Punjab-Haryana High Court
M/S Lamba Exports Pvt. Ltd vs M/S Dhir Global Industries Pvt. Ltd. And ... on 6 May, 2024
Neutral Citation No:=2024:PHHC:063096
CR-3916-2022 (O&M) - 1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH.
CR-3916-2022 (O&M)
Date of Reserved : 21.03.2024.
Date of Pronouncement: 06.05.2024.
M/s Lamba Exports Pvt. Ltd. ...Petitioner.
Versus
M/s Dhir Global Industries Pvt. Ltd. and others ....Respondents.
***
CORAM: HON'BLE MRS. JUSTICE SUKHVINDER KAUR
----
Present: Mr. Sarvesh Malik, Advocate and
Mr. Yogender Verma, Advocate
for the petitioner.
Mr. Alankar Narula, Advocate and
Mr. Parmeet Gupta, Advocate
for respondents No.1 to 3.
Mr. Amit Jhanji, Sr. Advocate with
Mr. Gaurav Goel, Advocate and
Ms. Zaheen Kaur, Advocate
for respondent No.4.
****
Sukhvinder Kaur, J.
By way of present revision petition, the petitioner/ plaintiff has
challenged order dated 06.09.2022 passed by learned Additional District
Judge, Gurugram, vide which appeal preferred by the respondents/
defendants No.1 to 3 against the order dated 19.07.2022 passed by Civil
Judge (Junior Division), Gurugram, was allowed and order dated
19.07.2022 in terms of which stay was granted, has been set aside.
2. The relevant facts for adjudication of the present revision
petition are that the plaintiff/ petitioner filed a suit for specific performance
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of contract, declaration and mandatory injunction with consequential relief
of permanent injunction alleging that the plaintiff and defendants No.1 to 3/
respondents entered into agreement to sell dated 13.08.2021 for the property
bearing UV-375. Udyog Vihar, Phase-IV, Gurugram. The sale consideration
was settled at Rs.21 Crores. The plaintiff had paid Rs.30 Lakhs as earnest
money and Rs.1,20,00,000/- to bank (defendant No.4) with offer letter for
approval of one time settlement. It was alleged that defendant No.1 had
offered Rs.12 Crores as full and final settlement of dues towards the bank
loan and the plaintiff paid Rs.1,20,00,000/- as mandatory upfront amount.
After paying bank dues, the balance sale consideration of Rs.8,70,00,000/-
was to be paid to defendant No.1 at the time of registration of the sale deed.
In pursuance to agreement dated 13.08.2021, the plaintiff had again paid
Rs.30 Lakhs to defendants No.1 to 3. Thus, defendants No.1 to 3 had
received a sum of Rs.1,90,00,000/- from the plaintiff as part sale
consideration. Then plaintiff later received a legal notice dated 25.03.2022
from defendant No.1 vide which defendant No.1 tried to resile from its
obligations and sent a demand draft of Rs.30,00,000/- in favour of the
plaintiff to avoid the performance of agreement to sell dated 13.08.2021,
alleging that on account of rejection of one time settlement offer by the
bank, the agreement to sell stands frustrated. The plaintiff sent a reply dated
30.03.2022, denying the contentions raised in the notice and returning the
original demand draft of Rs.30,00,000/- to defendants No.1 to 3. It has been
alleged that there was no such condition in the said agreement to sell that in
the event of rejection of one time settlement from the concerned bank, the
agreement to sell would be considered as rescinded/ revoked. It was averred
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that defendants No.1 to 3 have unlawfully threatened to terminate the
agreement to sell dated 13.08.2021 and to create third party rights in favour
of the said property. There was no reason whatsoever for defendants No.1 to
3 to seeks to cancel/ terminate the said agreement and the acts of defendants
No.1 to 3 are clearly illegal, malafide and malicious. It was alleged that
defendants No.1 to 3 intend to enter into agreement with third parties in
respect of the said plot and try to defeat the legitimate rights and interest of
the plaintiff in the said property. Upon inquiry, the plaintiff came to know
that defendants No.1 to 3 are negotiating a fresh transaction in respect of the
said property in question with certain third parties and defendants No.1 to 3
are likely to create third party rights and interest in the suit property and are
unnecessarily taking the cover of defendant No.4 and some alleged
proceedings before the Company Law Board. In case defendants No.1 to 3
succeed in creating third party rights and interest in the said plot, in that
event the plaintiff shall suffer irreparable loss and injury. Defendants No.1
to 3 have finally refused to agree to the reasonable, just and bonafide
request of the plaintiff. It was submitted that the plaintiff has always been
ready and willing and is still ready and willing to perform its part of
contract. Hence, the present suit was filed by the petitioner/ plaintiff.
