Delhi High Court
Bdr Builders & Developers Pvt. ... vs Nirmala Modi on 9 October, 2018
$-32
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 9th October, 2018
+ EX.P.72/2017 & EA(OS) 431/2018
BDR BUILDERS & DEVELOPERS PVT. LTD. & ANR.
..... Decree Holders
Through: Mr.Sanjay Goswami, Adv.
alongwith Mr.Rajesh Gupta
and Mr.Shreyansh Gupta,
Directors in person.
versus
NIRMALA MODI ..... Judgement Debtor
Through: Mr.Sandeep Sharma,
Mr.Ravinder Singh, Mr.Nilesh
Deep, Mr.Koj Yassung and
Ms.Eleni Marwein, Advs.
CORAM:
HON'BLE MR. JUSTICE NAVIN CHAWLA
NAVIN CHAWLA, J. (Oral)
1. The parties have exchanged the draft format of the Sale Deed
between them.
2. Learned counsel for the Judgment Debtor has the following
objections against the draft of the Sale Deed that was circulated by
the counsel for the Decree Holder:
a. He submits that as the sale consideration has been received
from two companies namely M/s BDR Builders and
Developers Pvt. Ltd. and M/s BDR Build Tech Pvt. Ltd in
EX.P.72/2017 Page 1
different proportion, the Sale Deed must clearly state the
proportion of the property both these vendees are entitled
to. In my view, this is a matter of inter se resolution
between the two vendees and the vendor cannot be
concerned with the same. As far as the vendor is concerned,
he has to execute the Sale Deed in favour of the vendees in
terms of the Arbitral Award which has become final.
Whether the vendees clarify their respective shares in the
Sale Deed or follow the general principles that would be
applicable for determination of such shares, is for the
vendees to decide and not for the vendor to insist.
b. Learned counsel for the Judgment Debtor further submits
that the Sale Deed is being executed on behalf of M/s BDR
Builders and Developers Pvt. Ltd. by Mr.Rajesh Gupta as
its alleged authorized signatory. He submits that the
Judgment Debtor has an apprehension that Mr.Rajesh
Gupta has not been duly authorized.
Learned counsel for the Decree Holder, however,
submits that Mr.Rajesh Gupta has been duly authorized by
way of a Board Resolution and a copy of the same would
be duly provided by the Decree Holder to the Judgment
Debtor at the time of execution of the Sale Deed. He further
submits that, in any case, this is only a draft of the Sale
Deed and whosoever would be authorized by the Board of
Directors of the said company on the date of the execution
of the Sale Deed, would not only execute the Sale Deed but
EX.P.72/2017 Page 2
also a copy of the resolution authorising such person shall
be duly produced to the Judgment Debtor as also the
Registrar of Documents.
Recording the above statement, I see no reason for the
Judgment Debtor to refuse the execution of the Sale Deed on
this account.
c. In the draft Sale Deed circulated by the Decree Holder, the
Decree Holder had sought indemnity from the Judgment
Debtor with respect to the suits, being Suit No.9278/2016
and Suit No.271/2018, filed by one M/s Assure Properties
against the parties herein and pending before the Court of
Additional District Judge, Saket. On an objection being
raised by the counsel for the Judgment Debtor, the Decree
Holder has duly modified the said clause which reads as
under:
"That the order dated 04.07.2018 has been
passed by the Ld.ADJ-04, South, New Delhi
thereby the Vendor and the Vendee have been
restrained from alienating, selling, transferring or
creating any third party interest in the entire roof
over above the ground of the property except the
rights created by the Vendor in favour of the
present Vendee which have been permitted by the
Court during the pendency of the said suit. The
present sale deed is executed subject to the rights
of the parties arising from outcome of the said
suit."
This takes care of the objection of the Judgment Debtor.
d. Learned counsel for the Judgment Debtor has further
EX.P.72/2017 Page 3
submitted that incase any adverse order is passed against
the Judgment Debtor in the abovementioned suits, the
Decree Holder must indemnify the Judgment Debtor in this
regard.
I am unable to understand the said averment of the
counsel for the Judgment Debtor. The Decree Holder in the
preset petition seeks enforcement of the decree for the
specific performance of the Agreement to Sell dated
26.11.2013 read with Supplementary Agreement dated
13.06.2015 passed in its favour in relation to the entire
freehold built up property bearing No.D-20, NDSE-Part-II,
New Delhi. The Decree Holder has also taken permission
of the Courts where the suits are pending for execution of
the Sale Deed in its favour, subject to the outcome of the
said suits. The said suits have been filed based on a
subsequent alleged Agreement to Sell executed by the
Judgment Debtor in favour of M/s Assure Properties.
Incase the Judgment Debtor would fail in those suits, the
rights of the Decree Holder would be adversely affected.
Therefore, what indemnity the Judgment Debtor is seeking
from the Decree Holder is not at all clear and infact totally
misplaced. At that stage, it would be the Judgment Debtor
who would have to indemnify the Decree Holder incase of
an adverse order being passed against it in the said suits.
e. The learned counsel for the Judgment Debtor, relying upon
Section 194-IA of the Income Tax Act, 1961 submits that
EX.P.72/2017 Page 4
the Decree Holder has to pay tax at source for the sale
consideration that has been paid by the Decree Holder to
the Judgment Debtor. Learned counsel for the Decree
Holder, on the other hand submits that the TDS as was
applicable at the relevant time had been duly deducted by
the Decree Holder at the time of making of the payment and
no further TDS has to be deposited by the Decree Holder.
In any case, the Sale Deed provides that the Decree
Holder would keep the Judgment Debtor fully indemnified
against any tax demand that may be raised against it with
respect to the TDS. In my view the same should adequately
safeguard the interest of the Judgment Debtor in respect of
any demand of penalty for not depositing the TDS by the
Decree Holder.
This would however not be construed by the Income
Tax Authority as an acceptance by this Court of the plea of
the Decree Holder that no further TDS is to be deposited by
it on the present transaction. The Income Tax Authority
shall be free to make an assessment in this regard being
uninfluenced by any observation made in the present order.
f. Learned counsel for the Judgment Debtor, relying upon
Section 50-C of the Income Tax Act, 1961, further submits
that there may be an implication of capital gain tax on the
Judgment Debtor due to the sale consideration being lower
than the circle rate for the purpose of the stamp duty.
In my view, the Agreement to Sell having been accepted
EX.P.72/2017 Page 5
by the Arbitrator and Award having become final, the
implication of any tax on the said transaction has to be
borne by the parties. The transaction cannot be reopened
now. It has to be honoured by the parties. If the transaction
has any tax implication on the Judgment Debtor, then the
Judgment Debtor has to bear or defend the same.
3. There is no other objection to the draft Sale Deed.
4. In view of the above, learned counsel for the Decree Holder
shall prepare a revised draft Sale Deed within one week from today
and handover a copy of the same to the counsel for the Judgment
Debtor. The same shall also be filed in Court. Any objection of the
Judgment Debtor shall be filed by way of an affidavit within one
week thereafter.
List before the Joint Registrar (Judicial) on 1st November, 2018
for ensuring the execution of the Sale Deed by the Judgment Debtor
in terms of the Arbitration Award.
NAVIN CHAWLA, J
OCTOBER 09, 2018/Arya
EX.P.72/2017 Page 6
