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Judgment
S.
No.",Property,Allocated to,"Corresponding
Clause",,
1,"B-113, 114, 115, 131, 132,
Sector 6, Noida owned by
DBC to remain with Mr.
Deepak Beri",-,Clause 2 of the MoU.,,
2,"C-27, Sector 59, Noida
belonging to DBEPL*","Mr. Deepak Beri for
the operations of his
concern SKB.","Clauses 2 and 16 of
the MoU.",,
3,"A-32, Sector 64, Noida,
belonging to DBEPL","Mr. Deepak Beri for
the operations of his
concern SKB.","Clause 2 and 16 of the
MoU.",,
4,"A-119, Okhla Phase-II,
belonging to SKB to remain
with Mr. Deepak Beri",-,Clause 2 of the MoU.,,
5,"B-1, Sector 68, Noida
belonging to DBEPL to
remain with Mr. Atul Beri.",-,Clause 4 of the MoU.,,
6,"F-61, Sector 11, Noida
belonging to DBEPL to
remain with Mr. Atul Beri.",-,Clause 4 of the MoU,,
7,"C-57, Phase-II, Noida
belonging to BMGL to
remain with Mr. Atul Beri*",-,Clause 4 of the MoU,,
8,"Plot at C-12, Ecotech-11,
Greater Noida","Mr. Atul Beri for the
use of his concern
BMGL",Clause 4 of the MoU,,
* Since the unit at these premises was to be made functional, Mr. Atul Beri had to be
paid a sum of INR 7.50 crores in tranches for that purpose under Clause 5 of the
MoU. He was also to be paid a sum of INR 1 crore under Clause 15 of the MoU to
compensate for the difference in valuation of the assets allocated to him and his
brother.",,,,,
to transfer some amounts to his personal accounts and those of his son. Accordingly, this Court appointed a Court Commissioner and a Chartered",,,,,
Accountant to inspect and file a report on all the premises owned by the four family concerns as also the LLP privately owned by Mr. Deepak Beri.,,,,,
The Court Commissioner initially filed interim reports on 17.01.2017, 14.04.2017, 25.04.201, which were followed by a comprehensive final report filed",,,,,
on 15.05.2017, setting out the status of inter alia accounts, records pertaining to statutory liabilities, inventory of pending orders, stocks, plants &",,,,,
machineries, raw materials, employees in the different businesses and the premises as well. The data in this report was to include a separate list of",,,,,
machines which were earmarked to be transferred to the other units/entities in terms of the settlement agreements. Notwithstanding the submission of,,,,,
these reports, the matter remained pending and on 01.11.2018, this Court once again observed that the best way to proceed further in the matter was",,,,,
to ensure division of assets in terms of the award. Apparently, barring the inspections carried out in the years 2017 and 2018, the premises of these",,,,,
four business entities have never been inspected. Therefore, today, the parties remain at the same position as they were at the time of filing of these",,,,,
enforcement petitions.,,,,,
In support of his case that the separation of the assets and businesses is yet to take place in terms of the settlement agreements, learned senior",,,,,
counsel for Mr. Deepak Beri, Mr. Sandeep Sethi has made the following submissions -",,,,,
i. With passage of time, Mr. Deepak Beri realised that Mr. Atul Beri was siphoning off assets of the family businesses. This led to friction between",,,,,
the brothers and they could no longer carry on the family businesses together. As a result, they were constrained to contemplate partition of the family",,,,,
concerns and, to that effect, executed the arbitration agreement on 20.01.2016. This brought in Mr. Nagrath to mediate the disputes between them,",,,,,
which led to the execution of the three agreements forming the family settlement today. These three agreements, undoubtedly, contemplated division",,,,,
of the assets, which division was then to be followed by a complete separation, to be effected as per the steps postulated in the agreements and",,,,,
preceded the separation. These agreements also display that the intent of the parties was to pool the assets of the family business and then divide,,,,,
them equally between the two brothers, while the father remained equal shareholder/partner in all the business entities. When the parties were",,,,,
drawing up the MoU and minutes of meeting on 17.02.2016 and 14.03.2016 respectively, they fixed dates for effecting various steps towards",,,,,
separation including preparation of inventory of raw material, stock and machinery, division of employees and logos etc., as they were hopeful that by",,,,,
the time the final document, i.e., the deed was executed on 30.04.2016, the division would have taken place and a smooth separation would thereafter",,,,,
follow. Unfortunately, by the time the Deed was signed on 30.04.2016, the parties had realised that it was not possible to adhere to the dates agreed",,,,,
upon, which then inspired the final clause (34) in the Deed which states that this date was variable. However, the parties were always ad idem that till",,,,,
division takes place according to the various steps envisaged in the three agreements, there was no question of any separation between them. This",,,,,
common intent of the parties can be easily gleaned from the language of the three settlement agreements. Further, in the light of the decisions in",,,,,
Bhavan Vaja & Ors. Vs. Solanki Hanuji Khodaji Mansang & Anr. (1973) 2 SCC 4 0and Deep Chand & Ors. Vs. Mohan Lal (2000) 6 SCC 25,9 it is",,,,,
settled that this Court, as an executing court, has to consider the true effect of the three agreements in the light of all surrounding circumstances rather",,,,,
than arriving upon its decision on mere technicalities. Moreover, considering the decisions in Kale & Ors. Vs. Deputy Director of Consolidation &",,,,,
Ors. (1976) 3 SCC 119 and Hari Shankar Singhania Vs. Gaur Hari Singhania & Ors. (2006) 4 SCC 65 8o,ne has to bear in mind that these",,,,,
agreements are essentially family settlements which are placed on a far different footing than commercial agreements. Thus, rather than adopting a",,,,,
hypertechnical consideration while regarding them, these agreements and the terms thereof should be given effect to in letter as well as spirit. On",,,,,
doing so, it would become apparent that the parties had agreed to first divide and separate the businesses, following which they would recognise and",,,,,
appoint a date of separation. Thus, they had always intended to undertake physical division of the businesses first and follow it up by agreeing upon a",,,,,
Date of Separation. This implies that despite the date of 30.06.2016 being mentioned in all the three settlement agreements, this was purely a tentative",,,,,
date. The prayer of Mr. Atul Beri seeking for a declaration from this Court that the Date of Separation had been set out as 30.06.2016 under the,,,,,
agreements is in blatant contravention of the terms of the settlement agreed upon between the parties. The settlement agreements contemplate a,,,,,
separation in presenti and not in relation back to a purportedly agreed Date of Separation. If this Court were to adopt the interpretation supported by,,,,,
Mr. Atul Beri and hold that the agreements contemplate a Date of Separation to be fixed first, which would then be followed by distribution and",,,,,
separation of assets with reference to an earlier date, the same would be at divergence with the settlement sought to be enforced in these",,,,,
proceedings.,,,,,
ii. Contrary to the submissions of Mr Atul Beri and Mr. S.K. Beri, no division has taken place since the parties have not even completed the major",,,,,
steps required to be taken towards separation. The three agreements are self-explanatory in that each of them requires the parties to complete certain,,,,,
steps by certain dates, all of which are much prior to 30.06.2016. However, since a majority of these steps have not been effected, there is no",,,,,
question of a Date of Separation coming into play. Even an affidavit filed by Mr. Atul Beri in the Section 9 petition state that most of the steps,,,,,
required to be taken for the division have not yet taken place and, thus, even he has admitted that no separation has taken place. The fact that no",,,,,
separation has taken place is also evident from the various orders passed by this Court during the hearing of the present petitions. To begin with, on",,,,,
15.12.2016, not only had the Court asked the parties to suggest steps which were yet to be carried out to effectuate the division, but it had also",,,,,
appointed a Court Commissioner and Chartered Accountant on 03.01.2017 in order to prepare a complete inventory of the raw materials, stocks,",,,,,
employees, logos, etc; however, in none of these orders did the Court direct any of the processes to be effected keeping in mind the Date of",,,,,
Separation as 30.06.2016, yet Mr. Atul Beri did not assail these orders on that ground. Next, the report eventually filed by the Court Commissioner on",,,,,
15.05.2017 shows that Mr. Atul Beri had tried to obstruct the Court Commissioner and, clandestinely, shifted goods and machinery for his benefit from",,,,,
one business premises to another. That apart, this report also happened to be the most comprehensive exercise with respect to the businesses in",,,,,
question and also showed that the division is yet to take place. In fact, when the parties were unsuccessful in their original intent to separate by",,,,,
30.06.2016, they were hit by a deluge of litigations instituted by Mr. Atul Beri before this Court against the award dated 02.08.2016 [OMP(COMM.)",,,,,
396/2016], which further delayed implementation of the award and the formal partition of the family businesses. As on date, post-award, Mr. Deepak",,,,,
Beri has only received 10% of the assets falling in his share under the settlement while Mr. Atul Beri has been using the remaining assets, which has",,,,,
caused irreparable loss to Mr. Deepak Beri. Thus, if this Court were to pay heed to the steps effected by the parties so far, it would be evident that",,,,,
Mr. Deepak Beri has not even received his half of the share in the family businesses. Any claims of Mr. Atul Beri to the effect that most of the steps,,,,,
towards separation have been carried out are completely baseless, unsubstantiated and devoid of material proof. To make matters worse, over the",,,,,
past four years, Mr. Atul Beri has made huge profits by using the assets, more particularly, the machinery and premises which were to come to Mr.",,,,,
Deepak Beri’s share and moved some of this machinery to his personal entities. Owing to the unrestrained scheming of Mr. Atul Beri, Mr.",,,,,
Deepak Beri has suffered an estimated loss in profits/business to an approximate tune of Rs.64 crores, which ought to be recovered from Mr. Atul",,,,,
Beri after directing him to hand over 50% of family assets to Mr Deepak Beri in accordance with the family settlement arrangement, the value",,,,,
whereof should be approximately Rs.130 crores. Having wrongfully continued to hold on and profit from assets of the family businesses which were,,,,,
never his and deprived Mr. Deepak Beri of his share thereto for the last four years, it is not open for Mr. Atul Beri to now contend that the division",,,,,
has already taken place from a backdated Date of Separation. Rather, the award ought to be executed immediately since Mr. Atul Beri is continuing",,,,,
to enjoy the assets which fell in the share of Mr. Deepak Beri as per the terms of the three family settlements. For all these reasons, this Court must",,,,,
appoint a Court Commissioner in order to freshly ascertain the status of assets of the family concerns and draft a plan to divide them in terms of the,,,,,
agreements between the parties. Considering the large scale siphoning off of funds and assets by Mr. Atul Beri, it is further prayed that this Court be",,,,,
pleased to direct a forensic audit to be conducted into the finances and assets of the family businesses, as they existed on 30.06.2016.",,,,,
On the other hand, Mr.Arun Kathpalia, learned senior counsel appearing for Mr. Atul Beri has made the following submissions:",,,,,
i. A cumulative reading of the three settlement agreements shows that the process of separation which began with the MoU on 17.02.2016 was to end,,,,,
on 30.06.2016 with a final separation of all business, whereafter the businesses would retain independent existence. The very first document, i.e., the",,,,,
MoU refers to the date of separation as 30.06.2016 during the course of the document. Although the Minutes contemplated a separation by March-,,,,,
April 2016, when this could not come to pass, the Deed stepped in to provide the last date of separation as 30.06.2016. This date of 30.06.2016 has",,,,,
been referred to as a ‘fixed’ date of separation in the Deed, which meant that it could never be changed, except at the instance of the",,,,,
arbitrator, Mr. Nagrath. Based on these terms, when the award was finally passed on 02.08.2016 by the learned Arbitrator, he also did not bother to",,,,,
change the date of separation in his award, which meant that the date had become binding on the parties with immediate effect. By relying on the",,,,,
decision in M/s Creative Travels Pvt. Ltd. Vs. Joginder Singh Palta 1994 (28) DRJ (DB, i)t is submitted that the consent of the parties on the aspect",,,,,
of this date of separation, as gleaned from the settlement agreements, assumes primacy and cements its binding nature. That was only strengthened",,,,,
further by the award passed by the learned Arbitrator. Therefore, at this stage, when the parties are merely seeking enforcement of the family",,,,,
settlement agreements, this Court cannot deviate from the general consensus of the parties contained in those agreements. Reliance has been placed",,,,,
on the decisions in C.F. Angadi Vs. Y.S. Hirannayya (1972) 1 SCC 1914 ,Gurdev Singh Vs. Narain Singh (2007) 14 SCC 173 D, eepa Bhargava Vs.",,,,,
Mahesh Bhargava (2009) 2 SCC 294 ,and State of Punjab vs. Krishan Dayal Sharma (2011) 11 SCC 212, to submit that once the deed of",,,,,
arrangement clearly demarcated 30.06.2016 as the date of separation, or any other date to be decided by the learned Arbitrator, an executing Court",,,,,
cannot embark on the process of fixing a new cut-off date. In fact, as per an express stipulation contained in the Deed, the only way for the parties to",,,,,
alter this date was by approaching the learned Arbitrator who was the only entity empowered under the settlement agreement to make a,,,,,
‘decision’ and set down further terms and conditions on this aspect. Thus, it was incumbent upon Mr. Deepak Beri, who was under the",,,,,
purported belief that separation had not taken place, to approach the learned Arbitrator at any time before the award was passed on 02.08.2016 to",,,,,
have a date of separation fixed. In the alternative, when this Court was dealing with the Section 34 petitions, Mr. Deepak Beri ought to have sought",,,,,
remittance of the award to the learned Arbitrator for fixing of a fresh cut-off date by moving an appropriate application under Section 34(4) of the,,,,,
Act. However, Mr. Deepak Beri neither moved an application seeking change of date before the learned arbitrator before or after the passing of the",,,,,
