Delhi High Court
Evolve Info Train India Pvt Ltd vs Versatile Commotrade Pvt Ltd & Anr on 31 January, 2018
$~6
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO(OS) 299/2017 & CM Nos.42674-75/2017
% Date of Decision: 31st January, 2018
EVOLVE INFO TRAIN INDIA PVT LTD ..... Appellant
Through: Mr. K. Datta with
Mr. Aditya Gupta, Advs.
versus
VERSATILE COMMOTRADE PVT
LTD & ANR ..... Respondent
Through: Mr. Nikhilesh Krishanan,
Adv. for R-1.
Mr. Ankit Kakkar, Adv. for
R-2.
CORAM:
HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MR. JUSTICE C.HARI SHANKAR
JUDGMENT (ORAL)
GITA MITTAL, ACTING CHIEF JUSTICE
CM No.42674/2017 (for condonation of delay)
Heard.
For the reasons stated in the application, delay in filing the
appeal is condoned.
The application stands disposed of.
CM No.42675/2017
By this application the appellant seeks leave to appeal under
Section 151 of the Code of Civil Procedure, 1908 (hereafter
'CPC') to challenge the impugned order dated 8th August, 2017
FAO (OS) No.299/2017 Pg.1 of 9
passed in I.A. No.8896/2017 in CS (OS) No.802/2014. The
appellant has stated that it is the owner of the property bearing 14
bighas 12 biswa out of Khasra nos.4/12, 7, 8/2, 22 & 23 situated in
the revenue estate of village Ujjwa, Tehsil Nazafgarh, Delhi by
virtue of the registered Sale Deed dated 21st November, 2013. The
appellant was not impleaded a party in CS(OS) No.802/2014, yet
the impugned order dated 8th August, 2017 has been passed which
affects the rights of the appellant to deal with the subject property.
It is trite that a person prejudicially affected by an order of
the Court, where he was not a party, would be entitled to bring in
an appeal, with the leave of the appellate court, in respect of such
order [Ref.: Smt. Jatan Kumar Golcha vs. Golcha Properties (P)
Ltd. (1970) 3 SCC 573].
In view thereof, this application is allowed.
The applicant is granted lave to maintain the present appeal
arising out of the impugned order dated 8th August, 2017.
FAO (OS) No.299/2017
1. On the last date of hearing, we had called for the records of
CS(OS) No.802/2014, which have been examined by us.
2. This appeal has been filed by Evolve Info Train India Pvt.
Ltd. assailing the order dated 8th August, 2017 passed by the ld.
Single Judge in I.A. No.8896/2017 in CS (OS) No.802/2014.
3. The facts of the case necessary for consideration of the
present appeal are in a narrow compass. To the extent necessary,
the same are noted hereafter.
4. It appears that M/s Versatile Commotrade Pvt. Ltd.
FAO (OS) No.299/2017 Pg.2 of 9
(respondent no.1 herein) had filed CS(OS) No.802/2014 against
M/s Angad Developers Pvt. Ltd. (the respondent no.2 herein). The
suit was filed under Order XXXVII of the CPC invoking summary
procedure for the fund/recovery of Rs.2 crores with interest @
16.25 % per annum from 15th November, 2013 till the date of
actual payment.
5. A perusal of the plaint would show that the claim of the
plaintiff rested on the averments that the respondent no.2/defendant
had offered to sell its 14 bighas 12 biswa out of Khasra nos.4/12,
7, 8/2, 22 & 23 situated in the revenue estate of Village - Ujjwa,
Tehsil Nazafgarh, Delhi to the respondent no.1/plaintiff for a sale
consideration of Rs.3,41,000,00/- per acre, amounting to a total of
Rs.10,37,20,833/-.
6. In paras 4 and 5 of the plaint, it is stated that the respondent
no.1/plaintiff claimed to have paid an amount of Rs.1,25,000,00/-
vide cheque no.885608 towards advance/part sale consideration at
the time of execution of the Agreement to Sale dated 21st April,
2013. An other amount of Rs.75,00,000/- was claimed to have
been paid by the respondent no.1/plaintiff to the respondent
no.2/defendant in two trenches, i.e., an amount of Rs.50,00,000/-
paid on 11th May, 2013 and a further sum of Rs.25,00,000/- was
also paid both of which stood received under duly signed receipts.
