Supreme Court - Daily Orders
Ashish Seth vs Govt. Of Nct Of Delhi . on 5 May, 2015
Bench: Dipak Misra, Prafulla C. Pant
W.P.(Crl.) 5/15
1
ITEM NO.48+49 COURT NO.5 SECTION X
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Writ Petition (Criminal) No.5 of 2015
ASHISH SETH Petitioner(s)
VERSUS
GOVT. OF NCT OF DELHI & ORS. Respondent(s)
(With appln. (s) for ex-parte stay)
WITH W.P.(Crl.) No.11 of 2015
(With appln. (s) for ex-parte stay)
Date: 05/05/2015 These petitions were called on for hearing today.
CORAM :
HON'BLE MR. JUSTICE DIPAK MISRA
HON'BLE MR. JUSTICE PRAFULLA C. PANT
For Petitioner(s) Mr. Gopal Subramanium, Sr. Adv.
Mr. Sachin Puri, Adv.
Mrs. Priya Puri, AOR
Ms. Aashtha Lamba, Adv.
Mrs. Mridul, Adv.
Ms. Nanita Mathews, Adv.
Mr. Ranjay Kr. Dubey, Adv.
Mr. Bishwajit Raj, Adv.
For Respondent(s) Mr. Akhil Sibal, Adv.
Mr. Sanjay S. Chhabra, Adv.
Mr. Sunav Rastogi, Adv.
Ms. Garima Prashad, AOR
Mr. Rajesh Kumar, Adv.
Mr. P.K. Dey, Adv.
Signature Not Verified
Mr. T.A. Khan, Adv.
Digitally signed by
Chetan Kumar
Date: 2015.05.11
Mr. B.V. Balram Das, Adv.
Mr. Shalinder Saini, Adv.
17:02:20 IST
Reason:
Ms. Akanksha Kaul, Adv.
Mr. D.S. Mahra, Adv.
W.P.(Crl.) 5/15
2
Mr. Gaurav Goel, AOR
Mr. P. N. Gupta, AOR
Mrs. Bharti Gupta, Adv.
Mr. Aishwarya Patak, Adv.
Mr. Ravi Prakash Mehrotra, Adv.
UPON hearing the counsel the Court made the following
O R D E R
Issue rule nisi.
This Court on 14th January, 2015, had passed the following order:
“Heard Mr. Dushyant Dave, learned senior counsel for the petitioner, Mr. Vishwanathan, Mr. Akhil Sibal, learned senior counsel and Mr. P.N. Gupta, learned counsel for respondent Nos.2, 4 and 6, who have entered caveat.
In course of hearing, a suggestion was given, as the controversy in this case pertains to payment of money as alleged, it should be sent for mediation. Though there was initial hesitation at the beginning, learned counsel for the parties left it to the discretion of the Court. Regard being had to the facts and circumstances, we are inclined to send the matter for mediation subject to deposit of Rs.10,00,00,000/- (Rupees ten crores only) within a period of three weeks before this Court. The amount, if deposited, be invested in an interest bearing account in the UCO Bank, Supreme Court Compound, New Delhi.
As an ad interim measure, it is directed that the petitioner shall not be taken into custody in connection with FIR No.513 of 2014 dated 31.7.2014 and FIR No.808 of 2014 dated 25.09.2014 lodged at Police Station, New Agra and Police Station Vasant Kunj, New Delhi, respectively and Criminal Case No.235 of 2014 filed before the Special Judge, Agra.
W.P.(Crl.) 5/15 3 Let the matter be listed on 09.02.2015 for nomination of the mediator.” In pursuance of the aforesaid order, a sum of Rs.10 crores was deposited before the Registry of this Court and vide order dated 9th February, 2015, this Court requested Mr. Justice R.V. Raveendran, formerly a Judge of this Court to mediate between the parties. Thereafter, the learned Mediator mediated and has submitted the interim report.
Taking cognizance of the interim report, on 10 th April, 2015, the following order came to be passed:
“We have perused the interim report of the learned Mediator. It reads as follows:
“This Hon'ble Court by order dated 09.02.2015, referred the matter to mediation so as to enable the parties to arrive at a negotiated settlement.
In pursuance of the above, mediation meetings were held on 14.02.2015, 16.02.2015, 17.02.2015, 18.02.2015, 10.03.2015, 15.03.2015 and 07.04.2015 at New Delhi. The meetings were attended by Mr. Surender Seth and Mr. Ashish Seth with their counsel, Mr. Sachin Puri on one side, and Mr. Sumit Mittal and Mr. Madhur Mittal with their counsel Mr. Sanjay S. Chhabra on the other side.
After detailed negotiations and discussions and exchange of various alternatives, parties have arrived at a broad consensus, without prejudice to their respective rights and contentions. Parties are further negotiating to give shape to the W.P.(Crl.) 5/15 4 terms agreed, in a manner which will effectively express what has been agreed, and put an end to the disputes and at the same time safeguarding their respective interests.
As several issues relating to legal and taxation issues require to be sorted out with the advice of experts, the parties have not been able to finalise the terms and execute the Memorandum of Settlement.
On the joint request of the parties, further mediation meetings are scheduled for 11.04.2015, 12.04.2015 & 15.04.2015 for further negotiations and finalisation of the draft Memorandum of Settlement.
It is expected that the said process is likely to take at least two more weeks and, therefore, it is respectfully submitted that the time for completion of mediation process be extended till the end of this month.” Having perused the Mediation Report, we are of the prima facie view that the parties to this litigation, in their participation in the mediation process, has reflected not only their prudence, but also, if we permit ourselves to say so, Solomon's wisdom, and we are sure that both the parties shall stay embedded to the said wisdom and in the ultimate eventuality arrive at a settlement. We say so with the hope and also regard being had to the faith shown by the parties in each other and in the process of mediation.
The interim order passed on the earlier occasion shall remain in force till the next date of hearing.
Let the matters be listed on 24th April, 2015.” W.P.(Crl.) 5/15 5 Thereafter, the matter was listed and adjourned to be taken up today, as the learned counsel for the parties had expressed immense hope that there would be a settlement.
Consequent upon the hope expressed on the previous occasion, it is appreciable to note that the parties have settled the disputes with the great perseverance exhibited by the learned Mediator, as submitted by Mr. Gopal Subramaniam, learned senior counsel and Mr. Akhil Sibal, learned counsel, appearing for the parties.
The Memorandum of Settlement, as recorded by the learned Mediator, reads as follows:
“MEMORANDUM OF SETTLEMENT This Memorandum of Settlement is made on this 4 th day of May, 2015, at New Delhi.
