Company petitions - Dream Project - Joint venture - disputes arose - company Law board order to maintain status quo pending main - becomes final - civil case turned as criminal case on ground of forged records filed petitions under sec.340 Cr.P.C. - a prayer was offered to put an end to the litigation - compromise effects not fertiled - Apex court held that In a situation like this, we are of the opinion that more appropriate orders would be to direct the parties to maintain status quo in the meantime, during the pendency of the aforesaid company petition before the CLB. However, we make it clear that if any exigency arises necessitating some interim orders, it would be open to the parties to approach the CLB for appropriate directions. Both these petitions are disposed of in the aforesaid terms. All other pending I.As including criminal contempt petitions and petitions filed under Section 340 Cr. PC are also disposed of as in the facts of this case, we are not inclined to entertain such application. No costs.=
The only aspect on which some directions need to be given are,
as to what should be the interim arrangement. The Bakshi Group wants
orders dated 31.1.2008 passed by CLB to continue the interregnum. The
Khosla Group on the other hand refers to orders dated 11.4.2008 as it
is their submission that this was a consent order passed by the High
Court after the orders of the CLB and, therefore, this order should
govern the field in the meantime..
After considering the matter,
we are of the opinion that it is
not necessary to either enforce orders dated 31.1.2008 passed by the
CLB or orders dated 11.4.2008 passed by the High Court.
Fact remains
that there has been a complete deadlock, as far as affairs of the
Company are concerned.
The project has not taken off. It is almost dead at present.
Unless the parties re-concile, there is no chance for a
joint venture i.e. to develop the resort, as per the MOU dated
21.12.2005.
It is only after the decision of CLB, whereby the
respective rights of the parties are crystallised, it would be possible
to know about the future of this project.
Even the Company in question
is also defunct at present as it has no other business activity or
venture.
In a situation like this, we are of the opinion that more
appropriate orders would be to direct the parties to maintain status
quo in the meantime, during the pendency of the aforesaid company
petition before the CLB.
However, we make it clear that if any exigency
arises necessitating some interim orders, it would be open to the
parties to approach the CLB for appropriate directions.
24. Both these petitions are disposed of in the aforesaid terms.
All
other pending I.As including criminal contempt petitions and petitions
filed under Section 340 Cr. PC are also disposed of as in the facts of
this case, we are not inclined to entertain such application. No costs.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION (CRIMINAL) NO. 6873 OF 2010
Mr. Vikram Bakshi & Ors. …. Petitioner
(s)
versus
Ms. Sonia Khosla (Dead) By Lrs. …. Respondent
(s)
With
SLP(C)No. 23796-23798/2010
Contmt. Pet. (Crl.) No. 4/13 In SLP (Crl.) No. 6873 of 2010
J U D G M E N T
A.K. SIKRI, J.
1. A spate of litigation between the two groups depicts a severe fight
between them where settlement appears to be a distant dream, at least
as of now, with tough positions taken and on each and every facet/
nuance of the disputes, they have joined issues. However, we are happy
to find consensual approach on one aspect at least viz. the future
course of action that needs to be adopted in these matters which have
landed in this Court (albeit against interim orders) as the proceedings
are still pending at different levels either in the Company Law Board
or in the High Court. This much positive stance, aimed at cutting the
corners and edging out the niceties for early resolution of the main
dispute between the parties needs to be commended. For this reason,
apart from stating the controversy involved in each of the matters, our
purpose would be served in stating the course of action which needs to
be adopted, as agreed between the parties, without going into the nitty
gritty of the issues involved. With this introduction we describe
hereinbelow the nature of the dispute in these petitions.
SLP(Crl) No. 6873 of 2010
2. When the two parties joined together for collaborative business
venture, it is but natural that the relationship starts with mutual
trust and faith in each other. At the time of fostering such a
relationship, they expect that with joint efforts in the proposed
business venture, they would be able to achieve unparallel milestones,
which would otherwise be impossible with their individual efforts. The
joining together is with the aim of making one plus one as eleven and
not two. However, over a period of time, if due to unfortunate and
unforeseen circumstances/ events, the relationship becomes bitter and
the two collaborative partners fall apart, it results in a position
where one minus one is not only reduced to zero but becomes negative.
That perhaps is the story of the present litigation and if the disputes
are not resolved early, either by adjudicatory process or amicably
between the parties, the negative factor will keep growing and keep
widening its fangs which may not be conducive to any of the litigants
before us.
3. The respondents herein (hereinafter referred to as the Khosla Group)
are the owners of the prime lands in Kasauli, District Solan, Himachal
Pradesh. Legally, this land is owned by Montreaux Resort Pvt. Ltd.
(MRL, for short) and share holding of the MRL was earlier exclusively
held by the family members of the Khosla Group. It was their vision to
develop this real estate into a tourist resort of repute. The Khosla
group needed requisite finances and administrative expertise for this
purpose. The petitioners (hereinafter referred to as the Bakshi Group)
extended its helping hand. In fact it was conceived as a dream project
of both the groups. For this purpose MOU dated 21.12.2005 was entered
into between Mr. Deepak Khosla, Mr. R.P. Khosla, MRL and Mr. Vikram
Bakshi. The project was joint venture between the Khosla Group and Mr.
Vikram Bakshi wherein the Bakshi Group was to pump in the necessary
finances and to take charge of administration by managing the entire
project. MRL was the special purpose vehicle for the execution of the
project. The MOU envisaged transfer of shareholding in MRL by Khosla
Group to Vikram Bakshi on certain demands made by the latter to the
former.
4. Pursuant to the MOU dated 23.12.2005, Mr. Vinod Surah and Mr. Wadia
Prakash (nominees of Mr. Vikram bakshi) were appointed as Additional
Directors of MRL. An agreement dated 31.3.2006 was entered, for
executing the proposed project, between the respondent, Ms. Sonia
Khosla, wife of Mr. Deepak Khosla, Mr. R.P. Khosla, MRL and Mr. Vikram
Bakshi. The agreement recorded that 51% shareholding in the company had
been transferred to Mr. Vikram Bakshi. The said agreement, inter alia,
provided that:
(a) Land for the project shall be purchased in the name of
MRL.
(b) The responsibility of development of lands, managing the
project and arranging finances would be that of Mr. Vikram
Bakshi.
