notice of motion passed under injunction in civil suit 5827/2001

Text of written arguments submitted on 11-3-2003 by Mr. Mody

http://mediagtbpsm.blogspot.com/2004/10/written-arguments-presented-by-mr-mody.html

Text of written arguments submitted on 17-3-2003 by Mr. Mody

http://mediagtbpsm.blogspot.com/2004/09/text-of-written-arguments-on-17-3-2003.html


The issues and contentions raised in the written arguments , the defendents , the defendants – (Dhanyushya, Jatin Jalundhwala, Core Health Care, Global Trust Bank ) have not furnished written reply nor has the court discussed the contents of the written arguments raised by Mr. Plaintiff- Mody while passing orders on 8-4-2003 as under:-


ORDER BELOW EXH(6) IN City civil suit .S. NO. 5827/2001 on 8-4-2003


(1) The notice of motion is moved by the plaintiff for restraining the defendants their agents servants, assignees office bearers, executors employees directors etc etc from dealing with the suit property in any mode or manner and from creating any charge lien etc etc on the suit property till the decision of suits on merits.

(2) The plaintiff has filed a suit for permanent injunction contending that Roopmanglam Investment Private limited company is incorporated under the Indian Companies Act 1956 on 28-7-1980 and the directorship is limited or restricted one in respect of family members only and therefore the transferability of the shares is also of restrictive nature and share capital of Roopmanlgam Investment Private Limited is Rs 15,00,000/-. That Dhanyushya Financial Private Limited is also a company incorporated under the provisions of Indian Companies Act 1956 and the defendant no2 here in is a company secretary by profession and also a manager secretarial (legal) and also so called director of defendant No 1. That the defendant no 3 is also a company incorporated under the provisions of Indian Companies Act and the defendant No 4 is a Global Trust Bank engaged in banking business on large scale.

(3) That there is a property situated in chhadvada Taluka city TP scheme no 3/5final plot no 768 hissa no 10 paiki admeasuring 30656 sq meter and 62%land 1900.59 land along with construction is of the ownership ofRoopmanglam Investment Private Limited and 19% land is of theownership and of possession of Flovin Plastics Private Ltd and 19% land isof the ownership and possession of Dhanyushya Financial Private Ltd andsaid land is of the joint ownership and yet partition is not effected betweenthe coowners and it is accordingly mutated in village form 7x12 also andthe land of the ownership of the ownership of Roopmanglam InvestmentPrivate Ltd is more particulary described in notice of motion para 2 andhere in after referred to as the suit property. That as per order of Revenuedepartment no ULC/3496/1917 dated 5-1-0-96 the RoopmanglamInvestment Private Limited is ordered to maintain status quo on the spot inrespect of that suit property.

(4) That the defendant no 3 Core Health Care Limited for the purpose of its business has to take financial assistance, of and on and he defendant no 2 in the capacity of administrator of defendant no 3 manages for bank loan etc from the defendant no 4 but that has to be done, by keeping in mind the interest of shareholders and investors.



(5) According to plaintiff he has never tendered resignation from the post of Director of Roopmanglam Investment Private limited and u/s 303(2) of Companies Act it is mandatory to submit information regarding resignation of directors of the company in prescribed form no 32 to the Registrar of Companies along with minutes book of the meeting of the company and the defendants no 1 to 3 have got up that false fact and as stated above he never tendered his resignation and nor any resolution came to be passed to that effect in the meeting of the company and nor that information has been forwarded to the Registrar of Companies.


(5) Then it is contended by the plaintiff that pursuant to MOU between theDefendant 1 and its share holders and subject to compliance of terms and conditions of MOU and subject to payment of amount stated there in he has handed over blank form no 32 along with MOU to auditor Shri Kashiparekh and the defendant no2 has managed to collect that blank form auditor Shri Kashiparekh and has misused that form, but according to him even today he is continued to be director and shareholder of Roopmanglam Investment Private Limited.


