Delhi High Court
Blue Horizon It Solutions Pvt Ltd & ... vs Anuj Bairathi & Ors on 5 August, 2016
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on: 2nd August, 2016
Judgment pronounced on: 5th August, 2016
+ O.M.P. (COMM.) No.321/2016
BLUE HORIZON IT SOLUTIONS PVT LTD & ORS ..... Petitioners
Through Mr.Raman Kapur, Sr. Adv. with
Mr.Dhiraj Sachdeva and Mr.Aviral
Tiwari, Advs.
versus
ANUJ BAIRATHI & ORS ..... Respondents
Through Ms.Maninder Acharya, Sr.Adv.
with Ms.Zeba Khair, Adv. for R-1
& 2.
CORAM:
HON'BLE MR.JUSTICE MANMOHAN SINGH
MANMOHAN SINGH, J.
1. The abovementioned objection petition has been filed by the
petitioners under Section 34 of the Arbitration and Conciliation Act,
1996 (hereinafter referred to as the "Act") against the award dated
4th March, 2015.
2. Admitted facts of the case are that the respondent No.1
Mr.Anuj Bairathi intended to purchase a plot bearing No.5 measuring
5000 square meters situated in Sector-90, Noida, Uttar Pradesh
(hereinafter referred to as the "said property") from the petitioner.
The respondent No.2 is a Company of the respondent No.1 and
respondent No.3 is the broker in the agreement entered into
between the petitioner No.1 and respondent No.1.
3. An Agreement to Sell dated 9th March, 2013 was entered into
between the petitioner No.1 and respondent No.1 for the sale of the
said property for a total sale consideration of Rs.7,60,00,000/-. It
was also stated in the agreement that the respondent No.1 can also
take over the petitioner No.1-Company under the said agreement. A
sum of Rs.1,10,00,000/- was paid as advance at the time of the
execution of the agreement.
4. The balance consideration of Rs.6,50,00,000/- was to be paid
by the respondent No.1 within 90 days of the execution of the
Agreement.
5. Till 3rd June, 2013, respondent No.1 also made various
payments to the petitioners. The details of the same would be
discussed later on.
6. It was also mentioned in the agreement that the petitioner
No.1 will obtain NOC/CIC in favour of the respondent No.1 from the
concerned authorities within 30 days before the expiry of the
agreement. The case of the petitioners is that the petitioners made
all the efforts to complete the formalities mentioned in the
agreement. They approached all the concerned departments for
getting all the statutory permissions. They obtained the NOC from
the account department of Noida Authority and on 11th July, 2013
CIC/CIS was also obtained from Noida Authority and thereafter, they
duly informed the respondent No.1 that all the formalities have been
completed and they are in a position to execute the transfer of
documents in favour of respondent No.1, however, the respondent
No.1 was never ready with the balance payment.
7. Disputes arose between the parties. On 24th April, 2014 the
petitioners received a letter from the Arbitrator stating therein that
the respondent No.3 had appointed him for adjudicating the disputes
between the petitioners and the respondents under the Agreement
to Sell dated 9th March, 2013.
8. The respondents No.1 and 2 filed statement of claim for the
relief of specific performance of the Agreement to Sell dated 9th
March, 2013 or in the alternative for refund of amount already paid
along with interest. The petitioners filed their reply and pleaded that
they were always ready and willing to perform their part however, it
appears that the respondents were insisting for only refund of
money.
Subsequently, the respondents filed an application for
amendment of statement of claim and raised the pleas that an
additional amount of Rs.1 crore was paid. Admittedly, the said
amount was not mentioned in the original statement of claim since it
was set off. The said application was allowed. No evidence was led
by the parties after amendment.
9. On 4th March, 2015, the Arbitrator passed the award directing
the petitioners to refund the amount along with interest @ 14.6%
and future interest @ 18% and held that the petitioners are at fault
and further held that the alleged amount of Rs.1 Crore in cash was
paid to the petitioners.
10. The said award was challenged by the petitioners inter alia,
mainly, on two grounds; firstly, the petitioner No.2 never received a
sum of Rs.1 crore in cash allegedly paid by the respondent No.1 on
3rd June, 2013 as an additional amount and the Arbitral Tribunal
awarded the said amount without any valid reason and evidence,
thus its findings are perversed and illogical. Secondly, the Arbitrator
ought not have awarded the interest as the respondents themselves
asked for the refund of amount. Even otherwise, the award of
interest is on higher side.
