upon the question of "practice" and "procedure" to be adopted for hearing the present contempt petition and it is prayed:

1. To take on record the fact that it was the petitioners who proposed that their own contempt petition be adjourned sine die.

2. Adjudicate the contempt petition expeditiously to its close in accordance with law.

In the alternative :

Refer the matter of the "practice" and "procedure" to be adopted for adjudicating the present petition to a Bench of two or more judges.

3. Adjudicate the three applications filed on 15-10-2011 and listed on 17-10-2011 before proceedings further in the matter (Viz. CM Nos.19121-23 of 2011)

4. Modify its order dated 17-10-2011 (or set out in its order on this application) to show that Mr. Vibhu Bakhru stated to this Hon'ble Court on 17-10-2011 that the Arbitration Tribunal had confirmed the order dated 31-01-2008 passed by the Hon'ble Company Law Board.

5. Take on record the e-mail dated 13-10-2011 sent by the applicant no. 2 to Mr. Amarjit Singh Chandhiok, and the objections of the applicants to the continued participation of Mr. Amarjit Singh Chandhiok as amicus curiae in the present proceedings.

6. Take on record the intent of the applicant no. 2 to record the proceedings relating to them so that there is "evidene" for the Review Court or the Appellate Court or other bodies of what transpires in this Hon'ble Court, with the recording to be kept in the custody of this Hon'ble Court (undertaking as per Annexure 1).

7. Pass ex-parte order on the above prayers.

8. Pass such other order or further orders as this Hon'ble Court may deem fit and proper in the facts and circumstances of the present case.

26. In my opinion, this application is not maintainable in these proceedings and dismissed accordingly.

C.M. No. 19338/2011

27. The instant application filed Under Section 151 of the CPC read with Chapter II of the Delhi High Court Rules by the applicants / respondents seeking that the present matter to be heard by the Company Court. In the alternative: For reference Under Chapter II Section 2 of the Delhi High Court Rules to a Bench of two or more Judges to decide upon the question of "practice" and "procedure" to be adopted for hearing the present contempt Petition and it is prayed in the instant application that:

i. This Hon'ble Court may be pleased to refer the present contempt petition to Hon'ble Chief Justice for considering whether or not it should be heard by the Court of Hon'ble

Justice Mr. J.R. Midha which is hearing 30 of other related matters between the same parties:

In the alternative:-

In exercise of its powers circumscribed in Chapter II, Section 2 of the Delhi High Court Rules, refer the present petition to two Judges of this Hon'ble Court to decide wither or not it should be heard by the Court of Hon'ble Justice Mr. J.R. Midha which is hearing 30 other related matters between the same parties.

ii. Issue an ex parte ad interim order and / or direction in terms of the prayers above.

iii. Pass such other order (s) or direction (s) as may be deemed just and proper in the facts and circumstances of the case.

28. The matter listed before this Court are total 7 in numbers, and 6 are Contempt Petition filed against each other. The matters listed before Hon'ble Mr. Justice J.R. Midha are 30 in number. The issue in each and every matter is independent. Therefore, each and every matter has its own consequences. Therefore, the present application is also dismissed.

Crl. M.A. 19339/2011

29. The instant application was filed Under Section 151 CPC by respondent no. 1 seeking dismissal of the Arbitration Petition, by deciding the same in accordance with the legal principles enshrined in the four maxims concurrently applicable to the present matter viz. "Ex Turpi Causa Non Oritur Actio", "Ex Dolo Malo Non Oritur Actio", Pari Delicto Portior

Est Condition Possidentis / Defendantis, and "Actus Curaie Neminem Gravabit" and it is prayed to:-

1. Take the criminal complaint dated 05-09-2011 and the cognizance order dated 01-10-2011 on record.

2. Dismiss the arbitration petition in light of the inviolable judicial principle enshrined in the maxim Ex Turpi Causa Non Oritur Actio.

And:

Dismiss the arbitration petition in the light of the inviolable judicial principle enshrined in the maxim ex dolo malo non oritur action.

And:

Deny any and all assistance of this Hon'ble Court to the Petitioner in light of the inviolable judicial principle enshrined in the maxim pari delicto portior est condition possidentis / defendantis

3. Pass ex parte order on the above prayers.

4. Pass such other order or further orders as this Hon'ble Court may deem fit and proper in the facts and circumstances of the present case.