Respondent no.1/plaintiff as such claimed that a total amount of
Rs.2,00,00,000/- had been paid to the respondent no.2/defendant
towards the sale consideration.
7. Given the nature of the controversy, it is important to note
FAO (OS) No.299/2017 Pg.3 of 9
that in the plaint only a prayer for a decree of recovery of money
against the respondent no.2 is made by the respondent no.1, in the
following terms:
"i. Decree the instant suit in favour of the plaintiff
and against the defendant thereby directing the defendant
to refund/pay an amount of Rs.2,00,00,000/- (Rupees
Two Crores Only) alongwith interest @ 16.5% p.a. with
effect from 15th November 2013 till the date of actual
payment.
ii. Award cost of the suit in favour of the plaintiff and
against the defendant; and
iii. Pass any other order as may be deemed fit by this
Hon'ble Court in the facts of the present case."
8. We also note that the suit was filed on or about the 13th
March, 2014 by the respondent no.1 herein. Consequently, by the
order dated 29th May, 2014, summons were directed to be issued
under Order XXXVII Rule 3(4) of the CPC to the respondent no.2.
The respondent no.2 entered appearance in the suit on 14th July,
2014. The respondent no.2 filed I.A. No.14384/2014 under Order
XXXVII Rule 3(5) of the CPC, seeking leave to defend.
9. We have scrutinized the record of the case which would
show that ever since (from 2014 till date in 2018) the matter has
been adjourned for various reasons including on the request of the
parties to enable them to explore the possibility of settlement as
well as circulation of the adjournment slips with the consent of
both the parties.
FAO (OS) No.299/2017 Pg.4 of 9
10. Ld. counsel for the parties submit that this application
seeking leave to defend is pending till date and the same has not
been decided.
11. During such pendency of application for leave to defend
since November, 2014, the respondent no.1 filed I.A.
No.8896/2017 being an application under Order XXXVIII Rule 5
of CPC read with Order XXXIX Rules 1 & 2 seeking an order for
attachment of judgment. In this application, the respondent
no.1/plaintiff has made the following averments:
"2. That by filing the instant application, plaintiff is
praying this Hon'ble Court to invoke its powers under
Order 38 Rule 5 CPC as defendant with intent to obstruct
and delay the execution of the decree that may be passed
against it in the captioned suit, is in furtherance of sham
transaction of sale of property being agricultural land,
area measuring 14 Bighas, 12 out of Khasra No.4/12, 7,
8/2, 22 and 23, situated in revnue estate of Village Ujjwa,
Tehsil Nazafgarh, Delhi (hereinafter referred to as the
"said property") to its sister concern, M/s Evolve Info
India Pvt. Ltd., is further engaged through M/s Evolve
Info India Pvt. Ltd. to sell above property to a third
party.
xxx xxx xxx
5. That as the plaintiff was apprehending that
defendant would try to sell the above land through its
sister concern, M/s Evolve Info India Pvt. Ltd. so as to
avoid Section 53 of Transfer of Property Act and to
defeat or delay execution of the decree which is likely to
be passed in favour of the plaintiff in the captioned suit,
plaintiff had filed objection/application on 29.05.2017
before the Office of the Additional District
Magistrate/LAC (South-West), Kapashera that NOC be
FAO (OS) No.299/2017 Pg.5 of 9
not issued in respect of the above property and true copy
of the said application is filed as Annexure A. Pursuant
to the same, plaintiff had received Notice dated
13.06.2017 sent by the Officer of Additional District
Magistrate (South-West) intimating that M/s Evolve Info
India Pvt. Ltd has filed application for issuance of NOC
and plaintiff had been asked to produce court stay
order/restrain order on the date of hearing i.e.
22.06.2017 on 3.00 P.M. True copy of the above Notice
dated 13.06.2017 is filed herewith as Annexure B.
Additional District Magistrate (South-West) has granted
further time to the plaintiff to bring Court order of
restraint/stay. Said proceeding is pending before the
Additional District Magistrate (South-West).