award nor has he challenged the award on this ground till date. By placing reliance on the decision in Barkat Ali & Anr. Vs. Badrinarain (Dead) by,,,,,
LRs (2008) 4 SCC 615), it is submitted that since Mr. Deepak Beri had made no such plea either before the learned Arbitrator or before the Court, he",,,,,
cannot now deny that that the separation did not take place on 30.06.2016 or that the date of separation was not sacrosanct. Be that as it may, it is a",,,,,
fact that Mr. Deepak Beri has categorically admitted in Paragraph 7 of his Section 9 petition OMP(I)(COMM)326/2016 filed before this Court that as,,,,,
per the memorandum of understanding, the date of separation was to be 30.06.2016. Rather, all pleadings of Mr. Deepak Beri reveal that even as per",,,,,
his understanding, the date of separation was 30.06.2016. This, in itself, is further proof of the fact that the Date of Separation was always",,,,,
30.06.2016.,,,,,
ii. Not only did the parties agree upon 30.06.2016 as the date of separation but they also effectively separated on this date, albeit they left a few minor",,,,,
steps to complete the process. The brothers’ reason for executing the memorandum of understanding on 17.02.2016 was to facilitate a peaceful,,,,,
separation of the businesses by envisaging seamless division of the following major business components:,,,,,
A. immovable and movable assets, including plant, machineries and the eight premises.",,,,,
B. employees,,,,,
C. customers/orders,,,,,
D. intellectual property, including software and logos Thus, on 17.02.2016 itself, they were conscious that the businesses sought to be divided were live",,,,,
businesses with various long standing customers and, therefore, the separation had to be carried out delicately to ensure that no harm would be caused",,,,,
to any of the concerns. On 14.03.2016 when the minutes of the meeting were recorded, it was resolved to divide the plants, machineries, staff, logos,",,,,,
and pending orders amongst the two brothers. It was also resolved to send a common e-mail to all customers about the impending separation, which",,,,,
was carried out. Ultimately, they were hoping that all these steps and efforts they were taking would result in a peaceful separation by 30.04.2016.",,,,,
When this did not come to pass, they executed the Deed on 30.04.2016 which exclusively catered to the transition period, i.e., the short intervening",,,,,
period of two months between 01.05.2016 and 30.06.2016. They were hoping to spend this period finalising and completing the steps required for,,,,,
eventual separation and had placed an embargo on themselves from engaging in negative marketing with respect to any business entity falling in the,,,,,
share of either brother or inform the clients of the impending separation at that stage. Both brothers were given independence in operation during this,,,,,
period insofar as the orders and marketing was concerned, however since they were sharing the available raw material till 30.06.2016, they were",,,,,
obligated to share all documents in this respect and maintain transparency in their records with respect to the orders received from the period between,,,,,
01.05.2016 and 30.06.2016. To further their independent operations, the brothers also divided all serving employees between them w.e.f. 01.05.2016.",,,,,
Pursuant to 30.06.2016, since both brothers have been carrying out their businesses not only independently, but also in competition with each other, the",,,,,
separation can be regarded as already having taken place. However, the following minor steps in this regard have been left incomplete on account of",,,,,
the non-cooperation of Mr. Deepak Beri:,,,,,
(i) Formal documentation has not been completed,,,,,
(ii) Small component of assets which are left to be divided,,,,,
(iii) Account statements have not been drawn up. Thus, merely because some minor steps remained incomplete or because Mr. Deepak Beri had",,,,,
refused to comply with his obligations under the settlement, cannot be a ground to deny the established fact that the parties had agreed to treat",,,,,
30.06.2016 as the official date of separation.,,,,,
iii. In furtherance of the aforesaid contention, it is submitted that the separation was not only envisaged, but has also been mostly effected with a few",,,,,
minor steps remaining in the process to conclude their settlement. The brothers have indeed been operating their businesses independently of each,,,,,
other, in accordance with the three agreements, which is evident from the following facts:",,,,,
A. Being a practice which began during the transition period, the brothers have not had visibility with respect to each others’ businesses and have",,,,,
been handling clients and executing/seeking orders independently of each other. After crossing the mark of 30.06.2016, their businesses have gone",,,,,
their separate ways, are no longer transparent to each other and, rather, are in competition as on date. Even the sales and marketing teams of the",,,,,
business entities stood divided between the brothers and operate separately as on date.,,,,,
B. An important stipulation under the settlement was that Mr. Deepak Beri was prohibited from using the brand ‘Atlas Knives’ for a period of,,,,,
two years from the date of separation, which he did and has now admittedly begun using the brand once again, which is tacit proof of the separation.",,,,,
C. The white collar employees were divided in accordance with the terms of the settlement by giving them an option to choose whether they wanted,,,,,
to work for Mr. Atul Beri or Mr. Deepak Beri. Consequently, the employees stood divided and were sent to work in the entities run by the brother of",,,,,
their choice. This is evident from the fact that erstwhile DBEPL employees, who opted to work in the businesses falling in the share of Mr. Deepak",,,,,
Beri, viz. Mr. Rohit Bakshi, Mr. Raman Raina and five other persons, have been sending email correspondences on behalf of M/s. Marvel Interiors",,,,,
and Traders Pvt. Ltd., an independent business entity run by Mr. Deepak Beri.",,,,,
D. Although the settlement granted Mr. Atul Beri a sum of Rs.7.5 crores to set up a functional unit in BMGL, this amount has not been paid and,",,,,,
therefore, even though the premises at Sector-64 which were to go to the share of Mr. Deepak Beri has not been handed over to him, he has been",,,,,
carrying out independent business in other three premises i.e. A-99, Okhla Industrial Area, Sector-6, Noida, Section-59, Noida. Mr. Deepak Beri is not",,,,,
only carrying out the business of SKB and DBC, but he is also heading the businesses being run by his son in the very same premises.",,,,,
E. Further, from a reading of clauses 1, 3, 4, 5, 7 to 9, 13 to 17, 19 to 28, 34, 35 and 38 of the MoU, it is evident that the parties had envisaged that in",,,,,
the transition period preceding 30.06.2016, all transactions carried out by any of the family businesses were to be recorded in the books of accounts of",,,,,
the concerned entity with the approval of all the four parties i.e. the two brothers, their father and the Arbitrator. It is also evident that the parties",,,,,
agreed to share all expenses, profits and assets till they were jointly conducting the businesses, whereafter they would carry out the businesses",,,,,
separately. Today, the brothers neither share the expenses of their respective businesses nor record the transactions in the arrangement as set out by",,,,,
them. Thus, since most of the steps towards separation as set down by the agreements have been effected, the separation is in effect for all intent and",,,,,
purposes. In this regard, reliance has been placed on the decisions in Re: Cumana Ltd.[1986] BCLC 430, Scottish Wholesale Cooperative Society Vs.",,,,,
Meyer & Anr. [1959]A.C.324. Even though, the assets stand largely divided, there is one major step which still needs to be carried out as on date, i.e.,",,,,,
for the parties to draw up accounts as on 30.06.2016. Mr. Atul Beri has prayed for the appointment of a Court Receiver to draw up the accounts of,,,,,
all the business entities as they existed on 30.06.2016, by using the admitted accounts available with the parties for the FYs 2015-16 as also the four",,,,,
reports of the Court Commissioner.,,,,,
Ms. Priya Kumar learned counsel appearing on behalf of Mr. S.K. Beri, while adopting the arguments made by Mr. Kathpalia, has also made",,,,,
submissions which are best summarised in the following manner:,,,,,
i. At the time of executing the three documents of separation, Mr. S.K. Beri had hoped that the division of assets would be smooth, rather than bitter,",,,,,
which is what it is today amidst the slew of litigations between the parties. The memorandum of understanding entered into between the brothers on,,,,,
17.02.2016 laid the foundation as to how the separation was to be carried out. Once this foundation was laid, the parties acted in accordance",,,,,
therewith, but there was always an emphatic and unanimous agreement upon the fact that 30.06.2016 would be considered as the cut-off date for",,,,,
separation. It is a matter of record that the parties have effected most of the steps in terms of the settlement agreement. This is especially true for,,,,,
Mr. Deepak Beri who has, in the last four years, engaged in transferring the flow of business from SKB and DBC to businesses being run by his own",,,,,
family members, the basis of which transfer lies in the separation itself. In fact, it is a matter of record that the premises of SKB and DBC are being",,,,,
used by him and his son to run their private ventures. It would be deeply egregious to permit Mr. Deepak Beri to continue denying the separation,,,,,
when has actively enriched himself in the last few years on the grounds of this separation. His prayer to move the cut-off date forward had been,,,,,
made with the malafide intent to pool the resources of the family concerns as they stand today, to ease off the liabilities accumulated by his privately",,,,,
run businesses since 30.06.2016. Were the cut-off date to be moved from 30.06.2016, it would further dilute the value of the assets as they stood on",,,,,
that date owing to the liabilities accumulated by the parties since then, in their private capacity. In this regard, reliance has also been placed on the",,,,,
decision dated 13.02.2020 passed by the Supreme Court in Vijay Karia & Ors. Vs. Prysmian Cavi E Sistemi SRL & Ors. (C.A. No. 1544/2020) in,,,,,
support of the plea that the Court cannot overstep the confines of the award; any shifting of the cut-off date from 30.06.2016 would amount to adding,,,,,
or subtracting from the award, which cannot be done by an executing court.",,,,,
ii. If Mr. Deepak Beri did have any grievance regarding the date of separation, he was required to, and would have most definitely, raised this issue",,,,,
before the learned Arbitrator after the award had been pronounced to seek a change in this date. He neither approached the learned arbitrator, nor",,,,,
adopted this plea before the Court dealing with the Section 34 petition that the Date of Separation was not 30.06.2016. It also cannot be ignored that,,,,,
previously, in the Section 34 petition instituted by Mr. S.K. Beri he had contended that the three settlement agreements were not conclusive, but his",,,,,
argument was rejected in favour of Mr. Deepak Beri’s submission that every aspect of the separation stood finalised by these agreements. A,,,,,
necessary corollary thereof is that Mr. Deepak Beri found these agreements to be conclusive even on the aspect of the fixed date of separation. Thus,",,,,,
having taken recourse in this stance in the past to obtain an order in his favour, Mr. Deepak Beri is now estopped from denying that the date of",,,,,
separation was not 30.06.2016 since the division of assets is yet to take place. Mr. Deepak Beri’s prayer for fresh fixing of the cut-off date is,,,,,
anyway unsustainable considering all the steps which have been effected so far as also the legal position, summarised in the decision of the Supreme",,,,,
Court in Marshall Sons & Co. (India) Ltd. Vs. Income Tax Officer (1997) 2 SCC 302 t,hat cut-off dates in cases involving accounting and division of",,,,,
businesses, are always a date in the past.",,,,,
I have heard learned counsel for the parties and perused the record. Before dealing with the rival contentions of the parties and the issues which,,,,,
arise for consideration, it would be apposite to first note the following aspects on which the parties are ad idem.",,,,,
i. Disputes had begun cropping up between the parties which resulted in their decision to separate the businesses. For that purpose, the parties",,,,,
appointed an arbitrator on 20.01.2016, under whose initiative, the three agreements, namely the MoU dated 17.02.2016, the Minutes dated 14.03.2016",,,,,
and the Deed dated 30.04.2016 were executed by them, all for the purpose of finalizing the division of businesses.",,,,,
ii. Pursuant to these agreements, the parties have taken steps towards separation, although separation has not been fully effected.",,,,,
iii. Neither of the parties ever approached the learned arbitrator, either before he passed the award on 02.08.2016 or thereafter, or the Section 34",,,,,
Court with any requests for clarification with respect to the Date of Separation.,,,,,
Against this admitted position, I now proceed to note the issues on which the parties are at divergence today. The parties primarily disagree on",,,,,
whether the date of separation was agreed between the parties and fixed as 30.06.2016 and what are the consequences of such an agreement. In,,,,,
fact, in the light of the position adopted by both sides that complete separation has not taken place in terms of the settlement agreements and this",,,,,
Court has been approached by both sides by way of the enforcement petitions to get the separation enforced as agreed between the parties, this issue",,,,,
is pivotal in order to proceed any further in these execution proceedings. In fact, even during the course of making their extensive arguments, both",,,,,
sides, including Mr. S.K. Beri, insisted that the issue revolving around the Date of Separation ought be decided first, before any directions pertaining to",,,,,
the separation of businesses are passed.,,,,,
The question, therefore, which needs to be determined before any directions are passed is whether there is already a pre-determined date of",,,,,
separation in these settlement agreement and if yes, what is it? In the alternative, if these agreements have not fixed any such date, what should the",,,,,
date be?,,,,,
Before delving into the questions raised in these petitions, I consider it appropriate to briefly revisit the powers of an executing court from the",,,,,
plethora of judgments placed on record by the parties on this aspect.,,,,,
(i) In Brakewel Automotive Components (India) (P) Ltd. v. P.R. Selvam Alagappan (2017) 5 SCC 371, this Court held as under:",,,,,
“20. It is no longer res integra that an executing court can neither travel behind the decree nor sit in appeal over the same or pass any,,,,,
