……plaintiff/Petitioner Vs. Chatterjee Petrochem - Court Judgment

SooperKanoon Citationsooperkanoon.com/1059648
CourtKolkata High Court
Decided OnDec-20-2012
JudgeI. P. MUKERJI
Appellant……plaintiff/Petitioner
RespondentChatterjee Petrochem
Excerpt:
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1 in the high court at calcutta ordinary original civil jurisdiction ga 1191/2012 with cs 152/2012 ga 1598/2012 ga 1603/2012 in the matter of: haldia petrochemicals ltd. ……plaintiff/petitioner vs. chatterjee petrochem (mauritius) company & ors. ……defendants/respondents for the plaintiff for the defendant no.1& 2 for the defendant no.3 for the respondent no.4 for the respondents no.5 and 6 : mr. pratap chatterjee, senior advocate with mr. jishnu saha mr. ranjan bachwat mr. aditya gandia mr. sayan roy chaudhury, advocates. : mr. sudipto sarkar, senior advocate with mr. siddhartha mitra, senior advocate with ms. moushumi bhattacharya, mr. s. datta, advocates : mr. s.n. mookherjee, senior advocate with mr. s. prasad, mr. parth basu, advocates. : mr. s.b. mookherjee, senior advocate.....
Judgment:

1 IN THE HIGH COURT AT CALCUTTA Ordinary Original Civil Jurisdiction GA 1191/2012 WITH CS 152/2012 GA 1598/2012 GA 1603/2012 In the matter of: HALDIA PETROCHEMICALS LTD. ……Plaintiff/Petitioner Vs. CHATTERJEE PETROCHEM (MAURITIUS) COMPANY & ORS. ……Defendants/Respondents For the Plaintiff For the Defendant No.1& 2 For the Defendant No.3 For the respondent No.4 For the respondents No.5 and 6 : Mr. Pratap Chatterjee, Senior Advocate with Mr. Jishnu Saha Mr. Ranjan Bachwat Mr. Aditya Gandia Mr. Sayan Roy Chaudhury, Advocates. : Mr. Sudipto Sarkar, Senior Advocate with Mr. Siddhartha Mitra, Senior Advocate with Ms. Moushumi Bhattacharya, Mr. S. Datta, Advocates : Mr. S.N. Mookherjee, Senior Advocate with Mr. S. Prasad, Mr. Parth Basu, Advocates. : Mr. S.B. Mookherjee, Senior Advocate with Mr. S. Datta, Advocate : Mr. S.K. Kapur, Senior Advocate with Mr. Debangshu Basak Mr. Sanjay Ginodia, Mr. Mayank Mishra, Mr. Ravi Kapur, Mr. Amal Gupta, Ms. Preeta Chaudhary, Advocates. Heard on :

29. 06.12, 02.07.12, 03.07.12, 05.07.12, 10.07.12, 13.07.12, 17.07.12, 19.07.12, 31.07.12, 01.08.12, 02.08.12, 06.08.12, 08.08.12, 16.08.12, 21.08.12, 22.08.12, 23.08.12, 28.08.12, 29.08.12, 30.08.12, 03.09.12, 04.09.12, 05.09.12, 06.09.12, 07.09.12, 11.09.12, 12.09.12, 17.09.12, 18.09.12, 19.09.12, 25.09.12, 03.10.12, 05.10.12, 09.10.12, 11.10.12, 12.10.12, 16.10.12, 12.12.12, 13.12.12 & 14.12.12 Judgment :

20. h December, 2012 I.P. MUKERJI, J.On 21st March, 2012, the first defendant wrote a letter asking for arbitration by the International Court of Arbitration of the International Chamber of Commerce. They wanted resolution, by arbitration, of the disputes arising out of the agreement dated 12th January, 2002. Before proceeding any further, I come to the agreement dated 12th January, 2002. It was an agreement between the Government of West Bengal (Go. WB), being the fifth defendant, West Bengal Industrial Development Corporation (WBIDC), being the sixth defendant, Chatterjee Petrochemical (Mauritius) Company (CP(M)C), being the first defendant and Haldia Petrochemicals Ltd. (HPL), being the plaintiff. It was recited in it that HPL was in need of “financial and managerial restructuring”.. CP(M)C had agreed to bring in further funds for the smooth running of the Company. WBIDC and Go. WB had agreed to hand over the majority shareholding in HPL and its management to CP(M)C. In Clause 5 of the agreement Go. WB agreed to arrange for WBIDC to transfer to CP(M)C, its shareholding in HPL shares of Rs. 360 crores from time to time to enable CP(M)C to hold 51% of the total paid up equity share capital of HPL. The transfer would be effected within 10 days of acceptance of “letters of comfort”. by Go. WB and upon payment of Rs. 53.5 crores by CP(M)C. The shares would be transferred at par value. CP(M)C was obliged to pay 3% of the consideration amount by way of earnest money and a further 2% of the consideration amount simultaneously with the transfer of shares. The balance consideration was deemed to have been paid by a fiction. WBIDC was deemed to have provided a loan representing the balance consideration to CP(M)C and with that loan CP(M)C was deemed to have paid the consideration for the shares. The shares would remain charged with WBIDC for repayment of the loan. Therefore, no consideration was to move from CP(M)C to WBIDC. Only some accounting changes had to be made. Clause 15 of the agreement contained an arbitration clause. Any dispute arising out of the agreement would be resolved by the International Chamber of Commerce through the International Court of Arbitration. The venue of the arbitration would be Paris. The law applicable would be Indian Law. I read paragraph 15 of this agreement being the arbitration clause:

“15. In respect of all disputes, difference, claims and questions between the parties hereto arising out of this JVA or in any way relating to the document or any term, condition or provision herein mentioned or construction or interpretation thereof as to the working of HPL or in any way relating to the business or the affairs of HPL, the parties shall first endeavour to settle such disputes, difference, claims or questions by friendly consultation and failing such settlement, disputes or differences will be settled in accordance with the Rules of Arbitration of the International Chamber of Commerce (ICC) Court of Arbitration. The venue of Arbitration will be in Paris and the law applicable to the Contract will be Indian Law. Any award with financial implication of more than 50 lakhs shall be made with reasons. Any decision or award rendered pursuant to such arbitration may be confirmed and enforced in any court of competent jurisdiction, if required.”

