Delhi High Court
Dr. Raj Kachroo vs D.S.M. Healthcare Pvt. Ltd. & Anr. on 8 February, 2016
$~10
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CO.A(SB) 56/2014 & CA 369/2016
DR. RAJ KACHROO ..... Appellant
Through: Petitioner in person.
versus
D.S.M. HEALTHCARE PVT. LTD. & ANR. ..... Respondents
Through: Mr. Neeraj Sharma and Ms. Archana
Lakhotia, Advs. for R2.
CORAM:
HON'BLE MR. JUSTICE RAJIV SHAKDHER
ORDER
% 08.02.2016
1. This is an appeal against order dated 2.9.2014. The impugned order
has been passed by the Company Law Board (CLB). The impugned order
came to be passed in an execution application filed by the appellant, being:
Execution Application No.47/2013.
2. The record shows that prior to the present proceedings, the parties had
approached this court in an earlier round. At that juncture, the appellant had
challenged order dated 21.12.2006, passed in Company Petition No.76/2004.
The order dated 21.12.2006 was also passed by the CLB. Vide order dated
21.12.2006, inter alia, the following operative directions were passed by the
CLB:-
"....Considering the fact that the company remains (sic)
closed for over two years and that the machinery stand
relocated and that the respondents have offered to hand over
the company along with the machinery to the petitioners
without any consideration, the petitioner may chose the
option of either taking the ownership/control of the
company or file a petition for winding up of the company.
No other relief can be granted in the facts of the case like
asking the 2nd respondent to pay back the investments made
by the petitioner as in a business venture, one has to take a
risk and in the present case, both the sides appear to have
lost their investment....."
3. By order dated 21.12.2006, the CLB had disposed of the company
petition. Inter alia, the CLB had given an option to the appellant herein to
take over the ownership/control of the said company, i.e. D.S.M. Healthcare
Pvt. Ltd. or, in the alternative, file a winding up petition qua the said
company.
4. It is the appellant who had, thereafter, filed an application before the
CLB being: CA 152/2007. This application was filed by the appellant on
1.3.2007. The said application came to be disposed of by order dated
3.9.2007.
5. The operative directions contained in this order are extracted hereafter
for the sake of convenience:-
"....During the hearing held on 28.8.2007, the counsel
appearing for the parties reiterated their stands in the
application/reply. In my order dated 21.12.2006, I gave
the option to the petitioner to take over the ownership and
control of the company only because the respondents had
agreed to hand over the company along with machinery
without any consideration. When a person takes over the
ownership/control of a company, he not only takes over
the assets but also the liabilities. From the letters of the
petitioners dated 1.1.2007 and 27.1.2007 (the receipt of
which is denied by the respondents), I find that the
petitioners had only sought for handing over of the
machinery and documents with a list of machines and
office equipments. There is no indication in these letters
that they would take over the company as a whole
including the liabilities. Since the respondents have given
personal guarantees, the petitioners should have also
agreed to replace the personal guarantees of the
respondents. These two letters do not talk of personal
guarantees or taking over of liabilities. From the list of
payments made by respondents, I find that in addition to
Rs.16 lacs paid to the bank as an one time settlement, the
respondents have also made payments before and after
the order of this Board dated 21.12.2006. In so far as the
payments made before the said, the respondents cannot
make any claim on the petitioners as the petitioners were
to take over the management and control of the company
as on the date of the said order. In so far as the liabilities
cleared by the respondents after the date of the said order
is concerned, the petitioners, in case they desire to take
over the ownership and control of the company, are
bound to reimburse the respondents especially since the
company has not been functioning since long and all the
payments have been out of their personal funds of the
respondents. In view of this, if the petitioners are still
interested in taking over the control of the company, they
should reimburse the respondents of all the amounts that
they have brought in for discharging the liabilities of the
company after the order dated 21.12.2006. The
petitioners should communicate their decision to the
respondents within 15 days from the date of this order
whether they are prepared to reimburse the respondents
of all amount brought in by them for discharging the
liabilities of the company after 21.12.2006 and also take
over the assets and liabilities as on date indicating the
time schedule within which they would reimburse. In
case they do so, the respondents should hand over the
complete control and management of the company to the
petitioners. In case, the petitioners are not interested in
doing so, then nothing survives in the application and
they may seek for winding up of the company.
The application is disposed of in the above terms...."
(emphasis is mine)
6. Aggrieved by the said order, the appellant preferred an appeal to this
court, as indicated above, which was numbered as Company Appeal (SB)
43/2007. The record shows that on the very first date, the appellant was able
to persuade this court to issue notice and stay the order dated 3.9.2007
passed by the CLB on his execution application. At that juncture, the
appellant had raised, it is submitted inter alia, an issue of law, which was,
that the CLB could not have, vide order dated 3.9.2007, passed in a
contempt petition, an order which modified the order dated 21.12.2006.