order jeopardising the rights of the parties thereunder. It is only in the limited cases where the decree is by a court lacking inherent,,,,,
jurisdiction or is a nullity that the same is rendered non est and is thus unexecutable. An erroneous decree cannot be equalled with one,,,,,
which is a nullity. There are no intervening developments as well to render the decree unexecutable.,,,,,
As it is, Section 47 of the Code mandates determination by an executing court, questions arising between the parties or their",,,,,
representatives relating to the execution, discharge or satisfaction of the decree and does not contemplate any adjudication beyond the",,,,,
same. A decree of court of law being sacrosanct in nature, the execution thereof ought not to be thwarted on mere asking and on untenable",,,,,
and purported grounds having no bearing on the validity or the executability thereof.†(emphasis supplied),,,,,
(ii) In Deepa Bhargava Vs. Mahesh Bhargava (2009) 2 SCC 294, the Hon’ble Supreme Court held as under:",,,,,
“9. There is no doubt or dispute as regards interpretation or application of the said consent terms. It is also not in dispute that the,,,,,
respondent judgment-debtors did not act in terms thereof. An executing court, it is well known, cannot go behind the decree. It has no",,,,,
jurisdiction to modify a decree. It must execute the decree as it is. A default clause contained in a compromise decree even otherwise would,,,,,
not be considered to be penal in nature so as to attract the provisions of Section 74 of the Contract Act.†(emphasis supplied),,,,,
Thus, to put it simply, an executing court has a very limited function of ensuring that the decree sought to be enforced is executed as it exists. In",,,,,
the present case, the modified award forming the subject matter of these proceedings comprises of the three family settlement agreements. All parties",,,,,
herein are ad idem that the terms of these agreements are binding and, therefore, the directions of this Court have to necessarily be within the",,,,,
parameters of their mutual intent set out in these agreements. This gives rise to the question, did the parties envisage a date of separation at the time",,,,,
of their initial talks and incorporate the same in the settlement agreements? Reading this with the fact that both sides have adopted varying,,,,,
interpretations of the three agreements re. the cut-off date, it is necessary for this Court to first determine the date, if any, agreed upon by the parties",,,,,
in the agreements executed between them. If they did, the directions which are to be issued shall depend entirely on this date of separation emerging",,,,,
from these documents. For this reason, it is incumbent for this Court to refer to the terms of these agreements in some detail. Only thereafter can I",,,,,
contemplate issuing any consequential directions to carry out complete separation of the businesses and assets, which both sides agree has not taken",,,,,
place.,,,,,
To begin with, the settlement between the parties was initiated under the canopy of the Memorandum of Understanding executed on 17.02.2016.",,,,,
Memorandum dated 17.02.2016,,,,,
“1. Deepak Beri is going to carry on the business under the name and style of D.B. Engineering Company (DBC) or any other name,",,,,,
which he may so decide, other than Atlas Knives, for a period of two years from the date of separation given hereunder in this MOU.",,,,,
xxx,,,,,
Atul Beri is going to carry on the business in the name of D.B. Engineering Pvt. Ltd. (DBE), Banaras Marbles and Granites Ltd., or any",,,,,
other name, which he may so decide.",,,,,
xxx,,,,,
In addition to the above, Atul Beri will get a sum of Rs. 7.5 Crore towards construction and getting the unit functional situated at Phase",,,,,
II, Noida, which would be paid to Atul Beri in tranches in consultation with SKB and MN and they would decide as to how much money",,,,,
would be given to Atul out of Rs. 7.5 crore each time subject to its entire disbursement by the date of separation.,,,,,
xxx,,,,,
Deepak Beri and Atul Beri will share all the statutory and other liabilities of DBE and all other companies/entities in which the joint,,,,,
business had been carried on-till the date the business is being carried on jointly equally and similarly the profits would also be shared,,,,,
equally. The assets at any location of the business and in any entity would also be the property of the Parties till the date of division.,,,,,
Deepak Beri and Atul Beri will also equally share the following:,,,,,
a. All intangible assets.,,,,,
b. All tangible assets including plant and machinery and inventory and consumables lying at all units.,,,,,
xxx,,,,,
That prior to 30th June 2016 which is taken to be the effective date of separation, Sector 59 and Sector 64 will need to be transferred to",,,,,
DBC or any other entity in which Deepak would carry on the business subject to the fact that in such an entity, Deepak Beri & Atul Beri will",,,,,
hold equal share. At the time of separation on or before 30th June 2016, shares held by Atul Beri in this entity shall be transferred to",,,,,
Deepak. This transfer of properties to Deepak shall be done at the earliest possible date so that Deepak can proceed with the Bank limits,",,,,,
which he would have to take afresh.,,,,,
That on the date of separation, all the business entities would be transferred between Deepak and Atul as decided in this MoU and for",,,,,
this purpose they shall execute all such documents then or if need arises thereafter to give effect to the transfer.,,,,,
xxx,,,,,
That from this date to the date of separation, all the transactions will be recorded in the books of account with the approval of both",,,,,
Deepak Beri & Atul Beri. SKB and MN taking the cut off date as March 31, 2016, would map the Debtors and the Creditors till the date of",,,,,
separation.,,,,,
xxx,,,,,
The employees of DBE will be given an option to remain in DBE or to move to DBC and their decision will be final. In case Deepak Beri,,,,,
and Atul Beri jointly wish to terminate the employment of certain employees of DBE, DBC, SKB & Bros. they will do so at the earliest, not",,,,,
later than the end of this month.,,,,,
The compensation payable to the employees who move from DBE, SKB & Bros. to DBC will be paid by DBE. Similarly, the compensation",,,,,
due to the employees retained in DBE will be determined and adjusted as a liability accruing in DBE to be shared by both Deepak and Atul.,,,,,
The issue of transfer of employees has to be handed sensitively so that they continue to carry on their employment with DBE and/or,,,,,
DBE. In case there is a possibility to transfer the employment to DBC without any compensation on undertaking/other documentation given,,,,,
by DBC, they will take care to pay the compensation and employees agreeing to this arrangement, then in such a case this method will be",,,,,
followed subject to that it is legally compliant in all respects.,,,,,
All intangible assets i.e. computer software etc., will be divided equally between the two, Deepak and Atul, and it there is any cost",,,,,
attached to the transfer of the same to Deepak or to Atul, then it will be paid by DBE.",,,,,
xxx,,,,,
That post signing/initialing this document, the nitti gritties of this broad understanding would be worked out so that the division of",,,,,
business can effectively take place by 30th June 2016 or any other date as may be decided mutually by the two in consultation with Mr. S.K.,,,,,
Beri and Mr. Manoj Nagrath.â€,,,,,
The Memorandum dated 17.02.2016 which was the first document executed between the parties pursuant to the mediation/arbitration agreement,,,,,
executed on 20.01.2016 contemplated the division and clearly specified which businesses and assets were to fall in the share of which brother. The,,,,,
said Memorandum served to facilitate a peaceful separation of the businesses by envisaging seamless division of the broad business components, viz.,",,,,,
(i) Employees (ii) customers/orders, (iii) intellectual properties including logos and software.",,,,,
It also emerges that the parties, being conscious that they were seeking to separate businesses which were live, did not wish to separate the",,,,,
businesses abruptly since that would have risked incurring significant harm to these entities. Therefore, while broadly crystallising the steps for",,,,,
separation in the Memorandum, the parties set down 30.06.2016 as the tentative date of separation to provide the parties a transition period for",,,,,
completing the separation. For this reason, it was also agreed that neither of the brothers would engage in any negative marketing with respect to the",,,,,
businesses falling in the share of the other brother nor would either party inform their clientele of the impending separation at that stage. However, this",,,,,
Memorandum clearly indicates that the parties had, on 17.02.2016 itself, desired to effect the separation by 30.06.2016, unless the date was changed",,,,,
in consultation with Mr. S.K. Beri and the learned arbitrator.,,,,,
Now coming to the second document, i.e. the Minutes of Meeting dated 14.03.2016, which reads as under:",,,,,
Minutes dated 14.03.2016,,,,,
“Name,,,,,
As decided in the MoU, Deepak can use DB Engineering Solutions LLP as an entity to carry on his business and he shall not use the name",,,,,
Atlas Knives as the company name, LLP name, Partnership Firm, Proprietorship Firm, Proprietorship concern or in any manner and also",,,,,
the Domain Name Atlas Knives. This instruction of not using Atlas Knives would be for a period of two years from the date of separation.,,,,,
Plant & Machinery,,,,,
List of Plant & Machinery to be compiled. Deepak & Atul would take the responsibility of making the list of their respective units and the,,,,,
task to be finished by 16th March, 2016.",,,,,
Verification of the item of Plant & Machinery to be done by Deepak and Atul by 17th and 18th March, 2016 positively. Deepak and Atul",,,,,
to sit with SKB and MN on 19.02.2016 and finalise the distribution of the plan and machinery.,,,,,
The modus operandi would be that two sets as similar as possible would be made by Deepak (other than the unique items) and they would,,,,,
be decided by lots/toss.,,,,,
The unique list will be discussed between the two and finalized in all respects on 19.03.2016. Value to be determined by each one and,,,,,
highest bidder will take it.,,,,,
Date of dismantling of P & M and commencement of physical transfer of the same is 21.03.2016 onwards. 21st to 25th AB to take out P,,,,,
& M and DB from 26th to 31st. The date can be reasonably extended in case it is practically not possible to do so.,,,,,
Staff,,,,,
List of staff and workers to be finalized by 16.3.2016.,,,,,
Deepak & Atul to jointly identify the Employees whom none wants on 17.3.2016.,,,,,
Staff at each location would be given and option to opt for either Deepak or Atul for which they would be called one by one and made to,,,,,
sign in the Register in front of representative of MN. This would be done on 18 & 19.3.2016. Workers would remain in same factory where,,,,,
they are now working and if they wish to go the other, they would be allowed to go.",,,,,
Compensation to be immediately calculated after the above exercise is over and to be paid to the Employees, to the extent possible by",,,,,
31.3.2016.,,,,,
All the Employees who are to be transferred within different units would be done at the date of separation.,,,,,
Logo,,,,,
Logos to be divided as per MoU on 16th of March, 2016.",,,,,
Orders,,,,,
List of Orders in hand to be made available on 15th March 2016. Customer whose orders can be changed from one entity to another to,,,,,
be ascertained by Deepak.,,,,,
The distribution would be made in such a way that each party gets approximately equal orders.,,,,,
In case of the difference being there, 20% of the value of the Order to be considered as profits and distributed between Deepak & Atul.",,,,,
The share of the said money would be paid upon execution of the Order by the respective entity.,,,,,
Customers to be informed on a date decided by SKB/MN regarding the split by way of a common mail to be approved by MN.,,,,,
xxx,,,,,
Miscellaneous,,,,,
The endeavour of both Deepak & Atul would be to effect the separation by 31.3.2016 and if it is not possible to do the same due to any,,,,,
reason, the separation has to take place at the earliest possible date but not later than 30.04.2016 and for this purpose, both Deepak &",,,,,
Atul would work positively to achieve the target date. The process of transfer of Ownership, drafting of documents, minutes, deeds etc. shall",,,,,
commence immediately and both Deepak & Atul shall give their full support so that the documentation is completed at the earliest.,,,,,
Specific audits of stocks, consumables and other related issues would be carried out by the team of MN with immediate effect.",,,,,
No material/goods would be withheld by either Deepak or Atul in their respective premises and the same would be cleared from time to,,,,,
time, so that the businesses do not suffer during this intervening period in any respect.",,,,,
The net current assets available in DBE after the DOF has to be distributed equally between the two after clearing of the liabilities. A,,,,,
mechanism will be drawn by SKB & MN to ensure that the money is available for distribution.,,,,,
D&A would make all efforts to get their statutory audits for the year ended 31.3.2016 finalised by 30.4.2016. Potential past liabilities,,,,,
upto the date of DOS would be determined with the assistance of both.,,,,,
A lump sum amount of Rs. 40,00,000/- would be payable to Atul towards shifting of Plant & Machinery, taking on rent new premises etc.",,,,,
This amount has to be paid by DB.â€,,,,,
These Minutes show that, by that time, the brothers had come to the realisation that in order to fully effectuate the separation it was necessary to",,,,,
lay down the roadmap for it by specifically setting down the steps required to be taken. In fact, this document shows that on 14.03.2016, since the",,,,,
parties had already started taking steps towards separation, they were hopeful that the separation may take place even prior to 30.06.2016, for which",,,,,
reason they were intending to prepare the list of plants and machinery by 16.03.2016, subject to the verification thereof by each brother. As noted",,,,,
previously, the Minutes provided that the customers would be informed about the split by way of a common e-mail, approved by the learned",,,,,
Arbitrator. Moreover, the staff were to be permitted to exercise their options as to which brother’s business they wanted to continue their",,,,,
employment in, while the logos were also to be separated. Notably, the Minutes provided that the parties would endeavour to get their statutory audits",,,,,
for the FY ending on 31.03.2016 by 30.04.2016.,,,,,
Finally, the Deed of Arrangement executed on 30.04.2016 was the third and final document which was executed by the parties and the relevant",,,,,
clauses thereof read as under:,,,,,
