Jean Lavabre Dominique vs Voyager Hotels And Motels Pvt. Ltd

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NATIONAL COMPANY LAW APPELLATE TRIBUNAL PRINCIPAL BENCH NEW DELHI COMPANY APPEAL (AT) NO.101 OF 2023 (Arising out of judgement and order dated 02.03.2023 passed by National Company Law Tribunal, Jaipur Bench in CA No.46 of 2010 in CP No.01(ND)/2009. In the matter of: Jean Lavabre Dominique Through its Authorized representative Shri Aslam Naushad R/o 21 OTC, B Block, 80 Feet Road Paliwl Bhawan, Sajjan Nagar, Udaipur Rajasthan Appellant

Vs

1. Voyager Hotels and Motels Pvt Ltd, 8, Jethion Ka Akhada, Chauhano Ki Gali Outside Chandpole, Udaipur 313001 Rajasthan Respondent

2. Jaideep Singh Chandela, 8 Jethion Ka Akhada Chauhano Ki Gali Outside Chandpole, Udaipur 313001 Respondent No.2

For Appellant:Mr Deep Bisht, Advocate. For Respondent:Ms Stuti Vatsa and Mr. Govind, Advocates. JUDGEMENT

JUSTICE YOGESH KHANNA, MEMBER (JUDICIAL) 2

This appeal is filed against an impugned order dated 02.03.2023 passed

by the Ld. National Company Law Tribunal, Jaipur Bench in CA

No.40/JPR/2022 in CP No.01/(ND)/2009.

2. It is the grievance of the appellant the Ld. NCLT has erred in granting

simple interest @ 6% per annum instead of 18% as was prayed by the Appellant

in CA No.46/2010 and further the Ld. NCLT has erred in granting interest only

for a random period i.e. from 07.01.2022 till 28.02.2023 in its discretion.

3. Briefly, the facts as narrated by the Appellant are:

a) The Appellant had filed a Company Petition No. 01 of2009 under Section

397,398,402 and 403 read with Section 408 of the Companies Act, 1956

before the Hon'ble Company Law Board (' CLB');

b) on 08.09.2009, due to the efforts of the then Hon'ble Chairman, a

settlement between the Appellant and the Respondents was arrived at and

the Board was pleased to record the settlement in its order dated

08.09.2009;

c). as per the settlement recorded vide order dated 08.09.2009 of the

Erstwhile Company Law Board, the Appellant agreed to go out of the

Company on receipt of Rs. 285 Lacs plus the Haveli premises and it was

agreed that the amount will be paid in one go;

d) the Respondents sought time to indicate when the payment could be

made. The matter was fixed for reporting on 17.09.2009. The Respondent

made a proposal to make payments in installments up to 15.04.2010. Such 3

proposal was neither envisaged nor agreed and hence the Appellant

rejected the same out rightly;

e) the Respondent also made reconstitution of board of directors as a pre-

condition to payment and transfer of Haveli, which was never agreed upon

between the parties. It was a vain attempt on the part of the Respondent to

wriggle out of the settlement arrived at and recorded in order dated

08.09.2009;

f). the Appellant was constrained to file Company Application CA No. 46 of

2010 before the erstwhile Company Law Board under Section 634A of

Companies Act, 1956 for enforcement of the order dated 08.09.2009 passed

by the erstwhile Company Law Board and inter alia prayed for directions to

the Respondent to make payment of agreed sum of Rs. 285.00 lacs in one

go and transfer Haveli Premises to the Appellant. The Appellant claimed

interest on the amount due to be paid @ 18% from the date of settlement till

date of payment;

g). it is alleged the order dated 08.09.2009 has attained finality and has to

be enforced, executed and implemented w.e.f. 08.09.2009. In other words,

the amount to be paid by the Respondent became due to the Appellant on

08.09.2009 and hence the prayer of the Appellant to allow interest @18%

from 08.09.2009 till the date of payment is reasonable and justifiable;

h). besides, implementation of the settlement terms for payment of Rs. 285

Lacs and transfer of Haveli premises, the Appellant prayed for payment of

interest @ 18% per annum on the amount due to be paid to the Appellant 4

from the date of settlement till the date of payment. The erstwhile Company

Law Board in its order dated 04.11.2010 held that enforcement of part

decree cannot be sought under Section 634A;

i). aggrieved by the order of 04.11.2010 of the Board, the Appellant filed an

appeal bearing Company Appeal No. 0112011 under Section 10F of the

Companies Act, 1956 before the Hon'ble Rajasthan High Court;

j). the Hon'ble Rajasthan High Court vide its order dated 04.04.2018 set

aside the order dated 04.11.2010 passed by the Company Law Board and

passed the following order:

