IN THE HIGH COURT OF DELHI AT City (High Court place)
(APPELLATE CIVIL JURISDICTION)
FAO(OS) (COMM.) NO. FAO number OF 2024
IN THE MATTER OF:
Appellant's name: APPELLANT
VERSUS
First respondent's name PVT. LTD. & OTHERS: RESPONDENTS
INDEX
| Sl. No. | Particulars | Page No. |
|---|
| 1. | e-Court Fee | |
| 4. | Certificate pertaining to filing of the entire court record | |
| 6. | List of Dates and Events | |
| 8. | Memorandum of Appeal under Section 13(1) of the Commercial Courts, Commercial Division and Commercial Appellate Division of the High Courts Act, 2015 read with Section 37(2) of the Arbitration and Conciliation Act, 1996 and Section 10 of the Delhi High Court Act, 1966, against the impugned order dated Date of impugned order passed in Arbitration Case No. Arbitration case number by the Ld. Arbitral Tribunal, along with the supporting affidavit. | |
| 9. | Annexure P-1: Copy of the impugned order dated Date of impugned order passed by the Ld. Arbitral Tribunal in Arbitration Case No. Arbitration case number. | |
| 10. | Annexure P-2: Copy of Description of Annexure P-2 | |
| 11. | Annexure P-3: Copy of Description of Annexure P-3 | |
| 12. | Annexure P-4: Copy of Description of Annexure P-4 | |
| 13. | Application under Section 151 of the Code of Civil Procedure, 1908, seeking exemption from filing original/certified copies, with true typed copies of improperly formatted, left-margin and dim documents, along with the supporting affidavit. | |
DELHIAppellant
THROUGH
DATED: Date of signing
Counsel's name
COUNSEL FOR THE APPELLANT
Counsel's address / chamber
Mobile No.: Counsel's mobile number
Email: Counsel's email address
[Note: It is stated that the Synopsis and List of Dates in the present matter run into Number of pages of synopsis pages, which, in the facts and circumstances of the present case, cannot be curtailed or shortened any further. It is, therefore, most humbly prayed that the present matter may kindly be listed, as it is, before the Hon'ble High Court.]
IN THE HIGH COURT OF DELHI AT City (High Court place)
(APPELLATE CIVIL JURISDICTION)
FAO(OS) (COMM.) NO. FAO number OF 2024
IN THE MATTER OF:
Appellant's name: APPELLANT
VERSUS
Respondents' name: RESPONDENTS
NOTICE OF MOTION
To,
The Respondents
Respected Sir,
Please find enclosed a copy of the above-mentioned appeal, which is being filed before this Hon'ble Court on Date of filing of appeal and which is likely to be listed on an appropriate date thereafter, in accordance with the directions of this Hon'ble Court. Please take notice accordingly.
DELHIAppellant
THROUGH
DATED: Date of signing
Counsel's name
COUNSEL FOR THE APPELLANT
Counsel's address / chamber
Mobile No.: Counsel's mobile number
Email: Counsel's email address
IN THE HIGH COURT OF DELHI AT City (High Court place)
(APPELLATE CIVIL JURISDICTION)
FAO(OS) (COMM.) NO. FAO number OF 2024
IN THE MATTER OF:
Appellant's name: APPELLANT
VERSUS
Respondents' name: RESPONDENTS
URGENT APPLICATION
To:
The Deputy Registrar,
High Court of Delhi.
Respected Sir,
Kindly treat the accompanying appeal and applications as urgent, in accordance with the Rules of this Hon'ble High Court. The grounds of urgency are as enumerated in the accompanying appeal.
DELHIAppellant
THROUGH
DATED: Date of signing
Counsel's name
COUNSEL FOR THE APPELLANT
Counsel's address / chamber
Mobile No.: Counsel's mobile number
Email: Counsel's email address
IN THE HIGH COURT OF DELHI AT City (High Court place)
(APPELLATE CIVIL JURISDICTION)
FAO(OS) (COMM.) NO. FAO number OF 2024
IN THE MATTER OF:
Appellant's name: APPELLANT
VERSUS
Respondents' name: RESPONDENTS
CERTIFICATE
That the Appellant has filed the complete paper book/record along with the present Memorandum of Appeal.
