Dhruva Goel v. M/S Chetanya Buildcon Pvt Ltd & Ors.

Counsel on record. Ld. Counsel Mr. Piyush Sanghi, who made the relevant statement on 05th April, 2024, is also present, along with Mr. Sahil Pahwa, ld. Counsel. The Plaintiff and Defendant No. 1 are all represented before the Court. Submissions of the Parties:

11. Mr. Sukumar D. Nayyar, on being queried from the Court, submits that the main apprehension is that he and his wife, after the execution of the Collaboration Agreement, the Power of Attorney and all other related documents including the possession letter, do not have any rights in the suit property. Further, his Chartered Accountant has advised him that there may be further liabilities if a fresh Power of Attorney is executed by them. He also submits that he did not have a call with his counsel Mr. Piyush Sanghi on 5th April 2024. As per him, Mr. Piyush Sanghi, ld. Counsel did not have instructions to make the statement, which is recorded in the order dated 05th April, 2024 i.e., that a fresh Power of Attorney would be executed by him and his wife in favour of Mr. Vinod Saluja and Mr. Ankush Saluja.

12. He submits that the attempt of Plaintiff and Defendant No. 1 company is to merely evade stamp duty by getting a fresh Power of Attorney executed. It is also his submission that since his own income tax return for Financial Year 2013-14 has already been finalised and in the said tax return it is being reflected that the suit property has already been sold to Defendant No. 1, he and his wife are unable to execute any fresh Power of Attorney in favour of Mr. Vinod Saluja and Mr. Ankush Saluja. Finally, it is submitted that even the capital gain tax has been paid by him in respect of the sale of the suit property.

13. The Court has then queried if the Defendant Nos. 6 & 7 have any objection to the suit property being transferred to the Plaintiff by Defendant No. 1. In response, it is submitted by the Defendant Nos. 6 & 7 that they do not have any objection if the suit property is transferred to the Plaintiff so long as they are not involved in any manner in the said transfer.

14. Mr. Piyush Sanghi, ld. Counsel, who is present, has been asked as to whether he had instructions from Defendant No. 6 & 7 to make the statement recorded in the order dated 5th April, 2024. In response to which he has placed on record the WhatsApp chats between him and his client i.e., Defendant No.7 – Mr. Nayyar, as also various emails exchanged between them. The Court has perused the same. It is the submission of Mr. Piyush Sanghi, ld. Counsel that he had joined virtually in the hearing of 05th April, 2024. He had initially sought a pass over, when the matter was heard, to take instructions from the Defendant Nos. 6 & 7. Accordingly, he had spoken to the Defendant No.7 and had obtained instructions to make the statement on 05th April, 2024. He also relies upon the WhatsApp chats of 08th April, 2024 and 09th April, 2024 wherein the exchange of messages read as under: “08/04/24, 10:50- Sukhu Nayyar: hi. what happened at the hearing on 5th ? 08/04/24, 22:16- Piyush Sanghi: <Media omitted> 08/04/24, 22:16- Piyush Sanghi: You deleted this message 08/04/24, 22:16- Piyush Sanghi: The matter got disposed off on 05th 08/04/24, 22:17- Piyush Sanghi: I was down with viral therefore couldn’t update you in time. Sorry for late reply 08/04/24, 22:19- Piyush Sanghi: You have to execute a fresh power of attorney in terms of Para 10 of the judgement 09/04/24, 11:33- Sukhu Nayyar: Please contact the other party and ask them for the draft of the new PA that we have to give.”

15. Further, his submission is that his client – Mr. Nayyar, never had any objection in the transfer of the suit property to Plaintiff and the Defendant Nos.[6] & 7 had, in fact, instructed him clearly when the statement was made on 05th April, 2024.

16. Insofar as the Counsel for Defendant No. 1 is concerned, it is submitted that in fact, the Special Power of Attorney was required only because the earlier Power of Attorney holder, who could have executed the sale deed, had left the employment of the Defendant No. 1 company and for nothing more. He also submits that a notarized and signed Special Power of Attorney has been given by Defendant No. 6 & 7, which is duly notarised but the only problem is that it is not a registered agreement. Analysis & Findings:

17. Submissions have been heard. After having heard the ld. Counsels for all the parties and the Defendant Nos. 6 & 7, who are present in Court, the facts which have emerged are as under:

(i) The Collaboration Agreement was executed by the Defendant

(ii) Thereafter, the Defendant Nos. 6 & 7 executed a registered

General Power of Attorney dated 24th December, 2014 in favour of Shri Rakesh Sharma, who is an authorized signatory of Defendant No. 1 – M/s. Chetanya Buildcon Pvt. Ltd.