Para 22: In the result, the appeal succeeds, it is hereby allowed. The order impugned dated 04.11.10 passed by the Company Law Board, New Delhi Bench, New Delhi in Company Petition No. 1(ND)/2009 is set aside. The Company Law Board is directed to enforce the order dated 08.09.09 treating the terms thereof regarding the Appellant going out of the Company on payment of Rs. 2.85 crores in one go and giving away of the Haveli premises by the respondents to the Appellant as binding upon the parties. No order as to costs. The Appellant was effectively put back in the original position as he was in 2009;

k). it is alleged effect of order dated 04.04.2018 of Rajasthan High Court is

that the settlement stood re-instated w.e.f. 08.09.2009. In other words,

Respondent No.2 was to be out of pocket by bringing in the amount of Rs.

2.85 Crores in 2009 itself. It is alleged the Respondent No.2 has enjoyed the

time value of money during this period and the fairness equity and justice

demands the Petitioner should be allowed interest of 18% w.e.f. 08.09.2009.

The payment of interest is justified on the ground the Appellant will go out

of company and the Respondent No.2 would exclusively enjoy the benefit of 5

accretion/increased valuation of the property of the company which will

tantamount to unjust enrichment of Respondent No. 2 at the cost of the

Appellant. It is a matter of common knowledge that the value of the property

of the Company, the exclusive control of which will lie with the Respondent

No.2 has increased tremendously since last 13 years from 2009 to 2022. It

is fair that Appellant should also be paid a proportion of accretion in the

value of the property of the Company.

l). consequent, upon the order of the Hon'ble Rajasthan High Court, the

Appellant filed Company Application No. 363(PB)/2018 (TA No. 04/2018)

before the National Company Law Tribunal, Principal Bench, which had the

jurisdiction, at that relevant point of time, of the matters of the state of

Rajasthan for restoration of CA No. 46/2010. Subsequently, upon

constitution of Jaipur bench of NCLT, the entire matter was transferred to

the Jaipur Bench and the Appellant's CA No. 363(PB)/2018 was

renumbered as Transfer Application 04/2018.

4. The argument of the learned counsel for the appellant is firstly vide the

impugned order, the Ld. NCLT in its discretion had reduced the interest, though

claimed @ 18% and secondly it had granted interest only for a particular period

based upon the following logic as has been stated in para 9.5 and 9.6 of the

impugned order as under:

9.5 The Petitioner has filed CA 40 of 2022 on 16.07.2022 under Rule 11 of the NCLT Rules 2016 and sought direction from the Bench to the respondent to deposit the amount of Rs. 2.85 Crore along with interest @ 18% from 08.09.2009. We don't find any 6

merit in the prayer with regard to payment of interest from 08.09.2009 as it is found that the Petitioner did not accept the offer of payment of Rs 285.00 lacs in instalments by 15.04.2010 but rather insisted for receipt of the entire amount in one go in Sept' 2009 itself. Thereafter, the Petitioner filed a Company Application No. 46 of 2010 before the CLB under Section 634-A for enforcement of its order passed on 08.09.2009 which was dismissed. Again, the Petitioner filed an appeal no. 1 of 2011 under Section 10F of the Companies Act, 1956 before the Hon'ble Rajasthan High Court and the Hon'ble Rajasthan High Court vide its order dated 04.04.2018 set aside the order dated 04.11.2010 passed by the Company Law Board and by then the Company was struck off and stay from the CLB on Board Meeting is in operation. The Petitioner went on filing cases and the matter was subjudice. The Hon'ble High Court has not mentioned anything about interest.

