{"id":19847,"date":"2011-02-09T00:00:00","date_gmt":"2011-02-08T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/nimish-vs-anil-on-9-february-2011"},"modified":"2016-11-24T08:29:00","modified_gmt":"2016-11-24T02:59:00","slug":"nimish-vs-anil-on-9-february-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/nimish-vs-anil-on-9-february-2011","title":{"rendered":"Nimish vs Anil on 9 February, 2011"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Nimish vs Anil on 9 February, 2011<\/div>\n
Author: D.A.Mehta,&Nbsp;<\/div>\n
   Gujarat High Court Case Information System \n\n  \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nIAAP\/44\/2004\t 13\/ 15\tJUDGMENT \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nPETN.\nUNDER ARBITRATION ACT No. 44 of 2004\n \n\n \n \nFor\nApproval and Signature:  \n \nHONOURABLE\nMR.JUSTICE D.A.MEHTA  \nSd\/- \n \n======================================\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n1\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tReporters of Local Papers may be allowed to see the judgment ? NO\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n2\n\t\t\n\t\t \n\t\t\t \n\nTo\n\t\t\tbe referred to the Reporter or not? NO\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n3\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\ttheir Lordships wish to see the fair copy of the judgment ? NO\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n4\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tthis case involves a substantial question of law as to the\n\t\t\tinterpretation of the constitution of India, 1950 or any order\n\t\t\tmade thereunder ? NO\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n5\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tit is to be circulated to the civil judge ? NO\n\t\t\n\t\n\n \n\n \n======================================\n\n\n \n\nNIMISH\nK VASA - Petitioner(s)\n \n\nVersus\n \n\nANIL\nJAIN - Respondent(s)\n \n\n============================================= \nAppearance\n: \nMR MIHIR THAKORE, SENIOR\nADVOCATE WITH MR MANAV A MEHTA for Petitioner(s) : 1, \nMR MIHIR\nJOSHI, SENIOR ADVOCATE, MR PERCY KAVINA, MR RASHESH SANJANWALA, MR\nSANDEEP SINGHI WITH MR A.M.HAVA FOR SINGHI & CO for Respondent(s)\n: 1, \n======================================\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE D.A.MEHTA\n\t\t\n\t\n\n \n\n \n \n\n\n \n\nDate\n: 29\/02\/2008 \n\n \n\nORAL\nJUDGMENT<\/pre>\n
1\tOn
\n26.04.2006 the Designated Judge had made an order appointing sole
\nArbitrator. However, when the said order  was carried  by way of
\nappeal before the  Apex Court,  vide order dated  18.09.2006 in Civil
\nAppeal No.  4175 the following order came to be made by the Apex
\nCourt :\n<\/p>\n
?SWe, accordingly,
\nset aside the order passed by the learned  Single Judge dated
\n26.4.2006 and remit the  case back to  the learned Single Judge to
\ndecide the issue  afresh in light of the  decision  of this Court  in
\nthe case of  Patel Engineering Ltd. (supra) by a detailed reasoned
\norder. It is expected that the learned Single Judge  will dispose of
\nthe matter expeditiously??.\n<\/p>\n
\tHence,
\nthis matter has been heard afresh and the following order is made :\n<\/p>\n
2\tThis
\npetition  for appointment of an Arbitrator  under the provisions  of
\nsection 11(6) of The Arbitration and Conciliation
\nAct, 1996 (the Act) is based on a share holders agreement
\n(the Agreement) stated to have been  entered into by the parties  on
\n04.04.2000 (when the said Agreement has been actually executed
\nsometime in October\/November 2001) and Memorandum of Understanding
\n(MoU) executed on 10.04.2000.\n<\/p>\n
3\tOn
\n10.04.2000 when the MoU between the petitioner and the respondent was
\n entered into  the project was for manufacture and sale of  Para
\nAnisic Aldehyde and other related products and the objective was :
\n?STo float a joint  venture company, 50:50 equity sharing  by NKV
\nand AMJ for entering into a new product  line of PAA and its related
\nderivatives. NKV  & AMJ  to invest  an amount  of Rs.10 lacs
\neach as equity in the new JV Company Profit and Loss will be  equally
\n shared (50:50) by NKV\/AMJ??. Pursuant to the MoU\ta sum
\nof Rs.10 lacs in the form of share application money was forwarded by
\nthe petitioner  by two cheques  of Rs. 5 lacs each to the respondent.