30. I note that vide order dated 03.12.2009, Ld. ACMM (SPLACTS) / Central, Delhi passed the following order:-

"Complainant No. 3 Deepak Khosla is present in person.

This complaint is filed by M/s Montreaux Resorts Pvt. Ltd. Complainant No. 1 and also complainant no. 2 Sonia Khosla and No. 3 Deepak Khosla against four accused. On this complaint my Ld. Predecessor Court was pleased to take cognizance on 07.02.2009 and thereafter complainant and witnesses were examined U/s 200 Cr.P.C.

It is deposed on oath that the complainant No. 2 Ms. Sonia Khosla was the founder / director of complainant No. 1 Company and duly authorized to represent the complainant company. It is deposed that the accused No. 1 Vikram Bakshi entered into one Memorandum of Understanding (MOU) with the complainant. Subsequently, one forged Form No. 32 Ex.CW1/5 was filed with the ROC on which signatures of complainant No. 2 were forged by accused no. 1 and others. Besides the said forgery, it is alleged that minutes book of the company was also forged by the accused persons in which AGM dated 30.09.2006 is deposed to have been held and it is forged as it contains forged signatures of Complainant No. 2, as on that day she was out of country. The said minutes book is proved as Ex.CW1/9 and Ex.CW1/8. In the same minutes book, it is falsely shown that complainant NO. 2 was present. The passport of Complainant No. 2 is proved on record as Ex.CW1/11. There was no local minimum quorum to hold that meeting. It is also claimed that accused Nos. 2 & 3 were merely appointed as additional directors and it ceased to be so on 30.09.2006 as they were not appointed as regular directors.

It is also claimed that forgery of the minutes of meeting is also clear from the fact that M/s Sameer Qudesia and associates were shown re-appointed as statutory auditors of the company whereas, it is deposed that the offered their services to the company almost 1½ years later i.e. 05.09.2007. No board meetings took place is also clear from the fact of completely blank attendance register. It is also deposed that AGM dated 14.06.2006 is also forged as Complainant NO. 2 was shown present therein but she was out of country at that time also as is clear from her passport.

Against accused No. 4, it is deposed that he gave a certificate which was false knowing well that accused Nos. 2 & 3 were not directors and he countersigned DIN-3 from verifying that he checked the particulars in the form from the records of the company and found them to be true and correct and it was a false certificate since it was contrary to records. It is also alleged that DIN-3 and DIN-2 forms containing false particulars were prepared and submitted by the accused. It is also deposed that the accused persons have failed to return the company documents and assets. Even the date of appointment of accused Nos. 2 & 3 is falsely shown as 23.12.2005 instead of 21.12.2005 as additional directors. It is deposed that accused No. 4 has been paid exorbitant amount by the remaining accused in this conspiracy.

The complaint and the deposition of the complainant witnesses shows sufficient grounds to proceed against all the three accused for the criminal offences. Accordingly, all the four accused namely Vikram Bakshi, Wadia Prakash, Vinod Surha and Vikas Gera are summoned for the offences U/s. 628/283-2A/630 of the Companies Act, 1956 and U/s. 177/182/197/198/199/200/468 /471 of IPC.

Issue summons to all the four accused on steps to be taken by the complainant i.e. PF / RC-AD / Speed Post."

31. The petitioner being aggrieved has assailed the aforesaid order in Crl. M.C. No. 744/2010, which is pending before this Court for adjudication.

32. Vide order dated 28.01.2009, Hon'ble Ms. Justice Geeta Mittal, passed an order against the respondents which is as under:-

"CA No. 1000, 1290 & 1446/2008 in Co.A.(SB) No. 6/2008 and CA No. 1001/2008 in Co.A. (SB) No. 7/2008 filed by the appellants are under hearing by this Court. Appellant has already been heard on these applications and learned counsel for

the respondents was being heard when the matter was adjourned to today to make the submission in reply.

In support of their submissions, leaned counsel for the respondents placed reliance on the appeal filed by Ms. Sonia Khosla before the Company Law Board and had opened submissions that the appellant cannot be permitted to set up case not pleaded in the petition before the Company Law Board. It was also their contention that the appellant cannot modify or vary the petition filed on 13th August, 2007 by way of filing an additional affidavit about six months thereafter on 30th January, 2008. Reliance was placed on the memorandum of understanding between some of the parties which was the basis of the petition before the Company Law Board.