Deed of Arrangement dated 30.04.2016,,,,,
“This deed of arrangement is being made amongst Mr. Deepak Beri (DB), Mr. Atul Beri (AB), and Mr. S.K. Beri (SKBi)s to give effect to",,,,,
the understanding reached by the parties in terms of MoU entered into by them on February 17, 2016 relating to the division of business of",,,,,
DBE and SKB.,,,,,
That it is agreed amongst all that the entire division exercise will be executed in terms of the MoU and this interim arrangement as agreed,,,,,
upon to facilitate the final division.,,,,,
xxx,,,,,
That to manage the period from the date of this arrangement to the Date of Separation (DoS) which is June 30, 2016, it has been agreed",,,,,
that DB, AB and/or any of their family members (except SKB) shall not visit any of the premises where the production of the companies is",,,,,
being carried on and the meetings, if any, amongst the parties shall be held at the place and time decided by MN.",,,,,
xxx,,,,,
Orders,,,,,
Existing Orders as on 30th April, 2016",,,,,
• All orders in DBE or SKB as on April 30, 2016 shall be kept as it is.",,,,,
• Since it takes approximately 2 months for processing of orders, therefore, by June 14, 2016 such orders will be in either of the",,,,,
following phases:,,,,,
o Finished stock;,,,,,
o Debtor;,,,,,
o Cash;,,,,,
o WIP, pending final processing",,,,,
o Existing orders shall be processed before new orders as per FIFO method.,,,,,
o Pending orders will be distributed as per the MoU as on DoS or any other prior date as decided by MN.,,,,,
xxx,,,,,
Staff,,,,,
• Increment due in April 2016 is to be maintained at 8% p.a. as an interim increment and to be paid prior to the DoS out of the common,,,,,
funds.,,,,,
List of Employees/Workers,,,,,
• List of employees/workers (unit wise) to be taken as on April 30, 2016 which will be updated on daily basis in case of any change with",,,,,
complete details.,,,,,
Intimation to Employees/Workers,,,,,
• Employees/workers (if required) will be intimated about the new date of separation. Till that date no employee/worker will be,,,,,
retrenched unless the employee/worker wants to leave voluntarily.,,,,,
White Collar Employees (i.e. Employees),,,,,
• White Collar employees at each location will be given an option to opt to work either with DBE or SKB, for which they will be called",,,,,
one by one and made to sign the register in front of MN. Said option will be executed on May 31, 2016. However physical movement of",,,,,
such employees will take place on/after DoS.,,,,,
xxx,,,,,
• If an employee/worker wants to voluntarily leave prior to the DoS, such employee worker shall not be re-appointed by AB/DB up to a",,,,,
period of 6 months from the DoS. Any violation of the same on the part of AB or DB will attract a penalty amounting to 5 times the actual,,,,,
CTC in which such employee/staff is re-appointed, payable to DB or AB respectively.",,,,,
• Compensation policy i.e. Full and Final settlement of employees/workers will be decided by MN considering the trend of previous two,,,,,
years i.e., 2013-14 and 2014-15.",,,,,
xxx,,,,,
Raw Material Purchase Orders,,,,,
• Any order of raw material, tools or consumables has to be placed post discussion and on prior approval of respective Plant heads.",,,,,
Such plant heads shall be nominated by AB/DB as on April 30, 2016 and intimated to MN. If there is any conflict regarding this, then",,,,,
decision of MN will prevail.,,,,,
• A weekly update shall be given to AB/DB by respective plant heads. Maintenance of Records,,,,,
• Proper records for in, out, scrap generated, consumption and closing stock of raw material shall be maintained for the period from",,,,,
May 01, 2016 through June 30, 2016.",,,,,
• The above mentioned records shall be circulated to AB, DB and MN on weekly basis.",,,,,
Stock of Raw Material/WIP/Finished Products,,,,,
• Physical stock taking and its distributions to be done for all units, as will be decided by MN in consultation with AB and DB on the date",,,,,
of its physical movement.,,,,,
• Work in progress to be distributed as per the MoU.,,,,,
• Physical shifting of stock shall commence after June 15, 2016. Production",,,,,
• Production to be done upto June 15, 2016.",,,,,
• Entire DBE & SKB shall be run as a single unit in terms of production.,,,,,
• The production will be carried out in full swing and no material will be held at one premise without any justified reason. In case,,,,,
production is withheld for any reason, MN shall be intimated immediately.",,,,,
xxx,,,,,
Books of Accounts,,,,,
• All sales, purchases and expenses will be recorded in the books of accounts at Okhla and a representative of AB will assist the staff at",,,,,
Okhla for the same.,,,,,
• Random weekly checks may be conducted by MN in order to validate the BNG and its rehabilitee(sic).,,,,,
• Balance sheet of DBE and SKB as on June 30, 2016 to be finalized by July 15, 2016 by the staff of DBE and SKB Group.",,,,,
• The representative appointed by AB and DB in the field of Accounts and Finance shall be responsible for maintaining and delivering,,,,,
books of accounts to MN including the financial statements, statutory records for past 8 years i.e. from F.Y. 2007-08 to F.Y. 2015-16 and",,,,,
other Legal and Secretarial records, since the date of Incorporation.",,,,,
xxx,,,,,
Independent Manufacturing and Purchases,,,,,
• All purchases, sales and manufacturing to be restricted to SKB and DBE only. No private entity shall undertake any business activity.",,,,,
• Only commonly owned machinery to be run.,,,,,
• Expenses of privately (independently) owned machinery and labour charges on such machinery, not to be shared among DBE and SKB.",,,,,
Plant and Machinery Key Machinery,,,,,
• List of Key Machinery to be provided by the respective plant heads of AB and DB by May 01, 2016 and division of the aforementioned",,,,,
key machinery to be done by MN based on written down value as on March 31, 2016.",,,,,
Other Machinery,,,,,
• List of Plant and Machinery to be compiled. AB and DB to take the responsibility of making the list of their respective units by April 30,",,,,,
2016.,,,,,
• Distribution of Plant and Machinery on paper to be finalized by MN upto May 31, 2016 and physical distribution to commence after",,,,,
June 15, 2016.",,,,,
• The modus operandi would be that the two sets are as similar as possible.,,,,,
xxx,,,,,
Miscellaneous,,,,,
• Endeavour of both AB and DB would be to effect the separation by June 30, 2016 and if it is not possible to do the same due to any",,,,,
reason, the separation has to take place at the date and conditions as decided by MN. The process of transfer of ownership, drafting of",,,,,
documents, minutes, deeds etc, shall commence immediately and both AB and DB shall give their full support so that the documentation is",,,,,
completed at the earliest.,,,,,
• Specific audit of stocks, consumables, raw material and other expenses related issues would be carried out by the team of MN with",,,,,
immediate effect and that has to be completed by May 15, 2016. Appropriate adjustments will be made in the account of AB and DB before",,,,,
DoS.,,,,,
• Expenses incurred by AB on C-1 will be paid to him after complete due diligence and specific approval of MN only.,,,,,
• AB and DB would make all efforts to get their statutory audits for the year ended March 31, 2016 be finalized by June 30, 2016.",,,,,
Potential past liabilities upto the DoS would be determined with assistance of both AB and DB.â€,,,,,
This Deed is generally distinguishable from the other two documents since it reflects their acceptance of the fact that they were fast approaching,,,,,
complete separation and is posed as a record of the arrangement which they had finally arrived upon. It is the last and final document executed,,,,,
between the parties towards separation of businesses and begins by requiring them to follow the terms therein as also in the MoU, in letter and in",,,,,
spirit. It explicitly refers to the date of 30.06.2016 as the final date of separation and then goes on to mention this date close to 7-8 times in its body. It,,,,,
is clear that the parties were seeking to take care of any unfinished business by ensuring completion of all pending orders, resolving to determine",,,,,
potential past liabilities up to 30.06.2016 and furnishing books of account to the learned arbitrator, including financial statements and statutory records,",,,,,
for the eight preceding years, i.e., from FY-2007-08 till F.Y.2015-16. This document also sets aside a period, which began with its execution and",,,,,
ended on 30.06.2016 and is now known as a ‘transition period’ for all practical purposes, to help the parties ease into their independent",,,,,
commercial identities. During the transition period, the delivery time for completion of orders stood extended and, in the spirit of encouraging complete",,,,,
transparency in the process, (i) the two brothers and their respective families were proscribed from visiting the premises of any production units of the",,,,,
businesses, (ii) it was decided that the books of accounts of the businesses belonging to each other were subject to inspection by the learned arbitrator,",,,,,
(iii) all parties were encouraged to share complete details of any hidden orders of DBEPL and SKB, (iv) they were stripped of the power to introduce",,,,,
any changes in the BNG system (which was the common software used to record the orders placed), without the approval of the learned Arbitrator,",,,,,
and (v) the two brothers were to be given all updates on the raw materials purchased. All production could be carried on unhindered only till,,,,,
15.06.2016, whereafter the physical shifting of the stock, viz. raw material, work in progress and finished goods, was to be effected on a date fixed by",,,,,
the learned Arbitrator. The Deed ended with the Miscellaneous clause which generally addressed any major steps which were yet to be taken by inter,,,,,
alia resolving to take care of any pending specific audits by 15.05.2016 and statutory audit by 30.06.2016.,,,,,
Reverting to the submissions made at the Bar, as per Mr. Atul Beri and Mr. S.K. Beri, the parties had mutually agreed to fix the date of",,,,,
separation as 30.06.2016, which was not only reflected in the three documents executed by them but also the manner in which they conducted their",,,,,
business and themselves pursuant thereto. On the other hand, Mr. Deepak Beri has contended that the date of separation should be reckoned by the",,,,,
Court as on date, rather than myopically relying on the tentative date of separation set out in the documents executed by the parties. Mr. Deepak Beri",,,,,
has taken the unrelenting position that he never consented to 30.06.2016 as the official date of separation and, in actuality, that date was an effective",,,,,
date envisaged by the parties to finalise the division, but since most of the steps under the settlement remained ineffectual on that date, it was",,,,,
S. No.,Description,As per Mr. Atul Beri,As per Mr. Deepak Beri,,
,"Names in
which each party
carries their
businesses","Done.
Have been carrying out
business in the name of M/s
DBEPL and BMGL","Done.
Have been carrying out business in
the name of M/s DBEC, SKB or
any other name.",,
,"Properties to be
received by AB","Done.
Currently in possession of the
properties situated in Sector
68, Sector 11, NOIDA and
that owned by BMGL in
Phase-II, NOIDA.",Done.,,
,"Properties to be
received by DB.","Done, except:
- Sector 64 has not been
handed over, since
compensation of INR 7.50
crores has not been given yet.
- Title transference of property
situated at C-27, Sector 59,
Noida belonging to DBEPL
and in possession of Deepak
Beri yet to be effected.","Done.
Currently in possession of Sector 6,
59 and A-119 Okhla properties.
However, DB is yet to receive
possession of Sector 64, NOIDA,
which is being illegally retained by
AB.
In addition, the transfer of title of
the other premises is also pending.
Bank has ordered release of
hypothecated documents of Sector
59 and Sector 64, which only needs
to be collected from the bank by
signing the register by all three
parties.",,
,"Division and
transfer of
Employees under
Clause 24, MOU","Done.
As per MoM dated
14.03.2016, employees have
exercised their option of
choosing which brother they
wish to work for. This was
done in March/April 2016.
This was completed with
effect from 07.07.2016.
However, the employees
working at the units of
DBEPL, under the control of
Deepak, need to be formally
transferred to SKB.","Done.
The division of employees in terms
of the agreed documents has
already taken place, and the
employees who have opted by DB
and AB were identified and a list
was circulated on 07.07.2016.
Further, in terms of the agreed
documents, an 8% increment has
been given to the employees, which
is an admitted fact.",,
,"Division of logos
under Clause 9,
MOU","Done w.e.f.
23.03.2016.
Logos of the business entities
were divided amongst the
parties on 23.03.2016 and
parties
have since then, been using
their respective logos, in
furtherance of their
independent business activities.","Done.
This is done by a Coin Toss on
23.03.2016 duly recorded and
signed by nominees of AB and DB
in the presence of the Ld.
Arbitrator and SKB, who also
signed the said paper.",,
,"Accounting
Software","Done for Mr. Deepak Beri.
Ever since Mr. Deepak Beri
caused SKB to purchase ERB
software to keep its
accounting separated from
DBEPL. Thus, the accounting
softwares are separate.","Done.
SKB (the concern falling to the
share of DB) purchased its own
ERP Software so as to facilitate
the division process.
A sum of Rs. 9,73,248/- was spent
by SK Beri & Bros towards the
same.
The underlying objective was to
have separate and distinct ERP
Softwares between DBEPL and
SKB, as part of the division.",,
,"Division of
servers, Email
IDs, domain
names, and
websites","Done.
Separate servers have been
purchased by SKB, so as to
de-link itself from DBEPL.
The two entities now have
separate email id’s,
domain names and websites,
so as to
function independently from
each other.","Done.
In pursuance of the division
process, separate servers have
been purchased by SKB so as to
de-link itself from DBEPL.
As part of the division process,
SKB have also created new email
ID's with the domain 'skberi.com'
and has engaged technicians to
develop its independent website.
DB and his staff were earlier using
the domain name
atlasknives.com"", which were
disabled at the instance of AB.
This fact also shows
implementation of the division
process.",,
,"Intimation to
Customers","Done.
Customers were intimated
about the division in around the
first week of May 2016, and
thus customers have taken
their business to an entity
controlled by Atul or Deepak,
depending on which brother
they wanted to continue
business relations with
Pertinently, as per clause 38 of
the MoU, this step was to take
place only after the
effective date of separation.","Done.
As agreed, the parties have jointly
sent various letters to customers
regarding the division between the
AB Group and the DB Group.",,
,"Working Capital
Sanctions","Done.