DELHIAppellant
THROUGH
DATED: Date of signing
Counsel's name
COUNSEL FOR THE APPELLANT
Counsel's address / chamber
Mobile No.: Counsel's mobile number
Email: Counsel's email address
IN THE HIGH COURT OF DELHI AT City (High Court place)
(APPELLATE CIVIL JURISDICTION)
FAO(OS) (COMM.) NO. FAO number OF 2024
IN THE MATTER OF:
Appellant's name: APPELLANT
VERSUS
First respondent's name PVT. LTD. & OTHERS: RESPONDENTS
MEMO OF PARTIES
M/S. Appellant company's name
Having its registered office at:
Appellant's registered office address
Email: Appellant's registered office email
Regional Office at:
Appellant's regional office address
Email: Appellant's regional office email: APPELLANT
VERSUS
1. M/S. First respondent company's name PVT. LTD.,
Having its registered office at:
First respondent's registered office address
Also at:
First respondent's other address
Email ID: First respondent's email
2. Second respondent company's name
Having its registered office at:
Second respondent's registered office address
Also at:
Second respondent's other address
Email ID: Second respondent's email
3. Third respondent's name,
S/o Third respondent's father's name
R/o Third respondent's residence address
Also at:
Third respondent's other address
Email ID: Third respondent's email
4. Fourth respondent's name
S/o Fourth respondent's father's name
R/o Fourth respondent's residence address
Also at:
Fourth respondent's other address
Email ID: Fourth respondent's email
5. Fifth respondent's name
R/o Fifth respondent's other address
Email ID: Fifth respondent's email
6. Sixth respondent's name
At: Sixth respondent's address
Email: Sixth respondent's email
7. Seventh respondent's name
A partnership concern
Having Seventh respondent's partners' names as its partners
Address: Seventh respondent's address line 1,
Seventh respondent's address line 2
Email: Seventh respondent's email
8. Eighth respondent's name
Eighth respondent's address
Email: Eighth respondent's email
9. Ninth respondent's name
Ninth respondent's address
Email: Ninth respondent's email
10. Tenth respondent's name
Tenth respondent's address
Email: Tenth respondent's email
11. Eleventh respondent's name
S/o Eleventh respondent's father's name
Eleventh respondent's address
Email: Eleventh respondent's email
12. Twelfth respondent's name
W/o Twelfth respondent's husband's name
R/o Twelfth respondent's address
Email ID: Twelfth respondent's email
13. Thirteenth respondent's name
W/o Thirteenth respondent's husband's name
Thirteenth respondent's address
Email: Thirteenth respondent's email
14. Fourteenth respondent's name
W/o Fourteenth respondent's husband's name
R/o Fourteenth respondent's address
Email: Fourteenth respondent's email
15. Fifteenth respondent's name
W/o Fifteenth respondent's husband's name
Fifteenth respondent's address
Email ID: Fifteenth respondent's email
16. Sixteenth respondent's name
Sixteenth respondent's address
Email: Sixteenth respondent's email
17. Seventeenth respondent's name
Seventeenth respondent's address line 1,
Seventeenth respondent's address line 2
Email: Seventeenth respondent's email: RESPONDENTS
DELHIAppellant
THROUGH
Counsel's name
COUNSEL FOR THE APPELLANT
Counsel's address line 1,
Counsel's address line 2
Mobile: Counsel's mobile number
Email: Counsel's email address
DATED: Date of signing
IN THE HIGH COURT OF DELHI AT City (High Court place)
(APPELLATE CIVIL JURISDICTION)
FAO(OS) (COMM.) NO. FAO number OF 2024
IN THE MATTER OF:
Appellant's name: APPELLANT
VERSUS
Respondents' name: RESPONDENTS
: RESPONDENTS
MEMORANDUM OF APPEAL UNDER SECTION 13(1) OF THE COMMERCIAL COURTS, COMMERCIAL DIVISION AND COMMERCIAL APPELLATE DIVISION OF HIGH COURTS ACT, 2015 READ WITH SECTION 37(2) OF THE ARBITRATION & CONCILIATION ACT, 1996 READ WITH SECTION 10 OF THE DELHI HIGH COURT ACT, 1966 AGAINST THE IMPUGNED ORDER DATED Date of impugned order PASSED BY THE LEARNED ARBITRAL TRIBUNAL IN ARBITRATION CASE NO. Arbitration case number
MOST RESPECTFULLY SHOWETH:-
1.That the present Appeal is being filed by the Appellant under Section 37(2) of the Arbitration & Conciliation Act, 1996, as amended by the Arbitration and Conciliation (Amendment) Act, 2015 (the "Act"), against the Order dated Date of impugned order passed by the Ld. Arbitral Tribunal in Arbitration Case No. Arbitration case number (the "Impugned Order"). Vide the Impugned Order, the Ld. Arbitrator has erroneously, and in grave error of law, dismissed the application filed by the Appellant under Section 17 of the Act. A copy of the Impugned Order dated Date of impugned order is filed herewith and marked as ANNEXURE P-1.
2.The Appellant was constrained to initiate arbitration proceedings before the Ld. Arbitrator, inter alia, seeking directions towards the security, protection and preservation of the subject matter of the dispute, and to restrain the Respondents from selling, transferring, gifting, in any manner alienating and/or creating any third-party rights with respect to the properties identified hereinafter, pursuant to the specific liberty granted to the Appellant by way of the judgment dated Date of the Supreme Court judgment of the Hon'ble Supreme Court of India in Miscellaneous Application No. Supreme Court M.A. number in Civil Appeal No. Supreme Court civil appeal number of 2015, titled "Title of the Supreme Court judgment" (the "Judgment").
3.Brief facts of the case are as follows:
4.That the Appellant is a public limited company incorporated under the Companies Act, 1956, having its registered office at Appellant's registered office address and its regional office at Appellant's regional office address. The Appellant Company is a fully integrated real estate development company engaged in all activities associated with the development of residential and commercial real estate. Over the years, the Appellant has acquired considerable goodwill, which is being disturbed by the acts of Respondents No. 1 to 5, causing severe reputational loss to the Appellant.
5.That Respondent No. 1 (earlier known as First respondent's earlier name) and Respondent No. 2 are companies incorporated under the Companies Act, 1956, and are engaged in the business of real estate. Respondent No. 3 and one Late Name of deceased predecessor landowner are the original owners of the land parcel admeasuring Area of the original land parcel, being and forming part of the Subject Property. Respondents No. 4 and 5, namely, Fourth respondent's name and Fifth respondent's name, are the legal heirs of the deceased Name of deceased predecessor landowner.
6.That Respondents No. 6 to 17 are third parties to whom flats have been allocated by Respondent No. 1 in terms of the clauses of the Development Agreement, as detailed in the Additional Affidavit dated Date of Additional Affidavit filed in the Supreme Court filed by Respondent No. 1 in the Hon'ble Supreme Court in M.A. No. Supreme Court M.A. number IN CIVIL APPEAL NO. Supreme Court civil appeal number. With respect to the said transferred flats/units, it is submitted that Respondents No. 1 and 2 have transferred certain units in terms of Recital K of the Development Agreement to Respondents No. 6 to 9, and that certain other units have been transferred in the names of Respondents No. 10 to 17, who are either Directors of Respondent No. 1 and/or Respondent No. 2, or family members of such Directors. It is further submitted that the details of Respondents No. 16 and 17 have been enumerated in the Additional Affidavit filed by Respondent No. 1 in the Hon'ble Supreme Court in M.A. No. Supreme Court M.A. number IN CIVIL APPEAL NO. Supreme Court civil appeal number. It is respectfully submitted that the said units are held by and/or on behalf of Respondent No. 1 by Respondents No. 6 to 17.
