Delhi High Court - Orders
Suresh Kumar Kakkar & Anr vs M/S Ansal Properties And ... on 15 December, 2022
Author: Sachin Datta
Bench: Sachin Datta
$~26
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ O.M.P.(I) (COMM.) 14/2022 & Crl. M.A. 23067/2022
SURESH KUMAR KAKKAR & ANR. ..... Petitioners
Through: Mr. Harsh Sethi, Mr. Anant Nigam
and Mr. Chirag Verma, Advs.
versus
M/S ANSAL PROPERTIES AND INFRASTRUCTURE LIMITED
& ANR. ..... Respondents
Through: Mr. Samarth Tyagi, Adv. proxy
counsel for R-1 & R-2.
Mr. Aditya Kumar and Ms. Khushboo
Hora, Advs. for proposed respondent.
Mr. Karanjot Singh Mainee, Ms.
Shreya Gupta and Mr. Ravi, Advs. for
son of proposed intervenor.
CORAM:
HON'BLE MR. JUSTICE SACHIN DATTA
ORDER
% 15.12.2022 I.A. 18367/2022 (seeking modification of the order dated 14.01.2022)
1. The present petition has been filed by the petitioners on the basis of the Collaboration Agreement dated 14.10.2010 executed between the petitioner no.1 and M/s Ansal Properties and Infrastructure Ltd. (respondent no.1) for the development of land admeasuring 28 Kanal, 12 Marla (3.575 Acre.), situated in revenue estate of village Badshahpur, Tehsil & District Gurgaon in Sector 67, Gurgaon. The purport of the agreement was that the respondent no.1/developer would develop the said land by constructing a Residential/Group Housing/Commercial Colony thereon after obtaining the Signature Not Verified Digitally Signed O.M.P.(I) (COMM.) 14/2022 Page 1 of 6 By:RADHA BISHT Signing Date:19.12.2022 18:21:20 requisite license/permission to change the land use from the concerned authorities and getting the plans sanctioned/approved from the competent authority. Clause 7 of the said Collaboration Agreement stipulated as under:
"7. That this agreement entitles the DEVELOPER to develop and construct the said land and the said project in accordance with the terms contained herein and to own as property belonging to the DEVELOPER or dispose off the whole or part of its share of the built up area of the said project including EWS plots, flats (hereinafter referred to as the 'DEVELOPER ALLOCATION' at the sole discretion of and as may be decided by the DEVELOPER from time to time, and the owners right towards developed area shall be restricted to residential plots only under the said project:
(a) The owners' share in the said project shall be an area of 5183.75 Sq Yd. Of the developed residential plot.
(b) The DEVELOPER share in the project shall be balance area of the residential plots and entire community, commercial and other sites including sites for EWS/LIG categories.
2. The aforesaid clause clearly contemplates that the respondent no.1 would develop and carry out construction on the said land and shall be entitled to dispose of "its share" of the built up area of the said project, including EWS plots/flats. It was also clearly mentioned that the petitioner no.1/owner's share in the said project shall be an area of 5183.75 sq. yd. of the developed residential plots and the developer's share would be balance area of the residential plots and entire community, commercial and other sites including sites for EWS/LIG categories.
3. Pursuant to execution of the aforesaid Collaboration Agreement on 14.10.2010, Plot Buyers Agreements dated 23.12.2010 came to be executed between the petitioner no.1, respondent no.1 and a group company of respondent no.1 i.e. M/s Ansal Townships & Infrastructure Ltd., (the respondent no.2 herein), as a Confirming Party, whereby specific plot Nos. C-1018 and C-1019, Esencia, Sector-67, Gurugram, Haryana were allotted Signature Not Verified Digitally Signed O.M.P.(I) (COMM.) 14/2022 Page 2 of 6 By:RADHA BISHT Signing Date:19.12.2022 18:21:20 to the petitioner no.1.
4. It is submitted by learned counsel appearing for the petitioners that in view of the failure of the respondent no.1 to carry out any development work on the said land, the petitioners were constrained to file the present petition seeking that the respondents be restrained from creating any third party rights in respect of the aforesaid two plots.
5. On the very first date of hearing i.e. 14.01.2022, a statement was made by the learned Senior Counsel appearing for the respondents that status quo would be maintained regarding title and possession in respect of the properties, including the aforesaid two plots, forming subject matter of the four Collaboration Agreements dated 14.10.2010 executed between the parties. Subsequently, pursuant to certain proceedings before the NCLT, the respondent no.1 is stated to be undergoing Corporate Insolvency Resolution Process (CIRP).
6. The instant application i.e. I. A. Nos. 18367/2022 has been filed by the petitioners on the premise that in contravention of the undertaking given by the respondents as recorded in the order dated 14.01.2022, certain third party rights in respect of aforesaid two plots were created in favour of M/s RSD Finance Ltd. It is further alleged that the present occupant of the plot is attempting to raise construction on the said plots in contempt of the order dated 14.01.2022. Accordingly, on 09.12.2022, notice was issued to M/s RSD Finance Ltd., the proposed respondent no.3.
