in the high court of delhi crl.(misc.) co. no.2/2009 & …delhicourts.nic.in/april10/deepak...

IN THE HIGH COURT OF DELHI

Crl.(Misc.) Co. No.2/2009 & Co.A. Nos.594, 595/2009 & 606, 607/2009

Date of decision: 20th April, 2010

Deepak Khosla ... Appellants through: Mr. Deepak Khosla in person.

VERSUS

Vibhu Bakhru & Ors. ....Respondentsthrough: Nemo.

CORAM:HON'BLE MS. JUSTICE GITA MITTAL

1.Whether reporters of local papers may be allowed to see the Judgment? No

2.To be referred to the Reporter or not? No 3.Whether the judgment should be reported in the

Digest? No

GITA MITTAL, J

Crl.A.No. 607/2009

1. By this application exemption from filing certified copies of

orders is prayed.

2. For the reasons stated, the same is allowed subject to just

exceptions.

Crl.(Misc.)(Co.) No. 607/2009

3. This application is captioned and titled as follows :-

“Crl.Misc. (Co) Application No.____________ of 2009(Under Section 340(1) read with Section 195(1)(b) of the CrPC, read with the Indian Penal Code)

IN THE MATTER OF:

Deepak Khosla ... APPLICANT

Crl.(Misc.)Co.No.2/2009 page 1 of 43

Versus

Vibhu Bakhru & Ors. ... PROSPECTIVE ACCUSED/ PROFORMA PARTIES/ NON-APPLICANTS

APPLICATION FOR PROSECUTION OF PERJURY AND RELATED OFFENCES AGAINST JUSTICE COMMITTED BY THE PROSPECTIVE ACCUSED (WHO ARE APPEARING BEFORE THE HON'BLE DELHI HIGH COURT – COMPANY COURT – ALLEGEDLY AS COUNSELS IN COMPANY APPEAL NO. 7 OF 2008, PURPORTING TO REPRESENT MONTREAUX RESORTS (P) LIMITED, RESPONDENT NO.1 COMPANY THEREIN, WITHOUT ANY AUTHORITY IN THEIR HANDS TO DO SO).”

4. Even though I had prepared the draft of this judgment soon

after closure of the arguments, several roster changes intervened

and unfortunately urgent matters in the new rosters came in the

way of finalising this judgment.

5. Para 2 of the application reads thus:

“2. That the Prospective Accused named herein are three advocates as named hereunder, and their three clients. These advocates are purporting to appear for the Company Montreaux Resorts (P) Ltd. (hereinafter referred to as “MRL”), which is Respondent no.1 Company in the aforementioned Company Appeal:

Directly responsible :

a) Mr. Vibhu Bakhru - Prospective Accused No.1b) Mr. P. Nagesh - Prospective Accused No.2

Abettor :

c) Mr. Vikas Kakkar - Prospective Accused No.3


Advocates' Clients :

d) Mr. Vikram Bakshi - Prospective Accused No.4e) Mr. Wadia Parkash - Prospective Accused No.5f) Mr. Vinod Surha - Prospective Accused No.6”

6. The application is premised on allegations that the third of

the counsels arrayed as party, is allowing the other two counsels

to appear in his place and that the counsels have intentionally

omitted to give information in respect of commission of offence

which they are duty bound to disclose and have also given false

information in respect of commission of offences.

7. The applicant arrays Mr. Vikram Bakshi as a prospective

accused No.4, contending that the counsels are acting on his

instructions. Mr. Wadia Parkash and Mr. Vinod Surha are also

persons arrayed as prospective accused No.5 & 6 respectively.

The applicant states that these persons are present in court on

every hearing.

8. The applicant attributes falsehood to counsels arrayed at

nos.1 & 2 on 28th January, 2009 and has made a grievance that

Mr. Wadia Parkash and Mr. Vinod Surha did not come forward to

disown the same.

9. It is also complained that Mr. Wadia Parkash and Mr. Vinod

Surha forged a resolution dated 27th August, 2007 which is an

offence under Section 409 of the Indian Penal Code.


10. It is essential to notice the factual matrix leading to the

filing of the present application. The facts which have been

noted in a decision dated 29th May, 2009 passed in CA

Nos.512/2009 & 514/2009 in Co. A(SB) No. 7/2008 titled R.P.

Khosla vs Montreaux Resorts P.Ltd. & Ors. can be referred to and

read as follows :-

“3. Certain essential facts which are on record and deserve to be noted in the light of the pleadings in this application are set out hereafter. Co.A.(SB) No. 7/2008 by R.P. Khosla and Co.A.(SB) No. 6/2008 by his daughter in law Sonia Khosla. Mr. Deepak Khosla is the son of Shri R.P. Khosla. In view the voluminous record and nature of submissions, by and large reference to page numbers is recorded. 4. Sonia Khosla filed a petition on 13th August, 2007 under section 397 & 398 of the Companies Act, 1956 against Montreaux Resorts Pvt. Ltd. [page 308 of Co..A(SB) No. 6/2008]. It is important to note that Ms. Sonia Khosla was the only petitioner before the company.5. So far as the parties to this petition before the Company Law Board are concerned, the memo of parties reads thus :-

“Mrs. Sonia KhoslaW/o of Mr. Deepak KhoslaResident of 218, Sector 15-A,NOIDA

Versus1. Montreaux Resorts Pvt. Ltd.

Having its registered office at606, Vishal Bhawan,95, Nehru Place,New Delhi-110019

Also At13th and 15th FloorMohan Dev BuildingTolstoy Marg,New Delhi-110001.

2. Mr. Vikram Bakshi


S/o Late D.N. BakshiR/o 13-1, Jor BaghNew Delhi-110003.

Also at157, Golf LinksNew Delhi-110003.

3. Mr. Wadia ParkashS/o Ved ParkashC-220, Defence Colony,New Delhi-110024.

4. Mr. Vinod SurhaS/o Mr. R.G. SurhaB-43, Raju Park,Near Sainik FarmsDeveli RoadNew Delhi-110062.

5. Ascot Hotesls & Resorts Ltd.13th Floor, Mohan Dev BuildingTolstoy Marg,New Delhi-110001.

6. Mrs. Madhurima BakshiW/o Vikram BakshiR/o 157, Golf Links,New Delhi-110003.

7. Miss. Kanika Bakshi,D/o Mr. Vikram Bakshi,R/o 157, Golf Links,New Delhi-110003.

8. Miss Devika BakshiS/o Mr. Vikram BakshiR/o 157, Golf LinksNew Delhi-110003.

9. Shri Rajeev PuriS/o Shri Om Prakash PuriR/o Kotwali BazarUp-Mahal DharamshalaTehsil DharamsalaDistt. Kangra-H.P.


Also at :DC/o Reliance MobileJaipur

10. Shri R.P. KhoslaHouse No. 5, Sector 15-AR/o 218 Sector XV-ANOIDA 201301

11. Shri Deepak KhoslaS/o Shri R.P. KhoslaR/o 218 Sector XV-ANOIDA 201301.

12. Shri Prem SinghR/o Shri Jeet SinghR/o Vill. ChattiyanTehsil KasauliDist. Solan, H.P.

13. Smt. Kaushalya DeviW/o Shri Prem SinghR/o Vill. ChattiyanTehsil KasauliDistt. Solan, H.P.”

6. In the petition, so far as description of parties is concerned, the same are inter alia described by her as follows :-

