Deepak Beri v. Atul Beri

DBEPL and BMGL, and a forensic audit into the funds and assets thereof. A further prayer was sought to restrain Mr. Atul Beri and Mr. SK Beri from acting in contravention of the three settlement agreements. A month later, Mr. Atul Beri preferred a Section 9 petition on 27.09.2018, being OMP(I) COMM 396/18 (captioned herein), primarily seeking OMP(I)(COMM)326-2016 & connect. matters injunctions against Mr. Deepak Beri from acting on behalf of DBEPL and BMGL, the companies which fell in his share, as also against certain employees, who were allegedly employed by Mr. Deepak Beri, from claiming any wages from and/or initiating any legal proceedings against Mr. Atul Beri’s DBEPL before any Court or Tribunal on the ground of non-payment of salaries. Finally, on 16.07.2019, Mr. Atul Beri also moved his own enforcement petition OMP(Enf)(Comm) seeking enforcement of the award dated 02.08.2016, as modified by the judgment dated 31.05.2018. Thus, in these proceedings, both parties are seeking execution of the award as it stands modified by way of the judgment dated 31.05.2018 which only calls for enforcement of the terms of the three settlement agreements. ix. These two enforcement petitions under Section 36 of the Act, along with the three Section 9 petitions, have remained pending before this Court for the last several years, during the course whereof certain interim orders have been passed from time to time. One of these interim directions were issued on 03.01.2017 by this Court, in response to the grievance of Mr. Deepak Beri that while the enforcement was still pending adjudication, Mr. Atul Beri had opened new bank accounts in the names of DBEPL without informing him in his capacity as a Director thereof and had also proceeded to transfer some amounts to his personal accounts and those of his son. Accordingly, this Court appointed a Court Commissioner and a Chartered Accountant to inspect and file a report on all the premises owned by the four family concerns as also the LLP privately owned by Mr. Deepak Beri. The Court Commissioner initially filed interim reports on 17.01.2017, 14.04.2017, 25.04.201, which were followed by a comprehensive final report filed on 15.05.2017, setting out the status of inter alia accounts, records pertaining to statutory liabilities, inventory of pending orders, stocks, plants & machineries, raw materials, employees in the different businesses and the premises as well. The data in this report was to include a separate list of machines which were earmarked to be transferred to the other units/entities in terms of the settlement agreements. Notwithstanding the submission of these reports, the matter remained pending and on 01.11.2018, this Court once again observed that the best way to proceed further in the matter was to ensure division of assets in terms of the award. Apparently, barring the inspections carried out in the years 2017 and 2018, the premises of these four business entities have never been inspected. Therefore, today, the parties remain at the same position as they were at the time of filing of these enforcement petitions.

3. In support of his case that the separation of the assets and businesses is yet to take place in terms of the settlement agreements, learned senior counsel for Mr. Deepak Beri, Mr. Sandeep Sethi has made the following submissions i. With passage of time, Mr. Deepak Beri realised that Mr. Atul Beri was siphoning off assets of the family businesses. This led to friction between the brothers and they could no longer carry on the family businesses together. As a result, they were constrained to contemplate partition of the family concerns and, to that effect, executed the arbitration agreement on 20.01.2016. This brought in Mr. Nagrath to mediate the disputes between them, which led to the OMP(I)(COMM)326-2016 & connect. matters execution of the three agreements forming the family settlement today. These three agreements, undoubtedly, contemplated division of the assets, which division was then to be followed by a complete separation, to be effected as per the steps postulated in the agreements and preceded the separation. These agreements also display that the intent of the parties was to pool the assets of the family business and then divide them equally between the two brothers, while the father remained equal shareholder/partner in all the business entities. When the parties were drawing up the MoU and minutes of meeting on 17.02.2016 and 14.03.2016 respectively, they fixed dates for effecting various steps towards separation including preparation of inventory of raw material, stock and machinery, division of employees and logos etc., as they were hopeful that by the time the final document, i.e., the deed was executed on 30.04.2016, the division would have taken place and a smooth separation would thereafter follow. Unfortunately, by the time the Deed was signed on 30.04.2016, the parties had realised that it was not possible to adhere to the dates agreed upon, which then inspired the final clause (34) in the Deed which states that this date was variable. However, the parties were always ad idem that till division takes place according to the various steps envisaged in the three agreements, there was no question of any separation between them. This common intent of the parties can be easily gleaned from the language of the three settlement agreements. Further, in the light of the decisions in Bhavan Vaja & Ors. Vs. Solanki Hanuji Khodaji Mansang & Anr. (1973) 2 SCC 40 and Deep Chand & Ors. Vs. Mohan Lal (2000) 6 SCC 259, it is settled OMP(I)(COMM)326-2016 & connect. matters that this Court, as an executing court, has to consider the true effect of the three agreements in the light of all surrounding circumstances rather than arriving upon its decision on mere technicalities. Moreover, considering the decisions in Kale & Ors. Vs. Deputy Director of Consolidation & Ors. (1976) 3 SCC 119 and Hari Shankar Singhania Vs. Gaur Hari Singhania & Ors. (2006) 4 SCC 658, one has to bear in mind that these agreements are essentially family settlements which are placed on a far different footing than commercial agreements. Thus, rather than adopting a hypertechnical consideration while regarding them, these agreements and the terms thereof should be given effect to in letter as well as spirit. On doing so, it would become apparent that the parties had agreed to first divide and separate the businesses, following which they would recognise and appoint a date of separation. Thus, they had always intended to undertake physical division of the businesses first and follow it up by agreeing upon a Date of Separation. This implies that despite the date of 30.06.2016 being mentioned in all the three settlement agreements, this was purely a tentative date. The prayer of Mr. Atul Beri seeking for a declaration from this Court that the Date of Separation had been set out as 30.06.2016 under the agreements is in blatant contravention of the terms of the settlement agreed upon between the parties. The settlement agreements contemplate a separation in presenti and not in relation back to a purportedly agreed Date of Separation. If this Court were to adopt the interpretation supported by Mr. Atul Beri and hold that the agreements contemplate a Date of Separation to be fixed first, which would then be followed by distribution and OMP(I)(COMM)326-2016 & connect. matters separation of assets with reference to an earlier date, the same would be at divergence with the settlement sought to be enforced in these proceedings. ii. Contrary to the submissions of Mr Atul Beri and Mr. S.K. Beri, no division has taken place since the parties have not even completed the major steps required to be taken towards separation. The three agreements are self-explanatory in that each of them requires the parties to complete certain steps by certain dates, all of which are much prior to 30.06.2016. However, since a majority of these steps have not been effected, there is no question of a Date of Separation coming into play. Even an affidavit filed by Mr. Atul Beri in the Section 9 petition state that most of the steps required to be taken for the division have not yet taken place and, thus, even he has admitted that no separation has taken place. The fact that no separation has taken place is also evident from the various orders passed by this Court during the hearing of the present petitions. To begin with, on 15.12.2016, not only had the Court asked the parties to suggest steps which were yet to be carried out to effectuate the division, but it had also appointed a Court Commissioner and Chartered Accountant on 03.01.2017 in order to prepare a complete inventory of the raw materials, stocks, employees, logos, etc; however, in none of these orders did the Court direct any of the processes to be effected keeping in mind the Date of Separation as 30.06.2016, yet Mr. Atul Beri did not assail these orders on that ground. Next, the report eventually filed by the Court Commissioner on 15.05.2017 shows that Mr. Atul Beri had tried to obstruct the Court Commissioner and, clandestinely, shifted goods OMP(I)(COMM)326-2016 & connect. matters and machinery for his benefit from one business premises to another. That apart, this report also happened to be the most comprehensive exercise with respect to the businesses in question and also showed that the division is yet to take place. In fact, when the parties were unsuccessful in their original intent to separate by 30.06.2016, they were hit by a deluge of litigations instituted by Mr. Atul Beri before this Court against the award dated 02.08.2016 [OMP(COMM.) 396/2016], which further delayed implementation of the award and the formal partition of the family businesses. As on date, post-award, Mr. Deepak Beri has only received 10% of the assets falling in his share under the settlement while Mr. Atul Beri has been using the remaining assets, which has caused irreparable loss to Mr. Deepak Beri. Thus, if this Court were to pay heed to the steps effected by the parties so far, it would be evident that Mr. Deepak Beri has not even received his half of the share in the family businesses. Any claims of Mr. Atul Beri to the effect that most of the steps towards separation have been carried out are completely baseless, unsubstantiated and devoid of material proof. To make matters worse, over the past four years, Mr. Atul Beri has made huge profits by using the assets, more particularly, the machinery and premises which were to come to Mr. Deepak Beri’s share and moved some of this machinery to his personal entities. Owing to the unrestrained scheming of Mr. Atul Beri, Mr. Deepak Beri has suffered an estimated loss in profits/business to an approximate tune of Rs.64 crores, which ought to be recovered from Mr. Atul Beri after directing him to hand over 50% of family assets to Mr Deepak Beri in accordance with the family settlement OMP(I)(COMM)326-2016 & connect. matters arrangement, the value whereof should be approximately Rs.130 crores. Having wrongfully continued to hold on and profit from assets of the family businesses which were never his and deprived Mr. Deepak Beri of his share thereto for the last four years, it is not open for Mr. Atul Beri to now contend that the division has already taken place from a backdated Date of Separation. Rather, the award ought to be executed immediately since Mr. Atul Beri is continuing to enjoy the assets which fell in the share of Mr. Deepak Beri as per the terms of the three family settlements. For all these reasons, this Court must appoint a Court Commissioner in order to freshly ascertain the status of assets of the family concerns and draft a plan to divide them in terms of the agreements between the parties. Considering the large scale siphoning off of funds and assets by Mr. Atul Beri, it is further prayed that this Court be pleased to direct a forensic audit to be conducted into the finances and assets of the family businesses, as they existed on 30.06.2016.

4. On the other hand, Mr.Arun Kathpalia, learned senior counsel appearing for Mr. Atul Beri has made the following submissions: i. A cumulative reading of the three settlement agreements shows that the process of separation which began with the MoU on 17.02.2016 was to end on 30.06.2016 with a final separation of all business, whereafter the businesses would retain independent existence. The very first document, i.e., the MoU refers to the date of separation as 30.06.2016 during the course of the document. Although the Minutes contemplated a separation by March-April 2016, when this could not come to pass, the Deed stepped in to provide the last date of separation as 30.06.2016. This date of 30.06.2016 has been referred to as a ‘fixed’ date of separation in the Deed, which meant that it could never be changed, except at the instance of the arbitrator, Mr. Nagrath. Based on these terms, when the award was finally passed on 02.08.2016 by the learned Arbitrator, he also did not bother to change the date of separation in his award, which meant that the date had become binding on the parties with immediate effect. By relying on the decision in M/s Creative Travels Pvt. Ltd. Vs. Joginder Singh Palta 1994 (28) DRJ (DB), it is submitted that the consent of the parties on the aspect of this date of separation, as gleaned from the settlement agreements, assumes primacy and cements its binding nature. That was only strengthened further by the award passed by the learned Arbitrator. Therefore, at this stage, when the parties are merely seeking enforcement of the family settlement agreements, this Court cannot deviate from the general consensus of the parties contained in those agreements. Reliance has been placed on the decisions in C.F. Angadi Vs. Y.S. Hirannayya (1972) 1 SCC 1914, Gurdev Singh Vs. Narain Singh (2007) 14 SCC 173, Deepa Bhargava Vs. Mahesh Bhargava (2009) 2 SCC 294, and State of Punjab vs. Krishan Dayal Sharma (2011) 11 SCC 212, to submit that once the deed of arrangement clearly demarcated 30.06.2016 as the date of separation, or any other date to be decided by the learned Arbitrator, an executing Court cannot embark on the process of fixing a new cut-off date. In fact, as per an express stipulation contained in the Deed, the only way for the parties to alter this date was by approaching the learned Arbitrator who was the only entity empowered under the settlement agreement to make OMP(I)(COMM)326-2016 & connect. matters a ‘decision’ and set down further terms and conditions on this aspect. Thus, it was incumbent upon Mr. Deepak Beri, who was under the purported belief that separation had not taken place, to approach the learned Arbitrator at any time before the award was passed on 02.08.2016 to have a date of separation fixed. In the alternative, when this Court was dealing with the Section 34 petitions, Mr. Deepak Beri ought to have sought remittance of the award to the learned Arbitrator for fixing of a fresh cut-off date by moving an appropriate application under Section 34(4) of the Act. However, Mr. Deepak Beri neither moved an application seeking change of date before the learned arbitrator before or after the passing of the award nor has he challenged the award on this ground till date. By placing reliance on the decision in Barkat Ali & Anr. Vs. Badrinarain (Dead) by LRs (2008) 4 SCC 615), it is submitted that since Mr. Deepak Beri had made no such plea either before the learned Arbitrator or before the Court, he cannot now deny that that the separation did not take place on 30.06.2016 or that the date of separation was not sacrosanct. Be that as it may, it is a fact that Mr. Deepak Beri has categorically admitted in Paragraph 7 of his Section 9 petition OMP(I)(COMM)326/2016 filed before this Court that as per the memorandum of understanding, the date of separation was to be 30.06.2016. Rather, all pleadings of Mr. Deepak Beri reveal that even as per his understanding, the date of separation was 30.06.2016. This, in itself, is further proof of the fact that the Date of Separation was always 30.06.2016. OMP(I)(COMM)326-2016 & connect. matters ii. Not only did the parties agree upon 30.06.2016 as the date of separation but they also effectively separated on this date, albeit they left a few minor steps to complete the process. The brothers’ reason for executing the memorandum of understanding on 17.02.2016 was to facilitate a peaceful separation of the businesses by envisaging seamless division of the following major business components:

(i) Formal documentation has not been completed

(ii) Small component of assets which are left to be divided

(iii) Account statements have not been drawn up.

