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2012 Supreme(Bom) 2119
High Court of Judicature at Bombay
R.D. DHANUKA, J.
Masusmi SA Investment LLC
Versus
Keystone Realtors Pvt. Ltd. & Others
COMPANY APPEAL (L) NO. 47 OF 2012 IN COMPANY LAW BOARD NO. 57 OF 2012 ALONGWITH COMPANY APPLICATION (L) NO. 53 OF 2012 WITH COMPANY APPLICATION (L) NO. 56 OF 2012 WITH COMPANY APPEAL (L) NO. 25 OF 2012 IN CLB/CA/123/2011 IN CLB/CP/48/2011/MUMBAI BENCH WITH COMPANY APPLICATION (L) NO. 322 OF MUMBAI BENCH WITH COMPANY APPEAL (L) NO. 4 OF 2011 IN CLB/CA/139/2009 IN CLB/69/2009
Decided on : 06-11-2012
For the Applicant:Janak Dwarkadas, Senior Advocate, a/w. F. D'vitre, Senior Advocate, Zal Andhiyarujinia, Sharan Jagtiani, Sujit Suvarna, Chirag Mody, Samit Shukla, Mujaf Virjee, Ms. Anushka Sarda, i/b. DSK Legal, Gaurav Joshi, a/w. Chirag Mody, Ms. Anushka Sarda, i/b. DSL Legal, Ankit Lohia, a/w. Ms. Nayna Rane, i/b. D.H.Law, Advocates.
For the Respondents:R1, S.U. Kamdar, Senior Advocate, Ms. Pooja Patil, i/b. J. Sagar Associates, Rahul Chitnis, Counsel a/w. Chakrapani Misra, Devesh Juvekar, R. Arunadhri Iyer, Ms. Meghna Rajadhyaksha, i/b. Khaitan & Co., R2, Virag Tulzapurkar, Senior Advocate, Dhawal Mehta, Denzil Arambhan, Ms. Jasmine Seth, Krishna B. Moorthy, Ms. Helina Desai, Gautam Sahni, i/b. Wadia Ghandy & Co., Harish Pandya, Counsel, a/w. M.K. Banatwala, i/b. M.K. Banatwala, R3, Aspi Chinoy, Senior Advocate, Nikhil Sakhardane, Dhawal Mehta, Denzil Arambhan, Ms. Jasmine Seth, Krishna B. Moorthy, Ms. Helina Desai, Gautam Sahni, i/b. Wadia Ghandy & Co., R4, Pravin Samdhani, Senior Advocate, Dhawal Mehta, Denzil Arambhan, Ms. Jasmine Seth, Krishna B. Moorthy, Ms. Helina Desai, Gautam Sahni, i/b. Wadia Ghandy & Co., R5, R6 & R13, Ravi Kadam, Senior Advocate, Shyam Mehta, Senior Advocate, Mrs. Tanmayi Rajadhyaksha, Suraj Iyer, i/b. Ganesh & Co., R7, R8, R9, R10, R14, R15, R16 & R17, Simil Purohit, i/b. Kalpesh Joshi, R18, Ms. Ankita Singhania, Ashok Purohit, i/b. Ashok Purohit & Co., J.J. Bhatt, Senior Advocate, a/w. Gaurav Joshi, N.V. Vimadalal, Manish Doshi, i/b. Vimadalal & Co. for Evershine Developers, third party, Advocates.
1. By consent of parties, all the aforesaid company appeals were heard together on the preliminary issue raised by the respondents about the maintainability of appeal and are being disposed off by a common order.
FACTS IN COMPANY APPEAL (L) NO. 47 OF 2012:
2. By this appeal under section 10F of the Companies Act, 1956, the appellant challenges the order dated 12th October, 2012 passed by the Company Law Board (For short “CLB”) by which the CLB allowed the company application filed by respondent No. 2 under section 8 of the Arbitration & Conciliation Act, 1996 (For short “ the Arbitration Act, 1996”) and referred the parties to arbitration as contemplated under Article 58 of the Articles of Association and clause 20.4 contained in the agreement and as per the provisions contained in the Arbitration Act, 1996. Respondent no. 2 had filed application under section 8 in Company Petition No. 57 of 2012 filed by the appellant under section 397 and 398 read with section 402 of Companies Act, 1956 alleging certain acts of oppression and mismanagement in the affairs of the first respondent company and respondent nos. 5 to 7 by the respondents.
3. At the threshold, the learned counsel appearing for the respondent company in all the three matters raised preliminary objections about maintainability of the appeals under section 10F of the Companies Act, 1956. In view of the preliminary issue raised by the respondents, the learned counsel appearing for parties have addressed this court on the said issue raised by the respondents and have requested this court to decide the same as preliminary issue.
4. Some of the relevant facts for the purposes of deciding the issue involved in these appeals are as under:
(a) It is the case of the appellant that in the year 2009, respondent nos. 2 to 4 approached the appellant and respondent no. 18 with a proposal to invest in the first respondent company which was to be utilized in its subsidiaries. The first respondent applied to the Foreign Investment Commercial Board on 20th November, 2008. The said board accorded its approval on 9th February, 2009 to the application made by the first respondent. On 12th March, 2009, the appellant, respondent no. 18 and respondent no. 1, respondent nos. 2 to 4 (Promoters) executed Securities, Subscription and shareholders agreement.
(b) The appellant company filed company Petition (57 of 2012) before the CLB, Western Region Bench under section 397 and 398 read with section 402 of the companies Act, 1956 alleging certain acts of oppression and mismanagement in the affairs of respondent no1 and respondent nos. 5 to 7 by the respondents and sought various reliefs.
(c) In the month of August, 2012, respondent no.2 filed an application under section 8 of the Arbitration Act, 1996 (Company Application No. 116 and 120 of 2012) before the CLB relying upon clause 20.4 of the agreement, Article 58 of the Articles of Association and section 8 of the Arbitration Act, 1996. By an order dated 12th October, 2012, CLB allowed the Company Application No. 116 and 120 of 2012 and referred the parties to arbitration as contemplated under Article 58 of the Articles of Association and clause 20.4 contained in agreement and as per provisions of the Arbitration Act, 1996.
(d) During the pendency of the said application, CLB granted certain ad interim reliefs on 8th August, 2012 in favour of the appellant. The respondent nos. 1, 2 3, 5 and 7 filed appeal challenging the said interim order in this court under section 10F of the Companies Act. By order dated 14th August, 2012 passed by this court, interim order passed by CLB on 8th August, 2012 came to be set aside without going into the merits of the matters and the matter was remanded back to CLB for passing ad interim orders on all the applications after completion of the pleadings. By the said order, this court restrained respondent nos. 5 and 6 from creating any further third party rights pending the hearing before CLB. On 24th an
