J. D. Kapoor ( 1 ) BY this order the following applications shall stand disposed off:- i) IA 11137/98, 4120/2001 and 5547/2001 under section 151 Civil Procedure Code and under Order 39 Rule 4 Civil Procedure Code moved by defendant No. 2. ii) IA 3807/99 under Section 151 Civil Procedure Code moved by defendant No. 10. ( 2 ) THE solitary question arising from these applications is whether there is such a change in the circumstances that may warrant the modification or variation of the injunction order referred in the judgment of the Hon ble Supreme Court dated 4/2/1998 by way of directions to the Board of Directors of Modipon limited to consider and decide the issue of sale of shares of Godfrey Philips India Limited (in short gpi ),held by its subsidiaries so as to facilitate the Fibre Division of the Modipon Limited to liquidate and repay its debt to financial institutions and Banks. Ancillary to this is the question for varying or modifying the order dated 2/8/1999 passed by this Court in IA 7128/99 by way of directing the Modipon Limited-defendant No. 5 and its Board of Directors to participate in the offer of purchase of shares of Modi Rubber Limited (in short mrl ) floated by b. K. Modi and V. K. Modi of Group-B companies for using the sale proceeds and pay the debts to Banks and Financial institutions. Respondent/plaintiff and defendant no. 10 have resisted the application vehemently on the premise that since GPI shares do not belong to the Fibre Division of Modipon Limited, these cannot be allowed to be sold nor can Modipon Limited be allowed to participate in the offer of purchase of shares of MRL. ( 3 ) ORDER dated 4/2/1998 of the Supreme court is to the following effect:- 55. Pending the hearing and final disposal of the suit in the Delhi High Court and/or until any further orders are passed by the trial court if the exigencies of the situation then prevailing so require, no meeting of the Modipon Board shall be held for considering any matter relating to the suit (Group A) shall not sell any shares held in Godfrey Phillips India Ltd. provided the plaintiffs in the suit deposit in the Delhi high Court a sum of Rs. 5 crores (five crores) within four weeks from the date of this order. 5 crores (five crores) within four weeks from the date of this order. In the event of their failure to deposit the said amount within the aforesaid period, the order restraining the defendants (Group A) from selling the said shares shall stand vacated. The amount so deposited shall be invested by the High Court in fixed deposits within nationalised banks pending further orders, the interim order of 7/1/1998 will continue to operate in terms thereof. In the event of any change in the circumstances, the parties will be at liberty to apply to the High Court for any variation of this order. Appeals arising from Special leave Petitions Nos. 14905 and 18711 Of 1997 and Transfer Case No. 13 of 1997 are disposed of accordingly together with all interim applications. " ( 4 ) ORDER dated 2/08/1999 passed by this court is as under:- "mr. SUMANT Batra, learned counsel appearing on behalf of defendant no. 3 states that he wishes to file reply to IA 7128/99. He may do so within two weeks. Rejoinder, if any, be filed one week thereafter. Mr. Batra further states that till the next date the defendant no. 3 or the IFCI shall not press for a discussion on the items mentioned in their notice dated 27/7/1999. In these circumstances, till the next date of hearing, the parties are restrained from considering the matters mentioned in the said notice. ( 5 ) THE Board meeting can be held as scheduled on the 5/8/1999 to consider other matters. LIST the matter on 6/9/1999. Suit No. 2694/98 be also listed on the next date of hearing. Copy of this order be given dasti to the parties. " relevant facts need to be recapitulated in brief. By way of Memorandum of Understanding dated 24/1/1989, It was agreed between the parties that Group A will manage and/or control the various companies enumerated in clause 1. One of the companies so included is Modipon Ltd. minus indofil (Chemical Division) and selling agency. Under clauee (2), Group B was entitled to manage, own and/or control the companies enumerated therein. One of the companies so included is Modipon Ltd. minua Fibre Division. The agreement also provides for division of assets. One of the companies so included is Modipon Ltd. minus indofil (Chemical Division) and selling agency. Under clauee (2), Group B was entitled to manage, own and/or control the companies enumerated therein. One of the companies so included is Modipon Ltd. minua Fibre Division. The agreement also provides for division of assets. According to it, the shares of the companies are required to be transferred to the respective groups after their valuation and in case of any dispute in respect of clarification of this agreement, the same shall be referred to the Chairman, IFCI or his nominees whose decisions will be final and binding on both the groups. ( 6 ) ON 8/12/1995. following decisions were taken by the Chairman:- 1) Approx. 