3. Alongwith the suit, the plaintiff also filed an application for
interim injunction for restraining defendants No.1 to 3 from selling,
alienating, encumbering or charging the suit property or from making any
kind of lien on the suit property in favour of any third person till the
pendency of the suit. The trial Court vide the impugned order dated
19.07.2022, allowed the aforesaid interim injunction application. Feeling
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aggrieved against the said order, the appellants/ defendants No.1 to 3 have
preferred the appal before the Appellate Court, Gurugram, which was
allowed vide order dated 06.09.2022. Aggrieved against the said order of
the Appellate Court, the present revision petition has been filed.
4. Learned counsel for the revision petitioner has contended that
the Appellate Court by misinterpreting various clauses of agreement to sell
dated 13.08.2021 has erroneously held that the agreement was contingent in
nature and the respondents are unable to perform as the one time settlement
offer of the respondents has been rejected by the bank and performance of
the contract was solely dependant on this aspect. The rejection of one time
settlement offer cannot be construed as an impossible event which would
make the contract void and a new offer can be made by any of the parties
and contract can be enforced. He has contended that respondents No.1 to 3
continued to accept payment from the petitioner, even after the rejection of
the one time settlement offer, which was rejected on 20.12.2021.
Respondents No.1 to 3 duly received sum of Rs.5,00,000/- from the
petitioner on 27.12.2021, against due receipt. He has argued that it is an
admitted position and fact that the sole responsibility of settling the loan
and removing the lien of the bank, which existed over the property in
question, was upon respondents No.1 to 3, which was very categorically
made part of the agreement and no other meaning or interpretation can be
assigned to the same. He has urged that it is of utmost importance till the
dispute between the parties is settled, the respondents be restrained from
creating any third party interest over the suit property, as it would defeat the
whole purpose of filing the suit and respondents No.1 to 3 cannot be
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allowed to rescind the agreement unilaterally, just in order to serve their
purpose of unjust enrichment. He has submitted that findings of the
Appellate Court are inconsonance with the legal and factual position on
record and the impugned judgment is not sustainable in the eyes of law. In
support of his contention, he has relied upon Smt. Nirmal vs. Lakhpat
Singh, 2001(4) R.C.R. (Civil) 164; Maharwal Khewaji Trust (Regd.),
Faridkot vs. Baldev Dass, 2004(4) R.C.R. (Civil) 760 and M/s J.P.
Builders and another vs. A. Ramadas Rao and another, 2011(1) SCC
429.
5. On the other hand, it has been contended by learned counsel for
the respondents that with the rejection of the One Time Settlement offer by
their banker, the respondents had no further choice or option but to
terminate the agreement to sell in question, as without the One Time
Settlement, the appellants/defendants No.1 to 3 had no right, title or interest
to execute a transfer deed in favour of the respondents or any other party.
The termination of the agreement was not predicated or dependent upon the
respondents, but on the contrary dependent and predicated on the successful
acceptance of the One Time Settlement by the bank. He has contended that
the property in question is a mortgaged property and cannot be sold without
the consent of the mortgagee. The petitioner/plaintiff was well aware and
informed of such mortgage as is apparent from the agreement to sell. It was
in categorical terms recorded in the agreement that the rights of petitioner/
plaintiff fructified/came into existence only and upon the acceptance of the
One Time Settlement by M/s Punjab National Bank and all the further
proceedings were subsequent to the approval of the One Time Settlement
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between the respondents/defendants and their banker. The entire amount as
paid by petitioner/plaintiff was duly returned and refunded by the bank and
the respondents, after receiving the fund made by the bank, the petitioner
deliberately and intentionally refused to encash the demand draft provided
by the respondents returning the same received under the agreement to sell.
He has contended that a well reasoned order has been passed by the
Appellate Court, Gurugram and the present revision petition is liable to be
dismissed. In support of his contentions, he has placed reliance upon
Mardia Chemicals Ltds. vs. Union of India and others, (2004) 4
Supreme Court Cases 311 and P. Mohanraj and others vs. Shah
Brothers Ispat Private Limited, (2021) 6 Supreme Court Cases 258.
6. I have heard learned counsel for the parties and have gone
through the relevant record.
