Delhi High Court - Orders
Manish Madhukar Daterao vs Anand Divine Developers Private ... on 27 July, 2021
Author: C. Hari Shankar
Bench: C. Hari Shankar
$~13
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ O.M.P.(I) (COMM.) 240/2021 & I.A. 8977/2021
MANISH MADHUKAR DATERAO ..... Petitioner
Through: Mr. Akshay Srivastava, Adv.
versus
ANAND DIVINE DEVELOPERS PRIVATE
LIMITED & ANR. ..... Respondents
Through: Mr. Kartik Nayar, Adv. and Mr.
Sarthak Malhotra, Adv.
CORAM:
HON'BLE MR. JUSTICE C. HARI SHANKAR
ORDER
% 27.07.2021
(Video-Conferencing)
I.A. 8977/2021 in O.M.P.(I) (COMM.) 240/2021
1. Subject to the petitioner filing legible copies of any illegible or dim documents on which he may seek to place reliance within four weeks from today, exemption is granted for the present.
2. The application stands disposed of.
O.M.P.(I) (COMM.) 240/2021
1. Mr. Akshay Srivastava, learned counsel for the petitioner, presses for ad interim reliefs in terms of prayer (B) of the petition.
2. The prayer clause of this petition reads thus:
"In the facts and circumstances mentioned above and in the Signature Not Verified Digitally Signed By:SUNIL SINGH NEGI O.M.P.(I) (COMM.) 240/2021 Page 1 of 5 Signing Date:28.07.2021 15:06:08 interest of justice, it is most respectfully prayed that this Hon'ble Court may be graciously be pleased to:
A. Allow the present petition;
B. The Respondents may be directed to continue paying
any and all installments, Pre-possession EMI and interest to ICICI Bank till the time the repurchase price is fully paid by depositing the same in the Petitioner's bank account at least one day prior to the debit made by ICICI Bank from the Petitioner's bank account;
C. The Respondents may be directed to secure the buyback amount with interest which in terms of the MoU dated 17.05.2014 presently stands at Rs.5,68,77,073/- (Rupees Five Crore Sixty Eight Lacs Seventy Seven Thousand and Seventy Three Only) by depositing the said amount of Rs. 5,68,77,073/- (Rupees Five Crore Sixty Eight Lacs Seventy Seven Thousand and Seventy Three Only). This amount would continue to increase as the interest @18% accumulates month by month. The Respondents herein may be directed to deposit the said amount in no lien escrow amount or provide a bank guarantee to that extent till the arbitration proceedings are finally decided;
D. The Respondents may be directed to secure the Pre- EMI payments borne by the Petitioner amounting to Rs. 46,07,149/- (Rupees Forty Six Lacs Seven Thousand One Hundred and Forty Nine Only) by depositing amount in the above mentioned no lien escrow account. This amount would continue to increase as the interest @18% accumulates month by month. The Respondents herein may be directed to deposit the said amount in no lien escrow amount or provide a bank guarantee to that extent till the arbitration proceedings are finally decided;
E. Pass an order thereby directing that any sale consideration/amounts to be received by the Respondents from their Project under the name and style of (i) ATS Triumph at Sector 104, Gurgaon, (ii) ATS Tourmaline, Sector 109, Gurgaon, (iii) ATS Le Grandoise, Sector 150, Noida, (iv) ATS Pristine, Sector 150, Noida, (v) ATS Pristine, Golf Villas, Sector 150 Noida and (vi) ATS Marigold, Sector 89 A, Gurgaon to the extent of an amount of Rs. 6,14,84,222/-Signature Not Verified Digitally Signed By:SUNIL SINGH NEGI O.M.P.(I) (COMM.) 240/2021 Page 2 of 5 Signing Date:28.07.2021 15:06:08
(Rupees Six Crore Fourteen Lacs Eighty Four Thousand Two Hundred and Twenty Two Only) and amount of Rs. 6,14,84,222/- (Rupees Six Crore Fourteen Lacs Eighty Four Thousand Two Hundred and Twenty Two Only) be deposited before this Hon'ble Court or kept in a no lien escrow account, till the arbitration proceedings are finally decided;
F. Alternatively, restrain the Respondents from selling, alternating, encumbering, transferring possession or creating any third party interest in any portion of the project under the name and style of (i) ATS Triumph at Sector 104, Gurgaon,
