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1 - 10 of 15 (0.37 seconds)Section 397 in The Companies Act, 1956 [Entire Act]
Section 398 in The Companies Act, 1956 [Entire Act]
Sporting Pastime India Ltd. And K.K. ... vs Kasturi And Sons Ltd. [Alongwith C.A. ... on 5 December, 2005
The statutory, jurisdiction of the CLB cannot either be ousted by the parties as held in Sporting Pastime India Limited v. Kasturi & Sons Limited (Supra).
Airtouch International (Mauritius) ... vs Rpg Cellular Investments And Holdings ... on 19 August, 2003
According to the applicants, the grievances raised in the main petition on account of - (a) filing of fabricated forms before the Registrar of Companies without convening any board meetings of the Company, (b) carrying out amendments unauthorisedly in the articles of association of the Company; (c) increasing the authorised capital without the consent of the members (d) changing the name of the Company without prior approval of the members; (e) allotting 1.25 crores shares contrary to the provisions of the articles of association of the Company; if) using the Company's property for personal benefits: (g) appointing a general manager without approval; (h) non-convening of any extra ordinary general meeting on 04.11.2006. (i) non-convening of the board meetings after 04.11.2006 and non sending of notices of the board meeting to Mr. Vernon R. Loucks or Charles Vernon Loucks; and (j) changing the constitution of the board of directors of the Company, by resignation and re-appointment of Mr. Vernon R. Loucks or Charles Vernon Loucks, are squarely covered by MOU/SHA/MOU, which are however seriously disputed by the respondent-petitioner. It is not under dispute that TIDCO and the respondent No. 13 have not signed the SHA as well as the SSA, in which case these two non-signatories are not liable to submit to arbitration, in the event of then unwillingness to settle the disputes arising out of the SHA and the SSA through arbitral tribunal. It is relevant to point out that the petitioner/respondent TIDCO and the respondent No. 13 are entitled to appoint one arbitrator and therefore, if there is no willingness on the part of TIDCO and the respondent No. (sic) for appointing an arbitrator, none of the disputes discussed supra can be referred to a panel of three arbitrators, as contemplated in the SHA and the SSA Furthermore, the respondents 3 to 7 and 9 to 12 are not parties to the SHA and the SSA. TIDCO though, a party to the SUA and the SSA is not a party to the CLB proceedings. While the petitioner-respondent and the Company alone are parties to the MOU, the respondents 2 to 13 are not parties. M/s. AMR Constructions Limited, being party to the MOD is not before the CLB. The allotments made in favour of the respondents 2 to 13 are being challenged in the main petition and the relief of setting aside the allotments impugned in the main petition cannot be granted in the absence of and without hearing the allottees including the respondents 3 to 7 and 9 to 12, who are parties not to the SHA and the SSA, despite the stand of the applicants that the second respondent is representing them and accordingly, these parties are found to be main and not formal parties to the company petition. I, there fore, do not find commonality of the main parties to the present proceedings and the SHA and the SSA unlike in the case of Airtouch International (Mauritius) Ltd. v. RPG Cellular Investments and Holdings P. Ltd. (Supra).
Cosmosteels Private Ltd vs Jairam Das Gupta & Ors on 16 December, 1977
The MOU which contemplates that any dispute, controversy or claim arising out of it shall be settled by arbitration, does not encompass the matters enumerated her above. These are remediable by the scheme of Sections 397 and 402, constituting a code by itself, as held in Cosmosteels P. Ltd. and Ors. v. Jairam Das Gupta and Ors. (Supra). The arbitration Clauses forming part of the SHA and the SSA will be of no relevance, as they are already found to be incapable of being performed for the reasons elaborated elsewhere.
Smt. Sudarshan Chopra And Ors. vs Vijay Kumar Chopra And Ors. on 24 April, 2002
In the light of the above provisions of the Act, 1996, the agreements on record must be borne in view. There are MOU dated 09.10.2006, SHA and SSA both dated 04.11.2006 setting out a series of terms and conditions in relation to the affairs and management of the Company which also provide for resolving the disputes arising from and out of those agreements through arbitration mechanism. Clause 11(2) of the MOU provides that any controversy, claim, dispute or claim arising out of it shall be finally settled by arbitration in accordance with the Act, 1996. Clause 15 of the SHA and Clause 12 of the SSA respectively contemplate that any dispute arising amongst the parties shall amicably be settled, failure of which the dispute shall be referred to a panel of three arbitrators with the petitioner-respondent, T1DCO not being a party before the CLB and the respondent No. 13, appointing one arbitrator, the Investor appointing one arbitrator and the arbitrators so appointed jointly nominating a third presiding arbitrator. The arbitration proceedings shall be governed by the Act, 1996. The MOU has been duly signed by the parties concerned namely, the petitioner-respondent, M/s. AMR Constructions Limited, not a party to the CLB proceedings and the Company herein, while the SHA and the SSA have not been admittedly signed by TIDCO, and the respondent No. 13. It is well settled Ural a non-signatory to arbitration agreement, when willing to arbitrate is entitled to arbitration, but when unwilling he is not liable to submit to arbitration. It is, therefore, beyond doubt that in ease TIDCO and the respondent No. 13 being non-signatory parties to the SHA and SSA are unwilling to submit to arbitration, the disputes arising out of SUA and SSA cannot be arbitrated and the arbitration Clauses contained therein arc incapable or being performed. It is relevant to point out as held in Smt. Sudershan Chopra v. CLB and Ors. (supra) that there must exist a valid arbitration agreement in order to invoke Section 8 of the Act, 1996.
Sandeep Kumar & Ors vs Master Ritesh & Ors on 31 October, 2006
All die parties to the company petition, who are already found to be main parties not being parties to the MOU/SHA/SSA, the question of invoking the arbitration Clause(s) does not arise as held in Sandeep Kumar and Ors. v. Master Ritesh and Ors. (Supra).
Das Lagerwey Wind Turbines Limited vs Cynosure Investments Private Limited on 17 December, 2002
Furthermore, the reliefs claimed in the company petition, namely, (a) setting aside the impugned allotment of shares; (b) declaring the statutory forms filed with the Registrar of Companies as null and void; and (c) directing the Registrar of Companies to initiate action against Mr. R. Sivaram, a Practising Company Secretary for his alleged fraudulent actions in the affairs of the Company, cannot be granted by an arbitrator, which are available under the provisions of Sections 397 and 398 of the Act from the CLB alone as reiterated in Das Lagerway Wind Turbines Ltd. v. Cynosure Investments Private Limited (supra).
Sukanya Holdings Pvt. Ltd vs Jayesh H. Pandya & Anr on 14 April, 2003
In the light of the principles enunciated by the Supreme Court in Sukanya Holdings (P) Ltd. v. Jayesh H. Pandya and Anr. (Supra) that where the subject matter of the company petition either wholly or in part, lies outside the arbitration agreement and also between some of the parties who are not parties to the arbitration agreement, there is no question of application of Section 8 of the Act, 1996. When the subject matter of the company petition includes subject matter of the arbitration agreement as well as other disputes, the action in question cannot referred to arbitration.