7.That Respondents No. 1 to 5 (with Name of deceased predecessor landowner acting on behalf of Respondents No. 4 and 5) executed the Development Agreement in favour of the Appellant to grant and assign the exclusive and irrevocable development rights pertaining to the Subject Property, i.e., all the pieces and parcels of land bearing Land B particulars (khasra/plot numbers) (hereinafter referred to as "Land B"). Land A and Land B, hereinafter collectively referred to as the "Subject Property", are situated at Village Village of subject property.
8.That Land A was acquired by Respondent No. 1 on Date of acquisition of Land A by Respondent No. 1.
9.That on Date of the acquisition notification, the State of Haryana issued acquisition proceedings to acquire Area of land sought to be acquired under the notification of land under Section 4 of the Land Acquisition Act, 1894 (the "Acquisition Notification"). It is submitted that Land A and Land B (i.e., collectively, Total area of Land A and Land B) were included in the Acquisition Notification.
10.That on Date of the Collaboration Agreement, despite the Acquisition Notification, Respondent No. 3 and Name of deceased predecessor landowner (i.e., the predecessor of Respondents No. 4 and 5) entered into a collaboration agreement with Respondent No. 2 for the development of Land B (the "Collaboration Agreement"). The Collaboration Agreement specifically provided for the assignment of the rights thereunder to third parties. A copy of the Collaboration Agreement dated Date of the Collaboration Agreement is marked herewith as ANNEXURE A.
11.That on Date of the Development-cum-Collaboration Agreement, pursuant to the aforementioned Collaboration Agreement, Respondent No. 2 (on behalf of Respondents No. 3, 4 and 5) entered into a development-cum-collaboration agreement with Respondent No. 1 in respect of Land B (the "Development-cum-Collaboration Agreement"). As consideration under the Development-cum-Collaboration Agreement, Respondent No. 1 agreed to develop Land A and Land B collectively as a residential housing project. A copy of the Development-cum-Collaboration Agreement dated Date of the Development-cum-Collaboration Agreement is marked herewith as ANNEXURE B. Thereafter, a Supplemental Agreement dated Date of the Supplemental Agreement was executed between Respondent No. 2, Respondent No. 3 and the predecessor of Respondents No. 4 and 5. A copy of the Supplemental Agreement dated Date of the Supplemental Agreement is marked herewith as ANNEXURE C.
12.That under the Development-cum-Collaboration Agreement, and a subsequent settlement agreement dated Date of the Settlement Agreement entered into between Respondents No. 1 to 5 (with Respondents No. 4 and 5 being represented by their predecessor, Name of deceased predecessor landowner), Respondents No. 2 to 5 were each entitled to receive, inter alia, 7% of the super built-up area in the residential housing project. A copy of the Settlement Agreement dated Date of the Settlement Agreement is marked herewith as ANNEXURE D.
13.That on Date of issue of the license, License No. License number was issued by the Department of Town and Country Planning of the State of Haryana ("DTCP") in the names of Respondents No. 1 to 3 and Name of deceased predecessor landowner (being the predecessor of Respondents No. 4 and 5), in respect of the entire composite area of Total area of Land A and Land B (i.e., Land A and Land B).
14.That on Date on which acquisition proceedings were dropped, the land acquisition proceedings were dropped by the State of Haryana. After the final decision of the State of Haryana to drop the acquisition on Date on which acquisition proceedings were dropped, on Date of transfer of development rights to the Appellant, the four licensees transferred their rights to develop the entire Total area of Land A and Land B (i.e., Land A and Land B) to the Appellant.
15.More particularly, on Date of execution of the Development Agreement, the Appellant executed the Development Agreement with Respondents No. 1 to 3 and Name of deceased predecessor landowner (the predecessor of Respondents No. 4 and 5), for the construction and development of a group housing colony as per License No. License number on the said Total area of Land A and Land B of land. In view of all the representations and warranties contained in the Development Agreement, including those concerning the unimpeachable title of Respondents No. 1 to 5 with respect to the Subject Property, and after obtaining all requisite permissions, the Appellant commenced and completed the construction of the said project, comprising a total of Total number of units in the project residential units (i.e., Number of residential units residential; Number of EWS units EWS and Number of commercial units commercial) and one nursery school. Subsequently, third-party rights have been created over the said constructed lands.
16.Out of the 567 units constructed and developed under the name 'Project name', the allocation of flats/benefits was carried out as follows:
(i)the original land-owners (legal representatives of Name of original land-owner, i.e., Respondents No. 4 and 5) received, inter alia, the following benefits:
(a)A total of 26 flats in the project (valued at approximately Rs. 26 crore).
(b)Three plots of land in City where the three plots are located (having a combined market value of approximately INR 11 crores). One plot bearing No. Plot number (first plot), admeasuring 220 sq. metres, was allotted in the name of Name of developer entity (Respondent No. 3)/Respondent No. 3, and two plots bearing Nos. Plot number (second plot) and Plot number (third plot) at Location of the second and third plots, admeasuring 135 sq. metres each, were allotted to the share of the legal heirs of Name of original land-owner, i.e., Respondents No. 4 and 5. Pertinently, the market value of these three plots as on the date of the present Appeal is approximately Rs. 11 crores.
(c)Waiver of car parking charges, club membership and other similar charges, valued at approximately INR 2 crores.
(ii)Respondents No. 1 and 2 received a total of Number of flats received by Respondents No. 1 and 2 flats in the said project (valued at approximately Rs. Value in crores of flats received by Respondents No. 1 and 2 crores).
(iii)The Appellant received 453 units, comprising 361 residential flats, 84 EWS units, 8 shops and a nursery school.
It is a matter of record that the Appellant incurred a total cost of INR 308.61 crores (inclusive of other minor development costs) for the development of the said project, and the estimated profit before tax on the units sold as on 31.01.2021 was only around INR 16.70 crores.
