The Motor & General Finance L T D vs Bravo Hotels Pvt.Ltd
2018 Latest Caselaw 433 Del

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*    IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                      Reserved on: 09th January, 2018
                                      Pronounced on: 17th January, 2018

+    O.M.P.(I) (COMM.) 532/2017
     THE MOTOR & GENERAL FINANCE L T D       ..... Petitioner
                  Through : Mr.Sunil Magon, Adv.

                  versus
     BRAVO HOTELS PVT.LTD                   ..... Respondent
                  Through : Mr.V.K.Garg, Sr. Adv. with
                            Mr.Narender   Singh       Yadav,
                            Mr.Vivek Sharma and Ms.Noopur
                            Dubey, Advs.
     CORAM:
     HON'BLE MR. JUSTICE YOGESH KHANNA

     YOGESH KHANNA, J.

IA No.288/2018

1. Learned counsel for the petitioner today presses for appointment of a receiver to take the custody of the moveable stock of the respondent lying at the subject premises because of the blatant violation of the orders of this Court by the respondent from time to time and even contempt petition is pending against the respondent.

2. Learned counsel for the petitioner refers to an order dated 08.04.2016 in petition No.221/2016 filed under Section 11 of Arbitration and Conciliation Act, 1996 wherein during its pendency the learned counsel for the respondent on 18.4.2016 had

stated the respondent shall clear the total liability on or before 15.05.2016.

3. Further on 15.9.2016 this Court disposed of OMP (I) (COMM.) No.64/2016 directing the respondent not to transfer, encumber, alienate or create any third party interest in any manner in respect of properties mentioned in Para no. 17 of the said Petition till the settlement of the disputes or till the final adjudication of the disputes by the Arbitrator.

4. On 21.10.2016 in an Arb.P. 221/2016, u/s 11 of the Arbitration and Conciliation Act, 1996 this Court had accepted an undertaking of payments by the Respondent herein to the Petitioner to the tune of Rs.3,01,44,509/- as per schedule given in the affidavit of undertaking.

5. The Respondent breached the undertaking given to this Court through its director Mr. Ajay Sharma, therefore, on 20.04.2017, the Petitioner filed yet another Petition No.168/2017 U/s 9 of the Arbitration and Conciliation Act, 1996. It was also disposed of vide order dated 09.05.2017 passed by this Court confirming the Order dated 26.04.2017 whereby directing the Respondent/ Judgment Debtor not to alienate any of its fixed assets or movable assets in the normal course of business.

6. On 09.05.2017 this Court while dealing with the application No. Arb.P.221/2016 u/s 11 of the Arbitration and Conciliation Act, 1996 appointed Shri Koka Raghava Rao, Senior Advocate as the

Sole Arbitral Tribunal for adjudicating the disputes between the Petitioner and the Respondent herein.

7. The arbitral tribunal on 08.12.2017 passed an award of Rs. 4,76,31,624/- against the Respondent and also that the petitioner is entitled to take possession and control of premises.

8. A civil contempt petition No.238/2017 has been moved against the Respondent and its director Ajay Sharma, wherein they have not filed any reply.

9. On 07.12.2017, this Court passed an Order in the above mentioned Contempt proceedings wherein a local commissioner was appointed to seize the books of account of Respondent herein being ledger accounts, etc. in whatever form, physical or electronic.

10. The conduct of the Respondent can be seen right from the time when its director had filed an affidavit of Undertaking dated 21.10.2016 before this Court. The Respondent had admitted it owed a sum of Rs.2,31,84,984/- towards arrears of rent along with Service Tax. Further a sum of Rs.48,40,000/- towards TDS liability which was not deposited for the period from 01.01.2015 to 31.10.2016. The respondent company had paid only Rs.60 lakhs on 07.03.2017 as against the liability of Rs.2,31,84,984/- towards the rent apart from the TDS dues. Although the tenancy of the Respondent stood terminated and the Respondent has not paid any

amount even towards the unauthorized use and occupation of the premises despite admitted rental of Rs. 22 lakhs per month.

11. It can be seen from the above mentioned facts without any iota of doubt that at the time of filing of the Undertaking, the Respondent was fully aware and conscious that it would not be able to adhere to the payment schedule mentioned in the Undertaking but with the design to avoid an Order directing it to forthwith deposit/ pay to the Petitioner the outstanding dues of Rs.2,80,24,984/- which were admittedly due and payable to the Petitioner as on 21.10.2016, the respondent furnished the undertaking with a view to gain further time and make unjust gains to themselves at the cost and to the detriment of the Petitioner. The clever design of the Respondent was to somehow gain as much time as it could to avoid clearing the outstanding admitted debt liability and at the same time to keep on holding over the tenanted premises belonging to the Petitioner and not pay even a single rupee as against Rs.22,00,000/- per month towards admitted rental liability.