7. Today, learned counsel for M/s RSD Finance Ltd. appears and submits that no construction is presently being carried out by M/s RSD Finance Ltd. on the said plots. However, it is admitted by learned counsel for M/s RSD Finance Ltd. that, in fact, third party rights in respect of the Signature Not Verified Digitally Signed O.M.P.(I) (COMM.) 14/2022 Page 3 of 6 By:RADHA BISHT Signing Date:19.12.2022 18:21:20 said plots were created prior to passing of the order dated 14.01.2022, in favour of certain third party(ies).
8. Learned counsel for one Omwati has also entered appearance today, who claims that said Omwati has purchased the plot C-1018 from M/s RSD Finance Ltd. It is stated that the said plot was sold to Omwati after the property was acquired by M/s RSD Finance Ltd. from M/s Ansal Properties and Infrastructure Ltd. The said Omwati is impleaded as the respondent no.4 in these proceedings. Let the amended memo of parties be filed by the petitioners within a period of one week of the necessary details being provided by Mr. Karanjot Singh Mainee, learned counsel, appearing for the said Omwati.
9. Learned counsel for the M/s RSD Finance Ltd. seeks time to ascertain the precise details of the transaction(s) in respect of the said two plots and to file an affidavit setting out the details thereof.
10. A perusal of the aforesaid Collaboration Agreement and the Plot Buyer Agreements executed as far as back in the year 2010, prima facie establishes that the right, title and interest in respect to the plot i.e. C-1018 and C-1019 Esencia, Sector-67, Gurugram, Haryana vests in the petitioners. It is also evident that on 14.01.2022 when the undertaking was given on behalf of the respondent nos.1 & 2, to the effect that status quo would be maintained with regard to title and possession of the concerned plots i.e C- 1018 and C-1019 Esencia, Sector-67, Gurugram, Haryana, it was not disclosed to the Court that the aforesaid transactions had already taken place.
11. Prime facie, the respondent nos. 1 and 2 are guilty of concealment of material facts from this Court. On 14.01.2022, when the matter came up for Signature Not Verified Digitally Signed O.M.P.(I) (COMM.) 14/2022 Page 4 of 6 By:RADHA BISHT Signing Date:19.12.2022 18:21:20 hearing, an impression was created by respondent nos. 1 & 2 that the said respondents were in control and possession of the land/plots in question and an undertaking was given that status quo as regards title and possession in respect of the same would be maintained. Evidently, the statement which was made on behalf of the respondent nos.1 & 2 that status quo would be maintained in respect to plots in question, was false to their own knowledge since the said respondents had already alienated the plots.
12. There is also merit in the contention of Mr. Harsh Sethi, learned counsel for the applicant/petitioner that even if certain transactions have been entered into between the respondent nos. 1 & 2 and M/s RSD Finance Ltd./Omwati, the same cannot result in dilutions or extinction of the rights of the applicant/ petitioners in respect of the plots in question.
13. In the circumstances, it is directed that till the next date of hearing, status quo with regard to title, possession and construction shall be maintained in respect of plots in question i.e. plot Nos. C-1018 and C-1019, Esencia, Sector-67, Gurugram, Haryana. The said directions shall also be binding on Omwati, who has been impleaded as respondent No. 4 in these proceedings (supra), and who claims to be in possession of the plot C-1018.
14. Learned counsel for Omwati is also directed to file an affidavit bringing out details of the transaction(s) whereby the plot in question was sought to be sold to her. Let the same be filed within a period of two weeks from today.
15. List on 23.01.2023.
I.A. 18368/2022 (Impleadment)
1. This is an application seeking impleadment of M/s RSD Finance Ltd. in these proceedings.
Signature Not Verified Digitally Signed O.M.P.(I) (COMM.) 14/2022 Page 5 of 6 By:RADHA BISHT Signing Date:19.12.2022 18:21:202. In view of the averments made in the application and in view of the facts and circumstances as narrated above, the application is allowed.
3. Accordingly, M/s RSD Finance Ltd. is impleaded as respondent no.3 in these proceedings.
4. Let reply to the present petition and I.A. 18367/2022 be filed by M/s RSD Finance Ltd. within a period of four weeks from today. CCP (O) 73/2022
1. Issue notice.
2. Learned counsel, as aforesaid, accept notice.
3. Let reply, if any, be filed by the respondents/non-applicants within a period of three weeks from today. Rejoinder thereto, if any, be filed within a period of two weeks thereafter.
4. In view of the facts and circumstances as narrated above, prima facie, the respondent nos. 1 & 2 have not only concealed material facts and misled this Court, they have also acted in a manner so as to circumvent/frustrate the order(s) passed by this Court. It is, accordingly, directed that directors of the respondent nos. 1 & 2 as on 14.01.2022 shall remain personally present in Court on the next date of hearing. The learned counsel for the respondent nos. 1 & 2 is directed to file a list of all such Directors within a period of two weeks from today. Let court notice be issued to the said directors for the next date of hearing.
5. List on 23.01.2023.
SACHIN DATTA, J DECEMBER 15, 2022/ssc Signature Not Verified Digitally Signed O.M.P.(I) (COMM.) 14/2022 Page 6 of 6 By:RADHA BISHT Signing Date:19.12.2022 18:21:20