Thus, merely because some minor steps remained incomplete or because Mr. Deepak Beri had refused to comply with his obligations under the settlement, cannot be a ground to deny the established fact that the parties had agreed to treat 30.06.2016 as the official date of separation. OMP(I)(COMM)326-2016 & connect. matters iii. In furtherance of the aforesaid contention, it is submitted that the separation was not only envisaged, but has also been mostly effected with a few minor steps remaining in the process to conclude their settlement. The brothers have indeed been operating their businesses independently of each other, in accordance with the three agreements, which is evident from the following facts:

Deepak Beri was prohibited from using the brand ‘Atlas Knives’ for a period of two years from the date of separation, which he did and has now admittedly begun using the brand once again, which is tacit proof of the separation.

5. Ms. Priya Kumar learned counsel appearing on behalf of Mr. S.K. Beri, while adopting the arguments made by Mr. Kathpalia, has also made submissions which are best summarised in the following manner: i. At the time of executing the three documents of separation, Mr. S.K. Beri had hoped that the division of assets would be smooth, rather than bitter, which is what it is today amidst the slew of litigations between the parties. The memorandum of understanding entered into between the brothers on 17.02.2016 laid the foundation as to how the separation was to be carried out. Once this foundation was laid, the parties acted in accordance therewith, but there was always an emphatic and unanimous agreement upon the fact that 30.06.2016 would be considered as the cut-off date for separation. It is a matter of record that the parties have effected most of the steps in terms of the settlement agreement. This is especially true for Mr. Deepak Beri who has, OMP(I)(COMM)326-2016 & connect. matters in the last four years, engaged in transferring the flow of business from SKB and DBC to businesses being run by his own family members, the basis of which transfer lies in the separation itself. In fact, it is a matter of record that the premises of SKB and DBC are being used by him and his son to run their private ventures. It would be deeply egregious to permit Mr. Deepak Beri to continue denying the separation when has actively enriched himself in the last few years on the grounds of this separation. His prayer to move the cut-off date forward had been made with the malafide intent to pool the resources of the family concerns as they stand today, to ease off the liabilities accumulated by his privately run businesses since 30.06.2016. Were the cut-off date to be moved from 30.06.2016, it would further dilute the value of the assets as they stood on that date owing to the liabilities accumulated by the parties since then, in their private capacity. In this regard, reliance has also been placed on the decision dated 13.02.2020 passed by the Supreme Court in Vijay Karia & Ors. Vs. Prysmian Cavi E Sistemi SRL & Ors. (C.A. No. 1544/2020) in support of the plea that the Court cannot overstep the confines of the award; any shifting of the cut-off date from 30.06.2016 would amount to adding or subtracting from the award, which cannot be done by an executing court. ii. If Mr. Deepak Beri did have any grievance regarding the date of separation, he was required to, and would have most definitely, raised this issue before the learned Arbitrator after the award had been pronounced to seek a change in this date. He neither approached the learned arbitrator, nor adopted this plea before the Court dealing with the Section 34 petition that the Date of Separation was not 30.06.2016. It also cannot be ignored that previously, in the Section 34 petition instituted by Mr. S.K. Beri he had contended that the three settlement agreements were not conclusive, but his argument was rejected in favour of Mr. Deepak Beri’s submission that every aspect of the separation stood finalised by these agreements. A necessary corollary thereof is that Mr. Deepak Beri found these agreements to be conclusive even on the aspect of the fixed date of separation. Thus, having taken recourse in this stance in the past to obtain an order in his favour, Mr. Deepak Beri is now estopped from denying that the date of separation was not 30.06.2016 since the division of assets is yet to take place. Mr. Deepak Beri’s prayer for fresh fixing of the cut-off date is anyway unsustainable considering all the steps which have been effected so far as also the legal position, summarised in the decision of the Supreme Court in Marshall Sons & Co. (India) Ltd. Vs. Income Tax Officer (1997) 2 SCC 302, that cut-off dates in cases involving accounting and division of businesses, are always a date in the past.

6. I have heard learned counsel for the parties and perused the record. Before dealing with the rival contentions of the parties and the issues which arise for consideration, it would be apposite to first note the following aspects on which the parties are ad idem. i. Disputes had begun cropping up between the parties which resulted in their decision to separate the businesses. For that purpose, the parties appointed an arbitrator on 20.01.2016, under whose initiative, the three agreements, namely the MoU dated 17.02.2016, the Minutes dated 14.03.2016 and the Deed dated 30.04.2016 were executed by them, all for the purpose of finalizing the division of businesses. ii. Pursuant to these agreements, the parties have taken steps towards separation, although separation has not been fully effected. iii. Neither of the parties ever approached the learned arbitrator, either before he passed the award on 02.08.2016 or thereafter, or the Section 34 Court with any requests for clarification with respect to the Date of Separation.

7. Against this admitted position, I now proceed to note the issues on which the parties are at divergence today. The parties primarily disagree on whether the date of separation was agreed between the parties and fixed as 30.06.2016 and what are the consequences of such an agreement. In fact, in the light of the position adopted by both sides that complete separation has not taken place in terms of the settlement agreements and this Court has been approached by both sides by way of the enforcement petitions to get the separation enforced as agreed between the parties, this issue is pivotal in order to proceed any further in these execution proceedings. In fact, even during the course of making their extensive arguments, both sides, including Mr. S.K. Beri, insisted that the issue revolving around the Date of Separation ought be decided first, before any directions pertaining to the separation of businesses are passed.

8. The question, therefore, which needs to be determined before any directions are passed is whether there is already a pre-determined date of separation in these settlement agreement and if yes, what is it? In the OMP(I)(COMM)326-2016 & connect. matters alternative, if these agreements have not fixed any such date, what should the date be?

9. Before delving into the questions raised in these petitions, I consider it appropriate to briefly revisit the powers of an executing court from the plethora of judgments placed on record by the parties on this aspect.

(i) In Brakewel Automotive Components (India) (P) Ltd. v. P.R.

Selvam Alagappan (2017) 5 SCC 371, this Court held as under:

(ii) In Deepa Bhargava Vs. Mahesh Bhargava (2009) 2 SCC

294, the Hon’ble Supreme Court held as under:

10. Thus, to put it simply, an executing court has a very limited function of ensuring that the decree sought to be enforced is executed as it exists. In OMP(I)(COMM)326-2016 & connect. matters the present case, the modified award forming the subject matter of these proceedings comprises of the three family settlement agreements. All parties herein are ad idem that the terms of these agreements are binding and, therefore, the directions of this Court have to necessarily be within the parameters of their mutual intent set out in these agreements. This gives rise to the question, did the parties envisage a date of separation at the time of their initial talks and incorporate the same in the settlement agreements? Reading this with the fact that both sides have adopted varying interpretations of the three agreements re. the cut-off date, it is necessary for this Court to first determine the date, if any, agreed upon by the parties in the agreements executed between them. If they did, the directions which are to be issued shall depend entirely on this date of separation emerging from these documents. For this reason, it is incumbent for this Court to refer to the terms of these agreements in some detail. Only thereafter can I contemplate issuing any consequential directions to carry out complete separation of the businesses and assets, which both sides agree has not taken place.

11. To begin with, the settlement between the parties was initiated under the canopy of the Memorandum of Understanding executed on 17.02.2016. Memorandum dated 17.02.2016

12. The Memorandum dated 17.02.2016 which was the first document executed between the parties pursuant to the mediation/arbitration agreement executed on 20.01.2016 contemplated the division and clearly specified which businesses and assets were to fall in the share of which brother. The said Memorandum served to facilitate a peaceful separation of the businesses by envisaging seamless division of the broad business components, viz., (i) Employees (ii) customers/orders, (iii) intellectual properties including logos and software.

13. It also emerges that the parties, being conscious that they were seeking to separate businesses which were live, did not wish to separate the businesses abruptly since that would have risked incurring significant harm to these entities. Therefore, while broadly crystallising the steps for separation in the Memorandum, the parties set down 30.06.2016 as the tentative date of separation to provide the parties a transition period for completing the separation. For this reason, it was also agreed that neither of the brothers would engage in any negative marketing with respect to the businesses falling in the share of the other brother nor would either party inform their clientele of the impending separation at that stage. However, this Memorandum clearly indicates that the parties had, on 17.02.2016 itself, desired to effect the separation by 30.06.2016, unless the date was changed in consultation with Mr. S.K. Beri and the learned arbitrator.

14. Now coming to the second document, i.e. the Minutes of Meeting dated 14.03.2016, which reads as under: Minutes dated 14.03.2016 “Name As decided in the MoU, Deepak can use DB Engineering Solutions LLP as an entity to carry on his business and he shall not use the name Atlas Knives as the company name, LLP name, Partnership Firm, Proprietorship Firm, Proprietorship concern or in any manner and also the Domain Name Atlas Knives. This instruction of not using Atlas Knives would be for a period of two years from the date of separation. Plant & Machinery

1. List of Plant & Machinery to be compiled. Deepak & Atul would take the responsibility of making the list of their respective units and the task to be finished by 16th March, 2016.

2. Verification of the item of Plant & Machinery to be done by Deepak and Atul by 17th and 18th March, 2016 positively. Deepak and Atul to sit with SKB and MN on 19.02.2016 and finalise the distribution of the plan and machinery.

3. The modus operandi would be that two sets as similar as possible would be made by Deepak (other than the unique items) and they would be decided by lots/toss.

4. The unique list will be discussed between the two and finalized in all respects on 19.03.2016. Value to be determined by each one and highest bidder will take it.

5. Date of dismantling of P & M and commencement of physical transfer of the same is 21.03.2016 onwards. 21st to 25th AB to take out P & M and DB from 26th to 31st. The date can be reasonably extended in case it is practically not possible to do so. Staff

1. List of staff and workers to be finalized by 16.3.2016.

2. Deepak & Atul to jointly identify the Employees whom none wants on 17.3.2016.

3. Staff at each location would be given and option to opt for either Deepak or Atul for which they would be called one by one and made to sign in the Register in front of representative of MN. This would be done on 18 & 19.3.2016. Workers would remain in same factory where they are now working and if they wish to go the other, they would be allowed to go.

4. Compensation to be immediately calculated after the above exercise is over and to be paid to the Employees, to the extent possible by 31.3.2016.

5. All the Employees who are to be transferred within different units would be done at the date of separation. Logo

1. Logos to be divided as per MoU on 16th of March, 2016. Orders

1. List of Orders in hand to be made available on 15th March 2016. Customer whose orders can be changed from one entity to another to be ascertained by Deepak.

