Delhi High Court - Orders
Ce Construction Ltd vs Ajay Relan & Ors on 21 October, 2020
Author: J.R. Midha
Bench: J.R. Midha
$~9
* IN THE HIGH COURT OF DELHI AT NEW DELHI
CM APPL. 11609/2014, 12124/2014, 34412/2016, 2403/2017,
5480/2017, 38695/2017, 21977/2020, 26808/2020 & 26895/2020
+ EFA(OS) 5/2008
CE CONSTRUCTION LTD. ..... Appellant
Through: Mr. Ramesh Singh and Mr.
Abhishek Handa, Advocates.
versus
AJAY RELAN & ORS. .... Respondents
Through: Mr. Sudhir K. Makkar, Senior
Advocate with, Ms. Roopa Dayal
and Mr. Birender Bhatt, Advocates
for respondent No.1.
Mr. Satvik Varma and Mr. Mohit
K. Mudgal, Advocates for
respondent No.2.
CORAM:
HON'BLE MR. JUSTICE J.R. MIDHA
HON'BLE MR. JUSTICE BRIJESH SETHI
ORDER
% 21.10.2020
1. The hearing has been conducted through video conference. CM APPL.38695/2017 & CM APPL.21977/2020
2. The appellant has filed the reply to CM APPL.21977/2020 in which the appellant has alleged that R.K. Nanda and Promila Nanda resigned from the Board of Directors of M/s Durga Builders on 19 th May, 1997 and sold 100% share holding to Arun Mehra and Seema Mehra vide Signature Not Verified Digitally Signed By:RAJENDER SINGH KARKI Signing Date:27.10.2020 13:18:52 agreement dated 19th May, 1997. It is further stated that R.K. Nanda and Promila Nanda had no right to represent M/s Durga Builders on 28th May, 2003 in CS(OS) 749/1994 and they played fraud upon the Court by representing M/s Durga Builders and by entering into a fraudulent compromise. Para 9 of the preliminary submissions of the reply to CM APPL.21977/2020 of the appellant is reproduced hereunder:-
"9. The present application filed by the applicant/respondent No.1 has been filed malafidely and with oblique motives in order to mislead this Hon'ble Court and avoid due and proper adjudication of the disputes between the parties. At the outset, it is imperative to apprise this Hon'ble Court of the entire gamut of matters involved and their progression with regards to the disputes property in question. Some of the omitted facts by the Applicant/ Respondent No.1 herein. A factual matrix to the matter is presented below:
a. The Respondent no.2 company purchased the suit property from the then recorded owner namely late Sh. K.D. Sumaiya in the year 1993 at a price of Rs. 2 Crores. Accordingly, due to have insufficient funds to complete the transaction, a total amount of Rs.1.8 crores was taken from the Appellant herein, in order to complete and facilitate the sale. Accordingly, the Appellant was put in possession of the first floor along with roof rights, and all original titles were handed over to the Appellant. A separate power of attorney and a will was also created in favour of the appellant by the recorded owner.
b. Subsequently, an agreement to sell was entered into between the Respondent no.2 company and the Respondent No.1 for a total amount of Rs.2.40 crores, and only a token amount of Rs.60 lacs were paid to the Respondent no.2 company.
c. That in the year 1997, the shareholders of the Appellant company, purchased, 100% shareholding of the Respondent No.2 company vide an agreement Signature Not Verified Digitally Signed By:RAJENDER SINGH KARKI Signing Date:27.10.2020 13:18:52 dated 19.5.1997 and accordingly all the assets belonging to the Respondent No.2 company were now controlled and owned by the new owners (Common with the appellant company). It is also apt to mention that on 19.05.1997 itself the old management that is (Late) Sh. R. K. Nanda and Smt. Promila Nanda resigned from the board of directors, and ceased to have any control or association with the Respondent no.2 company and / or any of the assets belonging to the Respondent No.2 company. This fact was well known to the Applicant/ respondent no.1, as is evident from his repeated statements of the management between the Respondent no.2 company and Appellant Company being common.
d. The Applicant /Respondent no.1 derives all rights and entitlements out of a fraudulent compromise decree entered into between (Late) Sh. R.K. Nanda and (late) Smt. Promila Nanda along with the Applicant/ Respondent no.1, executed on 28.03.2003(six years after they had resigned from the board of directors and had also 100% equity of the respondent no.2 company) before this Hon'ble Court while playing a fraud on this Hon'ble Court. That it pertinent to mention here that the applicant has no judicial finding in his favour, as CS(OS) 749 of 1994 was disposed off by way of fraudulent compromise, without bearing the signatures of the necessary and relevant parties, for the sole benefit of the Applicant, thereby circumventing any trial.