The applications before this Court are in the nature of a review of hearings wherefrom a brother colleague has recused himself for reasons of scandalous averments contained in CA no. 1000/2008. It is well settled that consideration of any application has to abide by judicial record which is placed before the court. Fully conscious of the well settled legal position, unfounded allegations, before even submissions could be completed by counsel, have been made.

The matter was adjourned at request of counsel for the respondents to today. During the intervening period, CA No. 133/2008 in Co.A (SB) 7/2008 and CCP No. 1/2009 in Co.A (SB) No.6/2008 have been filed on behalf of the applicant. When the matter was called out for hearing today, the applicant insisted on arguing CCP NO. 1/2009 in Co.A. (SB) NO. 6/2008 and CA No. 27/2009 & 31/2009 in Co.A (SB) No. 7/2008 objecting to the appearance of learned counsel on the other side on the ground that they have no right to appear. Counsels for the respondents were heard and have drawn my attention to the memo of parties filed by Ms. Sonia Khosla before the Company Law Board wherein this company was arrayed as the respondent no. 1 and was represented by counsel appearing for the respondent nos. 2, 3 and 4 before this court. Counsels

relied on Paras 3 to 9 of order dated 31st January, 2008 passed by the Company Law Board at Page 60 of Co.A (SB) No. 6/2008. In this background, in as much as counsels had appeared for the respondents before the Company Law Board and the present petition in appeal being continuation thereof, I saw no reason as to why they cannot continue to complete the arguments in the part-heard matter. It was pointed out that no such objection was ever raised even though the same counsel have been appearing in the matter right from the first date when the respondents first put in appearance. Caveat is also stated to have been filed. In this background, Mr. Vibhu Bhakru, Advocate who has been addressing arguments was asked to resume arguments on the part-heard application. At this stage, Mr. Deepak Khosla rose and started gesticulating. He interrupted the court proceedings in a loud voice making allegations that the counsels appearing in the matter have no right of audience in the matter and that proceedings in this court are not as per law. All requests to him to contain himself, to resume his seat and permit respondents' counsel to complete his submission did not bear any fruit. Mr. Khosla continued to interrupt the court proceedings in loud and obstructive tone and making allegations against the counsel appearing on the other side in open court that they are lying. He used insulting language and has cast aspersions on counsel appearing on the other side. The allegations made are scandalous and aimed at creating prejudice and embarrassment to counsel who are discharging their professional duties towards their client. I have been exercising considerable restraint keeping in view that Mr. Deepak Khosla was appearing in person. The respondents have objected to his appearance inasmuch as he is arrayed as respondent no. 11 before the Company law Board in the petition which has been filed by his wife Ms. Sonia Khosla as the petitioner and Mr. Khosla is the opposite party before the Company Law Board.

His conduct in court today was so obstructive that this court found it impossible to record the order in open court and has risen to dictate this order in chambers.

The acts of Mr. Deepak Khosla in standing up when the other side is arguing, gesticulating with his hands, raising his voice and not permitting the proceedings in the court to continue amounts to interference with the due course of judicial proceedings before this court, which prima facie, constitutes criminal contempt of court.

Paras 1 to 9 of this order be treated as the facts constituting the gravemen of the charge as per para 10 above.

Let a copy of order be given to Mr. Deepak Khosla under signatures of the Court Master. Mr. Deepak Khosla is hereby called upon to submit his response to this order, which is being treated as a notice of charge, to be responded within two weeks. The contempt matter may be place before Hon'ble the Chief Justice for placing before the appropriate Division Bench for further proceedings.

Registry shall appropriately register the matter and place copies of all the orders and applications noticed above before the Division Bench.

Dasti."

33. Being aggrieved, the Respondents Deepak Khosla and Sonia Khosla have challenged the same, which is pending for adjudication before D.B. of this Court.