(c) Khosla's would be paid a total consideration of Rs. 6.44
crores on completion of different milestones of which an
amount of Rs. 3.30 crores was to be as a loan bearing interest
@ 12% per annum.
(d) Khosla's would sell their entire shareholding in MRL to
Mr. Vikram Bakshi.
5. For some reasons (both the groups have their own version in this behalf
with blame game against each other) the project did not kick off and
ran into rough weather with the sowing of the seeds of mutual distrust
and lack of faith. It led to filing of a petition under Section 397 and
398 of the Companies Act by Ms. Sonia Khosla against Bakshi Group,
though in that petition she impleaded some of the members of Khosla
family also as respondents (may be performa respondents). Her
allegation was that she held 49% shares in the Company which had been
further reduced to 36% and that the affairs of the Company were being
managed in a manner oppressive to the minority shareholders. In this
petition she admitted that majority shareholding was with Mr. Vikram
Bakshi.
6. The relief prayed for in the said petition, inter alia, was for passing
an order for removal of the petitioners from the Board of Directors of
the Company. Various miscellaneous applications came to be filed in the
aforesaid petition. Notably among those was an application under
Section 8 of the Arbitration and Conciliation Act filed by Mr. Vikram
Bakshi. Mr. Vineet Khosla also filed an application claiming himself to
be the Director of the Company and alleging that Mr. Wadia Prakash and
Mr. Vinod Surah had ceased to be the Directors of the Company on
30.9.2006 since they were not confirmed in the AGM of the Company and,
therefore, the subsequent appointment of Mr. Vikram Bakshi by the Board
was bad in law.
7. Another significant development which took place was that on 18.12.2007
purported meeting of the Company was held by Ms. Sonia Khosla and Mr.
Vinay Khosla wherein Mr. Deepak Khosla and Mr. R.K. Garg were appointed
as the Directors of the Company and in this meeting the Board of the
Company allotted 6.58 lakhs equity shares to eleven persons of the
Khosla Group. It hardly needs to be mentioned that the Bakshi Group
contends that this alleged meeting on 18.12.2007 was of illegally
constituted Board. The Bakshi Group also taken the position that Mr.
Wadia Prakash and Mr. Vinod Surah continue to be legally appointed
Directors and likewise appointment of Mr. Vikram Bakshi by the Board of
the Company was also as per law.
8. The Company Law Board (CLB) passed orders dated 31.1.2008 directing the
maintenance of status quo with regard to the shareholding and the
Directors of the Company as it existed on the date of the filing of the
petition i.e. 13.8.2007. Observations were made in this order that the
respondent-Sonia Khosla had tried to overreach the CLB by changing it
composition and to increase the share capital of the Company.
9. Aggrieved by this order of the CLB, Mr. R.P. Khosla filed the appeal in
the High Court of Delhi. However, he sought permission to withdraw the
appeal. On 11.4.2008, noticing that the parties had agreed that C.P.
No. 114/2007 is to be withdrawn and the status quo as on the date of
filing of the said petition would be maintained, the said C.P. was
dismissed as withdrawn. Sonia Khosla had also filed appeal against the
same very order dated 31.1.2008 of the CLB. This was also dismissed by
the High Court on 22.4.2008, albiet on merits. Both Mr. R.P. Khosla as
well as Sonia Khosla filed Review Petitions seeking review of orders
dated 11.4.2008 and 22.4.2008 respectively. These Review Petitions were
also dismissed on 6.5.2008.
10. As the things stood at that stage, the effect of the aforesaid
proceedings was that the order dated 31.1.2008 passed by CLB continued
to operate. It is at that stage, the litigation started taking a
different turn altogether.
11. Ms. Sonia Khosla filed an application under Section 340 of the Code of
Criminal Procedure (Cr.PC) before the CLB alleging that forged
documents were filed before the CLB. However, while this application is
still pending before the CLB, in October, 2008 she filed another
application under Section 340 Cr. PC in the High Court of Delhi on the
same very grounds which were taken in the application before CLB. She
sought prosecution of the petitioners under Section 195(i)(b)(ii) read
with Section 340 Cr. PC alleging that the minutes of the AGM of the
Company allegedly held on 30.9.2006 were forged. The reason given
therein to approach the High Court was that she was forced to file the
petition in the High Court as there was a complete inaction on the
part of CLB on her application before it. She sought to rest her
application on sub-section 2 of Section 340 Cr. PC for its
maintainability in the High Court. In this application orders dated
15.2.2010 are passed by the High Court and that order is the subject
matter of challenge in the present proceedings. As can be easily
discerned, the petitioners' main contention is that application u/s 340
Cr. PC is not maintainable.
SLP(C)No. 23796-98 of 2010
12. As mentioned above, in the Company Petition filed by Ms. Sonia Khosla
interim orders dated 31.1.2008 were passed by the CLB directing the
parties to maintain status quo with regard to shareholding and the
Directors of the Company as it existed on the date of filing of the
Company Petition i.e. 13.8.2007. The consequences thereof was not to
give effect to the purported Board meeting of the Company on 14.12.2007
wherein Mr. Deepak Khosla and Mr. R.K. Garg were inducted as Directors
and there was also an allotment of 6.58 lakhs equity shares to the
persons of Khosla Group. Further, as mentioned above this order was
challenged both by R.P. Khosla as well as Ms. Sonia Khosla by filing
appeal in the High Court. Whereas appeal filed by Mr. R.P. Khosla was
dismissed on 11.4.2008, the appeal of Ms. Sonia was dismissed on merits
on 22.4.2008 and the Review Petitions filed by both of them were also
dismissed on 6.5.2008. However, Mr. R.K. Garg who was taken as Director
in the purported meeting held on 14.12.2007 also felt aggrieved by the
order of the CLB. The effect of the status quo ante order was that he
could not be treated as the Director of the Company during the
subsistence of the said order. Mr. R.K. Garg challenged this order by
filing a writ petition in the High Court of Delhi on 26.2.2008. In that
writ petition orders of status quo were passed on 7.4.2008 However, on
9.4.2009, Mr. R.K. Garg (Respondent No. 1 herein) withdrew this
petition as alternate remedy of filing appeal against the impugned
order of the CLB is provided under Section 10 F of the Companies Act.
After withdrewing the writ petition the Respondent No. 1 filed Co.