Hence, the prayer made by the Petitioner under these circumstances and at this stage for interest from 08.09.2009 is not justified. However, it is also fact that there is a time value of money. Hence, in the interest of justice, we consider it appropriate that the respondents have to pay interest on Rs 2.85 crore at simple 6 % interest per annum from 07.01.2022 till 28.02.2023 which comes to Rs 19,50,883.00. Hence, this CA 40 of 2022 on 16.07.2022 is admitted to the extent of payment of interest Rs 19,50,883.00 only and disposed of.

9.6 The R2 is directed to pay Rs. 3,04,50,883.00 to the Petitioner as full and final settlement through the account of R1 Company to the account of the Petitioner by 31.03.2023.

5. The Learned Counsel for the Respondents, on the other hand, submitted

that Ld. CLB had directed payment of INR 2.85 crore. The Ld. NCLT had

considered the time value of money and in the interest of justice vide impugned

order rewarded the Appellant with simple interest @ 6% per annum to be

computed from 1st January, 2022 to 28th February, 2023, amounting to INR

19,50,883. It was submitted as per the consent order and the impugned order,

the Appellant had already paid an amount of INR 3,04,50,883 being principal

amount of INR 2.85 crore and simple interest of INR 19,50,883 and the Haveli

premises has been transferred and the transfer deed has been executed on 7

25.03.2023. It was submitted now nothing remains to be paid and the appeal

deserves to be rejected.

6. Heard.

7. We have also gone through the settlement so recorded per order dated

08.09.2009 by the CLB as under:-

"The parties have agreed that the petitioner will go out of the company on receipt of Rs.285 lacs plus the Haveli premises. This amount will be paid in one go. Respondent seeks time to indicate when they could make the payment after consulting their banker. To report on 27.08.2009 at 4 PM. The amount agreed to and giving away the Haveli bind the parties.

8. On going through the facts and settlement so arrived at between the

parties, we are of the view it was agreed between the parties the amount of

Rs.285 lakh was to be paid in one go but the respondent on 08.09.2009 sought

time to indicate when they could make the payment after consulting their

bankers and were to report on 17.09.2009. However, they later started backing

out from the settlement and wanted to pay entire amount in instalment and

rather made a proposal to make payments in such instalments upto 15.04.2010.

Admittedly such proposal was neither acknowledged nor agreed to by the

appellants. In any case if the respondent had any intention to make payment

even in instalments they could have easily made it till 15.04.2010 but did not do

so and rather took resort to litigating inter-se. Admittedly the litigation was only

to the extent of interest.

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9. Admittedly now since the amount of Rs.285 lakh stood paid, hence the

only question to be decided is if the appellant is entitled to receive interest for

the intervening period and if yes, at what rate. Since now much time has lapsed

so we are not inclined to change the rate of interest as was awarded by the Ld.

NCLT vide the impugned order but certainly we are not satisfied with the finding

of the Ld. NCLT that the appellant is entitled to interest only for the period from

07.01.2022 till 28.02.2023 on the ground the appellant did not accept the offer

of payment of Rs.285 lakhs in instalment by 15.04.2010 and rather insisted for

payment in one go. The Ld. NCLT despite being aware of the order dated

08.09.2009 where the respondent had agreed to make payment in one go yet

awarded interest only for a limited period and without any cogent reasoning.

Admittedly the respondent was at fault as it did not make the payment per

settlement dated 08.09.2009. Further even if the case of the Respondent is to

be admitted then also, in any case the respondent was bound to clear the amount

even in instalments, by 15.04.2010. Clearly the respondents were at fault w.e.f.

15.04.2010 hence in our considered opinion the respondents are liable for

payment of interest from 16.04.2010, if not from 08.09.2009. Thus the impugned

order of the Ld. NCLT, awarding interest between 07.01.2022 to 28.02.2023 to

our mind is without any basis and hence we set aside the impugned order to this

extent and hold that the respondents to pay simple interest @ 6% p.a. w.e.f.

16.04.2010 till the day the amount Rs.285 lakh stood deposited. Of course, the

interest, if paid during the intervening period, need to be deducted from

calculations.

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10. With these observations the appeal stands disposed of.

11. Pending applications are also disposed of.

(Justice Yogesh Khanna) Member (Judicial)

(Mr. Ajai Das Mehrotra) Member (Technical)

(Mr Arun Baroka) Member (Technical) Dated: 19-08-2025

BM