34. It is pertinent to mention, vide order dated 11.12.2009, Mr. P.K. Bhasin, J passed the following order in C.C.P. (C.O) 1/2009:-

"Petitioner No.2 Mrs. Sonia Khosla, who is being represented by her husband, claims that she is the founder Director of petitioner no.1 Company which was incorporated for building a Rs.110 crore luxury resort on a piece of land in Kasauli which was owned by her father-in-law Shri R.P.Khosla. Mrs. Sonia Khosla entered into a MoU in respect of the said project in Kasauli with one Mr. Vikram Bakshi, who has been arrayed

as contemner no.1. That MoU was signed by Shri R.P.Khosla, owner of the land, as a confirming party. Pursuant tothat MoU Mr. Wadia Parkash and Mr. Vinod Surha, who have been arrayed as contemners no. 2 and 3 respectively, were made Additional Directors of petitioner no.1 Company on 21st December,2005 being the nominees of Mr. Vikram Bakshi. Some disputes arose between Mrs. Sonia Khosla and Mr. Vikram Bakshi in respect of the implementation of the MoU and so Mr.Wadia and Mr.Surha could not be made regular Directors and they allegedly ceased to be the Directors of the Company by operation of law on 30th September, 2006. However, Mr. Khosla has contended, they continued to act as the Directors even thereafter illegally and not only that they illegally inducted Mr. Vikram Bakshi, also into the Board of Directors as an Additional Director on 19/03/07 and in some meetings conducted by these persons even her presence was shown when actually she was not even in India. Mr. Khosla has submitted that in respect of one such incident of forgery of minutes of a meeting purporting to be that of the Board of Directors showing the presence of his wife in that meeting when actually she was on that day in UK a criminal complaint was filed and on 3rd of this month itself the Court of Sh.Digvinay Singh, ACMM, has summoned accused Vikram Bakshi, Wadia Parkash, Vinod Surha and one Vinod Gera, Company Secretary, for different offences including the ones punishable under Sections 468/471 IPC. Mr. Khosla has shown this Court a copy of that order passed in Complaint Case No.22/09. Mr. Khosla contends that the appointment of Mr. Vikram Bakshi as an Additional Director was a nullity and in any event he also ceased to be a Director by operation law w.e.f. 27th September,2007. As per the petitioners, since all three of them (Bakshi Group) continued holding meetings as Directors of the Company illegally, Mrs. Sonia Khosla filed a petition under Sections 397 and 398 of the Companies Act before the Company Law Board on 13/08/07. In that petition it was allegedly claimed, inter alia, that these three persons(arrayed as contemners 1-3 herein) had already ceased to be the Directors of the Company and so they had no right to

conduct the affairs of the Company and to swindle the assets of the Company In that petition the Company Law Board passed some order on 24th December, 2007 with which Bakshi Group felt aggrieved and so an application was filed for re-calling of order dated 24th December,2007 and on that application the CLB passed some directions vide order on 31st January,2008. With that order Mrs. Sonia Khosla felt aggrieved. So she filed an appeal in this Court(being Company Appeal No. 6 of 2008), against the order dated 31st January,2008 of the CLB. Shri R.P.Khosla, father-in-law of petitioner Mrs. Sonia Khosla, who was also a party in that petition, also filed an independent appeal against the same order and his appeal was registered as Company Appeal No.7 of 2008. It is stated that in both the appeals it was categorically pleaded and re iterated by the appellants that contemners 1-3 herein had all ceased to be the Directors of the petitioner no.1 Company by operation of law but illegally they were continuing to represent themselves as the Directors. Co.A.No. 07 of 2008 filed by Mr. R.P.Khosla came to be taken up for consideration on11th April,2008 before the Company Court when the Court recorded that both the parties, out of whom Bakshi Group was being represented by a counsel, had agreed that they shall maintain status quo with regard to the shareholdings and fixed assets of the respondent company as it stood at the time of filing of the petition before the Company Law Board. In view of that agreement the appeal was disposed of as not pressed. Co.A.No.06/08 filed by Mrs. Sonia Khosla came up for hearing before the Court on 22/04/08 when while dismissing that appeal in limine it was observed by this Court that it would be appropriate that the parties maintain status quo with regard to the composition Board and shareholdings as it existed on the day of filing of the petition by appellant no.1(Mrs. Sonia Khosla) before the Company Law Board which was filed on 13.08.2007. It is submitted that it was the case of Mrs. Sonia Khosla in the said Company Petition before the Company Law Board as also before this Court that on the date of filing of the petition before the Company Law Board S/Shri Vikram Bakshi, Wadia Parkash and Vinod Surha