“1.2 The authorised share capital of the company legally is Rs.1,00,000 divided into 10,000 equity shares of Rs.10/- each. The legally issued, subscribed and paid-up capital of the company is Rs.1 lakh divided into 10,000 equity shares of Rs.10/- each, fully paid-up. However the petitioner has now discovered that respondent no. 2 to 4, have illegally, without any authority or approval of the Board of Directors and without any notice of the same, proceeded to allot additional 10,000 shares in February, 2007 to respondent no. 2 and his immediate family members (wife and daughters), being respondent nos. 6 to 8, as a result of which the issued, subscribed and paid-up share capital of the company is now reflected as Rs.2 lakhs, divided into 20,000 equity shares of Rs.10/- each.


xxx xxx

1.5 The company was formed by the petitioner but pursuant to certain arrangements/agreements. Vikram Bakshi (respondent no. 2d) was also inducted as a shareholder. The list of shareholders is appended herewith and as Annexure A-2, reflecting the position up to 6-2-2007 (when the illegal allotment of additional shares took place), as well as thereafter.

xxx xxx

2.1 The petitioner is the founder Director of the company, and owns 4,900/3,650 fully paid-up shares of and in the company as would be evident from the list of shareholders detailed in the Schedule at Annexure A-2.

2.2 The shareholding of the petitioner constitutes 49%/36.5% of the legally issued subscribed and paid-up share capital of the company. However, taking into account the additional 10,000 equity shares illegally issued by the respondents to themselves in February, 200-7, the shareholding of the petitioner now constitutes 24.50%/18.25% of such issued, subscribed and paid-up equity share capital.

xxx xxxx

3.1 Respondent no. 1 is the company whose affairs are being mismanaged by respondent nos. 2 to 4, and in respect of whose affairs the petitioner is being oppressed by the respondents. Respondent no. 2 holds 5,100/6,350 shares in the company and is illegally representing himself to be a Director of the company and is acting in concert and collusion with the other respondents to mismanage the company and oppress the petitioner.

3.2 Respondent nos. 3 and 4 are directors of the company, nominated by respondent no. 2


3.3 Respondent no. 5 is a company incorporated under the Companies Act which is owned and controlled by Respondent no. 2 and where respondent nos. 3 and 4 are also directors.

3.4 Respondent nos. 6, 7 and 8 are the immediate family members of Respondent no. 2 who have been illegally and wrongfully allotted 2,200 shares in the Respondent Company in February, 2007.

3.5 Respondent No. 9 is reported to be an ex-employee of respondent no. 2, who has acted in illegal concert with respondent no. 2 in fraudulently registering in his own name property belonging to the company and paid for by the company, property which he is reportedly holding benaami for the benefit of respondent no. 2.xxxx xxxx

3.7 Respondent no. 11 is the husband of the petitioner. (Co.A.6/2008)”

7. The petition refers to a memorandum of understanding dated 21st December, 2005 signed by Sonia Khosla as a shareholder (page 78 of Co.A(SB) No. 7/2008). This memorandum of understanding is followed up by an agreement dated 31st March, 2006 (at page 86) of Co.A.(SB) No. 6/2008. Both these documents have been placed before the Company Law Board. 8. In the petition being C.P. No.114/2007 (before CLB) Ms. Sonia Khosla made the following prayers :-

“(i) Declaration that the purported allotment of 10,000 shares allegedly on 6.2.2007 in favour of respondent nos. 2, 6, 7 and 8 is illegal, bad in law, null and void and not binding on the Company or the petitioner.(ii) Delivery up and cancellation of the 7,800 shares issued in favour of Respondent no. 2, the 2,000 shares issued in favour of respondent no. 6, the 100 shares issued in favour of respondent no. 7, and the 100 shares issued in favour of respondent no. 8.


(iii) perpetual injunction restraining the respondents and any of them, whether by themselves or by their servants, agents and/or assigns or otherwise from giving effect to the purported allotment of shares allegedly made on 6.2.2007 in any manner whatsoever.(iv) Injunction restraining respondent nos. 2, 6, 7 and 8 from exercising any rights or receiving any benefits under, or in relation to, the additional 10,000 shares collectively issued to them on 6.2.2007.(v) Appropriate orders be passed directing the respondent nos. 2, 6, 7 and 8 to transfer their entire shareholding to the petitioner or her nominee or nominees on such terms and conditions this Hon'ble Board may deem fit and proper.(vi) Restrain the respondent nos. 2, 6, 7 and 8 from transferring, alienating, assigning or encumbering their shares held by them in the respondent company in favour of any party other than the petitioner.(vii) Appoint a Local Commissioner to seize, sign and authenticate the Minute Book of the board meetings, minute book of General meetings and all books of accounts and other records of the respondent company.(viii) Restrain the respondents from operating any bank account without the joint signatures of the petitioner.(ix) Restrain the respondent from changing the nature of the project as contained in the agreement dated 31.3.2006.(x) Restrain the respondents, their servants, agents etc. from transferring etc., alienating any land or interest in land owned by the Company and/or contracted to be purchased by the company.(xi) Restrain the respondents, their servants, agents etc. from transferring alienating or parting with any asset of the respondent company.(xii) restrain the respondent, especially respondent no. 5 from carrying out any development, construction or other activity on land admeasuring 21 bighas 10 biswas in village Mashobra contracted to be purchased


by it on 12.1.2006 from Sh. Prem Singh and his wife Smt. Kaushalya Devi, respondent nos. 12 and 13.(xiii) Direct respondent nos. 5 to transer all the rights to the land admeasuring 21 bighas and 10 biswas belonging to Sh. Prem Singh and his wife Smt. Kaushalya Devi, respondent no. 12 and 13, to the respondent company.(xiv) Direct respondent nos. 1 to 5 to take all steps necessary to ensure that the lands contracted to be acquired by the company in village Mashobra, Chattiyan and Audda, Tehsil Kasauli, Dist. Solan (H.P.) are not allowed to be registered or sold, or contracted to be sold, or mortgaged, or alienated in any way of form by the owners of the lands and/or their heirs/successors/nominees/agents/assigns/attorney-holders to any other party other than the respondent company, and through any means, whether by general powers of attorney or otherwise.(xv) Direct the respondent company and respondent nos. 1, 2, 3 and 4 to take all steps necessary to ensure the expeditious execution and registration of all sale deeds in favour of the respondent company only in respect of all the lands agreed to be purchased by the respondent company in Village Mashobra and Village Chattiyan and identified to be purchased in Village Audda;(xvi) Restrain respondent nos. 12 and 13 from dealing with and/or alienating their land of 21 bighas and 10 biswas at village Mashobra in any manner whatsoever to any party other than the respondent company only.(xvii) Direct respondent nos. 1, 2, 3 and 4 and 5 to disclose the details and extent of interests created and/or acquired by them, whether acting directly and/or through their family members and/or through persons and/or entities owned and/or controlled by them, in all lands that fall within Tehsils Kasuali, Jangeshu and Parwanoo in Distt. Solan, H.P. To ascertain whether these lands


