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High Court of Delhi
MANMOHAN SINGH, J.
Solitaire Ventures Pvt. Ltd. & Others - Appellants
Versus
Vipul Sez Developers Pvt. Ltd. & Others - Respondents
O.M.P. Nos. 1123 of 2012, 551, 624 of 2014 & I.A. Nos. 10790, 15112, 15117 of 2014
Decided on: 10-03-2015
Specific Relief Act, 1963 - Section 9, 14, 41(e) - Collaboration Agreement - Serious dispute - Specific performance - Petitioners entered into the Joint Development and Collaboration Agreement - Serious dispute between the parties as to whose default resulted in the non compliance of the terms of the MOU - Rival stands of the parties including the respondent no. 2 attributing faults at each other are required to be examined in detail prior to arriving at the finding conclusively - It would not be possible to award the specific performance of the contract by insisting the compliance of the terms till the time it is thrashed out during the course of the arbitral proceedings as to which of the parties conduct resulted in to the breach of the obligations of the MOU - It would be wise to refer the dispute as to the specific performance of the MOU as well to the arbitral tribunal which is already seized of the matter as against deciding the same at the interim stage - Whatever are the losses shall definitely be in terms of the money and can conveniently form part of the claim of the arbitral tribunal and as such on this count as well, no interim relief of the specific performance is warranted which were filed during the course of hearing of main OMP.
Arbitration and Conciliation Act, 1996 - Section 9 - Power of Court - Appointment of receiver - Referring to arbitral tribunal - Court is empowered to appoint the Court Receiver for securing the compliances - In view of the disputed position between the parties imputing faults on each other which have resulted into breaches - In such an event, it is proper to leave this aspect on the arbitral tribunal to determine and thereafter pass any interim order appreciating the material available on record - Arbitral tribunal would have the advantage of going into in depth analysis on the aspect of the causes of the breaches and can appropriately devise a mechanism in which the compliances can be insisted under the agreement after forming a considered view in the matter - There is a dispute between the investors - They may raise the inter-se dispute as well as claims and counter-claims before the Arbitral Tribunal in accordance with law - Investors are also entitled to raise the claims and counter-claims against respondent No.2, i.e. before the Arbitral Tribunal - No interim order is passed.
1. The petitioner No.1 in OMP No.1123/2012 is M/s. Solitaire Ventures Pte. Ltd., a Private Limited Company Registered under the Singapore Companies Act. The petitioner No.2 is M/s. Solitaire Capital India, a Trust established under the laws of India, having its Registered Office at S-38, Greater Kailash-II, New Delhi-110048. It is a Venture Capital Fund registered with SEBI. The petitioner No.1 is one of three investors of the suit project.
2. In the present petition, i.e. OMP No.1123/2012 filed under Section 9 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the “Act”), the petitioners, i.e. Solitaire Ventures (hereinafter referred as “the Petitioners”) have sought the following interim reliefs:
“(a) Pass an order restraining the Respondents, their directors, their nominees, officers, employees, representatives, servants and agents, from alienating or creating third party rights or interests in the assets (immovable and movable), land, liabilities, licenses and receivables of Respondent No.1 JVC and Respondent No.5 to 10;
(b) Pass an order restraining the Respondents, their directors, their nominees, officers, employees, representatives, servants and agents, from taking any steps to prejudice or impede the capitalization of investment by the Petitioners into equity share capital of the Respondent No.1 JVC by any action including refund of investment or cancellation of JDCA dated 29.08.2006 and/or cancellation of MOU dated 13.09.2008;
(c) Pass an order of status quo on the assets (immovable and movable), land, licenses and receivables of Respondent No.1 JVC and respondents No.5 to 10;
(d) Pass an order of status quo on the shareholding and directorship of Respondent No.1 JVC and Respondents No.5 to 10;
(e) Pass ex-parte interim or ex-parte ad interim orders in terms of the prayers above; and
(f) Pass any other or further order(s) as this Hon’ble Court may deem fit and proper in the facts and circumstances of the present case.”
3. The respondent No.1 Vipul SEZ Developers Pvt. Ltd. (hereinafter referred as Joint Venture Company or JVC) was originally formed by respondent No.2 Vipul Ltd. as a Special Purpose Vehicle (SPV) for the purpose of execution of SEZ project in Gurgaon, Haryana. Originally, the respondent No.1 was incorporated on 8th February, 2006 as Indica Estates Pvt. Ltd. and the name was subsequently changed to Vipul SEZ Developers Pvt. Ltd. on 27th June, 2006.
4. The respondent No.2 is M/s Vipul Limited. The respondent No.3 is M/s. Silverstone Developers Pvt. Ltd. who is second investor. Similarly, the respondent No.4 is M/s. Karamchand Realtech Pvt. Ltd, is the third investor.
5. The respondent No.5 is M/s. Ritwiz Builders and Developers Pvt. Ltd. The respondent No.6 is Entrepreneurs (Calcutta) Pvt. Ltd. The respondent No.7 is URR Housing Corporation Ltd. The respondent No.8 is KST Buildwell Pvt. Ltd. The respondent No.9 is PKBK Buildwell Pvt. Ltd. The respondent No.10 is PKB Buildcon Pvt. Ltd. The respondents No.2 to 10 are the Private Limited Companies registered under the Companies Act, 1956.
The case of the petitioners.
6. The petitioners entered into the Joint Development and Collaboration Agreement (“JDCA”) dated 29th August, 2006 for development of SEZ Project ("Project") over an area of approx. 150 acres (hereinafter called "Project Land") with respondent No.1 JVC & respondent No.2 wherein respondent No.2 owns 50.04% shares in respondent No.1 JVC, petitioners own 18.20% and other investors being respondent No. 3 and respondent No. 4 own 16.76% and 15% shares respectively in the said respondent No.1 JVC.
7. The petitioners invested Rs.58.85 Crores during 2006-07 in respondent No.1 JVC.
8. The respondent No.2 is the majority shareholder in respondent No.1 JVC and is in control of day-to-day affairs of respondent No.1 JVC. Respondents No.5 to 7 are subsidiaries of respondent No.2. It is t
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