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2012 DIGILAW 483 (CAL)

Haldia Petrochemicals Limited v. Chatterjee Petrochem (Mauritius)

2012-05-18

J.N.PATEL, SAMBUDDHA CHAKRABARTI

body2012
Judgment : There shall be an order in terms of prayer (a). Aggrieved by an order dated May 4, 2012 passed by learned Trial Judge in G.A. No.1191 of 2012 in C.S. 152 of 2012 the appellant has filed this appeal. By the said order the learned Trial Judge had refused to pass interim relief in favour of the plaintiff-appellant. Along with the appeal they had further taken out an application for injunction restraining respondent no.1 from further pursuing its request for arbitration made to the respondent no.8 on March 21, 2012 or from taking any further steps in connection therewith till the disposal of the appeal. We propose to dispose of the appeal and the application together. Bereft of all details, the plaintiff-appellant filed a suit before the learned Trial Judge, inter alia, for a decree and for a declaration that the arbitration agreement contained in the agreement, dated January 12, 2002, is void and/or unenforceable, a decree of permanent injunction restraining the defendant no.1 in the suit, their officers, employees, etc. from initiating and/or continuing with the said arbitration proceeding, a decree of permanent injunction prohibiting the defendant no.8 therein, its agent, officers, etc. from acting upon and further proceeding with any proceeding pursuant to the said arbitration clause in the said agreement. The appellant company was incorporated in the year 1985 by the West Bengal Industrial Development Corporation (for short WBIDC) and the R.P. Goenka group. After the Goenkas had left other companies were inducted and ultimately in June 1994 Dr. Purnendu Chatterjee showed interest in implementing the project. A Memorandum of Understanding was entered into the WBIDC, the Chatterjee Petrochemicals (Mauritius) Company and the Tatas. Initially, it was agreed that the Chatterjee group would control 60% shares of the appellant company. In the year 2002 there were two agreements dated January 12, 2002 and March 8, 2002 respectively. As the dispute between the parties arose the Chatterjee group approached the Company Law Board under Sections 397/398/399/402/403/406 of the Companies Act for an order directing WBIDC to transfer 155 million shares to them. This was, initially, allowed in the year 2007. In the year 2002 there were two agreements dated January 12, 2002 and March 8, 2002 respectively. As the dispute between the parties arose the Chatterjee group approached the Company Law Board under Sections 397/398/399/402/403/406 of the Companies Act for an order directing WBIDC to transfer 155 million shares to them. This was, initially, allowed in the year 2007. Against that a company petition was filed before this Court and by a Judgment and Order, dated September 21, 2007 this Court dismissed the company petition on the basis that the dispute did not constitute affairs of the company within the meaning of Sections 397/398 of the Act Against that the Chatterjee group filed an appeal before the Supreme Court which by judgment and order dated September 30, 2011 was dismissed. The respondent no.1 filed a Request For Arbitration in the ICC in accordance with the arbitration clause. It may be mentioned that the Request For Arbitration is restricted to the registration of 155 million shares in favour of the defendants-respondents nos. 1 and 2. On or about April 30, 2012 the present appellant filed a suit as mentioned before and had also filed an application for injunction praying for interim orders in terms of the reliefs prayed for in the suit. The learned Trial Judge refused interim order and directed the parties to file affidavits by the dates as mentioned therein. Mr. Chatterjee, learned senior counsel has assailed the order impugned and Mr. Sarkar, learned senior counsel has argued against the grant of an interim order of injunction. For the present purpose we need not enter into the details of such submissions as the application for injunction is yet to be finally decided by the learned Trial Judge. It will not be proper for us at this stage to express any opinion about the merits of the application for injunction lest it might influence the learned Trial Judge while disposing of the application for injunction on merits. We have gone through the materials placed and have given our anxious consideration to the respective submissions of the learned Advocates and we are of a prima facie view that this is a case where the learned Trial Judge ought to have passed an interim order of injunction pending the final disposal of the application for injunction. As such, this order calls for an interference, at least for a limited period. As such, this order calls for an interference, at least for a limited period. The learned Trial Judge failed to appreciate that the appellant had been able to make out a prima facie case and we consider that the balance of convenience and inconvenience also lies in favour of granting an interim order of injunction for a limited period. Accordingly, we direct that there shall be an interim order of injunction in terms of prayers (b) and (c) of the application for injunction filed in connection with the present appeal. This interim order of injunction shall continue for a period of eight weeks from date or until further order whichever is earlier so as to enable the learned Trial Judge to dispose of the application for injunction finally. We extend the time for filing affidavits by the parties concerned. Let an affidavit-in-opposition be filed by the defendants in the suit by June 14, 2012. Affidavit-in-reply thereto, if any, will be filed within a week thereafter. We request the learned Trial Judge to dispose of the application for injunction as early as possible, but preferably by July 10, 2012. The learned Trial Judge shall, however, be at liberty to extend the period of interim order in case any such contingency arises and if he thinks it otherwise necessary. The application and appeal are thus being disposed of accordingly. There shall be no order as to costs. Urgent photostat certified copy of this order, if applied for, be given to the learned advocates of the parties upon compliance of necessary formalities.