AMONGST
1. Mr. Surender Seth, Son of Late Shri Kishan Chand Seth, Resident of Seth Farms, Mehrauli Gurgaon Road, New Delhi-110030;
2. Mr. Ashish Seth, Son of Mr. Surender Seth, Resident of Seth Farms, Mehrauli Gurgaon Road, New Delhi-110030;
3. M/s Ferrous Forging Limited., a company incorporated under the provisions of the Companies Act, 1956 having its registered office at Seth Farms, Mehrauli Gurgaon Road, New Delhi-110030, represented by its Managing W.P.(Crl.) 5/15 6 Director, Mr. Ashish Seth;
4. M/s Ferrous Alloy Forging Pvt. Ltd., a company incorporated under the provisions of the Companies Act, 1956 having its registered office at Seth Farms, Mehrauli Gurgaon Road, New Delhi-110030, represented by its Managing Director Mr. Surender Seth;
5. M/s Ferrous Township Pvt. Ltd.,(formerly known as M/s Minu’s Collection Pvt. Ltd.) a company incorporated under the provisions of the Companies Act, 1956 having its registered office at Seth Farms, Mehrauli Gurgaon Road, New Delhi-110030, represented by its Director Mr. Surender Seth;
6. M/s Ferrous Infrastructure Pvt. Ltd., a company incorporated under the provisions of the Companies Act, 1956 having its registered office at Seth Farms, Mehrauli Gurgaon Road, New Delhi-110030, represented by its Director Mr. Surender Seth (hereinafter referred to as Surender Seth, Ashish Seth, FFL, FAFPL, FTPL and FIPL respectively and as “Seth Group/First Party” collectively, which expressions shall, whenever the context so requires or admits, include their legal heirs, executors, administrators, successors-in-interest and assigns, as the case may be).
AND W.P.(Crl.) 5/15 7
1. Mr. Sumit Mittal, Son of Late Shri H.C. Mittal, Resident of E-323, Kamla Nagar, Agra (U.P) – 282004;
2. Mr. Madhur Mittal, Son of Late Shri H.C. Mittal, Resident of C-691, New Friends Colony, New Delhi – 110065;
(hereinafter referred to as “Mittal Group/Second Party” collectively, which expressions shall, whenever the context so requires or admits, include their legal heirs, executors, administrators, and assigns).
AND M/s Triveni Ferrous Infrastructure Pvt. Ltd., a company incorporated under the provisions of the Companies Act, 1956, having its registered office at No.426/2 R-7 Near MCD School M.G. Road, New Delhi-110030, represented herein by Directors Mr. Surender Seth, Mr. Ashish Seth, Mr. Sumit Mittal and Mr. Madhur Mittal.
(hereinafter referred to as “TFIPL/Third Party” which expressions shall, whenever the context so requires or admits, include its successors-in-interest and assigns).
PREAMBLE:
WHEREAS TFIPL is an Infrastructure Development Company in which the Seth Group represents that it holds 50% share (i.e. FFL and FAFPL, have 33% and W.P.(Crl.) 5/15 8 17% shares respectively); and Mittal Group represents that it holds the remaining 50% share;
WHEREAS disputes arose among the Seth Group on the one hand and the Mittal Group on the other, with respect to lands admeasuring 37.58125 acres and 29.1953 acres, situated at Sector 70, Faridabad (Haryana) on account of Mittal Group claiming that the Seth Group should pay certain amounts to TFIPL and on account of certain issues relating to management and maintenance of statutory records and books of account of TFIPL.
WHEREAS the said disputes have given rise to the following legal proceedings which are either pending in Courts of Law and/or are under investigation by the Competent Authority:
(a) Company Petition bearing C.P. No.158 (ND) of 2013 filed by FAFPL and FFL against the TFIPL, Sumit Mittal, Madhur Mittal and others qua the affairs of TFIPL, pending before Company Law Board, New Delhi;
(b) Complaint Case No.613/2014 pending before the Jurisdictional Magistrate at Agra (U.P.) arising from FIR No.513/2014 against Surender Seth, Ashish Seth and others, registered at Police Station New Agra, Agra;
(c) FIR No.808/2014 against Surender Seth, Ashish Seth and others, registered with the W.P.(Crl.) 5/15 9 Economic Offence Wing, New Delhi;
(d) CRL. M.C. No.5621/2014 on the file of Hon’ble Delhi High Court (Ashish Seth Vs. State & Another);
(e) CRL. M.C. No.5622/2014 on the file of Hon’ble Delhi High Court (Surender Seth Vs. State and Another);
(f) W.P. (Crl) No.5/2015 on the file of
Hon'ble Supreme Court of India (Ashish Seth
Vs. Govt of NCT of Delhi & Others);
(g) W.P. (Crl.) No.11/2015 on the file of
Hon'ble Supreme Court of India (Surender Seth Vs. Govt of NCT of Delhi & Others).
WHEREAS Criminal Case No.235/2014, filed by one Mr. Hari Mohan Gupta (a witness in FIR No.513/2014), against Ashish Seth is pending before the Special Judge, Agra (U.P.); and Ashish Seth has filed a Petition under Section 482 Cr.P.C., being Petition No.134/2015, before the Hon’ble Allahabad High Court, for quashing the said proceedings;
WHEREAS the Hon'ble Supreme Court of India in the proceedings mentioned at Serial No.(f) and (g) above, vide Order dated 14.01.2015, referred the parties to mediation and subsequently, vide Order dated 09.02.2015 requested Justice R. V. Raveendran, former Judge of Hon'ble Supreme Court W.P.(Crl.) 5/15 10 of India to act as a Mediator to assist the parties to arrive at a negotiated settlement;
WHEREAS after deliberations and discussions between the two groups over several sittings, the parties have agreed to resolve all their disputes amicably as per the terms hereinafter set out:
THE TERMS OF SETTLEMENT AGREED BETWEEN THE PARTIES A. OBLIGATIONS OF THE SETH GROUP:
1. In consideration of the obligations undertaken by the Mittal Group under this Memorandum of Settlement and in discharge of all obligations undertaken by FTPL and FIPL under Deed of Indemnity (which is not dated) executed on 04.01.2011 by FTPL and FIPL in favour of TFIPL and in discharge of all the purchaser’s obligations under the two Sale Deeds dated 07.01.2011 executed by TFIPL in favour of FTPL in pursuance of TFIPL’s Board Resolution dated 04.01.2011 and in discharge of all claims of the Mittal Group and TFIPL against the Seth Group in this regard, the Seth Group shall make the following payments and transfer the following shares:
1.1. Pay Rs.38,50,00,000/- to TFIPL as under:
1.1.1. Ashish Seth, Petitioner in WP (Crl) No.5/2015, who has deposited a sum of Rs.10,00,00,000/- (Rupees ten crores only) with the Supreme Court Registry in pursuance of the Order W.P.(Crl.) 5/15 11 dated 14.01.2015 of the Hon'ble Supreme Court of India in W.P. (Crl) No. 05/2015, hereby agrees that the said amount be released and paid to TFIPL, on the recording of this Memorandum of Settlement by the Hon'ble Supreme Court. [Note: Mr Ashish Seth will, however, be entitled to receive the interest accrued on the said sum of Rs. 10,00,00,000/-.] 1.1.2. The Seth Group shall pay Rs.28,50,00,000/-
(Rupees twenty eight crores fifty lacs only) subject to criminal cases as detailed in serial no.
(b) & (c) of the Preamble and complaint made by Shri Hari Mohan Gupta, are quashed/withdrawn/terminated/cancelled. The Seth Group shall pay this said amount by delivering four Post Dated Cheques drawn by FTPL on ICICI Bank, Gurgaon Branch in favour of TFIPL, i.e. three cheques bearing Nos. 068536 dated 20.06.2015, 068537 dated 20.07.2015 & 068538 dated 19.08.2015 for Rs.7,50,00,000/- each, and the Fourth cheque bearing No. 068539 dated 08.09.2015 for Rs. 6,00,00,000/-. The payment of three cheques are linked with only the quashing of above said criminal complaints as stated in Clause 6 and not with any other obligation whatsoever. However, the fourth cheque of Rs. 6,00,00,000/- shall not be presented till renewal of License Nos.34, 35 and 36 of 2007. It is agreed that Mittal Group shall present the Fourth Cheque bearing no. 068539 dated 08.09.2015 in the amount of Rs.6,00,00,000/-, on renewal of license Nos.34, 35 and 36 of 2007 qua TFIPL pertaining to 33.23 acres of land including 10.27 acres of land belonging to Seth Group on the W.P.(Crl.) 5/15 12 date mentioned on the cheque or on the expiry of 2 (two) business days of mailing the proof of renewal of license (whichever is later). The said proof shall be emailed to the following email ids:
[email protected] and [email protected].