were not the Directors but despite that in both the appeals before this Court no affidavits in opposition to that stand were filed by S/Shri Vikram Bakshi, Wadia Parkash and Vinod Surha(described as the Bakshi Group by this Court also in the order dated 11th April,2008) which showed that they had no opposition to the averments in the appeals that the Board of Directors of the Company on the date of filing of the company petition did not comprise of any one of these three persons. In the present application it is alleged that despite the direction of this Court for maintenance of status quo in respect of the Board of Directors of the company as it existed on the date of filing of the Company Petition before the Company Law Board the respondents-contemnors no.1-3 have been claiming themselves to be the Directors despite the fact that they were not the Directors on 13th August, 2007 and thereby had committed contempt of this Court. My attention has been drawn to a copy of Form no.32, annexed with this petition as Annexure 3/B, which according to the petitioners was digitally signed and submitted on-line to the Registrar of Companies on 29/12/08 by Shri Vinod Surha describing himself as a Director of Montreaux Resorts (P)Ltd. That act of his, as per the petitioners, amounts to violation of the orders of status quo, referred to already, passed by this Court in the two Company Appeals. Mr. Manmohan Singh Jain, respondent no.4, is stated to have abetted them for violating this Court/s orders by counter-signing that Form 32 as the Company Secretary knowing fully well about the this Court/s orders.

In my view, a prima facie case is made out for issuance of notice of this petition against Shri Vinod Surha. As far as respondents Mr.Vikram Bakshi and Mr.Wadia Prakash are concerned there is no document shown to this Court showing that they have also been claiming themselves to be the Directors of Montreaux Resorts (P) Ltd. after passing of the orders dated 11th April, 2008 and 22nd April, 2008 in the two Company Appeals. Similarly, there is nothing on record to show, even prima facie, that respondent no. 4 Mr.Manmohan Singh Jain had abetted Mr. Vinod Surha for violating any order of this Court. Therefore, no case is made out for even

issuing show cause notices to these three persons. So, issue notice, returnable for 27th January, 2010, to Mr. Vinod Surha only to show cause as to why he be not proceeded against for committing contempt of this Court."

35. Being aggrieved, the Petitioner has challenged the same, which is pending before Division Bench of this Court for adjudication.

36. The total matters, pending around 40 in number, in this High Court apart from the other cases pending before the Trial Court and Supreme Court. The instant application is in pursuance of the order passed Sh. S. Balasubramanian, Chairman Company Law Board, Principal Bench, New Delhi on 31.01.2008 which is as under:-

"1. It is unfortunate that the petitioner who has come before this Board seeking for equitable remedies should have acted in a manner over reaching this Board during the pendency of the petition filed by her under Sections 397/398 of the Act.

2. The facts of the case are that the petitioner claiming / entitled to hold 35.5% / 49% shares in the company filed this petition alleging that by further issue of shares, the respondents have reduced her shareholding to 18.25% / 24.5% and that the respondents are guilty of mismanaging the affairs of the company. Various interim orders were passed inter alia directing the Bench Officer to authenticate the statutory records of the company and also providing opportunity to the petitioner to inspect the said records. The respondents filed an application under Section 8 of the Arbitration and Conciliation Act seeking for referring the parties to arbitration on the ground that the entire dispute has arisen out of an agreement between the parties. Arguments on this application were concluded on 26.10.2007 and the order was reserved. Thereafter, with a view to resolve the disputes amicably, I held discussion with the advocates for the parties on 26.11.2007 but the efforts failed. On that day, the 11th respondent, who is

incidentally, neither a shareholder or a director, but the husband of the petitioner, desired that the arbitration application should be re-heard since he did not have the opportunity of presenting his case on 26.10.2007 when the arguments on the application were concluded. Accordingly, I decided to hear the arbitration application again on 17.1.2008 and accordingly a notice of hearing was issued on 29.11.2007.

3. On 24.12.2007, the company filed an application CA 572/2007 and mentioned the same ex-parte. Shri Chaudhary appearing for the applicant submitted that the inspection carried out by the petitioner in pursuant to the order of this Board revealed that respondents no. 3 & 4 who were appointed as additional directors had ceased to be directors effective from 30.09.2006 as they were not confirmed in the AGM on that day and the 2nd respondent who was appointed as additional director on 19.03.2007 can also not hold office as he had been appointed by the board consisting of 3rd and 4th respondents who had already ceased to be directors. With the view to establish that they continued to be the directors of the company, these respondents had convened a Board meeting on 28.12.2006 and therefore they should be restrained to hold the said meeting. On hearing the learned counsel, I passed the following order ex-parte:

"Application mentioned and it is prayed that the board meeting convened on 26.12.2007 be directed to be deferred for the reasons stated in the petition. Since I find that no substantive business has been proposed to be transacted in that meeting, I direct the company / respondents to defer the meeting till the application is disposed of ........Liberty to apply for modification of this order with three days notice to the petitioner".