17.Nearly 18 months after the execution of the Development Agreement, on 19.12.2011, certain farmers/land-owners preferred a writ petition before the Hon'ble High Court of Punjab and Haryana, being CWP No. 23769 of 2011, inter alia praying as follows:
"a) Issue writ direction or order, especially in the nature of certiorari, quashing the entire action of the respondents who invoked Sections 4 & 6 for an alleged public purpose but ultimately compelled the petitioners to be divested of their valuable and fertile land at throwaway prices, under the threat of acquisition, to private persons; and consequently, after issuance of the notification under Section 6 and at the stage of final proceedings under Section 9, the acquisition was withdrawn with fraudulent intentions after the land had been purchased by private builders in active connivance with State functionaries; further, the entire acquisition proceedings were initiated mala fide, illegally and in violation of the provisions of the Land Acquisition Act, Land Acquisition Act year (null or 1894)."
18.Three years thereafter, on 15.12.2014, the Hon'ble High Court of Punjab and Haryana, after hearing all the parties, dismissed the writ petition. A copy of the order dated 15.12.2014 passed by the Hon'ble High Court of Punjab and Haryana is annexed hereto as Annexure-E.
19.Aggrieved by the judgment of the Hon'ble High Court of Punjab and Haryana, various petitions were filed before the Hon'ble Supreme Court of India challenging the decision of the Hon'ble High Court dated 15.12.2014.
20.On 12.03.2018, the Hon'ble Supreme Court set aside the judgment of the Hon'ble High Court dated 15.12.2014 (hereinafter referred to as the "SC Judgment"), holding and directing as under:
"40. There are certain other elements which need attention at this stage. The Act now stands replaced by 'The Right of Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013'. In terms of Section 24(J)(b) of the said 2013 Act, where an award had been made under Section 11 of the Act, the proceedings under the provisions of the Act would continue as if the Act had not been repealed. Thus, even if a direction is passed that an award be deemed to have been made on 26.08.2007, the provisions of the Act would still continue to operate in respect of such acquisition in question. There is however, one point which may pose some difficulty. Out of 688 acres of land which was covered by Declaration under Section 6 of the Act in the present matter, majority of the lands were taken over by builders/private entities and as such presently the concerned landholders are not in possession of their holdings. However, in case of certain other lands where no transactions were entered into, as a result of dropping of the acquisition, those land holders are presently in occupation without there being any cloud of acquisition. If we restore status quo ante where the entirety of 688 acres of land continues to be under acquisition, the interest of such landholders is bound to be put to some prejudice. Those landholders are not parties to this litigation, nor their interest in any manner, is represented in the proceedings. They would now be visited with the prospect of losing their holdings. Those who sold away their holdings to the builders/private entities after the acquisition was initiated, naturally would not be prejudiced at all nor can the builders/private entities who purchased the land after the acquisition was initiated can put up a plea of prejudice. However, those who had never sold the holdings and continued to face the prospect of acquisition will certainly be put to prejudice. It is possible that some such landholders may have sold away their holdings or may have applied and secured licences for construction. In cases, where third party interests have thus intervened, there would be some more concern.
41.The relief to be granted in the matter has therefore to take care of all the aforesaid aspects. On one hand, the real and substantial relief to be granted in the matter would be not just restoring the status quo ante and invalidating of the transactions but the relief ought to be that the process of acquisition is taken to its logical end and the objective that said acquisition was to achieve must be sub-served. On the other hand, even while passing appropriate directions in the nature that there was a deemed Award, the interest of those landholders who had not parted with their holdings and had faced the acquisition and had not participated in the proceedings ought to be secured. Further, the interest of purchasers of individual apartments is also required to be protected. It is axiomatic that wherever a superior Court finds that the exercise of power by the executive was mala fide or that there was fraud of power, the full and substantial relief must be granted. The principles of restitution and the concept of unjust enrichment as explained in the cases referred to hereinabove show that no person who directly or indirectly was a party to the fraud of power shall be allowed to reap or retain any unjust enrichment. Though it is through the acts on part of the landholders that the builders/private entities were brought on the scene, we do not hold them to be pari delicto along with the builders/private respondents. But at the same time they cannot be given the benefit of annulment of transactions and restoration of their holdings. The greater victim in the matter was the public interest. The landholders in any case had received consideration which was greater than what was awarded in the Awards dated 09.03.2006 and 24.02.2007, which were the most proximate awards in terms of time. However, even when we propose to take the matter to its logical end and say that there was a deemed award, those who had not sold away their holdings and had not in any manner, either directly or indirectly, tried to jeopardize the process of acquisition cannot at this length of time be subjected to any prejudice. We will therefore have to exclude that body of landholders who had not transferred their holdings, unlike the writ appellants and similarly situated landholders, and so also the purchasers of individual apartments, from the width of our directions. Though fraud vitiates every resultant action and on that principle every beneficiary/purchaser in a subsequent transaction must restore such benefit, an exception has to be made in favour of individual purchasers of flats or apartments, who are being left undisturbed while moulding the relief.
42.Having bestowed our attention to the various competing elements and issues, we deem it appropriate to direct:
42.2 The decision dated 24.08.2007 was taken at a time when the matters had already been posted for pronouncement of the award on 26.08.2007. As all antecedent stages and steps prior thereto were properly and validly undertaken, and as the decision dated 24.08.2007 has been held by us to constitute a fraud on power, it is directed that an Award shall be deemed to have been passed on 26.08.2007 in respect of lands:
(i)which were covered by the declaration under Section 6 in the present case; and
(ii)which were transferred by the landholders during the period from 27.08.2004 to 29.01.2010. The lands which were not transferred by the landholders during the said period are not governed by these directions."
