Suresh Kochhar v. Sanjay Kumar

5. In order to satisfy the claim totalling to Rs.20,01,00,000/- (Rupees Twenty Crores One Lakh), it was agreed that the parties shall put on sale the following properties at the first instance: “i. F-33, 1st Floor, Sector-F &G, Shivaji Enclave, New Delhi, which is presently stated to be standing in the name of V Local Promoters Pvt. Ltd. and which is also the suit property in CS(OS) No.309/2016. ii. JA-0704, 7th Floor, DLF, Tower-A, Jasola, New Delhi which is presently stated to be standing in the name of M/s Aquarius Buildwell Pvt. Ltd. and which is the suit property in Suit No.512/16 in the Court of Ms. Nilophar Abida Praveen, Ld. ADJ, Saket Courts, New Delhi. iii. JA-0718, 7th Floor, DLF, Tower-A, Jasola, New Delhi which is Promoters Pvt. Ltd. and which is the suit property in Suit No.509/16 iv. 711, Block-l, 7th Floor, Business Zone, Nirwana Country, South City-11, Phase-11, Gurgaon, Haryana which is presently stated to be standing in the name of M/s Techno Sphere Developers Pvt. Ltd. and which is the suit property in Suit No.287/2016 in the Court of Shri Ashish Arya, Civil Judge, Sr.Division, Gurgaon. v. Shop No.14 &15, Augusta Point AEZ- Trade Square, Gurgaon, Haryana which is presently stated to be standing in the name of Shri Sanjay Kumar and which is the suit property in Suit NO. 0001405/2016 in the Court of Ms.Anjali Jain, Civil Judge- Sr.Division, Gurgaon, Haryana. vi. Shop No.12& 13, Augusta Point AEZ- Trade Square, Gurgaon, Shri Sunil Kumar and which is the suit property in Suit NO. 0001406/2016 in the Court of Ms.Anjari Jain, Civil Judge- Sr.Division, Gurgaon, Haryana. vii. Land in Village Salamba Distt. Nuh, Mewat, State of Haryana, measuring (approx. 17.[5] acres) which is presently stated to be standing in the name of Shri Sunil Kumar and Shri Sanjay Kumar and which is the suit property in Suit No. 864/2016 pending in the Court of Shri Sunil Kumar, Civil Judge, Sr.Division, Mewat, Haryana. viii. Shop No.UB-6, Pacific Mall, Ghaziabad (UP) which is presently stated to be standing in the name of M/s Vigneshwara Contractors Pvt. Ltd. and which is the suit property in Suit NO. 5/2017 pending in the Court of Ld. Civil Judge, Ghazaibad (UP).”

6. The Objector has submitted that once the Settlement was arrived at between the parties on 30.05.2017, the same was placed on the record of this Court. An application bearing No.8898/2017 under Order 23 Rule 3 CPC was filed on behalf of the plaintiffs under its signatures seeking a consent decree. The Judgment Debtors were directed to file a reply and this Court had noted certain material deficiencies in the Settlement Agreement. These included: (i.) The Application was not a joint Application; (ii.) Defendants to the suit were (a) M/s V Local Promotors Private Limited and (b) Sunil Kumar Dahiya, who had been impleaded in his capacity as a Director of another company, namely, M/s Foxtort Megastructures Private Limited. (iii.) That at the time of entering into the Settlement Agreement, no authorization had been given in favour of Judgment Debtor No.2 on behalf of Judgment Debtor No.1.

7. Accordingly, the matter was re-notified for 06.12.2017. However, on the said day this Court accepted the Settlement to be lawful and decreed the Suit in terms thereof.

8. It is asserted that Judgment Debtor No.2 Shri Sunil Kumar, Director of M/s Foxtort Megastructures Private Limited entered into an umbrella Settlement Agreement dated 30.05.2017 (hereinafter referred to as „Settlement Agreement‟) with the plaintiffs resulting in the decree in the suit filed on behalf of the Decree Holders.