11. When the present objection petition was listed before Court on
6th July, 2015, the following orders were passed:-
"Caveat Nos.647/2015, 648/2015, 649/2015,
653/2015, 655/2015 & 656/2015
Learned counsel appears for the caveators.
Accordingly, caveats stand discharged.
I.A. No.13115/2015 (For condonation of delay in re-
filing the petition)
For the reasons stated in the application, five days'
delay in re-filing the petition is condoned.
Application stands disposed of.
O.M.P. 361/2015
1. Learned senior counsel for the petitioners argues
that the Arbitrator has wrongly awarded the principal
amount of Rs.3,86,33,175/- (Rupees Three crore eighty six
lacs thirty three thousand one hundred seventy five only)
whereas the principal amount should be Rs.1 Crore less. It
is argued that the amount of Rs.1 Crore, said to have been
paid in cash by the respondent No.1 to the petitioner No.1
is disputed by the petitioner, and the validity of which
denial by the petitioner No.1 becomes clear from the fact
that either in the original legal notice dated 17.02.2014
issued by the respondent No.1 or in the original statement
of claim preferred by the respondent No.1 before the
Arbitrator, there is no mention whatsoever of an amount of
Rs.1 Crore of being paid in cash by the respondent No.1.
2. It is argued that a limited notice is prayed in this
petition with respect to Rs.1 Crore and the high rate of
interest awarded by the Arbitrator.
3. Learned Senior counsel also argues that liability will
only be of the petitioner No.1, which is a company, and
there can be no liability of the Directors of petitioner No.1
as they have not personally agreed to repay the amount
and in this regard no such agreement has been shown by
the respondent No.1.
4. In view of the above, the petitioner No.1 will pay the
amount of Rs.2,86,33,175/- (Rupees Two crore eighty six
lacs thirty three thousand one hundred seventy five only)
along with simple interest @ 9% p.a. from 20.06.2013 till
the date of payment and for which learned senior counsel
for the petitioners prays for and is granted a period of
eight weeks to make payment. In case payment is not
made by the petitioner No.1 to the respondent No.1 of this
amount within eight weeks, the rate of interest then
payable by the petitioner No.1 to the respondent No.1 will
be the same rate of interest as is granted by the Award.
5. Accordingly, limited notice is issued in this petition
for the liability of Rs.1 Crore, as stated above, imposed
upon the petitioners by the Award and also the rate of
interest granted by the Award.
6. Learned counsel for the respondent accepts notice.
7. Reply be filed within a period of six weeks from
today, rejoinder be filed within a period of four weeks
thereafter.
8. Learned counsel for the parties states that the
original record of Arbitrator need not be summoned
inasmuch as the necessary pleadings and documents have
already been filed before this Court or copies of the same
will be filed before this Court before the stage of final
arguments.
9. List before the Joint Registrar for completion of
pleadings on 30.09.2015.
10. Respondent No.3 is deleted from the array of parties
as there is no dispute with the said respondent No.3 of
either of the parties."
12. The respondents' counsel has confirmed that in view of the
order passed by this Court on 6th July, 2015, the respondents have
received the amount as per direction in the order and as far as the
interest component is concerned, the said order was passed
tentatively in nature. This issue was left open to be decided by the
Court at the time of final hearing.
13. Relevant issues No.3 and 6 were framed before the Arbitrator
which read as under:-
"3. Whether the Respondent No.2 received a sum of
Rs.1 Crore in cash from the Claimant No.1 and issued a
receipt to that effect on 03.06.2013 vide Annexure C-6, at
page 55?
6. Whether the Claimants are entitled to grant of
interest, if any, on the amount retained by the
Respondents?"
14. Both the parties have made their submissions only on the
above said two issues. The issue No.3 is pertaining to the disputed
amount of Rs.1 crore which is allegedly paid by the respondent No.1
to petitioner No.2 in cash and the receipt dated 3rd June, 2013
produced by the respondent No.1.
