Sonia Khosla vs Vikram Bakshi & Ors
2018 Latest Caselaw 7110 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI
                                       Judgement Reserved on: 19.09.2018
%                                    Judgment Pronounced on: 03.12.2018
+      CRL.M.(CO.) 3/2008
       SONIA KHOSLA                         ..... Petitioner
                          Through      Mr.Deepak Khosla, Adv.
               versus
       VIKRAM BAKSHI & ORS                  ..... Respondent
                      Through          Mr.Anand M.Mishra, Adv.

       CORAM:
       HON'BLE MR. JUSTICE JAYANT NATH

JAYANT NATH, J.

CA 1089/2018

1. The main petition has been filed by the petitioner under Section 340 Cr.P.C. seeking initiation of proceedings for perjury against the respondents alleging that the Minutes of the AGM of the Company dated 30.09.2006 were forged.

2. Broadly, the case of the petitioner is that false statements have been made by the respondents in their application being CA No. 1/2008 filed on 01.01.2008 before the Company Law Board in Co. Pet. 114/2007. They have also said to have filed forged Form 32 on the judicial record on 12.09.2007. It has been pleaded that the petitioner is shown to have been present in the Board Meeting on 30.09.2006 where some of the respondents were appointed as directors. However, the matter of fact is that the petitioner on that date was abroad in UK. This is apparent from her passport, flight tickets, etc.

CRL.M.(CO) 3/2008 Page 1

3. This court on 15.2.2010 had noted the fact that the respondents Shri Vinod Surha and Shri Wadia Prakash have claimed before the Company Law Board to have been appointed as the Directors of the AGM held on 30.9.2006 stating the petitioner to be present in the AGM while her passport shows that she had left India on 16.9.2006 and came back on 3.10.2006. The court noted that this aspect needs to be inquired into. The court also directed that before a complaint could be made a preliminary inquiry should be held. The Court directed that the Registrar (Vigilance) should hold a preliminary enquiry to the said aspect regarding genuineness of the Minutes of Meeting of the AGM held on 30.9.2006. This order of this court dated 15.02.2010 was stayed by the Supreme Court. Thereafter this court passed order dated 16.08.2010.

4. This present application has been filed Section 151 CPC to enforce order of this court dated 16.08.2010 and to initiate contempt proceedings against the said accused.

5. I may note that this court has on 16.08.2010 held as follows:-

"Co.Appln. No. 1299/2010 in Crl. M.(CO.) No. 3/2008 Learned counsel for the respondents submits that operation of the order of this Court dated 15.02.2010 has been stayed by the Supreme Court, therefore, the matter may be adjourned.

It is submitted on behalf of the petitioner that the aforesaid stay order has been obtained by the respondent by misleading the Court inasmuch as in their SLP they have referred to the judgment of the Supreme Court in Iqbal Singh Marwah vs. Meenakshi Marwah (2005) 4 SCC 370 wherein it was observed thus:-

"9. .....This being the scheme of two provisions or clauses of Section 195, viz., that the offence should be such which has direct bearing or affects the functioning or discharge of lawful duties of a public servant or has a direct correlation with the proceedings in a court of

CRL.M.(CO) 3/2008 Page 2 justice, the expression "when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in a Court" occurring in clause (b)(ii) should normally mean commission of such an offence after the document has actually been produced or given in evidence in the Court. The situation or contingency where an offence as enumerated in this clause has already been committed earlier and later on the document is produced or is given in evidence in Court, does not appear to be in tune with clauses (a)(i) and

(b)(i) and consequently with the scheme of Section 195 Cr.P.C. This indicates that clause (b)(ii) contemplates a situation where the offences enumerated therein are committed with respect to a document subsequent to its production or giving in evidence in a proceeding in any Court."

Petitioner submits that bare reading of the aforesaid observations made by the Supreme Court would show that the judgment in Iqbal Singh Marwah's case (supra) dealt with the provisions of Section 195 (a) (i) and Section 195(b) (ii) of the Code of Criminal Procedure (hereinafter referred to as the "Code") and not pertaining to the offence of perjury governed by Section 195 (b) (i) of the Code and it was not brought to the knowledge of the Supreme Court that the instant petition in which the order dated 15.02.2010 was passed related to the offence mentioned in Section 195(b)(i) of the Code. Thus, in effect, it is submitted by the petitioner that aforesaid say order which was passed by the Supreme Court has no bearing on this matter and at best, if that stay order is to be taken into consideration, that would amount to that all acts done pursuant to the order dated 15.02.2010 may not be taken into consideration while disposing of the petition. It is also contended that the respondents did not even inform the Supreme Court that the Registrar (Vigilance), pursuant to the order dated 15.02.2010 had already submitted his inquiry report in this Court and that the petitioner in not claiming any action

CRL.M.(CO) 3/2008 Page 3 for the offences mentioned in Section 195 (a) (i) or 195(b) (ii) of the Code.