The aforementioned 4 (four) post dated cheques, shall be delivered by the Seth Group at the time of recording of this settlement before the Hon’ble Supreme Court of India, to Mittal Group who will receive the cheques and give an acknowledgement on behalf of TFIPL.
1.2. Pay Rs.25,27,92,000/- to “Directorate of Town and Country Planning” (DTCP) Haryana on behalf of TFIPL as under:
1.2.1. The Seth Group shall be responsible for payment of Rs.25,27,92,000/- (Rs. Twenty Five Crores Twenty Seven Lacs and Ninety Two Thousand only),together with interest accrued/levied thereon from 24.03.2015, to “Directorate of Town and Country Planning” (DTCP) Haryana against the EDC liability for a sum of Rs.59.05 crores claimed by DTCP, Haryana in respect of licenses No.34, 35 & 36 of 2007 including interest upto 23/03/2015 on behalf of TFIPL subject to clause 12. The Seth Group will be entitled to avail the benefit of deferred payment policy/scheme for payment of the said amount by furnishing the requisite Bank Guarantees to Directorate of Town & Country Planning (for short “DTCP”), Haryana as per the Original EDC Policy as also any additional Bank W.P.(Crl.) 5/15 13 Guarantee, as per the EDC Relief Policy dated 12.04.2012. Any undertaking, affidavits, applications etc, to be given to DTCP, Haryana for availing such deferred payment of EDC shall be given by Seth Group. In case, any such undertakings, affidavits, applications, etc. to be given to DTCP Haryana as stated above are required to be given by TFIPL, then Seth Group acting on behalf of TFIPL, shall give the same for which Seth Group will be authorized in terms of draft of Board of Directors Resolution annexed as Annexure-1 which shall be handed over by Mittal Group to Seth Group within one week of the recording of the settlement by the Hon’ble Supreme Court. It is hereby clarified that notwithstanding execution of such Resolution, TFIPL shall not incur any liability in this regard and Seth Group hereby indemnifies TFIPL in respect of the same. All liabilities in this regard shall be that of Seth Group. Such Bank Guarantees shall be delivered to TFIPL on or before 21.06.2015 for forwarding the same to DTCP, Haryana. The Seth Group undertakes to pay all instalments relating to the said EDC payment of Rs.25,27,92,000/- (together with interest accrued thereon from 24.03.2015, that may be imposed by DTCP, Haryana) to DTCP without any default. It is made clear that if there is any default by the Seth Group, they will be liable to pay all charges levied in regard to such default. The Seth Group alone is entitled to secure back the documents of Bank Guarantee(s) after due performance from DTCP, Haryana and cause encashment of the Bank Guarantee
(s) or any part thereof.
W.P.(Crl.) 5/15 14 It is clarified that if before/after Seth Group furnishing the Bank Guarantees under the EDC Relief Policy on or before 21.06.2015 any change occurs in the EDC Relief Policy affecting the entitlement of the Seth Group to avail the benefits under the EDC deferred payment scheme, the Seth Group shall work out the method of payments with DTCP. Seth Group undertakes to the Hon’ble Supreme Court of India to comply with any such revised arrangement arrived at by it for payment.
1.3. Pay License Fee to “Directorate of Town and Country Planning” (DTCP) Haryana as under:
1.3.1. The Seth Group shall pay Rs.1,46,58,000/-
(Rs. One Crore Forty Six Lacs and Fifty Eight thousand only) to TFIPL in the form of Demand Draft drawn in favour of “Directorate of Town and Country Planning” Haryana towards License Renewal Fee in respect of License No. 34, 35 & 36 of 2007 to the TFIPL on or before 21.06.2015 for forwarding the same to DTCP, Haryana on 21.06.2015 together with the balance License Fee made available by Mittal Group in terms of the clause 5.4 below.
1.4. Furnish IDW Bank Guarantee to Directorate of Town and Country Planning” (DTCP) Haryana as under:
1.4.1. The Seth Group shall furnish a Bank Guarantee for Rs.3,54,83,000/- (Rs. Three Crores Fifty Four Lacs and Eighty Three thousand) on behalf of TFIPL against License No.34, 35 & 36 of W.P.(Crl.) 5/15 15 2007 on account of IDW in favour of “Directorate of Town and Country Planning”, Haryana by delivering the said Bank Guarantee documents to TFIPL on or before 21.06.2015 for forwarding the same to DTCP, Haryana along with their Bank Guarantees towards IDW in terms of the clause 5.4 below. The Seth Group alone is entitled to secure back the documents of Bank Guarantee(s) after due performance from DTCP, Haryana 1.5. Transfer the following Shares held by Seth Group in TFIPL as under:
1.5.1. FAFPL and FFL shall transfer their entire shareholding in TFIPL i.e. 500 Equity Shares of Rs.100/- each in favour of the Mittal Group by delivering the original share certificates bearing distinctive Nos. 001 to 500 together with duly signed share transfer deeds, at the time of recording of this settlement by the Hon'ble Supreme Court of India before the Hon’ble Court. The said shares shall automatically stand transferred on spot delivery basis against the entire sale consideration of Rs.50,000/- paid to the FAFPL and FFL against such delivery.
2. The amount to be paid by Seth Group towards License Fee under Clause 1.3 and the Bank Guarantee to be furnished by Seth Group towards IDW, under Clause 1.4 above, includes not only the liability of Seth Group in that behalf, but also that of M/s Pal Infrastructure & Developer Pvt. Ltd. (for short “Pal”), M/s ORS Infrastructure Pvt. Ltd. (for short W.P.(Crl.) 5/15 16 “ORS”) and M/s Heritage Cottages Pvt. Ltd. (for short “Heritage”) to the extent of Rs.53,11,000/-
(approx.) towards license fee liability and Rs.1,69,83,000/- (approx.) towards IDW Bank Guarantee amount. Mittal Group have also similarly borne part of the liability of Pal, ORS and Heritage. As and when, Pal, ORS and Heritage, contribute their share of the License Fee and furnish their Bank Guarantee for the IDW amount, the Seth Group and Mittal Group will be entitled to the refund of the excess License Fee paid by them and also for restriction of the IDW Bank Guarantee to the amounts actually due by them, by substituting/ replacing the Bank Guarantees of Seth Group and Mittal Group by the Bank Guarantees of Pal, ORS and Heritage. In the event of Pal, ORS and Heritage fail or neglect to pay the amounts due by them as aforesaid within 120 days from the date of deposit by the Seth Group, the Seth Group is authorized in its own name, to initiate appropriate legal proceedings against the defaulter/s, to the extent of the amount advanced by Seth Group along with interest, and/or in respect of Bank Guarantees so furnished, as stated herein before.