21 crores would be payable by Group b to Group A and the said amount would be deposited with ifci. 2) That the investment held by Modipon Fibre division namely Quick Investment and Good Investment and shares of MRL and GPI will have to be taken over by Group b at market value which shall be payable to Group A. These decisions have been challenged through the instant suit. ( 7 ) ACCORDING to the applicant, following changes in the circumstances and events have necessitated variation of the aforesaid orders:- (I) As on the date of the judgment rendered by hon ble Supreme Court, the Fibres Division had a default of only Rs. 13. 6 crores towards financial institutions and there was no default towards Banks. On the date of filing of I. A. 11137/98, the default towards financial institutions was Rs. 40. 93 crores and towards Banks was rs. 4. 4 crores. (ii) As of today, the default of the Fibre division towards Financial Institutions is more than Rs. 90 crores. (iii) Due to defaults towards Banks, the Banks stated that they would not support the working capital margins extended to the Fibre Division. (iv) Shares of GPI and MRL fetch an insignificant return in terms of dividend, which is approximately 1% per annum of the market value, whereas the Fibres Division has to pay interest @ 18% per annum to the Banks and Financial Institutions. (iv) Shares of GPI and MRL fetch an insignificant return in terms of dividend, which is approximately 1% per annum of the market value, whereas the Fibres Division has to pay interest @ 18% per annum to the Banks and Financial Institutions. (v) IFCI vide its letter dated 27/07/1999 requested the Company Secretary of Modipon Ltd. to place all suitable papers before its Board for disposal of surplus assets so as to clear all defaults of institutions, failing which IFCI would be forced to recall the loan and initiate legal action. (vi) Punjab National Bank vide its letter dated 18/04/2001 intimated to the Fibres Division that majority of the Banks were of the view that the Fibres division should avail of the public offer made by mr. B. K. Modi and Mr. V. K. Modi and sell the Modi Rubber ltd. s shares held by the Company to improve its net-worth and to remove the irregularities persisting in its accounts. (vii) On 19/03/2001, IFCI, which is the lead financial institution, recalled the loans given by it to the Fibre Division. Vide this notice IFCI also invoked the personal guarantees given by Mr. M. K. Modi. Other financial Institutions such as IDBI and IIBI have also recalled the loans advanced by them to the Fibre Division. (viii ). The Debt Recovery-Tribunal vide its order dated 1/06/2001 injuncted Modipon Ltd. from disposing its movable and immovable assets as mentioned in o. A. No. 150/2001 filed by IFCI. (ix) Various shareholders have written to the fibres division to take an urgent decision to sell its dead assets so as to clear all outstanding loans. Mr. Dushyant Dave,learned senior counsel for the applicant has contended that if the company is not allowed to sell its only liquid and unencumbered assets, the Fibre division would have to be wound up rendering more than 1500 employees jobless and winding up or closure of the fibre Division would also hurt public interest as the ( 8 ) AS regards the dispute as to the ownership of the shares of MRL of Modipon (Fibre Division) Ltd. and gpi, the applicant has staked its claims on the following premise:- I) The plaintiff, Mr. K. K. Modi, vide his letter dated 14/03/1989 informed various interested person that "in so far as it relates to Modipon Limited, the person to supply information, clarifications etc. would be Mr. K. K. Modi, vide his letter dated 14/03/1989 informed various interested person that "in so far as it relates to Modipon Limited, the person to supply information, clarifications etc. would be Mr. I. K. Gupta, Chief Executive (Corporate) and Company secretary, Modipon Limited". ii) On the basis of information supplied by mr. I. K. Gupta, M/s. S. B. Billimoria and Company determined the valuation of the Fibre and Chemical Divisions after taking into account the assets and liabilities of each division. In the information supplied by Mr. I. K. Gupta, was a Balance sheet of Modipon Limited as on 31/1/1989 which clearly showed that investments of Modipon limited are held by Fibre Unit and further the Quick and good Investments Companies are the assets of Fibre division. iii) M/s. S. B. Billimoria and Company in their valuation Report dated 29/1/1991 have given a categorical finding in paragraph No. 5. 