15. The findings on the issue No.3 are arrived at after the
discussion in para 23 of the award. The same has been reproduced
herein below:-
23. So far as the second and third issue are concerned,
the same can be decided together. The payment of
Rs.3,86,33,175/- by the Claimant No.1 and 2 to the
Respondents is not in dispute. So, this Tribunal is left to
decide as to whether the Claimant had paid Rs.1 Crore in
cash to the Respondent No.2 on 03.06.2013. A perusal of
the cash payment receipt filed as Annexure C-6, at page
55, reads as follows:
"I, Gurdip Singh S/o Late. S. Kuldip Singh, R/o 8
Tolstoy Marg, Cannaught Place, New Delhi - 110 001
(Seller) acting as director and share holder of Blue
Horizon IT Solutions Pvt. Ltd. duly authorized by
Company vide board resolution dated 08.03.2013 to
receive the amount for sale of land have received
Rs.1,00,00,000/- (Rupees One Crore Only) on
03.06.2013(Sdl- illegible-Initial of the Respondent
No.2) at Delhi as advance in furtherance to amount
already paid against the Agreement executed on 9th
Day of March, 2013 from Anuj Bairathi S/o R.C. Bairathi
R/o 606, Mahagun Morpheus, E-4, Sector-50, Noida
(Buyer) for sale of land bearing Plot No.5, situated at
Sector -90 in the revenue estate of Distt Gautam Budh
Nagar,(Noida) U.P."
A perusal of the said cash payment receipt shows that the
said payment was received only by the Respondent No.2
acting as Director of Respondent No.1 Company.
Signatures of the Respondent No.2 are seen at three
places, one in the middle of the receipt where date
03.06.2013 is mentioned, one on the revenue stamp and
the third alongside the revenue stamp. The said signatures
have not been denied. The argument of the Ld. Counsel for
the Respondents that the said receipt was issued in lieu of
the two RTGS transfers dated 03.06.2013, one in the
account of Ms. Neerja Ghura, Respondent No.4 herein
(Wife of Respondent No.2) and one in the account of
Respondent No.2 himself, does not inspire confidence.
Firstly the receipt is only from Respondent No.2 in his
capacity as director and not from Respondent No.2 and 4
jointly. Secondly, the receipt does not mention receipt of
two payments of Rs.50,00,000/- each in the account of
Respondent No.2 and 4 respectively, but mentions only
Rs.1 Crore and the heading of the said receipt shows that
the sum of Rs.1 Crore was paid in cash. Ld. Counsel for
the Respondents sought to argue that the expression
"CASH PAYMENT RECEIPT" has been fraudulently inserted
subsequently by the Claimants as the same did not exist in
the original receipt. Ld. Counsel for the Respondents was
asked to furnish a copy of the said receipt to show that the
said expression does not exist in his copy but he failed to
produce any such receipt. The Ld. Counsel for the
Respondents also argued that there is no question of the
Respondent No.1 Company receiving Rs.1 Crore in cash as
the company does not and cannot deal in cash transactions
and therefore, the case of the Claimants that Rs.1 Crore
was paid in cash on 03.06.2013 is unbelievable. The said
argument of the Ld. Counsel is being noted to be rejected
as it is a matter of record that at the time of entering into
the Agreement to sell on 09.03.2014, the Respondent No.1
Company had received a cash amount of Rs. 84,00,000/-.
On the other hand, the Ld AR for the Claimants produced
the original of the said receipt and the same was perused
carefully by this Tribunal and no such fabrication could be
made out. In this view of the matter, it can safely be
concluded that apart from the admitted amount of
Rs.3,86,33,175/-, the Claimant No.1 had also paid Rs.1
Crore in cash to the Respondent No.1 and the said
Respondent No.2 had duly executed a receipt on behalf of
Respondent No.1, thus, making the total payment to
Rs.4,86,33,175/-. Out of this amount, a sum of Rs.1 Crore
by way of two Demand Drafts of Rs.50,00,000/- each was
returned by the Respondent No.2 and 4 respectively in the
name of Claimant No.2. Thus, it is held that the
Respondents No.1 to 5 received a total of Rs.
4,86,33,175/- from the Claimants and are retaining Rs.
3,86,33,175/- after 01.11.2013. Therefore, the second and
third issues are decided accordingly."
16. In view of the said finding, it is now to be decided as to
whether actually the petitioner No.2 did receive the said amount in
cash from the respondent No.1 or not and under the scope of
interference, whether this Court is now at this stage to reconsider
the said issue which was decided by the Arbitrator in favour of
respondent No.1 which came to the conclusion that the said amount
was paid by the respondent No.1 to the petitioner No.2. The said
main issue is now the heart and soul of the objections filed by the
petitioners and rightly so, the notice was issued by the earlier Bench
in view of two versions of the parties, may be because of the reason
that it was a cash transaction.
