Delhi High Court
Aten Capital Pvt. Ltd. vs Candor Gurgaon Two Developers & ... on 30 November, 2017
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: 27th November, 2017
Pronounced on: 30th November, 2017
+ O.M.P. (COMM) 424/2017 & IA No.13967/2017
ATEN CAPITAL PVT. LTD. ..... Petitioner
Through : Mr.Rajat Navet, Adv.
versus
CANDOR GURGAON TWO DEVELOPERS
& PROJECTS PVT.LTD ..... Respondent
Through : Mr.Ciccu Mukhapadhya, Sr. Adv.
with Mr.Aakash Bajaj, Adv.
CORAM:
HON'BLE MR. JUSTICE YOGESH KHANNA
YOGESH KHANNA, J.
1. Before coming to the objections under Section 34 of the
Arbitration and Conciliation Act, 1996, let me state in brief the
facts of this case.
2. On 4.10.2012 an Inter Corporate Deposit (ICD) Agreement
for a sum of Rs.45 crore was executed between the petitioner and
the respondent (the respondent was then known as Unitech
Developers & Projects Ltd.) On 06.11.2012 and on 6.12.2012 two
other Inter Corporate Deposit Agreements dated 16.11.2012 (for a
sum of Rs. 30 crores) and dated 6.12.2012 (for a sum of Rs. 18
crores) were also executed between the Petitioner and the
Respondent.
3. The Maturity of the said ICD for Rs.45 crore was extended
by the parties till 2.3.2014 by way of an extension letter dated
2.3.2013. The other two ICDs were also extended till 06.03.2014
and 16.03.2014 respectively.
4. It is alleged by the petitioner when the term of the said ICDs
were to expire in March 2014 and the amount received thereunder
was to be repaid, the Petitioner informed the Respondent that a
number of payments were due to the Petitioner from various other
group companies/associates of the Unitech group i.e. Unitech Ltd.,
Unitech Advisors Pvt. Ltd. and Mayfair Capital Pvt. Ltd. and that
the Petitioner would be adjusting all the said amounts from the
amount of Rs. 45 crores which was to be repaid under the first
ICD Agreement dated 4.10.2012. However, the
representatives/management of the Respondent Company
requested the Petitioner Company not to do so immediately.
5. It is alleged on 14.03.2014 a meeting was held between the
representatives of the Petitioner and the representatives/
management of the Respondent Company which included Mr.
Ajay Chandra (promoter of the Unitech group), an offer was made
by the representatives of the Respondent, which was allegedly
accepted by the Petitioner and an oral agreement on the following
terms was entered into between the parties, wherein it was agreed
that Inter Corporate Deposit Agreement dated 04.10.2012 would
stand terminated, rescinded and novated on the following terms
and conditions:-
a. The Petitioner would continue to provide services
to the companies of the Unitech Group as well as
provide further finances, if any, to any of the
Companies of the Unitech group.
b. The Companies which owed money to the
Petitioner would try and make payments and clear
all outstanding within 12 months and latest by 31st
March of the next year i.e. 31.03.2015.
c. No interest would be payable by the Petitioner on
the said lCD after 30.9.2014.
d. If payments were not received by the Petitioner
from the other concerns of the Unitech group by
31.3.2015, the Petitioner would be entitled to
initiate appropriate legal proceedings for recovery
of the said amounts against the said companies.
e. Pending recovery of amounts due to it, the
Petitioner would be entitled to retain, withhold and
utilize a sum of Rs. 3 crores (without any liability of
any interest thereupon) for a period of four years
thereafter i.e. till 31.3.2019 and in the event, the
Petitioner is not able to recover all its dues from the
above mentioned companies till 31.3.2019, the
Petitioner would be entitled to set off/adjust the said
amounts from the said amount of Rs. 3 crores.
f. The withholding/setting of the amount of Rs. 3
crores would be without prejudice to the rights and
contentions of the Petitioner to recover its dues from
the above mentioned concerns of the Unitech group.
6. It is alleged acting upon the agreement between the parties
as stated above, the petitioner though returned a sum of Rs. 42
crores out of Rs. 45 crores under the said ICD dated 4.2.2012
along with complete interest but retained an amount of Rs.3 crores.
7. The Petitioner also returned the entire amount along with
interest of other two ICDs of Rs.30 crores and Rs. 18 crores.
8. It is the submission of the petitioner that M/s. Unitech
Advisors Pvt. Ltd., M/s. Unitech Ltd and M/s. MayFair Capital
Pvt. Ltd failed to pay the amounts due to the Petitioner resulting in
the Petitioner's initiating proceedings against them. However, on
account of change in management of the respondent company, the
respondent turned dishonest and tried to resile out of the oral
arrangement and hence arbitration was initiated wherein the
evidence were led; final arguments were addressed and then the
impugned order was passed requiring the petitioner herein to re-
pay an amount of Rs.3 crore with interest.
9. The learned arbitrator rejected the arguments of the
petitioner primarily on an amendment clause in the ICD
Agreement dated 4.12.2012 which runs as follows :
"No amendment to this agreement shall be binding
unless in writing and signed by the duly authorized
representative of each party".
10. The learned arbitrator held in view of the above said clause,
oral alteration in the ICD Agreement dated 04.10.2012 was not
possible.
11. Admittedly the original ICD agreement dated 04.10.2012
was extended by one year ending on 2.02.2014 which extension
was in writing. Further though the petitioner talks of an oral
agreement in March'2014 but admittedly the petitioner received
letters dated 28.5.2014 and dated 04.06.2014 from IDFC and
Unitech Corporate Parks Pvt. Ltd. holding 40% and 60% shares in
claimant seeking refund but the petitioner ignored such letter and
did not disclose qua such oral agreement. The petitioner even
ignored letter dated 01.08.2014 sent by respondent for refund. The
legal notice dated 09.01.2015 sent by the respondent for refund of
the balance amount was though acknowledged but the respondent
did not reply to assert alleged novation of contract orally on
termination of ICD agreement dated 04.10.2012. It was only on an
application filed by the respondent under section 9 of the Act; the
petitioner took this plea for the first time in its reply. Now if any
alleged oral understanding was entered into between the parties,
the petitioner ought not to have kept quite for long. The fact the
respondent may be a part of Unitech group would hardly give a
right to the petitioner to set off its dues pending against such other
group companies, with the respondent.
12. Hence the fact the petitioner ignored the demand of refund
on at least four occasions and failed to raise plea of an alleged oral
agreement at the first opportunity available, goes against his
assertion of an alleged oral agreement/understanding and hence
such plea is wholly untenable.
13. In MMTC Ltd. vs. G. Premjee Trading Pvt. Ltd., OMP
No.91/2001 decided on 03.03.2010, it was observed that where the
contract stipulated that any modification of the terms of contract
shall bind either parties only if the said amendment was in writing,
the oral agreement shall not be relied upon.
14. The above citation is in line with the amendment clause in
ICD Agreement dated 04.10.2012 and hence such plea was rightly
rejected by the learned arbitrator.
15. The petition being devoid of merit is thus dismissed. The
pending miscellaneous application also stands dismissed. No order
as to costs.
YOGESH KHANNA, J
NOVEMBER 30, 2017
VLD