Fresh working capital
sanctions have been applied
for and obtained by Deepak
Beri, in the name of SKB. As
of date, the two businesses
have been sanctioned loans
separately and, thus, have
separate liabilities in this
respect.","Done.
As part of the agreed documents,
more particularly in terms of
Clause 32 of the MOU, DB applied
for Working Capital loan and
sanction of Credit Facilities in the
SKB with Canara Bank, Okhla
Branch in April2016.
On the basis of the aforesaid
application, the Credit Facilities
were approved by Canara Bank
vide its letter dated 04.06.2016.
DB was also authorized by
DBEPL vide its letter dated
03.06.2016 (signed by SKB, AB,
DB and Ramesh Beri) to collect
the original property papers for the
premises which were to fall to
DB's share.
The term loan availed by DBEPL
has paid off full under the orders of
this Hon'ble Court dated 22nd
March, 2018 and the original
documents of all properties are
currently deposited with the
Registrar General, Delhi High
Court in terms of the aforesaid
order.",,
,"Telephone
connections","Done.
Separate telephone
connections have been
obtained w.e.f 07.06.2016, so
that entities controlled by
Deepak and Atul have
separate telephones.","Done.
As part of the division, an
application was made on
17.06.2016 to Airtel for
transferring telephone connections
in the name of SKB from DBEPL.",,
,Division of Orders,"Done.
From February, 2016, orders
which would have earlier been
booked in the name of
DBEPL, were being booked
(by Deepak Beri) in the name
of SKB. He has thereafter
stopped booking orders in SKB
and started booking them in
other entities to defeat the
interest of the father who
continues to retain
his share in SKB after
30.06.2018.","Pursuant to the division process,
orders were booked in SKB, which
was hitherto done in the name of
DBEPL. A perusal of the Monthly
Sales Order details shows a sudden
jump in the value of orders in SKB
for the months of February, March,
April, May, June and July 2016.",,
,"Deployment of
Security Services
u n d e r Clause
21, MOU","Done with effect from May
2016.","Done.
In terms of the agreed documents,
the parties were to employ
·security services for the
respective units. Acting upon the
understanding, the services of G4S
Secure Solutions (India) P. Ltd.
were availed by DBEPL.",,
,"Application of
Licences/ Permits",Done.,"Done.
DBC has applied for EEPC and
other licenses for the purposes of
export in the name of SKB, post
the division process. Similarly,
license for import has also been
applied for.",,
this, even though he has accepted that the orders for SKB have been recorded separately by him since February 2016 and the numbers thereafter",,,,,
appear to have increased. However, the parties are ad idem that certainly with effect from 01.05.2016, there has been absolutely no transparency",,,,,
between them with respect to the orders received by the business concerns falling in their share. Further, from a reading of clauses 1, 3, 4, 5, 7 to 9,",,,,,
13 to 17, 19 to 28, 34, 35 and 38 of the MoU, it is evident that the parties had envisaged that in the transition period preceding 30.06.2016, all",,,,,
transactions carried out by any of the family businesses were to be recorded in the books of accounts of the concerned entity with the approval of all,,,,,
the four parties i.e. the two brothers, their father and the Arbitrator. It is also evident that the parties agreed to share all expenses, profits and assets",,,,,
till they were jointly conducting the businesses, whereafter they would carry out the businesses separately. Today, the brothers neither share the",,,,,
expenses of their respective businesses nor record the transactions in the arrangement as set out by them. Finally, with effect from 30.06.2016, both",,,,,
the brothers have been taking business loans and applying for licenses and permits independently. There is no overlap or joint operations in these,,,,,
aspects for over four years.,,,,,
Against this background, one may consider the steps which are admittedly left to be taken as on date. Mr. Atul Beri has produced a table in",,,,,
paragraph 30 of his enforcement petition enumerating the steps to be taken to completely discharge all obligations of the parties under the settlement,,,,,
agreements. Similarly, Mr Deepak Beri had submitted a tabulation of the steps left to be taken, in his reply to Mr. Atul Beri’s enforcement petition",,,,,
[OMP(Enf)(Comm)117/2019]. Although, in his post-hearing written submissions, Mr. Deepak Beri has submitted comprehensive tabular",,,,,
representations which cull out additional steps which he claims are left to be taken against each step contemplated in the Memorandum, Minutes and",,,,,
the Deed, the same are not being referred to at this stage since they are not only at some variance with his own broad stance in his enforcement",,,,,
petition, but also because Messrs. Atul and S.K. Beri did not have an opportunity to rebut the same. For the sake of convenience, the chart produced",,,,,
by Mr. Atul Beri is reproduced as Table III in the Addendum whereas the chart produced by Mr. Deepak Beri is reproduced as Table IV in the,,,,,
Addendum. However, the gist of their respective positions may be summed up as follows:",,,,,
i. Both Messrs. Deepak and Atul Beri need to formally transfer their shareholding and ownership interests and that of their family’s from the,,,,,
businesses falling in the share of the brother. Consequently, Mr. Deepak Beri needs to resign as Director of DBEPL and BMGL and transfer his and",,,,,
his family’s share certificates therein to Mr. Atul Beri. Mr. Atul Beri, in turn, needs to do the same in SKB and DBC, in favour of Mr. Deepak",,,,,
Beri.,,,,,
ii. The brothers need to transfer the title to the properties in the names of the person in whose share the same falls as per the settlement agreements.,,,,,
iii. All documents pertaining to DBEPL and BMGL in the possession of Mr. Deepak Beri and those pertaining to SKB and DBC in the possession of,,,,,
Mr. Atul Beri, including but not limited to Customs shipping bills, Customs certified invoices, import/export books, DGFT licenses, need to be returned",,,,,
to the rightful owner of the respective businesses.,,,,,
iv. The orders as they stood on 30.06.2016 have not been completely divided between the parties in terms of the settlement.,,,,,
v. The parties are yet to share the profits and liabilities of the business entities as they stood on 30.06.2016. Furthermore, accounting and auditing",,,,,
exercises have only been conducted partially.,,,,,
vi. The division of stocks, plant and machinery was not fully effected as they stood before 01.07.2016.",,,,,
When one considers the steps which are left to be taken, viz. the numerous steps that have been completed so far, one can begin saying with some",,,,,
certainty that the parties in most respects were operating distinctly from each other. Their businesses have been, in spirit, divorced from each other",,,,,
and do not share any jointness. Undisputedly, the original intent of the parties was a more complete form of this separation, rather than the partial,",,,,,
unfinished shape that it has assumed today. This tangled state of affairs is solely attributable to the parties’ contradictory stands with respect to,,,,,
the date of separation.,,,,,
In the light of this position, this Court must assess whether the agreements signed between the parties actually culled out a separation date and",,,,,
whether this date was expressly stipulated as 30.06.2016. In this regard, reference may be made to Paragraph 20 of the decision rendered by the",,,,,
Hon’ble Supreme Court in Bhavan Vaja (supra) which reads as under:,,,,,
“20. It is true that an executing court cannot go behind the decree under execution. But that does not mean that it has no duty to find out,,,,,
the true effect of that decree. For construing a decree it can and in appropriate cases, it ought to take into consideration the pleadings as",,,,,
well as the proceedings leading up to the decree. In order to find out the meaning of the words employed in a decree the court, often has to",,,,,
ascertain the circumstances under which those words came to be used. That is the plain duty of the execution court and if that court fails to,,,,,
discharge that duty it has plainly failed to exercise the jurisdiction vested in it. Evidently the execution court in this case thought that its,,,,,
jurisdiction began & ended with merely looking at the decree as it was finally drafted. Despite the fact that the pleadings as well as the,,,,,
earlier judgments rendered by the Board as well as by the appellate court had been placed before it, the execution court does not appear to",,,,,
have considered those documents. If one reads the order of that court, it is clear that it failed to construe the decree though it purported to",,,,,
have construed the decree. In its order there is no reference to the documents to which we have made reference earlier. It appears to have,,,,,
been unduly influenced by the words of the decree under execution. The appellate court fell into the same error. When the matter was taken,,,,,
up in revision to the High Court, the High Court declined to go into the question of the construction of the decree on the ground that a",,,,,
wrong construction of a decree merely raises a question of law and it involves no question of jurisdiction to bring the case within Section,,,,,
115, Civil Procedure Code. As seen earlier in this case the executing court and the appellate court had not construed the decree at all. They",,,,,
had not even referred to the relevant documents. They had merely gone by the words used in the decree under execution. It is clear that they,,,,,
had failed to construe the decree. Their omission to construe the decree is really an omission to exercise the jurisdiction vested in them.â€,,,,,
Evidently, it is not enough in every case for an executing court to simply read and interpret the words of a decree, especially in a case such as this",,,,,
where the execution pertains to a settlement bearing clauses which are being differently interpreted. In fact, in such cases the Court is called upon to",,,,,
pay due regard to the surrounding circumstances as well as the letter of the decree in order to truly deliver justice in its powers of execution,. While",,,,,
bearing in mind these principles which sculpt the powers of an executing court, I revert to the facts of the present case. As observed previously, the",,,,,
MoU deemed 30.06.2016 as an ‘effective date of separation’, which implied that the date was not set in stone at the time and was envisaged as",,,,,
a mere distant deadline to the parties, to provide them with a general sense of when they were expected to conclude the process of partition. The",,,,,
Minutes recorded on 14.03.2016 do not materially digress from this position, rather it appears to capture the optimism of the parties in their perception",,,,,
of the pace at which the partition was proceeding and their collective belief that they might actually be able to pull the partition off before June 2016.,,,,,
The Deed executed more than a month later on 30.04.2016 signals that the optimism contained in the Minutes began wearing off in the days after it,,,,,
was executed. It becomes apparent that the reality of partition and the numerous nitty-gritty of it had become obvious to the parties and the learned,,,,,
arbitrator, who had finally accepted that the partition was going to be a tedious and mammoth task, incapable of being effected within the short period",,,,,
of time envisaged in the Minutes. Nevertheless, since most steps were either already underway or stood completed, the parties mutually agreed to",,,,,
follow through with the partition by agreeing upon a deadline and, in that context, agreed upon the following stipulation in the Deed:",,,,,
“ That to manage the period from the date of this arrangement to the Date of Separation (DoS) which is June 30, 2016, it has been",,,,,
agreed that DB, AB and/or any of their family members (except SKB) shall not visit any of the premises where the production of the",,,,,
companies is being carried on and the meetings, if any, amongst the parties shall be held at the place and time decided by MN.†(emphasis",,,,,
supplied),,,,,
In my view, this is the turning point of the agreements and the point wherein lies the answer to the primary question raised in these enforcement",,,,,
proceedings. The parties explicitly referred to 30.06.2016 as the Date of Separation. Following this stipulation, the Deed went on to cement the",,,,,
importance of 30.06.2016 as the date of separation, by mentioning it as a deadline for several other steps thereunder. While the CTC of the employees",,,,,
and workers on transfer was to be determined as it stood on 30.06.2016, the record of all in, out, scrap generated, consumption and closing stock of",,,,,
raw material was to be mandatorily maintained from 01.05.2016 till 30.06.2016. All production at the manufacturing units of the family concerns was,,,,,
to be carried out together till 15.06.2016 whereafter the physical shifting of the stocks, plants and machinery was to take place on a date fixed by the",,,,,
learned Arbitrator. In fact, even the balance sheets of DBEPL and SKB were to be finalised as they stood on 30.06.2016 and the funds transferrable",,,,,
to Mr. Deepak Beri, in case he failed to acquire the requisite working capital loan by 30.06.2016, were to be apportioned out of the funds available",,,,,
with the family businesses as on 30.06.2016. In closing, the Deed incorporated the Miscellaneous clause which not only sought to tie any loose ends in",,,,,
the separation process by mandating that all auditing exercise of stocks be completed by 15.05.2016 and all statutory audit for the financial year ending,,,,,
on 31.03.2016 be finalised by 30.06.2016, it also stated:",,,,,
“Endeavour of both AB and DB would be to effect the separation by June 30, 2016 and if it is not possible to do the same due to any",,,,,
reason, the separation has to take place at the date and conditions as decided by MN.â€",,,,,
Therefore, notwithstanding the fact that the tenor of all the agreements regarded 30.06.2016 as a deadline of sorts, the Deed finally and",,,,,
unambiguously set down that the date of separation was going to be, after all, 30.06.2016. Considering all the steps that the parties were concurrently",,,,,
taking to make this happen, it appears quite obvious that the parties intended to and did, ultimately, demarcate 30.06.2016 as the date of separation of",,,,,
the businesses.,,,,,
Now, it is apparent that Mr. Deepak Beri has argued vehemently against this position since he believes that 30.06.2016 was merely a tentative",,,,,
date of separation, as reflected in Clauses 16 and 34 of the MoU, rather than a final date of separation set in stone. He is of the opinion that the date",,,,,
was proposed, not ultimately accepted. The crux of his contention is that the settlement agreements envisaged a certain order in which the partition",,,,,
was to be carried out, first the parties would effectuate all the steps set out in the three agreements, and once all of them were complete, they would",,,,,
pronounce an appropriate date of separation which would be backdated. Thus, he has urged that the steps and their completion were to compulsorily",,,,,
precede any fixing of date of separation, and the entire exercise of first pronouncing a date of separation is contrary to the tenor of the agreements. I",,,,,
