Delhi High Court - Orders
Sapna Gupta vs Ajay Kumar Gupta & Ors on 12 January, 2022
Author: Asha Menon
Bench: Asha Menon
$~13
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) 9/2022
SAPNA GUPTA ..... Plaintiff
Through: Ms.GeetaLuthra, Sr. Adv. with
Mr.SiddharthBathli, Ms.
AsmitaNarula, Ms. LashitaDhingra
and Ms. ApoorvaMaheshwari, Advs.
Versus
AJAY KUMAR GUPTA & ORS. ..... Defendants
Through: Mr.Pawanjit Singh Bindra, Sr. Adv.
with Mr. Chetan Lokur, Adv. for
D-1 to 3.
Dr.Amit George and Mr.
RishabhDheer, Advs. for D-4 to 6.
CORAM:
HON'BLE MS. JUSTICE ASHA MENON
ORDER
% 12.01.2022
[VIA VIDEO CONFERENCING]
I.A.480/2022 (for exemption)
1. Allowed, subject to just exceptions.
2. The application stands disposed of.
CS(OS) 9/2022 & I.A.479/2022 (of plaintiff u/O XXXIX R-1&2 CPC for ad-interim relief)
3. The plaint be registered as a suit.
4. The suit has been filed suit for rendition of accounts and recovery of CS(OS) 9/2022 Page 1 of 8 Signature Not Verified Signed By:MANJEET KAUR Signing Date:14.01.2022 08:41:35 Rs.2.5 crores. Reliefs of permanent and mandatory injunction have also been claimed.
5. Issue summons in the suit and notice in the application to the defendants by all permissible modes, returnable before the Joint Registrar.
6. Mr. Chetan Lokur, learned counsel for the defendants No.1 to 3 and Dr.Amit George, learned counsel for the defendants No. 4 to 6, accept summons and notice.
7. At this stage, Mr.Pawanjit Singh Bindra, learned senior counsel appearing on behalf of the defendants No.1 to 3, points out that the suit is actually a commercial suit inasmuch as under Section 2(1)(c)(xv) of the Commercial Courts Act, 2015, disputes arising out of partnership agreements are to be treated as 'commercial disputes'.
8. While there is no force in the submission made on behalf of the defendants No.1 to 3 that the plaint is liable to be rejected, as the Registry ought to have noticed this fact, the Registry is directed to register this suit as a commercial suit. Consequently, the plaintiff shall adhere to the requirements of the Commercial Courts Act by filing the statementof truth,affidavits, etc., within two weeks, with advance copy to the learned counsel for the defendants. The defendants would file the written statement(s) to the suit and reply(ies) to the application within thirty days thereafter, with advance copies to the learned counsel for the opposite side. The defendants shall also file the affidavit of admission/denial of the document(s) filed by the plaintiff, failing which the written statement(s) shall not be taken on record.
9. The plaintiffwould be at liberty to file replication(s) to the written statement(s) and rejoinder(s) to the reply(ies) filed by the defendant(s) CS(OS) 9/2022 Page 2 of 8 Signature Not Verified Signed By:MANJEET KAUR Signing Date:14.01.2022 08:41:35 within thirty days following the filing of the written statement(s)/reply(ies), with advance copies to the learned counsel for the defendants. The replication(s) shall be accompanied by the affidavit of admission/denial in respect of the documents filed by the defendant(s), failing which the replication(s) shall not be taken on record.
10. If any of the parties wish to seek inspection of any documents, the same shall be sought and given within the time lines.
11. At this stage, Ms.GeetaLuthra, learned senior counsel for the plaintiff, submits that in an earlier round of litigation, where the plaintiff had filed O.M.P.(I)(COMM) 281/2021 for interim protection under Section 9 of the Arbitration and Conciliation Act, 1996 (for short, "A&C Act"), ex parte interim orders were passed on 23rd August, 2021 in the following terms: -
"9. In view of the above, the Petitioner has made out a prima facie case; balance of convenience lies in favour of the Petitioner and irreparable harm and injury would be caused to the Petitioner in case an ex parte injunction is not granted. Accordingly, till the next date of hearing, the Respondents are restrained from selling, alienating or creating any third party interest in respect of immovable properties of the partnership firm including the property bearing no. 45/1, 20, 21 admeasuring 3.125 acres at Kundli, Sonepat. Further, the Respondents shall also maintain status quo with respect to the property bearing Registration No. 4093, admeasuring 42 kanals and 4 marlas situated at 38/39 km stone in the area of Village Rai, Distt. Sonepat."