(Emphasis supplied)
21.The Hon'ble Supreme Court, in paragraph 42.2 of the SC Judgment (Rameshwar Vs State of Haryana: 2018 6 SCC 215), invalidated all transfers effected during the Suspect Period, namely, from the date of publication of the notification under Section 4 to the date of publication of the State's decision to revoke the acquisition (from 27.08.2004 to 29.01.2010). It is a matter of record that the Collaboration Agreement and the Development-cum-Collaboration Agreement entered into between Respondents No. 1 to 5 were all executed during the said Suspect Period. Pertinently, License No. DTCP licence number of 2008, issued to Respondents No. 1 to 5 by the DTCP, was also obtained during the Suspect Period.
22.The Appellant submits that during the intervening period between the execution of the Development Agreement on 24.06.2010 and the SC Judgment on 12.03.2018, the Appellant, after obtaining all requisite permissions, commenced and completed the construction of the said Project (comprising a total of 475 residential flats, 84 EWS flats, 08 shops and 1 Nursery School) on the Subject Property. By Memo No. ZP-DTCP occupation certificate memo number dated 16.10.2014, the DTCP granted an occupation certificate in respect of the residential portions, EWS flats and shops of the said Project. An occupation certificate in respect of the community building and swimming pool was granted by the DTCP vide Memo No. DTCP community building certificate memo number on 19.06.2017. Copies of the occupation certificates dated 16.10.2014 and 19.06.2017 are marked as Annexure-F. A copy of the Hon'ble Supreme Court Judgment dated 21.03.2018 is marked as Annexure-G.
23.Pursuant to the SC Judgment, the State of Haryana, through HSIIDC, filed an application before the Hon'ble Supreme Court bearing I.A. No. Supreme Court I.A. number of 2019 in M.A. No. Supreme Court M.A. number of 2019 in C.A. No. Supreme Court civil appeal number of 2015, seeking clarification as to whether the term 'transfer' includes only conveyance or formal transfer of lands, or would also include parting with valuable developmental rights. A copy of the application bearing I.A. No. Supreme Court I.A. number of 2019 in M.A. No. Supreme Court M.A. number of 2019 in C.A. No. Supreme Court civil appeal number of 2015 is marked as Annexure-H.
24.That Respondent No. 1 filed an additional affidavit dated 03.11.2020 in I.A. No. Supreme Court I.A. number of 2019 in M.A. No. Supreme Court M.A. number of 2019 in C.A. No. Supreme Court civil appeal number of 2015. A copy of the additional affidavit dated 03.11.2020 filed by Respondent No. 1 before the Hon'ble Supreme Court in I.A. No. Supreme Court I.A. number of 2019 in M.A. No. Supreme Court M.A. number of 2019 in C.A. No. Supreme Court civil appeal number of 2015 is marked as Annexure-I.
25.On 21.07.2022, the Hon'ble Supreme Court delivered a Judgment concluding that the expression 'transfer' must be interpreted widely and not in a narrow or technical manner. Accordingly, in all cases where collaboration agreements were entered into, or developmental rights were parted with for valuable consideration, or where licences were applied for during the Suspect Period (i.e., from 27.08.2004 to 29.01.2010), the transactions would fall within the mischief of the expression 'transfer'.
26.It is in this context that the Hon'ble Supreme Court, in its Judgment — while (i) acknowledging that the Appellant was not a party to the transactions effected during the aforesaid Suspect Period; (ii) assigning financial liability upon all parties who were beneficiaries of the acquisition proceedings; and (iii) recording that construction of 567 units in total (i.e., 475 residential, 84 EWS and 8 commercial residential flats/apartments) had been undertaken by the Appellant — directed the Appellant to make an upfront payment of INR 67,36,30,000/- (Indian Rupees Sixty-Seven Crores Thirty-Six Lakhs and Thirty Thousand only) (i.e., the Principal Payment) to HSIIDC within six months from the date of the Judgment, i.e., on or before 20.01.2023, while categorically entitling the Appellant, and granting the Appellant liberty, to claim such proportionate sums from Respondents No. 1 to 5 in terms of the Development Agreement. In doing so, the Hon'ble Supreme Court protected the Appellant by categorically entitling it to recover the contractually agreed proportionate share of the Principal Payment from the Respondents.
27.In view of the above facts and circumstances, and of the agreed proportionate shares of ownership and liability set out in the Development Agreement entered into between the Appellant and the Respondents, it is submitted that, in accordance with the directions issued to and liberties granted to the Appellant under paragraph 42 of the Judgment, read in conjunction with Clause 3.1 of the Development Agreement, the Appellant is entitled to claim and receive 30% of the Principal Payment (amounting to INR 20,20,89,000/- (Indian Rupees Twenty Crores Twenty Lakhs and Eighty-Nine Thousand only)) from Respondents No. 1 to 5, as their proportionate contribution towards the monies directed to be paid upfront by the Appellant to HSIIDC on or before 20.01.2023.
28.Furthermore, a conjoint reading of Clause 5.5.2 (the Respondents' representation and warranty) and Clause 7.1 (indemnity) of the Development Agreement makes it evident that Respondent No. 1 has undertaken to indemnify the Appellant against any and all losses, expenses, claims, costs and damages suffered by, or which may arise in connection with, any litigation and proceedings of any nature in respect of the said Land. The Appellant's right to be indemnified against losses, expenses, claims and the like under the Development Agreement is unequivocal, and formed the very basis for entering into the Development Agreement. Accordingly, the Appellant is entitled to claim from the Respondents the Appellant's portion of the liability under paragraph 42 of the Judgment (i.e., 70% of the Principal Payment) towards HSIIDC, being INR 47,15,41,000/- (Indian Rupees Forty-Seven Crores Fifteen Lakhs and Forty-One Thousand only).
29.As stated above, the Appellant has incurred a total cost of INR 308.61 Crore (inclusive of other minor development costs yet to be incurred) towards the development of the said Project, and the estimated profit before tax from units sold as on 31.01.2021 was estimated at Rs. 16.70 Crores from the said project. A copy of the Chartered Accountant's certificate dated 05.02.2021 is marked as Annexure-J.