have carefully considered this aspect vehemently urged by Mr. Deepak Beri and find that there is absolutely no stipulation in the agreements which,,,,,
backs this interpretation. In fact, neither the language of the agreements nor the circumstances surrounding the execution thereof support this line of",,,,,
argument. Rather, the tenor of the agreements appears to be starkly in favour of finalising a date of separation and correspondingly working towards it",,,,,
at the earliest possible date, rather than waiting for the parties to follow through with the steps as a preliminary requirement of finalising the partition",,,,,
date. Express stipulation in the Deed to the effect that the auditing of stocks, consumables and related issues were to be concluded by 15.05.2016, the",,,,,
statutory audits were to be carried out by 30.06.2016, and that Mr. Deepak Beri was granted time till 30.06.2016 to arrange for working capital on his",,,,,
own as also fixing of travelling budget of sales personnel only till June 2016 show that 30.06.2016 was to act as a point of reference, a cut-off date.",,,,,
Ultimately, as mentioned above, this Court cannot step out of the confines of the settlement and render a finding on fiction, and this submission of Mr.",,,,,
Deepak Beri that the completion of steps would precede fixing of a date of Separation does not appear to be based on a proper interpretation of the,,,,,
settlement at all.,,,,,
Mr. Deepak Beri has also sought to place reliance on several orders passed by this Court in order to contend that this Court had taken judicial,,,,,
cognisance of the position that the Date of Separation was not 30.06.2016. He has further urged that since Mr. Atul Beri failed to object to this,,,,,
conclusion in each of these orders at the relevant time, he has tacitly consented to the position that separation has not taken place. He has urged that",,,,,
in the order dated 15.12.2016, this Court had signified its intent to appoint an Escrow Agent to implement the steps towards separation, but Mr. Atul",,,,,
Beri did not agitate at that time that any court-monitored separation ought to be carried out by keeping 30.06.2016 in mind as the Date of Separation.,,,,,
He has contended that the next order passed on 03.01.2017 directed a physical audit of the stock, plant and machinery, receivables, books of accounts,",,,,,
statutory and other records as on that date, which was again never assailed by Mr. Atul Beri who has been presently urging that all like audits should",,,,,
be carried out as on the date of 30.06.2016. Finally, by placing reliance on the order dated 01.11.2018, he contends that even then the Court was trying",,,,,
to find a way for the parties to move forward, which implied that separation had not taken place. I have carefully taken this point into consideration",,,,,
and perused the orders which Mr. Deepak Beri has sought to rely on. To begin with, there is no quarrel with the position that complete separation has",,,,,
not taken place. In fact, paragraphs 2,3 and 8 of the order dated 01.11.2018, on which such heavy reliance has been placed, only records that the",,,,,
assets must be divided in accordance with the award and, clearly, this order neither makes any mention of the date of separation nor does it proceed",,,,,
on the assumption that no such date has been fixed. Even the order dated 03.01.2017 does not contain any determinative finding on the issue which is,,,,,
being dealt with by this Court, i.e. the stipulation of a cut-off date. Rather, all the orders sought to be relied upon show an earnest attempt of the Court",,,,,
to arrive upon some interim arrangement till these enforcement petitions were finally decided.,,,,,
In view of my discussion thus far, while I am already of the considered opinion that Mr. Deepak Beri’s contention that 30.06.2016 was not the",,,,,
Date of Separation is not tenable, there is another reason to reject this plea. A glimpse at the extract from the Deed reproduced in paragraph 25 above",,,,,
shows that if either of the parties wanted to change the date of separation, which had been fixed as 30.06.2016, a mechanism had been provided",,,,,
therein to address the dispute by designating the learned Arbitrator as the final deciding authority. In the light of this provision and the fact that the,,,,,
learned Arbitrator had not altered the date of 30.06.2016 in his award or fixed another date of Separation, it is manifest that the date of 30.06.2016 is",,,,,
the final date of separation. In any event, it was also open to Mr. Deepak Beri to move an application before the learned Arbitrator to seek a change",,,,,
or clarification of this date which, as per the admitted position, he did not elect to do. In fact, as has been brought to the notice of this Court by his",,,,,
father and brother, even when their Section 34 petitions against the Award was being considered, Mr. Deepak Beri did not claim a change in the date",,,,,
of separation. Furthermore, it is also interesting to note that Mr. Deepak Beri has previously, in the Section 9 petition filed by him in August 2016,",,,,,
stated in no uncertain terms that the date of separation stipulated in the settlement agreements was 30.06.2016. An extract of this paragraph reads as,,,,,
under:,,,,,
“That a perusal of the aforesaid MOU shows that detailed terms were agreed upon between the parties as to the division of the assets. In,,,,,
fact, it was also agreed in the aforesaid MOU that the effective date of separation would be June 30, 2016 and in the interim a working",,,,,
arrangement would be put in place, as detailed in the MOU.â€",,,,,
Thus, any attempt by Mr. Deepak Beri to feign innocence of the Date of Separation or the factum of having agreed to it in the settlement",,,,,
agreements executed by him, cannot hold ground. I am fortified in this view since the same adheres to the dicta of the Hon’ble Supreme Court in",,,,,
Hari Shankar Singhania (supra) and Kale (supra), relied upon Mr. Deepak Beri, insofar as it is the best course to effectuate the settlement",,,,,
agreements and fulfil the intentions of the family. Both the brothers are admittedly in favour of ending this dispute once and for all and ultimately want,,,,,
this Court to adopt an interpretation which is not only correct in law but also unhindered by technical objections. This is obvious from the prayers in,,,,,
these enforcement petitions, Mr. Deepak Beri has prayed for the following reliefs:",,,,,
“a. Order(s) enforcing the Award dated 02.08.2016 passed by the Arbitrator;,,,,,
b. Appointment of an Observer to oversee the implementation of the division process using the aid and assistance of such persons as may be,,,,,
deemed fit;,,,,,
c. Restraining the parties from acting contrary to the Award and the settlement document;,,,,,
d. Conducting a special / forensic audit for the family concerns to examine the extent of siphoning by Mr. Atul Beri; and,,,,,
e. Appointment of a receiver to take charge of all assets and take over the affairs of the family concerns during the pendency of the division,,,,,
process.â€,,,,,
On the other hand, Mr. Atul Beri has prayed for the following reliefs in his enforcement petition:",,,,,
“i) Pass an order enforcing the Award dated 02.08.2016, to the extent upheld by judgment of this Hon'ble Court dated 31.05.2018, in",,,,,
O.M.P. (Comm.) 396/2016 and O.M.P. (Comm.) 382/2016, taking into account details of the remaining steps required to be taken for such",,,,,
enforcement, as detailed by the Petitioner/ Award Holder hereinabove;",,,,,
(ii) Pass an order restraining the Judgment Debtors or any other person from acting contrary to the terms of the Award dated 02.08.2016.,,,,,
(iii) Pass any other such order as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.â€,,,,,
Thus, the reliefs sought in the petitions preferred by the brothers also show their common intent to ensure that the family businesses, which are as",,,,,
a matter of fact operating independently from each other, are formally and completely separated in law. These parties have been in litigation for over",,,,,
four years now, which has not done any favour to the bitterness and acrimony between them which was the very reason for beginning the process of",,,,,
partition in the first place. Their well-intended decision to appoint Mr. Nagrath to mediate and arbitrate their disputes and execute the three settlement,,,,,
agreements together may have resulted in an immediate backfiring due to a few differences in their opinions, which is expected in intimate familial",,,,,
disputes, but the same cannot be permitted to mushroom any further into even more complicated cycles of litigation. When the parties have made their",,,,,
mutual wish to achieve a quietus in this matter known, there is no reason for their disputes to languish any further before this Court without resolution.",,,,,
For this reason, it was always a matter of the utmost importance to ensure that both parties are duly heard and all their pleadings are thoroughly",,,,,
perused to mete justice to everyone concerned. Thus, even though the agreements, especially the Deed dated 30.04.2016, had clearly set out a date of",,,,,
separation, this Court felt the necessity to go further and examine the steps that the parties had taken during the period of executing these agreements",,,,,
and thereafter. Considering that a number of major steps towards separation stood accomplished, barring those which were dependent on certain",,,,,
accounting and auditing exercises, and the brothers have continued to operate their businesses separately and independently of each other since",,,,,
30.06.2016, I have no hesitation in holding that the date of separation of businesses of the family concerns of the Beri family among Messrs. Atul and",,,,,
Deepak Beri, as per the settlement agreements executed by them on 17.02.2016, 14.03.2016 and 30.04.2016, was 30.06.2016.",,,,,
Thus, it is clear that after 01.07.2016, neither does Mr. Deepak Beri have any right or access to DBEPL and BMGL nor does Mr. Atul Beri have",,,,,
any right or access to DBC and SKB. For this reason, the prayers made by both Messrs Atul and Deepak Beri in their Section 9 petitions seeking",,,,,
right of access to the premises or records of, inter alia books of accounts, bank accounts, stock registers of raw materials, plant & machinery, ERP",,,,,
software systems, e-mail addresses, domain names, tax records, etc., of the businesses which are not falling in their share cannot be granted.",,,,,
In the light of this conclusion, it is now time to chart a course for the future by determining how the assets need to be partitioned with reference to",,,,,
the Date of Separation being 30.06.2016. Since it is the common case of the parties that complete separation had not taken place by 30.06.2016 and,,,,,
some steps still need to be taken, they have placed voluminous pleadings on record to suggest further steps which are required to be taken to complete",,,,,
the remaining steps of separation as also to substantiate their claims of the outstanding sums accruing to them. With respect to the latter, they are ad",,,,,
idem that the accounts for all the businesses as on 30.06.2016, which were required to be drawn up, were not. However, they also agree that",,,,,
accounts for the years till 31.03.2015 are available with them, as also the Local Commissioner’s report on this aspect till 15.05.2017 which records",,,,,
the position of the assets, salaries, etc, as on that date. Thus, in my view, there is considerable material available today to draw out the relevant",,,,,
accounting records for 30.06.2016.,,,,,
As can be seen from the tables reproduced in the Addendum, which are a small fraction of the suggestions received from Deepak Beri, Atul Beri",,,,,
and Mr. S.K. Beri, there are a few nitty-gritty left to be taken care of, not to mention the significant aspect of drawing up the accounts. However,",,,,,
having regard to the nature and complexity of the accounts which need to be drawn up and the steps left to be taken to seal the separation by using,,,,,
30.06.2016 as the Date of Separation, I am of the view that it would be necessary to appoint a Court Commissioner and a Chartered Accountant, to",,,,,
assist him, and obtain a report from them before proceeding to issue any further directions.",,,,,
The Court Commissioner shall call for and examine the records of all the four businesses pertaining to (i) statutory liabilities and profits, (ii) tangible",,,,,
assets including employee transfers, raw materials, plants and machinery, consumables as existing on 30.06.2016, (iii) intangible assets including",,,,,
software, salaries, bank liabilities, pending orders as they stood on 30.06.2016. While dealing with these aspects, the Court Commissioner shall take",,,,,
into consideration the list of plants and machineries prepared by the learned Arbitrator on 10.06.2016 and the four reports furnished by the previous,,,,,
Court Commissioner appointed by this Court on 03.01.2017. Once this exercise is complete, the Court Commissioner shall reconcile the data pertaining",,,,,
to the tangible and intangible assets, as they existed on 30.06.2016 with the help of the Chartered Accountant, and furnish a detailed report bearing",,,,,
their valuation of the intangible and tangible assets which stand divided thus far. While doing so, the Court Commissioner shall include the following",,,,,
aspects:,,,,,
i. The quantum of amount spent by either parties in pursuance of court orders or otherwise, as payments to each other or to discharge the liabilities of",,,,,
the businesses which were not falling in their share, including all payments made towards disbursement of salaries, increments, statutory dues, etc.",,,,,
ii. The valuation of the machineries which stood transferred to both the parties on 30.06.2016.,,,,,
S.No.,Agreement between the parties,How acted upon,,,
1.,"Shri Deepak Beri (DB) to carry on
business in the name of M/s DB
Engineering Co. (DBEC) or any
other name. Shri Atul Beri (AB) to
carry on business in the name of
M/s DB Engineering Pvt. Ltd.
(DBE) and M/s Benaras Marble &
Granite Ltd. (BMG)","The parties have accepted the respective names
in which they are to carry on future business.",,,
2.,"DB to get the premises situated in
Sectors 6, 59 and 64, NOIDA
(U.P.) owned by DBC, DBE and
property No.A-119, Okhla which is
owned by M/s S. K. Beri& Bros.
(SKB&B)","DB is in possession of Sector 6, 59 and A-119
Okhla properties. However, DB is yet to receive
possession of premises in Sector 64, NOIDA,
which is being illegally retained by AB.
In addition, the transfer of title of the other
premises is also pending. Bank has ordered
release of hypothecated documents of Sector 59
and Sector 64, which only needs to be collected
from the bank by signing the register by all three
parties.",,,
3.,"AB to get property situated
in Sector 68, Sector 11, NOIDA as
well as property owned by BMG in
Phase- II, NOIDA","Admittedly, AB is in exclusive possession of
these three properties.",,,
4.,"AB was to be paid Rs. 7.50 crores
towards cost of construction of a
functional unit in Phase-II, NOIDA
and an additional 1 crore in terms
of Clauses 15 of the MOU","These amounts stand already paid to AB by
transferring a total amount of Rs. 11,32,00,000/-
(Rupees Eleven Crores Thirty Two Lacs only)
from the account of DBE to BMG.
The aforesaid amounts have been utilized by AB
for construction of the unit at Phase-II, NOIDA.
