Delhi High Court
Shapoorji Pallonji & Co. Ltd. vs M/S Bhasin Infotech & ... on 6 March, 2014
Author: Manmohan Singh
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Order delivered on: March 06, 2014
+ OMP No.734/2012, I.A. Nos.18273/2012, 15789/2013 &
16946/2013
SHAPOORJI PALLONJI & CO LTD ..... Petitioner
Through Mr.H.L.Tiku, Sr.Adv. with Mr.Aslam
Ahmed, Mr.Babit Singh Jamwal,
Mr.Puneet Singh Bindra,
Mr.A.Menon & Mr.Shrivardhan
Deshpande, Advs.
versus
M/S BHASIN INFOTECH & INFRASTRUCTURE PVT. LTD.
..... Respondent
Through Mr.Ravi Sikri, Adv. with Mr.Jenis
Francis, Mr.Gaurav Beri &
Ms.Neha Bhatnagar, Advs.
AND
+ Arb.P. No.14/2013
SHAPOORJI PALLONJI & CO LTD ..... Petitioner
Through Mr.H.L.Tiku, Sr.Adv. with Mr.Aslam
Ahmed, Mr.Babit Singh Jamwal,
Mr.Puneet Singh Bindra,
Mr.A.Menon & Mr.Shrivardhan
Deshpande, Advs.
versus
M/S BHASIN INFOTECH & INFRASTRUCTURE PVT. LTD.
..... Respondent
Through Mr.Ravi Sikri, Adv. with Mr.Jenis
Francis, Mr.Gaurav Beri &
Ms.Neha Bhatnagar, Advs.
OMP No.734/2012 & Arb. P.No.14/2013 Page 1 of 7
CORAM:
HON'BLE MR. JUSTICE MANMOHAN SINGH
MANMOHAN SINGH, J. (ORAL)
1. The petition under Section 9 of the Arbitration and Conciliation Act,
1996 being OMP No.734/2012 has been filed by the petitioner for interim
measure with regard to the dispute under the Civil and Structural Works
Agreement dated 6th February, 2008.
2. On 14th August, 2012, an ex parte order was passed against the
respondent, its agents, servants, officers or Directors restraining them from,
directly or indirectly, transferring, conveying, alienating, dealing with or
creating third party rights or otherwise encumbering the Grand Venezia Mall
(now known as Grand Venice Mall) in Greater Noida.
3. Upon service, the respondent entered its appearance on 24 th
September, 2012. In the month of October, 2012, the respondent through its
counsel offered to the petitioner certain earmarked built-up portion of the
Mall in question as security of a value equivalent to the claims raised by the
petitioner. It was also stated that the respondent would obtain the requisite
'No Objection Certificate' from the financial institutions for the purposes of
giving an earmarked portion as security.
4. As per the petitioner, the amount claimed in the petition is a monetary
value of `16.2 crores. However, the contention of the respondent is that the
effect of the interim order passed on 14th August, 2012 restraining the
respondent from dealing with the Grand Venezia Mall (now known as Grand
Venice Mall) itself is valued at more than `700 crores. Earlier, the
respondent was able to obtain the 'No Objection Certificate' in relation to
the concerned area. However, the petitioner was not inclined to accept the
space as offered by the respondent as security expressing objections that the
space offered as security is an open space and is not saleable.
5. On 9th October, 2013, this Court appointed Mr.Anup Kothari,
Architect, as a Court Commissioner to visit the site and submit his report on
the site, after carrying out an inspection of the proposed site being offered as
security. However, before the inspection is carried out by the Architect, the
respondent provided the details of alternate space to the petitioner, which is
a prime mini anchor area admeasuring built up area of 24066 Sq. ft.,
Commercial Retail Space located at Lower Ground Floor, Ground Floor and
Upper Ground Floor of the Mall in question, valued at more than `24-25
crores. The respondent has filed the said details as well as the photographs
of the said Commercial Retail Space and the copies of Certificates of
valuation issued by independent real estate consultants, in the Court along
with its application being I.A. No.16946/2013 which is filed by the
respondent for modification of the orders dated 14 th August, 2012 and 9th
October, 2013 passed by this Court. Earlier also, the respondent filed an
application being I.A. No.15789/2013 for modification of the interim order
passed by this Court on 14th August, 2012 and also an application being I.A.
No.18273/2012 for vacation of the said interim order, which are still
pending.
6. It is pertinent to mention that Since Mr.Anup N. Kothari, Architect
who was appointed as a Court Commissioner on 9th October, 2013 was
unable to execute the commission on account of his ill-health, hence vide
order dated 6th November, 2013, on the joint request of the parties,
Mr.Goonmeet S.Chauhan, Architect was appointed as a Court Commissioner
in place of Mr.Kothari, to comply with the order dated 9th October, 2013 and
also to ascertain the total saleable area of the new property referred in I.A.
No.16946/2013, i.e. Commercial built-up area ad-measuring 24066 Sq. ft.
(approx. 2236 Sq. mtrs.) being the proposed area space of 8374 sq. ft. on
Lower Ground Floor, 8039 Sq. ft. on Ground Floor & 7653 Sq. ft. on Upper
Ground Floor situated at Grand Venezia Mall (now known as Grand Venice
Mall) at Plot No.SH-3, Site-IV, Greater Noida. The Court Commissioner
filed his report dated 29th November, 2013.