(6) That the defendants no 1to 3 has obtained financial assistance of Rs 11 from the defendant no 4 in respect of suit property and without payment of that amount or by alleged deemed payment has obtained a loan of Rs. 12.5o crores against the mortgage of suit property of Roopmanglam Investment Private Ltd.

(7) It is the say of the plaintiff, that without resolution of company no chargecannot be createdon the property of company and that before mortgage of suit property no resolution came to be passed by Roopmanglam Investment Private limited ant that the defendant No 2 has signed as director of the company falsely and the entire procedure is defective.



(8) According to plaintiff though revenue department of Government of
Gujarat has issued injunction order on 5-10-96 in respect of properties of Roopmanglam Investment Private Limited the property came to be mortgaged with the defendant no 4 and which is illegal .


(9) That before, mortgage of the suit property, the defendants no3 and 4 have No 3 and 4 have not cared to get appraisal report and the whole procedure adopted for loan is collusive and for personal befits of defendants no 3 and 4.


(10) Then it is contend by the plaintiff that transfer of the shares of himself and his family members, are not made in accordance with rules and made without taking approval of share holders and that too on the strength of false record and therefore MOU arrived at between himself and the defendant no 1is non effective and without consideration and defendants no 1 to 3 incollusion of family members of the plaintiff and by forged signature committed fraud and malpractice and consequently the charge created onthe properties of the company is non effective without consideration and liable to be dismissed or cancelled.

(11) That under chapter 20 and S 269 and 37(I) of Income tax it is mandatory for the vendor and vendee to fill in the form and for alienation of the property prior sanction is also necessary and the defendants have committed flagarant violation of statutory provisions and there fore he has addressed a letter to the
defendant no 4 on 27-4-99 to which the defendant no 4 has filed evasive reply.


(12) That defendant no 1 has served a notice to the plaintiff through its advocate A D shah where he has been addressed as a director and from that notice also it is clear that the defendant no 4 without scrutiny of basic document sand in collusion with defendants no 1 to 3 have created false charge in respect of suit
property and proposes to sell the property of the company for the alleged dues of it, and in fact the defendants with each other propose to grab away the suit property.

(13) According to the plaintiff the defendants no 3 to 4 are about to enter in to further transaction in respect of suit property and if that succeed accordingly then the plaintiff would suffer irreperable loss which cannot be compensated in terms of money and therefore by filing present notice of motion it has been solicited that the defendants be restrained from alienating or dealing with the suit property till the decision of suit on merits.

(14) The defendants no 1 has filed its detailed reply against plaint as well as notice Of motion vide exh 41 and which came to be adopted by the defendants no 2 and 3 by pusrshish exh 42 and 432 respectively and contended that the suit of the plaintiff suffers from non rejoinder of necessary parties in as much as the plaintiff wants to seek relief with respect to the properties of Roopmanglam
Investment Private Ltd(now having merged with Span Medicals Limited), although the said Roopmanglam Investment Private Limited is not joined as a party to the suit.

(15) The defendants then contended that the suit of the plaintiff is barred by Limitation. Even on the principles of delay7 latches estoppel and acquiescence the plaintiff is not entitled to any relief claimed in the suit and the notice of motion.