7. It appears that while the appeal was pending, the then learned Single
Judge of this court attempted to have the matter resolved. In support of this
contention, the appellant, who appears in person, has drawn my attention to
the order dated 24.8.2009 and 24.8.2010, passed by the learned Single
Judge. A reading of the order would show that the matter was also referred
to Delhi High Court Mediation and Conciliation Centre.
8. Evidently, the attempted mediation, failed. The said appeal, i.e.
Company Appeal (SB) 43/2007, came to be disposed of, on 26.7.2012.
9. The learned Single Judge passed a detailed order dismissing the said
appeal.
10. The appellant, instead of carrying the matter further by way of an
appeal to a superior court, rested with the order dated 26.7.2012.
11. It is in this background that the appellant moved the CLB, once again,
by way of an execution application.
12. In sum, the appellant contended both before the CLB and before me
that the order dated 3.9.2007 ought to be enforced as he had exercised his
option within two days of having received a certified copy of the order dated
26.7.2012. The CLB, however, by virtue of the impugned order dismissed
the execution application.
13. The appellant before me, as indicated above, has contended likewise.
It is his submission that on, the order dated 26.7.2012, having being passed,
he had immediately, applied for issuance of a certified copy on the very next
date, i.e. on 27.7.2012 and, on having received a certified copy on
14.8.2012, he exercised, his option on 16.08.2012.
14. It is, therefore, the appellant's contention that he had within the
fifteen-day window-period exercised the option, granted by the CLB. The
apparent delay was sought to be explained by the appellant by putting forth
the fact that there was a stay operating qua the order dated 3.9.2007, and
hence, he could not have exercised the option prior to the disposal of the
appeal and receipt of the certified copy of the order.
14.1 The CLB, as indicated above, vide the impugned order has rejected
the contention of the appellant that he had exercised the option granted
within the fifteen days period granted to him. The relevant observations
made in the CLB's order are called out hereafter:
"....6. After hearing the Ld Counsel for the parties, I find
merit in the contention of the Ld. Counsel for the
Respondents. In view of the fact that Shri Rohan
Thawani, Ld. Counsel of the petitioner was present
before the Company Law board on the date of the order
dated 3.9.2007 passed in CA 152/2007, and before the
High Court of Delhi on 26.7.2012 i.e. the date of the
order dismissing the appeal, the knowledge thereof on
such dates to the petitioner can safely be attributed.
Similarly, since the order dated 26.7.2012 passed by the
High Court of Delhi was an oral order dictated in open
Court, the knowledge of such order must be attributed to
the petitioner on the same day in view of the fact that
Shri Rohan Thawani, Counsel for the petitioner, was
present before the High Court on the date of such order
and represented the petitioner from the very beginning till
date. Since no appeal was preferred by the Petitioner
against the order dated 26.7.2012, the date when he
received a certified copy of the said order looses (sic)
significance. Therefore, in any case, the exercise of
option on 16.8.2012 by the petitioner, Dr. Raj Kachroo,
was beyond the period of 15 days contemplated by the
order dated 3.9.2007. Therefore, it must be held that the
petitioner, having failed to exercise the option within 15
days from the date of the order dated 3.9.2007 and in the
worst case scenario from 26.7.2012 i.e. the date of the
final order passed by the High Court of Delhi in Appeal,
is not entitled to any relief.
Accordingly, the Execution Application No. 47/2013 is
dismissed....."
16. Having heard the appellant, according to me, what is standing in his
way is the order dated 26.7.2012. The appellant having not carried the
matter further, he would have to rest with the observations and findings
made in that order. The appellant's contention, however, being that he
wants the implementation of the order dated 3.9.2007, and that, the fifteen
days period granted to him to exercise the option, as provided therein, was
available to him, in my view, is a submission which is, untenable, given the
fact that the appellant had obtained a stay qua the said order, on 20.11.2007.
To my mind, it was always open to the appellant to approach the court at
any point in time for vacation of the stay and/or disposal of the appeal rather
than rest his fate with the order dated 3.9.2007. Apart from anything else,
much time has passed and since then, the respondent, appears to have
changed his position. In fact, there is a criminal proceeding, I am told, also
pending in the matter qua which respondent No.2, i.e. Sumeer Misri had to
approach this court by way of a proceeding under Section 482 of the Cr.P.C.
I need not comment on the said proceeding, as it is not before me. This fact
is being noted only to highlight the fact that there is much bad blood
between the parties.
17. Having heard the submissions of both sides, I am of the view that no
interference is called for qua the impugned order passed by the CLB.
18. Accordingly, the appeal is dismissed.
RAJIV SHAKDHER, J
FEBRUARY 08, 2016
s.pal