7. The petitioner has also filed the petition under Section 11(5) & (6) of
the Arbitration and Conciliation Act, 1996 for appointment of an Arbitrator,
being Arb.P. No.14/2013.
8. After small submissions made by the parties, they are agreeable if the
order dated 14th August, 2012 is modified and restricted to the security as
furnished by the respondent, on the following terms and undertakings:-
(i) The respondent shall issue a letter to the petitioner, the contents of
which read as under:-
"We M/s Bhasin Infortech and Infrastructure Private
Limited have taken services from Shapoorji Pallonji &
Company Limited as per the contract entered between us
for the construction of Grand Venezia Mall (now known
as Grand Venice Mall) at our site at Greater Noida. For
securing the amounts claimed by you in the OMP No.734
of 2012 now pending before the Hon'ble Delhi High
Court and the eventual awarded amount in the award, if
any, we are hereby giving as a security as and by way of
first exclusive charge for the payment of the awarded
amount, if any, our built-up area at our Grand Venezia
Mall (now known as Grand Venice Mall) as per details
enumerated below in respect of which Punjab & Sind
Bank of the address P-18/90, Connaught Circus, New
Delhi-110001 and Punjab National Bank of the address
BO:74, Janpath, New Delhi-110001 have given their
respective 'No Objection Certificates' (NOCs) both dated
05.03.2014.
SCHEDULE-A
No. Description Estimated Remarks
Value
1 Commercial built-up `19.27
area ad-measuring crores
24066 Sq. ft. (approx.
2236 Sq. mtrs.) being
the proposed area
space of 8374 sq. ft.
on Lower Ground
Floor, 8039 Sq. ft. on
Ground Floor & 7653
Sq. ft. on Upper
Ground Floor situated
at Grand Venezia
Mall (now known as
Grand Venice Mall)
at Plot No.SH-3, Site-
IV, Greater Noida
The above schedule is true and correct
Yours faithfully
For Bhasin Infotech and Infrastructure Pvt. Ltd.
Director
Address: 28, Raja Garden, New Delhi"
(ii) The respondent shall issue certain documents to the petitioner within
15 days from today. The details of the same are given as under:-
(1) Revised letter dated 21st February, 2014 be issued by the
respondent for creation of charge over the said property in favour
of the petitioner.
(2) In Board Resolution dated 21st February, 2014 issued by the
respondent, the word "charge" at every place be replaced with
"exclusive first charge".
(3) Modifications in Form No.8 (for creation of charge) and file the
same:-
(i) Attach the new NOCs to be issued by the Banks.
(ii) Attach the letter to be issued by respondent as per the
revised format attached thereto.
(iii) Attach certified copies of orders dated 30th September, 2013
and 2nd December, 2013 passed by the High Court passed in
OMP No.734 of 2012; and
(iv) Attach revised Board Resolution of the respondent;
(v) In Clause No.9 on page 2 of Form No.8: (a) the word
"charge" should be replaced with "exclusive first charge";
and (b) the following sentence should be added - "Charge is
being recorded to secure payment as would be determined in
terms of award rendered by the Arbitral Tribunal between
Bhasin Infotech & Infrastructure Private Limited and
Shapoorji Pallonji and Company Limited".
(vi) On page 6 of Form No.8, under the "Verification" clause,
the words "Authorised Signatory" should be replaced with
"Director".
(4) File Form No.8 for modification of charge signed by the Banks and
the respondent.
9. I have been informed by the parties that the Punjab & Sind Bank,
E-16, Rajouri Garden, New Delhi-110027 and the Punjab National Bank,
BO:74, Janpath, New Delhi-110001 have also issued respective letters dated
5th March, 2014 to the respondent rendering their no objection for creating
exclusive first charge in respect of the property in question in favour of the
petitioner.
10. The order dated 14th August, 2012 is modified accordingly in view of
the security as furnished by the respondent in favour of the petitioner in the
terms and undertakings mentioned above, subject to the final outcome of
arbitration proceedings. The order dated 9th October, 2013 for appointment
of Court Commissioner is also recalled.
11. As regards Arb.P. No.14/2013, with the consent of both the parties,
Sh.R.C.Chopra, a retired Judge of this Court (Mobile No.9818097777) is
appointed as sole Arbitrator to adjudicate upon all the disputes and
differences between the parties with regard to the Civil and Structural Works
Agreement dated 6th February, 2008. Liberty is granted to the parties to file
their respective claims and counter-claims in terms of the above said
agreement in accordance with law before the learned sole Arbitrator. Liberty
is also granted to them to file an interim application before the learned
Arbitrator, if such situation arises at any point of time. The Arbitrator shall
conduct the proceedings under the provisions of the Arbitration and
Conciliation Act, 1996 and shall give prior notice before commencing the
proceedings. The fee of the learned Arbitrator shall be paid in accordance
with the Rules of the Delhi High Court Arbitration Centre which shall be
borne by both the parties in equal proportion.
12. The petition being OMP No.734/2012 along with I.A.
Nos.18273/2012, 15789/2013 & 16946/2013 as well as the Arb.P.
No.14/2013 are accordingly disposed of.
13. A copy of this order be communicated to the learned Arbitrator.
Copies of the same be also given dasti to the learned counsel for the parties,
under the signatures of the Court Master.
(MANMOHAN SINGH)
JUDGE
MARCH 06, 2014
