Surya Prakash Kesarwani, J. - (1.) Heard Sri Ashish Kumar Srivastava, learned counsel for the plaintiff-appellant and Sri Udai Chandani and Sri Nimai Dass, learned counsel for the defendants-respondents. Facts
(2.) Briefly stated facts of the present case are that the plaintiff-appellant was one of the Directors in the respondent no.1 Company. The defendant-respondent No.1 is a Limited Company. It purchased an immovable property being House No.19/1, B.L.K.-B, Okhla Industrial Area, Phase -2, New Delhi (hereinafter referred to as the "disputed property"). The plaintiff-appellant and the defendant-respondent No.2 and their family members were Directors in six companies, namely, M/s. Himalayan Bioxteracts Pvt. Ltd., Kamero Technosys Ltd., Virat Residency Ltd., Dynacon Cares Ltd., Dynacon Systems Ltd. and Duet Marketing Pvt. Ltd. The plaintiff-appellant and the defendant-respondent no.2 and their two guests drawn Minutes of the Meeting dated 10.2.2016, which is reproduced below :- "MINUTES OF THE MEETING OF THE DIRECTORS OF KAMERO TECHNOSYS LIMITED HELD ALONGWITH TWO OTHER GUESTS ON 10/02/2016 AT ROOM NO. 600 OF VIJAY INTERCONTINENTAL HOTEL AT 12.30 P.M.The Following person were present - JUDGEMENT_15_LAWS(ALL)7_2019_1.html JUDGEMENT_15_LAWS(ALL)7_2019_1.html This meeting was convened with a basic object of finishing the problems faced by both the directors of Kamero Technosys Limited in day to day working of Company and also to find out an amicable solution for separation of the both directors from the business done by both of them jointly. Various decisions were taken during the course of discussions held and an amicable solution was found out for separation of the both the above named directors of Kamero Technosys Limited which was acceptable to both of them. As a token of remembrance and also acceptance of the decisions taken in the meeting these are enumerated below. Both the directors are signing this document in the presence of other two guests willingly. Without any force or coercion and in token of their acceptance of the decisions taken in the meeting which they will follow in the best interest of the Organization as a whole and for the other director also. The amicable decisions reached between both the directors are enumerated below - 1. That the Company Kamero Technosys Ltd which will be taken over by Shri Pankaj Kumar Gupta will be made liability free to the extent of liabilities of shoe division which was looked after by Shri Nirbhay Kapoor. In that respect the liability of Export obligation under EPCG Scheme, the liability of pending Excise matters, recovery by DGSND on any disputed matter of excise if any, clearance of Creditors of Shoe division and the Cash Credit limit of Rs 100.00 lacs alongwith interest till date of its clearance will be paid by Shri Nirbhay Kapoor. Further, it was also agreed between both the directors that expenses of the factory at C-6 Site-1, Panki Industrial Area, Kanpur up to 31st March 2016 will be borne by both the directors equally and thereafter if the setup of shoe division remains there then the expense part will be borne by both the directors equally till the setup of shoe division is removed from C-6 Site-1, Panki Industrial Area, Kanpur. For the part of above stated expenses of Excise, DGFT dept. etc a buffer amount of money will be retained in Kamero Technosys Ltd from the part of Shri Nirbhay Kapoor.2. That Rs 100.00 Lacs of the cash of the Company held by Shri Nirbhay Kapoor at the time of dispute in July, 2012 will be added to his account (pt. no. 7).3. That the six common Companies will be divided in the following manner -JUDGEMENT_15_LAWS(ALL)7_2019_3.htmlJUDGEMENT_15_LAWS(ALL)7_2019_3.html4. The matter of immovable assets in the above six companies was discussed and it was amicably decided to find out the valuation of immovable assets and divide them amongst both the directors. Both the directors were agreeable to this proposition readily. After discussions with various property dealers by both the directors the following valuation of the properties was made which was readily acceptable to both the directors -JUDGEMENT_15_LAWS(ALL)7_2019_5.htmlJUDGEMENT_15_LAWS(ALL)7_2019_5.html5. That the above properties will be divided amongst both the directors as mentioned below -JUDGEMENT_15_LAWS(ALL)7_2019_7.htmlJUDGEMENT_15_LAWS(ALL)7_2019_7.htmlIt was amicably decided that both the directors are at their free will to keep the property or to sale it. In case of sale of property the other director will sign the Sale deed without any questions or hindrance. The proceeds of sale of the property will go to the credit of the director who sells his part of property and will be paid to him. The Long Term Capital gains, if any, arising on sale will be borne by the director who is selling his part of Immovable property and the other director will in no way be responsible for that part of expense. 