(iii) Agreement to Sell dated 01st

January, 2016, which is a Tripartite agreement, contains the following clause:

18. After the execution of these documents as also the possession letter dated 27th January, 2021 issued by the Defendant No. 1 in favour of the Plaintiff, disputes arose in respect of the suit property. The Plaintiff had paid a substantial amount of the sale consideration i.e., Rs.6.[5] crores out of the total of Rs.7.[5] crores. A sum of Rs.[1] crore was also paid subsequently in 2021. Pursuant to the said disputes the subject suit came to be filed by the Plaintiff, who is the purchaser of the suit property from Defendant No.1.

19. Summons were issued in the subject suit on 28th February, 2024 and the following order was passed on the said date. “[…]

8. Issue summons in the suit and notice in the application through all modes. Considering the grievance being only in respect of sale deed Mr. Shreyans Singhvi, ld. Counsel, who was appearing for Chetanya Buildcon in another matter before this Court, has been asked to accept summons and notice. Mr. Shreyans Singhvi, ld. Counsel accepts summons and notice on behalf of Defendant Nos.[1] to 5. Accordingly, ld. Counsel to seek instructions in this matter and make submissions on the next date of hearing. If instructions are not given, Mr. Vinod Saluja shall remain present in the Court on the next date of hearing.

9. Issue summons and notice to Defendant Nos.[6] & 7 through all modes upon the steps being taken by the Plaintiff. Status quo shall be maintained in respect of the title of the first floor.

10. List on 5th April, 2024.

11. Order Dasti.”

20. As can be seen from the above, status quo was directed on the said date and the returnable date was on 05th April, 2024. On 05th April, 2024 all the parties were duly represented before the Court including the ld. Counsels for Defendant Nos. 6 & 7. After hearing all the parties, the following order was passed on 5th April, 2024:

total sale consideration of Rs. 7.[5] crores. The case of the Plaintiff is that out of the total sale consideration of Rs.7.[5] crores, Rs.6.[5] crores has already been paid and thereafter, Rs.[1] crore is stated to have been paid in 2021 and the possession was handed over of the entire first floor. Grievance of the Plaintiff in this case is that the sale deed is not being executed.

5. On the last date, i.e., on 28th February, 2024, summons and notices were issued in the suit and in the applications. The Court had then directed as under:- “8. Issue summons in the suit and notice in the application through all modes. Considering the grievance being only in respect of sale deed Mr. Shreyans Singhvi, ld. Counsel, who was appearing for Chetanya Buildcon in another matter before this Court, has been asked to accept summons and notice. Mr. Shreyans Singhvi, ld. Counsel accepts summons and notice on behalf of Defendant Nos.[1] to 5. Accordingly, ld. Counsel to seek instructions in this matter and make submissions on the next date of hearing. If instructions are not given, Mr. Vinod Saluja shall remain present in the Court on the next date of hearing.

9. Issue summons and notice to Defendant Nos.[6] & 7 through all modes upon the steps being taken by the Plaintiff. Status quo shall be maintained in respect of the title of the first floor.”

6. Today, Defendant Nos. 2 & 3 i.e., Mr. Vinod Saluja and Mr. Ankush Saluja are duly represented by Mr. Nandrajog, Sr. Advocate and Mr. Shreyansh Singhvi. Ld. Counsel accepts notice and summons on behalf of Defendant Nos. 1 to 5. Defendant Nos. 6 and 7 are the owners of the property, who are residents of Mumbai.

7. Mr. Piyush Sanghi and Mr. Sahil Pahwa, ld. Counsel appearing for the owners i.e., Defendant Nos. 6 &7, submit that the main relief is being sought only against Defendant Nos. 1 to 5 and his clients are merely proforma parties.

8. Mr. Vinod Saluja, is also present in person. He submits that he is willing to execute the sale deed in respect of the first floor of the suit property as defined above in favour of the Plaintiff. The consideration received from the Plaintiff is also duly acknowledged by the Defendant Nos. 1 to 5.

9. Ld. Counsel for the Plaintiff has sought instructions and submits that if the Defendant Nos. 1 to 5 execute the sale deed in favour of the Plaintiff, the Plaintiff is willing to give up the monetary and other reliefs including interest etc., which has been sought in this suit.