10. that Modipon limited holds substantial investments in other companies in the Modi Group and that these investments are held by fibre Unit of Modipon. iv) M/s. S. B. Billimoria and Company in their second supplementary Report, specifically stated that the fibre Unit includes the operating unit, the investments and loans to its subsidiaries which are two investment companies namely, Quick and Good Investments Companies. M/s. S. B. Billimoria and Company in their report also added an appreciation on the investments held by Modipon Fibres company in the value of Fibre Unit only. Thus, the modipon Fibre Unit s valuation includes all investments including 100% shareholding of the two subsidiary companies. v) M/s. Bansi S. Mehta; and Company by their Scheme of Agreement suggested a "spin off" of the Chemical division alongwith the investments which were admittedly owned by Modipon fibres Division at book value. M/s. Bansi s. Mehta stated that these shares should be vested in the transferee, namely, Chemical Division. The transfer of shares to the Chemicals Division could only take place if fibre Division was the owner of the said shares. M/s. Bansi S. Mehta and Company in their report clarified that this "spin off would increase the value of the chemical Division by Rs. 15. The transfer of shares to the Chemicals Division could only take place if fibre Division was the owner of the said shares. M/s. Bansi S. Mehta and Company in their report clarified that this "spin off would increase the value of the chemical Division by Rs. 15. 61 crores which would have to be compensated by Group B to Group A. (vi) Since the arrangement suggested by m/s. Bansi S. Mehta and Company was contrary to the memorandum of Understanding as well as the report of m/s. S. B. Billimoria and Company, members of Group A strongly raised this objections before the CMD, IFCI. The cmd, IFCI in his Report gave a decision that the investments of Modipon Ltd. are held by the fibres division and that the shares held by the Fibres Unit would be transferred to Group B comprising of the Plaintiff at the market price prevailing at the time of actual transfer. vii) The Supreme Court in its Judgment and Order dated 4/02/1998 has observed that Group A can sell the shares if K. K. Modi does not deposit Rs. 5 crores in the High Court within a specified time. Fibre Division obviously can sell the shares only if it owns them. ( 9 ) WHILE resisting the application Mr. S. Ganesh, learned Senior counsel for the plaintiff/respondent has contended with vehemence that the circumstances of liability towards Banks and Financial Institutions were in existence and the company s plight is no worse today when the matter was before the Supreme Court and still the supreme Court declined to grant the relief as sought in the instant application and therefore the expression in the judgment that "in the event of change of circumstances" is being exploited by raising the bogey of ever-mounting liabilities and dues towards financial institutions and banks, interests of public, closure of the company and emotive plea of employees joblessness. ( 10 ) MR. GANESH further contended that it would be rather reviewing the order of the Supreme Court which had after hearing both the parties at length and without even looking into the prima facie case of the plaintiff granted two injunctions viz. ( 10 ) MR. GANESH further contended that it would be rather reviewing the order of the Supreme Court which had after hearing both the parties at length and without even looking into the prima facie case of the plaintiff granted two injunctions viz. one against the implementation of the decision of CMD of IFCI and another against the sale of GPI shares and therefore it is not open to the applicant to re-appraise the issue as to whether or not the plaintiff has title to the shares. The only issue that can be considered is whether there is a change of circumstances Which would warrant vacating or substantially modifying the first injunction order and so far as the second injunction order is concerned, this court has not been vested with the liberty to vary or modify the orders after amount of Rs. 5 crores has been deposited. ( 11 ) AS per Bansi Mehta Scheme of arrangement for the split of Modipon which was drawn up as required by the mandatory provisions of clause 5 of the Mou the Indogulf chemical Division alone with all oroup B shares held by modipon Limited and its subsidiary, that is, including the mrl shares and the GPI sharea had to be transferred without any payment on the split of Modipon to the indogulf which was under the management and control of k. k. Modi ever since 1/2/1989. According to Mr. Ganesh this scheme of arrangement drawn up by Bansi Mehta and Con. was drastically changed by the decision of Chairman, IFCI inspite of the fact that Clause 9 of the Mou did not authorise him to change this scheme in any manner whatsoever. ( 12 ) THUS, Mr. Ganeah feels that if it is held that chairman, IFCI did not have the power to amend Bansi Mehta arrangement then the title to all the sharea in question must necessarily be held to veat in group B represented by k. K. Modi and Group A would have no claim whatsoever. If, on the other hand the CMb of IFCI is held to have the powers to amend the scheme and if it is held that amendments are in order then Group B has to process the orders as laid down by the CMD of IFCI and this issue has to be decitded at the finai hearing of the suit. According to Mr. According to Mr. Ganesh, Clause 9 was not intended to be for any different decision than what had already been agreed upon between the parties. It was in view of this background and sequence of the events that the Supreme Court made the following observations:- 3. Clause 9 provides as followss- "implementation will be done in consultation with the financial institutions. For all disputes, clarifications etc. in respect of implementation of this agreement, the same shall