Delhi High Court
Wimpy International Limited & Anr vs Kalvinder Singh Sandhu & Ors on 16 November, 2015
Author: Gita Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ EFA(OS) 18/2015 & CM No.10520/2015
Date of decision : 16th November, 2015
WIMPY INTERNATIONAL LIMITED & ANR ..... Appellant
Through: Mr. Arvind Nigam, Sr. Adv. with
Mr. Hrishikesh Baruah and Mr. Ishan
Das, Advs.
versus
KALVINDER SINGH SANDHU & ORS ..... Respondent
Through: Mr. Ravi Sikri, Sr. Adv. with
Mr. Anand Varma, Adv. for R-1
Mr. Sandeep Sethi, Sr. Adv. with
Mr. Gaurav Khanna and Mr. Giriraj
Subramanium, Advs. for R-2
Mr. Manav Gupta and Mr. Avinash
K. Sharma, Advs. for R-3
CORAM:
HON'BLE MS. JUSTICE GITA MITTAL
HON'BLE MR. JUSTICE I.S.MEHTA
JUDGMENT (ORAL)
GITA MITTAL, J
1. Dr. Sukhvender Kaur-appellant no. 2 is a share holder in M/s
Wimpy International Limited-appellant no.1 before us. It is
contended that a suit was filed by Mr. Kalvinder Singh Sandhu-
respondent no.1 against Mr. Kanwaljit Singh Sidhu-respondent no.3
in the High Court of Chancery at London which culminated in a
judgment and decree dated 8th May, 2009 in favour of Mr. Kalvinder
Singh Sandhu-respondent no.1. Respondent no. 1 has sought
execution of this decree by way of Execution Petition No. 172/2009
which is pending before the learned Single Judge on the Original Side
of this court.
2. In these execution proceedings, a dispute has arisen with regard
to transfer of the shareholding of the respondent no. 3 in favour of the
appellant no. 2. It is the contention of the decree holder/respondent
no. 3 herein that the alleged transfer is a sham transaction.
Premised on this contention of the respondent no.1, when the
execution came to be listed on 30th January, 2012, the learned Single
Judge passed an interim order of injunction precluding the non-
applicants from selling, transferring or alienating the property bearing
no. 245, Udyog Vihar, Phase-I, Dundahera, Gurgaon, Haryana in any
manner. The appellant herein filed an application being IA No.
174/2012 seeking vacation of the stay order inter alia on the ground
that the property was owned by and belonged to the appellant no. 1
company which was not a party in the litigation in the United
Kingdom nor in the execution proceedings. This application is stated
to be pending even on date.
3. On 1st October, 2013, the learned Single Judge heard counsels
on the objection of the respondent no. 2 with regard to the claim of
transfer of the shareholding of the respondent no.3-judgment debtor
to his wife Dr. Sukhvender Kaur-appellant no. 2 herein and expressed
a prima facie view that a forensic examination of the transfer
document was necessary. Learned counsel for Wimpy International
Ltd.-appellant no. 1 was present in the court and stated that he had no
objection to production of the relevant documents. This resulted in
the direction by the learned Single Judge to the appellant no.1 to
produce the (i) relevant share transfer forms; (ii) the minute books of
the company; (iii) the correspondence undertaken between the
Judgment Debtor, his wife Dr. Sukhwinder Singh and the company in
relation to the transfer of shares.
4. Our attention is drawn to the direction made on 30th April, 2015
whereby further directions were issued for production of original
documents.
5. Mr. Arvind Nigam, learned senior counsel for the appellants
however, submits that in the proceedings initiated by the decree
holder in England, this very contention that the transaction with
regard to transfer of shareholding was sham was pressed. It is
submitted that in these proceedings, a full-fledged trial was conducted
and a considered judgment came to be passed on 4th October, 2012 in
the proceedings between appellant no.2 and the respondent no.1. The
submission is that these findings would be binding in litigation
between these parties in all courts before whom such issue is urged
and consequently, so far as decision on this issue is concerned, in the
litigation between appellant no. 2 and the respondent no.1 before the
executing court cannot conduct such enquiry. The submission is that
for this reason, the directions made for production of documents on 1st
October, 2013 as well as 30th April, 2015 would be unwarranted. It is
submitted that this aspect was pointed out to the learned Single Judge
on 30th April, 2015. However, the learned Single Judge has not
adjudicated on this aspect of the matter and has proceeded further in
the proposed inquiry with regard to the transaction of transfer of
shareholding.
6. A perusal of the orders dated 1st October, 2013 would show that
it was premised on a no objection by learned counsel for the appellant
no. 1 to the production of the documents. The order dated 30th April,
2015 also records an undertaking on behalf of the company to
produce the directed documents. The agreement of the company to
produce these documents and to refer the same to the forensic science
laboratory was reiterated in the order recorded on 10th October, 2013.
These proceedings in the execution case have taken place after the
passing of the judgment dated 4th October, 2012 by the court in the
United Kingdom.
7. It is submitted by Mr. Sandeep Sethi, learned senior counsel
appearing for respondent no. 2 that further orders dated 10th October,
2013; 16th December, 2013 and 13th January, 2014 would show that
the appellant in fact had consented to the order dated 1st October,
2013 and have had no objection whatsoever to the production of the
documents.
8. Be that as it may, it has been pressed before us today that the
inquiry by the executing court is completely unnecessary and
unwarranted in view of the specific findings on the issue on which the
forensic examination has been directed in view of the binding
adjudication by the London court. We find that the learned Single
Judge on 30th April, 2015 has noted this objection on behalf of the
appellants before us and has directed that the order was being passed
without prejudice to this submission.
9. A perusal of the record before us would show that the appellant
has never contended before the executing court that it would stand
precluded from conducting the inquiry being undertaken by it in view
of the adjudication by the London court, though the factum of
adjudication has been placed before the court. On the contrary, the
orders placed before us record the consent of the appellant company
to the production of the documents as well as their willingness to
submit to the proposed forensic examination.
10. In the present appeal, the appellants assail the orders dated 30 th
January, 2012; 1st October, 2013 and 30th April, 2015. The first of
these impugned orders on 30th January, 2012 granted an interim
injunction and the appellants' application (IA No. 174/2012) seeking
vacation thereof is pending. Therefore, there is no final adjudication
of rights for which the present appeal could be entertained.
11. So far as the orders dated 1st October, 2013 and 30th April, 2015
are concerned, we are of the view that they do not adjudicate any
rights, let alone attach any finality to adjudication of such rights. For
this reason, these two orders are not appealable.
12. Mr. Arvind Nigam, learned senior counsel would still press the
objection with regard to the finality being attached to the adjudication
on the validity of the transaction of transfer of shareholding by the
London court adjudication. This issue has to be pressed before the
learned Single Judge and adjudication thereon sought before it could
be pressed in an appeal.
In view thereof, while dismissing the appeal, liberty is granted
to the appellant to raise the issue which is being pressed before us for
adjudication before the learned Single Judge.
13. On request of the appellant, they are given a period of two
weeks from today to seek such prayer before the learned Single
Judge.
Dasti to parties.
GITA MITTAL, J
I.S.MEHTA, J
NOVEMBER 16, 2015
kr
