Mr. R.P. Khosla vs Anand Mohan Mishra (Adv.) & Ors.
2020 Latest Caselaw 2395 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                           Reserved on: 12.05.2020
                                         Pronounced on: 13.08.2020

+      CRL. M. (CO.) 4/2019

       MR. R.P. KHOSLA                                  ..... Petitioner
                     Through:          Mr. Deepak Khosla, Advocate.

                          versus

       ANAND MOHAN MISHRA (ADV.) & ORS.                   ..... Respondents
                  Through: None.

       CORAM:
       HON'BLE MS. JUSTICE JYOTI SINGH

                              JUDGEMENT

1. Present Petition has been filed by the Petitioner under Section 340 Cr.PC seeking prosecution of the Respondents herein for alleged offence of perjury committed by making false and contradictory averments in the Counter Affidavit filed by Respondent No.3 on 24.02.2010 in C.C.P. (Co.) No. 1/2009 before this Court in Company Appeals (SB) Nos. 6 & 7 of 2008 titled Montreaux Resorts Pvt. Ltd. and Ors vs. Vikram Bakshi & Ors.

2. The genesis of the Petition is in the chequered history of litigation in which the parties herein (hereinafter referred to as the „Khosla Group‟ and the „Bakshi Group‟) have remained embroiled. Fulcrum of the dispute between the parties relates to a land in Kasauli, District Solan,

Himachal Pradesh, owned by the Petitioner and his family. In order to develop the estate into a Resort, a Memorandum of Understanding (MOU) dated 21.12.2005 was entered into between Mr. Deepak Khosla, Mr. R.P. Khosla, MRL and Mr. Vikram Bakshi. The project was joint venture between the Khosla Group and Mr. Vikram Bakshi. Bakshi Group was to finance and manage the entire project while MRL was the special purpose vehicle for the execution of the project. The terms of the MOU required transfer of shareholding in MRL by Khosla Group to Vikram Bakshi on certain conditions.

3. Pursuant to the MOU dated 23.12.2005, Mr. Vinod Surah and Mr. Wadia Prakash (nominees of Mr. Vikram Bakshi) were appointed as Additional Directors of MRL. An agreement dated 31.03.2006 was executed between Ms. Sonia Khosla, wife of Mr. Deepak Khosla, Mr. R.P.Khosla, MRL and Mr. Vikram Bakshi, whereby 51% shareholding in the Company was transferred to Mr. Vikram Bakshi.

4. However, the Project never took off and certain inter-se disputes led to a Petition being filed, under Sections 397 and 398 of the Companies Act, 1956, by Ms. Sonia Khosla, against Bakshi Group.

5. Principle grievance in the petition was the reduction of her shares in the Company from 49% to 36% and mismanagement of the affairs of the Company in a manner oppressive to the minority shareholders. Direction was thus sought to remove the Directors, who were, nominees of the Bakshi Group, from the Board of Directors of the Company.

6. Mr. Vineet Khosla also filed an application claiming himself to be the Director of the Company and alleging that Mr. Wadia Prakash and Mr. Vinod Surah (Bakshi Group) had ceased to be the Directors of the Company on 30.09.2006, as they were not confirmed in the said Annual General Meeting (AGM) of the Company. On this ground the subsequent appointment of Mr. Vikram Bakshi, by them, was also questioned.

7. On 18.12.2007, according to the Khosla Group a meeting of the Company was held by Ms. Sonia Khosla and Vineet Khosla, wherein Mr. Deepak Khosla and Mr. R.K. Garg were appointed as the Directors of the Company and Board of the Company allotted 6.58 lakhs equity shares to eleven persons of the Khosla Group. Bakshi Group naturally took a stand that this meeting was illegal and consequently Mr. Wadia Prakash and Mr. Vinod Surah continued to be the Directors and appointment of Mr. Vikram Bakshi by them, was valid.

8. The Company Law Board (CLB), on 31.01.2008 directed maintaining of status quo with regard to the shareholdings and the Directors of the Company as on 13.08.2007, the date of filing of the Petition.

9. Aggrieved, Mr. R.P. Khosla assailed the order by an appeal in this Court, being Co. Appeal (SB) No. 7/2008, but the same was disposed of on 11.04.2008. Ms. Sonia Khosla also challenged the order, but the Appeal being Co. Appeal (SB) No. 6/2008 was dismissed on 22.04.2008. Both, then filed Review Petitions but these Petitions were also dismissed on 06.05.2008.