On the other hand, learned counsel for the respondents submits that in view of the stay order, no further proceedings can be carried out in this matter till the stay is vacated or some clarificatory order is given by the Supreme Court. Learned counsel for the respondents further submits that as per the attendance recorded in the order of stay, petitioner was represented in the Supreme Court and also that it would not be appropriate to have two parallel inquiries into the allegations made in the petition; one suo moto inquiry by this Court and other by the Registrar (Vigilance).

I have considered the submissions made on behalf of respective parties. This is a petition seeking forwarding a complaint under Section 340 of the Code against the respondents in respect of the offence of perjury which is pending disposal for the last almost one year. The matter relates to criminal administration of justice, therefore, it would not be appropriate to refuse to proceed with the petition because of stay of operation of order dated 15.02.2010 if the petition can be disposed of without referring to the report of Registrar (Vigilance) pursuant to the inquiry conducted by him in furtherance of the aforesaid order of this Court.

The issue basically relates to the user of the AGM Minutes of M/s. Montreaux Resorts (P) Ltd. dated 30.09.2006 in the court proceedings to substantiate the plea of the respondents before Company Law Board, which minutes are claimed to be forged. On perusal of the copy of those minutes, it transpires that those have been authenticated by the respondent Vinod Surha and also reflect the presence of all the three respondents in the AGM, which is also claimed to have been attended by Sonia Khosla, one of the Directors whereas according to the petitioner, Sonia Khosla was not in India on that very day.

This controversy can be resolved without going into the inuiry report submitted by Registrar (Vigilance) pursuant to the order of this Court dated 15.02.2010 by asking the parties to file the affidavit. Petitioner and the respondents may file affidavit verifying whether or not any AGM was actually held on that date

CRL.M.(CO) 3/2008 Page 4 and they attended the same and whether or not Ms.Sonia Khosla was present in that meeting. Petitioner Sonia Khosla also shall produce her original passport with visa entries on the date fixed. List on 26.08.2010 at 2:15 p.m. for consideration of affidavits as well as for arguments."

6. The genesis of the present petition relates to a land in Kasauli, Dist. Solan, Himachal Pradesh. The land was owned by the petitioner/family of the petitioner. Some of the persons being part of the Petitioner Group entered into an MOU dated 21.12.2005 with Mr.Vikram Bakshi. The project was a joint venture between the Petitioner Group and Bakshi Group. There was to be some transfer of share holding in favour of Bakshi Group. Pursuant to the MOU, Mr.Vinod Surha and Mr.Wadia Prakash, nominees of Mr.Vikram Bakshi were appointed as additional directors of the Company Montreaux Resorts (P) Ltd.

7. Disputes arose between the parties. The petitioner filed a petition under Sections 397 and 398 of the Companies Act, 1956 before the Company Law Board (CLB).

8. There are events that arose thereafter. According, to the petitioner, Mr. Wadia Prakash and Mr.Vinod Surha ceased to be directors of the Company on 30.09.2006. Further, on 18.12.2007 in a purported meeting of the Company held Mr. Deepak Khosla and Mr. R.K. Garg were appointed as directors of the Company and the Board allotted 6.58 lakhs equity shares to 11 persons being part of the Petitioner Group. The Bakshi Group have stated that the alleged meeting of 18.12.2007 was illegal.

9. The CLB vide its order dated 31.01.2008 where the matter was pending directed the parties to maintain status quo with regard to the shareholdings and the directors of the Company as it existed on the date of

CRL.M.(CO) 3/2008 Page 5 filing of the petition i.e. 13.08.2007.

10. Three appeals were filed against the said order dated 31.01.2008 before this Court. Mr. R.P.Khosla, father-in-law of the petitioner herein filed an appeal being Co. A. (SB) No. 7/2008. This appeal was disposed of by order dated 11.04.2008.

