Delhi High Court - Orders
Bdr Builders And Developers Pvt. Ltd vs Romi Garg & Ors on 14 August, 2020
Author: Mukta Gupta
Bench: Mukta Gupta
$~8
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) 150/2020
BDR BUILDERS AND DEVELOPERS PVT. LTD. .....Plaintiff
Represented by: Mr. Harish Malhotra, Senior
Advocate with Mr. Sanjay Goswami,
Advocate
versus
ROMI GARG & ORS. ..... Defendants
Represented by: Ms. Nandini Sahni, Advocate for D-1
& D-4.
Mr. Sachin Chopra, Advocate with
Mr. Karan Babuta & Mr. Daksh
Arora, Advocates for D-2 & D-3.
CORAM:
HON'BLE MS. JUSTICE MUKTA GUPTA
% ORDER
14.8.2020
The hearing has been conducted through Video Conferencing.
I.A. 6918/2020 (under Section 151 CPC-taking on record documents -
by defendant No.1)
1. Exemption allowed, subject to all just exceptions.
2. Application is disposed of.
I.A. 6893/2020 (under Order VII Rule 11 (a), (b), (c) and (d) CPC-by
defendant No.1.)
1. By this application defendant No.1 seeks rejection of the plaint on the
grounds that the plaint shows no cause of action, the suit is barred by
limitation, the so-called award in favour of the plaintiff is a nullity and has
CS(OS) 150/2020 Page 1 of 6
been obtained by collusion and that defendant No.2 has already filed OMP
(I) No. 3/2017 challenging the award dated 21st November, 2016.
2. The present suit has been filed by the plaintiff M/s. BDR Builders and
Developers Pvt. Ltd. impleading Romi Garg, Lalit Modi, Sonia Modi and
Ganesh Info Services Pvt. Ltd. as defendant Nos.1 to 4 respectively, inter
alia, seeking a decree of declaration declaring the decree and judgment dated
14th May, 2020 as modified vide order dated 17th June, 2019 passed in
CS(OS) 109/2017 as null and void and to be not in any manner affecting the
vested rights of the plaintiff in the suit property i.e. Property No.32,
Paschimi Marg, Vasant Vihar, New Delhi, on the basis of various receipts
and Agreement to Sell dated 24th June, 2014 as also the registered General
Power of Attorney, Will and the award dated 21st November, 2016 - 13th
January, 2017, decree of declaration that the alleged agreement dated 9th
July, 2012 and 14th July, 2016 and any receipt executed by defendant No.2
in favour of defendant No.1 in respect of the suit property, are non-est,
sham, fabricated, null and void and do not affect the rights of the plaintiff
besides permanent injunction.
3. Defendant No.2/ Lalit Modi purchased the suit property on 10th April,
2008. Thereafter, on 15th January, 2009, Lalit Modi executed a receipt for a
sum of ₹3 crores in favour of the plaintiff on agreeing to sell the suit
property to the plaintiff. Further receipt of ₹3 crores was executed by Lalit
Modi in favour of the plaintiff on 5th February, 2009 followed by receipts of
₹3 crores, ₹2 crores, ₹2.20 crores, ₹6 crores and ₹3 crores on 22nd February,
2009, 5th March, 2009, 20th March, 2009, 25th October, 2012 and 5th
December 2012 respectively .
CS(OS) 150/2020 Page 2 of 6
4. After receiving payment of ₹22.20 crores from the plaintiff, Lalit
Modi entered into a formal agreement to sell in respect of the suit property
on 24th June, 2014, further receiving sum of ₹4.55 crores and ₹7.25 crores
in addition to the sum of ₹22.20 crores already received. Thus, the total
payment made to Lalit Modi by the plaintiff from 15 th January, 2009 to 12th
June, 2015 amounted to ₹34 crores against the total sale consideration of
₹35 crores.
5. It is the case of the plaintiff that Lalit Modi handed over original
documents pertaining to the suit property to the plaintiff on 10 th February,
2016 and executed registered General Power of Attorney and Will
concerning the suit property in favour of the plaintiff. The Agreement to
Sell dated 24th June, 2014, the receipts of payments, General Power of
Attorney, Will dated 10th February, 2016 all executed by Lalit Modi were
duly executed with the Office of Sub-Registrar, Govt. of NCT of Delhi. That
apart, the plaintiff also issued public notice in the newspaper claiming its
rights in the suit property on 7th April, 2016. Since Lalit Modi failed to
execute the Sale Deed and did not handover the vacant possession of the suit
property, disputes arose and a Sole Arbitrator Shri Naresh Gupta, Advocate
was appointed by the parties vide letter dated 5 th October, 2016. The Sole
Arbitrator passed an award dated 21st November, 2016 directing specific
performance of the agreement dated 24th June, 2014 by Lalit Modi in favour
of the plaintiff company.
