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Tuesday, April 19, 2016

This case, in our view, is a classic example of the abuse of the judicial process by unscrupulous litigants with money power, all in the name of legal rights by resorting to half-truths, misleading representations and suppression of facts. Each and every party is guilty of one or the other of the above-mentioned misconducts. It can be demonstrated (by a more elaborate explanation but we believe the facts narrated so far would be sufficient to indicate) but we do not wish to waste any more time in these matters.This case should also serve as proof of the abuse of the discretionary Jurisdiction of this Court under Article 136 by the rich and powerful in the name of a ‘fight for justice’ at each and every interlocutory step of a suit. Enormous amount of judicial time of this Court and two High Courts was spent on this litigation. Most of it is avoidable and could have been well spent on more deserving cases.=This Court in Ramrameshwari Devi & Others v. Nirmala Devi & Others, (2011) 8 SCC 249 observed at para 54; “54. While imposing costs we have to take into consideration pragmatic realities and be realistic as to what the defendants or the respondents had to actually incur in contesting the litigation before different courts. We have to also broadly take into consideration the prevalent fee structure of the lawyers and other miscellaneous expenses which have to be incurred towards drafting and filing of the counter-affidavit, miscellaneous charges towards typing, photocopying, court fee, etc.” We therefore, deem it appropriate to impose exemplary costs quantified at Rs.25,00,000.00 (Rupees Twenty Five Lakhs only) to be paid by each of the three parties i.e. GGL, MGG and RUIAS. The said amount is to be paid to National Legal Services Authority as compensation for the loss of judicial time of this country and the same may be utilized by the National Legal Services Authority to fund poor litigants to pursue their claims before this Court in deserving cases.

                                                                  Reportable



                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

           SPECIAL LEAVE PETITION (CIVIL) NOS. 33429-33434 OF 2010

Messer Holdings Ltd.                               … Petitioner

            Versus

Shyam Madanmohan Ruia & Others                     … Respondents

                                    WITH

           SPECIAL LEAVE PETITION (CIVIL) NOS. 23088-23090 OF 2012



                               J U D G M E N T



Chelameswar, J.

1.    Messer Griesham GmbH, a German Company  (hereinafter  referred  to  as
“MGG”) entered into a Share Purchase and Cooperation Agreement  (hereinafter
referred to as AGREEMENT-1) with  the  shareholders  of  an  Indian  company
called Goyal Gases Ltd. (hereinafter referred to  as  “GGL”)  on  12.5.1995.
By virtue of the said agreement, MGG purchased 30% of equity shares of  GGL.
 Subsequently, MGG increased its shareholding in GGL to 49%.   Clause  9  of
the AGREEMENT-1 reads:

“ 9.  NON-COMPETITION CLAUSE

GGL and all Goyal Group companies will cooperate in the Indian  market  with
right to first refusal basis/with MGG and will not for the duration of  this
cooperation support in any way directly or indirectly -  the  activities  of
MGG’s competitors with regard  to  gas  business.   MGG  will  give  written
information to GGL about every business opportunity it plans to take in  the
Indian market in regard to industrial gases and  related  business  and  GGL
may decide if it wants to participate in it (right of  first  refusal).   In
case GGL does not within a  period  of  two  months  after  receiving  MGG’s
notice declare in writing that it is willing and able to participate in  the
planned business, MGG is free to proceed with  this  business  on  its  own.
However, MGG will give due consideration to the interest of  GGL  being  its
group company.  Such new business which MGG undertakes  should  be  business
of gas supply of few major dedicated  customers  only  and  not  to  general
market supply.”



2.    In a company known as BOMBAY OXYGEN CORPORATION  LIMITED  (hereinafter
referred to as the ‘BOCL’) majority  shares  were  collectively  held  by  a
group of persons known as RUIAS (we  understand  that  they  belong  to  one
family).  On 23.6.1997, MGG entered into another  Share  Purchase  Agreement
(hereinafter referred to  as  AGREEMENT  -II)  with  RUIAS.    By  the  said
agreement MGG agreed (i) to purchase 45001 shares of BOCL  from  RUIAS,  and
(ii) also to acquire another 30000 shares  of  BOCL  from  the  open  market
which  would  make  MGG  the  majority  shareholder  of  BOCL  (creating   a
controlling interest).  Clause 6.1 of AGREEMENT-II reads;

“6.1 Right of First Refusal:

With effect from the date this Agreement becomes  effective,  neither  party
shall sell any shares in the Company held or acquired by it  without  first,
offering the Shares to the other party.  The offer shall be in  writing  and
shall set out in the price and other terms and conditions.  If  the  offeree
does not agree to purchase the Shares so offered the offerer shall  be  free
to sell the Shares to any person (other than a competitor of  the  offeree),
but at the same price and on the same  terms  as  offered  to  the  offeree.
This right of first refusal does not apply to any  sale  of  shares  by  the
purchaser to a company of the Hoechst  Group.   In  a  company  directly  or
indirectly controlled by or under direct or  indirect  common  control  with
the Hoechst Group.  For the purposes  of  this  definition  “control”  means
ownership, directly or indirectly or more than 50 percent of the issued  and
outstanding voting stock or ownership interest of the Company.”



3.    Pursuant to the  AGREEMENT-II,  MGG  made  a  public  announcement  on
27.6.1997 disclosing its intention to acquire  30000  shares  of  BOCL  from
public as required under Chapter-III of the Securities  and  Exchange  Board
of India (Substantial Acquisition  of  Shares  and  Takeovers)  Regulations,
1997 (hereinafter referred to as the ‘REGULATIONS 1997) framed  in  exercise
of the powers conferred by Section 30 of the Securities and  Exchange  Board
of India Act, 1992 (hereinafter referred to as the “SEBI Act”)

4.     GGL  protested  (in  writing)  against  the   attempt   of   MGG   to
independently acquire shares of BOCL saying that it would amount  to  breach
of Clause 9 of the AGREEMENT-I. Some correspondence took place between  both
the Companies in this regard.  Eventually, both the Companies  entered  into
AGREEMENT-III on 8.11.1997 whereunder  it  was  agreed  that  out  of  75001
shares of BOCL to be acquired by MGG under AGREEMENT-II, 50000  shares  will
be acquired in the name of GGL  and only 25001 will be acquired in the  name
of MGG.

5.    RUIAS came to know of  the  AGREEMENT-III.    By  their  letter  dated
5.5.1998 they informed MGG that they were not agreeable for the proposal  of
MGG and GGL jointly purchasing the shares of the BOCL.  In view of the  said
development,  MGG  informed  GGL  on  7.5.1998  that  MGG  was   terminating
AGREEMENT-III.  Thereafter, MGG proceeded to acquire  75001  shares  of  the
BOCL on its own and paid an amount of Rs.13.5 crores to  the  RUIAS  towards
the value of 45001 shares.

SUIT-I IN THE HIGH COURT OF DELHI by GGL etc.

6.    On 26.8.1998, GGL filed a Civil Suit No.1810/98 (hereinafter  referred
to as “SUIT-I”) in the High Court of Delhi against MGG for  the  enforcement
of Clause 9.1 of AGREEMENT-I and for other reliefs:

Cancel the letter of offer dated 6.8.1998 made  by  the  defendant  for  20%
equity shares of Bombay Oxygen Corporation Ltd. and/or

Cancel the share purchase agreement dated 23.6.1997  whereby  the  defendant
has sought to purchase 30% +1 equity shares  of  Bombay  Oxygen  Corporation
Ltd. and/or

A decree of permanent injunction restraining the defendant from  taking  any
steps in pursuance of the letter of offer  dated  6.8.1998  for  20%  equity
shares of Bombay Oxygen Corporation Ltd. and the  share  purchase  agreement
dated 23.6.1997 for  purchase  of  30%+1  equity  shares  of  Bombay  Oxygen
Corporation  Ltd.  in  violation  of  the  non-competition  clause  of   the
agreement dated 12.5.1995 and/or

A decree of permanent injunction restraining the  defendant  from  acquiring
any shares in Bombay Oxygen Corporation Ltd. on  its  own  and  without  the
participation of plaintiff.