2. The distribution would be made in such a way that each party gets approximately equal orders.

3. In case of the difference being there, 20% of the value of the Order to be considered as profits and distributed between Deepak & Atul. The share of the said money would be paid upon execution of the Order by the respective entity.

4. Customers to be informed on a date decided by SKB/MN regarding the split by way of a common mail to be approved by MN. xxx Miscellaneous

1. The endeavour of both Deepak & Atul would be to effect the separation by 31.3.2016 and if it is not possible to do the same due to any reason, the separation has to take place at the earliest possible date but not later than 30.04.2016 and for this purpose, both Deepak & Atul would work positively to achieve the target date. The process of transfer of Ownership, drafting of documents, minutes, deeds etc. shall commence immediately and both Deepak & Atul shall give their full support so that the documentation is completed at the earliest.

2. Specific audits of stocks, consumables and other related issues would be carried out by the team of MN with immediate effect.

3. No material/goods would be withheld by either Deepak or Atul in their respective premises and the same would be cleared from time to time, so that the businesses do not suffer during this intervening period in any respect.

4. The net current assets available in DBE after the DOF has to be distributed equally between the two after clearing of the liabilities. A mechanism will be drawn by SKB & MN to ensure that the money is available for distribution.

5. D&A would make all efforts to get their statutory audits for the year ended 31.3.2016 finalised by 30.4.2016. Potential past liabilities upto the date of DOS would be determined with the assistance of both.

6. A lump sum amount of Rs. 40,00,000/- would be payable to Atul towards shifting of Plant & Machinery, taking on rent new premises etc. This amount has to be paid by DB.”

15. These Minutes show that, by that time, the brothers had come to the realisation that in order to fully effectuate the separation it was necessary to lay down the roadmap for it by specifically setting down the steps required to be taken. In fact, this document shows that on 14.03.2016, since the parties had already started taking steps towards separation, they were hopeful that the separation may take place even prior to 30.06.2016, for which reason they were intending to prepare the list of plants and machinery by 16.03.2016, subject to the verification thereof by each brother. As noted OMP(I)(COMM)326-2016 & connect. matters previously, the Minutes provided that the customers would be informed about the split by way of a common e-mail, approved by the learned Arbitrator. Moreover, the staff were to be permitted to exercise their options as to which brother’s business they wanted to continue their employment in, while the logos were also to be separated. Notably, the Minutes provided that the parties would endeavour to get their statutory audits for the FY ending on 31.03.2016 by 30.04.2016.

16. Finally, the Deed of Arrangement executed on 30.04.2016 was the third and final document which was executed by the parties and the relevant clauses thereof read as under: Deed of Arrangement dated 30.04.2016 “This deed of arrangement is being made amongst Mr. Deepak Beri (DB), Mr. Atul Beri (AB), and Mr. S.K. Beri (SKB) is to give effect to the understanding reached by the parties in terms of MoU entered into by them on February 17, 2016 relating to the division of business of DBE and SKB. That it is agreed amongst all that the entire division exercise will be executed in terms of the MoU and this interim arrangement as agreed upon to facilitate the final division. xxx That to manage the period from the date of this arrangement to the Date of Separation (DoS) which is June 30, 2016, it has been agreed that DB, AB and/or any of their family members (except SKB) shall not visit any of the premises where the production of the companies is being carried on and the meetings, if any, amongst the parties shall be held at the place and time decided by MN. xxx Orders Existing Orders as on 30th April, 2016  All orders in DBE or SKB as on April 30, 2016 shall be kept as it is.  Since it takes approximately 2 months for processing of orders, therefore, by June 14, 2016 such orders will be in either of the following phases: o Finished stock; o Debtor; OMP(I)(COMM)326-2016 & connect. matters o Cash; o WIP, pending final processing o Existing orders shall be processed before new orders as per FIFO method. o Pending orders will be distributed as per the MoU as on DoS or any other prior date as decided by MN. xxx Staff  Increment due in April 2016 is to be maintained at 8% p.a. as an interim increment and to be paid prior to the DoS out of the common funds. List of Employees/Workers  List of employees/workers (unit wise) to be taken as on April 30, 2016 which will be updated on daily basis in case of any change with complete details. Intimation to Employees/Workers  Employees/workers (if required) will be intimated about the new date of separation. Till that date no employee/worker will be retrenched unless the employee/worker wants to leave voluntarily. White Collar Employees (i.e. Employees)  White Collar employees at each location will be given an option to opt to work either with DBE or SKB, for which they will be called one by one and made to sign the register in front of MN. Said option will be executed on May 31, 2016. However physical movement of such employees will take place on/after DoS. xxx  If an employee/worker wants to voluntarily leave prior to the DoS, such employee worker shall not be re-appointed by AB/DB up to a period of 6 months from the DoS. Any violation of the same on the part of AB or DB will attract a penalty amounting to 5 times the actual CTC in which such employee/staff is re-appointed, payable to DB or AB respectively.  Compensation policy i.e. Full and Final settlement of employees/workers will be decided by MN considering the trend of previous two years i.e., 2013-14 and 2014-15. xxx Raw Material Purchase Orders  Any order of raw material, tools or consumables has to be placed post discussion and on prior approval of respective Plant heads. Such plant OMP(I)(COMM)326-2016 & connect. matters heads shall be nominated by AB/DB as on April 30, 2016 and intimated to MN. If there is any conflict regarding this, then decision of MN will prevail.  A weekly update shall be given to AB/DB by respective plant heads. Maintenance of Records  Proper records for in, out, scrap generated, consumption and closing stock of raw material shall be maintained for the period from May 01, 2016 through June 30, 2016.  The above mentioned records shall be circulated to AB, DB and MN on weekly basis. Stock of Raw Material/WIP/Finished Products  Physical stock taking and its distributions to be done for all units, as will be decided by MN in consultation with AB and DB on the date of its physical movement.  Work in progress to be distributed as per the MoU.  Physical shifting of stock shall commence after June 15, 2016. Production  Production to be done upto June 15, 2016.  Entire DBE & SKB shall be run as a single unit in terms of production.  The production will be carried out in full swing and no material will be held at one premise without any justified reason. In case production is withheld for any reason, MN shall be intimated immediately. xxx Books of Accounts  All sales, purchases and expenses will be recorded in the books of accounts at Okhla and a representative of AB will assist the staff at Okhla for the same.  Random weekly checks may be conducted by MN in order to validate the BNG and its rehabilitee(sic).  Balance sheet of DBE and SKB as on June 30, 2016 to be finalized by July 15, 2016 by the staff of DBE and SKB Group.  The representative appointed by AB and DB in the field of Accounts and Finance shall be responsible for maintaining and delivering books of accounts to MN including the financial statements, statutory records for past 8 years i.e. from F.Y. 2007-08 to F.Y. 2015-16 and other Legal and Secretarial records, since the date of Incorporation. xxx Independent Manufacturing and Purchases  All purchases, sales and manufacturing to be restricted to SKB and DBE only. No private entity shall undertake any business activity.  Only commonly owned machinery to be run.  Expenses of privately (independently) owned machinery and labour charges on such machinery, not to be shared among DBE and SKB. Plant and Machinery Key Machinery  List of Key Machinery to be provided by the respective plant heads of AB and DB by May 01, 2016 and division of the aforementioned key machinery to be done by MN based on written down value as on March 31, 2016. Other Machinery  List of Plant and Machinery to be compiled. AB and DB to take the responsibility of making the list of their respective units by April 30,

2016.  Distribution of Plant and Machinery on paper to be finalized by MN upto May 31, 2016 and physical distribution to commence after June 15,

2016.  The modus operandi would be that the two sets are as similar as possible. xxx Miscellaneous  Endeavour of both AB and DB would be to effect the separation by June 30, 2016 and if it is not possible to do the same due to any reason, the separation has to take place at the date and conditions as decided by MN. The process of transfer of ownership, drafting of documents, minutes, deeds etc, shall commence immediately and both AB and DB shall give their full support so that the documentation is completed at the earliest.  Specific audit of stocks, consumables, raw material and other expenses related issues would be carried out by the team of MN with immediate effect and that has to be completed by May 15, 2016. Appropriate adjustments will be made in the account of AB and DB before DoS.  Expenses incurred by AB on C-1 will be paid to him after complete due diligence and specific approval of MN only.  AB and DB would make all efforts to get their statutory audits for the year ended March 31, 2016 be finalized by June 30, 2016. Potential past liabilities upto the DoS would be determined with assistance of both AB and DB.”

17. This Deed is generally distinguishable from the other two documents since it reflects their acceptance of the fact that they were fast approaching complete separation and is posed as a record of the arrangement which they had finally arrived upon. It is the last and final document executed between the parties towards separation of businesses and begins by requiring them to follow the terms therein as also in the MoU, in letter and in spirit. It explicitly refers to the date of 30.06.2016 as the final date of separation and then goes on to mention this date close to 7-8 times in its body. It is clear that the parties were seeking to take care of any unfinished business by ensuring completion of all pending orders, resolving to determine potential past liabilities up to 30.06.2016 and furnishing books of account to the learned arbitrator, including financial statements and statutory records, for the eight preceding years, i.e., from FY-2007-08 till F.Y.2015-16. This document also sets aside a period, which began with its execution and ended on 30.06.2016 and is now known as a ‘transition period’ for all practical purposes, to help the parties ease into their independent commercial identities. During the transition period, the delivery time for completion of orders stood extended and, in the spirit of encouraging complete transparency in the process, (i) the two brothers and their respective families were proscribed from visiting the premises of any production units of the businesses, (ii) it was decided that the books of accounts of the businesses belonging to each other were subject to inspection by the learned arbitrator,

(iii) all parties were encouraged to share complete details of any hidden orders of DBEPL and SKB, (iv) they were stripped of the power to introduce any changes in the BNG system (which was the common software used to record the orders placed), without the approval of the learned Arbitrator, and (v) the two brothers were to be given all updates on the raw OMP(I)(COMM)326-2016 & connect. matters materials purchased. All production could be carried on unhindered only till 15.06.2016, whereafter the physical shifting of the stock, viz. raw material, work in progress and finished goods, was to be effected on a date fixed by the learned Arbitrator. The Deed ended with the Miscellaneous clause which generally addressed any major steps which were yet to be taken by inter alia resolving to take care of any pending specific audits by 15.05.2016 and statutory audit by 30.06.2016.

18. Reverting to the submissions made at the Bar, as per Mr. Atul Beri and Mr. S.K. Beri, the parties had mutually agreed to fix the date of separation as 30.06.2016, which was not only reflected in the three documents executed by them but also the manner in which they conducted their business and themselves pursuant thereto. On the other hand, Mr. Deepak Beri has contended that the date of separation should be reckoned by the Court as on date, rather than myopically relying on the tentative date of separation set out in the documents executed by the parties. Mr. Deepak Beri has taken the unrelenting position that he never consented to 30.06.2016 as the official date of separation and, in actuality, that date was an effective date envisaged by the parties to finalise the division, but since most of the steps under the settlement remained ineffectual on that date, it was automatically rendered null and void and thus, never crystallised into a final date of separation.

19. As can be observed from the terms of these agreements, prima facie, this date of 30.06.2016 found mention in the very first document executed between the parties in February 2016, when the parties had just embarked on their journey of partition. Evidently, this was not a date which was suddenly conceived on 30.04.2016 at the time of executing the Deed, which was the final settlement agreement rather, it was the farthest deadline OMP(I)(COMM)326-2016 & connect. matters present within the initially executed document of the MoU for effecting one of the steps towards final separation of the businesses. Undoubtedly, the MoU was referring to this date as the ‘effective date’ of separation, just as Mr. Deepak Beri is contending. Therefore, notwithstanding the fact that the Minutes recorded on 14.03.2016 reflect the parties’ hope to conclude the separation before 30.06.2016, it is evident that from the very get go, the date of 30.06.2016 appeared to, in spirit, capture their desire to finish this entire saga of partitioning the businesses by the end of June 2016. This, of course, on its own is not conclusive of anything and must be appreciated in the context of the steps taken by the parties towards division.