30.That HSIIDC has been demanding that the Appellant comply with the directions of the Hon'ble Supreme Court of India as set out in its Judgment dated 21.07.2022, and in this regard has issued demand letters dated 17.08.2022 and 27.09.2022. Copies of the HSIIDC letters dated 17.08.2022 and 27.09.2022 are marked as Annexure-K (Colly).
31.That the Appellant has also filed a Review Petition bearing Diary No. Supreme Court diary number in M.A. No. 50 of 2019 in Civil Appeal No. Supreme Court civil appeal number of 2015 before the Hon'ble Supreme Court. The same was dismissed vide Order dated 29.11.2022. A copy of the Hon'ble Supreme Court's Order dated 29.11.2022 in the Review Petition bearing Diary No. Supreme Court diary number in M.A. No. 50 of 2019 in Civil Appeal No. Supreme Court civil appeal number of 2015 is marked as Annexure-L.
32.In addition to the amounts specified hereinabove, the Appellant intends to claim further amounts from Respondents No. 1 to 5 attributable to, inter alia: (i) the loss of goodwill suffered by the Appellant and its brand 'Appellant's brand name'; (ii) amounts due and payable by Respondents No. 1 to 5 towards Common Area Maintenance payments for the period from 2015 till December, 2022; (iii) costs incurred by the Appellant in respect of the various litigations instituted against or involving the Appellant as a direct consequence of the fraudulent and conspiratorial conduct of Respondents No. 1 to 5, as elucidated above; (iv) the litigation costs already incurred by the Appellant to date; (v) recovery of the balance External Development Charges / Internal Development Charges; and (vi) other losses/damages, etc., which are presently under assessment by the Appellant.
33.The Appellant submits that in view of the aforesaid facts and circumstances, and the conduct of Respondents No. 1 to 5 which has been judicially determined to be fraudulent and conspiratorial, the Appellant strongly apprehends the imminent danger that the Respondents may evade their liabilities under the Development Agreement and may alienate or dispose of their immovable assets, or create third-party rights over such assets, in order to defeat the legitimate dues of the Appellant, and in particular any award passed in favour of the Appellant. The Appellant submits that if the Respondents are not restrained from selling, transferring or alienating their assets, the Appellant will be unable to recover its legitimate dues or any decree passed in its favour, and the arbitration proceedings will be reduced to a mere paper decree and an empty formality. A restraining order is essential to prevent the Respondents from rendering nugatory any final award of the arbitral tribunal. It is further submitted that, in furtherance of such direction and upon fulfilment of the conditions thereof, the Appellant shall continue to pursue the sale of the unsold flats and assets and recover its dues from the Respondents.
34.The Appellant submits that, to the best of its knowledge, the financial condition of Respondents No. 1 to 5 is precarious, and they do not possess adequate means to indemnify the Appellant, nor do Respondents No. 1 to 5 have any assets other than the unsold flats in the said Project with which to discharge their judicially determined and contractual liabilities towards the Appellant.
35.In view of the grave urgency, the Appellant is filing a petition under Section 9 of the Arbitration Act before the Hon'ble High Court of Delhi to protect the Appellant's interests during the intervening period, so that the Appellant's rights are not defeated by the Respondents in an illegal and unlawful manner. By order dated Date of arbitrator appointment order, the Ld. Arbitrator has been appointed by the Hon'ble High Court of Delhi. The Appellant therefore submits that the Respondents deserve to be injuncted from diverting any of their assets till the arbitral process is complete.
36.It is submitted that Clause 9 of the Development Agreement provides for arbitration in the event of any disputes and differences between the parties.
Clause 9 of the Agreement is as under:
"9. GOVERNING LAW AND DISPUTE RESOLUTION
9.1 The Agreement shall be governed by, and construed in accordance with, the laws of India.
9.2 In the case of any dispute, controversy or claim arising out of or in connection with this Agreement, including any question regarding its existence, validity, interpretation, breach or termination, between any of the Parties, such Parties shall first attempt to resolve such dispute or claim through discussions between senior executives or representatives of the disputing Parties.
9.3 If the dispute is not resolved through such discussions within 7 (Seven) days after one disputing Party has served a written notice on the other disputing Party requesting the commencement of discussions, such dispute shall be finally settled through arbitration in accordance with the Arbitration and Conciliation Act, 1996 as in force on the date hereof or any subsequent amendment thereof.
9.4 The venue of arbitration shall be Venue of arbitration and the language of the arbitration proceedings shall be English".
37.The Appellant submits that the officials of the Appellant met the officials of Respondent No. 1 on Date of meeting between Appellant and Respondent No. 1 officials and held further discussions on Date of further discussion, and pursuant thereto the Appellant issued a letter dated Date of demand letter to Respondents No. 1 to 5, in keeping with the abovementioned arbitration agreement between the parties and the Judgment of the Hon'ble Supreme Court, calling upon Respondents No. 1 to 5 to pay the abovementioned amounts and seeking to amicably close all disputes between the parties, bearing in mind that payment to Name of authority to whom payment was directed in terms of the Hon'ble Supreme Court's order had to be made by Deadline for making payment. The Appellant submits that seven days have passed since the issuance of the said letter and no response whatsoever has been received by the Appellant from the Respondents, which confirms the Appellant's apprehensions and further necessitates that this Hon'ble Court issue protective orders against the Respondents and in favour of the Appellant in the present matter. The Appellant submits that, in view of the above, pending the hearing and final disposal of the arbitration proceedings — which are yet to commence — it is just, necessary and in the interest of justice, and especially considering that the Appellant is required to make payment of Amount payable to the authority to Name of authority to whom payment was directed on or before Deadline for making payment, that the Respondents be restrained from selling, alienating or creating third-party interests over their share of the properties, and that status quo be maintained till the disposal of the arbitration proceedings. In accordance with Section 9 of the Act, the Appellant declares its intention to invoke the arbitration clause in the Development Agreement soon after the filing of the present petition, for, inter alia, the claims set out herein. A copy of the Appellant's demand letter dated Date of demand letter issued to the Respondents is marked as Annexure-L.
