Delhi High Court
Axis Trustee Services Limtied & ... vs Sanjeev Mahajan & Ors. on 7 April, 2022
$~2
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision : 7th April, 2022.
+ CS(COMM) 28/2022 & I.A. No. 690/2022 (O-II R-2(3) of CPC)
AXIS TRUSTEE SERVICES LIMTIED & ORS. ..... Plaintiffs
Through: Mr. Sandeep Sethi, Senior Advocate
and Mr. T.K. Ganju, Senior Advocate
with Mr. Prateek Kumar, Mr. Madhav
Khosla, Ms. Vaishnavi Chillakuru
and Ms. Apeksha Dhanvijay,
Advocates.
versus
SANJEEV MAHAJAN & ORS. ..... Defendants
Through: Mr. Ramesh Singh, Senior Advocate
with Mr. Kumar Anurag Singh, Mr.
Zain A. Khan and Mr. Akshay Ringe,
Advocates.
Mr. Vinayak Bhandari, Advocate for
NPPL/proposed D-4.
CORAM:
HON'BLE MR. JUSTICE AMIT BANSAL
JUDGMENT
AMIT BANSAL, J. (Oral)
I.A. No. 3123/2022 (O-I R-10 CPC)
1. The present application has been filed on behalf of the
applicants/plaintiffs under Order I Rule 10 of the Code of Civil Procedure,
1908 (CPC) seeking joinder of Nimitaya Promoters Pvt. Ltd. (NPPL) as the
defendant no.4 in the present suit.
2. Notice in this application was issued on 24th February, 2022.
Signature Not Verified
Digitally Signed By:MAMTA
ARYA
CS (Comm) No.28/2022
Signing Date:12.04.2022 11:32:55
However, no reply has been filed on behalf of NPPL as well as the
defendants.
3. Counsel appearing on behalf of the defendants no. 1, 2 and 3 and the
counsel appearing on behalf of NPPL seek further time to file reply to the
aforesaid application.
4. In view of the averments made against NPPL being mechanism for
diversion of funds and the relief sought against NPPL in the present
application, I deem it fit not to grant any further time for filing replies.
5. Oral submissions on behalf of the defendants no.1, 2 and 3 have been
heard. Counsel for the defendant no.4 submits that he adopts the
submissions made on behalf of the defendants no.1, 2 and 3.
6. The present suit is predicated on the mortgage created by the
defendants no.1, 2 and 3 in favour of the plaintiffs on various properties
owned by the defendants, which includes the property being Plot No.1,
NWA, Main Club Road, West Punjabi Bagh, New Delhi-110026 (Punjabi
Bagh Property).
7. Senior counsels appearing on behalf of the plaintiffs have drawn my
attention to the various clauses of the Debenture Subscription Agreement as
well as the memorandum regarding mortgage and the owner's declaration
regarding mortgage (mortgage documents) in terms of which the defendants
were debarred from creating any third-party interest in respect of the
mortgaged properties without the consent of the plaintiffs.
8. It is submitted on behalf of the plaintiffs that in complete violation of
the aforesaid provisions, the defendants herein have entered into a lease
deed dated 3rd February, 2021 in respect of the Punjabi Bagh Property in
favour of NPPL. It is further submitted that in the lease deed dated 4 th
Signature Not Verified
Digitally Signed By:MAMTA
ARYA
CS (Comm) No.28/2022
Signing Date:12.04.2022 11:32:55
February, 2021 entered into with Kids Clinic India Pvt. Ltd., NPPL is a
party as lessor no.3. In view thereof, it is contended that through NPPL, the
defendants are diverting the moneys received or to be received in respect of
the mortgaged property to defeat the interest of the plaintiffs. Therefore, the
present application has been filed for impleadment of NPPL as a party.
9. Senior counsel appearing on behalf of the defendants no.1, 2 and 3
submits that NPPL has no interest in the Punjabi Bagh Property and NPPL
has been made a party only so as to secure the amounts to be received in
terms of the lease deed, so that they can be put in an escrow account.
10. At the outset, it may be appropriate to refer to the negative covenants
of the Debenture Subscription Agreement imposed on the defendants in
respect of the 'Transaction Security', which includes the Punjabi Bagh
Property:
"12. Enter into any Rental Contracts with any Related Party
other than the Revenue Sharing Contract and lease deed entered
into with Nimitaya Hospitality;
xxx xxx xxx
25. Enter into a single transaction or a series of transactions
(whether related or not) and whether voluntary or involuntary to
sell, lease, Transfer or otherwise dispose of any asset forming part
of the Transaction Security."