This fact can be clearly ascertained from the
email of AB to the Ld. Arbitrator dated
29.02.2016 wherein he requested for release of
Rs. 2.5 crores for payment to the Building
contractor. Pertinently, on the same day
payment of Rs. 2.5 crores was made to BMG by
DBE vide Cheque No. 858576.
On the strength of the payments made, AB has
been able to construct an entire unit on a barren
land.",,,
5.,Division of Logos,"This is done by a Coin Toss on 23.03.2016 duly
recorded and signed by nominees of AB and DB
in the presence of the Ld. Arbitrator and SKB,
who also signed the said paper.",,,
6.,Division of ERP Systems,"SK Beri& Bros (the concern falling to the share
of DB) purchased its own ERP Software so as
to facilitate the division process.
A sum of Rs. 9,73,248/- was spent by SK Beri&
Bros towards the same.
The underlying objective was to have separate
and distinct ERP Softwares between DBE and
SK Beri& Bros, as part of the division.",,,
7.,Employees,"The division of employees in terms of the agreed
documents has already taken place, and the
employees who have opted by DB and AB were
identified and a list was circulated on
07.07.2016.
Further, in terms of the agreed documents, an
8% increment has been given to the employees,
which is an admitted fact.",,,
8.,Servers Emails & Website,"In pursuance of the division process, separate
servers have been purchased by SK Beri &
Bros so as to de-link itself from DBE.
As part of the division process, SK Beri & Bros
have also created new email ID's with the
domain 'skberi.com' and has engaged technicians
to develop its independent website.
DB and his staff were earlier using the domain
name ""atlasknives.com"", which were disabled at
the instance of AB. This fact also shows
implementation of the division process.",,,
9.,"Copying & Scanning of Books of
Accounts","With a view to facilitate the division, it was
agreed that records / data would be retained by
DB and AB. As part of the said understanding,
the records of DBE were digitalized and
retained.",,,
10.,Intimation of Customers,"As agreed, the parties have jointly sent various
letters to customers regarding the division
between the AB Group and the DB Group.
It may be pertinent to mention here that AB has
also been writing emails to customers claiming
that the division process has taken place.",,,
11.,Working Capital and Bank Limits,"As part of the agreed documents, more
particularly in terms of Clause 32 of the MOU,
DB applied for Working Capital loan and
sanction of Credit Facilities in the SK Beri&
Bros with Canara Bank, Okhla Branch in
April2016.
On the basis of the aforesaid application, the
Credit Facilities were approved by Canara Bank
vide its letter dated 04.06.2016.
DB was also authorized by DBE vide its letter
dated 03.06.2016 (signed by SKB, AB, DB and
Ramesh Beri) to collect the original property
papers for the premises which were to fall to
DB's share.
The term loan availed by DBE has paid off in
full under the orders of this Hon'ble Court dated
22nd March, 2018 and the original documents of
all properties are currently deposited with the
Registrar General, Delhi High Court in terms of
the aforesaid order.",,,
12.,Telephone Connections,"As part of the division, an application
was made on 17.06.2016 to Airtel for
transferring telephone connections in the name
of SK Beri & Bros from DBE.",,,
13.,Booking of Orders,"Pursuant to the division process, orders were
booked in SK Beri & Bros, which was hitherto
done in the name of DBE. A perusal of the
Monthly Sales Order details shows a sudden
jump in the value of orders in SK Beri & Bros
for the months of February, March, April, May,
June and July 2016.",,,
Sr.
No.",Obligation,Clause No.,"Mode/Status of implementation &
comments",,
MOU dated 17.02.2016,,,,,
1.,"Property at B-113, 114, 115,
131, 132, Sector 6,
Noida (Owned by DBC, to go to
Deepak Beri).",2,"This plot has been in the exclusive
possession of Deepak Beri and he is
running his LLP from here.
Plot is owned by DBC, which is a 50-
50 partnership between Deepak Beri
and Anuja Beri (Atul’s wife).
Anuja may resign from DBC, leaving
the firm and property to go to the
share of Deepak.",,
2.,"Property at C-27, Sector 59
Noida, (belonging to DBEPL, to
go to Deepak Beri/SK Beri &
Bros)",2&16,"Property has been in the exclusive
possession of Deepak Beri. DBEPL
used to run its Heat treatment plant
from here. This was the mother unit
to all other units.
Deepak’s exclusive possession of
this property has severely hurt the
family business.
Atul shall cause DBEPL to execute
the requisite transfer documents, to
transfer this property to SKB,
simultaneously with Deepak (and his
wife/children) transferring their
shareholding in DBEPL and BMGL
to Atul, and resigning his Directorship
in these Companies.",,
3.,"Property at A-32, Sector 64,
Noida (belonging to DBEPL, to
go to Deepak Beri/ SK Beri &
Bros)",2&16,"Atul shall cause DBEPL to handover
possession and execute the requisite
transfer documents, in favour of
SKB, simultaneously with Deepak
(and his wife/children) transferring
their shareholding in DBEPL and
BMGL to Atul, and resigning his
Dictatorship in these Companies.",,
4.,"Property at A-119, Okhla
Phase-II (belonging to SKB, to
remain with
SKB/Deepak)",2,"This property is in possession of
Deepak Beri. He is supposedly
running S.K Beri and Bros from the
same, but actually he is clandestinely
running his LLP.
Since SKB goes to Deepak Beri, no
transfer documents are required to be
executed.",,
5.,"Property at B-1, Sector 68,
Noida (belonging to DBEPL, to
go to Atul)",4,"In possession of DBEPL. No
execution of title documents required.
As per the MoU, One-Time Lease
Rent was to be borne by DBE and
AB-50/50. This has not happened,
and has to be accounted for, while
computing final adjustment of
accounts.",,
6.,"Property at F-61, Sector 11,
Noida (belonging to DBEPL, to
go to Atul)",4,"In possession of DBEPL/Atul. No
execution of title documents required.",,
7.,"Property at C-57, Phase II,
Noida (belonging to BMG, to go
to Atul)",4,"In possession of BMG/Atul. No
execution of title documents required.
Deepak to resign as Director from
BMG and hand over shareholding.",,
8.,"Plot at C-12 Ecotech-11,
Greater Noida, to go to Atul",4,"Possession awaited by DBEPL.
Deepak Beri be directed to handover
requisite documents of allotment.",,
9.,"Rs. 7.5 Cr. to be paid to Atul
Beri for Phase II BMG Unit.",5&14a,"Not done/pending.
Has to be accounted for, while
computing final adjustment of
accounts.",,
10.,"Transfer charges payable by
DBEPL.",6&14b,"Will be paid by DBEPL at the time of
execution of title documents.",,
11.,"Refund of electricity security
deposit for Sector 59 and 64.",6,"When DBEPL receives this from
UPPCL, it will be shared between
Deepak and Atul (50- 50).",,
12.,"Equal sharing of statutory
liabilities/profit (till date of
division i.e. 30.06.2016)",7,"Has to be accounted for, while
computing final adjustment of
accounts.",,
13.,"Division of tangible assets
including Plant and machinery,
Inventory, and Consumables","8
13","For machinery, there was a list
prepared by Mr. Nagrath dated
10.06.2016, as per MoM dated
14.03.2016.
Division and physical shifting of
machinery as per the Nagrath list
started immediately and continued till
about 30.06.2016 but could not be
completed because Deepak Beri did
not co- operate and started raising
disputes.
Division of machinery can continue
and be completed as per the Nagrath
List.
Some Inventory and consumable have
been consumed with passage of time,
they can be divided physically to the
extent possible and if required their
value as on 30.06.2016 can be
divided, as per the statutory records.",,
14.,Software,27,"New accounting software has been
purchased by Deepak Beri using
common funds (from SKB, prior to
30.06.2016).
Atul Beri also need to buy new
software from common funds, since
the old licenses have expired. The
cost of new licenses may be
accounted for while computing final
adjustment of accounts.",,
15.,Division of logo,9,Done & implemented (on 23.03.2016),,
16.,"Separation of original data and
documents",10,"Pending, as in Deepak’s control.
Deepak claims to have digitized the
record, for which money from
common funds was used. The same
needs to be supplied to Atul.",,
17.,"Transfer of domain
www.atlasknives.com",11,"Pending as in Deepak’s control.
Deepak be directed to transfer the
domain name to Atul.",,
18.,Bank Liabilities,14c,"All liabilities cleared from DBE. Extra
interest paid by DBE may be
accounted for, while computing final
adjustment of accounts.",,
19.,"Change in constitution of
companies/cost",14d,"The same will be taken into account
while computing final adjustment of
accounts.",,
20.,"Rs. 1 Cr. to AB for getting
lesser properties",15,"Not done.
May be accounted for, while
computing final adjustment of
accounts.",,
21.,"Documents for effecting
separation",16,"Pending, can be done at the time
Deepak and Atul exit from each
other’s entities.",,
22.,"Transfer of Ever Sharp Knives
to the highest bidder and closure
of IE.",18,"Pending, to be done by executing
Court.",,
23.,New Security,21,"Done, with effect from May 2016.",,
24.,"Accounts and I.T Department at
Okhla.
Access to be shared with AB by
DB",22,"Deepak has been refusing to share.
May be directed to do so.",,
25.,Employee transfer,24,"As per MoM of 14.03.2016,
employees have exercised their option
of choosing which brother they wish
to work for.
This was done in March/April 2016.
However, from 30.06.2016 to
28.02.2018, workers who had chosen
to be with Deepak Beri, but remained
on the official rolls of DBE, were paid
by DBE. Deepak has to compensate
DBE for the same. This may be
accounted for while computing final
adjustment of accounts.",,
26.,Compensation to employees,25,"Full and final settlement upto
30.06.2016, may be accounted for,
while computing final adjustment of
accounts.",,
27.,Division of Net Current Assets,31,"· The Net current assets of DBEPL
as on 30.06.2016 were Rs. 13.35
Crores (share of S.K Beri @ 40%).
· The Net current assets of BMGL
as on 30.06.2016 were Rs (-) 19..5
(share of
S.K Beri @ 33%).
· The Net current assets of SKB as
on 30.06.2016 were Rs. 19.10 crores
(share of S.K Beri @ 50%).
· The Net current assets of DBC as
on 30.06.2016 were Rs. 0.15 crores
(no share of S.K Beri).
· Thus, total NCA of the entities
stood at Rs. 13.45 crores, after
exclusing Mr.
S.K Beri’s share of Rs.
8.57 Crores, as on 30.06.2016, the
same stood at Rs. 4.88 crores.
· Thus, Atul and Deepak’s
share in the NCA is Rs.
2.441 crores each.
· Deepak has to bring back a sum
of Rs. 13.4 crores, representing the
salaries and other dues paid for his
employees (working at his units), and
other statutory dues pertaining to his
units, paid post 30.06.2016, by
DBEPL.
· Thus, from division of NCA, the
sum receivable by Atul is Rs. 1.22
crores and the sum payable by
Deepak is (Rs. 13.40- 1.22) =
Rs.12.18 crores.",,
28.,Division of loans,32,"Not required since loans paid off.
Extra interest has to be accounted
for, while
computing final adjustment of
accounts.",,
29.,"SKB to give his portion
ultimately",33,No comments on behalf of Atul Beri.,,
30.,"Proposed family settlement to be
made as per parents wishes",34,Parents alone can decide.,,
MOM dated 14.03.2016,,,,,
31.,Plant and Machinery Division,5,"Division of machinery can take place
as per the Nagrath List.",,
32.,Compensation for Employees,4,See above.,,
33.,Logos,1,Done,,
34.,Order Division,,Done,,
35.,Stock,,"Division of stocks as on 30.06.2016
can be done as per statutory records.",,
,5.,,"@Clause 10, MOU: Separation of original data and documents
• Deepak claims to have digitized the record, for which money from common funds
was used. The same needs to be supplied to Atul.",,
,6.,,"@Clause 11, MOU: Transfer of domain www.atlasknives.com
• Deepak be directed to transfer the domain name to Atul.",,
,7.,,"@Clause 14c), MOU: Bank Liabilities
• All liabilities cleared for DBEPL. Extra interest paid by DBEPL, may be
accounted for, while computing final adjustment of accounts.",,
,8.,,"@Clause 14d, MOU: Change in constitution of companies/cost
• The same will be taken into account while computing final adjustment of
accounts.",,
,9.,,"@Clause 15, MOU: Rs. 1 Cr. To AB for getting lesser properties.
• Yet to be done.",,
,10.,,"@Clause 16, MOU:Deepak to hand-over all documents pertaining to DBEPL in his
possession, including but not limited to Customs shipping bills, Customs certified
invoices, import/export books, DGFT licenses (90 in number).",,
,11.,,"@Clause 18, MOU: Transfer of Ever Sharp Knives to the highest bidder and closure
of IE Trading.
• Pending, to be done by the executing Court.",,
,12.,,"@Clause 21, MOU: New Security
• Done, with effect from May 2016.",,
,13.,,"@Clause 22, MOU: Accounts and I.T Department at Okhla.
• Access to be shared with Atul by Deepak, but Deepak has been refusing to do
so.
• Deepak may be directed to share access.",,
,14.,,"@Clause 24, MOU: Transfer of Employees
• The employees working at the units of DBEPL, under the control of Deepak, to
be transferred to SKB.
• As admitted by Deepak in para 48(7) of his Execution Petition, division of
employees between Deepak and Atul took place in February 2016.
• Thereafter, Deepak's employees have been working exclusively at the units under
his control, which admittedly contribute no revenue to DBEPL.
