Full Text
CO.A(SB) 91/2011
M/S DEVISONS PVT LTD & ORS ..... Appellants
Through: Mr. A.K. Singla, Senior Advocate with Mr. Mukesh Sukhija, Advocate
Through: Mr. Saurabh Kalia with Mr. Sameer Chaudhary and
Mr. Naveen Dahiya, Advs.
Date of Decision: 04th May, 2012
JUDGMENT
1. This Court while issuing notice on 30th November, 2011, had passed the following order in the company appeal:- “CO.A(SB) 91/2011 After some arguments learned senior counsel for the appellants confines his prayer to Prayers 3 to 6 of CA 645/2010 at Page 68 of the paper book. 2012:DHC:3075 Issue limited notice to respondent confined to the aforesaid prayers. Mr. Saurabh Kalia, Advocate accepts notice on behalf of respondent. He prays for and is granted four weeks time to file a reply-affidavit. Rejoinder, if any, be filed before the next date of hearing. However, it is made clear that in the meantime the order passed by the Company Law Board shall be executed/implemented. List on 26th March, 2012. Order dasti.” (Emphasis supplied)
2. Prayers 3 to 6 of Co. Appl. 645/2010 filed before the Company Law Board (for short ‘CLB’) are reproduced hereinbelow:-
3. Today, at the outset, Mr. A.K. Singla, learned counsel for the appellants states that after the issuance of notice in the present petition prayers 4 and 5 of the aforesaid application stand resolved. Consequently, he does not press the said prayers.
4. As far as payment of arrears of rent is concerned, Mr. Singla relies upon the order dated 6th January, 2009 passed by the CLB. The said order reads as under:-
5. Mr. Singla also submits that the sale proceeds of two cars sold by respondent no. 1 have not been deposited with respondent company.
6. However, on a perusal of the paper book it transpires that subsequent to the aforesaid order dated 6th January, 2009, the parties had executed a Memorandum of Understanding (MOU) dated 7th December, 2009. The relevant portion of the said MOU reads as under:- “Now, with the intervention of the Well Wishers, relations etc., all the parties to the disputes and executants of this memorandum of understanding, consider it expedient that an end be brought to the litigation and matter is resolved amicably amongst themselves. Accordingly the executants had entered into an understanding given herein below of their own free will without any coercion or influence or pressure of any kind so that their relations are not further deteriorated. It has been mutually agreed that Sh. Umesh Salwan who is equal share holder to the extent of 1/3rd in M/S Devisons Pvt. Ltd., will be given the following assets towards his share under the scheme of demerger in full and final settlement of his share
1. Premises No. 433, EPIP, Kundli Sonipat belonging to M/S Devisons Pvt. Ltd., on as is where is basis.
2. All the plant and machinery shown as per list enclosed herein.
3. Honda Accord bearing registration no. DL 2FG- M0055.
4. Honda Civic bearing registration no. DL 2FH- F0050 with proviso that balance installments from 1st Dec., 2009 shall be paid by Sh. Umesh Salwan. The above said building; plant and machinery will be transferred by M/S Devisons Pvt. Ltd. to Mr. Umesh Slawan towards his share in the assets of the company. Shri Umesh Salwan will tender his registration from the Directorship and surrender his shares. Thereafter Sh. Umesh Salwan shall cease to the part of M/s. Devisons Pvt. Ltd., for all times. Mr. Umesh Salwan thereafter will not be liable for any kind of liabilities whatsoever. None of his heirs particularly his wife, sons, daughters in law and grand children, successors in interest or any one claiming any rights or interests under him shall be in any manner concerned or shall have any right to claim any of the other properties and assets of M/S Devisons Pvt. Ltd. xxxx xxxx xxxx xxxx Consequent to the above understanding between the executants, all the disputes stand resolved. The parties shall not file any fresh/supplementary suits or raise further issues on the above stated matters of disputes between them. The terms of the MOU are binding on all the parties.”
7. Subsequent to the execution of said MOU, a joint application was filed before the CLB in the year 2010. The relevant portion of the said joint application reads as under:-
order to put an end to the dispute between the parties:
1. Pass an order to demerge the property of the Respondent Company in favor of Devions Infiniti Housewares Pvt. Ltd. in terms of sub-para (a) of para 5 and
2. Pass an order to demerge the Plant and Machinery and two Cars of the Respondent Company in favor of Devisons Infiniti Housewares Pvt. Ltd. in terms of sub-para (b) of para 5 and
3. Further the MOU, as entered between the parties and as stated in para 5 and
4. Directions may be given for the release of Rs.4,00,000/- (Rupees Four Lacs only), deposited by the Petitioner with the Hon’ble Bench as per the orders dated 26/03/2009 and 02/07/2009 passed by the Hon’ble Bench, in favor of Respondent No. 1.
5. To vacate all the previous order passed in the matter.
6. To dispose the present petition in terms of the settlement arrived among the parties as mentioned in the present Joint Application, under the provisions of Section 402 of the Companies Act, 1956.” (emphasis supplied)
8. Subsequent to the joint application, the CLB passed an order dated 4th January, 2010. The relevant portion of the said order is reproduced hereinbelow:-
9. Keeping in view the aforesaid facts, this Court is of the view that the issue of rental stands resolved by virtue of the MOU dated 7th December, 2009 and the joint application filed before CLB in
2010. While in the said MOU it is stated that all the disputes between the parties stands resolved, in the joint application of 2010 a prayer had been made to vacate all the previous orders passed in the matter.
10. Consequently, this Court is of the view that by virtue of MOU dated 7th December, 2009 as well as the joint application filed in 2010, the order dated 6th January, 2009 stands vacated. Accordingly, the issue of payment of any amount on the ground of rental does not survive.
11. This Court further finds that along with the reply filed by the respondent in the present proceedings, appellant company’s Board Resolution dated 15th July, 2008 has been annexed wherein the appellant company itself had authorised the respondent to sell the above-said two cars. It is further stated in the reply that the sale proceeds were deposited in the coffers of the appellant company.
12. It is pertinent to mention that Board Resolution dated 15th July, 2008 is not only prior to demerger of the appellant company in accordance with the MOU dated 7th December, 2009, but even before filing of the present petition before CLB. Further, absence of any mention about these vehicles in joint application gives credence to respondent’s contention that the issue is a settled matter. In any event, this Court is of the view that as the MOU dated 7th December, 2009 and the joint application settled all the disputes between the parties, the present issue cannot be raised.
13. With the aforesaid observations, the present appeal is dismissed with costs of Rs. 25,000/-. MANMOHAN, J. May 04, 2012 NG