6. In view of the above notice received from the
Office of Additional District Magistrate (South-West), it
is evident that the defendant has through its sister
concern, M/s Evolve Info Train India Pvt. Ltd. applied
for issuance of NOC obviously with the intention to sell
the above land to a third party and if said act is not
restrained from doing the same, same will cause
irreparable loss to the plaintiff as above land will be sold
and in the event of passing of decree in favour of the
plaintiff, plaintiff will not be able to realize the same by
selling the above land of the defendants which was
valued around Rs.10.37 Crores in the above agreement
to sell. As stated above, even alleged sell by the
defendant to its sister concern M/s Evolve Info Train
India Pvt. Ltd. on 25.04.2014, after receipt of summons
of the instant suit, is hit by Section 53 of Transfer of
Property Act requiring interference by this Hon'ble
Court to safeguard interest of the plaintiff by attaching
the above property. Hence the present application for
passing order under Order 38 Rule 5 CPC for directing
the defendant to furnish security failing which the above
property be attached and in the meantime creation of any
FAO (OS) No.299/2017 Pg.6 of 9
third party interest in respect of the above land either by
sale or otherwise by restrained till decision in the present
case or till furnishing of security by the defendant. "
12. I.A. No.8896/2017 in CS(OS) No.802/2014 came up for
consideration for the first time before the ld. Single Judge on 8th
August, 2017 when the ld. Single Judge passed the impugned order
restraining the Additional District Magistrate, South-West District,
New Delhi from issuing NOC in favour of the defendant
(respondent no.2 herein) or its sister concern, M/s Evolve Info
Train India Pvt. Ltd. for the sale of the said land to any third party.
Inasmuch as the appellant company was not a party in the suit and
has been affected by the passing of the impugned order, the present
appeal has been filed assailing this order.
13. It has been averred in the appeal that the appellant is the
owner of the subject land and the appellant has purchased the
property in question by a registered sale deed dated 21 st November,
2013 after compliance of the statutory requirements.
A copy of the Sale Deed has been produced in the Court and
the same is taken on record.
14. The respondent no.1/plaintiff does not lay any claim to the
property which is the subject matter of the Sale Deed dated 21st
November, 2013. The suit simply seeks a money decree, which
was not even accompanied by any application seeking any interim
relief even in the nature of an interim injunction.
15. It is contended by the ld. counsel for the respondent no.1 that
it had inspected the revenue records which reflected that the
FAO (OS) No.299/2017 Pg.7 of 9
respondent no.2 is the owner of the subject property. In our view,
this was a hopeless exercise, inasmuch as the record of the Sub-
Registrar was open for inspection.
16. No rights are claimed by the respondent no.1/plaintiff so far
as the immovable property is concerned. The respondent no.1/
plaintiff does not seek cancellation of the sale deed which is a
registered deed in favour of the appellant. Merely because the
respondent no.1/plaintiff alleges a sham transaction that too in an
application, it cannot in any manner whatsoever impact the rights
and claims of the appellant which is also a company incorporated
under the provisions of the Companies Act, 1956.
17. Ld. counsel for the respondent no.1/plaintiff would submit
that the respondent no.1/plaintiff had made a prayer in the
application under Order XXXVIII Rule 5 of CPC. The prayer
would certainly be of no consequence inasmuch as no claim in the
immovable property has been made in the civil suit.
18. Minimal due diligence would have enabled any person to
ascertain the ownership of the property which stands registered
with the office of Sub-Registrar. I.A. No.8896/2017 filed by the
respondent no.1/plaintiff hopelessly conceals the fact that the
appellant before us was the owner of the subject property under
registered documents of title.
19. We, therefore, find substance in the grievance of the
appellant that its rights in the immovable property would be
impacted by the impugned order dated 8 th August, 2017 without
making it a party or hearing it. No interim order against the
FAO (OS) No.299/2017 Pg.8 of 9
appellant in respect of the subject property could have been passed
in a money suit instituted by the respondent no.1/plaintiff.
For all these reasons, the order dated 8th August, 2017 passed
by the ld. Single Judge in I.A. No.8896/2017 in CS (OS)
No.802/2014 is hereby set aside and quashed.
No order as to costs.
ACTING CHIEF JUSTICE
C.HARI SHANKAR, J
JANUARY 31, 2018/pmc
FAO (OS) No.299/2017 Pg.9 of 9