20. The parties had also made exhaustive submissions on whether or not they had taken steps to separate prior to 30.06.2016 and, while they agreed that certain steps had already been taken to effect the separation, they differed on how much separation had truly been effected. As per Mr. Atul Beri, a majority or 90% of the steps have already taken place, whereas Mr Deepak Beri is seeking to contend that a majority of the steps for effecting the separation remain pending as on date. To achieve any clarity on this aspect, it may be useful to note the steps towards separation which both sides have admitted to taking thus far. The steps admitted by Mr. Deepak Beri, as extracted from paragraph 48 of his enforcement petition [OMP(Enf)(Comm) 187/2018], have been reproduced in entirety as Table I in the Addendum to this decision. The steps admitted by Mr. Atul Beri have been reproduced in entirety as Table II in the Addendum, extracted from his enforcement petition OMP(Enf)(Comm) 117/2019 as also the written submissions filed by him in November 2019. To avoid prolixity, the relevant extracts of the steps towards separation which have been admittedly effected, are being culled out hereinbelow in a tabular form:

Names in which each party carries their businesses Done. Have been carrying out business in the name of M/s DBEPL and BMGL Done. Have been carrying out business in the name of M/s DBEC, SKB or any other name. Properties to be received by AB Done. Currently in possession of the properties situated in Sector 68, Sector 11, NOIDA and that owned by BMGL in Phase-II, NOIDA. Done. Properties to be received by DB. Done, except: - Sector 64 has not been handed over, since compensation of INR 7.50 crores has not been given yet. - Title transference of property situated at C-27, Sector 59, Noida belonging to DBEPL and in possession of Deepak Beri yet to be effected. Done. Currently in possession of Sector 6, 59 and A-119 Okhla properties. However, DB is yet to receive possession of Sector 64, NOIDA, which is being illegally retained by AB. In addition, the transfer of title of the other premises is also pending. Bank has ordered release of hypothecated documents of Sector 59 and Sector 64, OMP(I)(COMM)326-2016 & connect. matters which only needs to be collected from the bank by signing the register by all three parties. Division and transfer of Employees under Clause 24, MOU Done. As per MoM dated 14.03.2016, employees have exercised their option of choosing which brother they wish to work for. This was done in March/April 2016. This was completed with effect from 07.07.2016. However, the employees working at the units of DBEPL, under the control of Deepak, need to be formally transferred to SKB. Done. The division of employees in terms of the agreed documents has already taken place, and the employees who have opted by DB and AB were identified and a list was circulated on 07.07.2016. Further, in terms of the agreed documents, an 8% increment has been given to the employees, which is an admitted fact. Division of logos under Clause 9, MOU Done w.e.f. 23.03.2016. Logos of the business entities were divided amongst the parties on 23.03.2016 and parties have since then, been Done. This is done by a Coin Toss on 23.03.2016 duly recorded and signed by nominees of AB and DB in the presence of the Ld. Arbitrator and SKB, who OMP(I)(COMM)326-2016 & connect. matters using their respective logos, in furtherance of their independent business activities. also signed the said paper. Accounting Software Done for Mr. Deepak Beri. Ever since Mr. Deepak Beri caused SKB to purchase ERB software to keep its accounting separated from DBEPL. Thus, the accounting softwares are separate. Done. SKB (the concern falling to the share of DB) purchased its own ERP Software so as to facilitate the division process. A sum of Rs. 9,73,248/was spent by SK Beri & Bros towards the same. The underlying objective was to have separate and distinct ERP Softwares between DBEPL and SKB, as part of the division. Division of servers, Email IDs, domain names, and websites Done. Separate servers have been purchased by SKB, so as to de-link itself from DBEPL. The two entities now have separate email id’s, domain names and websites, so as to function independently Done. In pursuance of the division process, separate servers have been purchased by SKB so as to de-link itself from DBEPL. As part of the division process, SKB have also OMP(I)(COMM)326-2016 & connect. matters from each other. created new email ID's with the domain 'skberi.com' and has engaged technicians to develop its independent website. DB and his staff were earlier using the domain name "atlasknives.com", which were disabled at the instance of AB. This fact also shows implementation of the division process. Intimation to Customers Done. Customers were intimated about the division in around the first week of May 2016, and thus customers have taken their business to an entity controlled by Atul or Deepak, depending on which brother they wanted to continue business relations with Pertinently, as per clause 38 of the MoU, this step was to take place only after the effective date of Done. As agreed, the parties have jointly sent various letters to customers regarding the division between the AB Group and the DB Group. OMP(I)(COMM)326-2016 & connect. matters separation. Working Capital Sanctions Done. Fresh working capital sanctions have been applied for and obtained by Deepak Beri, in the name of SKB. As of date, the two businesses have been sanctioned loans separately and, thus, have separate liabilities in this respect. Done. As part of the agreed documents, more particularly in terms of Clause 32 of the MOU, DB applied for Working Capital loan and sanction of Credit Facilities in the SKB with Canara Bank, Okhla Branch in April2016. On the basis of the aforesaid application, the Credit Facilities were approved by Canara Bank vide its letter dated 04.06.2016. DB was also authorized by DBEPL vide its letter dated 03.06.2016 (signed by SKB, AB, DB and Ramesh Beri) to collect the original property papers for the premises which were to fall to DB's share. The term loan availed by DBEPL has paid off in full under the orders of this Hon'ble Court dated 22nd March, 2018 and the original documents of all properties are currently deposited with the High Court in terms of the aforesaid order. Telephone connections Done. Separate telephone connections have been obtained w.e.f 07.06.2016, so that entities controlled by Deepak and Atul have separate telephones. Done. As part of the division, an application was made on 17.06.2016 to Airtel for transferring telephone connections in the name of SKB from DBEPL. Division of Orders Done. From February, 2016, orders which would have earlier been booked in the name of DBEPL, were being booked (by Deepak Beri) in the name of SKB. He has thereafter stopped booking orders in SKB and started booking them in other entities to defeat the interest of the father who continues to retain his share in SKB after Pursuant to the division process, orders were booked in SKB, which was hitherto done in the name of DBEPL. A perusal of the Monthly Sales Order details shows a sudden jump in the value of orders in SKB for the months of February, March, April, May, June and July 2016. 30.06.2018. Deployment of Security Services under Clause 21, MOU Done with effect from May 2016. Done. In terms of the agreed documents, the parties were to employ ·security services for the respective units. Acting upon the understanding, the services of G4S Secure Solutions (India) P. Ltd. were availed by DBEPL. Application of Licences/ Permits Done. Done. DBC has applied for EEPC and other licenses for the purposes of export in the name of SKB, post the division process. Similarly, license for import has also been applied for.

21. A cumulative reading of the stand taken by both brothers, as noted hereinabove, makes it clear that the business entities falling under the shares of Messrs. Atul and Deepak Beri are operating in separate names under identities which are distinct from each other. Mr. Atul Beri has admitted to the position that he has been carrying on business in the names of DBEPL and BMGL with effect from 30.06.2016. Similarly, even though Mr. Deepak Beri is aggrieved by the fact that he is being denied access to the business of DBEPL, he has also admitted that he has been carrying on OMP(I)(COMM)326-2016 & connect. matters business in the name of DBC and SKB, apart from his own privately run family businesses from 30.06.2016. Neither brother uses the identity of the businesses falling in the share of the other. In a similar vein, they have also been allocated completely different logos for their respective business w.e.f. 23.03.2016. These businesses are operating on separate premises as on date, though the title deeds of some of these properties are yet to be executed in the names of the persons entitled thereto under the settlement agreements. That being said, it is admitted that the premises at Sector-64, falling in the share of Mr. Deepak Beri, has not been transferred to him. In this regard, Mr. Atul Beri has sought to contend that he has withheld transferring these premises to his brother since the latter has not only failed to resign from the directorship and transfer shareholding of the companies falling in Atul’s share, but he has also failed to pay the amounts due to Atul under Clause 15 of the MoU, namely a sum of INR 7.50 crores towards cost of construction of a functional unit for BMGL in Phase-II, NOIDA and an additional sum of INR 1 crore to make up the difference in value of the properties falling in his share. As per Mr. Deepak Beri, this amount stands paid to Mr. Atul Beri who, in turn, denies such payment vehemently. Rather, Mr. Atul Beri claims that he is due a further sum of INR 9.30 crores under Clauses 4, 5, 14 (a) of MoU, r/w clause 6 (under miscellaneous) of the MoM dated 14.03.2016. This is one of the primary disputes arising out of the steps for separation of properties. At the same time, it is admitted that Mr. Deepak Beri has been carrying out independent business in the other three premises situated at A- 99, Okhla Industrial Area, Sector-6, Noida and Section-59, Noida. In fact, Mr.Deepak Beri is not only carrying out the businesses of SKB and DBC, but has also admittedly permitted his son to run other businesses of like nature in these very premises. Thus, barring this aspect of the Sector 64 OMP(I)(COMM)326-2016 & connect. matters property and outstanding payments claimed by both brothers, the parties have in unison stated that they are in possession of the premises accruing to each of them under the settlement agreements. They have engaged different security services to guard their premises as well.

22. Furthermore, even as per the recorded averments of Mr. Deepak Beri in his enforcement petition, both the brothers divided their white collar employees, based on their preferences, and gave them increments as well pursuant to these agreements. At this stage, it is pertinent to note that Mr. Deepak Beri had sought to contend at the time of arguments that even though the list of employees who were to go to the share of each brother stood finalised on 16.03.2016, no further steps were taken in this direction. He sought to contend that this implied that no division of employees had taken place in the manner intended. However, in the light of his admission in the enforcement petition, there is no reason to disbelieve the versions of Mr. Atul Beri and Mr. S.K. Beri that each brother (Atul/Deepak) has had his independent sets of employees, working only for him and from units controlled exclusively by him. It, however, is undisputed that the sales and marketing teams of the business entities were divided between the brothers and operate separately as on date. Even the accounting software, telephone connections, servers, email IDs, domain names and websites used by the brothers are separate and, thus, there is no jointness even in these minute aspects. In terms of the settlement agreements, they even sent correspondences to their clients about their separation and distinct business identities and each business entities have been handling their respective clients, completely independent of each other, ever since then.

23. With respect to the orders being placed by clients w.e.f 01.07.2016, the same are recorded separately for the businesses falling under the shares OMP(I)(COMM)326-2016 & connect. matters of Mr. Atul Beri and Mr. Deepak Beri. Mr. Atul Beri has contended this to be the position since February, 2016, however Mr. Deepak Beri denies this, even though he has accepted that the orders for SKB have been recorded separately by him since February 2016 and the numbers thereafter appear to have increased. However, the parties are ad idem that certainly with effect from 01.05.2016, there has been absolutely no transparency between them with respect to the orders received by the business concerns falling in their share. Further, from a reading of clauses 1, 3, 4, 5, 7 to 9, 13 to 17, 19 to 28, 34, 35 and 38 of the MoU, it is evident that the parties had envisaged that in the transition period preceding 30.06.2016, all transactions carried out by any of the family businesses were to be recorded in the books of accounts of the concerned entity with the approval of all the four parties i.e. the two brothers, their father and the Arbitrator. It is also evident that the parties agreed to share all expenses, profits and assets till they were jointly conducting the businesses, whereafter they would carry out the businesses separately. Today, the brothers neither share the expenses of their respective businesses nor record the transactions in the arrangement as set out by them. Finally, with effect from 30.06.2016, both the brothers have been taking business loans and applying for licenses and permits independently. There is no overlap or joint operations in these aspects for over four years.