10. In the meantime before the CLB, the Bakshi Group, before filing a reply to the Company Petition, filed an Application being C.A. No. 01/2008 for vacating the order dated 24.12.2007, whereby CLB had directed deferment of the Meeting scheduled on 26.12.2007 between Mr. Vineet Khosla, Mr. Vinod Surha and Mr. Wadia Prakash. Significantly it was claimed in the Application that Mr. Surha and Mr. Prakash were confirmed as Directors of the Company in AGM held on 30.09.2006. The Petitioner herein claims that after copies of the Minutes of Meeting dated 30.09.2006 were made available to him, he came to know that they were never confirmed or elected as Directors of the Company and Ms. Sonia Khosla was the only Director. He also learnt that Ms. Sonia Khosla‟s presence was shown in the meeting, who, according to the Petitioner, was allegedly in London on the said date. The CLB disposed of C.A. No. 1/2008 and quashed the appointment of the three Additional Directors appointed by Ms. Khosla on 11.12.2007 and 18.12.2007, respectively.

11. At this juncture Ms. Sonia Khosla filed an application under Section 340 Cr.PC before the CLB alleging filing of forged documents before the CLB. During its pendency another Petition Crl. Misc. (Co.) No. 3/2008 was filed in this Court seeking prosecution of the Respondents under Sections 195(i)(b)(ii) read with Section 340 Cr.PC, alleging that the Minutes of the AGM of the Company held on 30.09.2006 were forged. Inaction by the CLB was sought to be the reason for approaching this Court. Litigation between the parties at this stage took a new dimension and triggered several cases being filed in this Court and finally before the Supreme Court.

12. The Application for perjury was based on the alleged false claims made by the Bakshi Group in C.A. No. 1/2008, including forgery in the Minutes of the AGM dated 30.09.2006. The main premise of the allegation was the presence of Ms. Sonia Khosla in the Meeting, whereas, according to her, she was in London on the said date. Copies of the passport of Ms. Sonia Khosla showing her departure for London on 16.09.2006 and arrival in India on 03.10.2006.

13. In Crl. Misc. (Co.) No. 3/2008, this Court passed an order on 15.02.2010 directing Registrar (Vigilance) to conduct an enquiry into the genuineness of the Minutes of the AGM dated 30.09.2006, which order was challenged by the Bakshi Group in Supreme Court in SLP (Crl.) No. 6873 of 2010.

14. Co. Appeal (SB) No. 23/2009 was filed by Mr. R.K. Garg who was aggrieved by his removal as a Director due to the interim order of the CLB. Vide Order dated 13.04.2010 this Court stayed the CLB order to the extent it cancelled the shareholdings of Mr. Garg and his Directorship. This order of 13.04.2010 was also challenged before the Supreme Court by the Bakshi Group in SLP(C) No. 23796-23798/2010.

15. In the meantime a Contempt Petition was also filed before this Court being C.C.P. (Co.) No. 1/2009 alleging willful disobedience of the Orders passed by this Court on 11.04.2008 in Co. Appeal (SB) No. 7/2008 and the Order dated 22.04.2008 in Co. Appeal (SB) No. 6/2008. This petition was withdrawn on 05.11.2009 with liberty to file with proper array of parties.

16. Relevant it is here to note that the before the Supreme Court both the Groups candidly agreed that while both the SLPs arose out of the proceedings in the High Court, but had their origin in the interim order dated 31.01.2008 passed by the CLB. It was also agreed that once the Company Petition was itself decided, the issue whether Board Meeting dated 14.12.2007 was illegal or whether AGM dated 30.09.2006 was bad in law, would be decided. The Petitioner Group also fairly conceded that while deciding the various issues, CLB would also be in a position to decide whether Minutes of the AGM held on 30.09.2006 were forged or not and the Application under Section 340 Cr.PC filed before CLB would be taken care of.