11. Reference may also be made to clause 8(d) of the memorandum
regarding mortgage entered into by the defendants in respect of the Punjabi
Bagh Property:
"8(d) there is no Security Interest, lien or other encumbrance or
attachment on the Mortgaged Properties or any part or parts
thereof in favour of any government or the income-tax department
Signature Not Verified
Digitally Signed By:MAMTA
ARYA
CS (Comm) No.28/2022
Signing Date:12.04.2022 11:32:55
or any other governmental authority, or any person, firm or
company, body corporate or society or entity whatsoever and that
the Company has not entered into any agreement for sale, transfer
or alienation thereof or any part or parts thereof and that no such
mortgage, charge or lien or other encumbrance whatsoever will
be created or attachment allowed to be levied on the Mortgaged
Properties or any part or parts thereof in favour of or on behalf of
any government or governmental authority or any person, firm,
company, body corporate or society or entity whatsoever except
with the prior permission of the Debenture Holders and the
Debenture Trustee so long as the Debenture Secured Obligations
are outstanding."
12. Attention of the Court has been drawn to the lease deed entered into
between the defendant no.1 and NPPL (page no.943 of the documents filed
by the plaintiffs) in terms of which a lease for a period of 10 years has been
created by the defendant no.1 in favour of NPPL in respect of the Punjabi
Bagh Property at a rent of Rs.5,00,000/- per month. In the lease deed dated
4th February, 2021 with Kids Clinic India Pvt. Ltd., NPPL has been shown
as lessor no.3. It is further noted in the recitals of the aforesaid lease that
lessor no.3 is in actual possession and enjoyment of the Schedule Property.
13. Out of the refundable security of Rs.2,34,50,000/-, a sum of
Rs.2,01,00,000/- is to be paid by Kids Clinic India Pvt. Ltd. to NPPL, the
lessor no.3.
14. Clause 6 of the lease deed records that the lease rental amount of
Rs.33,50,000/- shall also be paid by Kids Clinic India Pvt. Ltd. to NPPL and
lessor no.1 (defendant no.1) and lessor no.2 (defendant no.2) do not have
any objection to the same.
15. Attention is also drawn to the communication dated 30 th June, 2021 in
Signature Not Verified
Digitally Signed By:MAMTA
ARYA
CS (Comm) No.28/2022
Signing Date:12.04.2022 11:32:55
terms of which instructions were given to Kids Clinic India Pvt. Ltd. to
deposit the lease rentals in the escrow account, details of which are as under:
NIMITAYA PROMOTERS PRIVATE LIMITED CITI BANK
ESCROW ACCOUNT LIMITED
ACCOUNT NO-22079077 IFSC CODE:-
CITI0100000.
16. However, vide e-mail dated 2nd December, 2021, Kids Clinic India
Pvt. Ltd. has been asked to make the payment of lease rentals in the private
account of NPPL, details of which are given below:
Bank Details "NIMITAYA PROMOTERS PW LTD"
Bank Name ICICI Bank
Bank Account No - 054205003243
IFSC Code - ICIC0000542
17. This completely belies the submissions made on behalf of the
defendants that the lease rentals were deposited in the account of NPPL only
so as to facilitate the aforesaid amounts being put into the escrow account. If
that was the intention, there was no need to change the instructions issued on
30th June, 2021 and asking Kids Clinic India Pvt. Ltd. to deposit the lease
rentals in the private account of NPPL.
18. Though it has been contended on behalf of the defendants that no
interest in the mortgage property has been created in favour of NPPL in
terms of Section 58 of Transfer of Property Act, a perusal of the aforesaid
documents would clearly demonstrate that the defendants have created
interest in respect of the mortgaged property in favour of NPPL in violation
Signature Not Verified
Digitally Signed By:MAMTA
ARYA
CS (Comm) No.28/2022
Signing Date:12.04.2022 11:32:55
of the terms of the Debentures Subscription Agreement as well as the terms
of the memorandum regarding mortgage. Further, the security deposit of
Rs.2,34,50,000/- in respect of the lease deed has been made in favour of
NPPL and also all further payments under the lease are to be made in favour
of NPPL. Clearly, this is an attempt to tamper with the security provided to
the plaintiffs by the defendants so that the plaintiffs are unable to enforce
such security. In view thereof, this Court is of the view that NPPL is a
necessary and proper party for the adjudication of the present suit.