be referred to the Chairman, IFCI or his nominees whose decisions will be final and binding on both the groups. " pursuant to the Memorandum of Understanding, m/s. S. B. Billimoria and Company gave reports between January and March 1991. M/s. Bansi s. Mehta. and Company who were required to provide a scheme for splitting of the three companies by taking into account the valuation fixed by M/s. S. B. Billimoria and company, also sent various reports between november 1989 and December 1994. The members of boths the groups were dissatisfied with these reports. They sent various representations to the Chairman and Managing director of the Industrial Finance corporation of India Ltd. in view of clause 9 of the Memorandum of Understanding. " 33. In the present case, the Memorandum of understanding records the settlement of various disputes as between Group A and Group b in terms of the Memorandum of understanding. It essentially records a settlement arrived at regarding disputes and differences between the two groups which belong to the same family. In terms of the settlement, the shares and assets of various companies are required to be valued in the manner specified in the agreement. The valuation is to be done by M/s. S. B. Billimoria and Co. Three companies which have to be divided between the two groups are to be divided in accordance with a scheme to be prepared by Bansi S. Mehta and Co. In the implementation of the Memorandum of understanding which is to be done in consultation with the financial institutions, any disputes or clarifications relating to implementation are to be referred to the chairman, IFCI or his nominees whose decision will be final and binding. In the implementation of the Memorandum of understanding which is to be done in consultation with the financial institutions, any disputes or clarifications relating to implementation are to be referred to the chairman, IFCI or his nominees whose decision will be final and binding. The purport of clause 9 is to prevent any further disputes between Groups A and B. Because the agreement requires division of assets in agreed proportions after their valuation by a named body and under a scheme of division by another named body. Clause 9 is intended to clear any other difficulties which may arise in the implementation of the agreement by leaving it to the decision of the Chairman, ifci. This clause does not contemplate any judicial determination by the Chairman of the ifci. He is entitled to nominate another person for deciding any question. His decision has been made final and binding. Thus, clause 9 is not intended to be for any different decision, than what is already agreed upon between the parties to the dispute. It is meant for a proper implementation of the settlement already arrived at. A judicial determination, recording of evidence etc. are not contemplated. The decision of the chairman, ifci is to be binding on the parties. Moreover, difficulties and disputes in implementation may not be between the parties to the Memorandum of Under standitig. It is possible that the valuers nominated in the memorandum of Understanding or 5 the firm entrusted with the responsibility of splitting some of the companies may require some clarifications or may find difficulties in doing the work. They can also resort to clause 9. Looking to the scheme of the memorandum of Understanding and the purpose behind clause 9, the learned Single Judge, in our view, has rightly come to the conclusion that this was not an agreement to refer disputes to arbitration. It was meant to be an expert s decision. The Chairman, IFCI has designated his decision as a decision. He has consulted experts in connection with the valuation and division of assets. He did not file his decision in court nor did any of the parties request him to do so. It was meant to be an expert s decision. The Chairman, IFCI has designated his decision as a decision. He has consulted experts in connection with the valuation and division of assets. He did not file his decision in court nor did any of the parties request him to do so. " ( 13 ) IT is further contended that since the main subject matter of the suit is the validity and legality of the decision of CMD of IPCI and his direction for sale of group B company shares including in particular the GPI shares and the MRL shares and if the shares are allowed to be sold then substantial part of suit would be rendered infructuous and meaningless. In other words if the application is allowed the decision of the CMD, IFCI would become final, binding and operative. Thus, according to mr. Ganesh increase in the losses and liabilities of Fibre division can never be deemed change in circumstances within the meaning and observations of the Supreme Court justifying variation of its order which in practical sense would amount to vacation of the injunction. ( 14 ) THE strength of claim of defendant No. 2 is that the Fibre Division of the unit has been allotted to it under the Mou and the balance sheet of the fibre division includes the group B company shares and, therefore, all these shares belong to defendant no. 2 and, therefore. It is entitled to sell these shares and group B