B. REPRESENTATIONS AND WARRANTIES OF THE SETH GROUP:
3. The Seth Group agrees and undertakes with the Mittal Group and TFIPL as under:
3.1. That the Shares transferred by the Seth Group W.P.(Crl.) 5/15 17 to Mittal Group are fully paid and free from all encumbrances, agreements of sale, liens, pledges and other charges; that FAFPL and FFL are the legal and beneficial owners of the said shares, and fully competent to transfer the same; and that the Seth Group does not hold any other shares in TFIPL.
3.2. That the existing liabilities of TFIPL are as set out in the Audited Balance Sheet for the year ending 31.03.2013 annexed hereto as “Annexures-2” and Provisional Balance Sheet for the year ending 31.03.2015 and trial balance upto 04/05/2015 annexed hereto as “Annexure-2A” and as mentioned in the Annexure-3. To the best of the knowledge of Seth Group, there are no other liabilities of TFIPL upto the date of recording of present settlement.
However, if any statutory liability is levied on TFIPL pertaining to the period upto the date of this settlement except as otherwise mentioned in Annexures 2, 2A and 3, the discharge of the same shall be the equal responsibility of the Seth Group and Mittal Group. Any and all tax liabilities arising out and/or relating to and/or consequential upon any differential in liabilities disclosed by TFIPL its Balance Sheet and Trial Balance upto 05/05/2015 and/or Books of Accounts and/or on account of any write off shall be sole liability of TFIPL and/or Mittal Group, and Seth Group shall have no obligation upon any liability on this ground It is made clear that if any liability, not reflected in the Annexures- 2, 2A and 3 is found to have been incurred by either the Seth Group individually or the Mittal Group individually, in W.P.(Crl.) 5/15 18 the name of TFIPL, the parties who have incurred such liability, shall be responsible for discharge of the same. Such obligation, if any arises, shall be discharged by the respective parties within 30 days. Seth Group hereby represents and confirms that they have no outstanding claim (financial or otherwise) against TFIPL and/or Mittal Group on any account whatsoever. All claims/balances of Seth Group reflected in the Balance Sheet/Books of Account of TFIPL till the date of the signing of the present settlement stand settled /squared off/paid off in terms of the present settlement. Mittal Group on recording of Settlement shall file the financial statement/audited Balance Sheet of TFIPL for the year ending 31.03.2015 though their newly appointed Auditor in terms of the Provisional Balance Sheet. The Balance Sheet for the year ending 31/03/2014 and 31/03/2015 shall be filed by TFIPL within 3 (three) month from execution of this Memorandum of Settlement.
3.3. That to the knowledge and information of the Seth Group, the only litigations to which TFIPL is a party, are as detailed in Annexure-4;
3.4. That on transfer of the shareholding of the Seth Group held in TFIPL to the Mittal Group, Surender Seth and Ashish Seth shall resign forthwith i.e., the date of the recording of this settlement before the Hon’ble Supreme Court of India from the Board of Directors of the TFIPL by tendering their resignation letters. The Seth Group shall also endeavour to upload Form “DIR-11” and/or W.P.(Crl.) 5/15 19 other applicable Forms with the Registrar of Companies under their digital signatures on the same day but not later than 3 (three) days from the date of the recording of this settlement.
3.5. That the agreements of sale entered by Seth Group representing TFIPL in regard to its properties are as listed in Annexure-5; and that the Seth Group have not entered into any other agreement for sale or transfer of any of the assets of TFIPL without Mittal Group.
3.6. That the assets of TFIPL, - movable or immovable, have not been encumbered, mortgaged or subjected to any charge, by the Seth Group acting on behalf of TFIPL;
3.7. That the movable and immovable properties of TFIPL and sundry debtors of TFIPL are as listed in Annexure-6 and Annexure-7 respectively and that to knowledge of Seth Group, there are no other movable and immovable properties and sundry debtors of TFIPL.
3.8. That Seth Group will pay their proportionate share, of any demands relating to enhanced EDC, enhanced IDC or any similar enhanced claim made by DTCP, Haryana, against the Licenses No.34, 35 and 36 of 2007 in respect of FSI admeasuring 11,28,204 sq. ft. including FSI for EWS calculated on a total area of 14.80 acres (ground coverage of 10.270 acres), if and when demanded by the DTCP Haryana W.P.(Crl.) 5/15 20 under the then existing policy/scheme.
3.9. The Seth Group and FAFPL, confirm that, except to the extent as envisaged in the Agreement to Sell dated 15/06/2007 executed by TFIPL & Others in favour of FIPL and described in colour “Red” in the site plan annexed as Annexure-8, FAFPL had on the date of purchase itself surrendered/relinquished all its right, title and interest in the parcel of land of 6.58 Acres, which falls within the 48.038 acres of land against which the DTCP, Haryana has issued license Nos.34, 35 & 36 in the year 2007, in favour of TFIPL in 2007. The better detail and particulars of 6.58 acres of land parcel are; Rect. No. 36 Killa No. 23(2-2), 24/1(0-1), 24/3(4-0), 25/1(4-17), Rect. No.40 Killa No. 3/1(3-7), 4(8-0), 5/1(0-2), 5/3(3-15), 6/1(8-0), 6/2(0-0), 7/1(7-2), 8/1(0-7), 14/2(2-8), 15(8-0), 16/1(5-8), 25/2(0-17) totaling to 58 Kanal 06 Marla Village Tikawali, Tehsil & District, Faridabad, out of which FAFPL owned 5/6th share, equivalent to 6.08 Acres or 48 Kanal 12 Marla &Rect. No. 42 Killa No.4(8-0), out of which FAFPL owned 1/2 share, equivalent to 0.50 Acres. The Chart showing detailing of lands along with documents under which same has been dealt with is annexed as Annexure-9.
3.10. FAFPL has passed Board Resolutions, in regard to the parcel of lands stated in clause 3.9 above, copies of which are annexed as Annexures-10 & 11 and certified extract thereof shall be handed over to the Mittal Group on the date of recording of this settlement by the Hon’ble Supreme Court of W.P.(Crl.) 5/15 21 India. TFIPL and Mittal Group do hereby indemnify FAFPL in regards to all acts, deeds and things done and executed by such nominee of TFIPL in pursuance of such resolution. Any statutory or other liability on account of such actions including but not limited to tax liability, stamp duty liability shall be borne exclusively by TFIPL without recourse to Seth Group.
3.11. To surrender the tenancy under the lease deed dated 21/05/2012 with respect to registered office of TFIPL forthwith.
3.12. The Seth Group represents that they are not in custody of any cheques/instruments drawn by TFIPL under the signature of the Mittal Group and/or under the joint signature of Mittal Group and Seth Group. All cheques/instruments, if any, issued by TFIPL in favour of Seth Group or otherwise and not banked/presented till date are to be treated as cancelled /void including Cheques being Nos. 631494, 631496, 378464 to 378469, 378491 to 378493, 378636, 378637, 378683, 378737, 378738, 378760, 378917, 378934, 378942, 378943, 378945, 514463, 563044.
