Sukaran Kumar Jain vs Today Homes And Infrastructure ...
2008 Latest Caselaw 638 Del

ORDER

Shiv Narayan Dhingra, J.

IA 8200/2007

1. By this application under Order 39 Rule 1 and 2 CPC, the plaintiff has sought interim injunction against defendants, restraining defendants and their agents from selling, transferring or alienating or parting with possession of area ad measuring 26929 sq. ft.(super area), comprising of complete top floor and part of the second floor of the shopping-cum-commercial plaza known as Orbit Plaza, Gujaranwala Town, Delhi in favor of anyone except in favor of plaintiff in terms of the agreement to sell dated 14th July 2006. A prayer is also made that defendants be restrained from parting with possession of the area to anyone else till such time plaintiff is handed over the area, complete in all respect the physical vacant possession.

2. Brief facts relevant for the purpose of deciding this application are that plaintiff paid a sum of Rs. 28,85,00,000/- to the defendants to be returned to the plaintiff in terms of an MoU dated 27th March 2006 signed between the parties Rs. 10 crore was to be returned within 90 days of the signing of the MoU i.e. Within 90 days of 27th March 2006 and Rs. 18.85 crore was to be returned within 150 days from the date of the MoU. In order to secure refund of this amount, an agreement to sell a super area of 41215 sq. ft. in Orbit Plaza under construction was entered into between plaintiff and defendant. Orbit Plaza was being constructed by defendant No. 2 of which the plaintiff was earlier having control. However, defendant No. 1 purchased the majority shares of defendant No. 2 company from plaintiff and became in control of Defendant No. 2.

3. The initial agreement to sell the super area in Orbit Plaza was executed on 27th March 2006. Defendant No. 2 paid a sum of Rs. 10 crore in July 2006 and for balance amount of Rs. 18.85 crore entered into a fresh MoU and a fresh agreement to sell was entered by defendant No. 1 with plaintiff on 14th July 2006. According to this MoU, defendant No. 2 was to return the advance of Rs. 18.85 crore to the plaintiff on or before 40 days from the date of MoU or upon happening of events, as mentioned in paragraph 4 and 5, of MoU whichever was later. In order to secure refund of this amount of Rs. 18.85 crore, defendant No. 1 had entered into an agreement to sell a super area of 26929 sq. ft. in Orbit Plaza under construction with plaintiff. Amount of Rs. 18.85 crore was equivalent to cost of this area. It was specifically provided that the agreement to sell can be enforced upon failure of defendant No. 2 to refund the amount of Rs. 18.85 crore. It was also agreed that defendant No. 2 was to pay interest @ 10% per annum to the plaintiff in case of default. It was stated that in case the amount was paid before the stipulated date, the agreement to sell the commercial space of 26929 sq. ft. (super area) shall be treated as cancelled. MoU provided that the plaintiff was to settle all pending income tax demands in respect of defendant No. 2 company for the period ending on 27th March 2006, within 40 days from the date of MoU and was to provide no tax liability on account of tax, penalty, interest or otherwise. This was a pre-condition of payment of Rs. 18.85 crore by defendant No. 2 for purpose of this MoU. In case defendant No. 2 failed to refund the amount on or before the stipulated date or on obtaining No Tax Liability, the plaintiff was to become entitled to enforce the agreement to sell for the aforesaid area of 26929 sq. ft. The defendant No. 1 entered into an agreement to sell of above said area with the plaintiff on 14.7.2006 wherein it was specifically stated that the super area of 26929 shall be sold to the plaintiff in terms of MoU for the price of Rs. 18.85 crore, which was payable by defendant No. 2 to the plaintiff. The agreement to sell provided that the basic sale price and other charges, as per the demand plan, in respect of this area stood fully paid and this super area shall be consisted of entire top floor and part of the second floor. It was agreed that the super area shall be transferred either in the name of the plaintiff or in the name of his nominee. The agreement is in fact a detailed agreement providing various other terms and conditions regarding rest of the charges for some part of the second floor and other facilities etc since the price paid by the plaintiff was the basic price.