fall within the limit of 500 mtrs. Stipulated in the agreement.(xviii) Restrain respondent nos. 2 to 9 their servants, agents, assigns, employees etc. from purchasing any lands in violation of the obligations imposed upon respondent no. 2 under the agreement dated 31.3.2006.(xix) Direct respondent no. 2 to account for the 5 blank letterheads signed by the petitioner and handed over to respondent no. 2 in trust, by providing photocopies of those letterheads as used by him/or his nominees to ascertain their contents, and to return the balance blank letterheads that remain in his care and/or in the care of his nominees.(xx) Restrain the respondents from holding any Board Meeting without giving a 7-day notice by registered post to the petitioner accompanied with all the agenda papers.(xxi) Direct that no resolution be passed without the affirmative vote of the petitioner.(xxii) Direct that quorum for no board meeting be considered complete in the absence of the petitioner, unless she gives a written waiver of attendance of the meeting.(xxiii) Remove respondent nos., 3 and 4 from the Board of directors of the respondent company;(xxiv) Remove respondent no. 2 from the Board of Directors of the respondent company, in case he has assumed the position of a director of the company.(xxv) Direct the respondent company and respondent nos. 2 - 4 that from here onwards, all correspondence and written communication of any kind, whether by letter, email, facsimile, etc. between the respondent company with government department and/or offices shall also bear the signatures of the petitioner or that of her nominee (or in the case of email, her prior concurrence with its contents).(xxvi) Direct that no development plans of the respondent company for the lands at mashobra/Chhatiyan/Audda be frozen without the concurrence of the petitioner also, be they project layouts, architectural layouts,


building layouts, or plans of any nature pertaining to the respondent company's project.(xxvii) Direct that hereafter no meeting with consultants involved in the project be conducted without inviting the petitioner also by an invitation by email/fax at least 8 hours prior to such meeting.(xxviii) Direct that the respondents divulge all details of any discussions held with, and/or proposals made to, financial lenders and/or investors in the company and/or its project in the Kasauli Area, whether the participation of these persons/entities take the form of investment in the Company's equity capital and/or external commercial borrowings (ECBs) and/or Foreign Direct Investment (FDI) and/or loans, etc.(xxix) Direct that hereafter no meeting with financial lenders and/or investors in the Company and/or its project in the Kasauli area be conducted without inviting the petitioner also by an invitation by email/fax at least 8 hours prior to such meeting.(xxx) Direct the respondent company and respondent nos. 2-4 that from here onwards, all correspondence and written communication of any kind, whether by letter, email, facsimile, etc. between the respondent company with financial lenders and/or investors in the company and/or its project in the Kasauli shall also bear the signatures of the petitioner or that of her nominee (or, in the case of email her prior concurrence with its contents).(xxxi) Direct that the petitioner and/or her nominee, alongwith one assistant, be granted free access during working hours to the officer(s) of the company, and free and unrestricted and/or unhindered access to all records and files, including but not limited to statutory records such as Minute Books and share records, account books, account vouchers, bills, receipts, bank statements, correspondence files, cheque books, correspondence files with any and all


persons/companies/Government offices and/or Department and/or bodies, etc.(xxxii) Direct that the petitioner and/or her nominee be granted the right to take photocopies of all such relevant records for her perusal and parallel records at her cost.(xxxiii) Direct that the company provide a suitable room/cabin of a location and size befitting the status of the Directors of the company, and furnished accordingly with all suitable amenities, at its main office called by whatsoever name, whether Registered Office and/or Head office and/or Main Administrative office, for use by any Director and/or his/her assistant, in which room a separate leakable table and suitable number of chairs be provided for every director and/or his/her assistant(s), and that every director be provided and/or allowed to install such office equipments as may be considered necessary by that Director for his/her use and/or the use of his/her assistant(s), such as but not limited to computers, printers, scanners, facsimile, machines, photocopy machines, phone line(s), inter net connection, etc.(xxxiv) Direct the respondent company to make suitable working and seating arrangements for the visits of the assignment(s) and/or advisor(s) of the petitioner to the respondent company's office(s) who may be required to precede the visit of the petitioner to prepare and/or study the information required by the petitioner during her prospective visit to the office(s) of the respondent company.(xxxvi) The costs of the petition may be awarded to the petitioner.”

9. On 30th January, 2008 Smt. Sonia Khosla filed an affidavit placed at page 355 of Co.A.(SB) No. 6/2008. No order of the permission of the Company Law Board with regard to filing of this affidavit has been placed before this court.10. So far as the explanation for filing the affidavit is concerned, at page 358 of Co.A.(SB) No. 6/2008 in para 11 of the affidavit, Smt. Sonia Khosla has deposed as follows :-


“11. That when the main petition had been prepared in July/August 2007, as per legal advise received at that time, neither the petitioner nor her counsel had any way of knowing whether some of the averments proposed by her counsel to be made in the petition were actually true or not without access to the records of the Company. This is especially true in the matter relating to (alleged) transfer of shares, since respondent no. 10 had been provided with blank share transfer deeds signed by the petitioner, and who had forwarded them in trust to respondent no. 2 in the same blank condition, and the petitioner could not be explained by respondent no. 10 the manner in which respondent no. 2 had utilised the blank share transfer deeds provided to him in trust and good faith by respondent no. 10. The petitioner had informed her counsel that all she know was that respondent no. 10 had obtained her signatures on 3 blank share transfer deeds in March 2006 or therabouts, intending for them to be lodged by him with respondent no. 2 in due course in stages as follows, and which were to be kept by respondent no. 2 in the nature of a “security” without actually effecting the transfer of the shares until the entire transaction was completely consummated :

No. of sharesfor which the blank

share transfer deeds were to be used.* On payment of Rs.0.10 crores : 5,100 shares*.On payment of Rs.2.84

crores by 31.3.2006 : 2,500 shares*. On payment of Rs.3.50

crores by 30.6.2006 : 2,400 sharesRs.6.44 crores by 30.6.2006 :10,000 shares

11. Sh. R.P. Khosla as respondent no. 10 before the

Company Law Board separately filed his pleadings.

12. So far as the record is concerned, a caveat was filed by Sh. Vikas Kakkar, Advocate on behalf of the company,


Vikram Bakshi, Wadia Prakash and Vinod Sura before the Company Law Board and entered appearance in the proceedings before the Company Law Board. The presence is so noted in the orders filed before this court (page 275 in Co.A.(SB) No. 6/2008)13. In the meantime, an application was filed on behalf of the respondent no. 1 (before the Company Law Board registered as CA No. 572/2007 at page 604 of Co.A.(SB) No. 6/2008) with an affidavit sworn by Sonia Khosla through another set of advocates resulting in an interim order dated 24th December, 2007 (page 215 or 60 of Co.A.(SB) No. 6/2008). This application was contested by the respondents. An application was also filed by them. These applications and counter applications finally resulted in an order dated 31 st January, 2008 which reads thus :-

“ ORDER(Date of final hearing : 31.1.2008)

1. It is unfortunate that the petitioner who has come before this Board seeking for equitable remedies should have acted in a manner over reaching this Board during the pendency of the petition filed by her under Sections 397/398 of the Act.