Another appeal was filed by the petitioner being Co. Appeal (SB) No. 6/2008. This was disposed of on 22.04.2008. This court noted that as the matter is sub-judice before a panel of arbitrators, it would be appropriate that the parties maintain status quo with regard to the composition of the Board and shareholdings as it existed on the date of filing of petition before the CLB i.e. 13.08.2007.

11. The third appeal was filed by Mr.R.K. Garg who claimed that he was prejudiced by the order of the CLB dated 31.01.2008 as he had been removed as a director without a hearing. This company appeal being Co. A(SB) 23/2009 came up for hearing on 13.04.2010 when this court issued notice in the appeal and the application for condonation of delay and ordered that the operation of the impugned order dated 31.01.2008 as far as it cancels the shareholdings of the appellant and his directorship shall remain stayed.

12. Against the said order dated 13.04.2010 and on the maintainability of this petition and some other orders, an SLP being SLP No. 23796-98/2010 was filed by Mr. Vikram Bakshi before the Supreme Court. The SLP was disposed of by order dated 08.05.2014 with the directions to the CLB to decide Co. Pet. 114/2007 filed by the petitioner within a period of six months. The CLB was also directed to decide the application filed under Section 340 Cr.P.C. by the petitioner. Other orders were also passed.

CRL.M.(CO) 3/2008 Page 6

13. A perusal of the order of the Supreme Court dated 08.05.2014 would show that the Supreme Court has specifically directed that the High Court need not proceed further with the present Crl.M (CO.) 3/2008.

14. By the present application, the petitioner herein has submitted that further proceedings in the main petition have been transferred to the Company Law Board/NCLT in view of the judgment of the Supreme Court dated 8.5.2014 in SLP (Crl.) No.6873/2010 titled as Vikram Bakshi & Ors. vs. Sonia Khosla (Dead) By LRs. Yet he submits that this court would continue to have jurisdiction to adjudicate contempt arising out of orders passed by this court. Reliance is placed on the judgment of the Supreme Court in the case of Tayabbhai M.Bagasarwalla and another vs. Hind Rubber Industries Pvt. Ltd., AIR 1997 SCC 1240. He also submits that issue of limitation would not arise in the present case as proceedings have been initiated under Article 215 of the Constitution of India. Reliance is also placed on judgment of this Court in Ram Phal and Ors. vs. B.S.Bhalla and Ors., 112(2004) DLT 193 and judgment of the Supreme Court in Subramanian Swamy vs. Arun Shourie, (2014) 12 SCC 344.

15. Learned counsel appearing for the respondents submits that in view of the judgment of the Supreme Court in Vikram Bakshi & Ors. vs. Sonia Khosla (dead) By LRs being SLP (Criminal) 6873/2010 dated 8.5.2014 nothing further survives in the present case.

16. This petition stands disposed of with the following directions by the Supreme Court regarding the present proceedings:-

"21.....In view of the aforesaid consensus, about the course of action to be adopted in deciding the disputes between the parties, we direct the Company Law Board to decide Company Petition No.114 of 2007 filed before it by Ms.Sonia Khosla

CRL.M.(CO) 3/2008 Page 7 within a period of six months from the date of receiving a copy of this order. Since, it is the CLB which will be deciding the application under Section 340 Cr.PC filed by Ms.Sonia Khosla in the CLB, High Court need not proceed further with the Criminal Misc. (Co.) No.3 of 2008. Likewise the question whether Mr.R.K.Garg was validly inducted as a Director or not would be gone into by the CLB, the proceedings in Co.Appeal No.(SB) 23 of 2009 filed by Mr.R.K.Garg in the High Court also become otiose."

17. In my opinion, it is manifest from a reading of the above orders of the Supreme Court that this petition is not to be heard. Disputes raised by the petitioner are to be adjudicated upon by the Company Law Board/NCLT. The order of the Supreme Court dated 8.5.2014 supersedes the orders and directions passed by this court on 16.8.2010. The said order dated 16.08.2010 was passed to aid in adjudicating this petition. As the petition itself does not survive in this court to be adjudicated, the respondents were not required to comply with the order dated 16.08.2010. I need not deal with the other submissions of the petitioner.

18. There is no merit in the present application. No case of contempt is made out. Same is dismissed.

                                                    JAYANT NATH, J
DECEMBER 03, 2018
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CRL.M.(CO) 3/2008                                                        Page 8