Partly allowed

Speed Trade Securities Pvt. Ltd. v. Industrial Development Bank of India Ltd.

Bombay HC27 Jul 2012SJ/264/2010

Case brief

AI extract

What is this about?

In a summary suit filed by Speed Trade Securities to enforce Reserve Bank directives under a bank amalgamation scheme for payment of ex-dividend share value, the court held the suit was not maintainable under Order XXXVII CPC. The judge identified triable issues regarding the breach of priority right clauses in the original MOU and remanded the matter for trial.

What did the court decide?

Leave to defend the suit, direction to file written statement within 8 weeks, transfer to commercial causes, and summmons disposed.

Speed Trade Securities Pvt. Ltd. Vs… — Contract and Commercial Disputes | Bombay HC (2012)

kvm

SJ264_10

IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION

¶5

SUMMONS FOR JUDGMENT NO. 264 OF 2010 IN

¶6

SUMMARY SUIT NO. 2694 OF 2009

¶7

Speed Trade Securities Private Limited, ) having their registered office at ) 723/724, Arun Chambers, Pt.Malviya ) Marg, Tardeo Road, Tardeo, Mumbai - 34) ..... Plaintiffs

¶8

VERSUS

¶9

IDBI Bank Ltd. ) a Company incorporated under the ) Companies Act, 1956 (1 of 1956) and ) Banking Company within the meaning of) Section 5(c) of the Banking Regulation ) Act, 1949 (10 of 1949) having its registered) Office at IDBI Tower, WTC Complex, Cuff ) Parade, Colaba, Mumbai 400 005 ) ..... Defendants

¶10

Ms.Pooja Kshirsagar, i/b. Mr.Yogesh N.Adhia for the Plaintiffs.

¶11

Mr.Kevic Sethalvad, Senior Advocate with Mr.M.P.Rege, i/b. M/s.M.P.Rege & Co. for the Defendants.

¶12

CORAM : R.D. DHANUKA, J.

¶13

DATE : 27th JULY, 2012.

¶14

ORAL JUDGMENT :

¶15

The Plaintiffs have filed this suit based on directives issued by the Reserve

¶16

Bank of India contained in the Scheme of Amalgamation.

kvm

SJ264_10

It is the case of the Plaintiffs that one Maliram Makharia Finstock Pvt. Ltd. had approached the Plaintiffs for an advance of inter corporate deposit of a sum of Rs. 1,70,00,000/-. The said company pledged 7,10,000 equity shares of United Western Bank Ltd. On 5^th June 2006, the said Company and Rekha Makharia pledged additional 1,00,000 equity shares of United Western Bank in favour of the Plaintiffs and one Jawahar M.Shah, HUF. It is the case of the Plaintiffs that since the said company did not repay the advance to the Plaintiffs, on and from 4^th September, 2006, the Plaintiffs started selling the pledged shares of United Western Bank in the open market. The Plaintiffs sold 7,95,000 shares and realized an aggregate sum of Rs.1,32,75,373/-.

¶21

It is the common ground that on 12^th September, 2006, Reserve Bank of India announced Scheme of Amalgamation of United Western Bank with the Defendants which inter alia provided that the then shareholders of United Western Bank as on the prescribed date fixed as 3^rd October 2006 would be paid a sum of Rs. 28/- per share by the Defendants. It is the case of the Plaintiffs that the Plaintiffs could not sale the balance 15000 shares out of the shares pledged by the said company and thus became entitle to recover a sum of Rs.28/- per share from the Defendants in respect of the said holding of 15000 shares on the prescribed date from the Defendants under the said Scheme of Amalgamation and directives issued by the Reserve Bank of India.

kvm

SJ264_10

The Plaintiffs issued a legal notice on 28^th November, 2006 and 23^rd January, 2007 calling upon the Defendants to pay the said sum according to the directives issued by the Reserve Bank of India. The Defendants by their letter dated 28^th February, 2007 denied the demand.

¶26

The Learned Counsel appearing for the Plaintiffs made the following

¶27

submissions :-

¶28

(a) The suit is filed on the basis of the directives of

¶29

Reserve Bank of India which provided that registered share holders of United Western Bank on 3^rd October, 2006 would be paid a fix sum by the Defendants. According to the Learned Counsel, these directives issued by the Reserve Bank of India was a contract and an assurance given by the Reserve Bank of India.