2. The facts of the case are that the petitioner claiming/entitled to hold 35.5%/49% shares in the company filed this petition alleging that by further issue of shares, the respondents have reduced her shareholding to 18.25%/24.5% and that the respondents are guilty of mismanaging the affairs of the company. Various interim orders were passed inter alia directing the Bench Officer to authenticate the statutory records of the company and also providing opportunity to the petitioner to inspect the said records. The respondents filed an application under Section 8 of the Arbitration & Conciliation Act seeking for referring the parties to arbitration on the ground that the entire dispute has arisen out of an agreement between the parties. Arguments on this application were concluded on 26.10.2007 and the order was reserved. Thereafter, with a view to resolve the disputes amicably, I held discussion with the advocates for the parties on 26.11.2007


but the efforts failed. On that day, the 11 th

respondent, who is incidentally neither a shareholder or a director, but the husband of the petitioner, desired that the arbitration application should be re-heard since he did not have the opportunity of presenting his case on 26.10.2007 when the arguments on the application were concluded. Accordingly, I decided to hear the arbitration application again on 17.1.2008 and accordingly, a notice of hearing was issued on 29.11.2007.3. On 24.12.2007, the company filed an application CA 572/2007 and mentioned the same exparte. Shri Chaudhary appearing for the applicant submitted that the inspection carried out by the petitioner in pursuant to the order of this Board revealed that respondent 3 and 4 who were appointed as additional directors had ceased to be directors effective from 30.9.2006 as they were not confirmed in the AGM on that day and the 2nd

respondent who was appointed as additional director on 19.3.2007 can also not hold office as he had been appointed by the board consisting of 3rd and 4th

respondents who had continued to be the directors of the company, these respondents had convened a Board meeting on 28.12.2006 and therefore they should be restrained to hold the said meeting. On hearing the learned counsel, I passed the following order ex-parte : “Application mentioned and it is prayed that the board meeting convened on 26.12.2007 be directed to be deferred for the reasons stated in the petition. Since I find that no substantive business has been proposed to be transacted in that meeting. I direct the company/respondents to defer the meting till the application is disposed of........... Liberty to apply for modification of this order with three days notice to the petitioner”. On 3.1.2008, the respondents filed an application CA 1/2008 seeking for modification of the order on the ground


that respondent no. 3 and 4 had been confirmed on the AGM held on 30.9.2006 and the same has been concluded in the agenda for the AGM also but the fact of confirmation was inadvertently not recorded in the minutes and that these respondents have been acting as directors all along and they had validly appointed the 2nd respondent as an additional director. It was further stated in the application that the petitioner had co-opted another director on 11.12.2007 and had also filed Form No. 32 with the ROC 8.12.2007 indicating the cessation of office of the 2nd, 3rd and 4th respondents and had also passed a resolution to shift the registered office of the company. When these facts were brought to my notice on 3.1.2008, I passed the following order : “Application mentioned. No Board meeting by either side is to be held. The application will be heard on 8.1.2008 at 1.00 P.M.”. When the matter was heard on this day, it transpired that not only the petitioner had co-opted a director on 11.12.2007, two more additional directors had been appointed on 18.12.2007 and the board thus constituted had also issued 6.58 lakh shares at Rs.100/- per share. In the application filed on 24.12.2008, these facts had been suppressed. 4. When these facts were brought to my notice, I informed the counsel for the petitioner that when the matter is pending before this Board, any information/particulars collected during inspection ordered to be given by this Board, should have been used only in the aid of these proceedings and should not have been used for taking unilateral action by the petitioner herself. I also informed the learned counsel that since the order dated 24.12.2007 was obtained by suppressing material facts and the unilateral actions of the petitioner amounted to overreaching this Board, I had no option but to dismiss the petition.


The learned counsel for the petitioner submitted that instead of dismissing the petition leave be granted to him to withdraw the petition. I declined to his request for withdrawal stating that the petitioner cannot withdraw the petition after having taken unilateral advantage of taking over the control of the company during the proceeding and if at all the petitioner desired that the petition should not be dismissed, she must be prepared to restore status quo ante with regard to the Board and the shareholdings. Shri Chaddha advocate for the petitioner requested that instead of dismissing the petitioner he be given two days time to convince his client to restore the status quo ante and would file an affidavit to that effect. In view of this submission, not withstanding the fact that I had indicated that I would dismiss the petition, I reserved the order and I gave him liberty to apply. No affidavit was filed thereafter. Instead, by a letter dated 15.1.2008, one shri Vineet Khosla who was appointed as an additional director on 11.12.2007, sent a letter to this Board stating that they were willing to restore status quo ante but could not file an application which was ready, in view of the non availability of the counsel and hospitalisation of the petitioner and that the said application would be filed within the next two days i.e. not later than 17.1.2008. However, no affidavit/application was filed even thereafter. CA 70 of 2008 dated 15th

January, 2008 was filed on 30.1.2008 by the company affirmed by the same Shri Vineet Khosla and was mentioned on 31.1.2008.5. It is to be noted that it was the learned counsel for the petitioner who requested this Board not to dismiss the petition but to give him some time to convince his client to restore status quo ante and accordingly I reserved the order and granted liberty. However, it is Shri


Vineet Khosla who was appointed as an additional director on 11.12.2007 who has filed this application stating “Irrespective of the fact that the actions that have been taken by the applicant company from 11.12.2007 are lawful as well as in the bonafide interest of the company, it shall undo all the steps taken on the count of prejudice claimed by the respondents (namely, composition of the board of directors and the share capital) so as to revert to the situation to status quo ante as of 11.12.2007 and then proceed as per the wishes and guidance and directions of this Hon'ble Board”. In the prayers to the application, the applicant has sought for upholding that the respondent 2, 3 and 4 are no longer additional directors; for accepting the resignation of the additional directors appointed on 11.12.2007 and 18.12.2007; for authorising the petitioner to appoint additional directors; to maintain the percentage shareholding by offering shares to the 2nd respondent and his group in the same manner as was done on 18.12.2007; till then for freezing the voting rights on the shares issued on 18.12.2007 and to authorise the board constituted by the petitioner to decide on the location of the registered office. There is no mention about Form No. 32 filed by the company on 8.12.2007 regarding cessation of office by the 2nd, 3rd and 4th respondents which fact the petitioner came to know through inspection granted by this Board. The prayers made in the application would indicate what the applicant seeks is for more or less regularising the further issue of shares as well as to recognize the cessation of office by the respondents 2 to 4. Thus it is evident from the application that while in the first paragraph having agreed to undo all steps taken, in the prayer, the applicant has sought for more or less regularising the acts done.6. The contents of the application would indicate that the applicant has not


understood the grounds on which I had indicated on 8.1.2008 that the petition was deserved to be dismissed. In has not dealt with the suppression of the material facts in the application dated 24.12.2007 regarding appointment of additional directors and further issue of shares for taking unilateral action on discovery of material/information during the inspection ordered by this Board which are to be used only in the aid of the proceedings etc., It has only elaborated that everything was done in the interest of the company.7. I heard on the application. Without mentioning anything about restoration of the status quo ante in regard to the shareholding and directorship, Shri Chaudhary, Senior counsel for the applicant only desired that the petitioner, being the only and single validly appointed director be permitted to appoint additional directors to carry on the affairs of the company. When I asked him as to why in the application dated 24.12.2007 on which exparte order was obtained, the fact of appointment of two additional directors and issue of further shares on 18.12.2007 had not been disclosed, he contended that it was not necessary to disclose the same as no relief was claimed on that basis in that application. This contention has to be straight away rejected as, if the same had been disclosed, either the order, being exparte, would have been different or I would have declined to pass any exparte order. Shri Vibhu Bakru, counsel for the respondents brought to my notice that having undertaken before this Board on 8.1.2008 that an affidavit affirming the restoration of the status quo ante would be filed within 2 days, the petitioner had caused a suit filed in Delhi High Court by an erstwhile shareholder and obtained a status quo order as on 11.1.2008 and thereafter, at the instance of the respondents, the said shareholder withdrew the suit. Only after the suit was


withdrawn at the instance of the respondents, this application has been filed by the petitioner. The counsel for the petitioner submitted that the petitioner had not caused the suit being filed by the said shareholder and since according to the respondent that the suit was withdrawn at their instance, even the suit should have been filed at their instance only with the view to prejudice the mind of this Board that the petitioner had filed the said suit. I do not propose to take cognizance of the said suit except to note that in that suit, the status quo order as on 11.1.2008 no longer survives in view the suit having been withdrawn.8. In a proceeding under Sections 397/398, the Board exercises equitable jurisdiction. Therefore a person who approaches this Board should not only come with clean hands, he should maintain the same during the proceeding. His conduct is also an important factor in the proceeding. Unfortunately, in the present case both CA 572/2007 and 70/2008 have been filed in the name of the company. How and under what authority the same have been filed is not disclosed. In other words strange things are happening in this case. Whether the petitioner is at all involved in these applications is not clear . However, granting an exparte order by suppression of material facts, changing the composition of the Board and increasing the share capital during pendency of the proceeding etc would definitely indicate that the petitioner/applicant have tried to over reach this Board and as I had indicated during the hearing, on these grounds alone the petition could be dismissed. However having reconsidered the matter, I have decided not to dismiss the petition except undoing what has been done.9. Accordingly, I restore the status quo with regard to the composition of the