On 14.9.1998, GGL filed two applications  seeking  certain  interim  orders.
I.A. No.7248 of 1998 in the SUIT-I invoking Order 39 Rule 1&2  of  the  Code
of Civil Procedure, 1908 (hereinafter referred to as “CPC”) and OMP No.  205
of 1998 invoking Section 9 of  the  Arbitration  &  Conciliation  Act,  1996
(hereinafter referred to as “A&C Act”).  Interestingly the relief sought  in
both  the  applications  is  substantially  the  same  i.e.,  interim  order
restraining the MGG from acquiring the shares  of  BOCL  on  its  own.   The
learned trial Judge dismissed both the applications by two  separate  orders
dated 22.9.1998.  GGL carried the matter in intra court appeals.

7.    By the appellate order dated  23.10.1998,  a  Division  Bench  of  the
Delhi High Court restrained[1] MGG from acquiring the shares of the BOCL.

8.    Aggrieved by the same, MGG moved this Court in Civil Appeal  Nos.  728
and 729 of 1999.   This Court by an interim order dated  18.12.1998  ordered
as follows:-

“Meanwhile, it will be open to the Petitioner  –  M/s..  Griesheim  GMBH  to
make payment for purchasing 10,000 (sic 30,000) shares from the  public  and
also to take delivery of these shares but they shall not take further  steps
for the purpose  of  getting  their  names  registered  as  shareholders  in
respect of these shares.

Respondent No. 1 Goyal MG Gases Ltd is directed to nominate  its  Arbitrator
within a period of two weeks from today and take appropriate  steps  to  pay
the full fees and it shall also file its claims statement  within  one  week
thereafter.”



9.    By a final order dated 8.2.1999, the said appeals were disposed:-

“Earlier by our order dated 18.12.98, we  had  permitted  the  appellant  to
make payment to the shareholders.  The payment having been made now  custody
of those shares is with the  appellant.    Bombay  oxygen  wants  to  borrow
money from a bank and the appellant wants to be a guarantor on the  strength
of those shares and for  that  reason  it  wants  an  order  of  this  court
permitting it to do so.

We are told that two Arbitrators have already been appointed and  the  third
Arbitrator will be appointed within a short  time.   After  considering  the
rival submissions, we think it proper to pass the following order:

It will be open to Messer Griesheim Gmbh/the appellant to  part  with  those
shares and keep them in custody of the concerned bank  for  the  purpose  of
entering into such a financial arrangement.   It  is,  however,  made  clear
that so far as the question of  registration  and  ownership  of  shares  is
concerned that will have to be decided by  the  Arbitrators.    It  will  be
open to the parties  to  approach  the  Arbitrators  for  obtaining  interim
relief in that behalf.

Since the erstwhile owners of the shares have been  paid  their  dues,  they
have ceased to be owners of those shares  and  the  beneficial  interest  in
them now vests in Messer Griesheim Gmbh or  in  Messer  Griecheim  Gmbh  and
Goyal HG gases Limited jointly if the Arbitrators  so  decide.    We  direct
that all the disputes between the parties including the right  to  represent
on the  board  of  Bombay  Oxygen  will  now  have  to  be  decided  by  the
Arbitrators.  If any necessity arises to approach this  court,  it  will  be
open to the parties to do so.  Till any order to the contrary is  passed  by
the Arbitrators, our order dated 22.1.99 will continue to operate.

The appeals are disposed of accordingly.”



10.   The petitioner (hereinafter referred to as ‘MHL’) in SLP(C) Nos.33429-
33434 of 2010 on hand is a company incorporated in  British  Virgin  Islands
on 20.01.2000 by MGG and another company known as Morgan Trade and  Commerce
which is a 100% owned subsidiary of GGL.  The authorised  share  capital  of
MHL is 10,000,000 DM (currency of Federal Republic of Germany) divided  into
10,000,000 shares.  It has two  Directors,  one  representing  MGG  and  the
other Morgan Trade and Commerce.  Interesting feature of  MHL  is  that  the
shares of this company are bearer shares.  It is an  admitted  case  of  all
the parties that the law of British Virgin Islands permits it.

11.   MGG and GGL entered into a settlement[2] of their  dispute  (evidenced
by two documents dated 17.02.2000  and  13.3.2000)  pursuant  to  which  MGG
filed two applications (I.A.s 17 & 18 of 2000) in Civil  Appeals  No.728-729
of 1999, which had already been disposed of on 8.2.1999, praying that:

“(a)  permit the said 75001 shares to be transferred and registered  in  the
name of Messer Holdings Ltd. and permit complete rights  attached  to  these
shares to be  enjoyed  by  Messer  Holdings  Ltd.  pending  registration  of
transfer of shares and permit nominees to be appointed as Directors  on  the
Board of Bombay Oxygen Corporation Ltd. in accordance with law;

(b)   direct that period from 23rd October, 1998 to date of order passed  in
this application will be excluded in computing the period  prescribed  under
Section 108(1A) of the Companies Act, 1956 for the validity of the  transfer
deeds.

(c)   Pass such further order/orders as this Hon’ble Court may deem fit  and
proper in the facts and circumstances of the present case.”



However, when the said I.As were taken up  by  this  Court  on  20th  April,
2000, this Court ordered:

“Learned counsel for the applicant and respondent Nos.1  and  2  state  that
dispute which was sought to be referred to the Arbitrator has  been  settled
between them.  In view of this they want to move appropriate application  to
withdraw from the arbitration proceedings.  They seek time for the  purpose.
 List the matter on 5.5.2000.”



The only inference we can draw is that the prayers in I.As 17 & 18  of  2000
were not pressed[3].

12.   Interestingly, after seeking this Court’s permission to withdraw  from
the arbitration proceedings initiated earlier, MGG and  GGL  filed  a  joint
application  before  the  arbitral  tribunal  on  9.8.2000  requesting   the
arbitral tribunal to pass a consent award.  On such an application, the  ICC
Arbitral Tribunal  passed  a  consent  award  on  21.9.2000,  the  operative
portion of which reads as follows:





“NOW THEREFORE the tribunal hereby makes the following award by  consent  of
the parties in terms of the  Joint  Application  set  out  in  Annexure  “I”
hereto, which shall form part of this Award:

1(a)   The  75001  shares  of  Bombay  Oxygen  Corporation  Limited   (BOCL)
purchased by the Respondent at a price of Rs.22.5 crores shall be  held  and
registered  in  the  name  of  Messer  Holdings  Ltd.  (MHL);  however,  for
technical and procedural reasons the shares will first be registered in  the
name of the respondent and immediately thereafter the said  shares  will  be
registered in the  name  of  MHL  as  mentioned  in  para  2  of  the  Joint
Application.  Complete rights attached to the 75001 shares of BOCL  qua  the
BOCL as well as transferos (transfer – sic) of the shares to the  Respondent
(even pending registration in the name of the Respondent and/or in the  name
of MHL) will be henceforth exercised by the Respondent through MHL who  will
act for and on behalf of the Respondent.  MHL will be authorised  by  Messer
Griesheim Gmbh (MCG) to delegate all or any of its powers  mentioned  above,
including the rights but not limited to attending general meetings of  share
holders of BOCL and to vote therein and deciding and appointing nominees  to
be appointed as directors on the board of BOCL.”



13.   Pursuant to the consent award, sometime in the month of May  2000  MGG
handed over the shares certificate of 75001 shares of BOCL to MHL  alongwith
duly filled transfer forms[4] and a power of attorney.

We are given to understand that the SUIT-I is eventually withdrawn  by  GGL.
 It is necessary to mention here that by that time RUIAS had  already  filed
(on 28.4.1999) a suit inter alia against both MGG and GGL in the High  Court
of Bombay.





SUIT- II  IN THE HIGH COURT OF BOMBAY BY RUIAS ETC.