\nAccording to the petitioner  the MoU was acted  upon by the parties
\nand for this purpose various inter office correspondence has been
\nrelied upon by the petitioner.  According to the petitioner  the
\nshare holders agreement though shown to have been executed on
\n04.04.2000 was admittedly executed on or around October\/November,
\n2001 and  this fact has been accepted in paragraph No. 6 of the
\nadditional affidavit dated 28.06.2007 filed by the petitioner.  This
\nadditional affidavit came to be preferred because a preliminary
\nobjection was raised on behalf of the respondent that the petition is
\nrequired to be rejected solely on the ground that the petitioner has
\nmade false statements in the petition (Paragraph Nos. 2 and 10) which
\nare contrary to the record. According to the respondent though the
\npetitioner  claims that  the statement by the petitioner that the MoU
\nwas in furtherance of the Agreement was made as per oral
\nunderstanding, the said statement  is false,  and the petitioner,
\nknowing such averment to be false made the statement consciously
\nbecause in absence of the MoU being linked up with the  Agreement,
\nClause No.10 of the Agreement relating to appointment of  an
\nArbitrator could not have been invoked by the petitioner.\n<\/p>\n
4\tIn
\nadditional affidavit dated 28.06.2007 filed by the petitioner the
\naverments made in paragraph Nos. 2 and 10 of the petition have been
\nexplained in the following manner :\n<\/p>\n
?S3.\tI state that
\nfrom the above  paragraphs of the petition  it would be evident that
\nI have stated as under : (i) The share holder  agreement was  entered
\ninto on 4.4.2000 at Ahmedabad, (ii) immediately  after the execution
\nof the share holders agreement the petitioner  and the  respondent
\nentered  into a Memorandum of Understanding on 10.4.2000 (iii) The
\nMOU  is in furtherance  of the agreement.\n<\/p>\n
4.\tI say that the
\naforesaid statements were made on  the apparent reading of the
\naforesaid documents. More than four and  half years had elapsed since
\nthe execution of the document and I did not  remember the  exact
\nsequence in which the same were executed. I state that had I
\nremembered the  sequence I would have stated : (i) Memorandum of
\nUnderstanding was  entered into on 10.4.2000 (ii) the Share Holders
\nAgreement  was entered into in furtherance of the MOU (iii) The Share
\nHolder’s agreement though  entered into in furtherance  of the MOU
\nwas to also govern  the relations between the parties. The parties
\nfelt that  it should be  predated  to the MOU and accordingly by
\nmutual understanding it was predated.\n<\/p>\n
5.\tI state that
\nthere was absolutely no oblique motive  in making  statement made by
\nme in para 2 and 10 of the petition.  The incorrect sequence makes
\nabsolutely no difference in so far as the relief  sought in the
\npetition is concerned for the only relief which  I am seeking  is
\nappointment  of arbitrator  pursuant to the  Clause 10 of the share
\nholder’s  agreement  for determination of my civil  rights. I state
\nthat such error in stating the  sequence of the execution  of
\nagreements more so when parties  mutually agreed to predate it cannot
\n deprive me  to my rights to obtain adjudication from an appropriate
\nforum.\n<\/p>\n
6\tI say in the
\naffidavit  in reply, the respondent  stated (i) that no company by
\nthe name of Ascent  Fine Chemicals Pvt. Ltd. , was at all in
\nexistence on the purported date of the alleged share holders
\nagreement i.e. on 4.4.2000 (ii) no reference to the  clause of the
\nsaid agreement can be made since it was not acted upon or implemented
\nat all and subsequently  abandoned (iii) there is no Arbitration
\nAgreement  at all (iv) disputes raised do not even purport to have
\narisen in respect of legal relationship contemplated under  the share
\nholders agreement (v) that it is denied  that MOU was executed after
\nthe share holders agreement  or that it was in furtherance of share
\nholders agreement (vi) the dispute raised are under the  MOU and not
\nunder the share holders  agreement (viii) MOU was only partly acted
\nupon for a limited period and  then given a go by (vii) to avoid  my
\nobligations  under the MOU, I requested the respondent  to execute  a
\nshare holders agreement in or about October\/November 2001, in a
\nmanner to be purportedly effective from the beginning??.\n<\/p>\n
5\tIn
\nlight of  the fact that the  petitioner has accepted that though the
\nAgreement  is dated 04.04.2000 despite having been executed in
\nOctober\/November 2001, the Agreement is admittedly predated it is not
\nnecessary to record the facts  and evidence, available on record, as
\ncontended by the respondent.  Suffice it to state that the only
\nquestion  that would then survive is whether MoU and the Agreement
\nare required to be read in conjunction  so as to bring  the MoU
\nwithin the scope of Clause No.10 of the Agreement.\n<\/p>\n
6\tFor
\nthis purpose the relevant part of the Agreement may be considered.
