SANJAY KUMAR MISHRA Vs. GODAVARI COMMODITIES LTD.

JUDGEMENT

(1.) This is an application made by the defendant No.1, inter alia, for revocation of leave under Sec. 12 A of the Commercial Courts Act, 2015 (hereinafter referred to as 2015 Act) and rejection of plaint with an ad interim prayer for stay of all further proceedings till disposal of the said application. The defendant No.1 says that from the averments made in the plaint it will not appear that the suit which is essentially one arising out of commercial dispute as envisaged in Sec. 2 (c) of the 2015 Act and instituted in the Commercial Division of this Court, contemplate any urgent interim relief for which the plaintiff cannot wait to exhaust the remedy of pre-institution mediation when application thereof has been held mandatory. The plaintiff naturally opposed the application on the ground that the suit contemplates urgent interim relief. The defendant No.3, however, has supported the cause of defendant No.1 and says that on a formal reading of the averments in the plaint it will appear even taking the same to be true and correct that the suit does not contemplate urgent interim relief.

(2.) The plaint case for convenience can be summarised as follows:-

(3.) After a formal reading of the plaint, it is apparent that the plaintiff has pleaded two separate and distinct cause of action. The first cause of action is the plaintiff's obligation as a resolution applicant to carry out the resolution plan of Palogix by making investment as required thereunder. The second one is the alleged breach committed by the defendant No.1 in respect of the MoU and the LLP agreement both dtd. 2/7/2018. It is not clear from the plaint whether the tie up between the plaintiff and the defendants No.1 and No.2 to carry out the obligation under the Resolution Plan is known to NCLT or the monitory committee set up to supervise the CIRP of Palogix. It is also not clear as to what has happened to the resolution plan after 4/12/2019 upto which the timeline as per the plaint the resolution plan was operational. The two cause of action as pleaded in the plaint is, however, interconnected like the guarantee agreement. The resolution plan being an agreement between the plaintiff and Palogix followed by the second one between the plaintiff and the defendants No.1 and No.2. The defendant no.1 was required to bring the agreed consideration within 1 year from the date of approval of the resolution plain that is on or before 12/2/2019. The defendant no. 1 according to the averments in the plaint failed to do so as a consequence whereof, the plaintiff applied before the Monetary Agency to extend the time and had to incur additional cost of Rs.2,52,32,365.00. The time was extended up to 4/12/2019. Even by 4/12/2019, the defendant no. 1 and 2 did not infuse into Palogix through defendant no. 2 the agreed consideration thus, the breach of MoU dtd. 2/7/2018 and the LLP agreement also dtd. 2/7/2018 had taken place in February, 2019 and if such breach is condemned definitely on or before 4/12/2019. The cause of action, if any, in favour of the plaintiff to seek the declaratory relief as claimed in the suit arose immediately after 4/12/2019. The relief of perpetual injunction is a consequence of the declaratory relief in view of the provisions of Sec. 34 of the Specific Relief Act, 1963. The plaintiff could have sought for injunction also immediately after 4/12/2019 to restrain the persons acting or holding out to be directors said to have been appointed at the instance of the defendants No.1 and No.2 than to wait and allow such persons to issue notices and hold extraordinary general meeting in September, 2022 and then file a suit by seeking dispensation of the provisions of Sec. 12 A of the 2015 which has been held to be mandatory in view of the ratio laid down in 2022 (10) SCC 1 [Patil Automation Private Limited and Ors. Vs. Rakheja Engineers Private Limited].