On 31.01.2008, the respondents filed an application CA- 1/2008 seeking for modification of the order on the ground that respondent no. 3 and 4 has been confirmed in the AGM held on 30.09.2006 and the same has been included in the agenda for the AGM also but the fact of confirmation was

inadvertently not recorded in the minutes and that these respondents have been acting as directors all along and they had validly appointed the 2nd respondent as an additional director. It was further stated in the application that the petitioner had co-opted another director on 11.12.2007 and had also filed Form no. 32 with the ROC 08.12.2007 indicating the cessation of office of the 2nd, 3rd and 4th respondents and had also passed a resolution to shift the registered office of the company. When these facts were brought to my notice on 03.01.2008, I passed the following order:

"Application mentioned. No board meeting by either side is to be held. The application will be heard on 08.01.2008 at 1.00 PM".

When the matter was heard on this day, it transpired that not only the petitioner had co-opted a director on 11.12.2007, two more additional directors had been appointed on 18.12.2007 and the board thus constituted had also issued 6.58 lakh shares at Rs.100/- per share. In the application filed on 24.12.2008, these facts had been suppressed.

4. When these facts were brought to my notice, I informed the counsel for the petitioner that when the matter is pending before this Board, any information/particulars collected during inspection ordered to be given by this Board, should have been used only in the aid of these proceedings and should not have been used for taking unilateral action by the petitioner herself. I also informed the learned counsel that since the order dated 24.12.2007 was obtained by suppressing material facts and the unilateral actions of the petitioner amounted to overreaching this Board, I had no option but to dismiss the petition. The learned counsel for the petitioner submitted that instead of dismissing the petition leave be granted to him to withdraw the petition. I declined to his request for withdrawal stating that the petitioner cannot withdraw the petition after having taken unilateral advantage of taking over the control of the company during the proceeding and if at all the petitioner desired that the petition

should not be dismissed, she must be prepared to restore status quo ante with regard to the Board and the shareholding. Shri Chaddha, Advocate for the petitioner requested that instead of dismissing the petitioner he be given two days time to convince his client to restore the status quo ante and would file an affidavit to that effect. In view of this submission, not- withstanding the fact I had indicated that I would dismiss the petition, I reserved the order and I gave him liberty to apply. No affidavit was filed thereafter. Instead, by a letter dated 15.01.2008, one Shri Vineet, Khosla who was appointed as an additional director on 11.12.2007, sent a letter to this Board stating that they were willing to restore status quo ante but could not file an application which was ready, in view of the non availability of the counsel and hospitalization of the petitioner and that the said application would be filed within the next two days i.e. not later than 17.01.2008. However, no affidavit / application was filed even thereafter. CA 70 of 2008 dated 15th January was filed on 30.01.2008 by the company affirmed by the same Shri Vineet Khosla and was mentioned on 31.01.2008.

5. It is to be noted that it was the learned counsel for the petitioner who requested this Board not to dismiss the petition but to give him some time to convince his client to restore status quo ante and accordingly I reserved the order and granted liberty. However, it is Shri Vineet Khosla who was appointed as an additional director on 11.12.2007 who has filed this application stating "Irrespective of the fact that the actions that have been taken by the applicant company from 11.12.2007 are lawful as well as in the bonafide interest of the company, it shall undo all the steps taken on the count of prejudice claimed by the respondents (namely, composition of the board of status quo ante as of 11.12.2007 and then proceed as per the wishes and guidance, and directions of this Hon'ble Board". In the prayers to the application, the applicant has sought for upholding that the respondents 2,3 and 4 are no longer additional directors; for accepting the resignation of the additional directors appointed on 11.12.2007 and 18.12.2007; for authorizing the petitioner to appoint

additional directors; to maintain the percentage shareholding by offering shares to the 2nd respondent and his group in the same manner as was done on 18.12.2007; till then for freezing the voting rights on the shares issued on 18.12.2007 and to authorized the board constitute by the petitioner to decided on the location of the registered office. There is no mentioned about Form no. 32 filed by the company on 08.12.2007 regarding cessation of office by the 2nd, 3rd and 4th respondents which fact the petitioner came to know through inspection granted by this Board. The prayers made in the application would indicate what the applicant seeks is for more or less regularizing the further issue of shares as well as to recognized the cessation of office by the respondents 2 to 4. Thus it is evident from the application that while in the first paragraph having agreed to undo all steps taken, in the prayer, the applicant has sought for more or less regularizing the acts done.