\nClause No. 1.2 of the Agreement  under the head ‘BUSINESS OF THE
\nCOMPANY’ stipulates that  each of the party agrees  to exercise  its
\nrights  hereunder  and as a  shareholder so as to ensure  that AFPL
\nperforms  and complies with all obligations  on its part under this
\nAgreement and complies with  the  restrictions imposed upon it
\nherein. Under Clause No. 2.3.1 relating to ‘MANAGEMENT OF THE
\nCOMPANY’ it is provided that the Board shall comprise of  2 Directors
\nor  such other  number as  mutually agreed, subject to a  maximum of
\n12 Directors  unless the  parties agree  otherwise in writing. Mr.
\nAnil Jain\/Mr.Nimish K Vasa  will be appointed  as Managing Directors
\nand they shall not be liable to retire  by rotation. Thereafter under
\nClause No. 2.3.4 the rights of both the parties  to act as Directors
\nhave been specified.  However, what is material  is that the rights
\navailable both to the petitioner and the respondent  are available
\nso long as the petitioner  and the respondent own 50% shares of
\nAFPL. The ‘TERM’ of the Agreement is specified  vide Clause No.8 of
\nthe Agreement. Under the ‘GENERAL’ clause  viz. Clause No.9 none of
\nthe parties to the Agreement  are entitled to assign or transfer  its
\nrights  or obligations under the Agreement without the prior  written
\nconsent of the parties to the Agreement, except as expressly
\nprovided in the Agreement.\n<\/p>\n
7\tClause
\nNo. 10 relating to ‘ARBITRATION’ reads as under :\n<\/p>\n
?S10\tARBITRATION<\/p>\n
This Agreement shall
\nbe governed by and construed  in accordance with  the substantive
\nlaws of India and  any dispute or difference of whatever nature
\narising under  out of or in connection with this Agreement,
\nincluding any question regarding  its existence, validity or
\ntermination,  shall be referred  to and finally resolved by
\narbitration under  the Arbitration and Reconciliation Act, and the
\nplace of Arbitration shall be in Ahmedabad??.\n<\/p>\n
8\t<\/span><\/p>\n
If the Agreement  and the MoU  are read closely  there is nothing to
\nindicate  that the MoU is in furtherance of the Agreement, as claimed
\nby the petitioner.  This is not only apparent from the language
\nemployed both in MoU and the Agreement, but also from the fact that
\nthe Agreement  was in fact  executed almost after a year and half
\nfrom the date of execution of the MoU.  It is in this context that
\nthe contention of the petitioner as regards the dispute stated to
\nhave arisen between the parties regarding the profits from the joint
\nventure shall have to be appreciated.\n<\/p>\n
9\tThough
\nthe correspondence on record might prima facie reveal that certain
\nsteps were taken to give effect to MoU those steps cannot go to
\nestablish  that the MoU has to be read as being either  dependent on
\nthe Agreement or vice versa;OR the MoU being in conjunction with the
\nAgreement or vice versa; OR the MoU being in furtherance of the
\nAgreement.  According to the petitioner, AFPL was not  being properly
\nrun and this was because the respondent was not serious in
\nimplementing the Agreement and the MoU. That in fact  the proprietary
\ninformation regarding ?SPara Anisic Aldehyde and
\nother related products??  provided by the petitioner was
\nbeing used  by the respondent in collusion with one other company
\nnamed ?SMetro Chem Industries Ltd.??,
\nwherein the elder brother of the respondent was Chairman\/Managing
\nDirector. Therefore, the petitioner was entitled to the share of
\nprofits which were being earned by such user but the respondent was
\nnot parting with such profits. Another claim made by the petitioner
\nwas that  the petitioner having proposed and initiated the joint
\nventure  the petitioner was entitled to be adequately compensated for
\nsuch efforts.\n<\/p>\n
10\tAs
\nagainst that  according to the respondent  due to prevalent market
\nsituation  there was steep fall in the  realisable price  of the
\nproducts and therefore  the respondent had at one point of time
\nsuggested payment  of fixed commission to the petitioner on the sales
\nmade for a period of five years. That till the date the dispute was
\nraised by the petitioner viz. sometime in April, 2002,  the
\nrespondent was ready and willing to pay Rs. 20 lacs to the petitioner
\nbeing one-half of profits stated to have been earned by AFPL. The
\noffer made by the respondent was not acceptable to the petitioner.