. This agreement was without dispute taken by the parties to be the agreement for transfer of 155 million shares or to be more precise 15,50,99,998 shares of WBIDC in HPL in favour of CP(M)C. In or about the end of April or first week of May, HPL filed the instant suit being C.S. No.152 of 2012 in this Court against CP(M)C, Chatterjee Petrochemical (India) Pvt. Ltd. (CP(I)PL) being the second defendant and an Indian subsidiary or group company of CP(M)C, Go. WB, WBIDC and others, after obtaining leave under Clause 12 of the Letters Patent and making the following claims: “ (a) A decree for declaration that the Impugned Arbitration Agreement contained in clause 15 of the Agreement dated January 12, 2002 is void and/or unenforceable and/or has become inoperative and/or incapable of being performed; (b) a decree of permanent injunction restraining the defendant No.1, their officers, employees and successors-in-interest from initiating and/or continuing with the Impugned Arbitration proceedings bearing case No.18582 /ARP pursuant to the Impugned Arbitration Agreement contained in clause 15 of the Agreement dated January, 12, 2002 and the Request for Arbitration dated March 21, 2012 and the communication dated April 02, 2012 issued by the defendant No.8 and any other proceeding connected therewith or incidental thereto. (c) a decree of permanent injunction prohibiting the defendant No.8, its agents, officers and employees from acting upon and further proceeding with any proceeding pursuant to the Impugned Arbitration Agreement dated January, 12, 2002 and the Request for Arbitration dated March 21, 2012 and the communication dated April 02, 2012 bearing case No.18582/ARP issued by the defendant No.8 and any proceeding pursuant thereto. (d) Injunction; (e) Costs; (f) Such further or other reliefs.”

. In aid of the above suit the plaintiff made an application for an order of injunction restraining arbitration before the International Court of Justice. This interim application was moved before me in the beginning of May, 2012. On 4th May, 2012, by a detailed order, I had refused the grant of injunction. From that order an appeal was preferred before the Division Bench presided over by the Hon’ble the Chief Justice. On 7th May, 2012 HPL wrote to the International Court of Arbitration mentioning in detail their case in the instant suit filed in this Court and the grounds on which there could be no arbitration. However, without prejudice to their rights and contentions they appointed the Hon’ble Mr. Justice B.N. SriKrishna, a retired judge of the Supreme Court as their nominee arbitrator. It might be said at this point of time that the arbitration agreement provided for three arbitrators, one to be appointed by each party and the third to be appointed by the consent of the two appointed arbitrators. It should be said not that CP(M)C had already appointed, Mr. Peter Leaver, QC, as their nominee arbitrator.. The Appeal Court disposed of the stay application and Appeal on 18th May, 2012, prima facie, observing that there was a prima facie case and remitting the application back to the trial Court for early disposal. Now, this application was heard very expeditiously by me for several days before the Puja Vacation. This Court reopened after about a month’s puja vacation on 19th November, 2012. From 19th November, 2012 to 3rd December, 2012, under the directions of the Hon’ble the Acting Chief Justice I was to hold Court in the Circuit Bench of this at Port Blair and returned only on 4th December, 2012. Meanwhile, as submitted, by Mrs. Mousumi Bhattacharya for CP(M)C and CP(I)PL that on or about 19th November, 2012 a Special Leave Petition had been filed by them before the Supreme Court against the judgment and order dated 18th May, 2012 by the bench presided over by the Hon’ble the Chief Justice. The Supreme Court was pleased by its order dated 7th December, 2012 to dispose of the Special Leave Petition by making a request to the trial Court to finally dispose of this application latest by 20th December, 2012. Now, I come to the heart of the matter. Hindustan Petrochemical Ltd. (HPL) was incorporated in 1985. It was to have a petrochemical complex in Haldia in West Bengal. It was to be established by West Bengal Industrial Development Corporation (WBIDC) and the RP Goenka Group. The RP Goenka Group pulled out of the Company 1990. Tata Chemicals and Tata Tea were inducted between 1990 and 1993 but not much headway could be made. Dr. Purnendu Chatterjee is a nonresident Indian. In June, 1994 he entered the field. He claimed to be an industrialist and financer. On 3rd May, 1994 a Memorandum of Understanding was entered into between WBIDC, the first defendant, (CP(M)C) and the Tatas. The cost of establishing the project was estimated at Rs.3,600 crores. It was to be funded with a debt of Rs.2,400 crores and equity of Rs.1,200 crores. Initially equity of Rs.700 crores was to be contributed by WBIDC, CP(M)C and the Tatas in the ration of 3:3:1 respectively. It was provided that the Board of the Company would consist of four nominees, one of WBIDC, one of CP(M)C and two from the Tata Group. This was followed by a Joint Venture Agreement dated 20th August, 1994 relating to investments by the partners, nonresident Indians and financial institutions. The debt equity ratio would be kept at the ratio 2:1. This was followed by letters dated 30th September, 1994, 6th October, 1994 and 5th January, 1995 between the parties. It was agreed that in the forseeable future at least 60% of the shareholding of WBIDC would be offered to CP(M)C at Rs. 14 per share. The government would just provide guidance. The Managing Director would be a nominee of CP(M)C. In March, 1995, the Articles of Association of HPL were altered to make it compatible with this arrangement. The project started in 1997. Commercial production commenced in August, 2001. I have spoken earlier, in some detail about the agreement of 12th January, 2002. not comes the letter which has created considerable controversy. It was written on 8th March, 2002 by CP(M)C to WBIDC. The letter recorded an agreement between these two parties for transfer of “the first tranch”. of the above 155 million shares in favour of CP(I)PL directly by WBIDC. CP(I)PL would enter into a loan agreement with WBIDC after paying the amount mentioned in the letter for payment of the balance consideration. The shares would remain pledged with WBIDC.. CP(M)C would pledge with WBIDC 3 87,75,000 shares by way of additional security for the above loan to CP(I)PL. This was followed by a formal agreement dated 8th March, 2002 between WBIDC, CP(M)C and CP(I)PL. It was provided that the Courts in Kolkata alone would have jurisdiction over the disputes. It recorded that WBIDC had agreed with CP(M)C on 12th January, 2002 to transfer the above shares to them. The shares could not be transferred to CP(M)C as some approvals were required and which were not obtained by them. In those circumstances the shares were “transferred and delivered”. to CP(I)PL, according to the terms of the letter dated 8th March, 2002, to “comply with the agreement”.. This agreement also recorded that CP(I)PL and CP(M)(C had lodged with WBIDC transfer deeds along with the share certificates. However, the position was that the shares would remain pledged with WBIDC and were not registered in the name of CP(I)PL. The parties to the 12th January, 2002 agreement i.e. CP(M)C, HPL, Go. WB and WBIDC executed another agreement on 30th July, 2004, endorsing the transactions made by the 8th March, 2002 agreement. Go. WB by their letter of 17th December, 2004 to HPL with a copy to CP(M)C said they were “committed to transfer of shares to CP(M)C.”