14.   On 28.4.1999, RUIAS filed  a  Suit  No.2499/1999  before  Bombay  High
Court (hereinafter referred to as SUIT-II) in substance seeking  enforcement
of clause 6.1 of the AGREEMENT-II.

“(a)1(i) that it be declared that the negative covenant contained in  Clause
6.1 of the agreement dated 23rd June 1997 being Ex. ‘B’  hereto  is  binding
on the Defendants;

(a)1(ii)(b) that the Defendants by themselves their agents and  servants  be
restrained by a perpetual order and injunction of this Hon’ble Court from

(i)   committing breach of clause 6.1 of  the  Agreement  dated  23rd  June,
1997 being Ex. ‘B’ hereto;

transferring or selling or alienating the legal and/or  beneficial  interest
in the shares of Defendant No.  2  including  those  mentioned  in  Ex.  ‘A’
hereto without first offering the same to the Plaintiffs in terms of  Clause
6.1 of the Share Purchase Agreement dated 23rd  June  1997,  being  Ex.  ‘B’
hereto.

obtaining any award, decree order from any forum or court  in  violation  of
clause 6.1 of the Share Purchase Agreement dated 23rd June  1997  being  Ex.
‘B’ hereto.

making any claim before the Arbitrators or any court which if  granted  will
amount to a breach or violation of the provisions of Clause 6.1 of the  said
Share Purchase Agreement dated 23rd June 1997, being Ex. ‘B’ hereto;

procuring any breach of the provisions of  clause  6.1  of  the  said  Share
Purchase Agreement dated 23rd June, 1997 being Ex. ‘B’ hereto;”



In the said Suit, RUIAS filed an application (Notice of  Motion  No.1804  of
1999) praying that MGG and GGL  be  restrained  from  committing  breach  of
Clause 6.1 of AGREEMENT-II.  By an interim order  dated  6.5.1999,  MGG  and
GGL were injuncted from committing breach of  Clause  6.1  of  AGREEMENT-II.
MGG filed an affidavit in the said application  undertaking  that  it  would
not breach Clause 6.1 of AGREEMENT-II.  By an order dated 29.2.2000,  Bombay
High Court disposed of the said application recording the undertaking  filed
by MGG with a further direction that  MGG  and  GGL  “not  to  implement  or
enforce any award made by the arbitrators without obtaining  the  leave  of”
Bombay High Court:-

“The parties have agreed that for disposing of this motion in the  following
terms, no reasons are necessary to be recorded.

1.    Defendant No.1 stated that defendant No.1  is  willing  to  and  shall
abide by clause 6.1  of  the  agreement  dated  23rd  June  1997.  Statement
accepted. In view of the statement made by  defendant  No.1,  the  following
interim order is passed against defendant No.1.

      Interim Order in terms of prayer (a)(i).[5]

2.    Defendant No.1 and 3 shall not act pursuant to  implement  or  enforce
any award made by the arbitrators without first obtaining the leave  of  the
court and the court will consider the agreement between the  plaintiffs  and
defendant No.1.

3.    The aforesaid order is made without prejudice to  the  rights,  claims
and contentions of the parties.

4.    The Notice of Motion is accordingly disposed  off.   It  is  clarified
that the parties are at liberty to adopt appropriate proceedings to  enforce
their respective rights.

5.     Parties  to  not  (note  -  sic)  on  a  copy  of  this  order   duly
authenticated by the associate of the Court.”



15.   By a letter dated 31st May 2000, RUIAS intimated  MGG  and  reiterated
on 1st June 2000, that AGREEMENT-II was  terminated.  Because  according  to
RUIAS establishment of MHL and the transfer of 75001 shares of BOCL  to  MHL
tantamounted to breach of clause 6.1 of AGREEMENT-II.

16.   After  obtaining  the  consent  award  on  21.9.2000,  MGG  filed   an
application (Notice of Motion No.2933/2000) before the Bombay High Court  in
SUIT-II seeking leave of the Court to  implement  and  enforce  the  consent
award.

SUIT- III IN THE HIGH COURT OF BOMBAY

17.    On  5.2.2001,  RUIAS  filed  second  Suit  bearing  No.509  of   2001
(hereinafter referred to as  “SUIT-  III”)  before  the  Bombay  High  Court
praying:

“a)   for a declaration that the Share Purchase Agreement  dated  23rd  June
1997 is liable to be rescinded;

b)    for an order of this Hon’ble Court directing the said  Share  Purchase
Agreement dated 23rd June 1997 be rescinded;

c)    that  in  the  alternative  to  prayers  (a)  and  (b)  above,  for  a
declaration that the Share Purchase  Agreement  dated  23rd  June  1997  was
voidable and has been validly avoided by the Plaintiffs;

d)    that in the alternative to prayers (a),  (b)  and  (c)  above,  for  a
declaration that the Share Purchase  Agreement  dated  23rd  June  1997  was
terminable by  the  Plaintiffs  and  has  been  validly  terminated  by  the
Plaintiffs.

e)    that in the alternative to prayers (a), (b), (c) and (d) above, for  a
mandatory order and direction  by  this  Hon’ble  Court  directing  the  1st
Defendant to offer the said 75,001 shares to the  Plaintiffs  in  accordance
with the procedure prescribed in Clause 6.1 of the Share Purchase  Agreement
dated 23rd June 1997.

f)    for a declaration that the  acquisition  of  the  said  30,000  shares
pursuant to the Public offer is illegal, unlawful, null and void and  of  no
legal effect whatsoever;

g)    for a declaration that the said Agreement  dated  17th  February  2000
and the said Consent Award dated 21st September 2000 are not binding on  the
Plaintiffs and/or Defendant No.2 and/or that the same are illegal, null  and
void.

h)    for a permanent injunction restraining  the  defendant  No.1,3  and  4
from

      (i)   acting in pursuance of the Share Purchase Agreement  dated  23rd
June 1997;

      (ii)  exercising any rights in respect of the said 75,001  shares  (in
particular voting rights in connection therewith) and/or from receiving  any
dividends, rights in respect of the same;

      (iii)      exercising any rights including  its  beneficial  ownership
in, to, upon or in respect of the said 75,001 shares.

i)    that the Defendants be restrained by permanent  order  and  injunction
of this Hon’ble Court from transferring  and/or  registering  and/or  taking
any steps to transfer and/or register the said 75,001 shares in the name  of
any person or persons, firm or  body  corporate  including  1st  and/or  3rd
and/or 4th Defendants without the consent of the Plaintiffs;

j)    that the 1st defendant be ordered and  decreed  to  deliver/return  to
the  respective  plaintiffs  the  said  45,001  shares  together  with   all
accretions thereto from 23rd June 1997 on such terms as this  Hon’ble  Court
directs;

k)    for the purpose aforesaid the 1st defendant be ordered and decreed  to
do and perform all acts, deeds,  matters  and  things  and  to  execute  all
documents, deeds and writings in furtherance thereof.



18.   In the said suit, RUIAS filed an application  (Notice  of  Motion  No.
392 of 2001) in substance seeking an injunction against MGG  and  GGL  along
with MHL either from transferring the 75001 shares of BOCL in favour of  MHL
or from exercising rights as beneficial owners of the said  shares.  In  the
said suit, MHL filed an application (Notice of Motion  No.534  of  2002)  on
21.2.2002 seeking appointment of  an  administrator  and  receiver  for  the
administration of the assets of BOCL on the ground that  RUIAS  are  causing
substantial damage to the assets of BOCL.

19.    SUIT-II was amended from time to time on three occasions pursuant  to
the orders of  the  Bombay  High  Court  dated  22.02.2000,  04.10.2002  and
08.06.2011.

The prayer in SUIT-II after such Amendments;

“Rider-I(a)

(a) (i) For a declaration that the acquisition of  the  said  30,000  shares
pursuant to the public offer is illegal, null and void ab-initio and  of  no
legal effect whatsoever.

(ii) For a permanent order and injunction restraining  the  defendants  from
exercising any rights in respect of the said 30,000 shares including and  in
particular voting rights.