17. Both the parties have not denied the factual position that out
of total agreed amount, i.e. Rs.7,60,00,000/- and an advance to the
tune of Rs.1,10,00,000/- was paid by the respondent No.2 to the
petitioner No.2 in the following manner:-
Date Drawer Mode Amount Details In Favour
of
21st Cyber Cheque 10,00,000.00/- Cheque Blue
Feb,2013 Futuristics No. Horizon IT
India 058864 Solutions
Private drawn on Private
Limited ICICI Bank Limited
9th March, Anuj Cash 84,00,000.00/- Cash Cash
2013 Bairathi
16th March, Cyber Cheque 16,00,000/- Cheque Blue
2013 Futuristics No. Horizon IT
India 183939 Solutions
Private drawn on Private
Limited HDFC Limited
Bank
18. It is not denied by the petitioners that respondent No.1 has
also made the further payment up to 3rd June, 2013 in the following
manner:-
Date Mode of Payment Amount Details
11.05.2013 RTGS - HDFCH13131131560 25,00,000/- Transfer to Karur
Vysya bank A/C
No.41031151116
2 of Blue Horizon
IT Solution Pvt.
Ltd. i.e.
Respondent No.1.
30.05.2013 DD No.346845 1,51,33,175/- Transfer to Karur
Vysya Bank A/C
No.41031151116
2 of Blue Horizon
IT Solution Pvt.
Ltd. i.e.
Respondent No.1.
03.06.2013 RTGS 50,00,000/- Transfer to bank
No.HDFCH13154884473 A/C of Mrs.
Neerja Ghura
(Respondent
No.4).
03.06.2013 RTGS HDFCH13154884496 50,00,000/- Transfer to Bank
A/C of Mr. Gurdip
Singh
(Respondent
No.2).
19. The case of the respondents is that in addition to the said
amount of Rs.1 crore which was transferred by RTGS account,
further Rs.1 crore was also given to the petitioner on 3rd June, 2013
in cash and against the same, the receipt was issued. It is admitted
by the respondents that it is true that the factum of payment was
not pleaded in the statement of claim but the receipt was attached.
20. On the other hand, the case of the petitioners is very simple
and straight that upto the date of filing of the application for
amendment, as per pleadings of the respondents, e-mail, draft
agreement and legal notice exchanged between the parties, there
was no reference at all about the alleged additional amount of cash
payment of Rs.1 crore as alleged. Time and again the respondent
No.1 has admitted and acknowledged the payment as mentioned by
the petitioner in para 18 of my judgment. The said amount was only
claimed by the respondents first time when the application for
amendment was filed. The said alleged receipt referred by the
respondents is pertaining to transfer of Rs.1 crore by way of RTGS
i.e. Rs.50 lac in the account of Mrs.Neerja Ghura respondent No.4
and Rs.50 lac in the account of Mr.Gurdip Singh respondent No.2 as
alleged by the petitioners who argued that the respondents are
mischievously taking the advantage of situation as the said receipt
was merely pertaining to the transfer of amount through RTGS. As
the RTGS was shown on 3rd June, 2013 the respondent No.1 is trying
to convert the same receipt with the cash payment in addition to
payment which was transferred by RTGS.
21. Learned counsel for the respondents argued that while
considering the objection under Section 34 of the Act, this Court has
no jurisdiction to re-investigate into the merit of the case by giving
different interpretation about the document once the Arbitral
Tribunal has arrived at the conclusion that amount of Rs.1 crore was
received by the petitioner No.2 who had also issued the receipt
thereof. It is canvassed that the sole Arbitrator is the Judge of the
quality of evidence and it is not proper to take up the same issue
about the validity of the evidence which was accepted by the
Arbitrator as this Court does not sit in appeal over the award.
Counsel submits that in the present case, the Arbitrator has given
reasons after examination of document. The plausible view was
taken by the Arbitral Tribunal in the facts and circumstances of the
matter thus, the Court cannot interfere with the conclusion of the
Arbitrator or to re-assess the evidence in view thereof. Therefore,
the objections are liable to be dismissed.