(ii) ATS Tourmaline, Sector 109, Gurgaon, (iii) ATS Le Grandoise, Sector 150, Noida, (iv) ATS Pristine, Sector 150, Noida, (v) ATS Pristine, Golf Villas, Sector 150 Noida and
(vi) ATS Marigold, Sector 89 A, Gurgaon, till the arbitration proceedings are finally decided;
G. Pass an order thereby directing that any amounts to be received by the Respondents on account of maintenance charges or otherwise, from its Projects under the name and style of (i) ATS Greens at Sector 50, Noida, (ii) ATS One Hamlet, Sector 104, Noida, (iii) ATS Village, Sector 93A, Noida, (iv) ATS Advantage, Ghaziabad and (v) ATS Hacienda, Ghaziabad to the extent of an amount of Rs. 6,14,84,222/- (Rupees Six Crore Fourteen Lacs Eighty Four Thousand Two Hundred and Twenty Two Only) and the said amount be deposited before this Hon'ble Court or kept in a no lien account, till the arbitration proceedings are finally decided.
H. Pass any further order as may be deemed fit and proper."
3. I am not inclined to grant any ad interim reliefs in terms of prayer (B), chiefly for two reasons. Firstly, Mr. Srivastava acknowledges the fact that the respondents have been in alleged default of the EMIs payable by the petitioner since December, 2018. Since then, the petitioner has been paying the said EMIs, as on date for two years and nine months. Secondly, till date, no notice, invoking Signature Not Verified Digitally Signed By:SUNIL SINGH NEGI O.M.P.(I) (COMM.) 240/2021 Page 3 of 5 Signing Date:28.07.2021 15:06:08 arbitration, under Section 21 of the Arbitration and Conciliation Act, 1996, ("the 1996 Act", in short), has been issued by the petitioner.
4. It is well settled that, apart from the existence of a prima facie case, balance of convenience and irreparable loss, two cardinal criteria, which are required to be satisfied before relief can be granted under Section 9 of the 1996 Act are (i) the necessity to grant emergent relief, failing which there is a possibility of frustration of the arbitral proceedings or of any relief that may ultimately be granted therein, and which cannot, therefore, await initiation of arbitration and filing of an application under Section 17 of the 1996 Act by the petitioner and
(ii) manifest intent of the petitioner to invoke arbitral proceedings.
5. In the present case, the petitioner having itself deposited the EMIs for two years and nine months, without moving this Court under Section 9 of the 1996 Act, the mere fact that it would have to continue to pay the EMIs cannot be a ground to justify grant of ad interim relief in terms of prayer (B) of the petition without giving an opportunity to the respondents to respond. Grant of an opportunity to the respondent before passing of any interim order would also be justified as the petitioner has also not chosen, till date, even to issue a notice of arbitration under Section 21 of the 1996 Act.
6. I am unable, therefore, to accede to the prayer of Mr. Srivastava to grant ad interim relief in terms of prayer (B) in the petition, prior to issuance of notice to the respondents.
Signature Not Verified Digitally Signed By:SUNIL SINGH NEGI O.M.P.(I) (COMM.) 240/2021 Page 4 of 5 Signing Date:28.07.2021 15:06:087. As such, the prayers in the petition would be taken up for consideration after the respondents have an opportunity to respond to this petition.
8. Issue notice, returnable on 5th October, 2021.
9. Notice is accepted, on behalf of both the respondents, by Mr. Kartik Nayar.
10. Counter affidavit, if any, be filed within four weeks with advance copy to learned counsel for the petitioner, who may file rejoinder thereto, if any, before before the next date of hearing.
C. HARI SHANKAR, J.
JULY 27, 2021 dsn Signature Not Verified Digitally Signed By:SUNIL SINGH NEGI O.M.P.(I) (COMM.) 240/2021 Page 5 of 5 Signing Date:28.07.2021 15:06:08