Appeal No. (SB) 23 of 2009. In this appeal the company judge of the
High Court has passed orders dated 13.4.2010 issuing notice in the said
appeal, in the application for condonation of delay as well as in the
stay application. Simultaneously, the High Court has also stayed the
operation of the orders dated 31.1.2008 passed by CLB in so far as it
has cancelled the shareholding and Directorship of Respondent No. 1.
The instant present Special Leave Petition impugns the aforesaid order
dated 13.4.2010 passed by the High Court, primarily on the ground that
since the appeal is time barred till the delay is condoned there is no
appeal in the eyes of law and, therefore, the High Court could not have
passed interim orders.
13. Though the aforesaid two SLP's are the main proceedings before us, even
in these proceedings Contempt Petitions and petitions under Section 340
Cr. PC are filed. Moreover, narration of the events disclosed above
would demonstrate that main proceedings are the Co. Petition filed by
Ms. Sonia Khosla under Section 397-98 of the Companies Act before the
CLB where issues relating to the affairs of the Company are to be
thrashed out. However, from this on case, number of other proceedings
have sprung up. In fact, as of today more than 80 cases are pending
between the parties. Most of these do not even touch the main dispute
as they are in the nature of either Contempt Petitions, (Civil or
Criminal) or petitions under Section 340 Cr. PC etc.
14. As stated in the beginning of this order, though it was going to be
collaborative efforts of the two groups in developing a dream project
and for certain reasons the parties have drifted apart, one legal
action which was triggered with the filing of the Company Petition by
Ms. Sonia Khosla before the CLB, has today swollen into an acrimony of
gigantic proportion. With all these incidental and peripheral
proceedings, which are allowed to take centre stage, the main dispute
which is the subject matter of company petition before the CLB has
taken a back seat. There have been attempts made on different levels,
during court proceedings, to see whether there could be amicable
resolution of the disputes between the parties. However, as on date
these attempts have been of no avail.
15. According to us it would have been more appropriate for the parties to
atleast agree to resort to mediation as provided under Section 89 if
CPC and make an endeavour to find amicable solution of the dispute,
agreeable to both the parties. One of the aims of mediation is to find
an early resolution of the dispute. The sooner dispute is resolved the
better for all the parties concerned, in particular, and the society,
in general. For parties, dispute not only strains the relationship but
also destroy it. And, so far as society is concerned it affects its
peace. So what is required is resolution of dispute at the earliest
possible opportunity and via such a mechanism where the relationship
between individual goes on in a healthy manner. Warren Burger, once
said:
“The obligation of the legal profession is… to serve as healers
of human conflict… (we) should provide mechanisms that can
produce an acceptable result in shortest possible time, with the
least possible expense and with a minimum of stress on the
participants. That is what justice is all about.”
MEDIATION is one such mechanism which has been statutorily brought into
place in our Justice System. It is one of the methods of Alternative
Dispute Resolution and resolves the dispute in a way that is private,
fast and economical. It is a process in which a neutral intervener
assists two or more negotiating parties to identify matters of concern,
develop a better understanding of their situation, and based upon that
improved understanding, develop mutually acceptable proposals to
resolve those concerns. It embraces the philosophy of democratic
decision-making [Alfin, et al., Mediation theory & Practice, (2nd Ed.
2006) Lexis Nexis.
16. Thus, mediation being a form of Alternative Dispute Resolution is a
shift from adversarial litigation. When the parties desire an on-going
relationship, mediation can build and improve their relationships. To
preserve, develop and improve communication, build bridges of
understanding, find out options for settlement for mutual gains, search
unobvious from obvious, dive underneath a problem and dig out
underlying interests of the disputing parties, preserve and maintain
relationships and collaborative problem solving are some of the
fundamental advantages of mediation. Even in those cases where
relationships have turned bitter, mediation has been able to produce
positive outcomes, restoring the peace and amity between the parties.
17. There is always a difference between winning a case and seeking a
solution. Via mediation, the parties will become partners in the
solution rather than partners in problems. The beauty of settlement
through mediation is that it may bring about a solution which may not
only be to the satisfaction of the parties and, therefore, create a win
win situation, the outcome which cannot be achieved by means of
judicial adjudication. Thus, life as well as relationship goes on with
Mediation for all the parties concerned and thus resulting into peace
and harmony in the society. While providing satisfaction to the
litigants, it also solves the problem of delay in our system and
further contributes towards economic, commercial and financial growth
and development of the country.
18. This Bench is of firm opinion that mediation is new dimension of access
to justice. As it is one of the best forms, if not the best, of
conflict resolution. The concept of Justice in mediation is advanced in
the oeuvres of Professors Stulberg, Love, Hyman, and Menkel-Meadow
(Self-Determination Theorists). Their definition of justice is drawn
primarily from the exercise of party self-determination. They are
hopeful about the magic that can occur when people open up honestly and
empathetically about their needs and fears in uninhibited private
discussion. And, as thinkers, these jurists are optimistic that the
magnanimity of the human spirit can conquer structural imbalances and
resource constraints.
Professor Stulberg, in his masterful comment on the drafting of the
Uniform Model Mediation Act, Fairness and Mediation, begins with the
understated predicate that “the meaning of fairness is not exhausted by
the concept of legal justice.” In truth, the more pointed argument
advanced in the article is that legal norms often diverge quite
dramatically from our notion of fairness and the notion of fairness of
many disputants. Legal rules, in Stulberg’s vision, are ill-equipped to
do justice because of their rigidity and inflexibility. Professors Lela
Love andJonathan M. Hyman argue that mediation is successful because it
provides a model for future collaboration. The authors state that the
process of mediation entails the lesson that when people are put
together in the same room and made to understand each other’s goals,
they will together reach a fair resolution. They cite Abraham Lincoln’s
inaugural address which proposed that in a democracy, “‘a patient
confidence in the ultimate justice of the people’ to do justice among
themselves . . . is a pillar of our social order.” Professor Carrie
Menkel-Meadow presents a related point of view in making the case that
settlement has a political and ethical economy of its own and writes:
“Justice, it is often claimed, emerges only when lawyers and
their clients argue over its meaning, and, in turn, some
authoritative figure or body pronounces on its meaning, such as
in the canonical cases of the late-twentieth century… For many
years now, I have suggested that there are other components to
the achievement of justice. Most notably, I refer to the process
by which we seek justice (party participation and empowerment,
consensus rather than compromise or command) and the particular
types of outcomes that might help to achieve it (not binary win-
lose solutions, but creative, pie-expanding or even shared
solutions).”
