Hotel Hans Private Limited vs Empire Builders
1997 Latest Caselaw 501 Del

JUDGMENT

K. Ramamoorthy, J.

(1) Omp has been filed by the petitioner against the three respondents for the following reliefs:

A)Restrain the respondents, their agents, servants, employees, attorneys, representatives from in any manner alienating, transferring and/or parting with possession, entering into any kind of agreement to sell and/or enter into any kind of arrangement and/or grant licences and/or deal with and/or using, raising any constructions or making alterations in the properties comprising of the land measuring 3.7 acres situate on Hill Top, a little higher and adjacent to St. Mary's Hospital, off the Mall Road, Opp. Hackman's Hotel, Mussorie and the Cottages built thereon, site plan whereof is annexed hereto as Annexure `A', till the ultimate conclusion of the arbitral proceedings;

B)Restrain the respondents, their agents, employees and/or representatives from in any manner dealing with, transferring and/or parting with possession of all the goods comprising of T.V. sets, Refrigerators, Epabx telephone Systems, Music System, Microwave oven, Computers, Printers, Fax Machine and other valuable articles as per list annexed hereto as Annexure `B' lying with the Respondents, till the ultimate conclusion of the arbitral proceedings;

C)appoint a Receiver to take control of the entire property and the articles described in Annexures `A' and `B' hereto.

D)direct the respondent Nos 1 and 2 to deposit in this Hon'ble Court all the original title deeds/sale deeds in respect of the land and cottages described in annexure `A' hereto in their power, possession and control;

E)restrain the respondents from operating the Bank Accounts held in the name of the respondent No.3 inter alia being Current Account No. 116383 with Bank of America at "Hansalaya" 15, Barakhamba Road, New Delhi - 110001 till the final conclusion of the arbitral proceedings;

THE respondents 1 and 2 had filed the reply. The petitioner in Omp No. 13/97 had filed Aa No. 79/97 for the appointment of the arbitrator for adjudicating on the disputes between the petitioner and M/s Empire Builder and Mr. Naresh Khattar partner of the first respondent, Empire Builders. I have heard the learned counsel for the parties for a considerable length of time and the matter could not be finished and, therefore, I expressed my view that some interim arrangement could be made till the Omp and Aa are finally disposed of and I requested the learned counsel for the parties to address their arguments keeping in view the arrangements to be made.

(2) Learned counsel for the petitioner Mr. H.L. Tikku submitted that the petitioner had paid a sum of Rs. 2.45 crores to the respondents for the purpose of purchasing the property and putting up the cottages in Mussourie and the entire money given by the petitioner was utilised by Mr. Naresh Khattar and memorandum of understanding was executed and the terms of memorandum of understanding were not adhered to by Mr. Naresh Khattar. According to Mr. Tikku, the parties contemplated putting up about 50 cottages out of that 13 cottages are complete and ready for occupation by tourists. With reference to the other some more constructions or improvement have to be made and that could be done without any difficulty.

(3) The learned counsel Mr. Tikku submitted that the petitioner is willing to take 50% of the cottages ready and also 50% of the cottages incomplete and the petitioner will operate in its own way pending disposal of the two matters.

(4) Mr. Arun Jaitley, learned Senior Counsel for respondents 1 and 2 submitted that without prejudice to the rights and contentions of the parties and without touching on the merits of the rival contentions this court can appoint a Receiver and one representative from the petitioner and Mr. Naresh Khattar representing the respondents who could be directed to operate all the cottages and all the money collected from the tourists directed to be deposit in this court and the Committee consisting of these three members could take money required just for operation and this arrangement could continue till final decision is made in these two matters. Learned Senior counsel submitted that the respondents had spent about Rs. 13 crores and the facilities offered to the tourists in the cottages are of the grade given in the Five Star Hotels and the respondents had to spend a good lot of money for bringing the cottages to such a position. Learned Senior counsel submitted that it is because of the facilities made available in the cottages tourists are coming and the season has set in.

(5) Mr. H.L. Tikku learned counsel for the Petitioner and Mr. Arun Jaitley Senior Counsel for the respondents agreed on the point that the parties should not alienate the cottages or create encumbrances pending the disposal of the decision.

(6) I am of the view that having regard to impending season, the parties should not be put to any loss because of any delay on the part of the court in giving the decision on the main issues involved, one way or the other. Public interest also would impel me to make some arrangement because tourists will be benefitted by getting accommodations without any difficulty who may visit Mussoorie which is one of the important hill stations in India.

(7) Mr. Tikku, learned counsel for the petitioner has taken a stand to give details of number of cottages ready and number of cottages complete but without any finishing and number of incomplete category. According to the learned counsel, 13 cottages are complete with all respects and ready for occupation. 10 cottages are complete but not furnished. 26 cottages are incomplete.

(8) Mr. Tikku learned counsel for the petitioner repeatedly argued that having regard to the strained relationship between the Managing Direct of the petitioner and Mr. Naresh Khattar, the petitioner does not want to act as a member of the Committee as proposed by Mr. Arun Jaitley, Sr. advocate for the respondents. I am not able to appreciate the stand of the petitioner. No doubt, the petitioner has ploughed in about Rs. 2.50 crores and that cannot be used as a lever to put spokes on the wheel. The petitioner must come forward and try to co-operate in making the cottages functional so that project could yield some money. I feel that the parties must be prepared for doing some service to the society even though the project was intended to make money.

(9) Without prejudice to the rights and contentions of the parties, I hereby appoint Mr. Mohinder Rana, advocate as a Receiver. Mr. Naresh Khattar the second respondent is appointed as Joint Receiver. They shall operate the project and whatever money they receive for operating the project shall be deposited in a bank and the bank account should be operated by both, Receiver and Joint Receiver (Mr. Naresh Khattar) and the cheques should be signed by both the Receiver and Joint Receiver. The Receiver shall take charge of the entire project alongwith Naresh Khattar Joint Receiver and submit a report about the 49 cottages and the expenses required for making the rest of the cottages operational. The Receiver and the second respondent Mr. Naresh Khattar shall act jointly and enter into a time share agreement with any person, offering to have the agreement and they shall submit the report in the first week of every succeeding month about the collection and the position of the project.

(10) Mr. Naresh Khattar shall deposit all the original sales deeds with reference to the cottages in this court within two weeks from today and the office shall keep these sale deeds in a sealed envelope in safe custody. The Receiver shall be paid a remuneration of Rs. 10,000.00 by the first Respondent in the first instance and every month Rs. 5,000.00 shall be paid by the 2nd respondent. All other expenses for working in the project shall be paid by the 2nd respondent Mr. Naresh Khattar, The petitioner and the respondents 1 to 3 are restrained from alienating the cottages and creating incumbrances or mortgaging the land and cottages pending the disposal of the matters. This arrangement shall continue till the matters are finally disposed of by this court.

POST the Omp 13/97 and Aa 79/97 for further hearing on 29.08.1997. Ia No.4619/97

ISSUE notices to the respondents for 29.08.1997.