Board and the shareholding as existed on the day of filing of the petition and direct the ROC not to take on record any document filed by the company on or after 1.12.2007. The shares issued on 18.12.2007 stand cancelled and the additional directors appointed on 11.12.2007 and 18.12.2007 will cease to be additional directors with immediate effect. The company/board of directors/respondents shall maintain status quo with regard to shareholding and fixed assets of the company as it stood at the time of filing of the petition and the board shall not take any substantive decision on the finances of the company.10. Replies to all the pending applications are to be filed by 28.2.2008 and rejoinders to be filed by 20.3.2008. All these applications together with the application under section 8 of the Arbitration Act will be heard on 25.3.2008 at 10.30 AM.

Sd/-(S. Balasubramanian)”(Underlined by me)

14. Two appeals were filed assailing the order dated 31st

January, 2008, one being Co.A.(SB) No. 6/2008 by Sonia Khosla and the other being Co.A.(SB) No. 7/2008 by Sh. R.P. Khosla. 15. In view of the submissions before me, it becomes necessary to notice the memo of parties in both these appeals which reads thus:-

Memo of parties in Memo of parties in Co.A.(SB) No. 6/2008 Co.A.(SB) No. 7/2008

1. Mrs. Sonia Khosla Mr. R.P. KhoslaW/o of Mr. Deepak Khosla s/o Late Mr. R.R.M. KhoslaNOIDA 201 301 House No. 5, Sector XV-A,

NOLIDA 2013012. Montreaux Resorts (P) Ltd.

102, Maharani Plaza VersusAshram Chowk


New Delhi-110024 1. Montreaux Resorts (P) Ltd.

102, Maharani Plaza Ashram Chowk

New Delhi-110024Versus

1. Mr. Vikram Bakshi 2. Mr. Vikram Bakshi157, Golf Links 157, Golf LinksNew Delhi-110003. New Delhi-110003.

2. Mr. Wadia Parkash 3. Mrs. Sonia KhoslaC-220 Defence Colony w/o of Mr. Deepak Khosla New Delhi. 218, Sector XV-A

NOIDA-2013013. Mr. Vinod Surha

B-43, Raju Park 4. Mr. Wadia ParkashNear Sainik Farms C-220, Defence Colony New Delhi New Delhi.

4. M/s Ascot Hotels & Resorts Ltd. 5. Mr. Vinod Sura15th Floor, Mohan Dev Building B-43, Raju Park13, Tolstoy Marg, Near Sainik FarmNew Delhi-110001. New Delhi.

5. Mrs. Madhurima Bakshi 6. M/s Ascot Hotels & ResortsW/o Mr. Vikram Bakshi Ltd.157, Golf Links 15th Floor, Mohan DevNew Delhi-110003. Building

13, Tolstoy Marg,6. Ms. Devika Bakshi New Delhi-110001.

d/o Mr. Vikram Bakshi157, Golf Links 7. Mrs. Madhurima BakshiNew Delhi-110003. w/o Mr. Vikram Bakshi

157, Golf Links7. Ms. Kanika Bakshi New Delhi-110003

d/o Mr. Vikram Bakshi157, Golf Links 8. Ms. Devika BakshiNew Delhi-110003. d/o Mr. Vikram Bakshi

157 Golf Links8. Mr. Rajeev Puri New Delhi-110003.

c/o Mr. Vikram Bakshi157, Golf Links 9. Ms. Kanika BakshiNew Delhi-110003. d/o Mr. Vikram Bakshi

157, Golf Links9. Mr. R.P. Khosla New Delhi-110003.

s/o late Mr. R.R.M. Khosla


218, Sector XV-A 10. Mr. Rajeev PuriNOIDA 201 301 c/o Mr. R.P. Khosla

218, Sector XV-A10. Mr. Deepak Khosla NOIDA-201301

s/o Mr. R.P. Khosla218, Sector XV-A, 11. Mr. Deepak KhoslaNOIDA 201 301. s/o Mr. R.P. Khosla

218 Sector XV-A11. Mr. Prem Singh NOIDA-201301

r/o Vill. ChattiyanTehsil Kasauli 12. Mr. Prem SinghDistrict Solan (H.P.) r/o Vill. Chattiyan

Tehsil Kasauli12. Mrs. Kaushalya Devi District Solan (H.P.)

w/o Mr. Prem Singhr/o Vill. Chattiyan 13. Mrs. Kaushalya DeviTehsil Kasauli w/o Mr. Prem SinghDistrict Solan (H.P.) r/o Vill. Chattiyan

Tehsil KasauliDistrict Solan (H.P.)

16. The Montreaux Resorts Pvt. Ltd. was arrayed as a respondent by Smt. Sonia Khosla in the proceedings filed by her before the Company Law Board and represented by different counsels. No steps have been placed before this court to show and change in this position.17. The Company Law Board has noted at length suppression of facts in the applications filed on behalf of the Company. Most material are the observations of the Company Law Board on the manner in which CA Nos. 572/2007 & 70/2008 were filed. The Board has observed that even the authority under which the applications were filed was not disclosed and whether the “petitioner is at all involved in these applications” is not clear.18. In the light of the array of parties before the Company Law Board and the stand of the petitioner therein, the permissibility and propriety of a petitioner joining a respondent as a co-appellant itself raises several questions which are yet to be addressed.19. It is trite that a party is bound by the pleadings filed by her and cannot change the same by affidavit(s) or oral submissions or by way of a review application(s) or applications filed therein.


20. There is no dispute before this court that an application under Section 8 of the Arbitration & Conciliation Act was filed by some of the respondents before the Company Law Board. A petition under section 11 of the Arbitration & Conciliation Act, 1996 was filed in this court as well. This order has been placed before this court (at page 694 of Co.A.(SB) No. 6/2008). The following order was recorded by this court :-

“29.02.2008Present : Mr. Rajiv Shakhdhar, Sr. Advocate with

Mr. Vikas Kapur and Mr. Vibhu Bhakru for the petitionerMr. Amit S. Chadha, SR. Adv. with Mr. Kunal Sinha for the respondent no. 1Mr. Chetan Sharma, Sr. Advocate with Mr. Sanjiv K. Tiwari for respondent no. 2

Arb.Pet.No. 93 of 2008This is a petition under Section 11 of the

Arbitration and Conciliation Act, 1996 for the appointment of an arbitral tribunal. The arbitration clause is contained in an agreement which has been entered into between the petitions and the respondents. The agreement is dated 31.03.2007 and it contains the following clause which deals with arbitration.