has no claim for amending or ignoring Bansi s Mehta scheme. ( 15 ) ACCORDING to Mr. Ganesh three companies, are to be divided in accordance with the scheme to be prepared by bansi Mehta Committee and for the purpose of division of the Company Units have no relevance nor have they any legal entity as the shares belong to the Company. The conduct of the IFCI s chairman is arbitrary and capricious. In the scheme of arrangement of Modi industries Limited certain units along with group B company shares are spun off to a group A company which acquires it without making any payment for it. Mr. The conduct of the IFCI s chairman is arbitrary and capricious. In the scheme of arrangement of Modi industries Limited certain units along with group B company shares are spun off to a group A company which acquires it without making any payment for it. Mr. Ganesh is of the view that it was in the light of this conduct of the Chairman that the Supreme Court passed the first injunction order without subjecting to change it by any court as the circumstances prevailing then are prevailing now and merely because the liabilities are growing does not make any difference or change in the circumstances for varying the said order. ( 16 ) MR. GANESH further contended that the balance sheet cannot be a document of title as share capital is in the name of the Company and not in the name of the Units or Fibre division and that is why the share capital of the entire company Modipon Ltd. and also its general resources appear in the so-called Fibre Division balance sheet which is nothing but balance sheet of a Company as a whole and even the chemical division and the assets of the corporate office are shown as part of Fibre Division in this balance sheet. It is so because prior to 1964 the fibre Division and Modipon Ltd. were one and the same entity and this balance sheet is in reality the balance sheet of the Company and cannot, be deemed a document of title conferring on them a right to every assets which is mentioned in the Fibre Division balance sheet. ( 17 ) IT is further contended that the shares appearing in the balance sheet of the fibre division had never been regarded by the Board of Directors of Modipon ltd. or by IFCI as being part of the assets of the Fibre division. This is because the Fibre Division when it took loans from the financial institutions did so by creating a charge on all the moveable as well immovable properties of the Fibre Division. ( 18 ) HOWEVER, it is admitted position that the shares in question were never charged as these were treated as assets of the Company and not of the Fibre Division as such. In Mr. ( 18 ) HOWEVER, it is admitted position that the shares in question were never charged as these were treated as assets of the Company and not of the Fibre Division as such. In Mr. Ganesh s opinion, it is so because provision for debt was made in the accounts of the Corporate office and not in the accounts of the Fibre Division and similarly the dividends of the shares have also been credited in the capital of the Company and not of the fibre Division. Thus taking all these facts into consideration the Fibre Division is not a separate entity and therefore cannot claim ownership and title of the shares vested in the company. ( 19 ) SIMILARLY the objection of defendant No. 10 is that in terms of Moll which is binding on both the parties, the shares of the companies of the Modi Group which have been split between group A and Group B are to be transferred to the group to which the company has been allocated and they can not be sold outside so long as the company remains within the group to which it was allocated. ( 20 ) DEFENDANT No. 10 has also joined the plaintiff in opposing the application. Mr. Rajiv Sawhney contended that at the time of borrowing from the financial institutions, it was made clear that the Fibre Division of the Company will be charged and none of the assets, present or future, of Chemical Division, of the Company and that of the corporate Office of the Company will have liability on this account and after having agreed to such an arrangement and obtaining the authority of the Board as required under Section 293 of the Companies Act, it is no more open to the defendant to say that the Fibre Division of the Modipon has claim over the shares from assets of the Chemical Division or from any assets which do not belong to the Fibre Division. ( 21 ) IN this regard. Mr. ( 21 ) IN this regard. Mr. Sawhney has referred to clauses 3 and 5 of the Mou and contended that the shares held by Modipon Ltd. are the non productive assets of the company which have to be transferred in accordance with clause 3 of the Mou and therefore the said shares cannot be treated as part of assets and liabilities which have to be given to each unit in accordance with Clause 5. According to Mr. Sawhney Clause 3 deals with only those non-productive assets which have not been identifiedwith any Company or Unit belonging to Group A or Group B and as such are not included in their value whereas Clause 5 specifically provides that the units have to be given to each Group along with their assets and liabilities and phrase "assets and liabilities" appearing