4. The contention of the plaintiff is that the defendant No. 2 did not pay back the amount of Rs. 18.85 crore within the period as stipulated in the MoU. The defendant also failed to pay the amount of Rs. 2 crore which was to be paid to the plaintiff in terms of the share transfer agreement. The plaintiff has already issued a notice for winding up of defendant No. 1 company on 4th July 2007. Plaintiff had become entitled for specific performance of agreement dated 14.7.2006.

5. The plaintiff also got the entire area reconciled in terms of the MoU, giving to the defendant the file of all 40 allottees and gave complete statement of accounts showing the amount received to the extent of Rs. 3,00,29,980/- along with respective statement of accounts. The plaintiff got the appeal pending before the Commissioner of Income Tax disposed of vide order dated 16th March 2007. The demand of tax raised upon defendant No. 2 company was quashed and refund of Rs. 54,910/- became payable to defendant No. 2. Upon passing of the order by the Income Tax Commissioner dated 16th March 2007, the entire demand of tax up to 27th March 2006 stood settled. It is stated that after the plaintiff settled the tax matter, plaintiff made an oral request to the defendant No. 2 asking for refund of the amount of Rs. 18.85 crore, but the defendant No. 2 avoided the payment on one or the other pretext and plaintiff thereafter issued a notice dated 6th May 2007 calling upon the defendant No. 2 to pay Rs. 18.85 crore together with interest @ 10% per annum from 14th July 2006. The defendant No. 2 did not comply with the MoU and wrote a letter dated 9th June 2007 to the plaintiff, falsely and wrongly, denying its liabilities and alleged that 'no demand certificate' was yet to be issued by the Income Tax Department. It is submitted that in order to avoid any controversy, plaintiff got a certificate issued from the office of Deputy Commissioner of Income Tax confirming that there was no payment outstanding against defendant No. 2. Apart from this, the plaintiff also furnished document giving details of all amount received and statements of accounts to the plaintiff in respect of allottees. The plaintiff served a notice dated 4.7.2007 making it clear to the defendant that in case the amount of Rs. 18.85 crore along with interest of 10% is not paid within 7 days of receipt of notice, the plaintiff shall enforce the agreement to sell dated 14th July 2006 for sale of 26929 sq ft with super area. This notice was given to the defendant No. 1 and not to defendant No. 2 inadvertently. In order to avoid any controversy or technical objections, the plaintiff issued yet another legal notice dated 18th July 2007 to Defendant No. 2 and reiterated the contents of notice dated 4th July 2007 and again made it clear that in case the amount was not paid along with 10% interest, in terms of the MoU, the agreement to sell dated 14th July 2006, shall be enforced and plaintiff shall become entitle to super area of 26929 sq. ft.

6. The execution of the MoU and Agreement to Sell by defendants is not denied. Defendants have stated that the plaintiff was only entitled to the money and not the super area. It is stated that the plaintiff was to clear income tax liabilities in respect of defendant No. 2 for the entire period up to 27th March 2006 and the certificate issued by the Income Tax Commissioner was not in respect of the entire period and it was only in respect of one year. It is also submitted that an appeal was preferred against the order of Income Tax Commissioner and the defendants could have faced further tax liability. Under these circumstances, in terms of Clause 5 of the MoU, defendant No. 2 was not liable to pay the amount of Rs. 18.85 lac to the plaintiff. Defendant also relied upon Clause 3(iv) of MoU whereunder it is provided that the intending seller have unrestricted right to lease out the area to any group with minimum rental of Rs. 66 per square ft. However, the intending purchaser is also free to lease out the said premises subject to written approval of the intending seller and in case the intending seller fails to lease out the said premises before the date of possession, in that case the intending purchaser shall be entitled to recover monthly rent @ Rs. 66 per square ft. from the intending seller till the premises is leased out to a reputed brand. It is submitted by counsel for the defendants that since the defendant No. 1 had a sole right to lease out the premises, therefore, the plaintiff was not entitled for this claim.