22. As far as the principles laid down in various judgments are
concerned, the same cannot be disputed, however, once any matter
falls within the preview of exception by a party in the objections
within the parameter of law which mandates that if there is a patent
illegality in the award when it was published without any logic of the
issue involved which goes to the root of the matter and the same is
not of a trivial nature, under those circumstances, the Court cannot
close its eyes only because of the perception that the Court does not
sit in appeal over the award and evidence cannot be re-assessed. I
am clear in my mind that if the Arbitrator does not give any reason
by ignoring the issue and come to conclusion involved, which speaks
otherwise on the face of the record and the findings are perverse,
irrational and the reasons are illogical, then the award is to be
treated in contravention of Section 31 (3) of the Act and liable to be
set aside.
23. Before the Arbitral Tribunal, it was the case of the petitioners
that the petitioners made all the efforts to complete the formalities
mentioned in the agreement. The petitioners obtained the NOC from
the accounts department of Noida Authority and on 11th July, 2013
CIC/CIS was also obtained from Noida Authority. They duly informed
the respondent No.1 that all the formalities have been completed
and they are in a position to execute the transfer documents in
favour of the respondent No.1 but the respondent No.1 was never
ready with the balance payment and that was the reason the
respondent No.1 made various excuses to avoid his liability under
the Agreement to make the balance payment and get the transfer
documents in his favour. The respondent No.2 was not a party to
the agreement, however, since the agreement was between the
petitioner No.1 and respondent No.1, the said payment was duly
returned on 1st November, 2013 via demand draft No.340336 of
Rs.50 lacs by petitioner No.4 and by demand draft No.340335 of
Rs.50 lacs by petitioner No.2 in favour of the respondent No.2. It
was alleged by the petitioners that only a sum of Rs.2,86,33,175/-
was net paid under the Agreement dated 9th March, 2013. As the
respondent No.1 was not coming forward to complete the
transaction, the petitioners duly informed the respondents vide letter
dated 11th October, 2013 that the Agreement dated 9th March, 2013
had been cancelled and earnest money of Rs.1,10,00,000/- stood
forfeited and the respondent No.1 was at liberty to take the balance
amount of Rs.1,76,33,175/- back from the petitioners.
24. The respondents No.1 and 2 filed statement of claim before
the Tribunal. The petitioners duly filed their reply to the statement
of claim whereby they denied the claims raised by the respondents.
They also raised a plea that the respondents concealed the material
fact from the Tribunal that a sum of Rs.1 crore was paid back to the
respondent No.2 and the said amount was not shown by the
respondents No.1 and 2 which was received through RTGS and only
a sum of Rs.2,86,33,175/- was left with the petitioner No.1 under
the Agreement to Sell dated 9th March, 2013.
25. By this time, there was no reference on behalf of the
respondents that the additional payment of cash component of Rs.1
crore was also given on 3rd June, 2013 in addition to the payment
made on the same day i.e. 3rd June, 2013 of Rs.1 crore by way of
transfer (RTGS).
26. The respondent No.1 moved an application under Order VI
Rule 17 CPC seeking amendment of para 6 of the claim petition to
incorporate the details of alleged payment of Rs.1 crore made in
cash to petitioner No.2 and also to incorporate the details of return
of Rs.1 crore by the petitioners No.2 and 4 to respondent No.2. It
was stated in the said application that this fact was not mentioned
earlier as the amount of Rs.1 crore paid in cash to the petitioner
No.2 was subsequently returned by the petitioners No.2 and 4 and
accordingly, the said cash amount was set off and therefore, it was
not mentioned in the statement of claim. The petitioners duly filed
their reply and disputed the said payment of Rs.1 crore in cash. The
application of the respondents was allowed.
27. As mentioned earlier, the Arbitrator did not record the
evidence and proceed with the matter by hearing the arguments.
The Arbitrator passed the award on 4th March, 2015 directing the
petitioners to refund an amount of Rs.3,86,33,175/- along with
interest @ 14.6% from 26th June, 2013 to 4th March, 2015. The
Arbitrator also awarded the interest on the additional amount of Rs.1
crore from 26th June, 2013 to 31st October, 2013. The Arbitrator
also awarded costs as well as future interest @ 18% p.a. till the date
of payment. No doubt, I agree with the submissions of the counsel
for the respondents that if the Arbitrator after considering the vital
documents and reading the evidence by going through the root of
the matter had arrived to the conclusion that the petitioner No.2 had
also received additional sum of Rs.1 crore in cash, the question of
interference in the impugned award may not have arisen, however,
the situation in the present case is entirely different.