in clause 5 include all assets including the shares and other investments held by each individual unit and further there is nothing in clause 5 to indicate that the expression "assets" does not include shares. ( 22 ) MR. SAWHNEY further contended that there is nothing in the Mou which suggests that shares have to be transferred by one Group to the other Group free of cost. In fact, the said shares are held by public limited companies such as Modi Rubber Ltd. , who can transfer their assets only at market price and not free of charge. Even mr. K. K. Modi had taken the stand before CMD, IFCI that shares of public limited companies can only be transferred at market value. In fact, no investment of the Company, whether it is a group A or group B company was charged as securities for the loans. According to Mr. Even mr. K. K. Modi had taken the stand before CMD, IFCI that shares of public limited companies can only be transferred at market value. In fact, no investment of the Company, whether it is a group A or group B company was charged as securities for the loans. According to Mr. Sawhney no charge was created by the Fibre Division of Modi on the shares either held by group A or group B companies; the charge was exclusively created in respect of assets and liabilities of the Fibre division alone; and in terms of the MOU and also as accepted by the Chairman, IFCI in his report which is under challenge the shares of group B companies including gpi, MRL are to be transferred to group B under the scheme prepared by Bansi Mehta Committee and adjustment of the price was made within the scheme itself and the price of shares debited to group B. ( 23 ) HOWEVER, Chairman, IFCI has directed that on the split of Modipon the share be allocated to the Fibre division and Fibre Division will transfer the share on market value to Group B. It is contended that since the dispute was whether any price has to be paid by group B to group A in lieu of those shares, the Supreme Court directed group B to deposit Rs. 5 crores as security for the price to be paid for transfer of the shares and once having obtained the order of deposit of Rs. 5 crores by group B company, the defendant No. 2, is no more entitled to seek any kind of remedy in respect of shared for their sale to the third party and that in any case, the shares have to come to group B and only question which remains to be decided is as to how much amount group B company has to pay to defendant No. 2 in lieu of those shares, otherwise the question for depositing the security would not have arisen. ( 24 ) THUS in the opinion of Mr. Sawhney the claim of defendant No. 2 as to the title of these shares is not only contrary to the terms of the Mou, so is the decision of the Chairman, IFCI, Mr. Sawhney supported Mr. ( 24 ) THUS in the opinion of Mr. Sawhney the claim of defendant No. 2 as to the title of these shares is not only contrary to the terms of the Mou, so is the decision of the Chairman, IFCI, Mr. Sawhney supported Mr. Ganesh that the increase in the liability is not a change of circumstance as this circumstance was already, existing when the matter was heard by the Supreme Court and Order was passed In Mr. Sawhney s view what was contemplating in the mind of the Supreme Court while observing that the defendant No. 2 may approach the Court in the event of change of circumstances was that the GPI has ceased to be a part of group B or group B has ceased to have a right to acquire those shares but since GPI and MRL continue to be member of group B and are under their management and control and so long as group B does not give up its right in terms of the rights given under MOU defendant No. 2 cannot request for a sale of shares to the third party. ( 25 ) THOUGH the factum of default of the Fibre division towards the financial institutions running into 13. 60 crores was before the Supreme Court while the order dated 4/02/1998 was passed yet there was no default towards the banks. Ever-increasing defaults towards financial institutions and the defaults towards the banks which have resulted in the recall of the loans by financial institutions and banks and due to this situation the defendant company is riot in a position to negotiate better terms with suppliers and at times it has to purchase raw material at higher cost compared to other manufacturers is certainly a change of circumstance. Apart from this another change in circumstance as pointed out by the defendant company is that some of the shareholders have also written to the defendant to take an urgent decision to sell the dead assets of the fibre Division and save the company from going sick. Apart from this another change in circumstance as pointed out by the defendant company is that some of the shareholders have also written to the defendant to take an urgent decision to sell the dead assets of the fibre Division and save the company from going sick. ( 26 ) IN view of the aforesaid change in the liquidated situation of the defendant and the recall of the loan by the banks and its inability to discharge substantially its overdue liabilities towards the financial institutions and the banks the equity demands that all efforts