38.In the meanwhile, the representative of the Appellant met the officials of Name of authority to whom payment was directed on Date of meeting with authority officials, confirmed the payment of Amount payable to the authority to Name of authority to whom payment was directed, and sought bank account details for making the necessary remittance. The Appellant submits that the payment of Amount payable to the authority, as directed by the Hon'ble Supreme Court, is being remitted to the account of Name of authority to whom payment was directed, which provided the said account details on Date of meeting with authority officials. Copies of the emails exchanged between Name of authority to whom payment was directed and the Appellant on Date of meeting with authority officials are marked as Annexure-M.
39.On Date of reminder demand letter, the Appellant again issued a reminder demand letter to Respondents No. 1 to 5. A copy of the Appellant's reminder letter dated Date of reminder demand letter is marked as Annexure-N.
40.In these circumstances, the Appellant filed an application for interim relief on Date of interim relief application, but the same was dismissed by the Ld. Arbitral Tribunal without application of mind, which dismissal is impugned in the present Appeal.
41.In these circumstances, the Appellant is constrained to approach this Hon'ble Court for urgent interim relief. There is a possibility that, during the pendency of the dispute, the Respondents will dissipate their only assets, namely the unsold flats in the said Project and the Plots. The details of the unsold flats of the Respondents in Project name and the three Plots are set out in the list marked as Annexure-O. Further, the details of the said flats and plots also find mention in the Additional Affidavit dated Date of Appellant's Additional Affidavit filed by the Appellant, the Additional Affidavit dated Date of Respondents' Additional Affidavits of Respondent No. 3, the Additional Affidavit dated Date of Respondents' Additional Affidavits of Respondent No. 4 and the Additional Affidavit dated Date of Respondents' Additional Affidavits of Respondent No. 5, filed before the Hon'ble Supreme Court in M.A. No. Supreme Court M.A. number/2019 in Civil Appeal No. Supreme Court civil appeal number of 2015, a copy of which is marked as Annexure-P (Colly).
42.As is evident from the above narration of facts, the decisions of the Hon'ble Supreme Court and the provisions of the Development Agreement, the Appellant has a strong prima facie case in its favour. The balance of convenience lies entirely in favour of the Appellant for the reasons elucidated hereinabove. Furthermore, the Appellant submits that in case the interim orders as prayed for are not granted, the Appellant shall suffer irreparable loss and injury.
43.Thereafter, the Ld. Tribunal, vide the impugned Order dated Date of impugned order, was pleased to dismiss the Appellant's application under Section 17 of the Arbitration and Conciliation Act.
44.That in addition to the non-consideration of the aforesaid factual position by the Ld. Tribunal, it is submitted that the impugned Order is also liable to be set aside, inter alia, on the following, amongst other, grounds:
GROUNDS:-
A. Because the Ld. Arbitral Tribunal failed to appreciate that
B.Because the Ld. Arbitral Tribunal failed to appreciate that
C.Because the Ld. Arbitral Tribunal failed to appreciate that
D. Because the Ld. Arbitral Tribunal failed to appreciate that
45.That the Appellant craves leave to add to, amend, alter, modify and/or delete any of the aforesaid grounds as may be considered necessary in the facts and circumstances of the present case.
46.That the Appellant has not filed any other appeal before any other Court in respect of the reliefs claimed in the present appeal before this Hon'ble Court against the Impugned Order.
47.That the Appellant has no other efficacious remedy against the Impugned Order except to approach this Hon'ble Court by way of the present Appeal.
48.That the Appellant submits that all arguments raised in the present Appeal were raised before the Tribunal, and all documents relied upon formed part of the record before the Tribunal; no new arguments or documents are being presented in support of the present Appeal. The Appellant shall rely upon the documents, a list whereof is annexed to this Appeal.
49.That the Impugned Order was passed by the Ld. Arbitral Tribunal on Date of impugned order, and therefore this Hon'ble Court has the requisite jurisdiction to entertain the present Appeal.
50.That the present Appeal is within the period of limitation prescribed under Section 13 of the Commercial Courts, Commercial Appellate Division of High Courts Act, 2015.
51.That the requisite Court fee in respect of the present Appeal has been affixed.
PRAYER
In view of the aforesaid submissions, it is most respectfully prayed that this Hon'ble Court may graciously be pleased to:
a)Allow the present Appeal and set aside the Impugned Order dated Date of impugned order, passed by the Ld. Arbitral Tribunal in Arbitration Case No. Arbitration case number (DIAC);
b)Allow the Interim Application of the Appellant under Section 17 of the Arbitration and Conciliation Act;
c)Pass such further or other orders as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case, in favour of the Appellant and against the Respondents.
DELHIAppellant
THROUGH
DATED: Date of filing
Counsel's name
COUNSEL FOR THE APPELLANT
Counsel's address / chamber
Mobile No. Counsel's mobile number
Email ID: Counsel's email address
VERIFICATION
Verified at Place of verification on this Date of verification that the contents of the accompanying Appeal are based upon the records of the present case, and the legal submissions made therein are as per the legal advice received, which I believe to be correct; nothing material has been concealed therefrom, nor is any part of it false.
Appellant
IN THE HIGH COURT OF DELHI AT City (High Court place)
(APPELLATE CIVIL JURISDICTION)
FAO(OS) (COMM.) NO. FAO number OF 2024
IN THE MATTER OF:
Appellant's name: APPELLANT
VERSUS
Respondents' name: RESPONDENTS
AFFIDAVIT
Affidavit of Deponent's name, Wife of Deponent's husband's name, aged about Deponent's age years, Authorised Signatory of Company of which the deponent is authorised signatory, having its office at Office address of the deponent's company, presently residing at Deponent's present address, do hereby solemnly affirm and declare as under:-
1.That I am the Appellant in the above case and am well conversant with the facts and circumstances of the present proceedings on the basis of the records maintained by the Appellant company in the regular course of its business, and as such I am competent to swear this affidavit.