6. The contents of the application would indicate that the applicant has not understood the grounds on which I had indicated on 08.01.2008 that the petition was deserved to be dismissed. It has not dealt with the suppression of the material facts in the application dated 24.12.2007 regarding appointment of additional directors and further issue of shares for taking unilateral action on discovery of material / information during the inspection ordered by this Board which are to be used only in the aid of the proceedings etc., It has only elaborated that everything was done in the interest of the company.

7. I heard on the application. Without mentioning anything about restoration of the status quo ante in regard to the shareholding and directorship, Shri Chaudhary, Sr. Counsel for the applicant only desired that the petitioner, being the only and single validly appointed director be permitted to appoint additional directors to carry on the affairs of the company. When I asked him as to why in the application dated 24.12.2007 on which ex-p[arte order was obtained, the fact of appointment of two additional directors and issue of further

shares on 18.12.2007 had not been disclosed, he contended that it was not necessary to disclose the same as no relief was claimed on that basis in the application. This contention has to be straight away rejects as, if the same had been disclosed, either the order, being ex-parte, would have been different or I would have declined to pass any ex-parte order. Shri Vibhu Bakru, counsel for the respondents brought to my notice that having undertaken before this Board on 08.01.2008 that an affidavit affirming the restoration of the status quo ante would be filed within 2 days, the petitioner had caused a suit filed in Delhi High Court by an erstwhile shareholder and obtained a status quo order as on 11.01.2008 and thereafter, at the instance of the respondents, the said shareholder withdrew the suit. Only after the suit was withdrawn at the instance of the respondents, this application has been filed by the petitioner. The counsel for the petitioner submitted that the petitioner had not caused the suit being filed by the said shareholder and since according to the respondents that the suit was withdrawn at their instances, even the suit should have been filed at their instance only with the view to prejudice the mind of this Board that the petitioner had filed the said suit. I do not propose to take cognizance of the said suit except to note that in that suit, the status quo order as on 11. 01.2008 no longer survives in view the suit having been withdrawn.

8. In a proceedings under Sections 397/398, the Board exercises equitable jurisdiction. Therefore, a person who approaches this Board should not only come with clean hands, he should maintain the same during the proceedings. His conduct is also an important factor in the proceeding. Unfortunately, in the present case both CA 572/2007 and 70/2008 have been filed in the name of the company. How and under what authority the same have been filed is not disclosed. In other words strange things are happening in this case. Whether the petitioner is at all involved in these applications is not clear. However, getting an ex-parte order by suppression of material facts, changing the composition of the Board and increasing the share capital during pendency of the proceedings etc. would definitely indicate that the petitioner /

applicant have tried to over reach this Board and as I had indicated ruing the hearing, on these grounds alone the petition could be dismissed. However, having reconsidered the matter, I have decided not to dismiss the petition except undoing what has been done.

9. Accordingly, I restore the status quo with regard to the composition of the Board and the shareholding as existed on the day of filing of the petition and direct the ROC not to take on record any document filed by the company on or after 01.12.2007. The shares issued on 18.12.2007 stand cancelled and the additional directors appointed on 11.12.2007 and 18.12.2007 will cease to be additional directors with immediate effect. The company/board of directors/ respondents shall maintain status quo with regard to the shareholding and fixed assets of the company as it stood at the time of filing of the petition and the board should not take any substantive decision on the finances of the company.

10. Replies to all pending applications are to be filed by 28.02.2008 and rejoinders to be filed by 20.03.2008. All these applications together with the application under Section 8 of the Arbitration Act will be heard on 25.03.2008 at 10.30 AM."

37. The respondents have also challenged the same vide Contempt Case C. 215/2008 against Petitioner no.2 & 3, which is also pending before this Court for adjudication.