(b) (i) for a declaration that the said  agreement  dated  23rd  June,  1997
(Exhibit –B hereto) stands validly terminated and/or avoided.

Rider-N Prayer (b)(ii)(a)

“(b)(ii)(a)   that it be declared that Defendant Nos. 3 to 5 have no  right,
title or interest of any nature whatsoever in respect of  the  75001  shares
of Defendant No. 2”

Rider – O prayer (b)(ii)(b):

“(b)(ii)(b), that in the alternative to prayer (b)(ii)  this  Hon’ble  Court
be pleased to order and direct the Defendant Nos. 1 and 3 to  5  to  deliver
to the respective Plaintiffs 45001 shares of Defendant  No.  2  as  also  to
return to the respective members of the public the 35000 shares;

(ii)        that the 1st defendant Nos.  1,  3,  4  and  5  be  ordered  and
decreed to deliver/return to  the  respective  plaintiffs  the  said  45,001
75,001 shares together with all accretions thereto from 23rd June,  1997  on
such terms as this Hon’ble Court directs.

(iii)       for the purpose aforesaid the Ist defendant Nos. 1, 3, 4  and  5
be ordered and decreed to do  and  perform  all  acts,  deeds,  matters  and
things and to execute all  documents,  deeds  and  writings  in  furtherance
thereof.

Rider-P prayer (b)(iii)(a)

“(b)(iii)(a), that in the event of the Defendant Nos. 1 and 3 to  5  failing
to deliver to the Plaintiffs the said 75001 shares of Defendant  No.  2  the
same be cancelled and Defendant No. 2  be  ordered  and  directed  to  issue
duplicate shares in the name of the Plaintiffs”

(iv)  for a permanent order and injunction restraining the  defendants  from
transferring and/or registering and/or taking any steps to  transfer  and/or
register the said 75,001 shares in the name of any person or  persons,  firm
or body corporate  including  the  1st  and/or  3rd  and/or  4th  defendants
without the consent of the plaintiffs.

(v)   for a permanent order and injunction restraining defendant nos.  1,  3
and/or 4 and 5 from exercising any rights, including  as  beneficial  owner,
in, to, upon, or in respect of the said 75,001 shares.

a(1)(i)     In the alternative and in the event  of  prayer  (b)  not  being
granted that it be declared that the negative covenant contained  in  Clause
6.1 of the agreement dated 23rd June 1977 being Ex. ‘B’  hereto  is  binding
on the Defendants;

(a)1(ii)(b) that the Defendants by themselves their agents and  servants  be
restrained by a perpetual order and injunction of this Hon’ble Court from.

committing breach of clause 6.1 of  the  Agreement  dated  23rd  June,  1977
being Exh. ‘B’ hereto;

transferring or selling or alienating the legal and/or  beneficial  interest
in the shares of Defendant No.  2  including  those  mentioned  in  Ex.  ‘A’
hereto without first offering the same to the Plaintiffs in terms of  Clause
6.1 of the Share Purchase Agreement dated 23rd June  1997,  being  Exh.  ‘B’
hereto.

obtaining any award, decree order from any forum or court  in  violation  of
clause 6.1 of the Share Purchase Agreement dated 23rd June, 1997  being  Ex.
‘B’ hereto.

making any claim before the Arbitrators or any court which if  granted  will
amount to a breach or violation of the provisions  of  Clause  6.1.  of  the
said Share Purchase Agreement dated 23rd June 1997, being Ex. ‘B’ hereto;

procuring any breach of the provisions of  clause  6.1  of  the  said  share
Purchase Agreement dated 23rd June, 1977 being Ex. ‘B’ hereto;”

Rider-C

(b1)(a) In the alternative and in the event of prayer (b) not being  granted
and In the event of it being held that the said agreement is void  defendant
Nos. 1, 4 and 5 be ordered and decreed to deliver/return to  the  respective
Plaintiffs the said 45001 shares together with all accretions  thereto  from
23rd June 1977 on such terms of this Hon’ble Court may direct.

(b)   For the purpose aforesaid defendant Nos. 1, 4 and  5  be  ordered  and
decreed to do and perform  all  acts,  deeds,  matters  and  things  and  to
execute all documents, deeds and writings in furtherance thereof.”



20.   It appears that on 5.12.2002, RUIAS and MGG entered into a  settlement
(evidenced by an agreement in writing)  of  the  disputes  between  them  by
allegedly rescinding the AGREEMENT-II.   According  to  MHL,  the  terms  of
settlement were not made known to either MHL or GGL for  a  long  time.  The
information regarding the agreement dated 5.12.2002 initially  came  to  the
knowledge  of  MHL  (allegedly)  from  the  website  of  Security   Exchange
Commission of United States.

      The relevant portion of the settlement reads as under:-

“6.   In the circumstances, “MGG” and the “Ruias” have agreed to  fully  and
finally settle all their disputes and differences by  rescinding  the  “Ruia
Agreement” on  the  terms  and  conditions  set  forth  in  this  Agreement.
However, “MGG” is not in a position to  return  to  the  “Ruias”  the  share
certificates and other relevant documents for the 45,001  shares  of  “BOCL”
(which is the subject matter of the “Ruia Agreement”) as  they  are  not  in
“MGG’s possession.  “MGG” has no knowledge of  the  current  whereabouts  of
the said share certificates and other documents  pertaining  to  the  45,001
shares and is not in a position to secure return/delivery of the same.

7.    As “MGG”  is no longer interested in acquiring any shares  in  “BOCL”,
as a further part of the settlement, it is hereby agreed that  “MGG”  hereby
sell/reverts/transfers/divests in favour  of  the  “Ruias”  all  its  right,
title and interest in the remaining 30,000 shares in “BOCL” which “MGG”  had
acquired from the public, but which has also  not  been  registered  in  the
name of “MGG” in the records of “BOCL”.   However, “MGG”  has  no  knowledge
of the current whereabouts of the share certificates and other  documents  /
pertaining to the  30,000  shares  and  is  not  in  a  position  to  secure
return/delivery of the same.

8.    In consideration for the foregoing, “Ruias” agree to pay “MGG”  a  sum
of US $ 154,642 in respect of the  75,001  shares  of  “BOCL”,  without  any
other or further obligation whatsoever on the part of “MGG” to  the  “Ruias”
except as provided in this Agreement.   The “Ruias” shall also not have  any
further obligation to “MGG” except as provided in this Agreement.

         ******       *****           ******       ******

10.    The  parties  agree  that  “MGG”  do  hereby  fully  and  irrevocably
revert/sell, transfer  and  assign  all  its  beneficial  right,  title  and
interest in or in relation to the said 75001 shares  in  favour  of  “Ruias”
and shall, at the cost and expense  of  “Ruias”,  execute  and  continue  to
execute such instruments, documents, authorities etc., as may  be  necessary
or expedient in connection therewith and shall refrain from  doing  anything
inconsistent with the foregoing or the rights  reverted/assigned/transferred
as above on and from  the  date  of  execution  hereof.   To  this  end  and
purpose, an irrevocable  Power  of  Attorney  duly  executed  as  per  draft
enclosed herewith as Annexure I  shall  be  put  in  escrow  with  Ms.  Lira
Goswami, Advocate.   Ms. Lira Goswami shall hand over the Power of  Attorney
to the “Ruias” in accordance with written escrow instructions agreed  to  by
“Ruias” and MGG”.

11(a) The parties confirm and  acknowledge  that  as  the  foregoing  45,001
shares of “BOCL” have not been registered  in  the  name  of  “MGG”  in  the
records of “BOCL”, the said shares continue to be registered  in  the  names
of the “Ruias”.   Consequently, the rescission of the “Ruia Agreement”  does
not involve any transfer from “MGG” to the “Ruias” in the  books  of  “BOCL”
as the “Ruias” continue to be the registered  shareholders.    Nevertheless,
if any permission, approval or notification is  required  under  Indian  law
for  implementing  this    Agreement,  including  without  limitation,   the
permission of the “RBI” for making the payment of US $ 154,642, the  “Ruias”
shall be solely responsible and liable  for  obtaining  all  such  necessary
approvals or permissions or for making the necessary  filings/notifications,
at the sole cost and expense of the “Ruias”.