12. Learned senior counsel for the plaintiff submits that this petition was finally disposed of vide judgment dated 7 th December, 2021 holding that there was no arbitration agreement existing between the parties and CS(OS) 9/2022 Page 3 of 8 Signature Not Verified Signed By:MANJEET KAUR Signing Date:14.01.2022 08:41:35 therefore, the petition under Section 9 of the A&C Act would also not be maintainable. However, the interest of the plaintiff was protected by extending the interim protection for a period of 10 days. Thus, learned senior counsel prays that the said interim protection be extended till the next date of hearing.
13. This is opposed by learned counsel for the defendants. Hence, submissions were heard at some length by both sides.
14. Learned senior counsel for the plaintiff, giving a background to the case, submitted that the plaintiff and the defendants No.1 & 2 were related inasmuch as, she is their sister-in-law. Learned senior counsel submitted that on 31st March, 2011, a new partnership arrangement was created with two partners under the name of M/s. Metal Cans Company. The two partners were the plaintiff (Sapna Gupta) and the defendant No.1 (Ajay Kumar Gupta) each with 50% shares. On 1st April, 2011, the defendant No.1 introduced his son, who is the defendant No.2, into the partnership firm and thus, the shares of the defendant No.1 and defendant No.2 in the partnership firm became to the extent of 25% each.
15. Learned senior counsel for the plaintiff further submitted that since she was a sleeping partner and the day-to-day affairs were being conducted by the defendants No.1 & 2 and as she trusted them implicitly, she did not know about the malfeasance and fraud that the defendants were indulging in and thus, she was compelled to agree to the sale of 2.16 acres of land being an industrial property located at Kundli, Sonepatout of 5.10 acres remaining with the partnership out of 9.375 acres of land given to them in accordance with the family settlement in the larger family arrived at on 30th May, 2011. She claims to have been forced to also issue an NOC for the same.
CS(OS) 9/2022 Page 4 of 8 Signature Not Verified Signed By:MANJEET KAUR Signing Date:14.01.2022 08:41:3516. This made her suspicious and so, on 5th April, 2021, she wrote to the Standard Chartered Bank intimating them about the sale of the industrial property on 19th March, 2021requiring the bank to adjust the outstanding amount due from the partnership and then she realized that the money had been siphoned off by the defendants. Learned senior counsel also submitted that as explained in the plaint in para No.17, the defendants had diverted the funds from the account of the partnership, into which the consideration had been paid by the purchasers, by creating instruments, such as, Delta Industrial Resources, Ispatika International, etc., from which the consideration amount was transferred on the very same day into the personal account of the defendant No.2.
17. It was further submitted that the defendants No. 1 and 2 incorporated a private limited company on 26th February, 2021 and siphoned off almost Rs.10.5crores into the said private limited company and used this money, belonging to the defendant No.3/Firm, to purchase property i.e., propertyadmeasuring 42 Kanalsand 4 marlas situated at 38/39 km stone in the area of village Rai, Distt, Sonepat, vide registration no. 4093 dated 28 th November, 1991 in the name of the Private Limited Company, in an auction held by the State Bank of India to recover its dues.
18. Despite the interim directions dated 23rd August, 2021, the defendants No.1 & 2 transferred their shares in the said private company, in favour of the defendants No.5 & 6 in August and September, 2021. Hence, she prayed that while restraining the defendants from creating third party interests in the assets of the defendant No.3 as well as the defendant No.4, the defendants No.5 and 6 be further restrained from transferring their shares any further. It was also submitted that in order to protect the interests of the partnership CS(OS) 9/2022 Page 5 of 8 Signature Not Verified Signed By:MANJEET KAUR Signing Date:14.01.2022 08:41:35 firm, the court may direct that the cheques shall be signed by the plaintiff along with the defendants No.1 &2.