17. Based on the two groups agreeing on this course of action, the Supreme Court observed that the agreement between the parties on the procedural course of action would put quietus to the matters before the Supreme Court. Accordingly, with the consent of the parties the following order was passed by the Supreme Court:-

"21. In fact, though the learned Senior Counsel for the parties had argued the matters before us at length on the previous occasions, at the stage of conclusions of the arguments, the learned Senior Counsel Mr. Cama appearing for Khosla Group suggested for an early decision of the Company Petition before the CLB as a better alternative so that at least main dispute between the parties is adjudicated upon at an early date. He was candid in his submission that the issues which are subject matter of these two Special Leave Petitions and arise out of the proceedings in the High Court, have their origin in the orders dated 31.1.2008, which is an interim order passed by the CLB. He thus, pointed out that once the

Company Petition itself is decided, the issues involved therein namely whether Board meeting dated 14.12.2007 was illegal or whether Board meeting dated 30.9.2006 was barred in law would also get decided. In the process the CLB would also be in a position to decide as to whether minutes of AGM of the Company allegedly held on 30.9.2006 are forged or not and on that basis application under Section 340 Cr. PC which is filed before the Company Law Boared would also be taken care of by the CLB itself. Learned Senior Counsels appearing for the Bakshi Group immediately agreed with the aforesaid course of action suggested by Mr. Cama. We are happy that at least there is an agreement between both the parties on the procedural course of action, to give quietus to the matters before us as well. 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 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.

22. The only aspect on which some directions need to be given are, as to what should be the interim arrangement. The Bakshi Group wants orders dated 31.1.2008 passed by CLB to continue the interregnum. The Khosla Group on the other hand refers to orders dated 11.4.2008 as it is their submission that this was a

consent order passed by the High Court after the orders of the CLB and, therefore, this order should govern the field in the meantime..

23. After considering the matter, we are of the opinion that it is not necessary to either enforce orders dated 31.1.2008 passed by the CLB or orders dated 11.4.2008 passed by the High Court. Fact remains that there has been a complete deadlock, as far as affairs of the Company are concerned. The project has not taken off. It is almost dead at present. Unless the parties re-concile, there is no chance for a joint venture i.e. to develop the resort, as per the MOU dated 21.12.2005. It is only after the decision of CLB, whereby the respective rights of the parties are crystallised, it would be possible to know about the future of this project. Even the Company in question is also defunct at present as it has no other business activity or venture. In a situation like this, we are of the opinion that more appropriate orders would be to direct the parties to maintain status quo in the meantime, during the pendency of the aforesaid company petition before the CLB. However, we make it clear that if any exigency arises necessitating some interim orders, it would be open to the parties to approach the CLB for appropriate directions.

24. Both these petitions are disposed of in the aforesaid terms. All other pending I.As including criminal contempt petitions and petitions filed under Section 340 Cr. PC are also disposed of as in the facts of this case, we are not inclined to entertain such application. No costs."

18. After the order of the Supreme Court, Crl. Misc. (Co.) No. 3/2008 filed under Section 340 Cr.PC seeking initiation of proceedings for perjury alleging that the Minutes of AGM dated 30.09.2006 were forged and in which the Court had directed the Registrar (Vigilance) to conduct

an inquiry was dismissed by the Court. The Court was of the view that in view of the Order dated 08.05.2014 passed by the Supreme Court all the disputes were now required to be adjudicated by the CLB/NCLT and the order of the Supreme Court superseded the orders and directions earlier passed by the Court in the said Application being C.A. No. 1089/2018. Relevant part of the order is as under:-

"14. 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.

15. 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.

16. 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.

17. 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."

18. 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.

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

19. In the present Petition the Petitioner alleges that pleadings by the Respondents in the counter affidavit filed in C.C.P. (Co.) No. 1/2009 are replete with false statements and reliance has been placed on forged and fabricated documents. Mr. Deepak Khosla argues that it is stated in the affidavit on oath that Mr. Vinod Surha and Mr. Wadia Prakash were elected as Regular Directors in the Extraordinary General Meeting (EGM) held on 28.06.2006, which is in stark contrast to the previous stand in C.A. No. 1/2008 that they were elected to a further tenure in AGM held on 30.09.2006 and this Court had even ordered an inquiry vide order dated 15.02.2010. Various other alleged contradictions/false statements have been pointed out during the arguments by Mr. Khosla. Relevant it would be to extract a portion from the pleadings in the present petition as under:-

"That the 5 false statements made by Prospective Accused No. 2 (Mr. Vinod Surha) in pleadings drafted by Prospective Accused No. 1 (Advocate Anand Mohan Mishra) are to the effect that:

a) He (Mr. Vinod Surha) and Mr. Wadia Parkash were elected as Regular Directors in the EGM held on 28-6- 2006; this is in stark contrast to their previous stand taken in CA No. 1 of 2008 to the effect that they were elected to further tenure in the AGM held on 30-9-2006, and for which this Hon'ble Court, as per its order dated 15-2-2010 passed in Crl. Misc. (Co.) No. 3 of 2008, has already directed the Registrar (Vigilance) of the Hon'ble Delhi High Court to cary out a "Preliminary Enquiry".

