UDAY BAHADUR Vs. KRISHAN KUMAR & ANR

JUDGEMENT

(1.) I.A. No. 71/2017 (under Section 8 of Arbitration and Conciliation Act, 1996 by Defendant No.1) and 2443/2017 (under Order 1 Rule 10(2) CPC by Defendant No.2) in CS(COMM) 1319/2016

(2.) Plaintiff in the suit submits that M/s Decon was incorporated and registered in New Delhi in 2013 with plaintiff being majority shareholder of 76% shares and his step son Ankit Uday Bahadur being owner of 24% shares. M/s Decon was selected as a joint venture partner and a Memorandum of Understanding dated 12th March, 2013 was executed for and between M/s P. B. Lifestyle Limited and M/s Decon. Pursuant to Memorandum of Understanding, joint venture agreement dated 25th September, 2014 was executed between M/s P.B. Lifestyle Limited with M/s Play Boy Lifestyle Ltd. and M/s Decon, holding 51% shares and 49% shares respectively in the company. Contribution to the shares and expenses was made only by Uday Bahadur and Ankit Uday Bahadur did not contribute to the same. MOU dated 15th March, 2015 was executed between Uday Bahadur and Ankit Uday Bahadur wherein Ankit Uday Bahadur admitted the liability of Rs.1.60 crores towards Uday Bahadur, and issued a post dated cheque in this regard. As a goodwill gesture Uday Bahadur agreed to give his 76% shares in Decon and 90% shares in AUB Restaurants Pvt. Limited provided Ankit Uday Bahadur fulfilled the terms mentioned in Clause-3 of the MOU dated 15th May, 2015 and made the payment of Rs.1.60 crores. As per Clause-5 of the MOU dated 15th May, 2015, till said transfer of shares was effected, a share certificate belonging to Uday Bahadur was to be kept in an Escrow with defendant No.2, that is, Sameer Jain. Since Ankit Uday Bahadur who was also a shareholder in M/s Decon did not honour his commitment under MOU dated 15th May, 2015, MOU dated 15th July, 2015 was entered into between the Uday Bahadur and Krishan Kumar, defendant No.1 who agreed to purchase 49% shares of 76% shares held by Uday Bahadur/plaintiff in M/s Decon for a total sale consideration of Rs.70 Lakhs out of which Rs.30 lakhs was paid by Krishan Kumar/defendant No.1 and the balance Rs.40 lakhs was to be paid on or before 15th August, 2015.

(3.) Mou dated 15th July, 2015 was entered into between Uday Bahadur, Krishan Kumar and M/s Decon, represented through Ankit Uday Bahadur however, the same did not dilute the liability of Ankit Uday Bahadur to pay an amount of Rs.1.60 crores. It is contended that though Uday Bahadur discharged all its obligations under the MOU however, Krishan Kumar, failed to make balance payment of Rs.40 lakhs by the stipulated date and after persistent efforts further MOU dated 10th January, 2016 was entered into extending the time till 10th July, 2016 to make the payment. Pursuant thereto Krishan Kumar, issued post-dated cheque of Rs.40 lakhs dated 10th July, 2016 however, Sameer Jain, defendant No.2 was not relieved of his duties to act as an Escrow agent nor had he ever been either orally or in writing instructed to hand over or transfer the aforesaid share certificate belonging to Uday Bahadur of M/s Decon to Krishan Kumar.