Calcutta High Court
Vijay Kumar Goyal And Ors vs Anshul Goyal And Ors on 12 December, 2022
Author: Arindam Mukherjee
Bench: Arindam Mukherjee
ORDER SHEET
OD-4
IN THE HIGH COURT AT CALCUTTA
ORDINARY ORIGINAL CIVIL JURISDICTION
IA NO. GA 5 OF 2022
IN
CS 228 OF 2022
IN THE MATTER OF :
VIJAY KUMAR GOYAL AND ORS.
VS
ANSHUL GOYAL AND ORS.
BEFORE:
The Hon'ble JUSTICE ARINDAM MUKHERJEE
Date: 12th December, 2022.
Appearance:
Mr.Abhrajit Mitra, Sr. Adv.
Mr. Jishnu Chowdhury, Adv.
Mr. Satadeep Bhattacharjee, Adv.
Mr. Shaunak Mitra, Adv.
Ms. Iram Hassan, Adv.
Mr. Sanket Sarawgi, Adv.
For plaintiff/petitioners Mr. Jayanta Kumar Mitra, Sr.Adv.
Mr. Amritam Mandal, Adv.
For defendant nos. 1,2 23 & 24 Mr. Surajit Nath Mitra, Sr. Adv.
Mr. Ramij Munshi, Adv, For defendant no.6 Mr. Jay Saha, Sr. Adv.
Mr. J.D. Roy, Adv.
for defendant no.19 & 22 Mr. Rohit Banrjee, Adv.
Mr. Suryaneel Das, Adv.
Mr. Aditya Mondal, Adv.
For defendant nos.26, 27 & 28 Mr. Ratnanko Banerjee, Sr. Adv.
Mr. Anuj Singh, Adv.
Mr. Kaushik Chakraborty, Adv.
For defendant no.33 The Court :- This is the second injunction application filed by the plaintiffs in a partition and administration suit. 2
In the first application being GA 1 of 2022, the interim order of injunction prayed for by the plaintiffs was turned down and directions for affidavits have been given on 28th September, 2022. This application is pending.
The plaintiffs have filed this application on the strength of subsequent developments post filing of the suit. The plaintiffs say that after 29th September, 2022 it has come to the knowledge of the plaintiffs from the returns uploaded in respect of Shyam Ferro Alloys Limited (defendant no.33) that the shareholding in the said company, which the plaintiffs claim to be joint interest in family business, has reduced from 1,55,86,160 to about 1.05 lakhs. The plaintiffs say that this has happened due to buy back options exercised by defendant nos. 26 & 27 without notice to the plaintiffs. The plaintiffs alleged that by virtue of this buy back, the value of the joint properties and assets have been reduced as the defendant nos. 26 & 27 has taken the money against the shares. This according to the plaintiffs amounts to sequestering of the joint properties and assets. It is, therefore, necessary to restrain any further change in shareholding pattern of the defendant no.33.
On behalf of the defendant nos. 26 & 27, it is submitted that the buy back options had commenced prior to filing of the suit. Initially, the valuation of the shares were arrived at and subsequently buy back procedure materialized upon due and proper notice to the plaintiffs. Certain documents have been produced in support of notice being given to the plaintiffs. The present application, according to the said defendants, is nothing but a continuation of the previous application wherein the plaintiffs have been 3 unable to obtain an interim order of injunction. The said defendants also say that there has been no subsequent change in situation which entitles the plaintiffs to pray for and obtain an order of injunction.
On behalf of company (the defendant no.33), it is submitted that the buy back procedure has taken place after following the statutory requirements and upon due notice to all the shareholders including the plaintiffs. It is further submitted by the said defendant that the buy back option cannot be challenged in a civil suit and, as such, no orders can be sought for against the defendants and in particular the defendant no.33. It is further submitted by the said defendant that the plaintiffs have challenged the buy back even for the previous year in this application after a lapse of considerable period of time and, as such, injunction is also not called for.
On behalf of defendant nos.1, 2, 23 & 24 by referring to sub- paragraphs of paragraph 37 of the application, it is submitted that no cause of action in support of an interim order has been made out from the allegations contained therein, particularly, in view of the fact that the plaintiffs case is based on non issuance of the notice of buy back while fact remains that notice has been given to the plaintiffs. That apart and in any event the issue of buy back is not the subject matter of the suit. It has only been alleged in this application. Moreover, the non-service of notice, as alleged by the plaintiffs, has to be decided after the defendants are given an opportunity to disclose their stand on affidavits.
Considering the submissions made and the materials on record including the documents relating to buy back placed before the Court by the 4 defendant nos. 26 & 27, I find that the shares in defendant no.33 have to be first established as a joint property. Only on such facts being established, prima facie, the plaintiffs can seek for an order of injunction. Extreme caution is to be observed before passing any order relating to the share holding of defendant no.33 as share holders are distinct from the company a separate juristic entity. I am, therefore, prima facie of the view that before passing any order of injunction, the defendants should be afforded an opportunity to disclose their stand on affidavits by relying on documents in their possession.
Let affidavit-in-opposition be filed by 6th January, 2023; reply thereto, if any, be filed by 20th January, 2023. Let the matter appear in the monthly list of February, 2023.
(ARINDAM MUKHERJEE, J.) sb.