24. Against this background, one may consider the steps which are admittedly left to be taken as on date. Mr. Atul Beri has produced a table in paragraph 30 of his enforcement petition enumerating the steps to be taken to completely discharge all obligations of the parties under the settlement agreements. Similarly, Mr Deepak Beri had submitted a tabulation of the steps left to be taken, in his reply to Mr. Atul Beri’s enforcement petition [OMP(Enf)(Comm)117/2019]. Although, in his post-hearing written OMP(I)(COMM)326-2016 & connect. matters submissions, Mr. Deepak Beri has submitted comprehensive tabular representations which cull out additional steps which he claims are left to be taken against each step contemplated in the Memorandum, Minutes and the Deed, the same are not being referred to at this stage since they are not only at some variance with his own broad stance in his enforcement petition, but also because Messrs. Atul and S.K. Beri did not have an opportunity to rebut the same. For the sake of convenience, the chart produced by Mr. Atul Beri is reproduced as Table III in the Addendum whereas the chart produced by Mr. Deepak Beri is reproduced as Table IV in the Addendum. However, the gist of their respective positions may be summed up as follows: i. Both Messrs. Deepak and Atul Beri need to formally transfer their shareholding and ownership interests and that of their family’s from the businesses falling in the share of the brother. Consequently, Mr. Deepak Beri needs to resign as Director of DBEPL and BMGL and transfer his and his family’s share certificates therein to Mr. Atul Beri. Mr. Atul Beri, in turn, needs to do the same in SKB and DBC, in favour of Mr. Deepak Beri. ii. The brothers need to transfer the title to the properties in the names of the person in whose share the same falls as per the settlement agreements. iii. All documents pertaining to DBEPL and BMGL in the possession of Mr. Deepak Beri and those pertaining to SKB and DBC in the possession of Mr. Atul Beri, including but not limited to Customs shipping bills, Customs certified invoices, import/export books, DGFT licenses, need to be returned to the rightful owner of the respective businesses. OMP(I)(COMM)326-2016 & connect. matters iv. The orders as they stood on 30.06.2016 have not been completely divided between the parties in terms of the settlement. v. The parties are yet to share the profits and liabilities of the business entities as they stood on 30.06.2016. Furthermore, accounting and auditing exercises have only been conducted partially. vi. The division of stocks, plant and machinery was not fully effected as they stood before 01.07.2016.

25. When one considers the steps which are left to be taken, viz. the numerous steps that have been completed so far, one can begin saying with some certainty that the parties in most respects were operating distinctly from each other. Their businesses have been, in spirit, divorced from each other and do not share any jointness. Undisputedly, the original intent of the parties was a more complete form of this separation, rather than the partial, unfinished shape that it has assumed today. This tangled state of affairs is solely attributable to the parties’ contradictory stands with respect to the date of separation.

26. In the light of this position, this Court must assess whether the agreements signed between the parties actually culled out a separation date and whether this date was expressly stipulated as 30.06.2016. In this regard, reference may be made to Paragraph 20 of the decision rendered by the Hon’ble Supreme Court in Bhavan Vaja (supra) which reads as under:

27. Evidently, it is not enough in every case for an executing court to simply read and interpret the words of a decree, especially in a case such as this where the execution pertains to a settlement bearing clauses which are being differently interpreted. In fact, in such cases the Court is called upon to pay due regard to the surrounding circumstances as well as the letter of the decree in order to truly deliver justice in its powers of execution,. While bearing in mind these principles which sculpt the powers of an executing court, I revert to the facts of the present case. As observed previously, the MoU deemed 30.06.2016 as an ‘effective date of separation’, which implied that the date was not set in stone at the time and was envisaged as a mere distant deadline to the parties, to provide them with a general sense of when they were expected to conclude the process of partition. The Minutes OMP(I)(COMM)326-2016 & connect. matters recorded on 14.03.2016 do not materially digress from this position, rather it appears to capture the optimism of the parties in their perception of the pace at which the partition was proceeding and their collective belief that they might actually be able to pull the partition off before June 2016. The Deed executed more than a month later on 30.04.2016 signals that the optimism contained in the Minutes began wearing off in the days after it was executed. It becomes apparent that the reality of partition and the numerous nitty-gritty of it had become obvious to the parties and the learned arbitrator, who had finally accepted that the partition was going to be a tedious and mammoth task, incapable of being effected within the short period of time envisaged in the Minutes. Nevertheless, since most steps were either already underway or stood completed, the parties mutually agreed to follow through with the partition by agreeing upon a deadline and, in that context, agreed upon the following stipulation in the Deed: “ That to manage the period from the date of this arrangement to the Date of Separation (DoS) which is June 30, 2016, it has been agreed that DB, AB and/or any of their family members (except SKB) shall not visit any of the premises where the production of the companies is being carried on and the meetings, if any, amongst the parties shall be held at the place and time decided by MN.” (emphasis supplied)

28. In my view, this is the turning point of the agreements and the point wherein lies the answer to the primary question raised in these enforcement proceedings. The parties explicitly referred to 30.06.2016 as the Date of Separation. Following this stipulation, the Deed went on to cement the importance of 30.06.2016 as the date of separation, by mentioning it as a deadline for several other steps thereunder. While the CTC of the employees and workers on transfer was to be determined as it stood on 30.06.2016, the record of all in, out, scrap generated, consumption and closing stock of raw OMP(I)(COMM)326-2016 & connect. matters material was to be mandatorily maintained from 01.05.2016 till 30.06.2016. All production at the manufacturing units of the family concerns was to be carried out together till 15.06.2016 whereafter the physical shifting of the stocks, plants and machinery was to take place on a date fixed by the learned Arbitrator. In fact, even the balance sheets of DBEPL and SKB were to be finalised as they stood on 30.06.2016 and the funds transferrable to Mr. Deepak Beri, in case he failed to acquire the requisite working capital loan by 30.06.2016, were to be apportioned out of the funds available with the family businesses as on 30.06.2016. In closing, the Deed incorporated the Miscellaneous clause which not only sought to tie any loose ends in the separation process by mandating that all auditing exercise of stocks be completed by 15.05.2016 and all statutory audit for the financial year ending on 31.03.2016 be finalised by 30.06.2016, it also stated: “Endeavour of both AB and DB would be to effect the separation by June 30, 2016 and if it is not possible to do the same due to any reason, the separation has to take place at the date and conditions as decided by MN.”

29. Therefore, notwithstanding the fact that the tenor of all the agreements regarded 30.06.2016 as a deadline of sorts, the Deed finally and unambiguously set down that the date of separation was going to be, after all, 30.06.2016. Considering all the steps that the parties were concurrently taking to make this happen, it appears quite obvious that the parties intended to and did, ultimately, demarcate 30.06.2016 as the date of separation of the businesses.

30. Now, it is apparent that Mr. Deepak Beri has argued vehemently against this position since he believes that 30.06.2016 was merely a tentative date of separation, as reflected in Clauses 16 and 34 of the MoU, OMP(I)(COMM)326-2016 & connect. matters rather than a final date of separation set in stone. He is of the opinion that the date was proposed, not ultimately accepted. The crux of his contention is that the settlement agreements envisaged a certain order in which the partition was to be carried out, first the parties would effectuate all the steps set out in the three agreements, and once all of them were complete, they would pronounce an appropriate date of separation which would be backdated. Thus, he has urged that the steps and their completion were to compulsorily precede any fixing of date of separation, and the entire exercise of first pronouncing a date of separation is contrary to the tenor of the agreements. I have carefully considered this aspect vehemently urged by Mr. Deepak Beri and find that there is absolutely no stipulation in the agreements which backs this interpretation. In fact, neither the language of the agreements nor the circumstances surrounding the execution thereof support this line of argument. Rather, the tenor of the agreements appears to be starkly in favour of finalising a date of separation and correspondingly working towards it at the earliest possible date, rather than waiting for the parties to follow through with the steps as a preliminary requirement of finalising the partition date. Express stipulation in the Deed to the effect that the auditing of stocks, consumables and related issues were to be concluded by 15.05.2016, the statutory audits were to be carried out by 30.06.2016, and that Mr. Deepak Beri was granted time till 30.06.2016 to arrange for working capital on his own as also fixing of travelling budget of sales personnel only till June 2016 show that 30.06.2016 was to act as a point of reference, a cut-off date. Ultimately, as mentioned above, this Court cannot step out of the confines of the settlement and render a finding on fiction, and this submission of Mr. Deepak Beri that the completion of steps would OMP(I)(COMM)326-2016 & connect. matters precede fixing of a date of Separation does not appear to be based on a proper interpretation of the settlement at all.

31. Mr. Deepak Beri has also sought to place reliance on several orders passed by this Court in order to contend that this Court had taken judicial cognisance of the position that the Date of Separation was not 30.06.2016. He has further urged that since Mr. Atul Beri failed to object to this conclusion in each of these orders at the relevant time, he has tacitly consented to the position that separation has not taken place. He has urged that in the order dated 15.12.2016, this Court had signified its intent to appoint an Escrow Agent to implement the steps towards separation, but Mr. Atul Beri did not agitate at that time that any court-monitored separation ought to be carried out by keeping 30.06.2016 in mind as the Date of Separation. He has contended that the next order passed on 03.01.2017 directed a physical audit of the stock, plant and machinery, receivables, books of accounts, statutory and other records as on that date, which was again never assailed by Mr. Atul Beri who has been presently urging that all like audits should be carried out as on the date of 30.06.2016. Finally, by placing reliance on the order dated 01.11.2018, he contends that even then the Court was trying to find a way for the parties to move forward, which implied that separation had not taken place. I have carefully taken this point into consideration and perused the orders which Mr. Deepak Beri has sought to rely on. To begin with, there is no quarrel with the position that complete separation has not taken place. In fact, paragraphs 2,[3] and 8 of the order dated 01.11.2018, on which such heavy reliance has been placed, only records that the assets must be divided in accordance with the award and, clearly, this order neither makes any mention of the date of separation nor does it proceed on the assumption that no such date has been fixed. Even the OMP(I)(COMM)326-2016 & connect. matters order dated 03.01.2017 does not contain any determinative finding on the issue which is being dealt with by this Court, i.e. the stipulation of a cut-off date. Rather, all the orders sought to be relied upon show an earnest attempt of the Court to arrive upon some interim arrangement till these enforcement petitions were finally decided.

32. In view of my discussion thus far, while I am already of the considered opinion that Mr. Deepak Beri’s contention that 30.06.2016 was not the Date of Separation is not tenable, there is another reason to reject this plea. A glimpse at the extract from the Deed reproduced in paragraph 25 above shows that if either of the parties wanted to change the date of separation, which had been fixed as 30.06.2016, a mechanism had been provided therein to address the dispute by designating the learned Arbitrator as the final deciding authority. In the light of this provision and the fact that the learned Arbitrator had not altered the date of 30.06.2016 in his award or fixed another date of Separation, it is manifest that the date of 30.06.2016 is the final date of separation. In any event, it was also open to Mr. Deepak Beri to move an application before the learned Arbitrator to seek a change or clarification of this date which, as per the admitted position, he did not elect to do. In fact, as has been brought to the notice of this Court by his father and brother, even when their Section 34 petitions against the Award was being considered, Mr. Deepak Beri did not claim a change in the date of separation. Furthermore, it is also interesting to note that Mr. Deepak Beri has previously, in the Section 9 petition filed by him in August 2016, stated in no uncertain terms that the date of separation stipulated in the settlement agreements was 30.06.2016. An extract of this paragraph reads as under: “That a perusal of the aforesaid MOU shows that detailed terms were agreed upon between the parties as to the division of the assets. In fact, it was also agreed in the aforesaid MOU that the effective date of separation OMP(I)(COMM)326-2016 & connect. matters would be June 30, 2016 and in the interim a working arrangement would be put in place, as detailed in the MOU.”

33. Thus, any attempt by Mr. Deepak Beri to feign innocence of the Date of Separation or the factum of having agreed to it in the settlement agreements executed by him, cannot hold ground. I am fortified in this view since the same adheres to the dicta of the Hon’ble Supreme Court in Hari Shankar Singhania (supra) and Kale (supra), relied upon Mr. Deepak Beri, insofar as it is the best course to effectuate the settlement agreements and fulfil the intentions of the family. Both the brothers are admittedly in favour of ending this dispute once and for all and ultimately want this Court to adopt an interpretation which is not only correct in law but also unhindered by technical objections. This is obvious from the prayers in these enforcement petitions, Mr. Deepak Beri has prayed for the following reliefs: “a. Order(s) enforcing the Award dated 02.08.2016 passed by the Arbitrator; b. Appointment of an Observer to oversee the implementation of the division process using the aid and assistance of such persons as may be deemed fit; c. Restraining the parties from acting contrary to the Award and the settlement document; d. Conducting a special / forensic audit for the family concerns to examine the extent of siphoning by Mr. Atul Beri; and e. Appointment of a receiver to take charge of all assets and take over the affairs of the family concerns during the pendency of the division process.”

