Delhi High Court - Orders
Hero Fincorp Limited vs Cosmic Motors India Private Limited & ... on 13 October, 2023
Author: Suresh Kumar Kait
Bench: Suresh Kumar Kait
$~1 (Single Bench)
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ O.M.P.(I) (COMM.) 343/2021
HERO FINCORP LIMITED ..... Petitioner
Through: Mr. Janender Kumar Chumbak,
Advocate
versus
COSMIC MOTORS INDIA PRIVATE LIMITED
& ORS ..... Respondents
Through: Ms. Sagrika Tanwar, Advocate
CORAM:
HON'BLE MR. JUSTICE SURESH KUMAR KAIT
ORDER
% 13.10.2023 I.A.22011/2022 & I.A.7024/2023
1. The present petition has been filed by the petitioner seeking the following prayers:
"1) Restrain the respondents, their agents, representatives, assignees, attorneys etc. from selling, alienating or creating third party interest etc. with respect to properties bearing nos.
a. 39th Milestone, Sector -35, NH -8, Delhi-Jaipur Highway, Gurgaon;
b. Shop no.DCS-116 & 117 Ground, Floor, DLF South Court, Saket, New Delhi;
c. Shop No.DCS-118, Ground Floor, DLF South Court, Saket, New Delhi;
d. Plot no.45/A, Street No.29, Chaltano.34, Red Cross Road, Civil Line, Mouza -Nagpur;
O.M.P.(I) (COMM.) 343/2021 Page 1 of 6This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 16/10/2023 at 15:19:17 e. Portion of basement, First Floor, Entire UGF and 5th Floor, Vishnu Vaibhav Corp. H.No.222, Ward no.66, Palm Road, Civil Lines, Nagpur, Maharashtra, 440001; & f. Shop no.DCS-115 & 119, Ground Floor, DLF South Court, Saket, New Delhi;
2) Restrain the respondent no.3, its agents, representatives, assignees, attorneys etc. from selling, alienating or creating third party interest etc. with respect to all of its inventory of unsold vehicles lying at NH No. 7, Opp. All India Radio, Bhilgoan, Kampte Road, Nagpur- 440001;
3) Restrain the respondent no.8, his agents, representatives, assignees, attorneys etc. from selling, alienating or creating third party interest etc. with respect to all that piece and parcel of land bearing no.Surveyno.181/1, (old 31/1) araji l.05HR & Survey No.181/2 ( old 31/1) araji. l.04HR total araji2.09HR, Patwari Halkano.15, Khatano.90 of Mouza Bhilgaon, Tahsil Kamptee, Distt. Nagpur;
4) Issue necessary directions to the Respondent no. 7 to pay rental of Rs.15 Lakh received from portion of basement, First Floor, Entire UGF and 5th Floor, Vishnu Vaibhav Corp. H.No.222, Ward no.66, Palm Road, Civil Lines, Nagpur, Maharashtra, 440001, to the Petitioner;
5) Direct the Respondents to furnish sufficient security to secure the amount to the tune of Rs. 143,82,42,231.40 (Rupees One Hundred forty three crore eighty two Lakh forty two Thousand two hundred and thirty two only) by way of deposit of money or by way of a bank guarantee, for securing compliance of their obligations under the Loan Agreements and the respective Deeds of Guarantees;
6) Direct the Respondents to file their affidavits of their assets in terms of principles laid down in case of Bhandari engineers and builders pvt. Ltd. V. Maharia Raj joint venture vide order dated 05.08.2020 (Ex. P. 275/2012) and to restrain the Respondents from selling, alienating or creating third party interest in respect of the same;
7) Direct the Respondents to provide details to the Petitioner of the revenue generated by it from its operation of business for the financial years 2018-19 to 2020-2021;
O.M.P.(I) (COMM.) 343/2021 Page 2 of 6This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 16/10/2023 at 15:19:17
8) Direct the appointment of a reputed charted accountants' firm to act as the receiver and undertake the activities/exercise the powers to scrutinise the financial affairs of Respondents and to ensure that all revenues have been utilised for bonafide purpose only;"
2. On 24.02.2023, when this Court was hearing submissions in I.A.22011/2022 filed under Section 151 CPC read with Order XXXIX Rule 4 CPC, learned counsel for applicants/respondents informed this Court that one prospective purchaser, namely, Mr. Raj Kamal Singh, was present in Court who had offered an amount of Rs.8.25 crores for the properties, i.e. Shops bearing No.DCS-115-117, Ground Floor, DLF, South Court, Saket, New Delhi. However, learned counsel for the petitioner submitted that the said properties were undervalued and the petitioner could purchase the same on a higher rate. This Court put a query to learned counsel for petitioner as to whether petitioner is ready to purchase the said properties for an amount of Rs.9.25 crores, and learned counsel had sought time to obtain instructions.
