Calcutta High Court
Vrindavan Advisory Services Llp vs Deep Shambhulal Bhanushali on 20 April, 2016
Author: Biswanath Somadder
Bench: Biswanath Somadder
AP No.225 of 2016
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
ORIGINAL SIDE
VRINDAVAN ADVISORY SERVICES LLP
-Versus-
DEEP SHAMBHULAL BHANUSHALI
Appearance:
Mr. Utpal Bose, Adv.
Mr.D.N. Sharma, Adv.
Mr. Arik Banerjee, Adv.
Mr. Niloy Sengupta, Adv.
Mr. Sailendra Jain, Adv.
...for the petitioners.
Mr. Vinod D. Gangwal, Adv.
Mr. Umesh Kumar Saw, Adv.
Mr. Uday Shankar Bhattacharya, Adv.
...for the respondent.
BEFORE:
The Hon'ble JUSTICE BISWANATH SOMADDER Date : 20th April, 2016.
The Court : Let the affidavit of service filed in Court today be taken on record. In view of the averments made in paragraph 53 of the petition, leave granted under Clause 12 of the Letters Patent.
The pleadings contained in the instant section 9 application prima facie reveals a non bona fide approach on the part of the respondent while entering into several agreements including the agreement dated 26th November, 2015 that was entered into by and between the parties at Kolkata, which is the subject- matter in issue in the present proceeding. By the said agreement, the petitioner, as a borrower, upon receiving a loan of Rs.30 2 crore was required to pledge its share-holding in Adhunik Industries Limited for equivalent value of Rs.40 crores at the market price prevailing on the date of execution with the lender. It is the admitted position that cheques issued by the respondent towards part payment of the total amount of loan agreed to be advanced in favour of the petitioner were dishonoured. In the meanwhile, the petitioner transferred 27,02,700 equity shares of Adhunik Industries Limited to the respondent and the respondent out of the said equity shares transferred 23,00,000 equity shares to a third party, namely, M/s. Nirmal Bang Securities Pvt. Ltd. Not stopping at such blatant violation of the terms and conditions of the agreement, the respondent went a step further by selling 26,669 shares of Adhunik Industries Ltd. in the market. All these and more come out as admission from the respondent's own letter dated 29th February, 2016, being Annexure-"O" at page 73 of the instant application.
Learned advocate appearing on behalf of the respondent submits that this Court does not have jurisdiction to entertain the application since the entire transaction took place in Mumbai. This argument does not hold much water for the following reasons:
a) The agreement in question, being the agreement dated 26th November, 2015 was entered into by and between the parties at Kolkata;
b) The agreement contains, inter alia, a clause which reads as follows:3
"12. Any dispute between the Parties in connection with or in relation to this Agreement or any term including the existence thereof shall be resolved by referring the dispute to arbitration in accordance with the provisions of the Arbitration and Conciliation Act, 1996. The place and venue (including the seat) of arbitration shall be Kolkata and the Courts at Kolkata alone shall have exclusive jurisdiction over such arbitration proceeding including passing orders under Section 9 of the said Act for interim protection or the appointment of Arbitrator/s under Section 11 thereof."
As such, this Court is of the view that pending further hearing of the instant application, the petitioner is entitled to an ad interim protection in terms of prayer (d) of the instant application.
This matter shall be heard further upon filing of affidavits. Let affidavit-in-opposition be filed within a period of three weeks from date; reply, if any, within a fortnight thereafter.
List this matter under the heading, 'Arbitration Motion (Adjourned)' in the monthly combined list to be published for the month of May, 2016.
Urgent photostat certified copies of this order, if applied for, be given to the parties subject to compliance with all requisite formalities.
(BISWANATH SOMADDER, J.) A/s.