K.S Gupta, J.:— In the petition under Section 11(6) of the Arbitration and Conciliation Act, 1996 petitioner filed this application under Order 1, Rule 10 read with Section 151 CPC alleging that in response to the petition, DLF Industries Ltd., respondent moved an application under Order 7, Rule 11 read with Section 151 CPC on 6th January, 2001 wherein it is stated that respondent had been amalgamated with DLF Universal Ltd. vide order dated 8th August, 2000 passed in Company Petition No. 58/2000 by this Court. During the pendency of agreement dated 16th May, 1994, the respondent sold off their entire shareholding to Gujarat Ambuja Cements Ltd. and have further entered into a supplementary agreement dated 4th February, 2000 with it whereby Gujarat Ambuja Cements Ltd. will take up all matters directly with the petitioner in relation to the subscription agreement. It was prayed that DLF Universal Ltd. and Gujarat Ambuja Cement Ltd. be impleaded as respondents 2 and 3 respectively.
2. Needless to say that Gujarat Ambuja Cements Ltd. alone has filed reply to the application.
3. I have heard Shri Bharat Sangal for petitioner, Anil Seth for DLF Universal Ltd. and Shri Manmohan for Gujarat Ambuja Cement Ltd.
4. Copy of subscription agreement dated 16th May, 1994 entered into in between DLF Industries Ltd., respondent and Larsen & Toubro Ltd., petitioner is placed at pages 15 to 23 on the file.
5. Bare perusal thereof would show that petitioner had agreed to subscribe to the Public issue of Multi Option Convertible Debentures (MOCD) to be issued by DLF Cements Ltd. to the extent of Rs. 3,33,54,000 out of the promoter's quota and within six months from the date of issue of MOCD, the respondent had to buy from the petitioner who was bound to dispose of its equity holding to the respondent or any other party nominated by the respondent, at the price which was to be calculated in the manner set out in para No. 8 of the agreement. Para 15 of the agreement provides for arbitration. Para 18 thereof which is material, provides as under:
“This agreement shall enure to the benefit of and shall be binding upon the parties hereto and their successors and assigns.”
6. Paras 3 and 4 of Supplementary agreement to share purchase agreement dated 4th February, 2000 executed in between DLF Industries Ltd. (Seller) and Gujarat Ambuja Cements Ltd. (Purchaser) (Copy Annexure R-II filed along with list of documents dated 6th January 2001) are reproduced below:
“(3) The seller has represented that though, Larsen & Toubro Limited (L&T), F.L Smidth & Co., A/s (FLS) and the Industrialization Fund for Developing Countries (IFU) who together hold equity shares of the face value of Rs. 10.00 crores approx. in the paid-up equity capital of the Company, are considered to be associates of the seller (as promoters of the Company), the Seller does not have any control over them and the agreements between the Seller and L&T dated May 16, 1994 (subscription agreement) and between the Seller, IFU and FLS dated April 12, 1994 (share purchase agreement) have been furnished to the purchaser.
7. The purchase shall take up all matters directly with FLS and IFU in relation to the share purchase agreement and with L&T in relation to the subscription agreement, as all rights, obligations and responsibilities for complying with the terms of the share purchase agreement and subscription agreement have been assumed by the purchaser and the purchaser will at all times keep the seller indemnified against all claims arising against the seller under the share purchase agreement and subscription agreement. The seller shall, however, cooperate with the purchaser and shall do such acts, deeds and things and execute such documents and writings as may be required by the purchaser in relation thereto.”
8. Order dated 8th August, 2000 passed in Company petition No. 58/2000 connected with Company Application No. 1765/99 (Copy Annexure R- I filed along with list of documents dated 6th January, 2001) would reveal that said DLF Industries Ltd. was amalgamated with DLF Universal Ltd. As the rights/obligations/responsibilities for complying with the terms of aforesaid subscription agreement dated 16th May, 1994 had been assumed by Gujarat Ambuja Cement Ltd. pursuant to said para 4, it being the successor and assigns of DLF Industries Ltd. needs to be impleaded as respondent in the petition. Since amalgamation of DLF Industries Ltd. with DLF Universal Ltd. was ordered subsequently on 8th August, 2000 the DLF Universal Ltd. could not have any rights/obligations/responsibilities under the said subscription agreement towards Larsen & Toubro Ltd. and, therefore, its impleadment is not necessary as a respondent. Needless to say that arbitration clause as contained in said subscription agreement will be binding on Gujarat Ambuja Cement Ltd., it being successor and/or assigns of DLF Industries Ltd.
9. Thus, while partly allowing the application, Gujarat Ambuja Cements Ltd. is directed to be impleaded as respondent No. 2 in the petition.
10. Amended copy of petition be filed by the petitioner within two weeks.
11. Application partly allowed.
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