(16) That the defendant no 1 was desiring of buying the immoveable property described in of exh 41 and therefore a memorandum of understanding dated 24-1-95 was executed between Shri (1) Sureshchandra Shamaldas Mody (2) Roopmanglam Investment Private Ltd (3) Floviu Plastics Private Ltd and defendant no 1 as per terms and conditions spelt out in para 7:2 7:2(a) (b) and based on aforesaid meorandum of understanding dated 24-1-95 another memorandum of understanding dated 24-1-95 was executed between(1) Pankaj S Mody Huf (2) Mrs. Sukhini P Mody (3) Mr. Pankaj S. Mody(Plaintiff) (4) Mrs Pankaj S Mody (trustee of parthiv Trust (5) Mrs Pankaj S. Mody (trustee of Parthiv trust) (5) Himanshu S. Mody (6) Himanshu S Mody (HUF) (7) Mrs. Mauna H. Mody (8) Himanshu s Mody (9) Himanshu s Mody (Trustee of Rushabh trust (10) Mrs Mauna H Mody (trustee of Rajvi Trust) (11) Sureshchandra S Mody HUF (12) Mr. Sureshchandra mody (13) Mrs Nalini S Modi ALL OF THEM BEING VENDORS AND Dhanyushya Finacial Private Ltd (defendant no 1). The shares said Roopmanglam Investment Private Limited were agreed to be sold by the aforesaid 13 persons including thje plaintiff in favour of defendant no 1 and the salient features of the said MOU are stated in paragraph 7:3(a) 1to 7 (b) (i) (a)(b) (ii) (iii) (C) (i) (ii) (iii) (iv) exh 41 and by a memorandum of understanding dated 24-1-95 executed between 13 persons said above all of them being vendors and Dhanyushya Fiancial Private Ltd (defendant no 1) the shares of the said Flovin Platics Private Ltd were agreed to be sold by the aforesaid 13 persons including the plaintiff in favour of the defendant no 1 and the salient features of the said MOU are stated in paragraph 7: (4) (a) 1to 7 (b) (a) b(ii) (iii) c(1) to iv ex 41


(17) That an agreement to sell dated 24-1-95 was also entered in between Shri Suareshchandra Mody and defendant no 1 as regards the sale of 19% of said Sureschandra Modi to defendant no 1. The said agreement to sell was also registered with the Registrar of Documents. An application under s269 of Income tax was made for obtaining permission for the transfer of the said property from Sureshchandra Mody in favour of defendant no 1 and accordingly permission dated 28-4-95 was obtained from the incometax department. Thereafter sale deed dated 24-7-95 was also entered between Sureschandra Mody and defendant no 1 in which the plaintiff signed as one of the witnesses.

(18) Pursuant to the aforesaid MOUs the defandant no1 made payments as per the details (given in Annexure A. out of the said payments, the details of the payments made by defendant no 1 to the plaintiff and other persons who are vendors of the Mou dated 24-1-95 so far as Roopmanglam Investment Private Ltd is concerned are given in annexure B. The payment made by defendant no 1 to the vendor in the MOU dated 24-1-95 so far as Flovin Platics Priavte Limited is concerned is given at annexure C and the details of payment made
by defendant no 1 to Sureschandra Mody are concern are given at Annexure D. That the plaintiff has accepted the said payment and from the bank statement it is clear that the cheques issued by the defendant no 1 to the plaintiff has been accepted.


(19) That the suit property has already been transferred in the name of defendant no1.The plaintiff who was one of the erstwhile directors of Roopmanglam Investment Private Limited resigned as the director of the Said Company and necessary form no 32 for change of directors of said Roopmanglam investment Private Ltd has been filled up and submitted to the Registrar of Companies by plaintiff himself along with defendant no 3 who was earlier appointed as the director of the said company pursuant to MOU Dated 24-1-95.


(20) It is thus clear that all the vendors of the MOUs have been fully paid off as Per the terms of the MOUs .All other terms of the MOU have been fully complied with. No other vendor has taken any objection with respect to the transfer of shares or property and it is plaintiff who is now belatedly attempting to create hindrance in the enjoyment of the suit property byu defenndat no 1.

(21) That much prior to the filing of the suit, the suit property has been given as mortgage on 31-8-1998 to defendant no 4 bank. The said mortgage was obtained by defendant no 4 after knowing about the order of urban the order of urban land ceiling authority dated 5-10-1996.


