- (1.) The appellant being aggrieved by the judgment and order dated 29th March, 2012 passed by the learned Trial Judge on their application under section 9 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as said 'Act') has preferred the instant appeal. The learned Trial Judge has refused to pass any effective ad interim order, though prayed for and had given direction simply for filing affidavits to hear it out finally some times in the month of May, 2012. The short fact leading to filing of the application as aforesaid and preferring instant appeal is as follows:-
(2.) By an agreement in writing dated 10th April, 2012 appellant agreed essentially to acquire mining leasehold interest granted to the respondent company and the respondent firm, by Rajasthan State Government by acquiring entire issued share capital of the respondent company as well as the shares of the respondent Nos. 2 and 3 in the respondent firm together with right of management and control of the company and the firm. It was agreed that purchase consideration for the shares of the respondent company would be at Rs. 20,50,00,000/-, and that of for the shares of the respondent Nos. 2 and 3 at Rs. 20,50,00,000/- too. The purchase consideration for the lands was determined at Rs. 41 crores. They are agreed to be paid by the appellant. There were various other conditions contained in the said agreement. According to the appellant the said agreement was induced to be entered into by the appellant with the respondents on the representation of the later that the deposit of limestone would be around 200 million metric tones and the said mining lease as well as the ownership of the lands were sought to be acquired for the purpose of setting up of plant for manufacturing high quality of cement. Accordingly, the appellant in terms of the said agreement had paid an aggregate sum of Rs. 29.48 crores as an advance and/or part-payment of the deal to the respondent. After having paid, in terms of the agreement the appellant caused a Geological Survey to be made to ascertain the quantity of deposit of lime stone which was supposed to be mined by the appellant for manufacturing cement. On independent survey having been done it was found that projection of deposit of Rs. 200 million metric tones as represented by the respondents was not correct, and the deposit was much less. In view of the aforesaid situation according to the appellant the agreement turns out to be non-executable. Accordingly, the appellant in terms of the agreement terminated the said contract and asked for refund of the aforesaid advance amount paid. In substance the agreement has now become frustrated and had to be terminated.
(3.) In spite of repeated demands aforesaid amount has not been repaid. The said agreement contains valid and enforceable arbitration clause, and in contemplation of the arbitration proceedings being initiated the aforesaid interlocutory action taken. The case made out before the learned Trial Judge to obtain interim relief was that all the respondents do not have sufficient assets and properties to pay back aforesaid principal amount with interest. It was also the case that the respondents in order to defeat the aforesaid undisputed claim of the petitioner are trying to transfer and alienate leasehold interest as well as the land to third party. The value of the shares which have been lying with the Escrow Agent is not adequate to secure the claim. Moreover, it is apprehended that the respondent company is trying to issue duplicate share to third party. On the aforesaid background following prayers have been made: (a) An order of injunction be made restraining the respondents from transferring the mining leases granted to the respondent Nos. 4 and 5, whether by transferring shares of the respondent No. 4 company or by transferring the shares of the respondent Nos. 2 and 3 in the respondent No. 5 or otherwise; (b) An order of injunction be made restraining the respondents from taking any steps to issue duplicate shares scripts to the holders whose shares were to come to the petitioner had the transaction been completed; (c) An order be made appointing a Receiver over the mining leases of the respondent Nos. 4 and 5 with a direction to sell the same at the best available price, to collect the proceeds of such sale and to pay the same to the petitioner in pro tanto satisfaction of its claim; (d) An order be made directing the Receiver that may be appointed herein to take possession of the shares of the respondent No. 4 and their transfer deeds that have been deposited in escrow with the escrow agent Arvind Kumar Jhunjhunwala of 1B, Old Post Office Street, Kolkata and to keep the same in his custody subject to such order that may be passed by this Hon'ble Court in connection therewith; (e) An order be made directing the respondents to show cause as to why they should not be directed to furnish security for the sum of Rs. 37,77,14,871/-; (f) In the event of the respondents failing to show cause or showing insufficient cause, to cause the assets and properties of the respondents including all monies lying in their bank accounts and the lands of the respondent Nos. 2 and 3 detailed in the annexure "M" hereto to be attached before judgment; (g) An order of injunction be made restraining the respondents from dealing with, disposing of, alienating, encumbering or otherwise transferring their assets and properties including the lands belonging to the respondent Nos. 2 and 3 detailed in the annexure "M" hereto or from withdrawing any amounts from their bank accounts without leaving in balance a sum of Rs. 37,77,14,871/- in the same; (h) An ad interim order be made in terms of the above prayers; (i) Costs of this application be directed to be paid by the respondents; (j) Such further or other order or orders be made and/or direction or directions be given as to this Hon'ble Court may seem fit and proper.;