3.13. The Seth Group are retaining out of the Title Deeds relating to 10.270 acres of lands, falling under Agreement dated 15.06.2007 as their property, the original Land Title Deeds i.e. (i) Registry No.14484 dated 22.12.2005 for the area admeasuring 4 Kanal 0 Marla, (ii) Registry No.2186 dated 08.05.2006 for the area admeasuring 55 Kanal W.P.(Crl.) 5/15 22 5 Marlas and (iii) Registry No.15809 dated 09.01.2006 for the area admeasuring 16 Kanal 0 Marlas. Seth Group till bifurcation of the license, shall not mortgage/create charge on above said Title Deeds. The Seth Group however, is entitled to enter into such arrangements with financial institutions which may extend home loan facility to allottees/customers against their unit/flat constructed on the said land. The Mittal Group and TFIPL undertakes not to deal with the said land parcels falling under Agreement dated 15.06.2007 executed in favour of FIPL and more particularly described in colour “Red” in the site plan annexed as Annexure-8 in any manner whatsoever including but not limited to creating third party rights and/or mortgaging same.
3.14. Subject to compliance of obligations of the Mittal Group as undertaken in this Memorandum of Settlement, the Seth Group states that all allegations made in regard to complaints/FIR/cases as mentioned in Preamble clause (a) to (g) and affidavits filed before any Hon’ble High Court and/or Hon'ble Supreme Court and/or any other Court in relation to the Mittal Group stand withdrawn. No complaints filed by Seth Group against Mittal Group/TFIPL are pending.
C. STATUTORY RECORDS AND BOOKS OF ACCOUNTS
4. The Seth Group shall deliver all the Records, original land title deeds (except three title deeds as mentioned in clause 3.13 above), Books of W.P.(Crl.) 5/15 23 Accounts of TFIPL (including the certificate of incorporation, bank documents etc.), maintained in the usual course of its business, as listed in Annexure-12 to TFIPL immediately on the recording of the settlement by the Hon'ble Supreme Court and the Seth Group undertakes and states that are no other documents, books of accounts, statutory records, cheque books, bank books/ledger etc available with them in regard to TFIPL.
D. REPRESENTATIONS, WARRANTIES AND/OR OBLIGATIONS OF MITTAL GROUP AND TFIPL::
5. In consideration of the reciprocal obligations herein contained, Mittal Group and TFIPL hereby represent, warrant and/or undertake the following:
5.1. The Mittal Group and TFIPL hereby confirm the validity of irrevocable registered Power of Attorney dated 17.07.2007 in favour of the Seth Group in respect of FSI admeasuring 11,28,204 sq. ft. including FSI for EWS calculated on a total area of 14.80 acres (ground coverage of 10.270 acres).
5.2. TFIPL shall remove the word “FERROUS” from its name after realization of payment as mentioned in this Memorandum of Settlement and within 30 (thirty) days of the renewal of license No.34, 35 and 36 of 2007. Further Mittal Group undertakes not to use the name “FERROUS” in any company and/or advertisements.
W.P.(Crl.) 5/15 24 5.3. TFIPL shall execute Power of Attorney (in addition to the General Power of Attorney dated 17.07.2007) in favour of FIPL authorizing them to execute the Deed of Declaration in respect of construction made by FIPL, to apply for and obtain Occupancy Certificate, part occupancy certificate, part completion certificate, to get estimates passed and all other necessary acts to be undertaken in respect of the construction undertaken by them as also the permissions to be taken from the Government Authorities in respect of FSI admeasuring 11,28,204 sq. ft. including FSI for EWS calculated on a total area of 14.80 acres (ground coverage of 10.270 acres). FIPL shall keep TFIPL fully indemnified and harmless against any action or proceedings passed or claimed that may arise against TFIPL by any act or omission on the part of FIPL as attorney holder. The draft of the same is annexed herewith as Annexure-13. Mittal Group/TFIPL undertakes to execute and get the attorney registered within 15(fifteen) days of passing of Orders of the Hon’ble Supreme Court of India recording the present settlement.
5.4. The Mittal Group shall pay/cause to be paid the balance license fee as well as the balance IDW Bank Guarantee [i.e. total amount payable on account of TFIPL less the Seth Group share as stated in Clause 1.3 and 1.4] to DTCP as per the demand of DTCP, Haryana on or before 23.06.2015 for renewal of License Nos.34, 35 and 36 of 2007 in the name of TFIPL.
W.P.(Crl.) 5/15 25 5.5. Mittal Group shall pass appropriate resolution for change of address of the registered office of TFIPL.
5.6. On the request made by the Mittal Group, Mr. Hari Mohan Gupta has agreed for withdrawal/quashing of criminal case No.235 of 2015 filed by him against Mr. Ashish Seth, which is pending before the Hon’ble Special Judge, Agra UP. Mr. Hari Mohan Gupta has signed an application for withdrawal/ quashing of the complaint. This application shall be filed before the appropriate Court immediately after the order of the Hon'ble Supreme Court of India. The copy of application duly signed by Mr. Hari Mohan Gupta is annexed as Annexure-14.
5.7. Subject to compliance of undertakings and fulfilment of all obligations as stipulated in Clauses No. 1.1, 1.3. and 1.4 and providing all requisite Bank Guarantees as required in terms of Clause 1.2 by the Seth Group as per Memorandum of Settlement, the Mittal Group represents that all allegations made in complaints/FIR/cases as mentioned in Preamble clause (a) to (g) and affidavits filed before any Hon’ble High Court and/or Hon'ble Supreme Court and/or any other Court in relation to Seth Group stand withdrawn. The Mittal Group further represents and warrants that other than the complaints/FIR/cases mentioned in Preamble Clause (b) &(c), no other complaints/FIR/cases/etc. of any nature whatsoever have been filed by Mittal Group against the Seth Group and/or any person named as accused in the W.P.(Crl.) 5/15 26 complaints/FIR/cases mentioned in Preamble Clause
(b) & (c).
5.8. The Mittal Group shall not resign from the Board of Directors of TFIPL and shall not transfer majority/controlling shareholding in TFIPL to a third party till renewal of license Nos. 34, 35 & 36 of 2007 in the name of TFIPL and others. Subsequent thereto, the Mittal Group is entitled to deal with their shareholding and/or reconstitute the Board of Directors by resigning from the Board of TFIPL or in such other manner they deem fit and appropriate. On such reconstitution of Board of Directors / change in shareholding pattern/ change in shareholders, the erstwhile/continuing (excluding Seth Group), shall ensure that the new shareholders and / or Directors of TFIPL shall at all times remain bound by the terms and conditions of this Memorandum of Settlement.
5.9. Mittal Group and TFIPL hereby represent and confirm that they have no outstanding claim (financial or otherwise) against Seth Group and/or any of its constituents on any account whatsoever, other than as provided specifically in this Agreement.
E. CONDITIONS PRECEDENT TO THE SETTLEMENT:
6. In consideration of the obligations as stipulated in Clauses No. 1.1, 1.3. and 1.4 & of furnishing of all requisite Bank Guarantees as W.P.(Crl.) 5/15 27 required in terms of clause 1.2 undertaken by the Seth Group under this Memorandum of Settlement, all FIRs, Complaints and cases enumerated below are required to be withdrawn/terminated/ dismissed/quashed:-
6.1. Complaint Case No.613/2014 pending before the Jurisdictional Magistrate at Agra (U.P.) arising from FIR No.513/2014 against the Surender Seth, Ashish Seth and others, registered at Police Station New Agra, Agra (Subject to revival in the event of non payment of the amounts stipulated in Clauses No. 1.1, 1.3. and 1.4 & of furnishing of all requisite Bank Guarantees as required in terms of clause 1.2);
6.2. FIR No.808/2014 against the Surender Seth, Ashish Seth and others registered with the Economic Offence Wing, New Delhi (Subject to revival in the event of non payment of the amounts stipulated in Clauses No. 1.1, 1.3. and 1.4 & of furnishing of all requisite Bank Guarantees as required in terms of clause 1.2);
6.3. Criminal Case No.235/2014 filed by Mr. Hari Mohan Gupta (a witness in FIR No.513/2014) against Ashish Seth, pending before the Special Judge, Agra (UP).