Justice in mediation also encompasses external developments, beliefs
about human nature and legal regulation. Various jurists are drawn to
mediation in the belief that litigation and adversarial warring are not
the only, or the best ways to approach conflict. And how optimistically
and skeptically mediators assess the capabilities of individual parties
and institutional actors to construct fair outcomes from the raw
material of human conduct.
Mediation ensures a just solution acceptable to all the parties to
dispute thereby achieving ‘win-win’ situation. It is only mediation
that puts the parties in control of both their disputes and its
resolution. It is mediation through which the parties can communicate
in a real sense with each other, which they have not been able to do
since the dispute started. It is mediation which makes the process
voluntary and does not bind the parties against their wish. It is
mediation that saves precious time, energy as well as cost which can
result in lesser burden on exchequer when poor litigants are to be
provided legal aid. It is mediation which focuses on long term
interest and helps the parties in creating numerous options for
settlement. It is mediation that restores broken relationship and
focuses on improving the future not of dissecting past. It is based on
an alternative set of values in which formalism is replaced by
informality of procedure, fair trial procedures by direct participation
of parties, consistent norm enforcement by norm creation, judicial
independence by the involvement of trusted peers, and so on. This
presents an alternative conceptualization of justice.
19. We have purposely stated the aforesaid advantages of mediation
process in a hope that if not now, in near future the parties may agree
on exploiting this mechanism to their advantage.
20. In this backdrop, Mr. Dushyant Dave, the learned Senior Counsel
who appeared for Bakshi Group in SLP (C) No. 6873 of 2010 made a
fervent plea before this Court to invoke the provisions of Article 142
of the Constitution and put an end to the entire litigation between the
parties pending in various courts by putting the parties to such terms,
which this court finds to be equitable for both the parties. On behalf
of Bakshi Group he also gave the offer to surrender/give 50% of land to
the Khosla Group and also an amount of Rs. 6.40 Crores, He even
submitted that if this Court finds the said amount to be inadequate the
Court would be empowered to fix higher amount. However, that was not
acceptable to the other side as according to them not only they are
entitled to get the entire land which belongs to them but the amount of
compensation which Bakshi Group is liable to pay to them would be many
times more than the amount offered. Lest we be misunderstood, we are
not blaming either side. We have indicated this, just to give a hint of
the magnitude of imbroglio that has occurred between the parties. At
the same time, as there are many cases of different nature pending in
different courts it is not possible to exercise powers under Article
142 of the Constitution and to resolve all those cases. However, we
feel sad about the state of affairs. The dispute which has arisen, out
of MOU/ collaboration agreement between the parties is not unique or
unprecedented. Such type of differences do arise. Day in and day out
there are litigations of the kind which is filed in the CLB by Ms.
Sonia Khosla. However, what is unprecedented is the monstrous
proportions which this litigation has assumed with the multiplication
of proceedings between the parties today which arose out of one
petition before the CLB.
21. In fact, though the learned Senior Counsel for the parties had
argued the matters before us at length on the previous occasions, at
the stage of conclusions of the arguments, the learned Senior Counsel
Mr. Cama appearing for Khosla Group suggested for an early decision of
the Company Petition before the CLB as a better alternative so that at
least main dispute between the parties is adjudicated upon at an early
date. He was candid in his submission that the issues which are subject
matter of these two Special Leave Petitions and arise out of the
proceedings in the High Court, have their origin in the orders dated
31.1.2008, which is an interim order passed by the CLB. He thus,
pointed out that once the Company Petition itself is decided, the
issues involved therein namely whether Board meeting dated 14.12.2007
was illegal or whether Board meeting dated 30.9.2006 was barred in law
would also get decided. In the process the CLB would also be in a
position to decide as to whether minutes of AGM of the Company
allegedly held on 30.9.2006 are forged or not and on that basis
application under Section 340 Cr. PC which is filed before the Company
Law Boared would also be taken care of by the CLB itself. Learned
Senior Counsels appearing for the Bakshi Group immediately agreed with
the aforesaid course of action suggested by Mr. Cama. We are happy that
at least there is an agreement between both the parties on the
procedural course of action, to give quietus to the matters before us
as well. In view of the aforesaid consensus, about the course of action
to be adopted in deciding the disputes between the parties, we direct
the Company Law Board to decide Company Petition No. 114 of 2007 filed
before it by Ms. Sonia Khosla within a period of six months from the
date of receiving a copy of this order. Since, it is the CLB which will
be deciding the application under Section 340 Cr. PC filed by Ms. Sonia
Khosla in the CLB, High Court need not proceed further with the
Criminal Misc. (Co.). No. 3 of 2008. Likewise the question whether Mr.
R.K. Garg was validly inducted as a Director or not would be gone into
by the CLB, the proceedings in Co. Appeal No. (SB) 23 of 2009 filed by
Mr. R.K. Garg in the High Court, also become otiose.
22. The only aspect on which some directions need to be given are,
as to what should be the interim arrangement. The Bakshi Group wants
orders dated 31.1.2008 passed by CLB to continue the interregnum. The
Khosla Group on the other hand refers to orders dated 11.4.2008 as it
is their submission that this was a consent order passed by the High
Court after the orders of the CLB and, therefore, this order should
govern the field in the meantime..
23. After considering the matter, we are of the opinion that it is
not necessary to either enforce orders dated 31.1.2008 passed by the
CLB or orders dated 11.4.2008 passed by the High Court. Fact remains
that there has been a complete deadlock, as far as affairs of the
Company are concerned. The project has not taken off. It is almost dead
at present. Unless the parties re-concile, there is no chance for a
joint venture i.e. to develop the resort, as per the MOU dated
21.12.2005. It is only after the decision of CLB, whereby the
respective rights of the parties are crystallised, it would be possible
to know about the future of this project. Even the Company in question
is also defunct at present as it has no other business activity or
venture. In a situation like this, we are of the opinion that more
appropriate orders would be to direct the parties to maintain status
quo in the meantime, during the pendency of the aforesaid company
petition before the CLB. However, we make it clear that if any exigency
arises necessitating some interim orders, it would be open to the
parties to approach the CLB for appropriate directions.
