Delhi High Court - Orders
M/S. Jmd Ltd vs M/S. Raj Buildwell Pvt. Ltd. & Ors on 19 January, 2021
Author: Vibhu Bakhru
Bench: Vibhu Bakhru
$~25
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ O.M.P.(I) (COMM.) 349/2020 & IA No.785/2021
M/S. JMD LTD. ..... Petitioner
Through: Mr Rajiv Ranjan and Mr K.B.
Thakur, Advocates.
versus
M/S. RAJ BUILDWELL PVT. LTD. & ORS. ..... Respondents
Through: Mr Sanjeev Puri, Senior Advocate
with Mr Hardeep Sachdeva, Mr
Kamal Shankar and Mr Arman Roop
Sharma, Advocates for R-2, 3, 4, 6
and 8.
CORAM:
HON'BLE MR. JUSTICE VIBHU BAKHRU
ORDER
% 19.01.2021
1. The petitioner has filed the present application under Section 9 of the Arbitration and Conciliation Act, 1996 (hereafter „the Act‟), inter alia, praying as under:-
"(i) Pass an order restraining the respondent no.1 to 8, their servants, officers, assigns, executors, administrators, agents, attorneys etc. from selling, transferring, alienating or creating third party right in the said land admeasuring 10.89 Acres Comprising of Rect. No.11 Killas No.7/1/2 (4-10), 15/2(7-14), 16/1/1(1-14), 6(8-
0) and rect. No.12 Killas No.2(6-3), 3(7-11), 8(8-0), 9(8-0), 10/1(3-4), 11(8-0), 12/1 (6-13), 12/2(1-7), 20/1 (7-12), 1/2 (3-19), 10/2 (4-16) totaling 87 Kanals and 3 Marlas (10.89 acres) situated at Sector-71, Village Fazilpur Jharsa, Tehsil and Distt. Gurgaon, Haryana in Signature Not Verified digitally signed by:DUSHYANT RAWAL derogations and/or in conflict to the rights, title and interest conferred upon petitioner under agreement dated 02/08/2013 in any manner whatsoever.
(ii) Pass an order directing the respondents to furnish Bank Guarantee for an amount of Rs.15 Crores as security by the Respondents in favour of petitioner, in this Hon‟ble Court and the same may be released in accordance with the Award that will be passed in the Arbitration proceedings;
(iii) Pass an order restraining the defendants from changing the nature of the licence bearing no.13 of 2013 dated 15/04/2013 granted in respect of the said land for development of a group housing colony to licence under Deen Dayal Upadhyay Jan Awas Yojna;
(iv) Pass an order directing the respondents to execute necessary title documents for transfer of built up flats admeasuring 105000 sq. ft. of covered area in favour of petitioner - JMD Ltd. after obtaining the necessary permissions in terms of the said agreement dated
02.08.2013 and Demarcate and handover physical possession;
(v) Award the costs of the petition."
2. The petitioner claims that disputes have arisen between the parties, inter alia, in connection with a Memorandum of Understanding dated 22.08.2007 (hereafter „the MoU‟) and the Agreement to Sell dated 02.08.2013. The respondent disputes the Agreement to Sell and claims that the same is fabricated. However, there is no dispute that the MoU had been entered into between the concerned parties.
3. Clause 3 of the said MoU is relevant and is set out below:-
Signature Not Verified digitally signed by:DUSHYANT RAWAL"3. In case the land is not allotted as per para 2, the First Party assures the Second Party that as and when the First Party start selling the project/part of project/units in the project after obtaining all the approvals, the Second Party would be allotted respective areas in the project at rates as mutually agreed between the parties and also at the preferred locations. The allocation to the Second Party in the Said project shall be determined as follows:
A. If the approvals are granted for an Information Technology Part (I.T. Park), the Second Party shall be allocated built up Units to the extent of 160000 Sq. Ft. of Covered Area.
B. If the approvals are granted for Residential Group Housing Colony, the Second Party shall be allocated built up Flats to the extent of 120000 Sq. Ft. of Covered Area."
