RAMNISH KUMAR SHARM Vs. D R JOHNS LAB PVT LTD AND ORS
LAWS(NCLT)-2016-12-2
NATIONAL COMPANY LAW TRIBUNAL
Decided on December 06,2016

RAMNISH KUMAR SHARM Appellant
VERSUS
D R JOHNS LAB PVT LTD AND ORS Respondents


Referred Judgements :-

COSMOSTEELS PRIVATE LTD. V. JAIRAM DAS GUPTA & ORS [REFERRED TO]
SUKANYA HOLDING PRIVATE LIMITED VS. JAYESH H PANDYA [REFERRED TO]
RAKESH MALHOTRA VS. RAJINDER KUMAR MALHOTRA [REFERRED TO]


JUDGEMENT

- (1.)The instant application (C.A. No. 366/2011) under section 8 of the Arbitration and Conciliation Act, 1996 (for brevity 'Arbitration Act') has been filed by Respondent No. 2 in a pending company Petition (C.P. No. 46(ND)/2011) which has been preferred under sections 397 & 398 of the Companies Act, 1956 (for brevity the 'Companies Act'). The applicant-Respondent No. 2 has prayed that the dispute raised in company petition is referable to arbitration in terms of clause 7 of the Memorandum of Understanding (for brevity 'MOU') dated 18.03.2009. The aforesaid MOU has been placed on record of the company petition (P5). The applicant -Respondent No. 2 has pleaded that non applicant -petitioner has built up his case of 'oppression and mismanagement' on the basic ground of non-implementation of the MOU dated 18.03.2009 and two addendums attached with it dated 13.03.2010 and 26.03.2010. A reference has been invited to the averments made in the petition by urging that even the foundation of the reliefs sought are the MOU dated 18.03.2009 and the aforesaid two addendums. According to the MOU there is mandatory provision for referring the dispute between the parties for adjudication by way of arbitration. It has been asserted that the prayers for relief seek to give colour of oppression and mismanagement which infact are the prayer for implementation of the agreement of the parties executed in the form of MOU and the addendums.
(2.)The application has been vehemently opposed by taking a preliminary objection that the MOU dated 18.03.2009 has been signed by non applicant-petitioner, applicant-Respondent No. 2 and one Mr. Navdeep Kumar Sharma (Respondent No. 4). The addendum dated 13.03.2010 has been signed by three parties mentioned above and in addition by Respondent No. 1-company. However the second addendum dated 26.03.2010 has only been signed by the petitioner and Respondent No. 2. On the aforesaid basis it has been urged that the petition clearly sets out a case of 'oppression and mismanagement' of Respondent No. 1-company against applicant-Respondent No. 2 and there is statutory duty cast on this Tribunal to enter adjudication upon cases of 'oppression and mismanagement'. It has been insisted that the relief sought by the petitioner in the instant petition is outside the scope of arbitration instituted on the basis of MOU and/or the two addendums. It has also been averred that if some part of the prayer emerges from the allegation of oppression and mismanagement then there is no possibility of severing the causes by refereeing some to the arbitration and by retaining the other for adjudication by the Tribunal. It has also been pleaded that neither the MOU nor the addendums have been incorporated in the Articles of Association of Respondent No. 1-company. The petitioner has denied the allegation that it is on account of non implementation of the MOU and the addendums appended thereto that the company petition has been filed. The petitioner has also denied all other allegations.
(3.)Learned counsel for the applicant -Respondent No. 2 has vehemently argued that a glance on the prayer made in the petition and the averments made therein would not leave an iota of doubt that the grievance raised in the petition is based on non implementation of the MOU dated 18.2.2009 and the addendums dated 13.03.2010 and 26.03.2010. Learned counsel has drawn our attention to the averments made in paras 8, 9, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 30, 32 and various reliefs claimed in paras 55 and 56 of the company petition. According to the learned counsel the case is fully covered by the Judgment of Delhi High court in 20TH Century Finance Corporation Ltd. v. Union of India and others,2011 161 CompCas 247 (Delhi). Learned counsel has emphasised that it is a completely dressed up petition in order to defeat the pending proceedings before the Arbitrator.
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