24. Both these petitions are disposed of in the aforesaid terms. All
other pending I.As including criminal contempt petitions and petitions
filed under Section 340 Cr. PC are also disposed of as in the facts of
this case, we are not inclined to entertain such application. No costs.
…......................................J.
[Surinder Singh Nijjar]
…....................................J.
[A.K. Sikri]
New Delhi
May 08, 2014
The only aspect on which some directions need to be given are,
as to what should be the interim arrangement. The Bakshi Group wants
orders dated 31.1.2008 passed by CLB to continue the interregnum. The
Khosla Group on the other hand refers to orders dated 11.4.2008 as it
is their submission that this was a consent order passed by the High
Court after the orders of the CLB and, therefore, this order should
govern the field in the meantime..
After considering the matter,
we are of the opinion that it is
not necessary to either enforce orders dated 31.1.2008 passed by the
CLB or orders dated 11.4.2008 passed by the High Court.
Fact remains
that there has been a complete deadlock, as far as affairs of the
Company are concerned.
The project has not taken off. It is almost dead at present.
Unless the parties re-concile, there is no chance for a
joint venture i.e. to develop the resort, as per the MOU dated
21.12.2005.
It is only after the decision of CLB, whereby the
respective rights of the parties are crystallised, it would be possible
to know about the future of this project.
Even the Company in question
is also defunct at present as it has no other business activity or
venture.
In a situation like this, we are of the opinion that more
appropriate orders would be to direct the parties to maintain status
quo in the meantime, during the pendency of the aforesaid company
petition before the CLB.
However, we make it clear that if any exigency
arises necessitating some interim orders, it would be open to the
parties to approach the CLB for appropriate directions.
24. Both these petitions are disposed of in the aforesaid terms.
All
other pending I.As including criminal contempt petitions and petitions
filed under Section 340 Cr. PC are also disposed of as in the facts of
this case, we are not inclined to entertain such application. No costs.
2014(May.Part) http://judis.nic.in/supremecourt/filename=41517
SURINDER SINGH NIJJAR, A.K. SIKRI
SURINDER SINGH NIJJAR, A.K. SIKRI
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION (CRIMINAL) NO. 6873 OF 2010
Mr. Vikram Bakshi & Ors. …. Petitioner
(s)
versus
Ms. Sonia Khosla (Dead) By Lrs. …. Respondent
(s)
With
SLP(C)No. 23796-23798/2010
Contmt. Pet. (Crl.) No. 4/13 In SLP (Crl.) No. 6873 of 2010
J U D G M E N T
A.K. SIKRI, J.
1. A spate of litigation between the two groups depicts a severe fight
between them where settlement appears to be a distant dream, at least
as of now, with tough positions taken and on each and every facet/
nuance of the disputes, they have joined issues. However, we are happy
to find consensual approach on one aspect at least viz. the future
course of action that needs to be adopted in these matters which have
landed in this Court (albeit against interim orders) as the proceedings
are still pending at different levels either in the Company Law Board
or in the High Court. This much positive stance, aimed at cutting the
corners and edging out the niceties for early resolution of the main
dispute between the parties needs to be commended. For this reason,
apart from stating the controversy involved in each of the matters, our
purpose would be served in stating the course of action which needs to
be adopted, as agreed between the parties, without going into the nitty
gritty of the issues involved. With this introduction we describe
hereinbelow the nature of the dispute in these petitions.
SLP(Crl) No. 6873 of 2010
2. When the two parties joined together for collaborative business
venture, it is but natural that the relationship starts with mutual
trust and faith in each other. At the time of fostering such a
relationship, they expect that with joint efforts in the proposed
business venture, they would be able to achieve unparallel milestones,
which would otherwise be impossible with their individual efforts. The
joining together is with the aim of making one plus one as eleven and
not two. However, over a period of time, if due to unfortunate and
unforeseen circumstances/ events, the relationship becomes bitter and
the two collaborative partners fall apart, it results in a position
where one minus one is not only reduced to zero but becomes negative.
That perhaps is the story of the present litigation and if the disputes
are not resolved early, either by adjudicatory process or amicably
between the parties, the negative factor will keep growing and keep
widening its fangs which may not be conducive to any of the litigants
before us.
3. The respondents herein (hereinafter referred to as the Khosla Group)
are the owners of the prime lands in Kasauli, District Solan, Himachal
Pradesh. Legally, this land is owned by Montreaux Resort Pvt. Ltd.
(MRL, for short) and share holding of the MRL was earlier exclusively
held by the family members of the Khosla Group. It was their vision to
develop this real estate into a tourist resort of repute. The Khosla
group needed requisite finances and administrative expertise for this
purpose. The petitioners (hereinafter referred to as the Bakshi Group)
extended its helping hand. In fact it was conceived as a dream project
of both the groups. For this purpose MOU dated 21.12.2005 was entered
into between Mr. Deepak Khosla, Mr. R.P. Khosla, MRL and Mr. Vikram
Bakshi. The project was joint venture between the Khosla Group and Mr.
Vikram Bakshi wherein the Bakshi Group was to pump in the necessary
finances and to take charge of administration by managing the entire
project. MRL was the special purpose vehicle for the execution of the
project. The MOU envisaged transfer of shareholding in MRL by Khosla
Group to Vikram Bakshi on certain demands made by the latter to the
former.
4. Pursuant to the MOU dated 23.12.2005, Mr. Vinod Surah and Mr. Wadia
Prakash (nominees of Mr. Vikram bakshi) were appointed as Additional
Directors of MRL. An agreement dated 31.3.2006 was entered, for
executing the proposed project, between the respondent, Ms. Sonia
Khosla, wife of Mr. Deepak Khosla, Mr. R.P. Khosla, MRL and Mr. Vikram
Bakshi. The agreement recorded that 51% shareholding in the company had
been transferred to Mr. Vikram Bakshi. The said agreement, inter alia,
provided that:
(a) Land for the project shall be purchased in the name of
MRL.
(b) The responsibility of development of lands, managing the
project and arranging finances would be that of Mr. Vikram
Bakshi.
(c) Khosla's would be paid a total consideration of Rs. 6.44
crores on completion of different milestones of which an
amount of Rs. 3.30 crores was to be as a loan bearing interest
@ 12% per annum.
(d) Khosla's would sell their entire shareholding in MRL to
Mr. Vikram Bakshi.