28. In the present case, the Arbitrator after allowing the
amendment did not record the evidence and straightaway put up the
matter for final hearing. No doubt, the Arbitrator is a master of
himself while dealing with the arbitration disputes and recording of
evidence may be necessary but on crucial issue which would go to
the root of the matter, he is supposed to be careful, particularly as
per facts in particular matter. In the nature of present dispute
where the main and only dispute left with the parties was as to
whether the respondent No.1 has paid Rs.1 crore to the petitioner
where one party was alleging that the amount of Rs.1 crore was
given in cash and the other party denies the same.
29. Admittedly, when the respondents No.1 & 2 filed their
statement of claim, they never mentioned that any amount of Rs.1
crore in cash was paid by them to the petitioners. The respondents
No.1 and 2 also mentioned about the receipt dated 3rd June, 2013
towards the alleged cash payment.
30. It was the case of the petitioners that the said receipt was
issued pursuant to two payments of Rs.50 lacs each issued in favour
of petitioners No.2 and 4 on 3rd June, 2013. The respondents No.1
and 2 intentionally manipulated the said receipt and put a heading of
"Cash Payment Receipt" upon the said document.
31. The petitioners along with statement of claim filed an e-mail
dated 21st June, 2013 sent by the respondent No.3 (Broker) to the
respondent No.1 as well as petitioner No.2. Along with the said
email, respondent No.3 annexed a format of addendum to the
Agreement to Sell dated 9th March, 2013 for extending the time by
30 days for completing the transaction. In the said document also,
it was clearly mentioned that only an amount of Rs.3,86,33,175/-
was paid by the respondents No.1 and 2 to the petitioners under the
Agreement to Sell dated 9th March, 2013.
32. The contents of the e-mail dated 21st June,2013 as well as the
relevant para of the format of addendum of Agreement to Sell have
been reproduced here as under:
E-mail dated 21st June, 2013
Dear Gurdeep Singh Ji,
As you are aware about day to day progress made against
the sale of your plot No.5 Sector-90 Noida, our client
Mr.Anuj Bairathi the buyer of your plot who has already
made a major part of payment is all set to make the
payment soon after the CIS is completed and duly verified
by their legal team. You are requested to get CIS done as
soon as possible along with proper documentation from
your CA, in absence of which your payment is getting
delayed and also the project of Mr. Anuj is unnecessarily
getting prolonged.
Meanwhile we request 30 day extension agreement be
signed as our current agreement would be expiring soon.
We would arrange to send the copy of same to earliest for
your kind review and acceptance.
Warm Regards,
Vipin Kumar/Sr. Business Dev. Executive
HSB Estate, B-3, B-5 & B11, Vishal Chambers, Sector-18,
Noida -201301, India"
Addendum to the Agreement to Sell
"ON STAMP PAPER OR Rs. 300(e.g.100x3)
ADDENDUM TO EXISTING AGREEMENT TO SELL DATED
09.03.2013
BETWEEN
M/s. BLUE HORIZON IT SOLUTION PVT. LTD. AND ANUJ
BAIRATHI
This Addendum is in reference to the Agreement entered
on March 09, 2013, in Noida between the following parties.
M/S. BLUE HORIZON IT SOLUTION PVT. LTD. a company
incorporated under the provisions of Companies Act, 1956
having its registered office at 8, TOLSTOY MARG,
CONNAUGHT PLACE, NEW DELHI, 110001, Delhi, INDIA
acting through its authorized Director Mr. GURDIP SINGH
S/0 LATE SH. KULDEEP SINGH, R/0 8, TOLSTOY MARG
CONNAUGHT PLACE, NEW Delhi,-110001 Delhi, INDIA
hereinafter referred to as the "Seller" of the first part.
AND
Mr. ANUJ BAIRATHI S/0 SH. R.C. BAIRATHI R/0 FLAT 606,
MAHAGUN MORPHEUS, E-4, SECTOR-50, NOIDA - 201301
hereinafter referred to as the "Buyer" OF THE OTHER part.
The term "Parties" shall mean the Seller and the Buyer
collectively and individual Seller and Buyer would be
referred to as "Party".