19. Learned senior counsel for the defendants No.1 to 3 submitted that the details given in the chart in the plaint are erroneous and misleading. It was submitted that the defendant No.2 had obtained personal loans and the transactions reflected the same. It was further stated that the personal loans were used to purchase the shares of the defendant No.4 and as such, there was no misfeasance or fraud. The learned senior counsel submitted that while referring to the previous petition i.e., O.M.P.(I)(COMM) 281/2021, the plaintiff has not filed on record all the documents filed by the defendants in reply to the petition under Section 9 of the A&C Act. These would have revealed the falsity of the claims of the plaintiff. The learned senior counsel, on instructions, submitted that these have been filed last evening. However, as these have not been brough on record, Mr. Chetan Lokur, learned counsel for the defendants No. 1 to 3, has emailed these to the Court Master. The same be made a part of the E-file.
20. It was submitted that the plaintiff has raised bogeys and therefore, no interim direction can be given. It was his further case that every sale transaction had the consent of the plaintiff and she could not have claimed lack of knowledge. It was also submitted that the land purchased with the loan from the Standard Chartered Bank was mortgaged to it and therefore, it was with its consent that the land was sold and the dues reduced. Learned senior counsel submitted that the disputes arose only when the plaintiff was asked to pay her contribution to the partnership firm, i.e. defendant No.3.
21. It was next submitted that despite the orders dated 7 th December, 2021, the suit had been filed only after more than a month, which reflects CS(OS) 9/2022 Page 6 of 8 Signature Not Verified Signed By:MANJEET KAUR Signing Date:14.01.2022 08:41:35 the lack of urgency on the part of the plaintiff. It was further submitted that since the account stood frozen vide communication dated 19th August, 2021, there was no question of siphoning off of the funds or issuance of cheques and there was no prayer, in any case, made for additional signatories. Hence, it was submitted that no interim directions be issued.
22. Dr.Amit George, learned counsel for the defendants No.4 to 6, submitted that they were in no way connected to the lisbetween the family members. It was submitted that the defendants No.5 and 6 were Directors from the very beginning and there were no enforceable prayers made against these defendants (this contention is however disputed by learned senior counsel for the plaintiff, who has pointed out to the prayer clause and various prayers made therein).
23. It was submitted that the defendants No.5 & 6 were not ordinary directors, but were shareholders and after the shares were transferred in three tranches by the defendants No.1 & 2, the defendants were now 100% owners of the shares and as such, they could not be restrained from asserting valuable rights as a shareholder. If at all the interim protection was to be extended, it could be only qua the defendants No.1 to 3, but not against defendants No. 4 to 6.
24. The rival contentions reveal that the matter requires to be looked into in greater detail. The chart in the plaint prima facie discloses a chain of action which shows that amounts finally credited into the personal account of defendant No.2,were first credited into the account of defendant No.3. When the defendant No.2 claims to have taken personal loans to buy shares of the defendant No.4, the argument of the learned senior counsel for the plaintiff that it was the money credited from the partnership firm's account CS(OS) 9/2022 Page 7 of 8 Signature Not Verified Signed By:MANJEET KAUR Signing Date:14.01.2022 08:41:35 that was utilized, would need some inquiry. When the company was created on 24th February, 2021, 500 shares each stood in the names of the defendants No.1 &2. But by 3rd September, 2021, the entire shareholdingstood transferred to defendants No.5 & 6. These were effected in three tranches on 15th August, 2021, 1st September, 2021 and 3rd September, 2021. Thus, two tranches were transferred after the interim orders dated 23rd August, 2021.
25. Thus it is considered appropriate to direct all the defendants to maintain status quo in respect of the assets of the defendant No.3 as well as the assets of the defendant No.4, including the shareholding, till further orders of this court. Since it was submitted on behalf of the plaintiff that the defendants No.1 & 2 were agreeable to the plaintiff signing the cheques, along with them, provided she attended the office, it is also directed that the cheques that would be issued from the partnership firm's account, would be signed by three partners, namely, the plaintiff, the defendant No.1 and the defendant No.2.
26. It is made clear that this order is passed only on a prima facie view of the matter and does not reflect on the merits of the case.
27. List before the Joint Registrar on 12th April, 2022 for completion of service and pleadings.
28. The order be uploaded on the website forthwith.
ASHA MENON, J.
JANUARY 12, 2022 s CS(OS) 9/2022 Page 8 of 8 Signature Not Verified Signed By:MANJEET KAUR Signing Date:14.01.2022 08:41:35