. It further appears from the records that after the approvals came the shares would be transferred to CP(M)C. Disputes arose between the parties in January and February, 2005. HPL had decided to issue equity shares of the value of Rs.150 crores at par to Indian Oil Corporation. CP(M)C and CP(I)PL had objection to such issue. According to them, WBIDC and Go. WB were in breach of their obligation to transfer 36% of their shares to them. They approached in Company Law Board with a Company Petition No.58 of 2009. They applied under Sections 397, 398, 399, 402 and 406 of the Companies Act, 1956. These were the prayers before the Company Law Board: “a) An order be passed directing the company to take immediate steps for modifying and/or altering and/or amending the Articles of Association of the Company to incorporate therein the complete agreement by and between the join venture partners and special rights of the petitioner in relation to the Company, as provided in the Agreements dated 20th August, 1994, 12th January, 2002, 8th March, 2002 and 30th July, 2004. b) Appropriate orders be passed directing the entire shareholding of the respondent No.2 in the Company to be transferred in favour of the petitioner at the agreed price of Rs.14/- per share in respect of such number of shares of HPL registered in the name of Respondent No.2 constituting 50% of the holding of the respondent No.2 in the Company and on such valuation in respect of the balance shares held by Respondent No.2 as this Hon’ble Board may think fit and proper; Declaration that the resolution passed at the EGM of the Company held on January 14, 2005, is illegal, inoperative, null and void and not binding on the Company or any person connected therewith; d) Permanent injunction restraining the respondents whether by themselves or by their servants or agents or assigns or otherwise howsoever from giving any effect or further effect to the resolution passed on the EGM held by the Company on January 14, 2005 in any manner whatsoever; e) Permanent injunction restraining the Company from receiving any money or encashing any cheque that may have been issued by the Respondent No.6 to the Company in pursuance of the Memorandum of Association and the resolution passed by the EGM of the Company held on January 14, 2005; f) Permanent injunction restraining the Company and its Board of Directors from taking any major decision or policy decision relating to the management and affairs of the Company before the majority shareholding and management control in the Company is effectively established as per the Agreements dated 12th January, 2002, and 30th July, 2004, including the due recognition of the nominee of petitioner NO.2 as Director of the Company pursuant to the letter of Petitioner NO.2 dated 1st August, 2005; g) Permanent injunction restraining the Company and its present board from dealing with or disposing of or alienating or encumbering any asset or property of the Company except strictly in the course of the business of the Company; h) Permanent injunction restraining the Company and its Board of Directors from taking any decision in relation to the management and administration of the Company except with the previous approval of the petitioner; i) Permanent injunction restraining the respondents and each of them from in any manner acting in derogation of the petitioner’s rights as majority shareholders in the company and the petitioner’s right to control the management of the Company, including without limitation by way of scale of shares of the Company held by any of them to any third party except the petitioners; j) ………………………………………………………….. k) …………………………………………………………. l) Direct the reconstitution of the Board of the Company to reflect the majority control and the special rights accorded under the Agreements between the shareholders to the petitioners; m) ……………………………………………………….. n) ………………………………………………………… “ After allotment of the shares to IOC the above two Companies filed an application for amendment of the petition to challenge the allotment in favour of IOC seeking cancellation thereof. These two Companies complained of mismanagement and oppression. According to them the decision to allot shares of Rs. 150 crores to IOC interfered with the prospect of CP(I)PL having control of HPL. They complained that in spite of having received payment for 155 million shares and those shares being transferred to CP(I)PL, HPL did not complete the transfer by registering the shares in the name of CP(I)PL. If those shares were registered, CP(I)PL would have 51% shareholding in the Company, HPL. Direction was sought upon WBIDC/Go. WB to complete the transfer of 155 million shares in favour of CP(I)PL, CP(M)C. The Company Law Board passed a final order in the company petition, inter alia directing WBIDC / GoWB to complete the transfer of 155 millions shares in favour of CPI(I)PL / CP(M)C. Being aggrieved WBIDC / GOWB preferred an appeal under Section 10F of the Companies Act, 1956 in this Court. This kind of an appeal is required to be heard by a Single Judge of the High Court. The appeal was heard before Jayanta Kumar Biswas, J.The Learned Judge disposed of the appeal by inter alia holding that the Company Law Board had no jurisdiction, in an application made to it under Section 397 and 398 of the Companies Act, 1956, to direct specific performance of an agreement by transfer and registration of the above 155 million shares. CP(M)C and CP(I)PL, and it seems other group companies approached the Supreme Court of India, against this order by filing Special Leave Petitions. The Special Leave Petitions were heard out as appeals. Finally on 30th September, 2011 the Supreme Court affirmed the order of the learned Single Judge of this High Court. It was also of the opinion that in an application under Section 397 and 398 of the Companies Act, 1956, read with s. 402, the Company Law Board had no jurisdiction to order specific performance of the agreement dated 12th January, 2002 by directing transfer and registration of 155 million shares. The dispute was a private dispute. The material findings of the Supreme Court were set out by me in the order dated 4th May, 2012. The relevant part of the said order is set out below : “……. Very briefly, the Hon’ble Court came to the following conclusions: (a) That the dispute between the parties was a private dispute regarding transfer of shares and that there was no case of oppression under Section 397, of the Chatterjee Group by the other parties. (b) The Court held that in exercise of powers under Section 402 of the Companies Act, 1956 the Company Law Board could not direct transfer of the above shares. The relevant contentions before the Supreme Court and its findings are set out below :

“66. Even the allegations of oppression remained unproved, since the entire content related to the transaction between WBIDC and CP(I)PL, which was not the act of the Company, as contemplated in Section 397, but a private dispute between two groups of shareholders. Mr. Desai submitted that the appeals were liable to be dismissed with appropriate costs.

74. Mr. K.K. Venugopal, learned Senior Advocate, who appeared for the Government of West Bengal and its officials, urged that the relief prayed for in the Company Petition for specific relief, could not be granted under Section 397 of the Companies Act ….

75. Mr. Venugopal submitted that the proceedings under Section 397 of the Companies Act should not have been allowed to be made a vehicle for relief which was available to the Chatterjee Group under the provisions of the Specific Relief Act, 1963.

79. On account of the several financial crunch being faced by HPL and in view of the stand of IOC, which was the main supplier of Naphtha to HPL, on 2nd August, 2005, HPL allotted 150 million shares to IOC and a return of allotment was also filed with the Registrar of Companies in respect thereof. On 3rd August, 2005, the cheque given to IOC for Rs. 150 Crores was encashed by HPL.

