KUSUM DEVI TIBREWAL Vs. VIKAS PODDAR

JUDGEMENT

(1.) Present Civil Revision Application under Section 115 of the Civil Procedure Code is filed by the original defendants challenging the validity of the judgment and order dated 1.1.2019 passed by learned Civil Judge (S.D.), Surat on an application below Exh.17 in Special Civil Suit No.253 of 2018, whereby learned Civil Judge has refrained himself from exercising the jurisdiction under Order-7 Rule 11 of the Civil Procedure Code.

(2.) The facts leading to present Revision Application are that the present applicants are the original defendant Nos.4 to 9, whereas the present respondent Nos.1 to 3 are original plaintiffs and the present respondent Nos.4 to 9 are the original defendants in the suit proceedings. The original plaintiff No.3 - Prabhakar Processors Private Ltd., and defendant No.12 Bhaskar Silk Mills Private Ltd. were jointly managed by Poddar Group and Tibrewal Group. These applicants of the present revision application stated that the original plaintiffs have submitted a suit, being Special Civil Suit No.253 of 2018, in the Court below inter alia praying for declaration and permanent injunction with regard to 27190 equity shares and the said shares to be transferred by way of decree of specific performance held by the present applicants. Memorandum of Understanding (in brevity, 'MoU') dated 16.4.2011 was executed, which provided for division of two companies, between the aforesaid Groups and the MoU has stated that ownership and shareholdings of the original plaintiff No.3 company, namely Prabhakar Processors Private Ltd. was taken over by Poddar Group, whereas ownership and shareholdings of the original defendant No.12 company namely Bhaskar Silk Mills Pvt. Ltd. was taken over by Tibrewal Group. It has been the case of the applicants that the original defendant Nos.4 to 11 of the suit had initially filed Company Petition No.49 of 2012 against the original defendant Nos.1 to 3 before the Company Law Board, Mumbai by resorting to Sections 397, 398 and 402 of the Companies Act, 1956 for seeking certain reliefs. The Company Law Board, Mumbai passed an order on 20.6.2014, to implead the signatories of the MoU to the Company Petition No.49 of 2012, which has given rise to submit O.J. Appeal No.23 of 2014 by the present applicants before the High Court of Gujarat challenging the said order of the Company Law Board, Mumbai. Vide order dated 26.8.2014, the High Court of Gujarat dismissed the said OJ Appeal and thereafter, the original plaintiffs submitted Misc. Application No.60 of 2015 in the said Company Petition before the Company Law Board, Mumbai and prayed for grant of permission for obtaining loan not exceeding Rs.900 lacs from the bankers, directors and shareholders. Upon perusal of the said Misc. Application, the Company Law Board, Mumbai held that the preliminary issue as to whether the present applicants of the Company Petition No.49 of 2012 are members of the respondent company or not is first required to be decided and thereafter, pending application and further proceedings to be allowed to go on. It has been asserted by the present applicants that subsequently, Company Petition No.49 of 2012 was transferred to National Company Law Tribunal, i.e. NCLT, Ahmedabad, and was renumbered as Transfer Petition No.27/397-398/2016 and NCLT, Ahmedabad decided the said preliminary issue with regards to the applicants being members in favour of the present applicants and held that the MoU does not legally bind the applicants who were not parties and signatories to the MoU. After discussion, NCLT, Ahmedabad held further that this MoU dated 16.4.2011 is nothing but a mere agreement between the parties who signed that agreement and it cannot be construed as transfer of shares of the present applicants in the respondent company and prima facie, it was held that the present applicants are shareholders in the first respondent company, i.e. Prabhakar Processors Pvt. Ltd. and are having required paid-up share capital as on the date of filing of the petition, irrespective of the MoU dated 16.4.2011.

(3.) This order passed by NCLT, Ahmedabad dated 2.1.2017 carried further by the original plaintiffs by way of an appeal before the Appellate Tribunal, Delhi, wherein the Appellate Tribunal, Delhi by way of an order dated 27.4.2017 declined to interfere with the decision taken by NCLT, Ahmedabad dated 2.1.2017. It has further been asserted by the present applicants that the original plaintiffs issued a legal notice to the present applicants and demanded delivery of share certificates along with executed share transfer deed, to which, a reply was given denying the validity of the MoU and refused to transfer the shares. As a result of this, the original plaintiffs have filed the Special Civil Suit in the Court of learned Civil Judge (S.D.) at Surat for claiming the following reliefs:-