34. On the other hand, Mr. Atul Beri has prayed for the following reliefs in his enforcement petition: “i) Pass an order enforcing the Award dated 02.08.2016, to the extent upheld by judgment of this Hon'ble Court dated 31.05.2018, in O.M.P. (Comm.) 396/2016 and O.M.P. (Comm.) 382/2016, taking into account details of the remaining steps required to be taken for such enforcement, as detailed by the Petitioner/ Award Holder hereinabove;

(ii) Pass an order restraining the Judgment Debtors or any other person from acting contrary to the terms of the Award dated 02.08.2016.

(iii) Pass any other such order as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.”

35. Thus, the reliefs sought in the petitions preferred by the brothers also show their common intent to ensure that the family businesses, which are as a matter of fact operating independently from each other, are formally and completely separated in law. These parties have been in litigation for over four years now, which has not done any favour to the bitterness and acrimony between them which was the very reason for beginning the process of partition in the first place. Their well-intended decision to appoint Mr. Nagrath to mediate and arbitrate their disputes and execute the three settlement agreements together may have resulted in an immediate backfiring due to a few differences in their opinions, which is expected in intimate familial disputes, but the same cannot be permitted to mushroom any further into even more complicated cycles of litigation. When the parties have made their mutual wish to achieve a quietus in this matter known, there is no reason for their disputes to languish any further before this Court without resolution. For this reason, it was always a matter of the utmost importance to ensure that both parties are duly heard and all their pleadings are thoroughly perused to mete justice to everyone concerned. Thus, even though the agreements, especially the Deed dated 30.04.2016, had clearly set out a date of separation, this Court felt the necessity to go further and examine the steps that the parties had taken during the period of executing these agreements and thereafter. Considering that a number of major steps towards separation stood accomplished, barring those which were dependent on certain accounting and auditing exercises, and the OMP(I)(COMM)326-2016 & connect. matters brothers have continued to operate their businesses separately and independently of each other since 30.06.2016, I have no hesitation in holding that the date of separation of businesses of the family concerns of the Beri family among Messrs. Atul and Deepak Beri, as per the settlement agreements executed by them on 17.02.2016, 14.03.2016 and 30.04.2016, was 30.06.2016.

36. Thus, it is clear that after 01.07.2016, neither does Mr. Deepak Beri have any right or access to DBEPL and BMGL nor does Mr. Atul Beri have any right or access to DBC and SKB. For this reason, the prayers made by both Messrs Atul and Deepak Beri in their Section 9 petitions seeking right of access to the premises or records of, inter alia books of accounts, bank accounts, stock registers of raw materials, plant & machinery, ERP software systems, e-mail addresses, domain names, tax records, etc., of the businesses which are not falling in their share cannot be granted.

37. In the light of this conclusion, it is now time to chart a course for the future by determining how the assets need to be partitioned with reference to the Date of Separation being 30.06.2016. Since it is the common case of the parties that complete separation had not taken place by 30.06.2016 and some steps still need to be taken, they have placed voluminous pleadings on record to suggest further steps which are required to be taken to complete the remaining steps of separation as also to substantiate their claims of the outstanding sums accruing to them. With respect to the latter, they are ad idem that the accounts for all the businesses as on 30.06.2016, which were required to be drawn up, were not. However, they also agree that accounts for the years till 31.03.2015 are available with them, as also the Local Commissioner’s report on this aspect till 15.05.2017 which records the position of the assets, salaries, etc, as on that date. Thus, in my view, there is OMP(I)(COMM)326-2016 & connect. matters considerable material available today to draw out the relevant accounting records for 30.06.2016.

38. As can be seen from the tables reproduced in the Addendum, which are a small fraction of the suggestions received from Deepak Beri, Atul Beri and Mr. S.K. Beri, there are a few nitty-gritty left to be taken care of, not to mention the significant aspect of drawing up the accounts. However, having regard to the nature and complexity of the accounts which need to be drawn up and the steps left to be taken to seal the separation by using 30.06.2016 as the Date of Separation, I am of the view that it would be necessary to appoint a Court Commissioner and a Chartered Accountant, to assist him, and obtain a report from them before proceeding to issue any further directions.

39. The Court Commissioner shall call for and examine the records of all the four businesses pertaining to (i) statutory liabilities and profits, (ii) tangible assets including employee transfers, raw materials, plants and machinery, consumables as existing on 30.06.2016, (iii) intangible assets including software, salaries, bank liabilities, pending orders as they stood on 30.06.2016. While dealing with these aspects, the Court Commissioner shall take into consideration the list of plants and machineries prepared by the learned Arbitrator on 10.06.2016 and the four reports furnished by the previous Court Commissioner appointed by this Court on 03.01.2017. Once this exercise is complete, the Court Commissioner shall reconcile the data pertaining to the tangible and intangible assets, as they existed on 30.06.2016 with the help of the Chartered Accountant, and furnish a detailed report bearing their valuation of the intangible and tangible assets which stand divided thus far. While doing so, the Court Commissioner shall include the following aspects: OMP(I)(COMM)326-2016 & connect. matters i. The quantum of amount spent by either parties in pursuance of court orders or otherwise, as payments to each other or to discharge the liabilities of the businesses which were not falling in their share, including all payments made towards disbursement of salaries, increments, statutory dues, etc. ii. The valuation of the machineries which stood transferred to both the parties on 30.06.2016. iii. The steps which are left to be taken, after obtaining due suggestions from both the parties in this regard. iv. Whether there is any need to conduct a forensic audit in this matter or whether the existing records are sufficient to determine the value of all assets belonging to DBEPL, BMGL, DBC and SKB, as they stood on 30.06.2016. On this aspect, the Court Commissioner shall rely on the professional and technical expertise of the Chartered Accountant, who will give his specific recommendations thereon.

40. Accordingly, Mr. Sudhanshu Batra, Sr. Adv. (+91 9811035392) is appointed as the Court Commissioner. Further, Ravi Rajan & Co. LLP (+91

9810033815) with its office at 505A, 5th floor, Rectangle 1, 4D Saket District Centre, Saket, New Delhi 110017 is appointed as the Chartered Accountant. The Court Commissioner will furnish his report, along with the report of the Chartered Accountant, before this Court by 10.03.2021. Copies thereof shall also be provided to all parties herein. The Court Commissioner and the Chartered Accountant shall be paid sums of INR 7.[5] lakh each, to be borne equally by Messrs. Deepak and Atul Beri. This remuneration may be subject to revision, if found necessary, at a later stage. It will be open for the Court Commissioner and the Chartered Accountant to OMP(I)(COMM)326-2016 & connect. matters call for any other details from the parties, as required. The payment of fee to the Court Commissioner and Chartered Accountant as also the submission of documents to them to be effected within a period of two weeks.

41. Before I conclude, I must observe that even though some of the reliefs sought in the Section 9 petitions have been rendered infructuous, as mentioned previously, there are a few important issues raised therein which can be decided only once the reports of the Court Commissioner and Chartered Accountant are received by this Court. One of these issues pertains to the transfer of property situated at Sector-64, Noida to Mr. Deepak Beri, who is its rightful owner under the settlement, and compensation due to him, if any, on account of being deprived of its possession since 01.07.2016. Similarly, for the time being, this Court is not inclined to pass any directions regarding the conduct of forensic audit of the family concerns as on 30.06.2016. In the light of the discussion thus far, it would be appropriate to pass comprehensive directions in respect of all the remaining steps towards separation, only after receiving the detailed report from the Court Commissioner and the Chartered Accountant.

42. Once the report, as sought hereinabove, is filed before this Court by 10.03.2021, the matter shall be listed for further directions on 21.03.2021.

REKHA PALLI, J. DECEMBER 24, 2020 ADDENDUM TABLE I: Steps admitted to having been taken by Mr. Deepak Beri in paragraph 48 of OMP(Enf)(Comm) 187/2018. S.No. Agreement between the parties How acted upon

1. Shri Deepak Beri (DB) to carry on business in the name of M/s DB Engineering Co. (DBEC) or any other name. Shri Atul Beri (AB) to carry on business in the name of M/s DB Engineering Pvt. Ltd. (DBE) and M/s Benaras Marble & Granite Ltd. (BMG) The parties have accepted the respective names in which they are to carry on future business.

2. DB to get the premises situated in Sectors 6, 59 and 64, NOIDA (U.P.) owned by DBC, DBE and property No.A-119, Okhla which is owned by M/s S. K. Beri& Bros. (SKB&B) DB is in possession of Sector 6, 59 and A-119 Okhla properties. However, DB is yet to receive possession of premises in Sector 64, NOIDA, which is being illegally retained by AB. In addition, the transfer of title of the other premises is also pending. Bank has ordered release of hypothecated documents of Sector 59 and Sector 64, which only needs to be collected from the bank by signing the register by all three parties.

3. AB to get property situated in Sector 68, Sector 11, NOIDA as well as property Admittedly, AB is in exclusive possession of these three properties. OMP(I)(COMM)326-2016 & connect. matters owned by BMG in Phase- II, NOIDA

4. AB was to be paid Rs. 7.50 crores towards cost of construction of a functional unit in Phase-II, NOIDA and an additional 1 crore in terms of Clauses 15 of the MOU These amounts stand already paid to AB by transferring a total amount of Rs. 11,32,00,000/- (Rupees Eleven Crores Thirty Two Lacs only) from the account of DBE to BMG. The aforesaid amounts have been utilized by AB for construction of the unit at Phase-II, NOIDA. This fact can be clearly ascertained from the email of AB to the Ld. Arbitrator dated 29.02.2016 wherein he requested for release of Rs. 2.[5] crores for payment to the Building contractor. Pertinently, on the same day payment of Rs. 2.[5] crores was made to BMG by DBE vide Cheque No. 858576. On the strength of the payments made, AB has been able to construct an entire unit on a barren land.

5. Division of Logos This is done by a Coin Toss on 23.03.2016 duly recorded and signed by nominees of AB and DB in the presence of the Ld. Arbitrator and SKB, who also signed the said paper.

6. Division of ERP Systems SK Beri& Bros (the concern falling to the share of DB) purchased its own ERP Software so as to facilitate the division process. A sum of Rs. 9,73,248/- was spent by SK Beri& Bros towards the same. The underlying objective was to have OMP(I)(COMM)326-2016 & connect. matters separate and distinct ERP Softwares between DBE and SK Beri& Bros, as part of the division.

7. Employees The division of employees in terms of the agreed documents has already taken place, and the employees who have opted by DB and AB were identified and a list was circulated on 07.07.2016. Further, in terms of the agreed documents, an 8% increment has been given to the employees, which is an admitted fact.

8. Servers Emails & Website In pursuance of the division process, separate servers have been purchased by SK Beri & Bros so as to de-link itself from DBE. As part of the division process, SK Beri & Bros have also created new email ID's with the domain 'skberi.com' and has engaged technicians to develop its independent website. DB and his staff were earlier using the domain name "atlasknives.com", which were disabled at the instance of AB. This fact also shows implementation of the division process.

9. Copying & Scanning of Books of Accounts With a view to facilitate the division, it was agreed that records / data would be retained by DB and AB. As part of the said understanding, the records of DBE were digitalized and retained.

10. Intimation of Customers As agreed, the parties have jointly sent various letters to customers regarding the division between the AB Group and the DB Group. It may be pertinent to mention here that AB has also been writing emails to customers claiming that the division process has taken place.

11. Working Capital and Bank Limits As part of the agreed documents, more particularly in terms of Clause 32 of the MOU, DB applied for Working Capital loan and sanction of Credit Facilities in the SK Beri& Bros with Canara Bank, Okhla Branch in April2016. On the basis of the aforesaid application, the Credit Facilities were approved by Canara Bank vide its letter dated 04.06.2016. DB was also authorized by DBE vide its letter dated 03.06.2016 (signed by SKB, AB, DB and Ramesh Beri) to collect the original property papers for the premises which were to fall to DB's share. The term loan availed by DBE has paid off in full under the orders of this Hon'ble Court dated 22nd March, 2018 and the original documents of all properties are currently deposited with the Registrar General, Delhi High Court in terms of the aforesaid order.

12. Telephone Connections As part of the division, an application was made on 17.06.2016 to Airtel for OMP(I)(COMM)326-2016 & connect. matters transferring telephone connections in the name of SK Beri & Bros from DBE.