85. Mr. Sundaram repeated that in this regard it would have to be decided as to whether the CLB could direct sale and transfer of shares to a group to give it majority control on an application under Section 397/398 read with Section 402 of the Companies Act and to enforce specific performance of agreement between the parties whether legitimate or not, especially when such specific performance was not necessary in the interest of the company, or to prevent winding up of the company ……………..

90. Inasmuch as, the Chatterjee Group failed to abide by its commitments, the Company had no other alternative, but to bring in IOC by selling and transferring 150 million shares to the said company.

91. The parties also agreed that they would be entitled to seek specific performance of the terms and conditions of the agreement in accordance with the provisions of the Specific Relief Act, 1963.

98. In the aforesaid context, what do the facts reveal in the instant case and do they bring the acts of oppression complained of within the purview of Section 397 for grant of relief under Section 402 of the Companies Act ?.

101. The promise extended by WBIDC and GoWB to the Chatterjee Group to provide at least 60% of the shares held by WBIDC at Rs. 14/per share to the Chatterjee Group so as to give the Chatterjee Group the majority shareholding in the Company, as was indicated in the Agreements dated 12th January, 2002, 8th March, 2002 and 14th January, 2005 did not ultimately materialize and, on the other hand, the Chatterjee group was reduced to a minority on account of its decision not to participate in the Rights Issue, and, thereafter, by transfer of 150 million shares by WBIDC in favour of IOC.

103. The failure of WBIDC and GoWB to register the 155 million, shares transferred to CP(I)PL could not, strictly speaking, be taken to be failure on the part of the company, but it was the failure of one of the parties to a private arrangement to abide by its commitments. The remedy in such a case was not under Section 397 of the Companies Act …..

104. In our view, the appellants have failed to substantiate either of the two grounds canvassed by them for the CLB to assume jurisdiction either under Section 397 or 402 of the Companies Act, 1956, and it could not, therefore, have given directions to WBIDC and GoWB to transfer 520 million shares held by them in HPL to the Chatterjee Group and the High Court quite rightly set aside the same and dismissed the company petition ……”. It is also necessary to read the following other observations and findings of the Supreme Court:

“94. The law relating to grant of relief on a petition under Sections 397, 398 and 402 of the Companies Act, 1956, has been crystallized in various decisions of this Court, including those cited on behalf of the parties. The common refrain running through all these decisions is that in order to succeed in an action under Sections 397 and 398 of the Companies Act, the complainant has to prove that the affairs of the Company were being conducted in a manner prejudicial to public interest of in a manner oppressive to any member or members. For better appreciation of the above, Section 397 of the above Act is extracted hereinbelow:

“397. Application to [Tribunal]. for relief in cases of oppression. –

1) Any member of a company who complains that the affairs of the company are being conducted in a manner prejudicial to public interest or]. in a manner oppressive to any member or members apply to the Tribunal for an order under this section, provided such members have a right so to apply in virtue of section 399.

2) If, on any application under sub-section (1), the Court is of opinion -(a) That the company’s affairs are being conducted in manner prejudicial to public interest or in a manner oppressive to any member or members; and (b) that to wind up the company would unfairly prejudice such member or members, but that otherwise the facts would justify the making of a winding – up order on the ground that it was just and equitable that the company should be wound up, the Tribunal may, with a view to bringing to an end the matters complained or make such order as it thinks fit.”

. However, as was observed by this Court in Shanti Prasad Jain’s case (supra) the law has not defined as to what would amount to “oppressive”. for the purposes of Section 397 and it is for the Courts to decide on the facts of each case as to whether such oppression exists which would call for action under Section 397. It was also emphasized that the conduct of the majority shareholders should not only be oppressive to the minority, but must also be burdensome and operating harshly upto the date of the petition.

95. The main grievance of the Appellants appears to be that having been induced into investing large sums of money in establishing the petrochemical complex on various promises, particularly that the Company would continue to retain its private character and the Chatterjee group would have control over its management, such promises, although, reduced into writing in the form of agreements, not only remained unfulfilled, but even the character of the Company was altered with the transfer and sale of 150 million shares by the Company in favour of IOC. Coupled with the above, is the other grievance that despite having transferred 155 million shares in favour of CP(I)PL, and having received the full price therefore, the Company had not registered the same in the Company’s Register of Share-holders, thereby depriving the Chatterjee Group from exercising its right to vote in respect of the said shares. The third grievance of the Chatterjee Group is that by not registering the transfer of the 155 million shares in their favour, but, on the other hand, transferring 150 million shares in favour of IOC, the character of the Company was altered from a Private Company into a Government Company and also reduced the Chatterjee Group to a minority, despite the promises held out earlier and as incorporated in the Agreements dated 20th August, 1994, 12th January, 2002 and 8th March, 2002.

99. The case of the Chatterjee Group is woven around two particular issues, namely, that it had been induced to invest in HPL so as to make it a successful commercial enterprise on the promise that the Company would always retain a private character and the Chatterjee Group would have control over its management, but such a promise had not been adhered to and, on the other hand, negotiations were undertaken by WBIDC to induct IOC, a Central Government Company, with the intention of ultimately handing over the management of the Company to IOC. The aforesaid case of the Chatterjee Group is also based on the grievance that while keeping the Chatterjee Group under the impression that it intended to ensure that the Chatterjee Group had the requisite number of shares to allow it to have a majority shareholding and thereby control of the Company’s management, the Company carried on clandestine negotiations with WBIDC to transfer all the shares held by it in the Company to IOC to give it management and control over the Company’s affairs.

100. The second ground, as made out by the Chatterjee Group, was that despite having transferred 155 million shares in favour of CP(I)PL on 8th March, 2002, it did not register the same in the name of CP(I)PL, which remained the beneficial owner, the right to vote on the basis thereof remained with WBIDC. This was done despite the fact that the price for the said shares had been received by way of private arrangement and the Lenders and financial institutions had given their consent to the same. According to the Chatterjee Group, this one act of omission on the part of the Company was sufficient to attract the provisions of Section 397 of the Companies Act and for the CLB to pass appropriate orders on account thereof. It is on account of the second ground on which the Company Petition was filed that a prayer had been made therein for a direction upon WBIDC and IOC to immediately register the transferred 155 million shares in the name of CP(I)PL.