“29. ARBITRATTION

a) All disputes or differences which shall at any time arise between the parties whether during the term or afterwards, touching or concerning this Agreement or its construction or effect or the rights duties or liabilities of the parties under, or by virtue of it, or otherwise, or any other matter in any way connected with or arising out of the subject matter of this Agreement, the parties shall in the first instance try and amicably resolve them by mutual negotiations. In the event such disputes or differences are not resolved amicably, they shall be referred to a single arbitrator to be agreed upon by the parties or in default of such agreement, by three arbitrators, one to be nominated by each party and the third (acting as President of the Tribunal) to be nominated by the two parties nominated as arbitrators. The arbitration shall be governed by


the Arbitration & Conciliation Act, 1996 or any statutory modification or re-enactment of it for the time being in force.

b) where the dispute involves multiple parties, whether as claimed or as respondent, the multiple claimants, jointly and the multiple respondents, jointly, shall nominate an arbitrator each. In this agreement, Khosla family are one party, VB and the company are the other party.

c) In the absence of such a joint nomination and were all parties are unable to agree to a method for the construction of the Arbitral Tribunal, any party may approach the Delhi High Court for the Arbitration and Conciliation Act, 1996.

On 30.8.2007 a letter/notice had been sent on behalf of the petitioners to the respondents as well as Mr. Deepak Khosla for the purposes of invoking the arbitration clause and agreeing upon the name of the sold arbitrator proposed by the petitioners. No response to the said letter/notice was received from the respondents and that is the reason why the present petition had been filed.

The respondents are all represented through their counsel and they state that they have no objection to the entire dispute between the parties being referered to arbitration. However, they would prefer that the arbitration is not done by a sole arbitrator but an arbitral tribunal within the terms of the clause itself. Consequently, they suggest the name of Hon'ble Ms. Justice Usha Mehra, a former Judge of this court as their nominee. Neither party has objection to the nominee of the other party. As per the arbitration clause itself, the said two arbitrators are required to appoint the third arbitrator, who shall act as the President of the arbitral tribunal.

In these circumstances, it is directed that Justice R.C. Chopra and Justice Usha Mehra shall be the two arbitrators nominated by each of the parties. The said arbitrators shall nominate the third arbitrator who shall act as the President of the Tribunal.

One aspect of the matter needs clarification and that is with regard to who represents the petitioner no. 2. According to the petitioner no. 1 they are in control of the


petitioner no. 2. On the other hand, according to the respondents they are in control of the petitioner no. 2. It is an admitted position that the petitioner no. 1 as well as the respondent no. 1 are the shareholders in the petitioner no. 2 . It is also an admitted position that the entire dispute is essentially between the Bakshi family of which the petitioner no. 1 is a part and the Khosla family, which includes the respondent no. 1 and 2 is a part alongwith Mr. Deepak Khosla.

As indicated in clause 29(b) of the agreement between the parties, where the dispute involves multiple parties, whether as claimants or as respondents, the multiple claimants and the multiple respondents are jointly required to nominate an arbitrator each. That has been done. It is also stated in clause 29(b) of the said agreement that the Khosla family are one party and Mr. Vikram Bakshi and company are the other party. At this stage, there is a dispute as to whether Vikram Bakshi controls the company along with his group or the respondents with their group control the said company. These are issues which are left open for the arbitrators to decide in terms of the agreement between the parties and on the basis of the factual position that would be placed before them.

With these directions, this petition stands disposed of.”

(Emphasis supplied)

21. Ms. Sonia Khosla sought a review of the order dated 29th February, 2008 assailing that she had not given her consent as recorded therein. On 14th November, 2008, senior counsels also who appeared on her behalf were directed to appear before the court. The review petition was dismissed on 21st November, 2008.22. On 20th March, 2009, the arbitral tribunal consisting of a retired Judge of the Supreme Court and two retired Judges of this court resigned expressing anguish at the conduct of Mr. Deepak Khosla who was representing Ms. Sonia Khosla before them.


23. In view of the above, the issue as to who controls the company has been left open and is yet to be finally adjudicated.”

11. The main dispute between Ms. Sonia Khosla and Mr. R.P.

Khosla relates to the constitution of a valid board of directors of

the Montreaux Resort Private Limited. This issue was raised in

the arbitration proceedings and is subject matter of reference

order dated 29th February, 2008 which has been noticed

hereinabove.

12. The respective rights, contentions and claims when made

are required to be adjudicated in accordance with law and would

bind subsequent adjudication only thereupon. Merely because a

party raises a claim which is not acceptable to the other side,

would not by itself lay the other party open to criminal

proceedings as is being urged in the instant case. The same

would amount to a presumptuous dismissal of any case which the

other side may have or may raise before the appropriate forum.

13. M/s Montreaux Resort Private Limited was arrayed as party

respondent before the Company Law Board. A caveat dated 2nd

February, 2008 (Page 190) was filed by Mr. Vikas Kakkar,

Advocate, Mr. Vibhu Bakhru, Advocate Mr. Wadia Parkash & Mr.

Vinod Surha in this court which was registered as Caveat

No.47/2008. No order against such representation appears to

have been passed by the Company Law Board.


14. The order dated 31st January, 2008 of the Company Law

Board has noted the conduct of Ms. Sonia Khosla and her group in

detail and has commented adversely upon the attempt to change

the constitution of the board of directors as on the date of filing

of the petition. The above shows that by its order dated 31st

January, 2008, the Company Law Board restored the status quo

with regard to the composition of the board and the

shareholdings as existed on the date of filing of the petition and

directed the Registrar of Companies not to take on record any

document filed by the company on or after 1st December, 2007.

It was further directed that the shares issued on 18th December,

2007 stand cancelled and the additional directors appointed on

11th December, 2007 and 18th December, 2007 would cease to be

additional directors with immediate effect. The company/board

of directors/respondents in the petition were also directed to

maintain status quo with regard to the (already these above)

fixed assets of the company as they stood at the time of filing of

the petition and the board of directors was prohibited from taking

substantive decision on the finances of the company.

15. It is noteworthy that CA No.85/2009 was filed in Co.Appeal

(SB) No.7/2008 titled R.P. Khosla Vs. Montreaux Resort Private

Limited & Ors. by Mr. Deepak Khosla which was decided by an

order passed on 14th May, 2009. In this application, amongst

other prayers, the applicant sought leave to cross-examine the


respondent nos.2, 4, 5, 6, 7, 8 & 9 and also to cross examine six

advocates who have appeared in the matter inter alia on the

ground that the other side had not filed affidavit(s).

16. Another application being CA No.1311/2008 was filed in

Company Appeal (SB) No.6/2008 entitled Sonia Khosla & Anr. Vs.

Vikram Bakshi & Ors. which was decided by an order passed on

29th May, 2009. This application was filed by Mr. Deepak Khosla

on behalf of his wife Sonia Khosla. Certain observations in the

decision dated 29th May, 2009 deserve to be considered. It may

be noted that the other respondents were represented by the

same counsel against whom another application has been

directed. In this regard, the observations made in paras 10 to 16

of the decision dated 29th of May, 2009 may be considered in

extenso and read as follows:-

“10. The matter is at the stage of consideration of the issuance of notice on the review application. The hearing has been unreasonably protracted on behalf of the applicant no. 1 by her husband. It is noteworthy that he was arrayed as a respondent in the applicant's petition before the Company Law Board. He remains a respondent here also. Mr. Deepak Khosla is yet to complete his submissions on his right to argue the case on behalf of the applicants.11. It became necessary to call upon the respondent's counsel to assist the court in view of proclivity of the arguments of Mr. Deepak Khosla, the nature of the submissions being made on behalf of the applicants and his refusal to set out the case in the petition filed before the


Company Law Board. Counsel appearing for some of the respondents have been permitted only to point out from the record as to what was the case of the applicants before the Company Law Board. Bare reading before this Court of the pleadings filed by her before the Company Law Board, documents on record and orders passed in the proceedings between the parties has resulted in a spate of applications filed against them. 12. Having regard to the fact that the matter was listed on short dates and on account of latitude and allowances for a private party, such conduct and utterances of Mr. Deepak Khosla during the course of hearing was not noted. However, the unfortunate manner in which the matter is being proceeded with and applications pressed by and on behalf of the applicants, makes it necessary for me to undertake a painful exercise of noticing the same herein.

