Delhi High Court - Orders
M/S Bdr Finvest Private Limited vs Vijay Kumar Kapur & Ors on 8 July, 2022
$~16
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ O.M.P.(I) (COMM.) 212/2022 & I.A. 10336/2022
M/S BDR FINVEST PRIVATE LIMITED ..... Petitioner
Through: Mr. Manish Vashisht, Senior
Advocate with Mr. Harsh Sethi,
Mr. Anant Nigam and
Ms. Shreya Gupta, Advocates.
versus
VIJAY KUMAR KAPUR & ORS. ..... Respondents
Through: Mr. Anurag Ahluwalia with
Mr. Abhishek, Advocates for
respondent nos. 1,3,4,6 and 7.
(M): 9667667683
Email: [email protected]
Mr. Jai Sahai Endlaw with
Mr. Karan Kumar and
Mr. Shashank Sharma,
Advocates for respondent no. 8.
(M): 9811122114
Email: jai@jse chambers. Com
CORAM:
HON'BLE MS. JUSTICE MINI PUSHKARNA
ORDER
% 08.07.2022 I.A. 10336/2022 (Application under Section 151 CPC for exemption from filing original/dim documents )
1. Exemption allowed, subject to just exceptions.
2. Application is disposed of accordingly.
O.M.P.(I) (COMM.) 212/2022
3. This is an arbitration petition filed on behalf of the petitioner under Section 9 of the Arbitration and Conciliation Act, 1996.
Signature Not Verified Digitally Signed O.M.P.(I) (COMM.) 212/2022 Page 1 of 7 By:PREETI Signing Date:12.07.2022 15:07:004. It is submitted that the respondents herein were the Joint Owners of an Undivided Residential Plot of Land bearing no. C-766, in Block 'C' admeasuring 516 Sq. Yds., at New Friends Colony, New Delhi. By virtue of the Final Decree dated 06.03.2014 passed by this Court in CS (OS) No. 596/2010, the shares of the respective respondents were determined and as per the said shares, the share of respondent no. 5 comes to 6.25%.
5. It is further submitted that while passing the Final Decree dated 06.03.2014 for sale of the subject property and distribution of the sale proceeds, this Court had held that prior to the sale, the parties shall also have an opportunity to arrive at an amicable mode of disposal/development, including inter se bids. The respondents being the Joint Owners, failed to amicably resolve the disposal/development or even the inter se bids.
6. As a result, respondent no. 8, through his duly constituted attorney being respondent no. 1 had filed an Execution Petition bearing No. 417/2014 before this Court. The same came to be disposed off by order dated 01.10.2015.
7. Attention of this Court has been drawn to this order dated 01.10.2015 wherein the parties were directed to sell the said property to any prospective buyer and receive the sale proceeds in terms of the order dated 06.03.2014.
8. It is submitted that respondents no. 2 to 7 through their Power of Attorney i.e. respondent no. 1 and one Sh. Rajiv Seth being Power of Attorney holder of respondent no. 8, approached the petitioner with an offer to purchase the said property. Thus, pursuant to Oral Signature Not Verified Digitally Signed O.M.P.(I) (COMM.) 212/2022 Page 2 of 7 By:PREETI Signing Date:12.07.2022 15:07:00 agreement to sell dated 04.11.2019, the petitioner transferred a sum of Rs. 1.25 crores to respondents no. 1 to 8 in the following manner:-
Respondent Name Amount Paid
No.
1. Mr. Vijay Kumar 25 Lacs on
Kapur 4.11.2019
2. Mrs. Krishan 6.25 Lacs on
Kapur 4.11.2019
3. Mrs. Deepti Ahuja 6.25 Lacs on
4.11.2019
4. Mrs. Anjali 6.25 Lacs on
Malhotra 4.11.2019
5. Mr. Amit Kapur 6.25 Lacs on
4.11.2019
6. Dr. (Mrs.) Uma 16.66 Lacs on
Kumar 4.11.2019
7. Mr. Sanjay Kapur 16.66 Lacs on
4.11.2019
8. Mr. Anand Seth 16.66 Lacs on
4.11.2019
9. Mr. Rajiv Seth 25 Lacs on
(As common pool 4.11.2019
expenses)
9. Thereafter, the parties also executed a written agreement dated 02.04.2020 for sale of the said property. Subsequently, the parties re- negotiated their agreement, and the respondents and the petitioner executed a written supplementary agreement to sell dated 01.09.2020, whereby the sale consideration was reduced to Rs. 10.5 crore which was duly confirmed by all the respondents.
10. It is submitted that subsequent to the aforesaid, the petitioner, at its own cost and effort, demolished the old structure and thereafter re-
Signature Not Verified Digitally Signed O.M.P.(I) (COMM.) 212/2022 Page 3 of 7 By:PREETI Signing Date:12.07.2022 15:07:00developed and re-constructed a new residential building on the said property, consisting of basement, stilt, ground floor, first floor, second floor and third floor.
11. It is submitted that respondent no. 1 on his behalf and acting as Attorney of respondent nos. 2 to 7 and Sh. Rajiv Seth acting on behalf of respondent no. 8 in the capacity of their respective Attorney's executed Sale Deed dated 02.11.2021 of the newly constructed second floor in favour of the nominee of the petitioner.