12. On 22.12.2017 the matter was yet again listed before this Court and in the presence of the counsel for the respondent following order was passed :

"Learned counsel for the petitioner refers to an undertaking dated 21.10.2016 given by the respondent in an affidavit to pay an amount of Rs.3,01,44,509/-, but it was violated and a contempt petition is pending against the

respondent. Later on 8.12.2017 a sum of Rs.4,76,31,624/- plus interest was awarded against the respondent. It is not denied the premises of the petitioner is being used by the respondent and the amount so awarded pertains to arrears of rent and other charges etc. The respondent is enjoying the premises earning profits by allegedly organizing events in the said premises of the petitioner during the Christmas and New Year eves but has not paid the rentals and even the arbitrator's fee. Notice is thus issued. The respondent to file reply within four weeks subject to the respondents' furnishing a bank guarantee of Rs.2.50 crores initially for a period of six months, within three banking days to the satisfaction of the Registrar General of this Court. In case of non- compliance the petitioner may inform the same.

List on 5th February, 2018.

Order dasti.

13. Admittedly the bank guarantee has not been furnished as directed and its non-compliance has been informed through this application, hence the petitioner seeks interim measures viz., appointment of receiver to take custody of the goods and assets belonging to the erstwhile tenant.

14. In Value Source Mercantile Ltd. V. Span Mechnotronix Ltd. 2014 (143) DRJ 505 (DB) the Court held:

"14. The question which thus arises is that if the dispute as aforesaid had been brought before this Court by way of a suit, whether this Court could have, during the pendency of the

suit, granted the relief as has been granted in the impugned order. Order XXXIX Rule 10 of the CPC empowers the Court to direct deposit / payment of admitted amounts. The appellant, as aforesaid does not controvert that it continued to be the tenant of office unit B-1 and had not terminated the tenancy with respect thereto. There is thus an admission by the appellant of the liability for rent at least of office unit B-1. The appellant, if had been a defendant in a suit, could have thus been directed by an interim order in the suit to make such payment to the respondent. Order XV-A added to the CPC as applicable to Delhi and which was added, as held by us in judgment dated 15th May, 2014 in FAO(OS)597/2013 titled Raghubir Rai Vs. Prem Lata, to empower the Court to direct payment during the pendency of the suit at a rate other than admitted rate also, empowers the Civil Court to direct payment which is apparently wrongfully disputed. ..."

15. Further in Steel Authority of India Ltd. V. AMCI PTY Ltd. & Anr. 2011 VII AD (Delhi) 644, wherein it was held as under :

44. There are two decisions of Bombay High Court in Delta Construction Systems Limited, Hyderabad (supra) (Single Bench) and National Shipping Company of Saudi Arabia Vs. Sentrans Industries Limited, (2004) 1 ArbLR 409 (DB), wherein it has been held that the power of the Court to secure the amount in dispute under arbitration is not hedged by the predicates as set out in Order 38. All that the Court must be satisfied is that an interim measure is required. The party coming to the Court must show that if it is not secured, the award which it may obtain would result in a

paper decree or a decree which cannot be enforced on account of acts of a party pending arbitration process. The Division Bench in National Shipping Company of Saudi Arabia (supra), inter alia, held:

xxxx

..... We also hold without hesitation that the Court is competent to pass an appropriate protection order of interim measure as provided under Section 9(ii)(b) outside the provisions of Order 38, Rule 5 of the Code of Civil Procedure. Each case under Section 9(ii)(b) of the Act of 1996 has to be considered in its own facts and circumstances and on the principles of equity, fair play and good conscience. The power of the Court under Section 9(ii)(b) cannot restricted to the power conferred on the Court under Civil Procedure Code though analogous principles may be kept in mind."

xxxx

16. The conduct of the respondent herein, he being in occupation of the tenancy premises; not making payment of rental @ 22 lakh per month; is in huge arrears; have been flouting undertakings forces the Court to come to rescue of petitioner by granting interim measures since the petitioner is apprehensive the respondent may not run away on locking the premises.

17. In the circumstances of this case I hereby appoint Mr.Sanjay Suneja, an employee of the petitioner company as a receiver to

take into custody the goods and assets belonging to the Respondent as mentioned in para no. 19 of the petition, lying at the premises bearing No. First Floor of Building No. N-49, Connaught Place, New Delhi for the area admeasuring approximately (10,000 sq. ft.) ten thousand sq. feet along with a store room located at the mezzanine level between the Ground Floor and the First Floor.

18. The SHO to provide police aid to the receiver if required while taking possession of the assets in case any obstruction is caused by the respondent. The financial crisis of the respondent and/or the adamant attitude of respondent is all the more reason for this Court to pass this order.

19. The application is disposed of.

O.M.P.(I) (COMM.) 532/2017

20. List on 11th April, 2018 for further proceedings.

21. Dasti.

YOGESH KHANNA, J JANUARY 17, 2018 VLD