6. The matter of Plant and machinery owned in the group was discussed. The Plant & Machinery of Shoe division was valued at Rs 2.50 Crores by Shri Nirbhay Kapoor which was readily acceptable to the other director. The machines of Mould division was valued at Rs 0.75 Lacs and that of Adhesive plant and other misc. machines was valued at Rs. 0.40 Lacs by both the directors. The machines at G-116 Site-1 factory were valued at Rs 0.07 lacs. It was amicably decided by both the directors that the machines of Shoe division will be taken over by Shri Nirbhay Kapoor at the above valuation and the rest machines will be taken over by Shri Pankaj Kumar Gupta also at the above valuation. It was also decided that out of the machines of Shoe division one desma machine of 18 Stations will be taken over by Shri Pankaj Kumar Gupta at a valuation of Rs 0.40 Lacs to which the other director readily agreed.7. The final position of payment between both the directors is placed below- JUDGEMENT_15_LAWS(ALL)7_2019_9.html JUDGEMENT_15_LAWS(ALL)7_2019_9.htmlThe sum total of the valuation of the Immovable & movable properties stated above come to Rs 39.02 Crores (19.87+19.15). Half share of the sum total of valuation comes to Rs. 19.51 Crores (39.02/2) i.e. each director's share of the property comes to Rs 19.51 Crores. To balance both the director's valuation an amount of Rs 0.36 Lacs will be paid by Shri Pankaj Kumar Gupta to Shri Nirbhay Kapoor (19.87-19.51)(19.51-19.15).8. Besides the above it was also decided that the proceeds of sale of Land at Bhadurgrah, Haryana of Rs 1.46 Crores will be divided amongst both the directors in equal proportion, after deducting expenses of Rs 4.00 lacs incurred on its sale and Tax on Long term capital gains to be calculated as per I. Tax Act, 1961.9. It was also decided that the advance payment of flats made in one of the Company of Rs 23.00 Lacs approx. which was received back will be divided equally amongst both the directors.10. Both the directors also readily agreed that the payments received from Defence Organizations for sale of Shoes in Kamero Technosys Ltd will go to the credit of Shri Nirbhay Kapoor and will be paid to him even after separation. In the event of payment received being less than the liabilities then that shortfall will be borne by Shri Nirbhay Kapoor.11. It was also readily agreed by both the directors that any liability of the common six companies arising of the period prior to 31st July, 2012 will be borne equally by both the directors even after separation.12. It was also readily agreed between both the directors that the Brand "KAMERO" will be the sole property of Shri Pankaj Kumar Gupta and the brand "DYNACON" will be the sole property of Shri Nirbhay Kapoor.13. It was also decided amicably that the shares of both the directors standing in the name of each other will be transferred in the name of the director to whom the Company is going. It was also decided that the directors will give resignations unconditionally from the directorship of the Company which is going to the other director. 14. It was also decided that the director who is resigning will also give a letter to the Banker of the Company informing about his unconditional resignation and also to remove his name from the Authorized signatory of that Company.Finally the meeting concluded and it was amicably decided that the process of separation should be completed at the earliest."
(3.) Subsequently, agreement to sell dated 21.5.2016, was entered by the defendant-respondent No.1 with someone for sale of the disputed property for Rs.5,40,00,000/-. The plaintiff-appellant asked the defendant-respondents to pay to him Rs. 8,55,00,000/- in terms of the Minutes of the Meeting dated 10.2.2016. Since this amount was not paid, therefore, the plaintiff-appellant filed O.S. no.79 of 2019 (Nirbhay Kapoor Vs. M/S Kamero Technosys Ltd And Another) praying for declaration of lien over assets of three companies, namely, M/s. Himalayan Bio Extracts Pvt. Ltd., Kamero Technosys Ltd. and Virat Residency Ltd. The relief for permanent injunction was also sought to restrain the defendant-respondents from transferring the disputed property. The aforesaid suit was dismissed by the impugned order dated 25.3.2019, passed by the Additional Civil Judge (S.D.)/ACMM, 9th, Kanpur Nagar, on the ground that it is not maintainable in view of the provisions of Section 430 of the Companies Act 2013 (hereinafter referred to as "the Act 2013") read with Order 7 Rule 11 (d) of the C.P.C.;