102. Although, the Chatterjee Group has complained of the manner in which it had been reduced to a minority in the Company, it is also obvious that when the Company was in dire need to funds and the Chatterjee Group also promised to provide a part of the same, it did not do so and instead of bringing in equity, it obtained a loan from HSBC through the Merlin Group, which only increased the debt equity ratio of the Company. Furthermore, while promising to infuse sufficient equity in addition to the amounts that would have been brought in by way of subscription to the Rights Issue, the Chatterjee Group imposed various preconditions in order to do so, which ultimately led GoWB and WBIDC to terminate the agreement to transfer sufficient number of shares to the Chatterjee Group to enable it to have complete control over the management of the Company and also to retain its private character. It is at a stage when there was a threat to the supply of Naphtha, which was the main ingredient used by HPL for its manufacturing process, that it finally agreed to induct IOC into the Company as a member by transferring 150 million shares to it. It may not be out of place to mention that it was on Dr. Chatterjee’s initiative that it had been decided to induct the IOC as a member of the Company at meetings of the Directors which were chaired by Dr. Chatterjee himself. Of course, as explained on behalf of the Chatterjee Group, even the induction of the IOC as a member of the Company is concerned, was part of a conspiracy to deprive the Chatterjee Group of control of the Company since GoWB and WBIDC never intended to keep its promise regarding transfer of at least 60% of its shareholdings in favour of the Chatterjee Group. Such a submission has to be considered in the context of the financial condition of the Company and the response of the Chatterjee Group in meeting such financial crunch. In our view, if in the first place, the Chatterjee Group had stood by its commitment to bring in equity and had subscribed to the Rights Issue, which was a decision taken by the Company to infuse equity in the running of the Company, it would neither have been reduced to a minority not would it perhaps have been necessary to induct IOC as a portfolio investor with the possibility of the same being converted into a strategic investment.

104. In our view, the appellants have failed to substantiate either of the two grounds canvassed by them for the CLB to assume jurisdiction either under Section 397 or 402 of the Companies Act, 1956, and it could not, therefore, have given directions to WBIDC and GoWB to transfer 520 million shares held by them in HPL to the Chatterjee Group and the High Court quite rightly set aside the same and dismissed the Company Petition.”

. SUBMISSIONS The argument of the learned Counsel for the parties, in summary are noted below : - Plaintiff On behalf of the plaintiff arguments were advanced by Mr. Pratap Chatterjee, learned Senior Advocate. On behalf of GoWB and WBIDC arguments were advanced by Mr. S.K. Kapur, learned Senior Advocate. The following arguments were made : A. Section 45 of the Arbitration and Conciliation Act empowered the Court to investigate in case of a foreign arbitration whether the arbitration agreement had become null and void, incapable of being performed or inoperative. B. The agreement of 12th January, 2002 had been superseded by the agreement of 8th March, 2002. Although the 8th January, 2002 agreement contained an arbitration clause, the 8th March, 2002 agreement stipulated that the Courts in Calcutta alone would have jurisdiction which had the effect of superseding the arbitration clause. The agreement of 30th July, 2004 endorsed the agreement of 8th March, 2002. CP(I)PL was not a party to the 8th January, 2002 agreement but was a party to the 8th March, 2002 and 30th July, 2004 agreements with independent obligations. Alternatively, the first defendant had abandoned the remedy by way of Arbitration. C. The agreement of 8th March, 2002 and 30th July, 2004 novated the 8th January, 2002 agreement by adding CP(I)PL as a party and imposing obligations upon it. D. Hence the arbitration agreement had become null and void and/or inoperative and/or incapable of being performed. E. By approaching the Company Law Board the first and second defendants and their associates companies had abandoned the remedy available in arbitration. The Supreme Court by its judgment and order dated 30th September, 2011 had held against the first and second defendants and their group companies. The Supreme Court held that it had the power under Section 402 of the Companies Act, 1956 to grant reliefs to the said defendants but was not exercising the power in the facts and circumstances of the case. F. In those circumstances the present claim of the first defendant in arbitration was barred by the law of res judicata and/or constructive res judicata. G. The claim ceased to be a live claim. H. The claim of the said defendant was barred by the laws of limitation. GoWB, WBIDC had terminated their agreement with the first and second defendants by their letter dated 28th September, 2005. The present claim made before the arbitral tribunal was hopelessly barred. Defendant Nos. 1 and 2: The following submissions on behalf of the first and second defendants, were advanced by Mr. Sudipto Sarkar, and Mr. Siddhartha Mitra, learned Senior Advocates : - A. The concept of arbitration implied minimum interference by the Court. The principles of Section 5 of the Arbitration and Conciliation Act, 1996 were applicable to foreign arbitrations. B. Section 45 of the Arbitration and Conciliation Act was not available as the plaintiff had not filed any judicial action mentioned in that Section. Neither were the first and second defendants asking the Court to refer them to arbitration. Arbitration had already been commenced by those defendants by filing a claim before the Arbitral Tribunal. The plaintiff had filed a suit claiming an injunction restraining arbitration. This was different from the situation contemplated by Section 45 of the Act. C. By 8th March, 2002 sale of the shares was over. The agreement was only about repayment of loan secured by pledge of shares sold. The property in the shares had already passed to the first and second defendants. The agreement of 8th March, 2002 was emphatic that all the terms and conditions of the 12th January agreement remained the same. This implied that the arbitration clause remained the same. The initial agreement was for transfer of shares by WBIDC in favour of CP(M)C. Then there was realisation that some approvals were needed before the transfer could be effected. Therefore, GoWB, CP(M)C and CP(I)PL entered into the arrangement on 8th March, 2002 whereby the shares could be transferred to CP(I)PL. It was understood that after the shares were transferred to CP(I)PL and approvals obtained they could be transferred to CP(M)C. D. This arrangement was endorsed by the parties by the agreement of 30th July, 2004. E. On 17th December, 2004 GoWB wrote to HPL with a copy to CP(M)C reiterating their commitment for transfer of shares to CP(M)C and CP(I)PL. F. There was no claim before the Company Law Board for transfer of 155 million shares. G. The Supreme Court did not decide the dispute about transfer of 155 million shares, stating that it was a private dispute between the parties. Hence the principle of res judicata or abandonment of claim did not arise. H. The claim of the first and second defendants was not barred by limitation. The Company Law Board had passed an order directing status quo regarding the shares which remained intact till dismissal of the Supreme Court appeal on 30th September, 2011. Therefore the cause of action for preferring the claim before the Arbitral Tribunal arose after dismissal of the Supreme Court appeals on 30th September, 2011. I. Moreover, the defendants are entitled to protection under Section 14 of the Limitation Act, 1963, as the same issues are involved in the Arbitration as were involved in the Company Law Board, High Court and the Supreme Court and the first and second defendants had proceeded bona fide in these fora. In numerable judgments were cited by either side. I will discuss only the relevant judgments at the time of discussing the merits of the rival claims. DISCUSSION & FINDINGS: The issue of novation is most important. The law is codified in the Indian Contract Act, 1872. Sections 62 and 63 are material. They are in the following terms:

“62. Effect of novation, rescission, and alteration of contract. – If the parties to a contract agree to substitute a new contract for it, or to rescind or alter it, the original contract need not be performed.