Similarly, the parties confirm and acknowledge  that  the  foregoing  30,000
shares of “BOCL” have also not been registered in  the  name  of  “MGG”  and
continue  to  be  in  the  name   of   the   Indian   public   shareholders.
Consequently, “Ruias” will be solely responsible for doing all  acts,  deeds
and things that may be necessary for effecting the transfer of these  shares
from the currently registered shareholders to the “Ruias” at the  sole  cost
and expense of the “Ruias”.

******           ******                 ******           ******

15.   On execution of this Agreement, “Ruias” agree:

(a)   not to prosecute the following proceedings pending in the Bombay  High
Court and in Supreme Court of India against “MGG” or its affiliates  or  its
directors, officers or employees (excluding “MHL” and Goyal  MG  Gases  Ltd.
but including directors nominated by “MGG” on  the  Board  of  “MHL”  and/or
Goyal MG Gases Ltd.):

Civil Suit No. 2499 of 1999 titled Shyam Madan Mohan Ruia & Ors. Vs.  Messer
Griesheim GmbH & Ors.

      Civil Suit No. 509 of 2001 titled Shyam Madan Mohan Ruia  &  Ors.  Vs.
Messer Griesheim GmbH & Ors.”


In spite of the said agreement, (the existence of which is  not  in  dispute
now).   RUIAS not only continued with SUITS II and  III,  but  also  amended
the Suit-II on 08.06.2011.

21.   On 4.2.2008, BOCL  executed  a  Development  Agreement  in  favour  of
another company known as HDIL granting  development  rights  in  respect  of
three  pieces  of  immovable  properties  admeasuring  15317.77  sq.  mtrs.,
3513.70 sq. mtrs. and 47762.20 sq. mtrs. of land situated at Kurla Taluk  of
Maharashtra allegedly owned by BOCL.

22.   The next day BOCL informed the Bombay Stock Exchange about the  above-
mentioned development agreement. On 26.3.2008,  HDIL  mortgaged  the  above-
mentioned property in favour of the Union Bank of India for securing a  term
loan of 230 crores.

23.   On 8.4.2008 MHL filed a Notice of Motion No. 1418 of  2008  in  Appeal
No. 855 of 2003[6] seeking an injunction against the parties to  the  above-
mentioned Development  Agreement  along  with  various  other  reliefs  (the
details of which are not necessary for the present).

24.   By an order dated 30th April, 2008, a Division  Bench  of  the  Bombay
High Court while adjourning  the  hearing  of  the  said  Notice  of  Motion
recorded the undertakings on behalf of the HDIL that it will not  claim  any
equity whatsoever in the event  of  MHL’s  success  in  the  above-mentioned
Notice of Motion and demolish the construction,  if  any,  made  during  the
pendency of the proceeding by the HDIL.   It was also stated  by  them  that
the property which was the subject matter of the Development  Agreement  had
already been mortgaged in favour  of  the  Union  Bank  of  India,  however,
undertook not to create any 3rd party rights in the said property.

25.   Aggrieved by the said order, MHL filed SLP No. 12734 of 2008  in  this
Court on 8.5.2008.  By an Order dated 16.5.2008, this Court,  while  issuing
notice on the said SLP granted an order of status quo regarding the  nature,
title, etc. of the property in dispute.   By an Order dated  23.6.2008,  the
said SLP was disposed  of  directing  that  the  status  quo  order  granted
earlier on 16.5.2008 shall continue during the pendency  of  the  Notice  of
Motions and appeals before the High Court of Bombay.

SUIT-IV

26.   On 23.4.2008, MHL filed Suit No.2410  of  2008  (hereinafter  SUIT-IV)
against  BOCL,  RUIAS,  HDIL  etc.  seeking  various  reliefs  including   a
declaration of ownership of 75001 shares of BOCL etc.

 “q)  That this Hon’ble Court be pleased to declare that  the  Plaintiff  is
the beneficial owner of the suit  shares  being  75001  shares  in  the  1st
Defendant company, more particularly described in the  schedule  annexed  as
Exhibit A hereto and is entitled to legal ownership thereof;


r)    That the Defendant Nos.1 to 10 be directed by a  mandatory  order  and
injunction of this Hon’ble Court to carry out all  acts,  deeds  and  things
and extend all cooperation necessary to  secure  registration  of  the  suit
shares aggregating to 75001  shares  in  the  1st  Defendant  Company,  more
particularly described in Exhibit A hereto in the name of the Plaintiff;


s)    That this Hon’ble Court be  pleased  to  declare  that  the  purported
reversion/transfer of  the  suit  shares  being  75001  shares  in  the  1st
Defendant Company, more particularly described in the  schedule  annexed  as
Exhibit A hereto by Defendant No.10  to  Defendant  nos.2  to  9  under  the
purported Agreement dated 5th December, 2002 is illegal, null and  void  and
of no legal effect;


t)    That this Hon’ble Court may be pleased to direct Defendant Nos.2 to  9
and 10 to deliver up the that the said Agreement dated 05.12.2002 at Ex:  CC
for cancellation and this Hon’ble Court be pleased to cancel the same;


u)    That this Hon’ble Court be pleased to issue an  Order  and  injunction
restraining Defendant Nos.2 to 10 from exercising any rights  whatsoever  in
respect of the  75001  suit  shares  (more  particularly  described  in  the
schedule annexed as Exhibit A hereto)  as  also  from  representing  to  the
public at large that they  are  owners  of  the  suit  shares  or  have  any
beneficial interest therein;


v)    That this Hon’ble Court be  pleased  to  declare  that  the  purported
Development Agreement dated  4.2.2008  (Exhibit  MM  hereto)  and  both  the
powers of attorney dated 05.02.2008 (Exhibit NN & OO thereto) and any  other
documents or acts in pursuance thereof are illegal, null and void and of  no
legal effect;


w)    That this Hon’ble Court be pleased to direct the Defendants  Nos.1  to
10 and 12 to deliver up the Development Agreement dated 04.02.2008  (Exhibit
MM hereto) along with the powers of attorney dated 05.02.2008 (Exhibit NN  &
OO hereto)  are  illegal,  null  and  void  and  of  no  legal  effect;  for
cancellation and this Hon’ble Court be pleased to cancel the same;


x)    That this Hon’ble Court be  pleased  to  declare  that  the  purported
mortgage Deed dated 23.3.2008  at  Exhibit  XX  hereto  said  to  have  been
created by Defendant No.12 in favour of Defendant  No.13  is  illegal,  null
and void and of no legal effect;


y)    That this Hon’ble Court be pleased to direct Defendant  Nos.1  to  10,
12 and 13 to deliver up  the  said  deed  of  mortgage  dated  23.3.2008  at
Exhibit XX hereto or cancellation and  this  Hon’ble  Court  be  pleased  to
cancel the same;


z)    That this Hon’ble Court be  pleased  to  Order  and  decree  Defendant
nos.2  to  10   to   jointly   and   severally   pay   to   the   Plaintiff,
damages/compensation in the sum of Rs.500 crores as per the  Particulars  of
Claim annexed herewith as Exhibit ZZ along  with  interest  thereon  at  the
rate of 18% per annum  from  the  date  of  the  suit  till  payment  and/or
realisation;”

We  understand  that  none  of  the  defendants  have  filed  their  written
statements and no issues are framed so far.