2.That I have read and understood the contents of the accompanying Appeal, which has been drafted by my counsel under my instructions.
3.That the contents of Paragraph Nos. Paragraph numbers true to knowledge of the accompanying Appeal are true to my knowledge on the basis of the records maintained by the Appellant company, and the legal averments contained in Paragraph No. Paragraph numbers based on legal advice are based on legal advice received, which I believe to be correct.
4.That I state that the documents filed along with the present Appeal are true copies of the documents referred to and relied upon by me.
DEPONENT
VERIFICATION
I, the above-named deponent, do hereby verify that all the facts stated in the above affidavit are true to my knowledge as derived from the records of the Appellant company, and nothing material has been concealed therefrom.
Verified at Place of verification on this Date of verification.
DEPONENT
IN THE HIGH COURT OF DELHI AT City (High Court place)
I.A. NO. I.A. number OF 2024
IN
FAO(OS) (COMM.) NO. FAO number OF 2024
IN THE MATTER OF:
Appellant's name: APPELLANT
VERSUS
Respondents' name: RESPONDENTS
AFFIDAVIT
Affidavit of Deponent's name, Wife of Deponent's husband's name, aged about Deponent's age years, Authorised Signatory of Company of which the deponent is authorised signatory, having its office at Office address of the deponent's company, presently residing at Deponent's present address, do hereby solemnly affirm and declare as under:-
1.That I am the Appellant in the present case, and as such I am well conversant with the facts of the present case and am therefore competent to depose to this affidavit.
2.That I have gone through the contents of the accompanying application for exemption, which has been prepared under my instructions. The contents of the accompanying application be read as part and parcel of this affidavit and are not being repeated herein for the sake of brevity.
DEPONENT
VERIFICATION:-
Verified at Place of verification on this Date of verification that the contents of the above affidavit are true and correct to my knowledge as derived from the records of the Appellant company, and nothing material has been concealed therefrom.
DEPONENT
IN THE HIGH COURT OF DELHI AT City (High Court place)
I.A. NO. I.A. number OF 2024
IN
FAO(OS) (COMM.) NO. FAO number OF 2024
IN THE MATTER OF:
Appellant's name: APPELLANT
VERSUS
Respondents' name: RESPONDENTS
APPLICATION UNDER SECTION 151 CPC SEEKING EXEMPTION FROM FILING ORIGINAL/CERTIFIED COPIES AND TRUE TYPED COPIES OF IMPROPERLY FORMATTED, LEFT-MARGIN AND DIM DOCUMENTS
MOST RESPECTFULLY SHOWETH:
1.That the present Appeal is being filed by the Appellant under Section 37(2) of the Arbitration and Conciliation Act, 1996, as amended by the Arbitration and Conciliation (Amendment) Act, 2015 (the 'Act'), against the Order dated Date of impugned order passed by the Ld. Arbitral Tribunal in Arbitration Case No. Arbitration case number (the 'Impugned Order'). Vide the Impugned Order, the Ld. Arbitrator has erroneously, and in grave error of law, dismissed the application of the Appellant under Section 17 of the Act. It is submitted that the averments made in the accompanying Appeal may be treated as part and parcel of the present application, and the same are not being repeated herein for the sake of brevity.
2.That, owing to the urgency in the matter, the Appellant is filing the present Appeal along with true photocopies of the documents, which may not be in consonance with the rules prescribed by this Hon'ble Court in respect of the margins and/or spacing between lines and/or font size, and/or may not be fair typed copies of their respective originals and/or certified copies, and the Appellant thereby seeks leave of this Hon'ble Court to present the present Appeal in the aforesaid manner.
3.That the Applicant/Appellant hereby undertakes to furnish true typed copies of the documents as and when directed by this Hon'ble Court.
4.That the present application is bona fide, and it is in the interest of justice that this Hon'ble Court may kindly be pleased to grant the Appellant the exemption sought by way of the present application.
PRAYER
It is, therefore, most respectfully prayed that this Hon'ble Court may most graciously be pleased to:
a)Exempt the Appellant from filing true typed copies and/or certified copies of the dim and/or improperly formatted documents filed along with the accompanying Appeal;
b)Pass such other or further orders as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.
DELHIAppellant
THROUGH
DATED: Date of filing
Counsel's name
COUNSEL FOR THE APPELLANT
Counsel's address / chamber
Mobile No. Counsel's mobile number
Email:
IN THE HIGH COURT OF DELHI AT City (High Court place)
**I.A. NO. I.A. number OF 2024IN FAO(OS) (COMM.) NO. FAO number OF 2024**
IN THE MATTER OF:
Appellant's name: APPELLANT
VERSUS
First respondent's name PVT. LTD. & OTHERS: RESPONDENTS
AFFIDAVIT
Affidavit of Deponent's name, Wife of Deponent's husband's name, aged about Deponent's age years, Authorized Signatory of the Appellant Company, having its office at Appellant company's office address, presently residing at Deponent's current address, do hereby solemnly affirm and declare as under:-
1.That I am the Appellant in the present proceedings and, as such, I am well conversant with the facts of the present case and am competent to depose to this affidavit.
2.That I have gone through the contents of the accompanying application for exemption, which has been prepared under my instructions. The contents of the accompanying application be read as part and parcel of this affidavit and, for the sake of brevity, are not being repeated herein.
DEPONENT
VERIFICATION:-
Verified at City (High Court place) on this Date of verification day of Month of verification, Year of verification that the contents of the above affidavit are true and correct to my knowledge as derived from the records of the Appellant Company, and that nothing material has been concealed therefrom.
DEPONENT