The Buyer has entered into agreement with Seller on
March 09, 2013 (Original Agreement) Pursuant to the
covenants of the said Original Agreement, it was
mandatory on part of Seller in obtain necessary
permission/NOC/No dues Certificate account/No dues
certificate water/clearances from all concerned department
and authorities as may be required for the sale/transfer of
the said property in favour of the Buyer or their
nominee(s). However the Seller has not complied with the
said stipulations till date. Vide this Addendum, the Seller
hereby request Buyer for extension of time to fulfil its
obligations under the original Agreement.
NOW, THEREFORE, upon Seller request and covenant,
Buyer agrees to set forth herein, the receipt of which is
hereby acknowledged and recorded, the Parties agree as
follows:
1) Till date, the Buyer has made following payments
(including further payment post execution of Original
Agreement) as detailed hereunder and the revised list of
payment is as follows:-
S.No. Date Mode of Payment Amount (in Rs.)
1. 21-Feb-2013 Cheque No.058864, 10,00,000/-
ICICI Bank
2. 09-Mar-2013 Cash 84,00,000/-
3. 16-Mar-2013 Cheque No.183939, 16,00,000/-
HDFC Bank
4. 11-Mar-2013 RTGS - DR 25,00,000/-
HDFCH13131131560
- BLUE HORIZON IT
5. 30-May-2013 Demand Draft 1,51,33,175/-
No.346845
6. 03-Jun-2013 RTGS Dr. 50,00,000/-
K.VBL0004103-
Neerja Ghura -
Jaipur -
HDFCH13154884473
7. 03-Jun-2013 RTGS Dr. 50,00,000/-
K.VBL0004103-
Gurdip Singh -
Jaipur -
HDFCH13154884496
Total 3,86,33,175/-
Seller acknowledges the receipt of above payment in
consideration to the purposes of the Agreement to Sell.
2) That as per clause No.3, the Seller was under the
obligation to procure at least 30 days before the expiry of
the agreement the NOC and CIC in favour of the Buyer
from the concerned, authorities and departments. It is to
be recorded here that the Buyers have made of payment of
Rs.2,76,33,175 after the initial payment of Rs.1,10,00,000
aggregating to total payment of Rs.3,86,33,175 and till
date hereof the sellers have not been able to furnish the
NOC/CIC in favour of the sellers from the NOIDA Authority
with respect property owned by M/s. BLUE HORIZON IT
SOLUTION PVT. LTD. Therefore, upon specific request by
the Seller, the Parties agree to extend the period of the
Original Agreement and payment timeline of the balance
amount to the tune of Rs ....... by 30 days from the expiry
date of the Original Agreement i.e. ..... provided the Seller
obtain the NOC and CIC from the concerned authorities
and departments within such extended period. The Seller
agrees that delay in obtaining these approvals is affecting
the Buyer's interest and plans.
3) The Seller guarantee that
i) they have/will not withheld any information
which is required for the original Agreement
and this addendum by the Buyer and that
information provided by them to the Buyer is
complete, true and accurate.
ii) they shall Indemnify Buyer for any claim or
loss arising out of their any act or omission
under the Original Agreement and this
Addendum. For avoidance of doubt, this
Addendum, shall also be treated as "Indemnity
Bond" for the purpose of original agreement
and this Addendum.
The parties further agree that in case the Sellers fails to
get the aforesaid NOC/CIC from the said Authority within
the aforesaid period, the Agreement entered between the
parties shall stand cancelled and the amount paid by the
Buyer shall become payable immediately and shall be
refunded to buyer together with interest at the rate of 2%
per month from the date of expiry of the period of 30 days
as mentioned above in this Addendum till the date of
repayment and till such repayment. The buyer shall have
lien on the IT property of the Original Agreement. No other
terms of conditions of the agreement shall be negated or
changed as a result of this here stated addendum.
IN WITNESS WHEREOF, this Addendum has been duly
executed and delivered by the duly authorized officer of
each party hereto, and shall be effective as of the date first
above written.
The Seller The Buyer
For Blue Horizons Private Limited Anuj
Bairathi
Director
Witness Witness
1. ___________ 1. _________
2. ___________ 2. _________
To be notarized."