19. Accordingly, NPPL is impleaded as defendant no.4 in the present suit.
20. Amended memo of parties filed along with the application is taken on
record.
21. Senior counsels appearing on behalf of the plaintiffs press for prayers
(iii) and (v) in the application, which are set out below:
"iii. Direct Nimitaya Promoters Private Limited to furnish the
details of all bank accounts held in its name, whether jointly or
singly, and to place on record the bank account statements in
respect of each such account for the period commencing 1 April
2019 till the date such records are furnished;
v. Direct Nimitaya Promoters Private Limited will be bound
by this Hon'ble Court's directions, vide order dated 3 February
2022, in CS(Comm) 28 of 2022, to deposit all rental and/or other
monies received from Kids Clinic Pvt. Ltd., pursuant to the lease
dated 4 February 2021 with this Hon'ble Court;"
22. Senior counsel appearing on behalf of the defendants opposes prayer
3 on the ground that NPPL, not being a mortgagee, should not be directed to
place on record details of its bank accounts which have nothing to do with
the Punjabi Bagh Property.
Signature Not Verified
Digitally Signed By:MAMTA
ARYA
CS (Comm) No.28/2022
Signing Date:12.04.2022 11:32:55
23. In view of the plaintiffs making out a prima facie case that NPPL has
been used by the defendants to divert the funds from the mortgage property,
I deem it necessary to direct NPPL to furnish details of all bank accounts
held by it jointly or singly and to place on record the account statements in
respect of the aforesaid bank accounts for a period commencing from 1 st
April, 2019 till date. Further, NPPL is directed to deposit before this Court
all rentals and other monies received or to be received from Kids Clinic
India Pvt. Ltd. pursuant to the lease deed dated 4th February, 2021.
24. Application is disposed of in above terms.
I.A. No.689/2022 (u/O-XXXIX R-1 & 2)
25. Pursuant to the order dated 3rd February, 2022, bank statements have
been filed on behalf of the defendants no.1, 2 and 3, however, the same are
not on record. Defendants to take steps to have the same placed on record.
26. The defendant no.3 shall file an affidavit giving details of all credit
and debit entries made from the aforesaid amounts exceeding Rs.50,00,000/
within four weeks.
27. In terms of order dated 3rd February, 2022, Rs.2,34,50,000/- has been
deposited by the defendants before this Court.
28. Counsels for the plaintiffs submits that the aforesaid amount be
released to the plaintiffs, which is opposed by the counsel for the
defendants.
29. In my view, taking into account the amounts claimed in the suit and
the fact that the defendants have not disputed their liability, there cannot be
any opposition in the release of the aforesaid amount in favour of the
plaintiffs.
Signature Not Verified
Digitally Signed By:MAMTA
ARYA
CS (Comm) No.28/2022
Signing Date:12.04.2022 11:32:55
30. Accordingly, the Registry is directed to release the amount of
Rs.2,34,50,000/- in favour of the plaintiff no.1.
31. List on 23rd August, 2022.
CS(COMM) 28/2022
32. In view of NPPL being impleaded as defendant no.4 let summons be
issued to the defendant no.4, which are accepted by Mr. Vinayak Bhandari,
counsel appearing on behalf of defendant no.4.
33. Written statement shall be filed by the defendant no.4 within the
statutory time period. Along with the written statement, the defendant no.4
shall also file affidavit of admission/denial of the documents of the
plaintiffs, without which the written statement shall not be taken on record.
34. Liberty is given to the plaintiffs to file replication, if any, within
fifteen days from the receipt of the written statement of the defendant no.4.
Along with the replication filed by the plaintiffs, affidavit of
admission/denial of the documents of the defendant no.4 be filed by the
plaintiffs.
35. List before the Joint Registrar on 13th May, 2022 for completion of
service and pleadings.
AMIT BANSAL, J.
APRIL 7, 2022
at
Signature Not Verified
Digitally Signed By:MAMTA
ARYA
CS (Comm) No.28/2022
Signing Date:12.04.2022 11:32:55