9. On or around 20.05.2019 the Judgment Debtor No.1 Shri Sanjay Dahiya, who was lodged in Tihar Jail since February of 2015, was produced in the Court of Shri Naveen Kumar, Gurgaon District Courts in a suit titled Suresh Kochhar vs. Sanjay Kumar filed by the plaintiff against the Objector on the strength of the Settlement Agreement.

10. The Judgment Debtor No.1/Objector Shri Sanjay Dahiya, was handed over the copy of Plaint and the documents, wherein the Objector for the first time became aware of the Settlement Agreement that Judgment Debtor No.2 Sh.Sunil Kumar had wrongly executed by representing that he had the Authority on behalf of Judgment Debtor No.1, to enter into the Settlement Agreement. On further inquiry, the Judgment Debtor No.1/Objector Shri Sanjay Dahiya, became aware that the suit has already been decreed and the Consent Decree has been passed in terms of the Settlement Agreement dated 30.05.2017 which was entered into by Judgment Debtor No.2 on behalf of Judgment Debtor No.1 without any proper and prior authorization.

11. It is submitted that the acts/omissions of Judgment Debtor No.2 Sh. Sunil Kumar have caused grave and irreparable injury to Judgment Debtor No.1. The Settlement is vitiated and void as Judgment Debtor No.2 had no authorization on behalf of Judgment Debtor No.1. Moreover, from the Order dated 15.09.2017 it is evident that Judgment Debtor No.2 had not been impleaded as a defendant in his capacity as Director of Judgment Debtor No.1/ M/S V Local Promotors Private Limited, but of another Company namely M/s Foxtort Megastructures Private Limited. Hence, it is submitted that the Impugned Decree execution of which is sought, is void and thus, present Execution Petition be dismissed.

12. No formal reply was filed on behalf of the Decree Holder.

13. Ld. Counsel on behalf of the Decree Holder, has argued that the Agreement was an umbrella Agreement involving various other disputes inter se the parties. The present suit was limited to the property bearing No.FA-33, First Floor, Sector-F&G, Shivaji Enclave, New Delhi. The Judgment Debtor No.1 was not present, and the Settlement was duly signed on behalf of the Judgment Debtor No.1 Company in which the Judgment Debtor No.2 was the Director and was having the capacity to enter into the Settlement. The Judgment Debtor No.1 had taken no such objection at the time of passing of the Decree on the basis of the Settlement. It was further submitted that there is no ground to say that the Settlement is without any authorization or authority and the part of the Settlement which pertains to the present suit, is executable. The Objections are without merit and are liable to be rejected.

14. Learned counsel on behalf of the Objector argued that it is an omnibus Settlement, wherein the parties had agreed to open an Escrow account. The Objector Shri Sunil Kumar was the Director of Judgment Debtor No.2 Company. The Decree Holder has failed to discharge its obligations to remove the embargo on the suit property.

15. The Objectors have asserted that the Settlement Agreement was entered into by Judgment Debtor No.2 on behalf of Judgment Debtor No.1 without being authorized in any manner. More importantly vide the Settlement Agreement dated 30.03.2017, not only had the Judgment Debtor No.2 agreed to the Settlement qua the properties owned by Judgment Debtor No.1, but has also agreed to dispose of his certain personal assets and other Group Companies of Judgment Debtors, which is neither tenable nor executable.

16. In the end, it is argued that no affidavit of Shri Sanjay Dahiya/ Judgment Debtor No.1 was taken at the time of considering the Settlement Agreement. Therefore, the Decree based on the Settlement inter se the parties is void and the Execution Petition is not maintainable.

17. Submissions heard and record perused.

18. Admittedly, the Civil Suit No. CS(OS)309/2016 was filed by the Decree Holders for Specific Performance in regard to the suit property and for Perpetual and Mandatory Injunction against the Judgment Debtor No.1 and Judgment Debtor No.2. Interim Orders were made in regard to the suit property. While the suit was pending, the parties moved an Application bearing No.5681/2017 to explore the possibility of settlement in the Mediation Centre and for being referred to the Mediation which was allowed vide Order dated 08.05.2017 and Ms. Harkiran Kalra @ Kiran Kalra was appointed as the Mediator.