12. On 02.11.2021, i.e. after execution of the Sale Deed on 02.11.2021 of the second floor, the petitioner received an email sent by respondent no. 5 on 01.11.2021 inter alia raising the issue of health of respondent no. 2 i.e. his mother for the first time. The petitioner tried to resolve the issues raised by respondent no. 5, however, the same have still remained unresolved. In order to resolve the issues, the petitioner also paid additional sum of Rs. 3 crores to the respondents in the following manner:-
Respondent Date TDS TDS Total
No. Amount Deducted Amount
paid Paid
Shri Vijay 11.11.21 73,93,750/- 1,06,250/- 75,00,000/-
Kumar
Kapur/Respo
ndent No. 1
Dr. (Mrs.) 1.02.2022 33,05,667/- 16,66,666/- 50,00,000/-
Uma
Kumar/Respo
ndent No. 6
Shri Sanjay 03.02.2022 33,05,667/- 16,66,666/- 50,00,000/-
Kapur/Respo
ndent No. 7
Signature Not Verified
Digitally Signed O.M.P.(I) (COMM.) 212/2022 Page 4 of 7
By:PREETI
Signing Date:12.07.2022
15:07:00
Shri Anand 12.11.2021 33,05,667/- 16,66,666/- 50,00,000/-
Seth/Respond
ent No. 8
Deepti 17.01.2022 12,39,625/- 6,35,375/- 18,75,0000/-
Ahuja/Respo
ndent No. 3
Anjali 17.01.2022 12,39,625/- 6,35,375/- 18,75,000/-
Malhotra/Res
pondent No.
4
Krishna 02.04.2022 18,48,437/- 26,563/- 18,75,000/-
Kapur/Respo
ndent No. 2
Amit 02.04.2022 12,39,625/- 6,35,375/- 18,75,000/-
Kapur/Respo
ndent No. 5
13. Subsequently, the petitioner received another email dated 09.01.2022 from respondent no. 5 claiming inter-alia that the General Power of Attorneys dated 21.05.2019 and 14.09.2021 executed by respondent no. 5 in favour of respondent no. 1 have been cancelled. This is despite the fact that an Affidavit Undertaking dated 14.09.2021 had been duly sworn by respondent no.5 that the attorney executed by him in favour of respondent no. 1 would not be cancelled.
14. Further, the respondent no. 5 also got issued legal notice dated 17.02.2022 reiterating that he had cancelled General Power of Attorney's dated 21.05.2019 and 14.09.2021 vide Cancellation Deed dated 13.12.2021. The respondent no. 5 further alleged that the sale deed dated 02.11.2021 executed by respondent no. 1 was defective.
15. It is now the case of the petitioner that on 17.06.2022, the petitioner has come to know through various estate agents that the Signature Not Verified Digitally Signed O.M.P.(I) (COMM.) 212/2022 Page 5 of 7 By:PREETI Signing Date:12.07.2022 15:07:00 respondent no. 5 along with other respondents are in the process of clandestinely creating third party rights over the said property and dispossessing the petitioner and its Agents/Nominees/Assignees from the said property, the possession of which is already with the petitioner. This as per petitioner is totally illegal and breach of the agreements.
16. It is submitted that the disputes have arisen between the parties and the same are arbitrable in terms of Clause 21 and 23 of the agreement to sell dated 02.04.2020 amongst the parties.
17. Issue notice to the respondents.
18. Notice is accepted by counsels for respondent nos.1, 3,4, 6,7 and 8.
19. The Counsels for respondents as aforesaid submit that they fully support the case of the petitioner. Counsels appearing on behalf of respondent no. 1,3,4,6, 7 and 8 jointly submit that their interest may be protected and that in case of any future sale, the proportion of their interests may be given to them. It is needless to state that the interests of respondents shall be protected.
20. In view of the aforesaid averments made on behalf of the petitioner and also the submissions made on behalf of the counsels for respondents nos. 1,3,4,6,7 and 8 who support the case of the petitioner, it is directed that till the next date of hearing, respondent nos. 2 and 5, their agents, representatives or any other person/entity claiming through the said respondents are restrained from creating any third party rights in respect of their rights and title in property bearing no. C-766, in Block 'C' measuring 516 Sq. Yds., at New Friends Signature Not Verified Digitally Signed O.M.P.(I) (COMM.) 212/2022 Page 6 of 7 By:PREETI Signing Date:12.07.2022 15:07:00 Colony, New Delhi.
21. This order is subject to the petitioner invoking the arbitration clause and taking steps for constitution of the Arbitral Tribunal within a period of 30 days from today.
22. It is also submitted on behalf of the petitioner that the dispute with respondent no. 5 is basically with respect to payment of certain sums which were due and payable to him. The petitioner without prejudice to his rights and contentions states that he is willing to deposit a sum of Rs. 50,00,000/- (Rs. Fifty lakhs) with this Court.
23. In view of the aforesaid, let the petitioner deposit Rs. 50,00,000/- (Rs. Fifty Lakhs) with the Registrar General of this Court within two days from today which shall be kept in an interest bearing fixed deposit account.
24. Notice be issued to respondent nos. 2 and 5 on filing of process fee.
25. Reply be filed within two weeks. Rejoinder thereto, if any, be filed within two weeks thereafter.
26. Re-notify the matter on 16.08.2022.
MINI PUSHKARNA, J JULY 8, 2022 c Signature Not Verified Digitally Signed O.M.P.(I) (COMM.) 212/2022 Page 7 of 7 By:PREETI Signing Date:12.07.2022 15:07:00