(22) The defendants denied that the constitution of Rupmanglam Investment Private Ltd was kept for the family members of the plaintiff or that the Provisions for transfer of shares said Roopmaglam Investment Private Ltd Is of restrictive nature. The defendants denied that the property is now of ownership of Roopmanglam Investment Private Ltd or Flovin Platics Private Limited in the proportion of 62% and 19% respectively.


(23) That the order of status quo dated 5-10-96 passed under the urban land ceiling and regulations act has been withdrawn by an order dated 25-1-99 by the Joint Secretary Department of Revenue Government of Guajarat and it is denied by the defendants that the plaintiff has any share or right in the share capital of Roopmanglam Investment Private Limited and it is denied that the defendant no 2 by obtaining form 32 from the auditor Shri Kashiparekh presented the same before the Registrar of Companies by misusing form no
In fact the said form no 32 was filled long back in September 1996. This suit is filed only as an after thought i.e after passing of more than reasonable time and fact itself shows that the suit of the plaintiff is malafide and is an attempt to extract money out of the defendants.

(24) The defendants then contended that the plaintiff has no primae facie case and Balance of convenience is also not in his favour and that the plaintff has not approached the court with clean hands and obtained the order of status quo by suppressing material facts.


(25) That the plaintiff has acquiesed in transfer of shares and change of director of Roopmanglam Investment Private Limited as in the transfer of the suit property from sureschandra Mody to defendant NO 1 and therefore the notice of motion moved by the plaintiff is devoid of any merits and it requires to be dismissed.

(26) The defendant no 4 i.e Global Trust Bank has filed its reply at exh 53 and Contended that it si a bonafide mortgage for value without notice of the Properties owned by M/s Roopmanglam Investment Pvt Ltd M/s Flovin Plastics Pvt Ltd and M/s Dhanyushya Fiancial Private Ltd and M/s Dhanyushya Financial Pvt Ltd and which si more particulary detailed and described in schedule (page no 8 and 9) and have offered the said properties which have offered the said properties which have clear and marketable title having is no lien charge mortgage and other circumstances on the said properties as security by way of equitable mortgage for various fiancial facilities granted to M/s Core Health Care Ltd to secure due repayment of the said finacial facilites.


(27) that after verifying and satisfying the title of the said properties and after taking necessary search of the revenue record as well as record of the registrar of companies through its advocates/solicitors taken the said properties as collateral security. That at the request of M/s Core Health Care Ltd company registered under the Companies Act 1956 granted term loan facility of Rs 12.50 crore with interest and also delivered necessary documents to it.

(28) That M/s Core Health Care Ltd accepted all the terms and conditions of the sanction communicated by the defandant no 4 M/s Core Health Care Ltd in security where of signed executed and delivered documents to it. M/s Roopmanglam Investment Private Ltd, M/s Flovin Plastics Private Ltd and M/s Dhanyushya Finacial Pvt Ltd along with others have furnished guarantee and thereby guaranteed due repayment of financial facility granted to M/s Core Health Care Private limited and M/s Roopmanglam Investment Private Ltd and M/s Flovin Plastics Private Ltd and M/s Dhanyushaya Financial Private Ltd have along with other security mortgaged their immoveable properties. That the plaintiff though heavily relied on the MOU for the reasons best known to him has not placed the said MOU on record and suppressed the same. The plaintiff though well aware about the same with oblique reasons not taken any steps to protect his right. The defendant no 4 then reiterated that the title that the titles of the said properties were at the time of the availment credit facility investigated through an advocate and after obtaining the title clearance certificate the said properties were accepted as security and has also reinvestigated the entire process of mortgage as per the instruction of its head office and also contended that the plaintiff has no primaefacie case, nor balance of convenience in favour of the plaintiff and therefore notice of motion deserves to be dismissed with costs.