¶30

(b) M/s.Maliram Makharia Finstock Pvt. Ltd. had sold

¶31

the pledged shares in breach of MOU, remedy of United Western Bank was against the said company and refusal on the part of the United Western Bank to pay on that ground is contrary to the directives issued by the Reserve Bank of India.

kvm

SJ264_10

On the other hand, the learned Senior Counsel appearing on behalf of the Defendants submitted as under :-

¶36

(a) The summary suit is not maintainable as by the present suit, the Plaintiffs is seeking enforcement of the Scheme sanctioned under Section 391 of the Companies Act, 1956. Any dispute arising out of the same can be agitated only before the Company Court under Section 392 of the Companies Act, 1956 which had sanctioned such Scheme under Section 391 of the Act.

¶37

(b) Summary suit is also not maintainable on the ground that the directives issued by the Reserve Bank of India does not fall under Order XXXVII Rule 1 (2) (a), (b). According to the Learned Senior Counsel, there is no written contract between the Plaintiffs and the Defendants. Directives issued by the Reserve Bank of India is not an enactment.

¶38

(c) The Learned Senior Counsel placed reliance on letter dated 28^th February 2007 addressed by the Defendants to the Plaintiffs. The Defendants had denied

kvm

SJ264_10

their liability relying upon MOU dated 26^th November, 2002 between the United Western Bank and Makharias. It was contended by the Defendant Bank that under the said MOU, Makharias were neither supposed to create third party interest nor sell the shares without the permission of United Western Bank and in case the shares were sold, the proceeds thereof were required to be credited to the defaulting accounts of Makharias with United Western Bank.

¶43

(d) The Learned Senior Counsel relied upon writing dated 26^th November, 2002 between Makharias and United Western Bank Ltd. and more particularly clause 7(A) which reads thus :-

¶44

(A) It is agreed by Makharias that during the 10 years period from the date of settlement, the nominees of the Bank will be entitled for preemption in respect of transfer of any shares from Makharias to any person either in physical form or demat form. That means as and when Makharias would desire to dispose of any of their investment, such shares would first be offered to the nominees of the Bank and if not accepted by the nominees of the Bank then only they may be sold to any other person on the same terms and conditions on which such shares were first offered to the nominees of the Bank.

kvm

SJ264_10

Relying upon this Clause, the Learned Senior

¶49

Counsel submitted that if Makharias would have desired disposal of any of their investment, such shares would have been offered to the nominee of the bank first before selling in open market. It is submitted that the Plaintiffs had committed breach of the said clause.

¶50

It is common ground that United Western Bank had amalgamated with Defendant bank and the Plaintiff is seeking enforcement of such directives issued by the Reserve Bank of India pursuant to such amalgamation. In my opinion, remedy of the Petitioner would be to file appropriate proceedings by taking a recourse to Section 392 of the Companies Act, 1956. Under Section 392, the company court has power to supervise the carrying out of the compromise or an arrangement. Considering the provisions of Order XXXVII Rule 1 Sub Rule 2 (a) and (b), it is clear that the directives issued by the Reserve Bank of India cannot be construed as the written contract or an enactment for recovery of debt or liquidated demand. In my opinion, suit thus filed by the Plaintiff is not within the ambit of Order XXXVII, Rule 1 and 2.

¶51

In my opinion, Defendants have raised triable issues which are required to

¶52

be adjudicated at the time of trial of the suit. I therefore, pass the following

kvm

SJ264_10

order:-

(a) Defendant is granted unconditional leave to

¶58

defend the suit,

¶59

(b) Written statement is directed to be filed within eight weeks from the date of this order.

¶60

¶61

(d) Suit is transferred to the list of commercial causes.

¶62

(e) Summons for Judgment is disposed of accordingly.

¶63

(f) There shall be no order as to cost.

Speed Trade Securities Pvt. Ltd. v. Industrial Development Bank of India Ltd.

Case brief

What is this about?

What did the court decide?

Speed Trade Securities Pvt. Ltd. v. Industrial Development Bank of India Ltd.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Coram

Case details

Similar cases

Machinfabrik Vs Biovet Pvt. Ltd. and Anr.

Machinfabrik Vs Biovet Pvt. Ltd. and Anr.

Shri Milind Shripad Chandurkar Vs Shri Kalim Ahamad M. Khan

M/S Mangla International Pvt. Ltd. and 4 Ors. Vs Mid Day Multimedia Ltd.

M/S Mangla International Pvt. Ltd. and 4 Ors. Vs Mid Day Multimedia Ltd.

Speed Trade Securities Pvt. Ltd. Vs Maliram Makharia Finstock Pvt. Ltd.