From the very fact that they have claimed in CA No. 1 of 2008 that they were elected in the AGM allegedly held on 30-9-2006 further proves that no EGM took place on 28-6- 2006 and for they were not elected in the said EGM for the simple reason that if they had been elected in the EGM, then there would have been no need for them to have claimed that they were elected in the AGM allegedly held subsequently on 30-9-2006.

b) No false statement has been made by them in CA No. 1 of 2008 filed on 1-1-2008 before the Hon'ble Company Law Board; in other words, they have falsely stated thereby that:

- the AGM for 2005-06 was held on 30-9-2006, and

- that its Minute is not forged, and

- that they were elected to further tenure in the AGM held on 30-9-2006, and

- that the proposal of their election was set out in the Notice for the said AGM and in its accompanying Agenda ;

c) Notices were issued for Board and Shareholder meetings in accordance with the provisions of the Companies Act (i.e. in writing).

d) Mrs. Sonia Khosla signed the Form 32 filed by them with the Registrar of Companies in January 2006, and that the Form 32 with the Registrar of Companies is the correct document.

e) Not even a single penny has been contributed by Mrs. Sonia Khosla to the Company.

There are other numerous false statements also, but which are not being adverted to in the present proceedings, and which is without prejudice to the rights of the applicant to raise them in due course."

20. Broadly understood, the claim of the Petitioner is that if the claim of the Respondents in C.A. No. 1/2008 is that they were elected in the

AGM held on 30.09.2006, then no EGM took place on 28.06.2006 and they were not elected in the said EGM. As a corollary if they had been elected in the EGM then a claim of having been elected in the AGM held on 30.09.2006 is false and the Minutes are forged, making the Respondents liable to punishment for perjury.

21. In my view the allegations in the present petition, directly or indirectly touch upon the Minutes of the AGM of 30.09.2006, which is the subject matter of adjudication before NCLT. While Mr. Khosla urges that this petition can be independently decided as it relates to the alleged EGM and certain other issues raised therein, but on a holistic reading of the petition, this Court is of the opinion that any decision in the present petition will have a bearing on the genuineness of AGM dated 30.09.2006 and other aspects sub-judice before NCLT, as the controversies are intrinsically linked.

22. It is apparent from the order passed by the Supreme Court, which was a consent order, that the parties chartered a course of action for further litigation and the path chosen was to have the entire dispute decided before the then CLB (now NCLT). In fact, it was the Petitioner Group which had put forth before the Supreme Court that once the Company Petition is decided, the connected issues of the alleged illegalities in the various Board Meetings would be taken care of, including allegations qua AGM held on 30.09.2006. In this light Supreme Court directed the CLB to decide the Co. Pet. No. 114/2007 as also the Application under Section 340 Cr.PC. Apposite would it be to emphasize that the Supreme Court categorically directed the High Court not to

proceed with Crl. Misc. (Co.) No. 3/2008 and the said petition has been dismissed by this Court, in the light of the observation of the Supreme Court.

23. It is not disputed by Mr. Khosla that the NCLT is even currently seized of the Petitions/ Applications, as referred to in the order of the Supreme Court, between the two Groups. Thus in the light of the order of the Supreme Court, it is not proper for this Court to entertain the present Petition at this stage. Petitioner may approach the NCLT, in accordance with law, if so advised.

24. In all probability once the proceedings pending before the NCLT end, the creases shall be ironed out with respect to the EGM also. Nonetheless, in case the issues raised herein still survive after the proceedings end before NCLT, it shall be open to the Petitioner to approach this Court, in accordance with law.

25. It is made clear that this Court has not expressed any view on the merits of this case or with respect to any inter-se litigation between the parties.

26. Petition is accordingly disposed of with no orders as to costs.

JYOTI SINGH, J

August 13th , 2020 yo