33. All the correspondences exchanged between the parties and
other documents referred above, it is evident that it was never
alleged that cash payment of Rs.1 crore was paid by the respondent
No.1 to the petitioner No.2. Therefore, the Arbitrator completely
erred in holding that the respondents No.1 and 2 also paid an
amount of Rs.1 crore cash to the petitioners under the agreement to
sell dated 9th March, 2013. The said respondents have not denied
the said documents i.e. e-mails, correspondences, notes and draft
agreement sent by the respondents to the petitioners where the said
amount of Rs.1 crore in cash was not mentioned. The Arbitrator
appears to have deliberately avoided discussing the material
evidence. All these admitted circumstances and documentary
evidence have not been discussed in the award rather without any
valid reason, the benefit was given to the respondents.
34. If any payment in cash was given by the respondent No.1
which would have been the case, respondents No.1 and 2 would
have immediately pointed out and mentioned in the draft agreement
and correspondence exchanged between the parties after 3rd June,
2013 despite of having many opportunities.
35. The e-mails dated 3rd June, 2013, 21st June, 2013 and 25th
June, 2013 as well as the draft agreement are not denied by the
respondents. The said documents are subsequent to the period of
alleged payment of Rs.1 crore i.e. on 3rd June, 2013. The said
documents are from the side of the respondents wherein there was
no reference about the payment of Rs.1 crore which is paid
additionally by way of RTGS entry.
36. Even on 14th June, 2014, the respondent No.1 had written a
letter to the respondent No.2 Gurdip Singh depicting the details of
payment made by the respondent No.1 wherein also there was no
reference about the impugned payment of Rs.1 crore (cash
component). Copy of the said letter was sent to the petitioners.
Similar is the position of another letter dated 20th March, 2014.
37. It is also pertinent to mention that when the legal notice dated
17th February, 2014 was issued by the respondent No.1 to the
petitioner No.1, only the payment admittedly received by the
petitioners was mentioned. There is no reference about the alleged
impugned payment. In case, the respondent No.1 had made the
payment of cash component of Rs.1 crore on 3rd June, 2013, the
respondent No.1 was bound to mention the same in further
correspondence exchanged between the parties and other admitted
documents.
38. Even, there is no iota of cogent evidence which would show
that the payment has been made except the cash receipt dated 3 rd
June, 2013. It is not denied by the respondent No.1 that the
payment of similar amount was made to the petitioners by way of
transfer. The respondent No.1 has not even alleged or produced any
document to show that on 3rd June, 2013, two sets of payments of
Rs.1 crore was made to petitioner No.2 except the payment of Rs.1
crore which was transferred by RTGS. Even, the said fact is not
proved from the record of the Income Tax Return which may
disclose the entry of the payment to the petitioner No.2 made in
cash, if any. It is obvious that the respondent No.1 has misused the
receipt of Rs.1 crore which was issued towards the transfer of
amount. In fact, it is the case of res ipsa loquitur where the things
speak for themselves.
39. The contention of the respondents is also without any force
that since it was a cash transaction, therefore, the said payment is
not mentioned in the said documents and correspondences
exchanged between the parties because of the reasons that as the
respondent No.1 has from time to time prior to 3rd June, 2013 and
thereafter, in many documents, mentioned himself the details of
cash payment made by him to petitioner No.2. Therefore, the award
is liable to be set aside on issue No.3, as the same is wholly
perverse and irrational as on the face of it, any reasonable person
would have arrived at the said conclusion. The entire finding given
by the Arbitrator in the award is without recording any evidence and
without considering the solid evidence available on record. In fact,
the Arbitrator has taken the view which is irrelevant and ignores the
evidence which goes into the root of the issue. The relevant evidence
has not been even discussed. The said issue is decided against the
respondents who failed to discharge the burden thereof. The award
on issue No.3 is set aside by allowing the objections of the
petitioners.
40. As far as issue No.6 is concerned, I am not inclined to interfere
with the finding of the Arbitrator as there are two different versions
about the obligations of the parties. The petitioners are directed to
pay the remaining amount, i.e. difference between the interest of
9% received by the respondent No.1 in view of the order dated 6th
July, 2015 and as per the award, within four weeks from today. The
award on issue No.6 is upheld. The objections on issue No.6 are
dismissed.
41. The objections are accordingly disposed of. Parties to bear
their own costs.
(MANMOHAN SINGH)
JUDGE
AUGUST 05, 2016