5. For some reasons (both the groups have their own version in this behalf
with blame game against each other) the project did not kick off and
ran into rough weather with the sowing of the seeds of mutual distrust
and lack of faith. It led to filing of a petition under Section 397 and
398 of the Companies Act by Ms. Sonia Khosla against Bakshi Group,
though in that petition she impleaded some of the members of Khosla
family also as respondents (may be performa respondents). Her
allegation was that she held 49% shares in the Company which had been
further reduced to 36% and that the affairs of the Company were being
managed in a manner oppressive to the minority shareholders. In this
petition she admitted that majority shareholding was with Mr. Vikram
Bakshi.
6. The relief prayed for in the said petition, inter alia, was for passing
an order for removal of the petitioners from the Board of Directors of
the Company. Various miscellaneous applications came to be filed in the
aforesaid petition. Notably among those was an application under
Section 8 of the Arbitration and Conciliation Act filed by Mr. Vikram
Bakshi. Mr. Vineet Khosla also filed an application claiming himself to
be the Director of the Company and alleging that Mr. Wadia Prakash and
Mr. Vinod Surah had ceased to be the Directors of the Company on
30.9.2006 since they were not confirmed in the AGM of the Company and,
therefore, the subsequent appointment of Mr. Vikram Bakshi by the Board
was bad in law.
7. Another significant development which took place was that on 18.12.2007
purported meeting of the Company was held by Ms. Sonia Khosla and Mr.
Vinay Khosla wherein Mr. Deepak Khosla and Mr. R.K. Garg were appointed
as the Directors of the Company and in this meeting the Board of the
Company allotted 6.58 lakhs equity shares to eleven persons of the
Khosla Group. It hardly needs to be mentioned that the Bakshi Group
contends that this alleged meeting on 18.12.2007 was of illegally
constituted Board. The Bakshi Group also taken the position that Mr.
Wadia Prakash and Mr. Vinod Surah continue to be legally appointed
Directors and likewise appointment of Mr. Vikram Bakshi by the Board of
the Company was also as per law.
8. The Company Law Board (CLB) passed orders dated 31.1.2008 directing the
maintenance of status quo with regard to the shareholding and the
Directors of the Company as it existed on the date of the filing of the
petition i.e. 13.8.2007. Observations were made in this order that the
respondent-Sonia Khosla had tried to overreach the CLB by changing it
composition and to increase the share capital of the Company.
9. Aggrieved by this order of the CLB, Mr. R.P. Khosla filed the appeal in
the High Court of Delhi. However, he sought permission to withdraw the
appeal. On 11.4.2008, noticing that the parties had agreed that C.P.
No. 114/2007 is to be withdrawn and the status quo as on the date of
filing of the said petition would be maintained, the said C.P. was
dismissed as withdrawn. Sonia Khosla had also filed appeal against the
same very order dated 31.1.2008 of the CLB. This was also dismissed by
the High Court on 22.4.2008, albiet on merits. Both Mr. R.P. Khosla as
well as Sonia Khosla filed Review Petitions seeking review of orders
dated 11.4.2008 and 22.4.2008 respectively. These Review Petitions were
also dismissed on 6.5.2008.
10. As the things stood at that stage, the effect of the aforesaid
proceedings was that the order dated 31.1.2008 passed by CLB continued
to operate. It is at that stage, the litigation started taking a
different turn altogether.
11. Ms. Sonia Khosla filed an application under Section 340 of the Code of
Criminal Procedure (Cr.PC) before the CLB alleging that forged
documents were filed before the CLB. However, while this application is
still pending before the CLB, in October, 2008 she filed another
application under Section 340 Cr. PC in the High Court of Delhi on the
same very grounds which were taken in the application before CLB. She
sought prosecution of the petitioners under Section 195(i)(b)(ii) read
with Section 340 Cr. PC alleging that the minutes of the AGM of the
Company allegedly held on 30.9.2006 were forged. The reason given
therein to approach the High Court was that she was forced to file the
petition in the High Court as there was a complete inaction on the
part of CLB on her application before it. She sought to rest her
application on sub-section 2 of Section 340 Cr. PC for its
maintainability in the High Court. In this application orders dated
15.2.2010 are passed by the High Court and that order is the subject
matter of challenge in the present proceedings. As can be easily
discerned, the petitioners' main contention is that application u/s 340
Cr. PC is not maintainable.
SLP(C)No. 23796-98 of 2010
12. As mentioned above, in the Company Petition filed by Ms. Sonia Khosla
interim orders dated 31.1.2008 were passed by the CLB directing the
parties to maintain status quo with regard to shareholding and the
Directors of the Company as it existed on the date of filing of the
Company Petition i.e. 13.8.2007. The consequences thereof was not to
give effect to the purported Board meeting of the Company on 14.12.2007
wherein Mr. Deepak Khosla and Mr. R.K. Garg were inducted as Directors
and there was also an allotment of 6.58 lakhs equity shares to the
persons of Khosla Group. Further, as mentioned above this order was
challenged both by R.P. Khosla as well as Ms. Sonia Khosla by filing
appeal in the High Court. Whereas appeal filed by Mr. R.P. Khosla was
dismissed on 11.4.2008, the appeal of Ms. Sonia was dismissed on merits
on 22.4.2008 and the Review Petitions filed by both of them were also
dismissed on 6.5.2008. However, Mr. R.K. Garg who was taken as Director
in the purported meeting held on 14.12.2007 also felt aggrieved by the
order of the CLB. The effect of the status quo ante order was that he
could not be treated as the Director of the Company during the
subsistence of the said order. Mr. R.K. Garg challenged this order by
filing a writ petition in the High Court of Delhi on 26.2.2008. In that
writ petition orders of status quo were passed on 7.4.2008 However, on
9.4.2009, Mr. R.K. Garg (Respondent No. 1 herein) withdrew this
petition as alternate remedy of filing appeal against the impugned
order of the CLB is provided under Section 10 F of the Companies Act.
After withdrewing the writ petition the Respondent No. 1 filed Co.
Appeal No. (SB) 23 of 2009. In this appeal the company judge of the
High Court has passed orders dated 13.4.2010 issuing notice in the said
appeal, in the application for condonation of delay as well as in the
stay application. Simultaneously, the High Court has also stayed the
operation of the orders dated 31.1.2008 passed by CLB in so far as it
has cancelled the shareholding and Directorship of Respondent No. 1.