On being asked by the court to clear a doubt, the belligerent stand taken by Mr. Khosla is “am I on trial or they”. The answer to the query never comes. Every other sentence in the submission by Mr. Khosla is punctuated with the comment that counsel on the other side are “lying through their learned teeth”. So much so that even the court is not spared. Any question addressed to the respondent brings forth a comment that the court is “siding with the other side”. Midway through his submissions, Mr. Khosla insists that the court “must declare your position” and that he shall proceed only thereafter. 13. Having regard to the nature of disputes, when asked if the appellants would consider dispute resolution by mediation, Mr. Deepak Khosla's response was an emphatic and categorical `no' followed by a comment that he was in no hurry and has all the time in the world and he would exhaust the other side.


Subsequently he has attempted to water down this absolute position and stated that he would have no objection to this Court intervening in the matter.14. In a blatant attempt to prevent reading of the case of the applicant before the Company Law Board by counsel for the respondent, every tactic possible has been resorted to so as to thwart discharge of professional duty by the counsel on the other side. 15. Unfortunately, this party is unable to appreciate court procedure which requires the court to hear all submissions and pass a considered order. It is neither possible nor permissible to adjudicate in a case submission by submission. Such continuous belligerence in open court is obstructive and has wasted precious time in every hearing. The tenor, manner & stance are aggressive and the utterances are made, all under the shield of “I am not a lawyer”.

Mr. Deepak Khosla also refuses to understand the fine distinction between the question by a court so as to clarify doubt and a decision or a view having been taken by the court in the matter. Despite the extreme provocation, I have attempted to give a patient hearing to Mr. Khosla in these proceedings, resulting in the matters remaining pending on first questions. 16. On one occasion when Mr. Khosla made it impossible to proceed, the court was constrained to refer the matter to the division bench for appropriate proceedings under the Contempt of Court Act.”

17. In the judgment dated 29th May, 2009, it was also noted that

the entire basis of the submissions of Mr. Khosla in CA

No.1311/2008 was premised on what the applicant perceived as

submissions of the other side. It has already been held that such


perception is unfounded and it has been observed that there was

no judicial pronouncement holding that the position and

contention of the other side stand rejected by any court or forum

which could justify the filing of the application.

18. It is to be noted that the application after application has

been filed targetting counsels. The applicant has repeatedly

urged that counsels have been changed by Smt. Sonia Khosla on

the ground that they are guilty of “transgression of authority”.

The record which was available during the hearing of the present

application showed that in this regard, CA No.512/2009 dated 16th

April, 2009 was filed in Co.A. (SB) No.7/2008 for summoning Mr.

Sanjeev Tiwari, Mr. Chetan Sharma, Senior Advocate and Mr.

Saurabh Kalia who have appeared for Smt. Sonia Khosla as well

as Mr. Vibhu Bakhru and Mr. P. Nagesh, counsels for the

respondent no.1 for deposition and/or cross examination by the

appellant.

19. Similarly, CA No.514/2009 was filed by Sonia Khosla as a

respondent in her father-in-law Mr. R.P. Khosla's appeal in Co.A.

(SB) No.7/2008 praying for inter alia leave to cross-examine Mr.

Saurabh Kalia; summoning persons named in an application

dated 19th December, 2008 filed in CCP No.15/2008 for deposition

and summoning the call by call detail of the cell phone service

provider of Saurabh Kalia, Vibhu Bakhru and P. Nagesh.


20. The entire premise of the present application is as if all

contentions made by Ms. Sonia Khosla or Mr. R.P.Khosla have

been accepted and that there is a favourable adjudication of the

issues raised by them in the matters. The applicant presumes

that the claims and stand of the other side in the main matter

stand rejected and, therefore, the other side has no right to

represent the company.

21. During the course of his submissions, Mr. Deepak Khosla

sought to refer to a letter dated 30th September, 2008 on behalf

of M/s Montreaux Resort Private Limited which is stated to have

been sent by Ms. Sonia Khosla purportedly on behalf of the

company. No authority of the board of directors of the company

authorising Mrs. Khosla to represent the company or to send this

letter, has been placed before me by Mr. Khosla. To support her

authority to send the letter dated 30th September, 2008, it has

been contended by Mr. Deepak Khosla that she has written the

letter as a director of the company and any director is duty bound

to take steps in the interest of the company.

22. In the light of this submission of the applicant-Mr. Khosla, it

is questionable as to how similar actions of persons who may be

perceiving themselves as directors, or claim to be director can be

objected to at this stage especially when the entire matter is in

dispute between his wife on the one side and the private

respondents on the other. Of course, the correctness or not,


legality or not of any such claim and action, would require to be

tested only after adjudication of the rival contentions on the basic

and main issues and rival claims.

23. Submissions have been made with regard to alleged

suppression of facts by counsels who appeared on the 28th of

January, 2009.

24. Mr. Khosla has submitted that Mr. Vikas Kakkar, Advocate

has appeared for M/s Montreaux Resort Private Limited on 22nd

August, 2007 and had filed a vakalatnama signed by the private

respondents in the petition before the Company Law Board. He

has submitted that Mr. Vibhu Bhakru, Advocate was appearing for

other respondents. A vakalatnama for respondent no.5 before

the Company Law Board was filed which was signed by Ms. Pooja

Saigal and Mr. Rahul Sharma, Advocates.

25. It has been urged that from the vakalatnama, it is not

possible to make out as to what was the date of acceptance and

who has signed on behalf of the company. This is an aspect

which has to be agitated before the forum where the

vakalatnama was filed and appropriate orders have to be passed

in those proceedings. It cannot be adjudicated in this application

under Section 340 of Cr.P.C.

26. So far as the validity, legality or bindingness of the

resolution dated 27th August, 2007 is concerned, the same is also

yet to be adjudicated upon in the proceedings between the wife


of the applicant on the one side and the private respondents on

the other. Certainly, the present proceedings making allegations

by way of the present application by Mr. Deepak Khosla or

making them as a basis thereof is wholly misconceived.

27. Mr. Deepak Khosla has painstakingly sought to point out

that the letter dated 30th September, 2008 filed before the

Company Law Board was suppressed and other pleadings of Ms.

Sonia Khosla also not brought to the court's notice. These were

proceedings at the instance of Smt. Sonia Khosla, wife of the

present applicant. As noted above, the company was the

respondent and obviously could not have been represented by

the petitioner therein.

An objection may be taken in a pleading, however, the

same may not be pressed in the submissions. Oral arguments

have been permitted by the Company Law Board but no such

objection on behalf of Ms. Sonia Khosla appears to have been

mentioned in the order. No such contention as having been

noticed in the order passed by the Company Law Board has been

brought to my attention by the applicant. Therefore, the

contention that any counsel who appeared on 28th January, 2009

has suppressed any fact or misled this court, is misconceived.