should be made for saving, the Company being declared as sick. May be that at the time when the order of the Supreme Court was passed the situation of the company was not so bad as it has now turned out to be and since the defendant company is likely to become/sick because of the every growing liabilities towards financial institutions and banks which is projected and demonstrated by the letters of IFCI and PNB the impugned order needs to be modified on the principles of equitable considerations. ( 27 ) AS per Mou Modipon limited (-) Chemical Division will go to Group-A. In other words Fibre Division comes to Group-A while Group-B gets the Chemical Division. By virtue of clause 5 of the Mou amongst the three companies to be split, Modipon limited was to be split in terms of scheme of arrangement, by Bansi Mehta which in turn was to be based on valuation done by S. B. Billimoria and Units will be given to each group alongwith assets and liabilities. Therefore prime facie the shares in question namely MRL shares and GPI controlled by Modipon limited fibre Division directly or through quick and good investments may go to group-A following the split. ( 28 ) CLAUSE 3 of the Mou relates to other assets namely properties and guest houses etc. including shares held by Modi group companies other than three companies to be split. Even Bansi Mehta s report, letters to IFCI chairman and report of Billimoria and company and IFCI report in respect of the assets held by Modipon Limited to be split and shares will also have to be spun off with the unit supports the above interpretation. S Billimoria and company also proceeded on the same premise i. e. the assets included the shares also. S Billimoria and company also proceeded on the same premise i. e. the assets included the shares also. IP Gupta in his letter dated 26/6/1989 also shows that this included Quick Investment as well as Good Investment which in turn held GPI shares. The ownership of the shares was never in dispute either in the reckoning of Billimoria, bansi Mehta or for that purpose IFCI Chairman. Last but not the least the dismissal of the review application by the Supreme Court did not foreclose. the right of the defendant to get the order varied or modified in the event of change in the circumstances. ( 29 ) THROUGH the review following clarifications were sought: A) to clarify that the Delhi High Court may dispose of the application for injunction in S. 1395/96 in accordance with law within eight weeks. b) to clarify that the High Court will be at liberty to pass appropriate order on application for injunction by considering all aspects of the matter in accordance with law and not just the exigencies of the situation then prevailing,. Now comes the objection that at the time of borrowing by Modipon, the Fibre division of the company made it clear that this borrowing Will be charged from fibre Division and not against the chemical division of the company and that of the corporate office of the company will have any liability on this account. ( 30 ) IT is settled proposition that creation of charge over assets is a voluntary act and does not one way or the other determine or affect the ownership of those assets. Even assuming that no charge was created over the assets in question namely shares of MRL and GPI against the loans and other advances obtained by Modipon Limited, prima facie does not in any manner detract from the position that these assets were owned by Fibre Division of modipon limited. ( 31 ) SIMILARLY, the exhortations that Inspite of having done a good business the group B company is being put to jeopardy by way of exposing it to the risks and liabilities of the defendant on account of its mismanagement and therefore the group B company cannot be forced to pay the price for the wrongs of the group A company i. e. defendant no. 2 these can be taken care of by way of directing the split of the company subject to the final decision of the suit and by allowing the applicant to sell 50% shares of GPI and MRL but without prejudice to the rights and contentions of the parties as to the ownership of the impugned shares. This is being done with the sole object of saving the applicant from going sick and rendering 1500 employees jobless and also in the interests of public who has substantial stake. Proceeds shall be used towards liquidation and repayment of its debts to Financial Institutions and Banks. Modipon limited-defendant No. 5 and its Board of Directors to participate in the offer of purchase of shares of MRL made by defendant no. 10. and 12 so that amount realized from sale of MRL shares can be utilized by the Modipon Fibre Company to liquidate/repay its dues to Banks/financial institutions. ( 32 ) IT appears neither the plaintiff nor defendant no. 10 has any concern for the sinking ship of one of their own kith and kin. Nor have they any concern for the public interest or for the families of thousands of employees. It is nothing short of malevolent attitude. Instead of coming to the aid of defendant No. 2, they want to see and enjoy its ruination. Any observation made in this order shall not tantamount to expression of opinion on the merits of the case.