Lokendra Pal Garg v. Orient Green Power Company Ltd.
2019-05-03
ALOK SHARMA
body2019
DigiLaw.ai
JUDGMENT : Alok Sharma, J. 1. This application has been filed under Section 11 (6) of the Arbitration and Conciliation Act, 1996 (hereinafter 'the Act of 1996') seeking appointment of an Arbitrator pursuant to Clause 20.13 of the share purchase agreement executed between the applicant and non-applicant no. 1 following the Memorandum of Understanding (MOU) dated 07.12.2017 between them for transfer of shares in the non-applicant no. 2-Amrit Environmental Technologies Pvt. Ltd. Clause 20.13 of the share purchase agreement dated 27.06.2018 which reads as under:- 20.13 Alternate Dispute Resolution: That in case of any dispute arising between the parties in respect of meaning and interpretation with regards to any of the clauses of this Agreement or in respect of its execution or any other disputes relating to or concerning thereto in respect of the business of this Agreement shall be referred to the sole arbitrator appointed by mutual consent in accordance with the provisions of the Arbitration and Conciliation Act 1996 and his decision shall be final and binding upon all the parties hereto. The venue of Arbitration shall be Jaipur. The language of arbitration shall be English. The cost of arbitration shall be borne by the parties in equal proportion. When any dispute or difference is referred to arbitration, except for the matters under dispute, the parties shall continue to exercise their remaining respective rights and fulfill their remaining respective obligations under this Agreement. 2. Mr. Nitish Bagri appearing for the non-applicant does not dispute the execution of the said share purchase agreement dated 27.06.2018 pursuant to the MOU dated 07.12.2017 or the arbitration Clause 20.13 thereunder. He however submitted that the share purchase agreement is inadequately stamped and hence inadmissible for infact aside of its nomenclature it is a conveyance of immovable property and not stamped accordingly as per Clause 23 in the Schedule to the Rajasthan Stamp Act, 1998 (hereinafter 'the Act of 1998'). In support of his submission Mr. Nitish Bagri referred to Clause 3 and 9 of the Terms and Conditions of the MOU dated 07.12.2017 to show that it was the extent of land that was determinative of the transfer value recorded in the purported share purchase agreement dated 27.06.2018. Mr. Nitish Bagri submitted that hence the share purchase agreement dated 27.06.2018 being inadequately stamped and inadmissible cannot be resorted to for the arbitration clause therein for appointment of arbitrator. 3. Per contra, Mr.
Mr. Nitish Bagri submitted that hence the share purchase agreement dated 27.06.2018 being inadequately stamped and inadmissible cannot be resorted to for the arbitration clause therein for appointment of arbitrator. 3. Per contra, Mr. Sarthak Rastogi appearing for the applicant submitted that the share purchase agreement dated 27.06.2018 makes it very clear that the transaction is only in respect of 100% transfer of shares in the non-applicant no. 2-Amrit Environmental Technologies Pvt. Ltd. by the non-applicant no. 1. He submitted that reference to the area of land in the MOU dated 07.12.2017 preceding the share purchase agreement dated 27.06.2018 is only for the valuation of shares transferred in the non-applicant no. 2-Amrit Environmental Technologies Pvt. Ltd. and nothing more. It was further submitted that in the event Mr. Nitish Bagri's arguments were to taken into account at face value it would entail overlooking the juristic personality of non-applicant no. 2-Amrit Environmental Technologies Pvt. Ltd. duly incorporated the Companies Act, 1956. Besides the untenability of Mr. Nitish Bagri argument with regard to transaction under the share purchase agreement being of immovable property is also evident from the fact even after the transfer of shares of non-applicant no. 2 as per the share purchase agreement dated 27.06.2018, the company was to continue as the owner of the immovable property. There is thus no transfer of immovable property, for law does not visualise transfer by one to self, Mr. Sarthak Rastogi emphasized. Heard. Considered. 4. The entity Amrit Environmental Technologies Pvt. Ltd. with its juristic personality would continue to hold its immovable properties even subsequent to the share transfer on the basis of the share purchase agreement dated 27.06.2018. What is to entail under the MOU and the share purchase agreement is only the transfer of shares by the non-applicant no. 1 to the applicant. That nature of the transaction is liable to stamp duty under Clause 5 (b) of the Schedule of the Act of 1998. Under Clause 5 (b) in the Schedule to the Act of 1998 the maximum stamp duty payable on a sale of shares in an incorporated company is Rs. 200/- whereas the share purchase agreement in the instant case has been executed on stamp of Rs. 10,000/-, aside of the fact that even the MOU dated 07.12.2017 was executed on stamp paper of Rs. 500/-. I am therefore disinclined to accede to the submission of Mr.
200/- whereas the share purchase agreement in the instant case has been executed on stamp of Rs. 10,000/-, aside of the fact that even the MOU dated 07.12.2017 was executed on stamp paper of Rs. 500/-. I am therefore disinclined to accede to the submission of Mr. Nitish Bagri that the share purchase agreement dated 27.06.2018 entails transfer of immovable property and for that reason it was to be stamped as a conveyance and hence not so being is inadequately stamped-and its attendant consequences inadmissibility entailing non-appointment of arbitrator as prayed for in this application. 5. In view of the aforesaid discussion, I am of the considered view that both the MOU dated 07.12.2017 and the share purchase agreement dated 27.06.2018 based thereon are documents admissible in evidence. Mr. Nitish Bagri's objection in this regard is without merit. It stands rejected. 6. Clause 20.13 of the share purchase agreement dated 27.06.2018 between the applicant and non-applicant provides for appointment of an Arbitrator in the event of disputes and differences between the parties regard and relating to the share purchase agreement dated 27.06.2018. The disputes as to payment of due amount and transfer of shares pursuant to the share purchase agreement having admittedly arisen, I would therefore be inclined to allowed this application and appoint Hon'ble Mr. Justice J.K. Ranka (Mobile-9829010593) C 12 New Colony Panchbatti Jaipur, as sole Arbitrator. He is to enter on reference accordingly to adjudicate all disputes/differences between the parties regarding and relating to the share purchase agreement dated 27.06.2018. The Arbitrator shall if warranted make requisite disclosure under Section 11(1) of the Act of 1996. Payment of the cost of Arbitration proceedings and arbitration fee shall be made as per the fourth schedule of the Act of 1996 as amended from time to time and so computed as directed by the Arbitrator. A copy of this order be communicated to Hon'ble Mr. Justice J.K. Ranka for entering upon the reference and proceed thereon as per the Act of 1996 as amended from time to time. A copy of this order be communicated to Hon'ble Mr. Justice J.K. Ranka (Mobile-9829010593) C 12 New Colony Panchbatti Jaipur. 7. The application stands allowed accordingly.