1 chs1095.10 ast IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUIT NO.486 OF 2010 WITH CHAMBER SUMMONS NO. 1095 OF 2010 IN SUIT NO.486 OF 2010 Calcutta Compressions & Liquefaction Engineering Pvt.Ltd. & Anr. ....Plaintiffs. Vs. Mr. Kingshuk Ghosal of Kolkata & ors. ....Defendants. Mr. A.M.Jayakar i/b. M/s. Khaitan & Jayakar, advocate for plaintiffs. Ms. Ushajee Peri Rao, advocate for Defendant Nos. 1 and 2. CORAM:- S.J.KATHAWALLA,J. DATED:- JANUARY 19, 2011. P.C. 1. The above suit is filed by the Plaintiffs interalia for a declaration that the purported agreement(Exhibit “E” to the plaint) is illegal, void ab initio and unenforceable and that the Defendant No.12 has no right thereunder. According to the Plaintiff, the said Exhibit “E” to the plaint is purportedly executed between the Defendant No.1 and Defendant No.12 at Jharkhand. The Plaintiffs are in the business of gas supply and distribution. The Defendant Nos.1 to 11 are the original shareholders of the Plaintiff No.1 company. Plaintiff No.2 and 2 chs1095.10 Defendant No.18 by a Share Purchase Agreement dated 16th April, 2009, purchased the entire shareholding originally held by the Defendant Nos. 1 to 11. Thereafter, the Defendant No.12 approached ONGC and claimed that there exists a purported agreement entered into by and between the Defendant No.1 and Defendant No.12 prior to the said Share Purchase Agreement whereunder the Defendant No.1 had agreed on behalf of the Plaintiff No.1 to give 50% of the gas procured by it from ONGC to the Defendant No.12. ONGC by its letters addressed to the Plaintiffs objected to the purported Agreement and upon the Plaintiffs disputing the existence of the alleged Agreement called upon the Plaintiffs to sort out the issue with the Defendant No.1 and Defendant No.12. The Plaintiffs therefore, filed the present suit interalia praying for a declaration that the purported Agreement (Exhibit “E” to the Plaint) is illegal, void ab initio and unenforceable and that Defendant No.12 has no right thereunder. 2. The Defendant Nos.1 and 2 has taken out the above Chamber Summons seeking revocation of leave granted under clause XII of the Letters Patent to the Plaintiffs. In the course of arguments, Counsel appearing for the Defendant Nos.1 and 2 on instructions received in writing from the Defendant No.1 have made a statement before this Court that no such agreement (Exhibit “E” to the plaint) has been executed by and between the Defendant No.1 and Defendant 3 chs1095.10 No.12 at any point of time, as alleged by the Defendant No.12 or otherwise. The said written instruction given in writing by the Defendant No.1 to his Advocate is taken on record and marked “X” for identification. 3. The Defendant No.12, despite attempts being made to serve the writ of summons on him, is not traceable. The suit is filed by the Plaintiffs only because the Defendant No.12 had produced the purported agreement before the ONGC and tried to obstruct the gas supply by ONGC to the Plaintiffs. In view of the statement made on behalf of the Defendant No.1 that no such agreement has been executed by and between the Defendant No.1 and Defendant No.12, the Plaintiffs shall now be entitled to produce this order recording the statement of Defendant No.1, before the ONGC. If the Defendant No.12 still insists that the purported agreement was executed by and between him and the Defendant No.1, it is for the Defendant No.12, to get the execution of the document proved and obtain necessary orders from the appropriate court. 4. In view thereof, the learned advocate appearing for the Plaintiffs seeks to withdraw the suit with liberty to file a fresh suit against the Defendant No.12, if so advised, including for claim of damages sought against the Defendant No.12 in the present suit. The above suit is therefore, disposed of as withdrawn with 4 chs1095.10 liberty as sought. 5. In view of the above, the Chamber Summons is not pressed and accordingly stand disposed of. 6. Refund of court fees, if any, as per rules. (S.J.KATHAWALLA, J.)