13. Booking of Orders Pursuant to the division process, orders were booked in SK Beri & Bros, which was hitherto done in the name of DBE. A perusal of the Monthly Sales Order details shows a sudden jump in the value of orders in SK Beri & Bros for the months of February, March, April, May, June and July 2016.

14. Deployment of Security Services In terms of the agreed documents, the parties were to employ ·security services for the respective units. Acting upon the understanding, the services of G4S Secure Solutions (India) P. Ltd. were availed by DBE.

15. Application of Licences/ Permits DB has applied for EEPC and other licenses for the purposes of export in the name of SK Beri& Bros, post the division process. Similarly, license for import has also been applied for.

TABLE II: Steps admitted to having been taken by Mr. Atul Beri in his OMP(Enf)(Comm) 117/2019 as also his written submissions filed in November 2019. Sr. No. Obligation Clause No. Mode/Status of implementation & comments MOU dated 17.02.2016

1. Property at B-113, 114, 115, 131, 132, Sector 6, Noida (Owned by DBC, to go to Deepak Beri).

2 This plot has been in the exclusive possession of Deepak Beri and he is running his LLP from here. Plot is owned by DBC, which is a 50-50 partnership between Deepak Beri and Anuja Beri (Atul’s wife). Anuja may resign from DBC, leaving the firm and property to go to the share of Deepak.

2. Property at C-27, Sector

59 Noida, (belonging to DBEPL, to go to Deepak Beri/SK Beri & Bros) 2&16 Property has been in the exclusive possession of Deepak Beri.

DBEPL used to run its Heat treatment plant from here. This was the mother unit to all other units. Deepak’s exclusive possession of this property has severely hurt the family business. Atul shall cause DBEPL to execute the requisite transfer documents, to transfer this property to SKB, simultaneously with Deepak (and his wife/children) transferring their shareholding in DBEPL and BMGL to Atul, and resigning his Directorship in these Companies.

3. Property at A-32, Sector 64, Noida (belonging to DBEPL, to go to Deepak Beri/ SK Beri & Bros) 2&16 Atul shall cause DBEPL to handover possession and execute the requisite transfer documents, in favour of SKB, simultaneously with Deepak transferring their shareholding in DBEPL and BMGL to Atul, and resigning his Dictatorship in these Companies.

4. Property at A-119, Okhla Phase-II (belonging to SKB, to remain with SKB/Deepak)

2 This property is in possession of Deepak Beri. He is supposedly running S.K Beri and Bros from the same, but actually he is clandestinely running his LLP. Since SKB goes to Deepak Beri, no transfer documents are required to be executed.

5. Property at B-1, Sector 68, Noida (belonging to DBEPL, to go to Atul)

4 In possession of DBEPL. No execution of title documents required. As per the MoU, One-Time Lease Rent was to be borne by DBE and AB-50/50. This has not happened, and has to be accounted for, while computing final adjustment of accounts.

6. Property at F-61, Sector 11, Noida (belonging to DBEPL, to go to Atul)

7. Property at C-57, Phase II, Noida (belonging to BMG, to go to Atul)

8. Plot at C-12 Ecotech-11, Greater Noida, to go to Atul 4 Possession awaited by DBEPL. Deepak Beri be directed to handover requisite documents of allotment.

9. Rs. 7.[5] Cr. to be paid to Atul Beri for Phase II BMG Unit. 5&14a Not done/pending. Has to be accounted for, while computing final adjustment of accounts.

10. Transfer charges payable by DBEPL. 6&14b Will be paid by DBEPL at the time of execution of title documents.

11. Refund of electricity security deposit for Sector 59 and 64.

12. Equal sharing of statutory liabilities/profit (till date of division i.e. 30.06.2016)

13. Division of tangible assets including Plant and machinery, Inventory, and For machinery, there was a list prepared by Mr. Nagrath dated 10.06.2016, as per MoM dated 14.03.2016. Consumables Division and physical shifting of machinery as per the Nagrath list started immediately and continued till about 30.06.2016 but could not be completed because Deepak Beri did not cooperate and started raising disputes. Division of machinery can continue and be completed as per the Nagrath List. Some Inventory and consumable have been consumed with passage of time, they can be divided physically to the extent possible and if required their value as on 30.06.2016 can be divided, as per the statutory records.

14. Software 27 New accounting software has been purchased by Deepak Beri using common funds (from SKB, prior to 30.06.2016). Atul Beri also need to buy new software from common funds, since the old licenses have expired. The cost of new licenses may be accounted for while computing final adjustment of accounts.

15. Division of logo 9 Done & implemented (on 23.03.2016)

16. Separation of original data and documents

10 Pending, as in Deepak’s control. Deepak claims to have digitized the record, for which money from common funds was used. The same needs to be supplied to Atul.

17. Transfer of domain www.atlasknives.com

18. Bank Liabilities 14c All liabilities cleared from DBE. Extra interest paid by DBE may be accounted for, while computing final adjustment of accounts.

19. Change in constitution of companies/cost 14d The same will be taken into account while computing final adjustment of accounts.

20. Rs. 1 Cr. to AB for getting lesser properties

21. Documents for effecting separation

22. Transfer of Ever Sharp Knives to the highest bidder and closure of IE.

23. New Security 21 Done, with effect from May

2016.

24. Accounts and I.T Department at Okhla. Access to be shared with AB by DB 22 Deepak has been refusing to share. May be directed to do so.

25. Employee transfer 24 As per MoM of 14.03.2016, employees have exercised their option of choosing which brother they wish to work for. This was done in March/April 2016. However, from 30.06.2016 to 28.02.2018, workers who had chosen to be with Deepak Beri, but remained on the official rolls of DBE, were paid by DBE. Deepak has to compensate DBE for the same. This may be accounted for while computing final adjustment of accounts.

26. Compensation to employees

27. Division of Net Current Assets 31  The Net current assets of DBEPL as on 30.06.2016 were Rs. 13.35 Crores (share of S.K Beri @ 40%).  The Net current assets of BMGL as on 30.06.2016 were Rs (-) 19..[5] (share of S.K Beri @ 33%). SKB as on 30.06.2016 were Rs. 19.10 crores (share of S.K Beri @ 50%). DBC as on 30.06.2016 were Rs. 0.15 crores (no share of S.K Beri).  Thus, total NCA of the entities stood at Rs. 13.45 crores, after exclusing Mr. S.K Beri’s share of Rs.

8.57 Crores, as on 30.06.2016, the same stood at Rs. 4.88 crores.  Thus, Atul and Deepak’s share in the NCA is Rs. 2.441 crores each.  Deepak has to bring back a sum of Rs. 13.[4] crores, representing the salaries and other dues paid for his employees (working at his units), and other statutory dues pertaining to his units, paid post 30.06.2016, by DBEPL.  Thus, from division of NCA, the sum receivable by Atul is Rs. 1.22 crores and the sum payable by Deepak is (Rs. 13.40- 1.22) = Rs.12.18 crores.

28. Division of loans 32 Not required since loans paid off. Extra interest has to be accounted for, while computing final adjustment of OMP(I)(COMM)326-2016 & connect. matters accounts.

29. SKB to give his portion ultimately

30. Proposed family settlement to be made as per parents wishes

31. Plant and Machinery Division

32. Compensation for Employees

33. Logos 1 Done

34. Order Division Done

35. Stock Division of stocks as on 30.06.2016 can be done as per statutory records.

TABLE III: The table produced by Mr. Atul Beri in paragraph 30 of OMP(Enf)(Comm.) 117/2019 filed by him, which states the remaining steps to be taken towards separation, according to him: Step No. Suggested Steps

1. Mutual transfer of shareholding and ownership interests/ resignation from Directorship. • Share certificates of Deepak and his family in DBEPL and BMGL to be transferred to Atul. • Deepak to resign as Director of DBEPL and BMGL • Atul and his family to transfer their ownership interests in SKB and DBC to Deepak.

2. @Clause 7, 8, 13 & 31 of the MOU: Equal sharing of profits and liabilities till 30.06.2016, Division of tangible assets including Plant and machinery, Inventory, and Consumables and Division of Net Current Assets (NCA), as on 30.06.2016. • The Net current assets of DBEPL as on 30.06.2016 were Rs. 13.35 Crores (share of S.K Beri@ 40%). • The Net current assets of BMGL as on 30.06.2016 were Rs. (-)

19.15 (share of S.K Beri@ 33%). • The Net current assets of SKB as on 30.06.2016 were Rs. 19.10 crores (share of S.K Beri@ 50%). • The Net current assets of DBC as on 30.06.2016 were Rs. 0.15 crores (no share of S.K Beri). • Thus, total NCA of the entities stood at Rs. 13.45 crores, after excluding Mr. S.K. Beri's share of Rs 8.57 Crores, as on 30.06.2016, the same stood at Rs. 4.88 crores. • Thus, Atul and Deepak's share in the NCA is Rs. 2.441 crores each. • Deepak has to bring back a sum of Rs. 13.[4] crores, representing the OMP(I)(COMM)326-2016 & connect. matters salaries and other dues paid for his employees (working at his units), and other statutory dues pertaining to his units, paid post 30.06.2016, by DBEPL. • Thus, from division of NCA, the sum receivable by Atul is Rs. 1.22 crores and the sum payable by Deepak is (Rs. 13.40-1.22) =Rs.

12.18 crores. The financial documents of the companies concerned, and the relevant calculation sheets in this regard are being filed with the List of Documents. • In so far as machinery is concerned, there was a list prepared by Mr. Nagrath dated 10.06.2016, as per the MoM dated 14.03.2016. Division and physical shifting of machinery as per the Nagrath list started immediately and continued till about 30.06.2016, but could not be completed because Deepak did not co-operate and started raising disputes. • Division of machinery can continue and be completed as per the Nagrath List.

3. @Clause 27, MOU: Software • New accounting software has been purchased by Deepak using common funds (from SKB, prior to 30.06.2016). • Atul also needs to buy new software from common funds, since the old licenses have expired. The cost of new licenses may be accounted for while computing final adjustment of accounts.

4. @Clause 9, MOU: Division of logo • Done and implemented, w.e.f. 23.03.2016.

5. @Clause 10, MOU: Separation of original data and documents • Deepak claims to have digitized the record, for which money from common funds was used. The same needs to be supplied to Atul.

6. @Clause 11, MOU: Transfer of domain www.atlasknives.com • Deepak be directed to transfer the domain name to Atul.

7. @Clause 14c), MOU: Bank Liabilities • All liabilities cleared for DBEPL. Extra interest paid by DBEPL, may be accounted for, while computing final adjustment of accounts.

8. @Clause 14d, MOU: Change in constitution of companies/cost • The same will be taken into account while computing final adjustment of accounts.

9. @Clause 15, MOU: Rs. 1 Cr. To AB for getting lesser properties. • Yet to be done.

10. @Clause 16, MOU:Deepak to hand-over all documents pertaining to DBEPL in his possession, including but not limited to Customs shipping bills, Customs certified invoices, import/export books, DGFT licenses (90 in number).

11. @Clause 18, MOU: Transfer of Ever Sharp Knives to the highest bidder and closure of IE Trading. • Pending, to be done by the executing Court.

12. @Clause 21, MOU: New Security • Done, with effect from May 2016.

13. @Clause 22, MOU: Accounts and I.T Department at Okhla. • Access to be shared with Atul by Deepak, but Deepak has been refusing to do so. • Deepak may be directed to share access.

14. @Clause 24, MOU: Transfer of Employees • The employees working at the units of DBEPL, under the control of Deepak, to be transferred to SKB. • As admitted by Deepak in para 48(7) of his Execution Petition, division of employees between Deepak and Atul took place in February 2016. • Thereafter, Deepak's employees have been working exclusively at the units under his control, which admittedly contribute no revenue OMP(I)(COMM)326-2016 & connect. matters to DBEPL. • Thus, only a formal transfer of employees from one entity to the other is pending, which should be done as there can be no dispute that the employees working at Deepak's units have to move to SKB. • Deepak has to compensate DBEPL for the salaries, PF dues and other charges paid for his employees and/or Units, post 30.06.2016. As on date, the amount payable by Deepak under this head is Rs. 13.[4] crores (approx.).

15. @Clause 25, MOU: Compensation to Employees • May be accounted for, while computing final adjustment of accounts.[1]

16. @Clause 32, MOU: Division of loans • Not required since loans paid off. Extra interest has to be accounted for, while computing final adjustment of accounts.