63. Promisee may dispense with or remit performance of promise. – Every promisee may dispense with or remit, wholly or in part, the performance of the promise made to him, or may extend the time for such performance, or may accept instead of it any satisfaction which he thinks fit.”

. The letter of 8th March, 2012 written by CP(M)C to WBIDC has a great bearing on the subject. It recorded an agreement between these two parties. At the foot of the letter WBIDC endorsed “we agree”.. It was signed by their Managing Director. It said that WBIDC would transfer the 155 million shares to CP(I)PL. not only that, it provided for payment of consideration by CP(I)PL by means of a similar loan agreement as between CP(M)C and WBIDC, provided for in the 12th January, 2002 agreement. However, the letter went on to say that the rights of CP(M)C in the agreement dated 12th January, 2002 would not be prejudiced. On the same day i.e. 8th March, 2002 another agreement was signed between these two parties, together with a new entrant, CP(I)PL. Here, CP(I)PL was referred to as “the borrower”. and CP(M)C was referred to as the “guarantor”.. In the recital part it said that although, under the agreement dated 12th January, 2002, the above shares were to be transferred to the guarantor, CP(M)C, they had been transferred to the borrower, further to the letter of 8th March, 2002. The reason for such changed terms was that some approvals were necessary, to execute the contract between CP(M)C and WBIDC. Since these approvals were not available, the arrangement in favour of CP(I)PL had been made. The following Clause is most important. The consideration for the agreement was paid by CP(I)PL. The shares were pledged with WBIDC and would be released on payment of the full consideration by CP(I)PL. This agreement had a Jurisdiction Clause “Courts at Calcutta alone shall have jurisdiction in all matters relating to the agreement.”

. This was followed by another agreement which was called a supplementary agreement made on 30th July, 2004 which endorsed the 8th March, 2002 agreement. By the letter dated 17th December, 2004, Go. WB reiterated its commitment to transfer the 155 million shares according to the above three agreements. It was contended by Mr. S.K. Kapur, learned Senior Advocate that there had been a novation of the contract between the parties dated 12th January, 2002. According to Mr. Sarkar, CP(M)C was just asking for transfer in favour of its nominee CP(I)PL on the principle of Beswick Vs. Beswick reported in 1967 (2) ALL. ER 1197.The common law principle, that a party to an agreement for sale can stipulate that the subject matter of the sale could be transferred in favour of his nominee, as held in Beswick Vs. Beswick reported in (1967) 2 ALLER 119 is not applicable here, in my opinion. By the letter dated 8th March, 2002 read with the formal agreement of the same date, the entire obligations, in my opinion, were changed. CP(I)PL did not act as a nominee but became a party to the transactions. not only were the shares to be transferred in its favour, it would directly provide the consideration, partly by cash and party by obtaining a loan from WBIDC against pledge of the shares, just in the way CP(M)C had done by the 12th January, 2002 agreement. Only the Kolkata Court would have jurisdiction. Hence there were large scale and fundamental alterations to the 12th January, 2002 agreement, binding the original parties and bringing in a new party CP(I)PL. The case of Heyman Vs. Darwine Ltd. reported in 1942 (1) ALLER 33 cited by Mr. Sarkar was about the arbitration clause, held to be surviving after repudiation of the contract. The question in the case of The Union of India Vs. Kishorila Gupta & Bros. reported in AIR 195.SC 136.cited by Mr. Kapur was, inter alia, whether after supersession of the contract, the arbitration clause fell with it. The answer of the Supreme Court was yes affirming the decision of Bachawat J.of our Court in the case of Union of India Vs. Kishorilal Gupta & Bros. reported in AIR 195.Cal 642. The Division Bench of Delhi High Court spoke on similar lines in the case of M/s. Dadri Cement Co. and another Vs. M/s. Bird and Co. Pvt. Ltd. reported in AIR 197.Delhi 223 also cited by Mr. Kapur. The agreement was terminated by the Go. WB/WBIDC on 28th September, 2005. If it had been just termination and nothing more, it could not have been said that the arbitration clause also perished. The English decision Heyman Vs. Darwine Ltd. (Supra) would have come to the aid to the above defendants. It is not a case where a whole agreement is superseded and the Court is asked to consider whether the arbitration clause perished with it. It is neither a case of the arbitration clause perishing with rescission. This is a case, where by express words the parties have altered their obligations by a new agreement on 8th March, 2002 with a term that the Courts in Kolkata “alone”. would have jurisdiction. This was affirmed by the 30th July, 2004 agreement. This put an end to the arbitration, once and for all. Therefore, the arbitration clause in the 12th January, 2002 agreement was abrogated by the 8th March agreement. Abrogation of an arbitration agreement could not be made in clearer terms. Now, the question arises whether this Court has the power to stay the arbitration before the International Court of Arbitration at Paris. I come to Sections 44 and 45 of the Arbitration and Conciliation Act, 1996, (hereinafter referred to as “the Act”.). Para II deals with Enforcement of Foreign Awards. Chapter I under it relates to New York o Convention Awards. Sections 44 and 45 of the Act are of paramount importance. They are set out below:

“44. Definition. – In this Chapter, unless the context otherwise requires, “foreign award”. means an arbitral award on difference between person arising out of legal relationships, whether contractual or not, considered as commercial under the law in force in India, made on or after the 11th day of October, 1960 – (a) in pursuance of an agreement in writing for arbitration to which the Convention set forth in the First Schedule applies, and (b) in one of such territories as the Central Government, being satisfied that reciprocal provisions have been made may, by notification in the Official Gazette, declare to be territories to which the said Convention applies.

45. Power of judicial authority to refer parties to arbitration. – Notwithstanding anything contained in Part I or in the Code of Civil Procedure, 1908 (5 of 1908), a judicial authority, when seized of an action in a matter in respect of which the parties have been an agreement referred to in section 44, shall, at the request of one of the parties or any person claiming through or under him, refer the parties to arbitration, unless it finds that the said agreement is null and void, inoperative or incapable of being performed.”