7. The perusal of agreement to sell dated 13.08.2021 reveals that
the sale consideration was fixed as Rs.21 Crores and Rs.30 Lakhs was the
earnest amount. The petitioner, who was second party i.e. M/s Lamba
Exports Private Limited, paid Rs.1,20,00,000/- to the bank with the offer
letter for approval of One Time Settlement. It was mentioned in the
agreement to sell that M/s Dhir Global has offered a sum of Rs.12 crores as
full and final settlement of the dues towards the bank, therefore, on the basis
of the above said offer, the second party i.e. M/s Lamba Exports has paid a
sum of Rs.1,20,00,000/- as mandatory upfront amount. Clause 4 and 5 of the
agreement to sell are relevant clauses which are reproduced as under:-
"4. That after paying Bank dues of Rs.12 Crores to the bank
as per the OTS, the balance sale consideration, amount of
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Rs.8,70,00,000/- shall be paid to the first party at the time of
registration of sale deed.
5. That once O.T.S. (one time settlement) has been arrived
between the P.N.B., first party and second party and the O.T.S.
shall be signed by the P.N.B. Bank, first party and the second
party than payment of balance consideration amount shall be
paid by the second party to the bank on behalf of the first party
within 90 days."
8. The Appellate Court has rightly held that from the aforesaid
clauses 4 and 5 manifest that the agreement to sell itself is predicated. This
Court does not agree with the contention of learned counsel for the
petitioner that there is nothing in the agreement that it will be subject to
acceptance of One Time Settlement proposal. Rather the performance of
terms of the agreement are contingent, upon the bank accepting the One
Time Settlement offer. Admittedly, the bank is not a party to the agreement
to sell. When the property in question is mortgaged with the bank and is a
secured asset, then without there being any acceptance of One Time
Settlement by the bank, vendor/respondents/defendants are not capable for
passing of the title and title cannot be transferred without the prior written
consent of the bank. Thus, the agreement to sell is a contingent agreement
depending upon the obtaining of the approval from the bank. The perusal of
agreement to sell reveals that it has been clearly written in the agreement
that once the One Time Settlement is arrived between Punjab National
Bank, the vendor and the vendee and the One Time Settlement is signed by
the bank, the vendor and vendee, only then the balance sale consideration
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amount shall be paid by the vendee to the bank on behalf of the vendor. The
Appellate Court has rightly held that when the performance of the core
terms of the agreement are dependent upon the approval of a third party, the
agreement to sell is nothing but a contingent agreement, the performance of
which is uncertain because of un-controlable circumstances and without the
bank's approval to the One Time Settlement, the contract cannot be
concluded. If the petitioner/plaintiff has made payment of earnest money
and tendered Rs.1,20,00,000/- as upfront amount for the One Time
Settlement to the bank, it does not make a prima facie case in favour of the
petitioner/plaintiff. The Appellate Court has rightly held that petitioner/
plaintiff has a right for recovery of the amounts given in pursuance to the
agreement to sell, but he cannot insist for specific performance of agreement
to sell, the performance of which has become impossible, as the bank has
refused to accept the One Time Settlement. By restraining the alienation of
the suit property, the bank/respondent No.2 cannot be stopped from
proceeding to realize the outstanding amount from the petitioner by
liquidating the secured assets i.e. the suit property.
9. The case law cited by learned counsel for the petitioner is not
applicable to the facts of case in hand. In M/s J.P. Builders' case (supra), the
clauses of the agreement in that case, did not insist the sale deed to be
executed only after acceptance of One Time Settlement proposal by the
bank. The vendors had agreed to sell the property, to execute the sale deed
after discharge of the mortgage in favour of the defendants and it was only
execution of the sale deed, which was postponed to a future date. Moreover,
in the said case, it being the contingent contract was not an issue before the
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Trial Court and no such plea has been raised in the written statement. So
after considering that plaintiff had proved his readiness and willingness and
financial ability to complete the sale transaction, the plaintiff was held
entitled to specific performance of the contract.
10. Thus, there being no illegality or infirmity in the impugned
order no interference therewith is called for while exercising the revisional
jurisdiction. The present revision petition being bereft of any merits stands
dismissed.
11. All pending applications, if any, also stand disposed of
accordingly.
12. Nothing expressed hereinabove shall be construed as an
expression on the merit of the case.
(SUKHVINDER KAUR)
JUDGE
06.05.2024.
komal
Whether speaking/ reasoned : Yes/ No
Whether Reportable : Yes/ No
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