Delhi High Court
Br Agarwala And Co India Pvt Ltd vs Anita Jalan & Ors. on 10 February, 2023
Neutral Citation Number : 2023/DHC/000971
* IN THE HIGH COURT OF DELHI AT NEW DELHI
FAO 307/2022 and CM APPL. 51707/2022 (Direction)
Reserved on : 19.01.2023
Date of Decision : 10.02.2023
IN THE MATTER OF:
BR AGARWALA AND CO INDIA PVT LTD ..... Appellant
Through: Ms. Richa Kapoor, Mr. Prakhar Dixit,
Ms. Tusharika Sharma and Mr. Vipin T.P.,
Advocates
Versus
ANITA JALAN & ORS. ..... Respondents
Through: Mr. Aditya Wadhwa, Ms. Adya Jha and
Mr. Siddharth Sunil, Advocates for respondents
No.1 to 3
Mr. Rajesh Kumar Agnihotri, Advocate for
respondent No.4
CORAM:
HON'BLE MR. JUSTICE MANOJ KUMAR OHRI
JUDGMENT
MANOJ KUMAR OHRI, J.
1. The present appeal has been instituted by the appellant/plaintiff under
Section 104 read with Order 43 Rule 1 CPC assailing order dated
21.09.2022 passed by the learned ADJ-02, South District, Saket Courts,
Delhi in CS (COMM) No.473/2022, whereby its application under Order 39
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Signing Date:10.02.2023
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Neutral Citation Number : 2023/DHC/000971
Rules 1 and 2 CPC was dismissed. The appellant further seeks directions to
respondent Nos.1 to 3 restraining them from selling or parting with the title
and possession of Rear Ground Floor and Front First Floor of D-68, Hauz
Khas, New Delhi-16 (hereinafter, 'suit properties').
2. Learned counsel for the appellant assailed the impugned order by
contending that the Trial Court failed to appreciate that there is likelihood of
respondents No.1 to 3 creating third-party interest in the suit properties. It
was submitted that the parties had entered into a Family Settlement
Agreement Award on 16.12.2019, whereby the suit properties falling in the
share of Mr.Raj Kumar Jalan were to be transferred to Mr.Prakash Chand
Jalan and his family members. The transfer was subject to Mr.Prakash
Chand Jalan fulfilling his obligations under the family settlement which,
however, was not done.
It was further submitted that the respondents had played fraud upon
the appellant as prior to entering into the Family Settlement, the suit
properties already stood transferred and this fact was withheld at the time of
entering into the Family Settlement. It was also contended that consideration
amount received in the account of the appellant was fraudulently re-
transferred to respondents/defendant Nos.1 and 2.
3. Learned counsel for respondent Nos.1 to 3, on the other hand,
disputed the submissions made on behalf of the appellant. He also objected
to the maintainability of the underlying suit by drawing attention to
Section 430 of the Companies Act and placing reliance on the decision in
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Signing Date:10.02.2023
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Neutral Citation Number : 2023/DHC/000971
Dinesh Kumar v. Sinecure Technocity Pvt. Ltd. & Ors., CS(COMM)
No.242/2019.
4. I have heard learned counsels for the parties and gone through the
material placed on record.
5. It is worthwhile to observe that prior to the Family Settlement
Agreement Award dated 16.12.2019, another family settlement was
executed on 20.08.2019. In Clause 3 of the said settlement agreement, it was
agreed between the parties that the suit properties would be transferred to
respondent Nos.1 to 3. The transfer took place by virtue of a Board
Resolution dated 05.08.2019 and as per the Minutes of Meeting, it was
Mr.Raj Kumar Jalan who had presided over the meeting as Chairman.
At the time of hearing, the Trial Court had asked for the Minutes of
Meeting, but the same were not produced by the appellant. On prima
facie reading of the family settlement, I find merit in the submission of
learned counsel for respondent Nos.1 to 3 that the money was to be
transferred back. Besides, the appellant has not raised any challenge to the
Board Resolution vide which the money received by the appellant was
transferred.
6. It is pertinent that on 25.06.2019, Mr.Raj Kumar Jalan is reported to
have signed the appellant's balance sheet. Further, the decision to transfer
was taken by B.R. Agarwala and Company at a time when the
respondent(s) were its majority shareholders. Subsequent to the family
settlement, Mr.Raj Kumar Jalan has become the majority shareholder and
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Neutral Citation Number : 2023/DHC/000971
after nearly more than 1½ years, he has filed the underlying suit. The
appellant, though seeking annulment or cancellation of the sale deed(s),
has not sought specific performance of the family settlement.
7. Insofar as a challenge has been raised as to the maintainability of
the underlying suit by learned counsel for respondent Nos.1 to 3, it is
observed that the limited issue before this Court relates to the application
filed by the appellant under Order 39 Rules 1 and 2 CPC, which came to
be dismissed vide the impugned order.
8. In view of the foregoing discussion, I am of the prima facie
opinion that for the purposes of the present appeal, the appellant has
failed to establish a prima facie case and balance of convenience in its
favour, as well as failed to show as to how any irreparable loss or injury
would be caused to it if the impugned order is not set aside. Accordingly,
the appeal is dismissed. The issue of maintainability of the underlying suit
is left open. Pending application stands disposed of.
9. Needless to state, the views expressed hereinabove shall not have a
bearing on the trial.
(MANOJ KUMAR OHRI)
JUDGE
FEBRUARY 10, 2023
na
Digitally Signed
Signing Date:10.02.2023
16:19:13