. Mr. Pratap Chatterjee, learned Senior Advocate appearing for the plaintiff submitted that the power under Section 45 of the Act could be invoked to stop the foreign arbitration. He submitted that the arbitration agreement dated 12th January, 2002 had become “null and void, inoperative and incapable of being performed”. under Section 45. He distinguished this provision from Section 8 of the Act relating to domestic arbitration. He said that the jurisdiction of the Court to adjudicate whether the arbitration agreement had become null and void, inoperative or incapable of being performed was not provided in Section 8. Section 45 contained the power. He cited a Madras High Court decision in the case of Mr. Ramasamy Athappan & Anr. vs. The Secretariat of the Court, International Chamber of Commerce & Ors. reported in 2009-3-L.W.

580. He also said that the dictum of the Supreme Court in the case of SBP Vs. Patel Engineering reported in (2005) 8 SCC 618.although the same related to domestic arbitration, empowered the Court to go into this question. Mr. Sarkar on the other hand referred to the case of Dresser Rand S.A. Vs. Bindal Agro Chem. Ltd. , an unreported decision of the Supreme Court decided on 25th February, 1994 and to the case of Korp. Gems (India) Pvt. Ltd. Vs. Precious Diamond Limited and Ors. reported in 2007 (2) CHN 54.to submit that an injunction should not be granted. He relied on the case of Fuerst Day Lawson Ltd. Vs. Jindal Exports Limited reported in (2011) 8 SCC 33.to argue that the 1996 Act was a complete Code and that the Court should not interfere. The scheme of the Act was that there should be minimum interference by the Court. Mr. Sarkar referring to Section 45 of the Act said that his client was not asking for any reference to arbitration in respect of any action where the arbitration Clause was involved. Therefore, there can be no application of Section 45. Here, HPL had filed a suit restraining arbitration. I do not find anything in the above decisions to suggest that if it is shown to a Court of law in this country and found by it that a particular agreement on which a right to have foreign arbitration is claimed, does not contain an arbitration clause, or it has been abrogated or superseded the Court will decline to interfere and ask the parties to get the issue adjudicated by the arbitrator or the Arbitral Tribunal. Undoubtedly, the rules of ICC that govern the arbitration contain a provision that the Arbitral Tribunal would adjudicate upon the validity of the arbitration agreement. If the facts were seriously disputed or capable of more than one interpretation or if they needed to be proved by evidence, surely the question of jurisdiction is normally to be decided by the arbitrator or Arbitral Tribunal. In this case when it is absolutely clear, on the available evidence without the necessity of inviting any additional evidence, that the arbitration clause has been abrogated, it would be injustice to the plaintiff to refer them to an arbitration in a foreign land to establish before an Arbitral Tribunal that there was no arbitration agreement. When it has been established here that there is no arbitration agreement surviving, the Arbitral Tribunal, does not have any jurisdiction over the subject matter of this dispute. And this is very fundamental. In domestic arbitrations, the Supreme Court has said that the Court can go into the question of the validity of an arbitration agreement or whether a particular arbitration agreement bound a particular party, whether a live issue remained to be tried and so on.(See the case of SBP Vs. Patel Engineering reported in (2005) 8 SCC 618). I apply the same principles here. I would also borrow the principle enshrined in the case of Visa International Limited Vs. Continental Resources (USA) reported in 2009 (2) SCC 5.and Anil Kumar Vs, B. S. Neelkanta And Others reported in (2010) 5 SCC 40.to hold that there is no issue to go before the arbitrator. All these cases were cited by Mr. Kapur and Mr. Chatterjee. The above facts would also show that the arbitration agreement became null and void or inoperative or incapable of being performed as held in the case of Mr. Ramasamy Athappan & Anr. vs. The Secretariat of the Court, International Chamber of Commerce & Ors. reported in 2009-3-L.W. 580 (Supra). Hence, I am not called upon to decide whether the first defendant had abandoned the remedy of Arbitration. Next is the question of res-judicata. The facts of the case as narrated by the Supreme Court in the case of Chatterjee Petrochem (I) Pvt. Ltd. Vs. Haldia Petrochemicals Ltd. & Ors. show that the “Chatterjee Group”. had asked before the Company Law Board, inter alia, the selfsame reliefs that they ask in the arbitration, i.e., for transfer of and registration of the 155 million shares in favour of CP(I)PL. Of course, there were other issues involved before the Company Law Board. The Board by its decision had directed G. WB and WBIDC to transfer and register the shares in favour of CP(I)PL and subsequently to CP(M)C. An appeal was preferred by the Go. WB and WBIDC before a learned Single Judge of this Court. This Court overturned the decision of the Company Law Board. It held, inter alia, that the dispute for transfer of 155 million shares was a private dispute between Go. WB, CP(M)C and CP(I)PL and did not involve any act of the Company so as to constitute oppression of the Chatterjee Group. From this judgment and order of this Court Special Leave Petitions were preferred by the Chatterjee Group before the Hon’ble Supreme Court of India which were admitted and heard as appeals. I had carefully scrutinized the judgment of the Supreme Court at the ad interim stage of this application and have reexamined this judgment at this stage. The Supreme Court has narrated the disputes of the parties in considerable detail. It has made many observations and findings. But the substance of its findings is affirmation of the decision of the learned Single Judge that the dispute raised is a private dispute between two shareholders being Government of West Bengal through WBIDC and the Chatterjee Group. The Company was not involved. Hence, there was no case of oppression of the Chatterjee Group by the Company HPL. The Company Law Board had erroneously exercised jurisdiction by directing transfer of 155 million shares in a private dispute. The Company Law Board had no such jurisdiction, even under S.

402. It dismissed the appeal. It is quite true that the Court did not expressly reserve any right to the Chatterjee Group to explore an alternative remedy. But in my opinion the decision of the Privy Council in the case of Upendra Nath Bose Vs. Lall and others reported in AIR 194.Privy Council 222 cited by Mr. Sarkar, that a Court which declines jurisdiction cannot bind the parties by its reasons while declining jurisdiction, is applicable. With all humility I say that the Supreme Court did not bind the parties by its judgment on the issue of specific performance of the agreement to transfer 155 million shares issue. I do not agree with Mr. Kapur’s arguments based on constructive res-judicata. He relied on explanations IV and V of Section 11 of the Code Civil Procedure Code to argue that since the Supreme Court could have granted the reliefs under Section 402 but refrained from granting them, the reliefs were deemed to be refused. It is true that the Supreme Court stated in its judgment and order of 30th September, 2011 that the Court had plenary powers under Section 402 of the Companies Act, 1956 to give relief to any applicant but that the facts and circumstances of the case did not warrant grant of this relief. There is no constructive res-judicata for the simple reason that the Supreme Court expressly stated that the Company Law Board did not have the jurisdiction to pass the order for transfer of shares as prayed for, on the ground that it was a private dispute and did not involve the Company. According to it, the order of the Company Law Board was erroneous. The Supreme Court was not interfering with that order. The Supreme Court made it express that it was not deciding the issue with regard to specific performance of the contract. I do not think that there is any foundation in facts for the application of the decisions in support of the proposition of res-judicata, namely 1956 CLR 62.AIR 196.SC 8.(Manipur Administration, Manipur Vs. Thokchom Bira Singh); AIR 197.SC 138.(Lalta and others Vs. The State of U.P.; (1986) 1 SCC 10.(para