The instant present Special Leave Petition impugns the aforesaid order
dated 13.4.2010 passed by the High Court, primarily on the ground that
since the appeal is time barred till the delay is condoned there is no
appeal in the eyes of law and, therefore, the High Court could not have
passed interim orders.
13. Though the aforesaid two SLP's are the main proceedings before us, even
in these proceedings Contempt Petitions and petitions under Section 340
Cr. PC are filed. Moreover, narration of the events disclosed above
would demonstrate that main proceedings are the Co. Petition filed by
Ms. Sonia Khosla under Section 397-98 of the Companies Act before the
CLB where issues relating to the affairs of the Company are to be
thrashed out. However, from this on case, number of other proceedings
have sprung up. In fact, as of today more than 80 cases are pending
between the parties. Most of these do not even touch the main dispute
as they are in the nature of either Contempt Petitions, (Civil or
Criminal) or petitions under Section 340 Cr. PC etc.
14. As stated in the beginning of this order, though it was going to be
collaborative efforts of the two groups in developing a dream project
and for certain reasons the parties have drifted apart, one legal
action which was triggered with the filing of the Company Petition by
Ms. Sonia Khosla before the CLB, has today swollen into an acrimony of
gigantic proportion. With all these incidental and peripheral
proceedings, which are allowed to take centre stage, the main dispute
which is the subject matter of company petition before the CLB has
taken a back seat. There have been attempts made on different levels,
during court proceedings, to see whether there could be amicable
resolution of the disputes between the parties. However, as on date
these attempts have been of no avail.
15. According to us it would have been more appropriate for the parties to
atleast agree to resort to mediation as provided under Section 89 if
CPC and make an endeavour to find amicable solution of the dispute,
agreeable to both the parties. One of the aims of mediation is to find
an early resolution of the dispute. The sooner dispute is resolved the
better for all the parties concerned, in particular, and the society,
in general. For parties, dispute not only strains the relationship but
also destroy it. And, so far as society is concerned it affects its
peace. So what is required is resolution of dispute at the earliest
possible opportunity and via such a mechanism where the relationship
between individual goes on in a healthy manner. Warren Burger, once
said:
“The obligation of the legal profession is… to serve as healers
of human conflict… (we) should provide mechanisms that can
produce an acceptable result in shortest possible time, with the
least possible expense and with a minimum of stress on the
participants. That is what justice is all about.”
MEDIATION is one such mechanism which has been statutorily brought into
place in our Justice System. It is one of the methods of Alternative
Dispute Resolution and resolves the dispute in a way that is private,
fast and economical. It is a process in which a neutral intervener
assists two or more negotiating parties to identify matters of concern,
develop a better understanding of their situation, and based upon that
improved understanding, develop mutually acceptable proposals to
resolve those concerns. It embraces the philosophy of democratic
decision-making [Alfin, et al., Mediation theory & Practice, (2nd Ed.
2006) Lexis Nexis.
16. Thus, mediation being a form of Alternative Dispute Resolution is a
shift from adversarial litigation. When the parties desire an on-going
relationship, mediation can build and improve their relationships. To
preserve, develop and improve communication, build bridges of
understanding, find out options for settlement for mutual gains, search
unobvious from obvious, dive underneath a problem and dig out
underlying interests of the disputing parties, preserve and maintain
relationships and collaborative problem solving are some of the
fundamental advantages of mediation. Even in those cases where
relationships have turned bitter, mediation has been able to produce
positive outcomes, restoring the peace and amity between the parties.
17. There is always a difference between winning a case and seeking a
solution. Via mediation, the parties will become partners in the
solution rather than partners in problems. The beauty of settlement
through mediation is that it may bring about a solution which may not
only be to the satisfaction of the parties and, therefore, create a win
win situation, the outcome which cannot be achieved by means of
judicial adjudication. Thus, life as well as relationship goes on with
Mediation for all the parties concerned and thus resulting into peace
and harmony in the society. While providing satisfaction to the
litigants, it also solves the problem of delay in our system and
further contributes towards economic, commercial and financial growth
and development of the country.
18. This Bench is of firm opinion that mediation is new dimension of access
to justice. As it is one of the best forms, if not the best, of
conflict resolution. The concept of Justice in mediation is advanced in
the oeuvres of Professors Stulberg, Love, Hyman, and Menkel-Meadow
(Self-Determination Theorists). Their definition of justice is drawn
primarily from the exercise of party self-determination. They are
hopeful about the magic that can occur when people open up honestly and
empathetically about their needs and fears in uninhibited private
discussion. And, as thinkers, these jurists are optimistic that the
magnanimity of the human spirit can conquer structural imbalances and
resource constraints.
Professor Stulberg, in his masterful comment on the drafting of the
Uniform Model Mediation Act, Fairness and Mediation, begins with the
understated predicate that “the meaning of fairness is not exhausted by
the concept of legal justice.” In truth, the more pointed argument
advanced in the article is that legal norms often diverge quite
dramatically from our notion of fairness and the notion of fairness of
many disputants. Legal rules, in Stulberg’s vision, are ill-equipped to
do justice because of their rigidity and inflexibility. Professors Lela
Love andJonathan M. Hyman argue that mediation is successful because it
provides a model for future collaboration. The authors state that the
process of mediation entails the lesson that when people are put
together in the same room and made to understand each other’s goals,
they will together reach a fair resolution. They cite Abraham Lincoln’s
inaugural address which proposed that in a democracy, “‘a patient
confidence in the ultimate justice of the people’ to do justice among
themselves . . . is a pillar of our social order.” Professor Carrie
Menkel-Meadow presents a related point of view in making the case that
settlement has a political and ethical economy of its own and writes:
“Justice, it is often claimed, emerges only when lawyers and
their clients argue over its meaning, and, in turn, some
authoritative figure or body pronounces on its meaning, such as
in the canonical cases of the late-twentieth century… For many
years now, I have suggested that there are other components to
the achievement of justice. Most notably, I refer to the process
by which we seek justice (party participation and empowerment,
consensus rather than compromise or command) and the particular
types of outcomes that might help to achieve it (not binary win-
lose solutions, but creative, pie-expanding or even shared
solutions).”
Justice in mediation also encompasses external developments, beliefs
about human nature and legal regulation. Various jurists are drawn to
mediation in the belief that litigation and adversarial warring are not
the only, or the best ways to approach conflict. And how optimistically
and skeptically mediators assess the capabilities of individual parties
and institutional actors to construct fair outcomes from the raw
material of human conduct.
