AAHELI CONSTRUCTIONS PRIVATE LIMITED Vs. WELSPUN PROJECTS LIMITED

JUDGEMENT

(1.) IN present petition, under Sections 433 & 434 r.w. Section 439 of the Companies Act, 1956 [hereinafter referred to as "the Act"], the petitioner has prayed, inter alia, that: -

(2.) The petition is opposed by the respondent company, who has filed affidavit dated 8.8.2012 disputing and denying the allegations by the petitioner. The respondent has claimed and asserted in the said affidavit that the petitioner's claim arise out of Share Purchase Agreement dated 18.3.2010 entered into between Mr. Ashok Khurana and other members of the Khurana family on the one hand and Welspun Infratech Limited on the other hand. The respondent has also claimed that there is no debt as contemplated under the Act which the respondent company is obliged to discharge so far as the petitioner is concerned. The respondent company has also claimed that there are several disputed questions involved in present case which give rise to factual disputes and that therefore, remedy of petition under Sections 433 & 434 of the Act is not proper remedy and the petitioner company ought to be directed to avail ordinary civil remedy. The respondent has also claimed that Welspun Infratech Limited has already invoked arbitration (and the proceedings are in progress) for resolution of all disputes and that therefore also, the petition is not maintainable. On such grounds and factual disputes as to whether the amount in question was given by the Director of the petitioner company to the respondent company by virtue of Share Purchase Agreement or by way of security to the Bank, etc., the petition is opposed by the respondent company.

(3.) PER contra, Mr. Bhatt, learned senior counsel for the respondent company submitted that the entire claim made by the petitioner is completely unjustified and baseless and the respondent company is not under any obligation to pay any amount to the petitioner and there is no debt towards the petitioner. He relied on the details mentioned in the reply affidavit, more particularly the objections raised in the reply affidavit against maintainability of the petitioner. It is also contended by the respondent that the petition is abuse of process of law by said Mr. Khurana and the petition is vexatious which is evident from the correspondence exchanged between the company, the Corporation Bank and said Mr. Khurana. Mr. Bhatt, learned senior counsel for the respondent submitted that the claim made by the petitioner is actually covered under and governed by the share purchase agreement dated 18.3.2010. According to the respondent, the said share purchase agreement was entered into between one Mr. Ashok Khurana and other members of his family on one hand and a company named Welspun Infra Tech Ltd., on the other. It is also contended by the respondent that as part of the transaction covered under the said share purchase agreement, the company named Welspun Infra Tech Ltd. also entered into another purchase agreement with the petitioner and in view of the said share purchase agreement, the petitioner sold its shares to Welspun Infra Tech Ltd. Mr. Bhatt, learned senior counsel for the respondent further contended that in view of the disputes between the parties in connection with the said share purchase agreements (which contains arbitration clause/agreement), arbitration remedy is already invoked and that this Court has, vide order dated 6.7.2012, referred the parties to the dispute to arbitration proceedings before the learned Sole Arbitrator and that, therefore also the petition does not deserve to be entertained. Mr. Bhatt, learned senior counsel for the respondent relied on various provisions in the said share purchase agreements and he, in particular, made reference of clause 2(A), 2(B), the terms 'affiliates' and 'agreement' contained in clause 1.1 and the term 'promoted directors' in clause 1.1. Mr. Bhatt, learned senior counsel for the respondent also relied on clause 2.1 as well as clause 7.9.