4. The petitioner claims that subsequent to the MoU, the parties entered into the Agreement to Sell, in terms of which the respondent had agreed to convey to the petitioner built up flats to the extent of 1,05,000 (One lakh and five thousand only ) sq. ft. of covered area along with proportionate covered and open parking spaces. Clause 1 of the said Agreement to Sell is relevant and is set out below:-
"1. That for the consideration of Rs.13,85,00,000/- (Rupees Thirteen Crores Eighty Five Lacs Only) already received by the First Party from the Second Party, under the Memorandum of Understanding dated 22.08.2007, the First Party does hereby irrevocably agree to convey to the Second Party built up Flats to the extent of 1,05,000 (one lakh five thousand only) Sq. Ft. of Covered Area along with proportionate covered and open parking spaces (hereafter referred to as the "Said Property") as on the Signature Not Verified digitally signed by:DUSHYANT RAWAL date of this Agreement, from its share of all developed/constructed saleable areas of the project along with proportionate rights, title ownership and interest in Land and all common and open spaces and easement rights and entitlements in the said land. The Saleable Super Area shall be determined upon sanction of Building Plans by the office of Director, Town and Country Planning, Haryana and by keeping the ratio of super area to covered area uniform throughout the Said Project. The Flats allotted to the Second Party shall be of the same specifications, as of the Flats of highest standards in the Said Project. However, if there is any increase in the FAR and/or any changes in the building/architectural plan, leading to increase in super area of the said project, the said property shall stand proportionately increased. In case of such increase, the term said property shall mean and include the said property as meaning under this agreement as well as the proportionately increased area."
5. The petitioner claims that the respondent had defaulted in performing its obligations under the MoU as well as under the Agreement to Sell. In the aforesaid context, the petitioner prays that measures of interim protection as set out hereinabove be granted. The petitioner inter alia seeks to restrain the respondent from selling the land in question, which measure 10.89 acres.
6. In addition to seeking restraining order, the petitioner also prays that the bank guarantee be furnished for a sum of ₹15 crores by the respondent. This is primarily to secure its claim. It does appear from the aforesaid prayer that the petitioner‟s primary claim is that for damages.
7. The respondent is willing to secure the petitioner for the said sum of ₹15 crores. However, the learned counsel appearing for the petitioner submits that the petitioner is not interested in the monetary claim but would Signature Not Verified digitally signed by:DUSHYANT RAWAL insist that the respondent convey the built-up flats admeasuring 1,05,000 sq. ft. of covered area after obtaining the necessary permission.
8. There is no material before this court to believe that the respondents are in the process of alienating their property to frustrate the enforcement of an award that may be passed in favour of the petitioner. On the contrary, it appears that the respondents are seeking a change of licence to develop housing project under the Deen Dayal Upadhyay Jan Awas Yojana.
9. It is also relevant to note that the petitioner claims only a small fraction of the total area. Undisputedly, the covered space to be built up on 10.89 acres of land would be far in excess of the petitioner‟s claim for 1,05,000 sq. ft.
10. In view of the above, this court does not consider it apposite to pass any order restraining the respondent from alienating or parting with possession of the land in question.
11. The learned counsel for the respondents state that the respondent will comply with its obligations and would provide the petitioner built up space, as agreed under the MoU. The managing director of the respondent would furnish an undertaking to this court in form of an affidavit within a period of one week from today. This court is of the view that the same would sufficiently secure the petitioner.
12. The petitioner has also sought order restraining the respondent from from changing the nature of the licence bearing no.13 of 2013 dated 15/04/2013 granted in respect of the said land for development of a group housing colony to a licence under Deen Dayal Upadhyay Jan Awas Yojna. Considering that the petitioner‟s claim is limited to a small fraction of the space to be constructed, this court does not consider it apposite to pass any Signature Not Verified digitally signed by:DUSHYANT RAWAL such order. Further, there is no reason to accept that damages would not provide adequate compensation for any alleged breach of the MoU or Agreement to Sell.
13. By a separate order, this court has appointed an Arbitrator to adjudicate the dispute that have arisen between the parties. It is clarified that the parties would be at liberty to seek further measures of interim protection as warranted, from the Arbitral Tribunal.
14. No further orders are required to be passed in this petition. The same is disposed of with the aforesaid observations.
VIBHU BAKHRU, J JANUARY 19, 2021/MK Signature Not Verified digitally signed by:DUSHYANT RAWAL