27.   It is in the background of the above-mentioned litigation  these  SLPs
are to be examined.



SLP(C) Nos. 33429-33434 of 2010 is filed by MHL with prayers:

“a)   Grant special leave to appeal under Article 136  of  the  Constitution
of India against the  impugned  Final  Judgment  and  Order  dated  1.9.2010
passed by the Hon’ble High Court of Judicature at Bombay in Appeal  No.  855
of 2003 in Notice of Motion No. 534 of 2002 in Suit No.  509  of  2001  with
Notice of Motion No. 1308 of 2005,  Notice  of  Motion  No.  3956  of  2005,
Notice of Motion No .4118 of 2007,  Notice  of  Motion  No.  1973  of  2008,
Notice of Motion No. 1418 of 2008; and

Pass such other order or orders as this Hon’ble  Court  may  deem  just  and
proper in the facts and circumstances of the case.”


SLP(C) Nos.23088-23090 of 2012 is filed by GGL with prayers:

“a)   grant Special  Leave  to  Appeal  against  the  impugned  order  dated
01.09.2010 passed by the Hon’ble High Court of Bombay in Appeal Nos. 840  of
2003, 841 of 2003 and 857 of  2003,  whereby  the  Hon’ble  High  Court  was
pleased to dismiss the appeals filed by the Petitioner  Company  and  uphold
the order dated 26.03.2003 passed by the  Ld.  Single  Judge  in  Notice  of
Motion Nos. 3230 of 2000, 1231 of 2003 in Suit No. 2499 of 1999 and  392  of
2001 in Suit No. 509 of 2001; and

pass such other and further orders as this Hon’ble Court may deem  just  and
proper in the facts and circumstances of the present case.”



      Both the sets of SLPs are filed aggrieved by the  common  order  of  a
Division Bench of Bombay High Court dated 01.09.2010 in  Civil  Appeals  No.
855/2003, 840/2003, 841/2003 and 857/2003.

28.   Civil Appeal 855/2003 was filed by MHL and  the  other  three  appeals
were filed by GGL.  All the four appeals alongwith  the  various  Notice  of
Motions were dismissed with costs[7].

29.   The subject matter of appeal No.855/203 is the  order  of  the  Single
Judge in Notice of Motion 534/2002 in SUIT-III.  In the  said  Appeal,  five
Notice of Motions were filed.  They  are  1308/2005,  3956/2005,  4118/2007,
1973/2008 and 1418/2008 seeking various reliefs.

30.   The subject matter of appeals no.840, 841 and 857  of  2003  is  order
dated 26.03.2003 of the Single Judge in Notice  of  Motion  Nos.3230/2000  &
1231/2003 in SUIT-II and Notice of Motion No.392/2001  in  Suit  III.   Both
the abovementioned Suits were filed by RUIAS.

31.   SUIT-I is admittedly withdrawn, therefore,  any  order  passed  during
the pendency of the said suit by any court (including  this  Court)  in  any
proceeding arising out of  the  said  suit  automatically  lapses  with  the
withdrawal of the suit.   A logical consequence flowing  from  such  lapsing
of the orders is that any act or omission of any party  to  the  said  suit,
either in pursuance of or in obedience to such  interlocutory  orders  would
be without any legal efficacy.

32.  SUITS II and III filed by the RUIAS  are  pending  as  of  today.   The
substance[8] of SUIT-II is that RUIAS do not want MGG  to  transfer  any  of
the shares of BOCL acquired by MGG pursuant to  AGREMEENT-II  in  favour  of
either GGL or MHL or any other person without first offering them to  RUIAS.
Such a transfer in the opinion of RUIAS would be in violation of Clause  6.1
of the AGREEMENT-II.

      Coming to SUIT-III, RUIAS want to wriggle out of the AGREEMENT-II  and
therefore, the various alternative prayers! in substance seeking to  nullify
the acquisition of 75001 shares by MGG  under  AGREEMENT-II[9].   They  also
rely upon the events subsequent to 23.06.1997  -  transactions  between  GGL
and MGG etc.  and  seek  various  prayers  which  are  already  noticed[10].
Having filed SUIT-III, RUIAS once again amended the  SUIT-II  enlarging  the
scope of the Suit.  Whether such amendments are legally tenable or not is  a
question to be examined from the point of view of the  principles  governing
the law on the question of joinder of causes  of  action  etc.   Apart  from
that the continuance of the SUIT-II and SUIT-III simultaneously  raises  too
many questions regarding their maintainability.

However, in our view, such questions need not be examined because RUIAS  and
MGG entered into an agreement dated 05.12.2002 the gist of which is  noticed
earlier at para 20 (supra).  By the said agreement, RUIAS  also  agreed  not
to prosecute SUITS-II and III insofar as the suits pertain to  “MGG  or  its
affiliates….” etc.

“(a)  not to prosecute the following proceedings pending in the Bombay  High
Court and in Supreme Court of India against “MGG” or its affiliates  or  its
directors, officers or employees (excluding “MHL” and Goyal  MG  Gases  Ltd.
but including directors nominated by “MGG” on  the  Board  of  “MHL”  and/or
Goyal MG Gases Ltd.);

Civil Suit No.2499 of 1999 titled Shyam Madan Mohan Ruia &  Ors.  v.  Messer
Griesheim GmbH & Ors.

Civil Suit No.509 of 2001 titled Shyam Madan Mohan Ruia  &  Ors.  v.  Messer
Griesheim GmbH & Ors.”



As a matter of fact, during the course of hearing of these SLPs  also,  both
RUIAS and MGG supported the case of each other in opposing these SLPs  filed
by MHL and GGL.

33.   As a consequence of the settlement dated 5.12.2002, RUIAS claim  title
in 75001 shares of BOCL through MGG.  We  have  already  noticed,  the  said
75001 shares were initially acquired by MGG from RUIAS and the public  under
AGREEMENT-II.  But, so far the  names  of  RUIAS  are  not  entered  in  the
registers of BOCL as the  holders  of  the  share  because  of  the  various
interim orders mentioned earlier.

34.   However, GGL and MHL dispute the  title  of  MGG  to  the  said  75001
shares.  According to GGL and MHL, by the  settlement  dated  5.12.2002  MGG
had  itself  lost  its  title  over  the  said  shares  as  it  had  already
transferred its title in the said shares in favour of MHL  pursuant  to  the
consent award dated 21.9.2000.

35.   The existence of title in MGG in  the  said  75001  shares  cannot  be
disputed by either GGL or MHL, at  least,  till  the  date  of  the  consent
award, i.e. 21.9.2000 because GGL and MHL’s claim for title  over  the  said
shares flows from MGG’s prior title  and  the  subsequent  alleged  transfer
pursuant to the consent award.  In such a case, because of  MGG’s  purported
transfer of the title in the 75001 shares  to  RUIAS  under  the  settlement
dated 5.12.2002,  RUIAS should normally be  entitled  to  have  their  names
entered into the records of BOCL as holders of the said shares by  following
appropriate procedure.  If either GGL or MHL is objecting to  the  right  of
MGG to effect the said transfer in favour of RUIAS, they  must  establish  a
superior title (to MGG) in the said shares.  It goes without saying that  it
can be done only in some legal action initiated by  either  GGL  or  MHL  or
both jointly.  But they cannot seek a declaration  of  their  title  in  the
SUITS-II and III filed by the RUIAS.  In a bid to establish their title  MHL
filed SUIT-IV[11].  The right of MHL, if any, will have  to  be  decided  in
the said Suit.  Until the said suit is decided, we do not see any ground  in
law on which either GGL or MHL can object to the transfer of the  shares  in
favour of RUIAS pursuant to the settlement dated 5.12.2002.

36.   What exactly is the procedure which RUIAS are required  to  follow  to
effectuate  the  transfer  of  shares  pursuant  to  the  settlement   dated
5.12.2002 is for RUIAS to explore.  Because during the long pendency of  the
instant litigation there is a considerable change in the law  regarding  the
procedure governing the  transfer  of  shares  in  companies  by  virtue  of
amendments in the Companies Act, 1956 and the  advent  of  the  Depositories
Act, 1996 etc.  We make this observation because the 75001  shares  acquired
by MGG pursuant to AGREEMENT-II could not  be  registered  in  the  name  of
MGG[12] because of the various interim orders passed by  various  courts  at
different stages in SUITS-I, II  and  III.   SUIT-I  was  withdrawn  by  the
plaintiff (GGL).  In view  of  the  subsequent  settlement  dated  5.12.2002
between  MGG  and  RUIAS,  no  dispute  survives  between  MGG  and   RUIAS.
Therefore, SUITS-II and III are required to  be  dismissed  as  without  any
cause of action insofar as MGG and its officers etc.,  neither MHL  nor  GGL
can compel RUIAS to prosecute those suits.