(29) I have heard the learned advocates for the parties.
(30) The first and foremost question arises for determination is whether the plaintiff continued to be the director of Roopmanglam Investment Pvt Ltd a nd in that context it is expedient to refer 53/33 which is a certified copy of Form 32 of Roopmanglam Investment Private Ltd and and from that it is clear tjhat the present plaintiff has resigned as director of the company and from mark 53/32 which is also a certified copy of form no 32 of M/s Flovin Plastics Private Ltd it appears that present defendant No 2 Shri Jatin Laladhunwala was appointe as director of the company and from mark 54/35 which is also a Xerox copy of form 32 of M/s Flovin Plastics Private Limited it appears that the present plaintiff has resigned from the post of director of the said company and it does not appear any truth in saying of the plaintiff that the defendant no 2 by obtaining form 32 from the auditor Shri Kaship[arkeh presented the same before the Registrar of Companies and Shri Kashiparekh has not filed in support of that in favour of the plaintiff and the plaintiff is not a illeterate person bout once upon the director of Roopmanglam Investment Private Limited and Flovin Plastics Private Limited and would not have handed over a blank form of his signature to any person which can be used against himself.

(31) Now it may also be stated thavt the suit of the plaintiff also suffers from nonrejoinder of necessary parties in as much as the plaintiff wants to seek relief of Roopmanglam Investment Private Limited ( now having merged with Span Medicals Limited) although said Roopmanglam Investment Private Limited has been not impleaded as parties to the present suit.


(32) Now it is also pertinent to note that whether the plaintiff is guilty of Suppressing so many vital facts from the court for obtaining injunction only and which disentitiles him to grant of discretionary relief claimed for and in that context it may be noted that an immoveable property bearing sub plot no 1 of final plot 768 of Ellisbridge Town Planning scheme no 3(varied) admeasuring 3669.72 sq yard i.e. 3065 sqmeteres originally belonged to the following persons:-


(a ) Roopmanglam Investment Private Limited 62%
(b) Flovin Plastics Private Limited 19%
(c) Sureschandra S Mody 19%


and it appears that the defendant no 1 was desiring of buying the said immoveable properties described above and therefore on 24-1-1995 a M.O.U. was executed between Suresh Mody (ii) Roopmanglam Investment Private Ltd (iii) Flovin Plastics Private Ltd and based on the aforesaid MOU dated 24-1-1995 another MOU dated 24-1-1995 executed between 13 persons whose names are furnished in para 7:3 of wide exh 41 (defendant no 1) all being vendors and Dhanyushya Financial Private Limited (Defendant no 1 here in ) the shares of the said Roopmanglam Investment Private Limited as well as Flovin Plastics Private Ltd were agreed to be sold by the 13 persons including the plaintiff in favour of the defendant no 1 and both MOUs are produced by the defendant no1 vide mark 56/1 a dn 56/2 dated 24-1-1995 and it is not necessary to reproduce the contents of terms and conditions of both MOUs dated 24-1-1995 and sufficient to note that an agreement to sell dated 24-1-1995 was also entered between Shri Suresh Mody of the 19% of the said sureshandra mody to be defendant no 1 vide mark 56/4 and tha the said agreement came to be registered with the registrar of documents and the plaintiff has made trump card of his case to the fact that the requisite permission has not been obtained under section 269 of the income t ax act from mark 56/3 dated 28-4-1995 it is clear that necessary permission was obtained from the income tax department and there after a sale deed dated 24-7n-1995 produced vide mark 56/5 was also entered between the defendant no 1 and Shri Suresh Mody and the plaintiff himself has signed as one of the witnesses.

(33) From the documentary evidence it also appears that pursuant to the aforesaid MOUs the defendant no 1 made payments to the plaintiff and other persons who are vendors of the MOUs dated 24-1-1995 and that the Defendant no 1 made payments to the plaintiff and other persons who are vendors of the MOUs dated 24-1-1995 and that i.e. plaintiff has accepted the said payment ( mark 56/14 56/15/ 56/16 56/17).