3. Pursuant to order dated 24.02.2023, Mr. Rajiv Verma, Advocate, counsel appearing on behalf of the petitioner initially offered an amount of Rs.8.75 crores and thereafter he raised upto Rs.9.60 crores, whereas Mr.Raj Kamal Singh, who initially had offered Rs.8.25 crores had then increased his offer amount to Rs.9.65 crores. Mr.Raj Kamal Singh was present in Court on the said date and had undertaken that an amount of Rs.5 crores shall be deposited with Registrar General of this Court within 15 days. Thereafter, it was consented before the Court that Mr.Raj Kamal Singh or his nominee will purchase the properties i.e. Shops bearing No.DCS-115, 116 & 117, Ground Floor, DLF, South Court, Saket, New Delhi.O.M.P.(I) (COMM.) 343/2021 Page 3 of 6
This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 16/10/2023 at 15:19:18
4. Thereafter, I.A.7024/2023 was filed by the applicants Mr. Raj Kamal Singh and his nominee seeking directions to the respondents and applicants to get a sale deed registered in respect of subject properties. A direction was also sought to the respondents to deposit the entire sale consideration before Registrar General of this Court, who shall deposit the same into fixed deposits, after the deduction of loan amount from Aditya Birla Finance Limited (A.B.C.L.), which was net amount of the remaining sale consideration to be paid after deduction of the loan foreclosure amount and T.D.S.
5. It was stated in the said application that applicant-buyer, after order dated 17.03.2023 had applied for Bank loan with the bank of respondent, i.e. Aditya Birla Finance Limited, and got sanctioned letters dated 28.03.2023 'Loan Against the Property' detailed as under:
S. No. Property Details Bank/NBFC Amount in Rs. 1 UNIT No-DSC-116 Aditya Birla 7,03,00,000/-
& 117, G.F., Plot A- Finance Limited 1, South Court DLF (ABFL) Saket, District Centre, New Delhi-
110017.
2. UNIT No-DSC-115, Aditya Birla 1,00,00,000/-
G.F., Plot A-1, Finance Limited
South Court DLF (ABFL)
Saket, District
Centre, New Delhi-
110017.
3. Indusan Bank 1,65,00,000/-
4. Total 9,68,00,000/-
Attached herein as Annexure -2 & 3 sanction letter from Aditya Birla Finance Limited (ABFL) is made ready of disbursal. The remainder of the amount which is O.M.P.(I) (COMM.) 343/2021 Page 4 of 6 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 16/10/2023 at 15:19:18 1,65,00,000/- ready with the applicants by way of being disbursed from the NBFC. Sanction letter dated-25.03.2023 issued from Indusan Bank, Annexure -4.
6. The applicant-buyer also sought loan from Aditya Birla Finance Limited where a part of the subject property remains mortgaged. Thus, it shall be a loan takeover arrangement whereby NBFC is absorbing foreclosure of an amount of Rs.4.85 crores from the captioned respondent from his new sanction itself.
7. Accordingly, the aforementioned financers were directed to disburse the total amount in the account of respondent in Account No.89999999999; IFSC Code IDFB0021002.
8. Aditya Birla Finance Limited was directed to adjust an amount of Rs.4.85 crores towards foreclosure and respondent No.1 was directed to deposit the remaining amount by way of FDR before the Registrar General of this Court.
9. It was made clear that the applicant-buyer shall deduct 1% T.D.S. as per rules from the total sale consideration of Rs.9,65,00,000/-. For execution of the same, learned counsel for applicant, on instructions of applicant-Mr. Raj Kamal Singh, submitted that it would take around 20 days in transferring the sale consideration amount in favour of seller-respondent and on receipt of the said amount in the account of seller-respondent, the seller- respondent was directed to execute the sale deed in the name of Mr. Suresh Kumar Gupta s/o Late Shri Roop Chand Gupta and Mrs. Lekha Gupta wife of Mr. Suresh Kumar Gupta, both residents of A-3/319, Paschim Vihar, New Delhi-110063.
10. Thereafter, the present matter was taken up on 26.05.2023 and O.M.P.(I) (COMM.) 343/2021 Page 5 of 6 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 16/10/2023 at 15:19:19 pursuant to order dated 21.04.2023, learned counsel for respondents sought time and was granted four weeks to file compliance affidavit. However, till date, despite several opportunities granted, the compliance affidavit has not been filed. The total consideration of the said properties is Rs.9.65 crores and the loan amount due with Aditya Birla Finance Limited is Rs.4.85 crores and after payment of the said amount with 1% TDS, the remaining amount was supposed to be Rs.4,70,35,000/- before the Registrar General of this Court, however, the respondents deposited Rs.3,33,47,199/-.
11. Accordingly, the respondents are directed to file an affidavit as to why they have not deposited the balance amount of Rs.4,70,35,000/-.
12. Last opportunity is granted to file compliance affidavit within one week failing which the same shall be accepted subject to payment of a cost of Rs.25,000/- in favour of Delhi High Court Legal Services Committee.
13. Since the amount of Rs.3,33,47,199/- has already been deposited by the respondents, the petitioner is entitled to get the same, therefore, on petitioner's taking steps, learned Registrar General shall release an amount of Rs.3,33,47,199/- with interest accrued thereon in favour of the petitioner.
14. Renotify on 08.12.2023 for further directions.
SURESH KUMAR KAIT, J OCTOBER 13, 2023/rk O.M.P.(I) (COMM.) 343/2021 Page 6 of 6 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 16/10/2023 at 15:19:19