37.   Then we are left with the questions of continuance  of  SUITS  II  and
III against the other defendants (GGl & MHL etc.) and the prayers  regarding
the physical custody  of  the  shares[13].   As  already  noticed  from  the
settlement  dated  5.12.2002,  MGG  and  RUIAS  are  uncertain   about   the
whereabouts and custody of  75001  shares!  of  BOCL  which  were  initially
acquired by MGG[14]. RUIAS having entered into  settlement  dated  5.12.2002
knowing fully well that MGG was not going to  give  custody  of  the  above-
mentioned 75001 shares, purported to purchase the  said  shares  and  agreed
not to prosecute the  SUITS-II  and  III  against  MGG.   In  such  a  case,
continuing the suits either against GGL or MHL or its agents etc.  only  for
the custody of the shares, in our opinion, is without any  cause  of  action
on the part of the RUIAS.   The prayers in SUIT-II and III  in  this  regard
are:



(ii)  that the 1st defendant Nos. 1, 3, 4 and 5 be ordered  and  decreed  to
deliver/return to the respective plaintiffs the said  45,001  75,001  shares
together with all accretions thereto from 23rd June, 1997 on such  terms  as
this                 Hon’ble                 Court                  directs.
                                                                           -
SUIT- II

j)    that the 1st defendant be ordered and  decreed  to  deliver/return  to
the  respective  plaintiffs  the  said  45,001  shares  together  with   all
accretions thereto from 23rd June 1997 on such terms as this  Hon’ble  Court
directs.

                                                                  - SUIT-III

i.e. for a declaration in favour of RUIAS that  they  are  entitled  to  the
recovery of 75001 shares jointly against  MGG,  GGL  and  MHL  etc.    RUIAS
having agreed not to prosecute the suits against  MGG  cannot  continue  the
suits against other defendants in the suits whose claim (if  any)  rests  on
the right and title of MGG.

The continuance of the SUITS-II and III,  in  our  opinion,  is,  therefore,
wholly  without  any  cause  of  action  and  an  abuse  of   the   judicial
process.[15]  They are, therefore, required to be dismissed and  accordingly
dismissed.  Consequently, all the  interim  orders  passed  by  the  various
Courts (including this Court) earlier in  proceedings  arising  out  of  the
said two suits lapse.  We also declare that all  interim  orders  passed  by
any Court in any proceeding arising out of SUIT-I also  lapsed  in  view  of
the withdrawal of the suit by GGL.

Therefore, these SLPs filed by MHL and  GGL  purportedly  aggrieved  by  the
impugned orders passed in the various applications filed in  the  two  suits
filed by  RUIAS  become  infructuous.   Therefore,  the  said  SLPs  arising
therefrom are dismissed.

38.   The consequent factual position would be:

(i)   the legal rights acquired (whatever they are) by MGG in  45001  shares
of BOCL purchased from RUIAS pursuant to AGREEMENT-II should revert back  to
RUIAS unless it is found that the purported transfer of 45001 shares by  MGG
pursuant to the consent award dated 21.09.2000 in favour of MHL created  any
right or interest in favour of MHL.   Such  a  claim  of  MHL  can  only  be
examined in SUIT-IV filed by MHL.

(ii)  Another 30000 shares were acquired by MGG from the public pursuant  to
AGREEMENT-II MGG purported to transfer them  by  virtue  of  the  settlement
dated 05.12.2002 in favour of RUIAS.  If either GGL or  MHL  has  any  claim
over those shares, such a claim must be made  and  established  by  them  in
accordance with law, but not in the suits  filed  by  RUIAS.   In  order  to
establish such a claim, MHL already filed SUIT-IV to which both GGL and  MGG
are parties apart from Goyals and others.

39. However, in the absence of any legally established title as on today  to
the abovementioned shares in any party other  than  MGG[16],  whether  RUIAS
would be entitled pursuant to the settlement dated 05.12.2002 to have  their
names entered into the registers of the BOCL as holders of the  said  shares
is a matter for RUIAS to explore[17].  However, such an entitlement  if  any
should be subject to the result of the SUIT-IV.

40.   We make it  clear  that  we  are  not  deciding  by  this  order,  the
existence or otherwise of any right  or  its  enforceability  in  the  75001
shares of BOCL in favour of either MHL or  GGL.   It  is  open  to  them  to
establish their right in SUIT-IV.  The defendants  in  the  SUIT-IV  are  at
liberty to raise every defence available in law and fact to them.

41.   A great deal of effort was made both by RUIAS and MGG to convince  the
court that in view of the protracted litigation  between  the  parties  this
court should examine all the questions of  rights,  title  and  interest  in
these shares between the various parties as if this were the court of  first
instance trying these various suits.

42.   The examination of various questions  raised  by  the  petitioners  in
these SLPs, in our opinion, is wholly uncalled  for  in  the  abovementioned
factual background.

43.   The net effect of all the litigation is this.  For the last 18  years,
the litigation is going on.  Considerable judicial time of this  country  is
spent on this litigation.  The conduct  of  none  of  the  parties  to  this
litigation  is  wholesome.   The  instant  SLPs   arise   out   of   various
interlocutory proceedings.  Arguments were advanced on  either  side  for  a
period of about 18 working days as if this Court were a  Court  of  Original
Jurisdiction trying the various above-mentioned  suits.   The  fact  remains
that in none of the suits  even  issues  have  been  framed  so  far.    The
learned counsel appearing for the parties very vehemently urged  that  there
should be a finality to the  litigation  and  therefore  this  Court  should
examine  every  question  of  fact  and  law  thrown  up  by  the   enormous
litigation.  We believe that it is only the parties who  are  to  be  blamed
for the state of affairs.   This case, in our view, is a classic example  of
the abuse of the judicial  process  by  unscrupulous  litigants  with  money
power, all in  the  name  of  legal  rights  by  resorting  to  half-truths,
misleading representations and suppression of facts. Each  and  every  party
is guilty of one or the other of the above-mentioned  misconducts.   It  can
be demonstrated (by a more elaborate explanation but we  believe  the  facts
narrated so far would be sufficient to indicate)  but  we  do  not  wish  to
waste any more time in these matters.

44.    This  case  should  also  serve  as  proof  of  the  abuse   of   the
discretionary Jurisdiction of this Court under Article 136 by the  rich  and
powerful  in  the  name  of  a  ‘fight  for  justice’  at  each  and   every
interlocutory step of a suit.   Enormous amount of  judicial  time  of  this
Court and two High Courts was spent on this  litigation.    Most  of  it  is
avoidable and could have been well spent on more deserving cases.

This Court in Ramrameshwari Devi & Others v. Nirmala Devi &  Others,  (2011)
8 SCC 249 observed at para 54;

“54.   While imposing costs we have to  take  into  consideration  pragmatic
realities and be realistic as to what the defendants or the respondents  had
to actually incur in contesting  the  litigation  before  different  courts.
We have to also broadly take into consideration the prevalent fee  structure
of the lawyers and other miscellaneous expenses which have  to  be  incurred
towards drafting and filing of the counter-affidavit, miscellaneous  charges
towards typing, photocopying, court fee, etc.”

45.    We  therefore,  deem  it  appropriate  to  impose   exemplary   costs
quantified at Rs.25,00,000.00 (Rupees Twenty Five Lakhs only) to be paid  by
each of the three parties i.e. GGL, MGG and RUIAS.   The said amount  is  to
be paid to National Legal Services Authority as compensation  for  the  loss
of judicial time of this country  and  the  same  may  be  utilized  by  the
National Legal Services Authority to fund poor  litigants  to  pursue  their
claims before this Court in deserving cases.