6. As per the plaintiff after passing of the award, the intention of Lalit
Modi became dishonest and he started avoiding the execution of the award
which was a decree and also in collusion with defendant No.1 who was his
old acquaintance, fabricated certain allegedly predated agreements to sell
CS(OS) 150/2020 Page 3 of 6
dated 9th July, 2012 and 14th July, 2016 in favour of defendant No.1
Thereafter, defendant No.1 filed a suit for specific performance against Lalit
Modi seeking enforcement of the Agreement to Sell dated 14th July, 2016,
which suit was registered as CS(OS) No.109/2017, wherein this Court
directed Lalit Modi to maintain status quo in respect of the suit property. It
is the case of the plaintiff that the suit was filed and status quo obtained only
to ensure that the award dated 21.11.2016 in favour of the plaintiff is not
given effect to.
7. During the pendency of CS(OS) 109/2017, the plaintiff filed an
application for impleadment which was dismissed by the learned Joint
Registrar challenging which the plaintiff also filed an appeal before the
learned Single Judge which was also dismissed followed by the dismissal of
appeal against the said order by the Division Bench on 18th July, 2018 being
FAO (OS) 16/2018.
8. Lalit Modi in April, 2017 filed objections against the award dated
21st November, 2016- 13th January, 2017 by filing OMP No.7/2017, inter
alia alleging that the agreement was executed on blank paper signed by Lalit
Modi in order to secure a loan received by Lalit Modi from the plaintiff
bank. Plaintiff also filed an Execution Petition seeking enforcement of the
award and a petition under Section 9 of the Arbitration and Conciliation Act,
1996 seeking to restrain Lalit Modi from in any manner selling, transferring
and alienating the suit property after the passing of the award in favour of
the plaintiff. The said objection under Section 9 of the Arbitration and
Conciliation Act, 1996 has since been allowed and this Court confirmed the
interim order dated 15th March, 2017 on 4th September, 2017. However,
OMP No.7/2017 filed by Lalit Modi and Ex.Pet.No.69/2017 filed by the
CS(OS) 150/2020 Page 4 of 6
plaintiff are pending consideration before this Court. In CS(OS) 109/2017,
after parties led their evidence, judgment and decree dated 14th May, 2020
was passed by this Court which was subsequently modified vide order dated
17th June, 2020 when defendant No.1 and 2 were personally present through
Video Conferencing.
9. The present suit has been filed by the plaintiff, inter alia, with the
prayer seeking a decree of declaration, declaring the judgment and decree
dated 14th May, 2020, as modified by order dated 17th June, 2020 passed in
CS(OS) 109/2017 directing execution of the Sale Deed of the suit property
in favour of defendant No.1 or its nominee against the payment of the
balance sale consideration to defendant No.2/defendant No.3.
10. Thus, the ground urged by learned counsel for the applicant that the
suit is barred by limitation as the alleged Agreement to Sell between the
plaintiff and defendant No.2 was dated 15 th March, 2017 deserves to be
rejected for the reason one of the prayers in the suit is seeking the judgment
and decree dated 14th May, 2020, as modified by order dated 17th June, 2020
as null and void. The suit is well within the period of limitation in respect of
the said relief and thus, this Court need not delve into further whether other
reliefs are within the period of limitation at this stage for the reason the suit
cannot be rejected piecemeal.
11. learned counsel for defendant No.1/applicant also contended that
defendant No.2 has challenged the award and in the present application
taken grounds to urge that the award passed by the learned Arbitrator is null
and void. The said issue is pending consideration in OMP (I) No.3/2017
filed by defendant No.2 and this Court cannot in the present proceedings
CS(OS) 150/2020 Page 5 of 6
particularly under Order VII Rule 11 CPC delve into the same and decide
the validity of the award passed by the Sole Arbitrator.
12. Consequently, the present application under Order VII Rule 11 CPC
filed by defendant No.1 is dismissed.
I.A. 6917/2020 (under Order XXXIX Rule 4 CPC-by defendant No.1)
1. Notice.
2. Learned counsel for the plaintiff/non-applicant accepts notice.
3. Learned counsel appearing for defendant Nos.2 and 3 also accepts
notice.
4. Reply affidavit be filed within one week. Rejoinder affidavit be filed
within three days thereafter.
5. List the application on 27th August, 2020.
6. Order be uploaded on the website of this Court.
MUKTA GUPTA,J.
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