\nAccording to the petitioner, the petitioner was entitled to atleast
\na sum of Rs.20 crores by way of compensation for the product
\nmanufactured by the respondent otherwise than as per the Agreement
\nand the MoU. The basis for such computation, according to the
\npetitioner is 50% of the profits on the estimated manufacture of such
\nproduct for a period of ten years from 01.04.2003. According to the
\npetitioner this claim arises  because of breach of the MoU and the
\nAgreement and the manufacture being not undertaken by AFPL. The
\nrespondent on the other hand submits that the Agreement was  never
\neffective and there is no breach of the Agreement. It was therefore
\ncontended on behalf of the petitioner that whether the petitioner was
\nentitled to compensation\/damages as claimed, or any lesser amount,
\ncan be decided by the Arbitrator to be appointed.\n<\/p>\n
11\tIt
\nis an accepted position between the parties that the amount of Rs.10
\nlacs paid by the petitioner towards share application money has been
\nreturned to the petitioner and deposited by the petitioner in his
\nBank Account  on 15.05.2003. This has been followed by an amount of
\nRs.1,10,384\/- paid to the petitioner towards interest on the equity
\ncontribution made by the petitioner as the funds were utilised in the
\nmeantime without any shares being allotted to the petitioner.  The
\nrecord further reveals that  the petitioner has received in all sum
\nof Rs.20 lacs in two tranches, each of Rs. 10 lacs, on 01.07.2003 and
\n9.7.2003 towards share of  past profits arising out of  the joint
\nventure. Further sum of Rs. 8.88 lacs towards the amount of
\ncommission on sales  has also been paid to the petitioner  on
\n19.08.2003.\n<\/p>\n
12<\/span><\/p>\n
\tIn light of the aforesaid position the respondent has resisted
\nappointment of  an Arbitrator as according to the respondent nearly
\nafter 13 months of accepting aforestated  payments, on 14.09.2004,
\nthe petitioner for the first time claimed a sum of Rs.20 crores as
\ncompensation while seeking appointment of an Arbitrator by suggesting
\nname of one Shri Mahendrabhai G. Lodha. The respondent has resisted
\nthe claims made by the petitioner pointing out that in so far as MoU
\nis concerned  there is no clause for arbitration and the Agreement
\n(which has an arbitration clause) does not  talk of any distribution
\nof profits. That in fact the Agreement was never given effect to in
\nas much as no shares were allotted to either of the parties and only
\nbecause of payment of share application money  the Agreement which
\nwas between proposed share holders cannot be given effect to so as to
\nread the same in conjunction with MoU.\n<\/p>\n
13\tThough
\nboth the sides have placed reliance on various decisions it is not
\nnecessary to enumerate the same. Suffice it to state that all the
\ncited decisions have been taken into consideration bearing in mind
\nthe ratio laid down in each of the judgments. The only question as a
\nDesignated Judge, in exercise of powers  u\/s. 11 of the Act, which is
\nrequired to be considered and decided is whether [a] there is an
\nexistence of arbitration agreement between the parties; [b] the
\ncontract between the parties stands concluded\/exhausted by the
\nparties  having mutually satisfied their rights and obligations under
\nthe contract without any demur; [c] the dispute, if any, is within
\nthe scope of the arbitration agreement;[d] the claim for arbitration
\nis not barred by limitation.\n<\/p>\n
14\tAs
\nalready noticed hereinbefore, Agreement dated 04.04.2000, admittedly
\nexecuted in October\/November,2001 was in relation to subscribing to
\nthe share capital of  the company to be floated by the parties to the
\nAgreement for which the petitioner had paid Rs. 10 lacs. However, no
\nshares were in fact issued, not only to the petitioner but to anyone
\nelse, including the respondent.  Therefore, neither the petitioner
\nnor the respondent could  describe themselves  as shareholders in