19. The learned Mediator had elaborate discussions. The parties thus, agreed to settle all their disputes as per the Settlement Agreement, the terms of which are as under:

Rs20,01,00,000/- (Rupees Twenty Crores One Lakh Only) to be made by the Second Party to the First Party, the parties shall put on sale the following properties at the first instance:i. F-33, 1st Floor, Sector-F &G, Shivaji Enclave, New Delhi, which is presently stated to be standing in the name of V Local Promoters Pvt. Ltd. and which is also the suit property in CS(OS) No.309/2016. ii. JA-0704, 7th Floor, DLF, Tower-A, Jasola, New Delhi which is Buildwell Pvt. Ltd. and which is the suit property in Suit No.512/16 iii. JA-0718, 7th Floor, DLF, Tower-A, Jasola, New Delhi which is Promoters Pvt. Ltd. and which is the suit property in Suit No.509/16 iv. 711, Block-l, 7th Floor, Business Zone, Nirwana Country, South City-11, Phase-11, Gurgaon, Haryana which is presently stated to be standing in the name of M/s Techno Sphere Developers Pvt. Ltd. and which is the suit property in Suit No.287/2016 in the Court of Shri Ashish Arya, Civil Judge, Sr. Division, Gurgaon. v. Shop No.14 &15, Augusta Point AEZ- Trade Square, Gurgaon, Shri Sanjay Kumar and which is the suit property in Suit NO. 0001405/2016 in the Court of Ms. Anjali Jain, Civil Judge-Sr. Division, Gurgaon, Haryana. vi. Shop No.12& 13, Augusta Point AEZ- Trade Square, Gurgaon, Shri Sunil Kumar and which is the suit property in Suit NO. 0001406/2016 in the Court of Ms. Anjari Jain, Civil Judge-Sr. Division, Gurgaon, Haryana. vii. Land in Village Salamba Distt. Nuh, Mewat, State of Haryana, measuring (approx. 17.[5] acres) which is presently stated to be standing in the name of Shri Sunil Kumar and Shri Sanjay Kumar and which is the suit property in Suit No. 864/2016 pending in the Court of Shri Sunil Kumar, Civil Judge, Sr.Division, Mewat, Haryana. viii. Shop No.UB-6, Pacific Mall, Ghaziabad (UP) which is presently stated to be standing in the name of M/s Vigneshwara Contractors Pvt. Ltd. and which is the suit property in Suit NO. 5/2017 pending in the Court of Ld. Civil Judge, Ghazaibad (UP).”

2017. It has been agreed that since there is an embargo on the aforesaid properties as per Section 102 of the Cr.P.C., the parties shall make joint efforts to have the said embargo lifted. In this regard, they will cooperate with each other and sign any documents or applications that may be required for lifting the embargo. The Second Party has assured and undertaken that there are no other emcumbrances, or any other lien or assignment created in respect of the said properties nor any loans taken against the same in respect of any other sister concerns. The said Second party has represented, assured and undertaken that he is the duly authorized person on behalf of the different companies, as well as the Directors including Sh. Sanjay Kumar Dahiya as Director of the companies and in his individual capacity to enter into the present Settlement Agreement. He further assures and undertakes to arrange for the “no-objection” affidavits and/or undertakings if required, at any stage with regard to the smooth implementation of the present Settlement Agreement.

(i.e. total sale consideration less 20% earnest money) agreed upon shall be paid on or before 30th August, 2017. For the purposes of depositing the sale consideration, an ESCROW account shall be opened in UCO Bank, Delhi High Court Branch on or before the date of entering into the Sale Agreement with the prospective buyer. This account shall be opened jointly by the First and the Second Party or by their nominees or authorized representatives and the expenses towards opening and maintaining the said account shall be shared equally by the First and Second Party.