Mr. Khosla has been unable to point out any order of the

Company Law Board wherein such an objection has been noted

or decided. Furthermore, the caveat filed by the other side on


behalf of M/s Montreaux Resort Private Limited has been placed

on record by the applicant himself along with the present

proceedings.

As and when adjudication on the question of representation

of the company is decided, consequential orders would follow.

28. It may be noted that this application has been filed only on

17th April, 2009. The application runs into six volumes paginated

from page 1 to 1628. As Schedule 2 to the application, Mr.

Khosla has filed judgments running from pages 1 to 221 in

seriatum. It may be noted that annexure 1 to the application

has been captioned as “General Provision of Law Applicable to

Advocates and runs from pages 149 to 179. The orders above

noted also record filing of pleadings running into hundreds and

compilations into thousands of pages. As isolated objections or

pleadings or documents inserted into these voluminous pleadings

and records may not necessarily brought to the court's notice or

relied upon during the course of arguments. It would be humanly

impossible to place before the court such voluminous records

during oral arguments.

29. It is essential also to notice that prolix pleadings and

petitions/applications running into thousand of pages also

suggest a mischievous attempt for making applications as the

present one. An allegation or averment or a document is tucked

away amongst the voluminous pleadings and then all kinds of


allegations are premised thereon that the same may not have

been dealt with.

30. The above narration would show that application after

application has been made for initiation of these kinds of

proceedings not only against the private parties but counsels

representing them before this court. Such applications are based

on a presumption that the litigation initiated by Sonia Khosla has

been successfully decided in her favour and appear to be

intended to overawe the counsels appearing in the matter on the

other side. Such conduct manifests the concerted effort to avoid

adjudication on the real issues which would bring the litigation to

an end.

31. This application has been filed in Company Appeal ((SB)

No.7/2008 by Mr. Deepak Khosla and not by the appellant. The

applicant insists on making submissions at this stage itself.

32. As per para 3.7 the original petition filed before the

Company Law Board (reproduced in the order dated 31st of

January, 2008 of the Company Law Board extracted in the order

dated 29th of May, 2009); Mrs. Sonia Khosla arrayed the applicant

Mr. Deepak Khosla as a party – respondent only because he was

her husband. It is not averred that he held any shares or was a

director or that he had any right, title or interest of any kind in

the company - Montreaux Resort Private Limited.


33. Neither Ms. Sonia Khosla nor Mr. R.P. Khosla have joined Mr.

Deepak Khosla as applicants in filing this application.

34. Mr. Khosla has submitted that several applications have

been filed by Ms. Sonia Khosla or Mr. R.P. Khosla or by the

company seeking directions to the other side to file

vakalatnamas. The objections are premised on the challenge to

the authority of the private respondents to represent the

company.

35. So far as the applications filed by Mrs. Sonia Khosla and Mr.

R.P. Khosla or the company are concerned, the same would be

adjudicated in accordance with law. Certainly the applicant

cannot be permitted to divert adjudication on the main issues

raised by his wife and father by such collateral proceedings.

36. The applicant has no right to seek adjudication on these

basic issues pending between his wife on the one hand and the

private respondents on the other by filing the present application.

In any case, it is not open to this court in these proceedings to

decide such questions relating to authority of the private

respondents or of the propriety or manner of appearance of

counsels when these questions, even according to the applicant,

are pending consideration in the applications filed by his wife or

father against the private respondents.

37. Mr. Khosla has referred to the following judgments in


support of his contentions:-

Sl. No.

FULL REFERENCE CITATION PAGE NO.

1 Sawarmal Vs. Kunji Lal AIR 1939 Rang 1 (DB)

1-7

2 Gulam Sarwar Vs. Nabi Baksh

AIR 1941 Pesh 1 (DB)

8-11

3 K.L. Gauba Vs. Swiss Trading Co. Ltd.

AIR 1936 Lah 500 12-14

4 Kota Co-operative Agricultural Bank Ltd. vs. The State of Karnataka

AIR 2003 Kar. 30 DB

15-21

5 Doki Adinarayana Subudhi Vs. Doki Surya Prakash Rao

AIR 1980 Ori 110 22-25

6 Ramkaran Vs. Srikishan & Others

AIR 1976 RAJ 130 26-32

7 Jamilabai Abdul Kadar Vs. Shankarlal Gulabchand

AIR 1975 SC 2202 33-34

8 Kali Kumar Roy Vs. Nobin Chunder Chuckerbutty

19 WR Cr 8/6 Cal. 585 – Full Bench

45-54

9 Bakhtawar Singh Vs. Sant Lal

4 Rang. 249 (1) - DB

55-58

10 Pannalal Vs. Deoji Dhanji

AIR 1955 Madh. Bha 109

59-62

11 V.C. Rangadurai Vs. D. Gopalan & Ors.

AIR 1979 SC 281 63-71

12 Uday Shankar Triyar Vs. Ram Kalewar Prasad Singh & Anr.

AIR 2006 SC 269 72-79

The principles laid therein would become applicable after

adjudication on the pending issues noticed above.

In view of the above discussion, it is not necessary to


examine these pronouncements at this stage.

38. At the time of hearing of the present application, only

certain applications filed subsequent to the disposal of the

appeals were pending. The record showed that Company Appeal

no.7/2008 was disposed of by an order dated 11th April, 2008. Till

the date of its disposal, the appellant Mr. R.P. Khosla was

represented by counsel. An application being Co.A. No.427/2008

was filed which was also disposed of by an order passed on 11th

April, 2008 in the presence of counsel for the appellant Mr. R.P.

Khosla.

Another application being CA No.1200/2008 was filed by Mr.

R.P. Khosla. The same contained a prayer for leave to appear

through the applicant. This application was pending on the date

of hearing of the present application. Therefore, the statement

in the present application that the applicant is appearing with

due leave of the court for the appellant in Co. Appeal No.7/2008

would not be correct.

39. Even in this application, no order has been pointed out by

Mr. Deepak Khosla wherein any objection by him to the

representation of Montreaux Resort Private Limited by the private

respondents or counsels engaged by them, has been decided.

There is nothing to suggest that any such objection was raised by

the applicant during hearings before the Company Law Board or


accepted by it. Merely placing a document on record by a party

amongst voluminous record, does not by itself establish that the

same was brought to the notice of the board or the court. In any

case, as noted above, till adjudication by the Arbitral Tribunal or

Company Law Board with regard to the respective contentions of

the parties on the issue of the directorship of the parties is

decided, the objection being raised at this stage to the right to

represent the company is misconceived. The substantive issues

on which this application is premised are pending between the

applicant's wife, father and private respondents and that they are

yet to be adjudicated by a competent court or forum.

In view of the above discussion, I do not deem it expedient

in the interests of justice to grant the prayers sought by the

applicant.

This application is, therefore, misconceived and is

dismissed.

It is made clear that nothing herein contained is an

expression of opinion on the merits of the contentions raised by

the applicant.

Crl.A.Nos. 594/2009, 595/2009 and 606/2009

These applications have been filed as interim applications in

Crl.(Misc.) Co. No. 2/2009 which has been separately disposed of.


In view thereof, these applications do not survive and are

disposed of in terms thereof.

(GITA MITTAL) JUDGE

April 20th , 2010aa


in the high court of delhi crl.(misc.) co. no.2/2009 & …delhicourts.nic.in/april10/deepak...

Documents