7. Notwithstanding anything contained herein no obligation of Seth Group under Clause 1.1.2 shall arise till the cases mentioned in clause 6.1, 6.2 W.P.(Crl.) 5/15 28 and 6.3 are quashed/withdrawn/terminated/cancelled and the Mittal Group undertakes to the Hon'ble Supreme Court not to deposit any of cheques mentioned in Clause 1.1.2 supra, till all the cases mentioned in Clauses 6.1, 6.2 & 6.3 are quashed/withdrawn/cancelled/ terminated.
F. JOINT OBLIGATIONS OF THE PARTIES:
8. TFIPL by way of Agreement to sell together with registered Power of Attorney registered on 17/07/2007 has transferred ownership rights of FSI measuring 11,28,204 sq. ft. including FSI area for EWS calculated on the total area of 14.80 acres (having ground coverage of 10.270 acres), on the land situated in Sector 89 Faridabad under License No.34, 35 and 36 of 2007 granted in the name of TFIPL and others in favour of FIPL as delineated in colour ‘Red’ in the plan annexed as Annexure-8 to this Memorandum of Settlement. The parties shall apply for change of the “existing developer” from “TFIPL” to “FIPL” in terms of the Agreement dated 15.06.2007 in regard to the sanctioned FSI measuring 11,28,204 sq. ft. including FSI area for EWS calculated on the total area of 14.80 acres (having ground coverage of 10.270 acres), on the land situated in Sector 89 Faridabad under License No. 34, 35 and 36 of 2007 granted in the name of Triveni Ferrous Infrastructure Pvt. Ltd. and others under parameters for allowing change in beneficial interest bearing Memo No. PF-51-A/2015/2708 dated 18.02.2015 of the DTCP. All administrative, processing charges and formalities for the said application shall be borne and completed by the W.P.(Crl.) 5/15 29 Seth Group.
9. TFIPL and FIPL shall jointly apply to the Hon'ble High Court of Punjab & Haryana in Civil Writ Petition No.4723 of 2012 for substitution of TFIPL as petitioner in place of FIPL. A similar application shall be filed in Civil Suit No.272 of 2006 (filed by Mr. Shiv Ram @ Shiv Narain) pending before the Ld. Civil Judge, Jr. Division Faridabad, bringing to the notice of the Court that all rights and liabilities of FIPL in regard to the suit schedule land stand assigned to TFIPL and henceforth TFIPL alone will be entitled to all rights and liable for all obligations in respect of such land.
10. TFIPL and Mittal Group hereby confirm that they have no outstanding claim against Seth Group or any of its constituents under the Agreement dated 15.07.2007 in respect of FSI admeasuring 11,28,204 sq. ft. including FSI for EWS calculated on a total area of 14.80 acres (ground coverage of 10.270 acres) on the land situated in Sector 89, Faridabad under License No.34, 35 and 36 of 2007 granted in the name of TFIPL and others. It is, however, made clear that if there is any default by Seth Group, under the Agreement dated 15.06.2007 only related to (a) non-fulfilment of the terms and conditions imposed by DTCP such as “Form LC IV-A”, expenses and obligation pertaining to Internal Development and External Development, Performance obligations, etc. (b) Statutory liabilities, Statutory obligations and(c) Third Party Claims in respect of development work and constructions W.P.(Crl.) 5/15 30 carried out at the site including that of allottees/customers, Seth Group alone will be liable for all consequences and penalties and shall keep TFIPL indemnified in that behalf.
11. FIPL on one hand and TFIPL and Mittal Group on the other hereby indemnify each other with respect to all acts done which may have any effect on either license No.34, 35 and 36 of 2007 and/or on the entitlement of the aforementioned parties vis-à-vis license No.34, 35 and 36 of 2007.
12. It is hereby confirmed that other than the payment of the EDC amount required to be made under Clause 1.2.1 and under Clause 3.8 above, Seth Group shall not be liable for any other EDC payment under License Nos.34, 35 and 36 of 2007 either on renewal and/or upon bifurcation of License Nos.34, 35 and 36 of 2007, except to the extent of Rs.25,27,92,000/- together with interest accrued thereon from 24.03.2015, imposed by DTCP, Haryana.
It is further clarified that the liability to pay EDC of Seth Group in a sum of Rs.25,27,92,000/-, against the total EDC liability of Rs.59.05 crores as on 24.03.2015, shall not be varied subject, however, to the condition that in the event of the total liability, which has been assessed as Rs.59.05 crores as on 24.03.2015, being revised from Rs.59.05 crores, to any higher amount as on 24.03.2015, on account of revised calculation or similar reason. In such eventuality, the Seth Group will bear the proportionate increase in regard to the amount in excess of Rs.59.05 crores. W.P.(Crl.) 5/15 31
13. M/s Raju & Prashad, Statutory Auditor of TFIPL has resigned, and their resignation letter is annexed as Annexure-15. Mittal Group henceforth is free to appoint new statutory auditor in accordance with law.
14. It is confirmed and reiterated that the School site, Hospital Site and community sites etc. in Sector 89, Faridabad falling under License No., 34,35 and 36 of 2007 in favour of TFIPL and others (admeasuring 11.45 acres approximately) exclusively vests in and belongs to TFIPL. The Seth Group shall have no right, title and interest or claim in regard to the said immovable properties or other properties/ assets/debtors of TFIPL.
15. TFIPL is entitled in accordance with law to take all actions against PAL, ORS and Heritage including termination and cancelation of their respective Agreements to Sell and Power of Attorney in accordance with law, if they fail to provide requisite information to TFIPL, as required by DTCP, Haryana under license No. 34, 35 & 36 of 2007; to pay the dues of TFIPL against their respective agreements; to pay the dues of Mittal Group and Seth Group as paid by them on behalf of PAL, ORS and Heritage under this Memorandum of Settlement for renewal of license.
16. It is jointly agreed between the parties that in the event of the Hon'ble Supreme Court merely recording the settlement, without quashing the W.P.(Crl.) 5/15 32 several criminal proceedings, the parties shall immediately thereafter take steps for the withdrawal and/or cancellation and/or quashing of all such cases before the respective Courts in terms of the present settlement.
G. RENEWAL OF LICENSE:
17. Mittal Group shall apply for renewal of
license by 23.06.2015 subject to compliance of
clause 1.2 (to the extent of providing Bank
Guarantee), 1.3 & 1.4 by the Seth Group. The Seth Group have provided documents/undertakings with respect to the lands falling to share of the Seth Group under Agreement dated 15.06.2007, i.e. (i) Status of construction/allotment of EWS Flats, and
(ii) Service Plan status, its drawing, estimates and its approval from HUDA, Chandigarh annexed as Annexure-16, to enable Mittal Group to apply for renewal of license. Seth Group does not have any further document in this regard, however, it is clarified that in case any indemnity, undertaking, letter and/or similar document is required to be executed after filing of the application for renewal of license, pertaining to the lands falling in the share of Seth Group under Agreement dated 15.06.2007, Seth Group shall do the needful at the earliest if so requested by Mittal Group.