\nstrict sense of the term qua the Agreement. A faint attempt on behalf
\nof the petitioner was made to contend that the term ‘shareholder’ has
\nto be understood in context of  each of the parties being
\nshareholders of some other limited companies. The said contention
\ndoes not merit acceptance when one reads Agreement  as a whole. In
\nthe circumstances, it cannot be stated that the Agreement had  come
\ninto effect.\n<\/p>\n
15\tThe
\nalternative contention of the respondent in this regard also merits
\nacceptance. Even if the Agreement had come into existence the day
\nthe petitioner was  refunded the share application monies without any
\nissuance of shares at any  point of time the Agreement stood
\nterminated as the petitioner could no longer describe himself  as a
\nshareholder  of AFPL. Even otherwise by virtue of the correspondence
\nexchanged between the parties,  the Agreement came to be substituted
\nby a novatio when the petitioner agreed to accept the commission on
\nsales  at a stipulated percentage and in fact  accepted the payment
\nof Rs.8.88 lacs.\n<\/p>\n
16\tIn
\nlight of the facts recorded hereinbefore, and more particularly in
\nlight of the payments received by the petitioner, it becomes apparent
\nthat the contract between the parties exhausted itself as the mutual
\nrights and obligations were satisfied by the conduct of the receiving
\nparty. The respondent is right in contending that thereafter, after a
\nspan of nearly a year and half, the petitioner could not have raised
\na fresh claim dehors the Agreement, more particularly considering the
\nfact that the MoU and the Agreement are not shown to be operative in
\nconjunction.\n<\/p>\n
17\tLastly,
\n it is not possible to accept the submission of the petitioner that
\nthe claim of Rs.20 crores viz. disputed amount, is an issue which
\narises either from the Agreement or MoU. In fact in none of the
\ndocuments is there any clause which stipulates compensation towards
\nfuture profits on an estimated basis. Therefore, it is not possible
\nto state that any dispute in relation to such sum of Rs.20 crores
\narises between the parties. In fact, as admitted by the petitioner,
\nthe said figure has been worked out on the project profits for the
\nfuture period of 10 years from 01.04.2003. In the circumstances, it
\nis not possible to accept the stand of the petitioner that the
\npetitioner has been deprived of such future profits, which may or may
\nnot be earned by the respondent, as a consequence of termination of
\nthe Agreement between the parties.\n<\/p>\n
18\tIn
\nthe circumstances, in light of settled legal position, more
\nparticularly the Apex Court decision in the case of
\nSBP & Co. Vs. Patel Engineering Ltd.& Anr. (2005) 8 SCC 618
\nthe petition does not merit acceptance as prima facie no case is made
\nout by the petitioner for appointment of an Arbitrator in light of
\nthe parameters enunciated by the Apex Court.\n<\/p>\n
19\tThe
\npetition is accordingly rejected with no order as to costs.\n<\/p>\n
\t\t\t\t\t\t\t\t\tSd\/-\n<\/p>\n
                                                             (D.A.\n<\/p>\n
Mehta, J.)<\/p>\n
M.M.BHATT<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Nimish vs Anil on 9 February, 2011 Author: D.A.Mehta,&Nbsp; Gujarat High Court Case Information System Print IAAP\/44\/2004 13\/ 15 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD PETN. UNDER ARBITRATION ACT No. 44 of 2004 For Approval and Signature: HONOURABLE MR.JUSTICE D.A.MEHTA Sd\/- ====================================== 1 Whether Reporters of Local Papers may […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-19847","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nNimish vs Anil on 9 February, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/nimish-vs-anil-on-9-february-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Nimish vs Anil on 9 February, 2011 - 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