17. Withdrawal of complaints and Indemnity by Deepak. • Deepak has filed complaints against DBEPL before various authorities, including Income Tax, GST, PF, TDS, SFIO related complaints. • Deepak must withdraw all such complaints and undertake not to file further complaints. • Deepak must provide an indemnity to Atul that he shall share in any tax or other statutory liability, if imposed prior to the cut-off date. • All liabilities have to be shared prior to the cut-off date. Thus, if any tax or statutory liability is imposed prior to the cut-off date, especially as a result of complaints initiated by Deepak, he must bear his share of the same.

18. Deepak to give details of all liabilities created by him, in the name of DBEPL, post 30.06.2016, and discharge the same • Deepak has been in possession of DBEPL's Unit at C-27, Sector 59 Noida. • He must give details of all liabilities created in the name of DBEPL, with respect to this unit, since 30.06.2016, discharge the same, and indemnify against any claims raised upon DBEPL, pertaining to this unit.

19. Clauses 4, 5, 14 (a) of MoU, r/w clause 6 (under miscellaneous) of the MoMdt. 14.03.2016:Rs. 9.30 Cr. To be paid to AtulBeri. Not done /pending. Has to be accounted for, while computing final adjustment of accounts, or at the time of exchange of properties, whichever happens first.

20. Exchange of properties: - Property/Company Mode of Implementation @Clause 2, MOU:Property at B-113, 114, 115, 131, 132, Sector 6, Noida, (Owned by DBC, to go to Deepak Beri). •This plot has been in the exclusive possession of Deepak Beri and he is running his private LLP from here. •This plot is owned by DBC, which is a 50-50 partnership between Deepak Beri and Anuja Beri (Atul’s wife). Anuja may resign from DBC, leaving the firm and property to go to the share of Deepak. @Clause 2 & 16, MOU: Property at C-27, Sector 59 Noida, (belonging to DBEPL, to go to Deepak Beri/SK Beri & Bros) • Property has been in the exclusive possession of Deepak Beri.

DBEPL used to run its heat treatment plant from here. This was the mother unit to all other units. Deepak’s exclusive possession of this property has severely hurt the family OMP(I)(COMM)326-2016 & connect. matters businesses. • Atul shall cause DBEPL to execute the requisite transfer documents, to transfer this property to SKB, simultaneously with Deepak transferring their shareholding in DBEPL and BMG to Atul, and resigning his Directorship in these Companies. @Clause 2 & 16, MOU: Property at A-32, Sector 64, Noida, (belonging to DBEPL, to be given to Deepak Beri /S.K Beri & Bros). • Out of the Units in Atul’s possession at the time of execution of the agreements, the Unit @ Sector 64 Noida, had to be handed over to Deepak as per the MOU. • Correspondingly, as per Clauses 4, 5, 14 (a) of MoU, r/w clause 6 (under miscellaneous) of the MoM dt. 14.03.2016, Atul is to receive a total sum of Rs. 9.30 crores. • The crystallised monetary sum(s) receivable by Atul were provided for (a) in view of the difference in property values, and (b) to compensate him, since he was losing, and Deepak was gaining an additional unit. • Accordingly, possession and/or title of this unit can be handed over to Deepak, upon Atul receiving the sum of Rs.

9.30 crores, as per Clauses 4, 5, 14 (a) of MoU, r/w clause 6 (under miscellaneous) of the MoM dt. 14.03.2016, as compensation @Clause 2, MOU: Property at A-119, Okhla Phase-II, belonging to SKB to remain with SKB/Deepak. Since SKB goes to Deepak Beri, no transfer documents are required to be executed. @Clause 4, MOU: Property at B-1, Sector 68, Noida (belonging to DBE, to go to Atul) In possession of DBEPL. No execution of title documents required. However, as per the MoU, One- Time Lease Rent was to be done by Deepak and Atul- 50-50. This has not happened, and has to be accounted for, while computing final adjustment of accounts. @Clause 4, MOU: Property at F-61, Sector 11, Noida (belonging to DBE, to go to Atul) In possession of DBEPL/Atul. @Clause 4, MOU: Plot at C-57, Phase II, Noida (belonging to BMG, to go to Atul) In possession of BMG/Atul. No execution of title documents required. Deepak to resign as Director from BMG and hand over shareholding. @Clause 4, MOU: Plot at C-12, Ecotech-11 Greater Noida, to go to Atul. Possession awaited by DBEPL. Deepak Beri be directed to handover requisite documents of allotment.

21. @Clause 6, MOU: Refund of electricity security deposit for Sector 59 and 64. When DBEPL receives this from UPPCL, it will be shared between Deepak and Atul (50-50)/

22. Ad hoc loan of Rs. 40,00,000/-, by DBEPL to SK Beri and Brothers in terms of Order dated 1.11.2018 needs to be returned to DBEPL.

TABLE IV: The table produced by Mr. Deepak Beri in his reply to OMP(Enf)(Comm) 117/2019, which states the remaining steps to be taken towards separation, according to him: Status as on 24.07.2018 S.No. DOA Person Required Required Steps/Action Implementation

1. Existing Order Auditor/Receiver List out all orders that are available/pending in value Distribute orders equally or share percentage of profit.

2. Additional Orders Auditor/Receiver

3. Hidden Orders Auditor/Receiver

4. Payment to Vendors Auditor/Receiver Over 20 Cr. Already paid by both, now therefore get forensic audit done, list out those that are correct on date. Calculate liability and then share equally. Pay if Bank Balance available after splitting or account for in the current assets and liabilities.

5. Staff (No retrenchment, no soliciting, full and final Auditor/Receiver Make list of all those leaving DBE, make full and final Pay from DBE account. OMP(I)(COMM)326-2016 & connect. matters payment and clear) settlement upto date.

6. Raw Material POs to be signed by both parties then entered. Auditor Receiver Forensic audit to be done since this step was not followed. Distribute final figure equally. Compensate each other for difference, if any.

7. WIP, RM, Finished Goods Auditor/Receiver Forensic Audit to be done to arrive at correct figure. Distribute final figure equally.

8. Production to be caried out Receiver Receiver takes over and fixes up a date till separation. All audit and paper work to be completed and then distribute equally.

9. Managing Plant/all departments were to be done with intimation by MN also Receiver Receiver takes over, appoint new Security Co. Handover to individual Group on fixed date.

10. Security Independent Security to be appointed and no movement without approval. Receiver Receiver takes over, appoints new Security Co. Hands over to individual group on DOS.

11. Books of Account Everything to Auditor/Receiver Get forensic audit done along with regular Divide the final equally. OMP(I)(COMM)326-2016 & connect. matters be recorded and checked Balance sheet to be made given books of last 3 years to Auditor. Audit and finalise accounts

12. IT Separate, B & G and other software Auditor/Receiver List out all that is there make 2 equal list. Distribute equally by Toss.

13. Travelling

14. Independent Unit running not allowed Auditor/Receiver List out all the independent units. Clear them or take them within the company till DOS. Hand them back on DOS.

15. P&M List to be made and distributed. Auditor/Receiver Appoint Chartered Engineer to value machine as per CC list and make 2 equal lists. Distribute equally by Toss.

16. Intangible Mainly software Auditor/Receiver List out all that is owned by the company after Forensic Audi available, make 2 equal lists. Then distribute equally by Toss.

17. Working Capital Approach Bankers OMP(I)(COMM)326-2016 & connect. matters independently.

18. The 30.06.2016 was the DOS or any other date as per MN, all documents to be made by DOS. Receiver Fix up future date of DOS, all accounts upto DOS to be made, documents made of ownership transfer assets and liabilities. Keep with Escrow Handover to each group.

19. Specific Audit and adjust in DB/AB Account Auditor/Receiver Appoint Forensic Auditor for this. Adjust whatever is the difference in each unit/group.

20. Expenses of C[1] Auditor/Receiver Not required since the date 31.03.2016 did not work out.

21. Efforts to finalise account by 30.06.2016 and all accounts to be finalized by then. Auditor/Receiver Fix new date for finalisation of Forensic Audit as well as Statutory Audit. Sign Balance Sheet and file with different Authorities. Terms of the MOU S.No MOU Person Required Implementation OMP(I)(COMM)326-2016 & connect. matters. Required 1-2 What Deepak will get Auditor/ Receiver Handover possession of 64 to Deepak Transfer properties in the correct name and keep it escrow with share transfer certificate from Deepak. Handover on DOS. 3-4 What Atul will get Receiver Pay onetime lease rent for 68 Handover/exchan ge documents when everything is complete and approved by Court on DOS until then in Escrow.

5. Atul to get 7.[5] Cr. Auditor/ Receiver Audit Accounts Pay or get back as the case may be anything above 7.[5] Cr. include Cash Payment of 2.[5] Cr.

6. Transfer of 59/64 to Deepak Receiver Handover possession to Deepak get all ownership documents made and kept in Transfer properties in the Correct name and exchange on DOS. Escrow.

7. Statutory assets and liabilities to be equal Auditor/ Receiver Get forensic audit done and complete account upto DOS. Pay all the dues of all companies and file all returns.

8. All tangible and intangible assets to be divided Auditor/ Receiver Get forensic audit done also chartered engineers to make 2 equal lists. Divide by Toss and handover the each person at his units.

9. Atlas logo to be divided Auditor/ Receiver Get Board Resolution made by DB Engg(P) Ltd for transfer. Handover to Deepak on DOS.

10. Date & Documents to be exchanged. Auditor/ Receiver Make a list of all that is required for each other including DB Engg(P) Ltd. Board Resolution Hand over to DOS.

12 Deepak can use atlas knives after 2 years Receiver Undertakin g from Deepak to this effect Hand over on DOS 13 Machine List Auditor/ Receiver List of CC’s is authentic, get Chartered Engineers to value, make two equal groups Toss for which list to where and then shift to each other unit before DOS

14. Money for separation Auditor/ Receiver Keep 10-

15. Atul to be paid 1 Cr Auditor/ Receiver Get Audit done Pay or get back as required

16. 30.06.16 as cut off date Receiver Decide new date possibly 60 days ahead Finish everything by then

17. Documents to be made Auditor/ Receiver Make all documents get them signed, keep in Escrow Exchange on DOS

18. IE & Eversharp to be distribute Auditor/ Receiver IE insolveme nt for Eversharp toss or bid and make papers for transfer. Handover on DOS

19. Entries in Books with approval of both Auditor/ Receiver Get forensic Audit done and account for everything Make adjustment on group account as required.

21. Common Security Auditor/ Receiver Appoint independe nt security in all units Handover unit on DOS

22. IT Personal & Hardware Auditor/ Receiver List out whatever is not done Handover unit to each group

23. Representative to be run units i.e. other than family Receiver Receiver is appointed, he is not family Hand back everything on DOS

24. Employees to be given an option Auditor/ Receiver Make list and amount due for those who decided to move from DBE Pay & Clear before DOS 25 & Compensation to Auditor/ Make list Pay & Clear 26 be given and full & final Receiver and amount due for those who will move. before DOS

27 Intangible Assets like software Auditor/ Receiver Make list two equal if not possible buy and make equal or compensat e in money. Distribute on DOS

28. To have equal share Receiver Will be done once everything is achieved

29. Restriction of Business Nothing needs to be done.

30. Accounts to be prepared/maintain ed till date with knowledge of all Auditor/ Receiver Get forensic Audit done Books and final account to be made upto DOS finalized and signed by all.

31. Current assets to be divided Auditor/ Receiver Get Forensic Audit done arrive at correct figure Divide equally 32 Will approach No limit Both can do OMP(I)(COMM)326-2016 & connect. matters bank for working capital now individually after DOS 33 SK Beri holds his share Auditor/ Receiver Take average share in all companies arrive at his percentage of ownership Get papers made for his share, also papers for his shares finally going to Deepak and Atul.

35 Code of Conduct Receiver Receiver to decide 36 GK JB other family properties Court Oral settlement done Get it in writing and approved by Court

37. All assets and liabilities of DBE and other to be finalized and shared equally Auditor/Receiv er Get Forensic Audit Done Distribute equally on DOS

38. No email to be sent Receiver Receiver to decide

39. MOU Binding Court Court has given its order on