• Thus, only a formal transfer of employees from one entity to the other is pending,
which should be done as there can be no dispute that the employees working at
Deepak's units have to move to SKB.
• Deepak has to compensate DBEPL for the salaries, PF dues and other charges
paid for his employees and/or Units, post 30.06.2016. As on date, the amount payable
by Deepak under this head is Rs.
13.4 crores (approx.).",,
,15.,,"@Clause 25, MOU: Compensation to Employees
• May be accounted for, while computing final adjustment of accounts.1",,
,16.,,"@Clause 32, MOU: Division of loans
• Not required since loans paid off. Extra interest has to be accounted for, while
computing final adjustment of accounts.",,
,17.,,"Withdrawal of complaints and Indemnity by Deepak.
• Deepak has filed complaints against DBEPL before various authorities, including
Income Tax, GST, PF, TDS, SFIO related complaints.
• Deepak must withdraw all such complaints and undertake not to file further
complaints.
• Deepak must provide an indemnity to Atul that he shall share in any tax or other
statutory liability, if imposed prior to the cut-off date.
• All liabilities have to be shared prior to the cut-off date.
Thus, if any tax or statutory liability is imposed prior to the cut-off date, especially as a
result of complaints initiated by Deepak, he must bear his share of the same.",,
,18.,,"Deepak to give details of all liabilities created by him, in the name of DBEPL, post
30.06.2016, and discharge the same
• Deepak has been in possession of DBEPL's Unit at C-27, Sector 59 Noida.
• He must give details of all liabilities created in the name of DBEPL, with respect
to this unit, since 30.06.2016, discharge the same, and indemnify against any claims
raised upon DBEPL, pertaining to this unit.",,
,19.,,"Clauses 4, 5, 14 (a) of MoU, r/w clause 6 (under miscellaneous) of
the MoMdt. 14.03.2016:Rs. 9.30 Cr. To be paid to AtulBeri.
Not done /pending.
Has to be accounted for, while computing final adjustment of accounts, or at the time
of exchange of properties, whichever happens first.",,
,20.,,Exchange of properties: -,,
,,,Property/Company,Mode of Implementation,
,,,,,
,,,,,
,,,"@Clause 2, MOU:Property at B-113,
114, 115, 131, 132,
Sector 6, Noida, (Owned by DBC, to
go to Deepak Beri).","•This plot has been in the exclusive
possession of Deepak Beri and he is
running his private LLP from here.
•This plot is owned by DBC, which
is a 50-50 partnership between
Deepak Beri and Anuja Beri
(Atul’s wife). Anuja may resign
from DBC, leaving the firm and
property to go to the share of
Deepak.",
,,,"@Clause 2 & 16, MOU: Property at C-
27, Sector 59 Noida, (belonging to
DBEPL, to go to Deepak Beri/SK Beri
& Bros)","• Property has been in the
exclusive possession of Deepak Beri.
DBEPL used to run its heat treatment
plant from here. This was the mother
unit to all other units. Deepak’s
exclusive possession of this property
has
severely hurt the family businesses.
• Atul shall cause DBEPL to
execute the requisite transfer
documents, to transfer this property to
SKB, simultaneously with Deepak
(and his wife/children) transferring
their shareholding in DBEPL and
BMG to Atul, and resigning his
Directorship in these Companies.",
,,,"@Clause 2 & 16, MOU: Property at A-
32, Sector 64, Noida, (belonging to
DBEPL, to be given to Deepak Beri
/S.K Beri & Bros).","• Out of the Units in Atul’s
possession at the time of execution of
the agreements, the Unit @ Sector 64
Noida, had to be handed over to
Deepak as per the MOU.
• Correspondingly, as per Clauses
4, 5, 14 (a) of MoU, r/w clause 6
(under miscellaneous) of the MoM dt.
14.03.2016, Atul is to receive a total
sum of Rs. 9.30 crores.
• The crystallised monetary sum(s)
receivable by Atul were provided for
(a) in view of the difference in
property values, and (b) to
compensate him, since he was losing,
and Deepak was gaining an additional
unit.
• Accordingly, possession and/or
title of this unit can be handed over to
Deepak, upon Atul receiving the sum
of Rs. 9.30 crores, as per Clauses 4,
5, 14 (a) of MoU, r/w clause 6 (under
miscellaneous) of the MoM dt.
14.03.2016, as compensation",
,,,"@Clause 2, MOU: Property at A-119,
Okhla Phase-II, belonging to SKB to
remain with SKB/Deepak.","Since SKB goes to Deepak Beri, no
transfer documents are required to be
executed.",
,,,"@Clause 4, MOU: Property at B-1,
Sector 68, Noida (belonging to DBE, to
go to Atul)","In possession of DBEPL. No
execution of title documents required.
However, as per the MoU, One-
Time Lease Rent was to be done by
Deepak and Atul- 50-50. This has not
happened, and has to be accounted
for, while computing final adjustment
of accounts.",
,,,"@Clause 4, MOU: Property at F-61,
Sector 11, Noida (belonging to DBE, to
go to Atul)","In possession of DBEPL/Atul. No
execution of title documents required.",
,,,"@Clause 4, MOU: Plot at C-57, Phase
II, Noida (belonging to BMG, to go to
Atul)","In possession of BMG/Atul. No
execution of title documents required.
Deepak to resign as Director from
BMG and hand over shareholding.",
,,,"@Clause 4, MOU: Plot at C-12,
Ecotech-11 Greater Noida, to go to Atul.","Possession awaited by DBEPL.
Deepak Beri be directed to handover
requisite documents of allotment.",
Status as on 24.07.2018,,,,,
S.No.,DOA,Person Required,"Required
Steps/Action",Implementation,
1.,Existing Order,Auditor/Receiver,"List out all orders that
are available/pending in
value","Distribute orders
equally or share
percentage of profit.",
2.,Additional Orders,Auditor/Receiver,,,
3.,Hidden Orders,Auditor/Receiver,,,
4.,"Payment to
Vendors",Auditor/Receiver,"Over 20 Cr. Already
paid by both, now
therefore get forensic
audit done, list out
those that are correct
on date.","Calculate liability and
then share equally.
Pay if Bank Balance
available after
splitting or account for
in the current assets
and liabilities.",
5.,"Staff (No
retrenchment, no
soliciting,
full and final
payment and
clear)",Auditor/Receiver,"Make list of all those
leaving DBE, make full
and final settlement
upto date.","Pay from DBE
account.",
6.,"Raw Material
POs to be signed
by both parties
then entered.",Auditor Receiver,"Forensic audit to be
done since this step
was not followed.","Distribute final figure
equally. Compensate
each other for
difference, if any.",
7.,"WIP, RM,
Finished Goods",Auditor/Receiver,"Forensic Audit to be
done to arrive at
correct figure.","Distribute final figure
equally.",
8.,"Production to be
caried out",Receiver,"Receiver takes over
and fixes up a date till
separation.","All audit and paper
work to be completed
and then distribute
equally.",
9.,"Managing
Plant/all
departments were
to be done with
intimation by MN
also",Receiver,"Receiver takes over,
appoint new Security
Co.","Handover to individual
Group on fixed date.",
10.,"Security
Independent
Security to be
appointed and no
movement without
approval.",Receiver,"Receiver takes over,
appoints new Security
Co.","Hands over to
individual group on
DOS.",
11.,"Books of Account
Everything to be
recorded and
checked Balance
sheet to be made
given books of
last 3
years to Auditor.",Auditor/Receiver,"Get forensic audit done
along with regular
Audit and finalise
accounts","Divide the final
equally.",
12.,"IT Separate, B &
G and other
software",Auditor/Receiver,"List out all that is there
make 2 equal list.","Distribute equally by
Toss.",
13.,Travelling,,,,
14.,"Independent Unit
running not
allowed",Auditor/Receiver,"List out all the
independent units.
Clear them or take
them within the
company till DOS.","Hand them back on
DOS.",
15.,"P&M List to be
made and
distributed.",Auditor/Receiver,"Appoint Chartered
Engineer to value
machine as per CC list
and make 2 equal lists.","Distribute equally by
Toss.",
16.,"Intangible Mainly
software",Auditor/Receiver,"List out all that is
owned by the company
after
Forensic Audi
available, make 2 equal
lists.","Then distribute equally
by Toss.",
17.,Working Capital,,"Approach Bankers
independently.",,
18.,"The 30.06.2016
was the DOS or
any other date as
per MN, all
documents to be
made by DOS.",Receiver,"Fix up future date of
DOS, all accounts upto
DOS to be made,
documents made of
ownership transfer
assets and liabilities.
Keep with Escrow","Handover to each
group.",
19.,"Specific Audit and
adjust in DB/AB
Account",Auditor/Receiver,"Appoint Forensic
Auditor for this.","Adjust whatever is the
difference in each
unit/group.",
20.,Expenses of C1,Auditor/Receiver,"Not required since the
date 31.03.2016 did
not work out.",,
21.,"Efforts to finalise
account by
30.06.2016
and all accounts
to be finalized by
then.",Auditor/Receiver,"Fix new date for
finalisation of Forensic
Audit as well as
Statutory Audit.","Sign Balance Sheet
and file with different
Authorities.",
7.,"Statutory assets and
liabilities to be equal",Auditor/ Receiver,"Get forensic
audit done and
complete
account upto
DOS.","Pay all the dues of all
companies and file all
returns.",
8.,"All tangible and
intangible assets to be
divided",Auditor/ Receiver,"Get forensic
audit done also
chartered
engineers to
make 2 equal
lists.","Divide by Toss and
handover the each
person at his units.",
9.,Atlas logo to be divided,Auditor/ Receiver,"Get Board
Resolution
made by DB
Engg(P) Ltd
for transfer.","Handover to Deepak
on DOS.",
10.,"Date &
Documents to be
exchanged.",Auditor/ Receiver,"Make a list of
all that is
required for
each other
including DB
Engg(P) Ltd.
Board
Resolution",Hand over to DOS.,
11,Atlas domain name,Receiver,"Make all the
papers
required",Handover on DOS,
12,"Deepak can use atlas
knives after 2 years",Receiver,"Undertakin g
from Deepak
to this effect",Hand over on DOS,
13,Machine List,Auditor/ Receiver,"List of
CC’s is
authentic, get
Chartered
Engineers to
value, make
two equal
groups","Toss for which list to
where and then shift to
each other unit before
DOS",
14.,Money for separation,Auditor/ Receiver,"Keep 10-
12 Cr in
Escrow","Use whatever is
required? Balance to
be distributed on DOS.",
15.,Atul to be paid 1 Cr,Auditor/ Receiver,"Get Audit
done","Pay or get back as
required",
16.,30.06.16 as cut off date,Receiver,"Decide new
date possibly
60 days ahead","Finish everything by
then",
17.,Documents to be made,Auditor/ Receiver,"Make all
documents get
them signed,
keep in
Escrow",Exchange on DOS,
18.,"IE & Eversharp to be
distribute",Auditor/ Receiver,"IE
insolveme nt
for Eversharp
toss or bid and
make papers
for transfer.",Handover on DOS,
19.,"Entries in Books with
approval of both",Auditor/ Receiver,"Get forensic
Audit done
and account
for everything","Make adjustment on
group account as
required.",
21.,Common Security,Auditor/ Receiver,"Appoint
independe nt
security in all
units",Handover unit on DOS,
22.,"IT Personal &
Hardware",Auditor/ Receiver,"List out
whatever is
not done","Handover unit to each
group",
23.,"Representative to be
run units i.e. other than
family",Receiver,"Receiver is
appointed, he
is not family","Hand back everything
on DOS",
24.,"Employees to be given
an option",Auditor/ Receiver,"Make list and
amount due
for those who
decided to
move from
DBE","Pay & Clear before
DOS",
25 & 26,"Compensation to be
given and full & final",Auditor/ Receiver,"Make list and
amount due
for those who
will move.","Pay & Clear before
DOS",
27,"Intangible Assets like
software",Auditor/ Receiver,"Make list two
equal if not
possible buy
and make
equal or
compensate in
money.","Distribute DOS
on",
28.,To have equal share,Receiver,"Will be done
once
everything is
achieved",,
29.,Restriction of Business,,"Nothing needs
to be done.",,
30.,"Accounts to be
prepared/maintain ed till
date with knowledge of
all",Auditor/ Receiver,"Get forensic
Audit done","Books and final
account to be made
upto DOS finalized
and signed by all.",
31.,"Current assets to be
divided",Auditor/ Receiver,"Get Forensic
Audit done
arrive at
correct figure",Divide equally,
32,"Will approach bank for
working capital",,No Limit now,"Both can Do
individually after DOS",
33,SK Beri holds his share,Auditor/ Receiver,"Take average
share in all
companies
arrive at his
percentage of
ownership","Get papers made for
his share, also papers
for his shares finally
going to Deepak and
Atul.",
34,"Nitting Gritting to be
worked out",Receiver,"Receiver to
decide",Receiver to decide,
35,Code of Conduct,Receiver,"Receiver to
decide",Receiver to decide,
36,"GK JB other family
properties",Court,"Oral
settlement
done","Get it in writing and
approved by Court",
37.,"All assets and liabilities
of DBE and other to be
finalized and shared
equally",Auditor/Receiver,"Get Forensic
Audit Done","Distribute equally on
DOS",
38.,No email to be sent,Receiver,"Receiver to
decide",Receiver to decide,
39.,MOU Binding,Court,"Court has
given its
order on
31.05.2018",,