e. That it is the case of Respondent no.2/ non applicant, that the compromise decree that forms basis of all the rights and entitlements enjoyed by the Applicant/Respondent no.1, is one attained by fraud, as the Respondent No.2 company by way of being the actual owner of the property, never consented towards any such compromise. Therefore, the rights of the Applicant are one that have been fictitiously created by Signature Not Verified Digitally Signed By:RAJENDER SINGH KARKI Signing Date:27.10.2020 13:18:52 resorting to fraud to and forgery, with the sole aim of systemically siphoning off the disputed property. f. Accordingly, the consent decree has come under challenge by way of an I.A. seeking recall of the fraudulent decree numbered I.A. no.20535 of 2014 filed by Respondent no.2 in CS(OS) 749 of 2014 and the same is being examined and argued before this Hon'ble Court."
3. Respondent No.1 has filed the rejoinder to the reply of the appellant in CM APPL.21977/2020 in which respondent No.1 has not responded to any of the averments made by the appellant in para 9 of the preliminary submissions as mentioned above.
4. During the course of the hearing, the Court has put the following questions to learned senior counsel for respondent No.1 and reply of the learned senior counsel for respondent No.1 on instructions is as under:-
Question:- Whether R.K. Nanda and Promila Nanda transferred their 100% share holding to Arun Mehra and Seema Mehra vide agreement dated 19th May, 1997 and resigned from the Board of Directors on 19th May, 1997?
Answer:- Respondent no.1 was never aware and not even today aware about the above averment.
Question:- Whether R.K. Nanda and Promila Nanda were competent to represent M/s Durga Builders on 28th March, 2003 when the settlement was recorded in CS (OS) 749/1994? Answer:- Yes, R.K. Nanda and Promila Nanda were competent to represent M/s Durga Builders on 28th March, 2003 when the settlement was recorded in CS (OS) 749/1994.Signature Not Verified Digitally Signed By:RAJENDER SINGH KARKI Signing Date:27.10.2020 13:18:52
Question:- Is there any Board resolution or any other document to show that R.K. Nanda and Promila Nanda were Directors of M/s Durga Builders and they were competent to represent M/s Durga Builders on 28th March, 2003?
Answer:- The instructions have to be taken from respondent No.1 in this regard.
Question:- Whether respondent no.1 inspected ROC records to verify the appellant's contentions?
Answer:- I have to take instructions.
5. Respondent No.1 is directed to file an affidavit to specifically respond to the averments made by the appellant in para 9 of the reply to CM APPL.21977/2020 within 10 days. Respondent No.1 shall also specifically answer to the questions recorded hereinabove. Respondent No.1 shall remain present before this Court on the next date of hearing.
6. Mr. Sudhir K. Makkar, learned senior counsel for respondent No.1, submits that the appellant has made false averment in para 9 of the reply that Rs.2 crores was paid by respondent No.2 to late K.D. Sumaiya in 1993.
7. The appellant is directed to place on record the documents relating to the payment of Rs.2 crores by M/s Durga Builders to K.D. Sumaiya as alleged in para 9 of the reply. The affidavit be filed within 10 days.
8. Learned counsel for the appellant submits that FIR No.246/2008 was registered at P.S. Tilak Marg in August, 2008 under Section 420/467/468/471/120-B IPC and the matter was investigated by the Operational Squad of Crime Branch. The documents collected by the police were sent to the Forensic Science Laboratory for the opinion of the Signature Not Verified Digitally Signed By:RAJENDER SINGH KARKI Signing Date:27.10.2020 13:18:52 experts who gave the report that documents were forged and fabricated in which R.K. Nanda and Promila Nanda were involved. The present status of the said FIR is not available on record.
9. Mr. Rahul Mehra, learned Standing Counsel (Crl.) for Delhi Police, is directed to file the status report with respect to the status of the aforesaid FIR. Mr. Rahul Mehra, learned Standing Counsel (Crl.) for Delhi Police, is requested to assist this Court in this matter.
10. List for continuation of the arguments on 11th November, 2020.
11. The order be uploaded on the website of this Court forthwith.
J.R. MIDHA, J.
BRIJESH SETHI, J.
OCTOBER 21, 2020 ak Signature Not Verified Digitally Signed By:RAJENDER SINGH KARKI Signing Date:27.10.2020 13:18:52