10. In view of the above position, the Defendant Nos. 1 to 5 are directed to execute the sale deed/conveyance deed in respect of the suit property in favour of the Plaintiff. At this stage, it is submitted by Mr. Vinod Saluja that the power of attorney issued by Defendant Nos. 6 and 7 is in favour of his employee, who has since left the Company. For the said purpose, Mr. Piyush Sanghi, ld. Counsel has obtained instructions from Defendant Nos. 6 & 7 who are agreeable to issue a fresh power of attorney in favour of Mr. Vinod Saluja and Mr. Ankush Saluja. Let the power of attorney be issued within two weeks and the registration of the sale deed be completed in eight weeks from now.

11. It is also submitted on behalf of the Plaintiff that the TDS amount on the consideration which was paid was not deducted when the payment was made in respect of January, 2021. Since the receipt of consideration is acknowledged, Mr. Vinod Saluja undertakes to give a certificate to the effect that the tax liability in respect of the consideration received has been discharged. Let the said certificate be issued by Mr. Saluja to the Plaintiff within eight weeks. No other relief is pressed.

12. In view of the fact that the suit has been decreed only on the second hearing, full Court fee which has been deposited is directed to be refunded to the Plaintiff.

13. The suit is decreed in the above terms.”

21. The issue in respect of executing a fresh Power of Attorney had arisen only because the earlier Power of Attorney holder had left the employment of Defendant No.1 and the sale deed for the first floor was yet to be registered. The Agreement to Sell executed by the Defendant No. 1 and Defendant Nos.[6] & 7 in favour of the Plaintiff contains a clause that the sale deed would be executed by both sets of parties. It was in this background that a fresh Power of Attorney was directed to be executed vide order dated 5th April, 2024.

22. A perusal of the emails and the WhatsApp messages between Mr. Piyush Sanghi, ld. Counsel and his client Mr. Nayyar – Defendant No. 7, as also the signed and notarized Power of Attorney, which has been given by the Defendant Nos. 6 & 7, shows that in principle, the Defendant Nos. 6 & 7 have no objection in the Defendant No.1 transferring the suit property in favour of the Plaintiff. In fact, the Defendant No.7, in the communications exchanged with his counsel has asked for the draft Power of Attorney. Defendant Nos. 6 and 7 have in fact signed and sent a notarised copy of the Power of Attorney to Defendant No.1. The objection appears to have arisen when the Plaintiff asked for a registered Power of Attorney. At that stage, the Chartered Accountant has been consulted and an allegation has been made that the earlier counsel did not have instructions to make a statement. Defendant No.7 relies on the call data from his mobile in support of the allegation that the Counsel did not speak to him. Ld. Counsel Mr. Sanghi relies upon other communication to show how he was continuously in touch with the client and how the client had expressed no objection to execute the Power of Attorney, which shows that the statement made by him was with instructions.

23. Under such circumstances, this Court is of the opinion that instead of going into the allegations and counter allegations, between the client and the counsel, in the unique facts and circumstances of this case, a direction can be issued for execution of the sale deed in favour of the Plaintiff in respect of the suit property. Bearing in mind the background and the relevant documents as discussed above, the sale deed in favour of the Plaintiff is directed to be executed through an Officer of this Court subject to the stamp duty and other compliances being undertaken by the parties.

24. Let the sale deed in favour of the Plaintiff be executed by Defendant No. 1 through an Officer of this Court, within two months, on the strength of all the documents which are already on record including the Power of Attorney, which was executed on 24th December, 2014, by the Defendant Nos. 6 & 7 in favour of an employee of the Defendant No.1. Since the said Power of Attorney holder is no longer available, an Officer of this Court shall sign the sale deed on behalf of the Defendant Nos. 6 & 7.

25. It is, however, unfortunate that allegations have been made against the lawyer, who has been careful enough to preserve all the WhatsApp chats and the emails, which clearly show to the Court that the Defendant Nos.[6] & 7 had no objection in executing the Power of Attorney except for the tax implications, which appears to have been the only issue raised much later. It is accordingly made clear that the execution of the sale deed in favour of the Plaintiff, shall not fasten any liability on the Defendant nos 6 and 7 who are senior citizens and do not wish to have any complications as, admittedly, they had transferred the property several years ago to Defendant no.1.

26. No further orders are called for in this application. The application is, accordingly, disposed of. There is no occasion to recall or resile the decree dated 5th April, 2024 passed in the subject suit.

27. The emails and the WhatsApp chats exchanges handed over by Mr. Piyush Sanghi, ld. Counsel, are taken on record.

28. List before the Worthy Registrar General for the purpose of nominating an Officer of this Court for execution of the sale deed in above terms on 27th January, 2025.

29. Mr. Piyush Sanghi and Mr. Sahil Pahwa, ld. Counsels, are exempted from appearing in this matter.

PRATHIBA M. SINGH JUDGE JANUARY 17, 2025 gs/ms