38. It is informed that in A.A. 93/2008 vide order dated 29.02.2008, the

consent order was passed thereby, the Tribunal was constituted and the matter was referred for adjudication.

39. The company Montreaux Resorts Pvt. Ltd., and respondent no. 1 filed the Review Petition against the said order. Same was dismissed as not maintainable.

40. Thereafter, fresh application has been moved by the respondent under Section 11 of the Arbitration and Conciliation Act. Mr.Deepak Khosla, Respondent no. 2 has stated at Bar that he is going to withdraw the said application and this Court consider it as withdrawn.

41. Further it is informed that the Petitioner has also moved application U/s 11 of the Arbitration and Conciliation Act, which is pending for adjudication.

42. On 01.12.2011, respondent No.2 Deepak Khosla has argued that C.A.No.1170/2008 that the instant petition is a civil contempt and not a criminal contempt petition. Where it is criminal contempt petition, the concept of locus standi perhaps may not have been as rigidly applied. In the instant petition being the civil contempt could only lie when preferred by a party, who has a locus standi to prefer the same i.e. one who seeks correction of the wrong done to him because he is otherwise entitled to the benefit of a specific Court order in his favour and which order is alleged by him to have violated by alleged contemnors. If they are not directors or shareholders of MRL, they have not suffered any prejudice by the alleged violation of the order dated 31.01.2008 passed by Company Law Board, meaning thereby that they have no locus standi to prefer the present contempt petition.

43. He has relied upon the decision of this Court in M/s.Nibro Ltd v. National Insurance Company Ltd AIR 1991 (Delhi) 25 wherein this Court has ruled that no director can represent any company before a Court in any legal proceedings unless authorized to do so by virtue of resolution specifically passed in his favour by the directors in a meeting of its body. It

is stated that suit can be presented by a duly authorized agent or by an advocate duly authorized by him for the purpose. This authorization, in the case of a company can be given only after a decision to institute suit is taken by the Board of Directors of the company. The Board of Directors may, in turn authorize a particular director, principal officer or the secretary to institute a suit.

44. Vide instant application, the applicant has prayed as under:-

"1. Recall its order dated 17-3-2008 and/or hold it in abeyance till such time the petitioners file evidence of their locus standi in preferring the petition.

In the alternative:-

Direct the Petitioners as under:

a) Direct the petitioner Nos.2 & 3 to place before this Hon'ble Court the entire chain of documents and records they wish to reply upon to lay claim to being lawful Directors of petition No.1 company, including but not restricted to the documents listed at Annexure

b) Direct the petitioner Nos.3 (and/or 2 and 3) to place before this Hon'ble Court the entire chain of documents and records they wish to rely upon to lay claim to being lawful representative(s) of Petitioner No.1 Company, including but not restricted to the documents listed at Annexure 5.

c) Direct the petitioner No.2 to place before this Hon'ble Court the entire chain of documents and records he wishes to rely upon to lay claim

to being lawful shareholder of Petitioner No.1 Company, including but not restricted to the documents listed at Annexure 6.

2. Pass ex parte orders on prayers (1) above."

45. Mr.Deepak Khosla, respondent /contemnor No.2 has referred to Section 257 of the Company Act and submitted that the regular directors can be appointed by election of shareholders for a particular period. Under Section 260 of the Company Act, the tenure of the director is only upto next AGM. Therefore, he submits that until and unless, on each and every thing is cleared, and the petitioners filed the documents and lead evidence, these proceedings cannot be go on and prayed that the proceedings be adjourned sine die in these cases.

46. I note, in these matters, there are claims and counter-claims, allegations and counter-allegations. It is impossible to adjudicate these matters in these proceedings, since complex question of facts requiring full fledged trial has to be conducted, which is not possible in contempt jurisdiction.

47. It is pertinent to mention here that more than 20 Hon'ble Judges of this Court have been rescued from these proceedings.

48. In my opinion, at best, keeping the allegations and counter-allegations in view, it can be settled either in the Civil proceedings or by the Arbitrator as informed by the parties that application U/s 11 of the Arbitration and Conciliation Act is pending for adjudication.

49. Therefore, in my opinion, these mattes be adjourned sine die till the allegation and counter-allegations are properly adjudicated at a forum where evidence would be led.

50. Ordered accordingly.

SURESH KAIT, J

DECEMBER 15, 2011 jg/Mk