20) (Forward Construction Co. And Others Vs. Prabhat Mandal (Regd.), Andheri And Others); and (2005) 7 SCC 19.(paras 19, 23,

31) (Ishwar Dutt Vs. Land Acquisition Collector And Another); 1971 (3) SCC 98.(Chandra Bhal Vs. The State of U.P.). Lastly the question of limitation. I am of the opinion that Section 14 of the Limitation Act prima facie comes to the aid of the first and second defendants. Before the Company Law Board they had claimed relief, inter alia, on the selfsame issue, that is, transfer of 155 million shares. The Company Law Board exercised jurisdiction and directed Go. WB and WBIDC to transfer 155 million shares in favour of the first and second defendants. On appeal this order was set aside. The Supreme Court in this judgment and order dated 30th September, 2011 declined to interfere with the order of the Appeal Court. It affirmed the decision of the Division Bench that the Company Law Board had no jurisdiction to order transfer of the shares in a private dispute between the parties. Therefore, the dispute pending before the Company Law Board, the High Court, the Supreme Court and before the Arbitral Tribunal were or are the same relating to the transfer of 155 million shares. The Supreme Court opined that the Company Law Board had no jurisdiction to direct this transfer. Since it was an appeal from an order of the Company Law Board in Section 397, 398 read with S. 402 the Supreme Court felt that there was no cause for exercise of its jurisdiction, under those provisions. No one can deny that the Supreme Court has been invested with enormous powers by the Constitution to pass any orders that it thinks fit. But the fact is that in the facts of this case the Supreme Court felt that the Company Law Board had no jurisdiction to pass any orders under Section 397, 398 read with S. 402 of the Companies Act, 1956. Therefore, in my opinion the Supreme Court perceived a defect in jurisdiction to pass the order prayed for by the Chatterjee Group. This cannot be interpreted as taking away the rights of the first and second defendants to seek any other appropriate remedy. Therefore, I am of the opinion that they proceeded bona fide before the Company Law Board, High Court and the Supreme Court. I would give them the benefit of Section 14 of the Limitation Act,1963. Hence the Arbitral reference was made within time. The other ground advanced on behalf of the first and second defendants was that because of the interim order passed by the Company Law Board and extended from time to time restraining dealing in the shares of the Company, their cause of action was suspended, I am of the view that under Article 54 of the Limitation Act time began to run against the said defendants from the above date of termination of the contract in 2005. Unless there is an injunction restraining filing of a suit (Section 15 of the Limitation Act), there is no other provision under it to help the said defendants, in this kind of alleged suspension of right. This point is rejected. The summary of my findings are as follows : a) The terms of the agreement dated 12th January, 2002 were substantially altered by the agreements dated 8th March, 2004 and 30th July, 2004 for the following reasons : i) A new party CP(I)PL was added. ii) CP(I)PL was not a mere nominee of CP(M)C. It had independent and substantial obligations which included the payment of consideration. iii) WBIDC provided a loan to CP(I)PL, against pledge of the 155 million shares by it for payment of the consideration. iv) The above shares had to be transferred, and registered in the name of CP(I)PL v) Provision of a clause in the 8th March, 2002 agreement that the Courts in Calcutta alone would have jurisdiction over the disputes. b) By reason of provision of the Clause that Courts in Calcutta alone would have jurisdiction over any dispute between the parties, in the agreement dated 8th March, 2002 which was endorsed by the agreement dated 30th July, 2004, the arbitration agreement was superseded. c) The Supreme Court only decided that the Company Law Board did not have jurisdiction under Section 397, 398 read with Section 402 of the Companies Act to order specific performance of the agreement dated 12th January, 2002 by directing transfer of the155 million shares. The disputes which were raised before the Company Law Board were private disputes between the parties and did not involve the Company, HPL. Hence there was no scope for invocation of the above jurisdiction. The Supreme Court was not using its powers under Section 402 of the Companies Act, 1956. Hence the Supreme Court dismissed the appeal on the ground that the High Court had rightly exercised its jurisdiction by holding that the Company Law Board did not have the above power. In the circumstances the Supreme Court did not decide the merits of the disputes between the parties relating to specific performance of the agreement dated 12th January, 2002 read with the agreements dated 8th March, 2002 and 30th July, 2004. Hence the above issue is not res judicata. d) The above defendants are entitled to the benefit of Section 14 of the Limitation Act, 1963, for the reason, that identical issues were raised before the Company Law Board, this High Court, and the Supreme Court and the Arbitral Tribunal. For want of jurisdiction the issues could not be decided by those Courts. The first and second defendants had proceeded with the litigation before the Courts, bona fide. On the basis of my above findings I allow the application (G.A. 1191 of 2012) by affirming the existing order of injunction passed by the Appeal Court on 18th May, 2012 till the disposal of the suit. I am cautious to say that all the findings above are prima facie. The protection under S. 14 would only apply for a period of eight weeks from date, by when the first and second defendants would have to institute an appropriate proceeding to claim transfer and registration of the above shares, subject to all questions regarding its maintainability, its merits, including the point of limitation. Now, I come to the application made by the third defendant (G.A. 1598 of 2012 and the application made by the fourth defendant (G.A. 1603 of 2012) for deletion of their names from the cause title. The ground is that no cause of action is disclosed against them. I agree. The suit is for adjudging the 12th January, 2002 agreement as void, inoperative and incapable of being performed and for ancillary reliefs. Neither of the defendants is a party to this agreement. Nothing is pleaded against them. Each of these applications is allowed by ordering the deletion of the names of these defendants from the cause title. Urgent certified photocopy of this judgment/order, if applied for, be supplied to the parties subject to compliance with all requisite formalities. (I.P. MUKERJI, J.) Later: Mr. Siddhartha Mitra, learned Senior Counsel prays for stay of operation of this judgment and order. Considering the merits of the matter, the prayer for stay is considered and refused. (I.P. MUKERJI, J.)