Manmohan, J. - (1.) Prayers IN THE SUIT AND PENDING APPLICATIONS AS WELL AS EX PARTE ORDER DATED 19th AUGUST, 2015 1. Present suit has been filed for declaration and mandatory injunction. The prayer clause in the present suit is reproduced hereinbelow:- (A) A declaration to the effect that shareholding of Radhey Shyam Saraf (Defendant No. 6) holding 572071 equity shares, Anita Rajgaria (Defendant No. 7) holding 571061 equity shares, Forex Finance Pvt. Ltd. (Defendant No. 8) holding 458377 equity shares and Jesmin Investment Ltd. (Defendant No. 5) holding 7526 equity shares aggregating to 1609035 equity shares in the Plaintiff No. 1 is illegal and void; (B) A decree of mandatory injunction or a decree in favour of Plaintiffs and against the Defendants, their agents, nominees, administrators, legal heirs, assignees etc. directing the Defendant Nos. 5 to 8 to transfer their shareholdings to the Plaintiff No. 1 at their face value; (C) Award Cost in favour of the Plaintiffs and against the Defendants; (D) Pass an order(s)/direction(s) as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case."
(2.) While I.A. No. 17148/2015 has been filed by the plaintiffs for grant of injunction, I.A. Nos. 18714 & 18715 of 2015 have been filed under Order 39 Rule 4 by defendant nos. 8 and 6 respectively for vacation of interim order dated 19th August, 2015, I.A. Nos. 24462 & 24463 of 2015 have been filed under Order 7 Rule 11 read with Order 1 Rule 10 on behalf of defendant nos. 5 and 1 to 3 respectively.
(3.) On 19th August, 2015, the learned predecessor of this Court passed an ad interim ex parte order. The relevant portion of the said order is reproduced hereinbelow:- "It is the contention of the plaintiffs that as per the arrangement between the parties, three groups, i.e., Gupta Group, Saraf Group and Jatia Group were to go their separate ways from the erstwhile ASIAN Hotels Ltd. and the three hotels i.e. Hotel Hyatt at Mumbai (West Zone), Hotel Hyatt at Calcutta (East Zone) and Hotel Hyatt at Delhi (North Zone), were to be managed individually by the said groups. De-merger proceedings to this effect were initiated before this court and were sanctioned on 13.01.2010. In the interim, the parties had also entered into an inter se agreement on 26.10.2009 according to which each of the said three groups would hold an aggregate of 59.27% of the shares in the proposed three 'resultant' companies. Clause F of the inter se agreement reads as under: "F. The Parties are desirous of undertaking an inter-se transfer of equity shares amongst them in AHL Residual, Transferee Company-I and Transferee Company-II post the effectiveness of the Scheme in compliance with the provisions of applicable Laws. The Parties intend to record in this Agreement, the modalities of effecting trifurcation enabling each of the Jatia Group, the Gupta Group and the Saraf Group to hold in the aggregate 67,57,702 equity shares (i.e. 59.269%) out of the total issued and paid-up capital of AHL Residual, Transferee Company-I, and Transferee Company-II respectively, which modalities will be affected and implemented in accordance with the provisions of this Agreement." It was also agreed that there would not be cross-holding of either of them in the other's company. This was specifically stipulated in Clause 7.4 of the agreement which reads as under: "7.4. Each of the Promoter Groups undertake not to acquire further equity shares in AHL and post effectiveness of the Scheme not to acquire further equity shares in the resultant companies and shall ensure that the public shareholding of the resultant companies does not fall below the threshold stipulated under clause 40A of the listing agreement. This restriction will not apply after the inter-se swap of equity shares as per this Agreement." In terms of the said agreement, the Saraf and Jatia Groups transferred their total shareholding of 42.02% in plaintiff No.1 in favour of the Gupta Group on 23.08.2010. In December, 2010, the plaintiffs discovered that 14.1% shares held by defendant Nos. 4 and 5 which are owned by the Jindal Groups were transferred to defendant Nos. 6 to 9 i.e. the Saraf Group. It has been discovered that the said defendants have required cross-holdings in the plaintiff's company in contravention of Clause 7.4 of the inter se agreement. The plaintiffs seek restraint upon further transfer of the said shares to third parties and a restraint against the exercise of voting rights that go with these shares. Dr. Abhishek Manu Singhvi, the learned Senior Advocate for the plaintiffs would contend that if the interim injunction is not granted it would severely hamper the management and prejudice the rights of the plaintiffs. It appears prima facie that the shares held by defendant nos. 6, 8 & 9 are in contravention of the inter se agreement dated 23.09.2009 since the parties explicitly agreed that there would be no cross holdings in each others' company. This Court is of the view that the plaintiffs have made out a prima facie case for an ex parte ad interim injunction against exercising of voter rights and against further transfer of the shows to third parties, and in case such an order is not passed at this stage, the plaintiffs' rights and interests would be irreparably prejudiced. The balance of convenience too is in favour of the plaintiffs. Insofar as defendant no. 7 is concerned, no interim injunction is warranted against her at this stage, because she was not a signatory to the agreement dated 23.09.2009 which was signed by D-6 her father on his own behalf as well as on behalf of D-8 and D-9 - companies of the Saraf Group. In the circumstances, till the next date of hearing, defendant Nos. 6, 8 and 9 shall maintain status quo apropos the said 14.1% of the shares and are injuncted from exercising voting rights arising from the said shares. Apropos the shares held by defendant No.7, the learned Senior Advocate for the plaintiffs states that he would pursue the matter in the post-notice proceedings. Compliance under Order XXXIX, Rule 3 of the CPC shall be done by the plaintiffs within one week." ARGUMENTS ON BEHALF OF THE PLAINTIFFS;