                                                            ….………….……………….J.
                                                                (J.
Chelameswar)



                                                            …….……….……………….J.
                                                   (Abhay Manohar Sapre)
New Delhi;
April 19, 2016
-----------------------
[1]    For the aforesaid reasons, we allow both  the  appeals  and  restrain
Messer from taking any steps to acquire  shares  of  BOCL  in  pursuance  of
Share Purchase Agreement dated 23rd June, 1997, till  the  decision  of  the
arbitration proceedings and the suit.   In the facts  and  circumstances  of
the case parties are left to bear their own costs.    [FAO  (OS)  No.251  of
1998 and FAO (OS) No.250 of 1998]



[2]     It is stated in the IAs No.17-18 of 2000 regarding the settlement
as follows:-

      Para 7. The original dispute between the appellant and the  respondent
No.1 was regarding the acquisition of shares in  Bombay  Oxygen  Corporation
Ltd. and the control thereof.  The appellant and the respondents have  since
settled their dispute.  Under the settlement, the parties have  agreed  that
the 75001 shares (of Bombay Oxygen Corporation Ltd.) purchased  at  a  price
of Rs.22.5 crores shall now be registered in  the  name  of  a  new  company
Messer Holdings Ltd., referred to herein below.

      Para 8. Pursuant to the settlement the appellant  and  the  respondent
No.1 (through its subsidiary) have  incorporated  a  joint  venture  company
outside India being Messer Holdings  Ltd.   In  fact,  this  compromise  was
contemplated by the parties during the hearing of the  above  civil  appeals
but could not be materialized before the disposal of the civil appeals.   It
is in the name of Messer Holdings Ltd. that the parties propose to  register
the 75001 shares.

[3]     The  whole  process  is  strange.  GGL  simultaneously  pursued  the
remedies (Suit-I and an arbitration proceeding) for the  resolution  of  the
dispute with MGG when the parties to  the  suit  settled  their  dispute  by
mutual agreement, there  is  no  need  to  approach  this  Court  by  filing
interlocutory applications in appeals which had already been  disposed  off.
  More  particularly,  when  those  appeals  arose  out   of   interlocutory
proceedings (i) in a pending suit, and (ii) a proceeding under Section 9  of
the A & C Act, 1996 which empowers the “civil  court”  to  pass  appropriate
orders as an interim measure for protecting the interests of  parties  to  a
dispute which the parties had agreed to  get  resolved  by  an  arbitration.
If really the dispute between the parties is settled, nothing prevented  the
plaintiff (GGL) from either withdrawing the suit or praying for a decree  in
terms of the settlement between the parties, or in the alternative,  praying
the arbitrators to pass an award in terms  of  the  settlement  between  the
parties, because under the A&C Act, 1996 an award is  as  efficacious  as  a
decree of a civil court.   But the parties i.e,  MGG  and  GGL  desired  “to
withdraw from arbitration proceedings”.



[4]    As required under the law as it was on that date

[5]     Prayer (a) - That pending the hearing and final disposal of the
suit defendant Nos.1, 3 and 4 be restrained by an ordr of injunction of
this Hon’ble Court from:

      (i) committing breach of clause 6.1 of the agreement dated 23rd June,
1997 being Ex.”B” to the plaint.

[6]    Appeal No. 855 of 2003 on the file  of  the  Bombay  High  Court  was
filed by MHL aggrieved by an order dismissing N.M. no .534 of 2002 in  Suit-
II filed by MHL seeking the appointment of  an  administrator  to  BOCL  and
Receiver for the assets of the said Company.

[7]     All the four Appeals being Appeal Nos.855/2003,  840/2003,  841/2003
and Appeal No.857/2003 are dismissed with costs.

      Notice of Motion  Nos.  1308/2005,  3956/2005,  4118/2007,  1973/2008,
1418/2008, 29/2006, 3112/2003, 3113/2002 and Notice of  Motion  No.3115/2003
in the respective Appeals are also disposed of with the above observations.

[8]    RUIAS amended the said suits from time to time we find  it  a  little
difficult to understand the legality and the purpose of the SUIT-II and  its
amendment subsequent to the filing of  the  SUIT-III   We  do  not  wish  to
examine those questions as such enquiry would be purposeless at  this  stage
in view of the subsequent developments.

[9]     Prayers (a) to (f) of Suit-III (See para 17 supra)

[10]   Prayer (g) to (k) of Suit III (See para 17 supra)

[11]   See prayer (q) in SUIT IV (extracted at para 26 supra)

[12]   See para 7 and 11(a) of the settlement dated 5.12.2002 extracted at
para 20 supra

[13]   There is no whisper in the plaints of either Suit II or III, of MGG
having had obtained the custody of the share certificates either from RUIAS
(of 45001 shares) or from the public (of 30000 shares).

[14]   See paras 6 and 7 of the settlement dated 5.12.2002 extracted at
para 20 supra.



[15]   See K.K. Modi v. K.N. Modi & Others, (1998) 3 SCC 573

      Para 42- “Under Order 6 Rule 16, the court may, at any  stage  of  the
proceeding, order to be struck out, inter alia, any matter in  any  pleading
which is otherwise an abuse of the  process  of  the  court.  Mulla  in  his
treatise on the Code of Civil Procedure, (15th Edn., Vol. II, p. 1179,  note
7) has stated that power under clause (c) of Order 6 Rule 16 of the Code  is
confined to cases where the abuse of the process of the  court  is  manifest
from the pleadings; and that this power is unlike the  power  under  Section
151 whereunder courts have inherent power to  strike  out  pleadings  or  to
stay or dismiss proceedings which are an abuse  of  their  process.  In  the
present case the High Court has held the suit to be an abuse of the  process
of the court on the basis of what is stated in the plaint.”

      Para 43- “The  Supreme  Court  Practice  1995  published  by  Sweet  &
Maxwell in paragraphs 18/19/33 (p. 344) explains the phrase  “abuse  of  the
process of the court” thus:

      “This term connotes that the process of the court must  be  used  bona
fide and properly and must not be abused. The court  will  prevent  improper
use of its machinery and will  in  a  proper  case,  summarily  prevent  its
machinery from being used as a means  of  vexation  and  oppression  in  the
process of litigation.  …  The  categories  of  conduct  rendering  a  claim
frivolous, vexatious or an abuse of process are not  closed  but  depend  on
all the relevant circumstances.  And  for  this  purpose  considerations  of
public policy and the interests of justice may be very material.” ”

      Para 44- “One of the examples cited as an abuse of the process of  the
court is relitigation. It is an abuse  of  the  process  of  the  court  and
contrary to justice and public policy for a party  to  relitigate  the  same
issue which has already been tried and  decided  earlier  against  him.  The
reagitation may or may not be barred as res judicata. But if the same  issue
is sought to be reagitated, it also amounts to an abuse of  the  process  of
the court. A proceeding being filed for a collateral purpose, or a  spurious
claim being made in litigation may also in a given set of  facts  amount  to
an abuse of the process of the court.  Frivolous  or  vexatious  proceedings
may also amount to an abuse of the process of  the  court  especially  where
the proceedings are absolutely groundless. The court then has the  power  to
stop such proceedings summarily and prevent the time of the public  and  the
court from being  wasted.  Undoubtedly,  it  is  a  matter  of  the  court's
discretion whether such proceedings should  be  stopped  or  not;  and  this
discretion has to be exercised with circumspection.  It  is  a  jurisdiction
which should be sparingly exercised, and exercised only  in  special  cases.
The court should also be satisfied that there  is  no  chance  of  the  suit
succeeding.”

[16]   Even MGG’s claim was that they had only a beneficial interest in  the
said shares, as the shares were never registered in the name of MGG.

[17]   There is no prayer in the Suits II and III seeking the declaration
of title of RUIAS based on the settlement dated 05.12.2002 -  for that
matter, there is no whisper about the said settlement!



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