18. On application made for renewal of license in terms of clause 17, Mittal Group will secure renewal of license within 90 days. All administrative and miscellaneous charges, compounding fee, penalties and other charges levied W.P.(Crl.) 5/15 33 and payable by PAL, ORS and Heritage for renewal of license shall be paid by the Mittal Group. All such charges in respect of FIPL agreement shall be exclusively paid/borne by Seth Group by similarly paying to TFIPL immediately on being demanded.
19. Seth Group shall pay a sum of Rs.
25,00,000/-(Twenty Five Lacs only) to Mittal Group for hiring/engaging consultancy services for renewal of License Nos.34, 35 & 36 of 2007 in favour of TFIPL at the time of filing of the application for renewal of license by the Mittal Group.
H. DIVISION OF TFIPL LANDS (3.33 ACRES PURCHASED FROM SMT. KELA DEVI AND 1.23 ACRES PURCHASED FROM SH. SANJEEV).
20. TFIPL has purchased parcels of land from Smt. Kela Devi viz. 3.33 acres (approximately) in its own name and 1.85 acres (approximately) from Sanjeev in the name of Seth Group/FTPL. The lands purchased from Kela Devi and part of the lands purchased from Sanjeev are subject to dispute. In regard to land purchased from Kela Devi, there is a title dispute pending at the instance of one Narain Singh. In view of the said dispute, payment of certain cheques issued to Kela Devi and Gyanender (legal heir of Kela Devi) were stopped from encashment by TFIPL. This led to five criminal complaints being filed against TFIPL and its Directors under Section 138 of the Negotiable Instruments Act and a civil suit filed by TFIPL for recovery of amounts paid to Kela Devi under the W.P.(Crl.) 5/15 34 Sale Deed. In regard to land purchased from Sanjeev comprised in Mustatil No. 21 (Killa No.2/4 – 2 K 3 M, Killa No.9/2 – 4 K 3 M and Killa No.10 – 8 K – totalling 14 Kanal 16 Marle), there is a dispute in regard to the existence of 2/3rd of the land inasmuch as 1/3rd of the aforesaid land (i.e. 4 K 18 M) was only under the ownership of Sanjeev (which was transferred by Sanjeev to FTPL and will now continue to be owned by FTPL) and the remaining 2/3rd land (i.e. 9 K 18 M equivalent to 1.23 acres) was later found to be under the ownership of others. Under these circumstances, Seth Group/ FTPL have lodged and registered an FIR against Sh. Sanjeev. Seth Group/FTPL hereby assigns all their rights in favour of Mittal Group/TFIPL to continue to prosecute FIR bearing No.625/2008 P.S. Central Faridabad. The Mittal Group is authorised to settle/compromise/ withdraw all disputes filed by and against the above mentioned parties and/or arising out of the above transaction at their own cost and consequences, subject to, that in the event of any such settlement/compromise arrived at by Mittal Group, the obligation of the Seth Group is to pay Rs.1,00,00,000/- (Rupees One Crore Only) to Mittal Group. Seth Group undertakes to pay this amount to Mittal Group within one year of such settlement of all cases by issuing a post-dated cheque in favour of TFIPL. However if the cases are not settled/compromised/withdrawn and any liability is fastened upon TFIPL by way of penalty/fine in the criminal proceedings under Section 138 of the Negotiable Instruments Act or by way of cost/damages in the civil proceedings, the same shall be borne equally by the Mittal Group and Seth W.P.(Crl.) 5/15 35 Group. In case there is a money decree or refund order in favour of TFIPL, same shall be shared equally by the Seth Group and Mittal Group. All such acts and obligation shall be completed in a time bound manner and not later than 30 days. On settlement/disposal of cases, if any land is left in TFIPL/FTPL out of the above, the same shall be divided equally between the Mittal Group and the Seth Group.
I. MISCELLANEOUS
21. The Seth Group and Mittal Group hereby
indemnify each other and undertake to keep
indemnified each other in respect of their
respective obligations towards the other as agreed in this Memorandum of Settlement.
22. With the execution of this memorandum of settlement all disputes and claims among the parties stand resolved subject, however, to the compliance of the terms of this Memorandum of Settlement.
23. The Seth Group hereby represent and warrants that they have no claim, right, title or interest in the Agreement dated 15.06.2007 executed in favour of Triveni Infrastructure Development Co. Ltd. (presently under liquidation) pertaining to FSI measuring 11,28,204 sq. ft. including FSI area for EWS calculated on a total area of 14.80 acres (ground coverage of 10,335 acres), in the land W.P.(Crl.) 5/15 36 situated in Sector 89, Faridabad under License Nos.34, 35 and 36 of 2007 which are granted in the name of TFIPL and others by DTCP, Haryana.
24. The Mittal Group hereby represents and assures that the embargo imposed in November, 2009 and reminder letters of January, 2010 in regard to the assets of TFIPL, stood substituted vide Order dated 13.05.2011 passed by the Hon’ble Delhi High Court in CP No.333 of 2010, reiterated by Order dated 11.11.2013 in WP (Crl) No.390/2010; and that consequently there is no impediment or embargo in regard to the assets of TFIPL which includes 48.03 acres of land situated at Sector 89, Faridabad. If any act is required to be done to clarify this position, Mittal Group shall forthwith do the needful.
25. It is agreed and accepted between the parties that in case of any increase in FAR with respect to license No.34, 35 and 36 of 2007, the increase in the FAR which is proportionate to 14.80 acres equivalent to FSI 11,28,204 sq. ft. having ground coverage of 10.270 acres, shall be to the benefit of Seth Group. It is further agreed that this proportionate increase in the FAR going to Seth Group shall be available for use only on the land of 10.270 acres as delineated in colour ‘Red’ in the plan annexed as Annexure-8 and Mittal Group/ TFIPL shall have no right thereon. In case there is any amount payable to DTCP on this account, then proportionately the same shall be paid by Seth Group.
W.P.(Crl.) 5/15 37
26. It is agreed between the parties that if for any reason this Memorandum of Settlement is not made in to an Order of the Hon’ble Supreme Court of India on or before 15.05.2015, this settlement shall stand cancelled automatically without any further act by either party, unless agreed to be extended by the parties hereto, in writing.
27. With the execution of this Memorandum of Settlement and subject to compliance of undertakings and fulfilment of all obligations of the Seth Group and Mittal Group/TFIPL as undertaken in this Memorandum of Settlement, it is agreed between the parties that all pending disputes among the parties shall stand resolved and TFIPL and/or Mittal Group have no claim of any nature against the Seth Group and similarly Seth Group shall have no claim of any nature against the TFIPL and/or Mittal Group.
28. With the execution of this Memorandum of Settlement all claims/ balances if any reflected in the Books of Account of TFIPL either of Mittal Group and/or Seth Group or any of its constituents including that of FIPL as reflected in the Balance Sheet have been settled/squared off in terms of the present settlement.
29. In pursuance of a complaint lodged by the Mittal Group, the Delhi Police, under FIR No.808/2014 had imposed embargo on the lands under ownership of FTPL situated at Sector 70, Faridabad, Haryana. In view of the present settlement that all W.P.(Crl.) 5/15 38 the complaints/FIRs are to be withdrawn/closed/quashed, the parties agree that the said embargo requires to be lifted. The parties have, by this settlement, requested the Hon'ble Supreme Court of India to lift the aforementioned embargo imposed by Delhi Police on lands under the ownership of FTPL situated in Sector 70, Faridabad, Haryana.