7. The agreement which is entered into between plaintiff and defendant No. 1 is a standard performa agreement which is normally entered into by all developers with the purchaser of the super area. It is normally known that the person put money in purchasing super areas for investing and earning rent. Only few persons purchase Mall areas for their own business. Most of the business houses prefer to take areas on rent. It is the anxiety of all the mall developers that their mall should have shops of reputed brands and it is for this purpose that in all agreements the standard format is provided that the developer ensures the minimum return per square ft. on the area to the purchaser and also undertake to find out tenant for the purchaser. Developer also gives an opportunity to the purchaser to find out the tenant himself at a better rate and for this reason this clause is provided so that the intending purchaser may safely invest money. The date of possession, which is mentioned in this agreement is the date when Mall is ready for possession to be given to the intending purchasers. I consider that this clause does not create any right in the defendant No. 1 to keep the area for his own use. This clause only ensures safe return on the invested money to the person who invests money in the mall.

8. A perusal of 'no due certificate' issued by Commissioner of Income Tax and other documents would show that the plaintiff had prima facie cleared all tax liabilities and satisfied the conditions of MoU. The balance of equity lies in favor of the plaintiff. The plaintiff had given an opportunity to the defendant to pay the amount along with 10% interest up to the date of notice. It is the defendant who failed to pay the amount along with interest to the plaintiff despite issuance of notice raised a dispute, which prima facie was not existing.

9. It is not in dispute that the appeal against the order of Commissioner of Income Tax was also dismissed by the Tribunal and the order of Commissioner Income Tax was confirmed that there was no tax liabilities. The submission of defendants' counsel that the existing tax liabilities have not been cleared by the plaintiff was baseless. It is not that the defendant would not have come to know about tax liabilities of the company i.e. Defendant No. 1, had there been any. The defendants have failed to state what were the pending tax liability of the defendant No. 1. I consider that the defendants seem to be enjoying the money given by the plaintiff simultaneously ensuring that the plaintiff gets no return for the money.

10. In view of my foregoing discussion, I allow this application under Order 39 Rule 1 and 2 of the CPC. The defendants are restrained from parting with possession of 26929 sq. ft. area comprising of top floor and part of the second floor.

11. During arguments, counsel for defendants has submitted that defendant has also agreed to enter into the agreement of lease with third party. In case any portion of the area measuring 26929 sq. ft. is given on lease to any third party, the lease/rent money shall be deposited in the Court during the pendency of the instant suit.

12. With above directions, this application stands disposed of.

IA No. 12988/2007

1. This application under Order 39 Rules 1 and 2 read with Section 151 of the CPC has been preferred by the plaintiff for an ex parte ad interim injunction with a prayer that this Court should restrain the defendants from inducting any person in the second floor and top floor of Orbit Plaza, Gujranwala Town, Delhi till such time the demarcation of the area of 26,929 sq. ft. super area to be sold in terms of the agreement dated 14th July 2006 is fully demarcated by the local commissioner and the defendants be also restrained in any manner parting with possession of any portion of the entire mall without first handing over the possession to the plaintiff of the portion agreed to be sold in terms of agreement dated 14th July 2006.

2. In view of my order in IA No. 8200 of 2007, I consider it necessary that this demarcation be got done through Local Commissioner. I, therefore, appoint Shri J.P. Singh, Advocate Chamber No. 126, Lawyers Chambers, Delhi High Court, Mobile No. 9811695921, as Local Commissioner for demarcation of the area of 26929 sq. ft.(super area). He shall serve a notice to both parties and shall visit the premises within 10 days, after serving notice to both parties. Local Commissioner's fee is fixed at Rs. 20,000/- to be borne by the plaintiff.

3. With above order, this application stands disposed of.

IA No. 12989/2007

Since I have already appointed Shri J.P. Singh, Advocate, as the Local Commissioner in IA No. 12988 of 2007 this application stands allowed.

The application stands disposed of.

IA No. 3642/2008 in CS(OS) No. 1322/2007

List on 28th August 2008, the date already fixed.