(34)Thus the suit property has been already transferred in the name f
Of defendant no 1 and all the vendors of the MOUs have been fully paid of as Per the terms of the MOUs and all other terms of the MOUs have been fully Complied with and it further appears from the documentary6 evidence On record that no other vendor has taken any objection with respect to the Transfer of the shares or the property.


(35)It is one of the contention of the plaintiff that revenue department, Government of Gujarat has issued injunction order in respect of properties of Roopmanglam Investmetn Private Limited on 5-10-10-96 and though the suit property came to be mortgaged with defendant 4 but from mark 56/13 dated 25-1-1999 it appears that the said order came to be vacated by order of the competent authority.


(36)From the documentary evidence on record it also appears that much prior To the filing of the suit the suit property has been given as mortgage on 31-8- 1998 to defendant no 4 bank.

(37)From the discussion made above it is clear that the say of the plaintiff that the constitution of Roopmanglam Investment Private Limited was kept for the family members of the plaintiff of the provisions for transfer of shares of the plaintiff or the provisions for transfer of shares of said Roopmanglam Investment Private Ltd and the plaintiff has acqueised in transfer of shares
And change of directors of Roopmanglam Investment Private Ltd as well as In the transfer of suit property from Sureshchandra Mody to defendant No 1 and of para 8 plaint exh(1) be referred minutely then it leaves no doubt that the plaintiff is and was fully aware of two MOUs dataed 24-1-1995 and according to him he signed in Form 32 and two mous subject to the condition to receive payment stated therein did receive the payment as per two MOUs and the fact of signing in blank form no 32 and handing over the same to auditor Shri Kashiparekh and the misuse of the said defendants appear to be
to be quite ridiculous.


(38) In context of above discussion and to that the suit of the plaintiff is bad for delay and latches it may be noted that two MOUs took place on 24-1-1995 and agreement to dale took place on 24-1-1995 and sale deed in respect of suit property took place on 24-7-1995 and mortgage deed also came to be executed long back in year 1998 and though the plaintiff had remained silent and for the first time filed the suit in year 2001 and there fore also the
plaintiff is not entitled to any interim relief at this stage and after 1 –4-1996 i.e. after resignation as director as director of Roopmanglam, it does not appear that he has made any inquiry that for what reasons he is not getting the notices of Boards meeting etc and in my opinion his unexplained is self eloquent to say that he was fully aware that he has no share or right in the share capital of Roopmanglam Investment Private Ltd and is now belatedly attempting to create hindrance in the enjoyment of the suit property.


(39)Much has been argued on the point that the defendant no 4 i.e Global Trust Bank has advanced a loan to the defendant no 1 without scrutinizing the basic document but one Kreishna Kabra in reply cum affidavit ex 52 against notice of motion moved by the plaintiff stated in detail (para 4) that after verifying and satisfying the title of the properties and after taking necessary search of the revenue record as well as record of Registrar of Companies through its advocate/solicitor taken the suit property of collateral Security and that the defendant no 1 has accepted all the terms
and conditions of sanctioned communicated and executed necessary
documents in its favour.

(40)The plaintiff is heavily relied on the notice issued by the defendant no 1 Through its advocate Shri A D Shah and Xerox copy of which is produced at Mark 3/8 and attempted to show that the defendant no 1 it self has addressed the plaintiff as a director and asked to hand over the books of account statutory registers and other records but merely from that it cannot be said that the case of the plaintiff is getting sup[port and otherwise also that notice is of dated 14-10-1998.


(41) For foregoing reasons I have no hesitation in reaching to the conclusion that the plaintiff has failed to show primaeface in his favour and the defendants cannot be restrained from alienating or dealing with the suit property and therefore this N.M deserves to be dismissed and the following order is therefore passed.


ORDER:-

The notice of motion moved by the plaintiff fails and it is hereby dismissed.

Costs would be the costs in the suit pronounced in open court on this 8th day of
day of April 2003.




8-4-2003