30. The Mittal Group and TFIPL have taken over all the rights and liabilities of the matter related to Shivram. The Mittal Group and TFIPL, only are made responsible to discharge all obligation towards Shivram and in lieu thereof, the Seth Group have relinquished/ transferred / surrendered all their rights in the land purchased from Shivram in the name of FIPL. The Govt. of Haryana has already acquired a parcel of the said land. As a consequence the compensation has been awarded to FIPL. The Seth shall intimate the receipt of the said compensation amount and undertake to pay/ transfer the said amount to the Mittal Group/ TFIPL within 7 days from the receipt of the said compensation from the Govt. of Haryana. TFIPL and Mittal Group shall alone be liable in respect of all matters related to Shivram and others and there shall be no liability of Seth Group of any nature whatsoever.
31. In terms of the present settlement, Seth Group will not be left with any right, title and interest in respect to the lands parcel pertaining to Shivram and others comprising of Rect. No. 26 Killa W.P.(Crl.) 5/15 39 No. 14(6-7), 15(8-0), Rect. No.27 Killa No. 11/3(3-10) totaling to 17 Kanal 17 Marla, Village Riwaspur, Tehsil & District, Faridabad, and lands parcel comprising of Rect. No. 63 Killa No. 3(3-2), 8(5-18),12/1(0-9), 13/1/1(4-13), 13/2/1(0-7), 18/1/1(0-1) totaling to 14 Kanal 10 Marla, Village Bhupani, Tehsil & District, Faridabad. Further, FIPL and FAFPL have agreed to pass appropriate Board Resolutions as per Annexure- 17 & 18 entitling them to deal with the land in any manner whatsoever and clarifying that TFIPL while acting under such Board Resolutions, shall not create any financial, statutory and/or any other liability upon FAFPL and FIPL. Mittal Group and TFIPL indemnify FIPL and Seth Group, in regard to all acts, deeds and things done and executed by such nominee of Mittal Group and TFIPL in pursuance of such resolutions. Any statutory or other liability on account of such actions including but not limited to tax liability, stamp duty liability shall be borne exclusively by Mittal Group and TFIPL. TFIPL and Mittal Group confirm that on recording of present settlement, there will be no rights and liabilities of Seth Group qua Shivram and other lands as described above. The aforesaid copies of Board of Directors Resolutions shall be handed over to Mittal Group at the time of recording of this Memorandum of Settlement before the Hon’ble Supreme Court of India.
32. The Seth Group confirms that the GPA executed in favour of PAL stands cancelled vide Cancellation Deed dated 17.06.2009, executed by Seth Group W.P.(Crl.) 5/15 40 acting on behalf of TFIPL and FAFPL.
33. The Deed of Indemnity (which is not dated) executed by Minu’s Collections Pvt. Ltd. (now FTPL) and FIPL in favour of TFIPL on 04.01.2011 is discharged and returned to Seth Group. As the original is not in the custody of either party, the discharge is by TFIPL making an endorsement on a photocopy of the said Deed of Indemnity and delivering it to FTPL and FIPL.
34. That all notices, summons and / or communications received by the Mittal Group and TFIPL and/ or Seth Group qua the other shall be intimated to the respective parties at the earliest.
35. In view of the aforesaid settlement, Mr. Surender Seth will no longer be the nominated approving authority under the Agreements entered by TFIPL, FAFPL and Mr. Sumit Mittal with PAL, ORS and Heritage. TFIPL, FAFPL and Mr. Sumit Mittal shall inform PAL, ORS and Heritage about the said change in the approving authority.
J. CONSEQUENCES OF BREACH/NON-PAYMENT OF THE AMOUNTS
36. In the event of any default by Seth Group of their obligations and warranties, the Mittal Group and TFIPL will be entitled to initiate legal proceeding for enforcing performance of the obligations/warranties given by Seth Group, W.P.(Crl.) 5/15 41 including initiation of contempt proceedings against the Seth Group in accordance with law.
37. In case there is a default in payment as agreed in Clause Nos. 1.1, 1.3. & 1.4& of furnishing of all requisite Bank Guarantees as required in terms of clause 1.2 by the Seth Group, the Mittal Group and TFIPL will also be entitled to approach the Hon’ble Supreme Court for revival of the complaints/FIRs stated at serial Nos. (b) & (c) of the list of cases mentioned in the preamble above. Provided however, on Mittal Group and TFIPL obtaining performance of the obligations, the revived criminal proceedings and contempt proceedings, if any, shall be terminated.
38. In the event of any default by Mittal Group of their obligations and warranties, the Seth Group will be entitled to initiate legal proceeding for enforcing performance of the obligations/warranties given by the Mittal Group, including initiation of contempt proceedings against the Mittal Group in accordance with law.
CO-OPERATION:
39. The parties have executed this Memorandum of Settlement voluntarily, after discussions and negotiations spread over several weeks held in the presence of their respective counsels, with the assistance of the Mediator at some of the meetings. Parties agree to abide by the same and perform their obligations hereby undertaken promptly with a W.P.(Crl.) 5/15 42 view to put an end to all the disputes as stated in present settlement, without giving room for any further disputes.” We have recorded the settlement in entirety as that has to become a part of the order of this Court and it is so directed. The parties are directed to adhere to the terms and conditions of the Settlement and the undertakings given therein and every facet of it, needless to say, shall tantamount to an order of this Court. In case of failure, the parties are at liberty to move this Court for appropriate direction.
In view of the settlement arrived at between the parties, we think it appropriate to quash the Complaint Case No.613 of 2014, pending before the Jurisdictional Magistrate at Agra, U.P., F.I.R. No.808 of 2014 registered with the Economic Offence Wing, New Delhi, against Surender Seth, Ashish Seth and others and Criminal Case No.235 of 2014, pending before the Special Judge, Agra, U.P. against Ashish Seth, and, accordingly, it is so directed. Additionally, all consequential Lookout Notices and Embargos stand quashed.
At this juncture, Mr. Akhil Sibal, learned counsel appearing for Sumit Mittal and Madhur Mittal, the respondent Nos.5 and 6 in W.P. (Crl.) No.5 of 2015 and the respondent Nos.4 and 5 in W.P.(Crl.) No.11 of 2015, has submitted that the amount of Rs.10 crores, which has been deposited before W.P.(Crl.) 5/15 43 the Registry of this Court, the principal part of it may be returned to Triveni Ferrous Infrastructure Private Limited (TFIPL) through his counsel. Needless to say, a bank draft shall be drawn in the name of the said Company and be handed over to Ms. Garima Prashad, learned Advocate-on-Record.
Mr. Gopal Subramanium, learned senior counsel appearing for the other side has no objection.
The Registry is directed to return the principal amount, as directed herein-above, and the interest amount to be returned to Ms. Priya Puri, learned Advocate-on-Record appearing for the petitioners, namely, Ashish Seth and Surender Seth.
Before recording our formal conclusion, we must put on record our unreserved appreciation for the learned counsel, who have extended immense cooperation to the learned Mediator to arrive at a settlement.
The writ petitions are disposed of accordingly. No order as to costs.
(Chetan Kumar) (H.S. Parasher)
Court Master Court Master