Mediation ensures a just solution acceptable to all the parties to
dispute thereby achieving ‘win-win’ situation. It is only mediation
that puts the parties in control of both their disputes and its
resolution. It is mediation through which the parties can communicate
in a real sense with each other, which they have not been able to do
since the dispute started. It is mediation which makes the process
voluntary and does not bind the parties against their wish. It is
mediation that saves precious time, energy as well as cost which can
result in lesser burden on exchequer when poor litigants are to be
provided legal aid. It is mediation which focuses on long term
interest and helps the parties in creating numerous options for
settlement. It is mediation that restores broken relationship and
focuses on improving the future not of dissecting past. It is based on
an alternative set of values in which formalism is replaced by
informality of procedure, fair trial procedures by direct participation
of parties, consistent norm enforcement by norm creation, judicial
independence by the involvement of trusted peers, and so on. This
presents an alternative conceptualization of justice.
19. We have purposely stated the aforesaid advantages of mediation
process in a hope that if not now, in near future the parties may agree
on exploiting this mechanism to their advantage.
20. In this backdrop, Mr. Dushyant Dave, the learned Senior Counsel
who appeared for Bakshi Group in SLP (C) No. 6873 of 2010 made a
fervent plea before this Court to invoke the provisions of Article 142
of the Constitution and put an end to the entire litigation between the
parties pending in various courts by putting the parties to such terms,
which this court finds to be equitable for both the parties. On behalf
of Bakshi Group he also gave the offer to surrender/give 50% of land to
the Khosla Group and also an amount of Rs. 6.40 Crores, He even
submitted that if this Court finds the said amount to be inadequate the
Court would be empowered to fix higher amount. However, that was not
acceptable to the other side as according to them not only they are
entitled to get the entire land which belongs to them but the amount of
compensation which Bakshi Group is liable to pay to them would be many
times more than the amount offered. Lest we be misunderstood, we are
not blaming either side. We have indicated this, just to give a hint of
the magnitude of imbroglio that has occurred between the parties. At
the same time, as there are many cases of different nature pending in
different courts it is not possible to exercise powers under Article
142 of the Constitution and to resolve all those cases. However, we
feel sad about the state of affairs. The dispute which has arisen, out
of MOU/ collaboration agreement between the parties is not unique or
unprecedented. Such type of differences do arise. Day in and day out
there are litigations of the kind which is filed in the CLB by Ms.
Sonia Khosla. However, what is unprecedented is the monstrous
proportions which this litigation has assumed with the multiplication
of proceedings between the parties today which arose out of one
petition before the CLB.
21. In fact, though the learned Senior Counsel for the parties had
argued the matters before us at length on the previous occasions, at
the stage of conclusions of the arguments, the learned Senior Counsel
Mr. Cama appearing for Khosla Group suggested for an early decision of
the Company Petition before the CLB as a better alternative so that at
least main dispute between the parties is adjudicated upon at an early
date. He was candid in his submission that the issues which are subject
matter of these two Special Leave Petitions and arise out of the
proceedings in the High Court, have their origin in the orders dated
31.1.2008, which is an interim order passed by the CLB. He thus,
pointed out that once the Company Petition itself is decided, the
issues involved therein namely whether Board meeting dated 14.12.2007
was illegal or whether Board meeting dated 30.9.2006 was barred in law
would also get decided. In the process the CLB would also be in a
position to decide as to whether minutes of AGM of the Company
allegedly held on 30.9.2006 are forged or not and on that basis
application under Section 340 Cr. PC which is filed before the Company
Law Boared would also be taken care of by the CLB itself. Learned
Senior Counsels appearing for the Bakshi Group immediately agreed with
the aforesaid course of action suggested by Mr. Cama. We are happy that
at least there is an agreement between both the parties on the
procedural course of action, to give quietus to the matters before us
as well. In view of the aforesaid consensus, about the course of action
to be adopted in deciding the disputes between the parties, we direct
the Company Law Board to decide Company Petition No. 114 of 2007 filed
before it by Ms. Sonia Khosla within a period of six months from the
date of receiving a copy of this order. Since, it is the CLB which will
be deciding the application under Section 340 Cr. PC filed by Ms. Sonia
Khosla in the CLB, High Court need not proceed further with the
Criminal Misc. (Co.). No. 3 of 2008. Likewise the question whether Mr.
R.K. Garg was validly inducted as a Director or not would be gone into
by the CLB, the proceedings in Co. Appeal No. (SB) 23 of 2009 filed by
Mr. R.K. Garg in the High Court, also become otiose.
22. The only aspect on which some directions need to be given are,
as to what should be the interim arrangement. The Bakshi Group wants
orders dated 31.1.2008 passed by CLB to continue the interregnum. The
Khosla Group on the other hand refers to orders dated 11.4.2008 as it
is their submission that this was a consent order passed by the High
Court after the orders of the CLB and, therefore, this order should
govern the field in the meantime..
23. After considering the matter, we are of the opinion that it is
not necessary to either enforce orders dated 31.1.2008 passed by the
CLB or orders dated 11.4.2008 passed by the High Court. Fact remains
that there has been a complete deadlock, as far as affairs of the
Company are concerned. The project has not taken off. It is almost dead
at present. Unless the parties re-concile, there is no chance for a
joint venture i.e. to develop the resort, as per the MOU dated
21.12.2005. It is only after the decision of CLB, whereby the
respective rights of the parties are crystallised, it would be possible
to know about the future of this project. Even the Company in question
is also defunct at present as it has no other business activity or
venture. In a situation like this, we are of the opinion that more
appropriate orders would be to direct the parties to maintain status
quo in the meantime, during the pendency of the aforesaid company
petition before the CLB. However, we make it clear that if any exigency
arises necessitating some interim orders, it would be open to the
parties to approach the CLB for appropriate directions.
24. Both these petitions are disposed of in the aforesaid terms. All
other pending I.As including criminal contempt petitions and petitions
filed under Section 340 Cr. PC are also disposed of as in the facts of
this case, we are not inclined to entertain such application. No costs.
…......................................J.
[Surinder Singh Nijjar]
…....................................J.
[A.K. Sikri]
New Delhi
May 08, 2014
