An appeal becomes infructuous if a subsequent event resolves the underlying dispute, and continuation constitutes an abuse of process as it leads to forum shopping and re-litigation.

JUDGMENT

Manmohan, J.

CM APPL.39987/2017

1. Present application has been filed on behalf of the Respondents under Section 151 of the Code of Civil Procedure, 1908 (CPC) for dismissal of the appeal on the ground that it has become infructous.

ARGUMENTS ON BEHALF OF THE APPLICANTS - RESPONDENTS

2. Mr. Dayan Krishan and Mr. Rajshekhar Rao, learned senior counsel for the Applicants-Respondents contended that the present appeal was infructuous in view of the settlement of disputes between the parties as recorded in the consent order dated 11th May, 2017 passed by the Tel Aviv District Court. In support of their contention, they relied on the following facts and submissions:

2.1 A document entitled Share Entitlement was executed in favour of Appellant No.1 by Respondent No.2 i.e. Tower Vision Limited Partnership through Respondent No.1 i.e. Tower Vision Limited in its capacity as the general partner of Respondent No.2 on 17th October, 2006. The Share Entitlement dated 17th October, 2006 is reproduced hereinbelow:-

"To:

Mr.Shiju Varghese

Re: Share Entitlement

1. We the undersigned Tower Vision Limited Partnership, an Israeli registered limited partnership (the "Partnership"), hereby confirm that you have today an absolute and unconditional interest in 7% of the rights of the Partnership. We further confirm that in case of any structure changes which will result in the partners holding their interests in the Tower Management business through any other entity. You shall be entitled to receive absolutely and unconditionally 7% of the rights of any such other entity, which will be established by the partners of the Partnership, and which will replace the Partnership in any holding structure related to the Tower Management business of the Partnership. For the avoidance of doubt such Tower Management business of the Partnership is today carried out via Tower Vision Mauritius Limited.

2. We will allocate the rights or shares referred to in Section 1 above to your name or to any other entity as Instructed in writing by you.

3. Our undertaking herein supersedes any previous undertaking provided to you by us and/or by any related entity in respect of your entitlement to receive any share and/or right in the Partnerships tower management business. Any previous undertaking and/or obligation regarding the subject matter of this letter shall become null, and void as of the date of this Letter.

Sd/-

Tower Vision Limited Partnership

by Tower Vision Ltd as General Manager"

2. 2 Though Respondent No.3, Tower Vision India Private Limited (an Indian Company), had been incorporated prior to the date of Share Entitlement i.e. on 27th January, 2006, yet there was no reference to the said company in this document. As on the date of execution of Share Entitlement i.e. 17th October, 2006, 99.99% shares of Respondent No.3 were held by Respondent No.4 and 0.01% (1 share) was held by Elgadcom Group Company.

2. 3 On 13th November, 2008, a suit being Civil File No. 2192 of 2008 was filed by the Appellants (Tel Aviv suit) before the Tel Aviv District Court against Respondents No.1 and 2, who are Israeli companies as well as Respondent No.6 (Trustee) and Rani Benyamini (not a party in the present proceedings), relying solely on the Share Entitlement dated 17th October, 2006. The amended reliefs claimed in the said suit are reproduced hereinbelow:-

"43. The Honorable Court is hereby requested to determine in declaratory judgment as follows:

43.1 The Share Entitlement Document is valid and is absolutely and unconditionally binding on the Partnership and Tower Israel in its capacity of general partner;

43.2 Alternatively - Benyamini signed the Share Entitlement Document, and he is personally obligated to fulfill the Share Entitlement Document.

43.3 The Partnership and/or Tower Israel and /or Benyamini breached their undertakings under the Share Entit