I. The parties have agreed to the following terms with regard to the opening and operation of the aforesaid ESCROW account and routing of payment through said account. i) The said account will not be operated by the Second Party or their Authorized Representative and will be “debit freezed account” except for the payments to be made to First Party as per the present Settlement Agreement i.e. the First Party has the right / lien upto Rs.20,01,00,000/- (Rupees Twenty Crores One Lakh Only) (which is to be paid on or before 30th August, 2017) and any amount left over and above the aforesaid amount of Rs.20,01,00,000/- (Rupees Twenty Crores One Lakh Only) in the said account, received by way of the sale consideration from the sale of the properties, shall be transferred / paid to the Second Party. If for any reason, the amount deposited in ESCROW account is less than Rs.20,01,00,000/- (Rupees Twenty Crores One Lakh Only) on the cut-off date of 30.08,2017, then also the First party shall be entitled to receive the deposited amount. ii) The First Party shall be at liberty to provide the details of the names of persons to whom the payment of amounts is to be made out of the total amount Rs.20,01,00,000/- (Rupees Twenty Crores One Lakh Only) payable to them under this Settlement Agreement. The Second Party shall not have any objection in this regard. Any such payment to a third party at the behest of First Party shall also discharge the liability of the Second Party from the total amount payable. iii) The parties shall provide a copy of the Settlement Agreement to the concerned bank at the time of opening of the ESCROW account and the terms of operation thereof shall be in accordance with the Settlement Agreement.

First Party by the Second Party is not satisfied or paid or realized from the sale of the properties mentioned in clause (C) hereinabove or by the decree referred to in clauses (J) and (K) above, and as per the time limit mentioned, the following properties, over which the First Party has the lien, shall be put to sale subject to condition mentioned in clause (M) below. i. Land in Village Ghasera District Nuh, Mewat (measuring approx. 4 acres) presently stated to be standing in the name of Shri Sunil Kumar and Shri Sanjay Kumar. ii. Industrial Building No.614, Sector-8, Manesar presently stated to be standing in the name of Foxtrot Megastrcutures Pvt. Ltd. iii. Land in Village Nagli Tehsil Sadar Distt. Gautam Budh Nagar, Greater Noida presently stated to be standing in the name of Technosphere Developers Pvt. Ltd. iv. Flat No.712, Gold Block, Arihant Residency Ahinsa Khand- II, Indirapuram, Ghaziabad (UP) presently stated to be standing in the name of Foxtrot Megastrcutures Pvt. Ltd.

Party through Shri Sunil Dahiya, who is the Managing Director of the companies in question, while he is in judicial custody. However, since the properties, sale of which is contemplated and agreed upon under the present Settlement Agreement are standing in the names of the companies in most of the cases, it has been represented, assured and undertaken by Sh. Sunil Dahiya that he is the duly authorized person to enter in to this Settlement Agreement on behalf of the companies and the other Directors in respect of the properties in question. He has also assured and undertaken that he will arrange for the “no-objection" affidavits or separate undertakings of the other Directors including Sh. Sanjay Kumar Dahiya, in his individual capacity or as Director of the companies, if required, at any stage. It is further agreed that the other companies against whom the suits have been filed and/or the properties which are the subject matter of the present Settlement Agreement are also the confirming parties to the terms and conditions of this Settlement Agreement.

V. The parties have agreed that their respective statements in the present Settlement Agreement be taken as an undertaking to the Hon'ble Courts wherever matters are pending and which are sought to be settled under this Settlement Agreement. They further undertake to file affidavits of undertakings of the confirming parties including Sh. Sanjay Kumar Dahiya on behalf of the companies and individually, the properties of which are the subject matter of this Settlement Agreement, to the effect that they shall be bound by the terms of the present Settlement Agreement and shall do all such acts which may be necessary to give full effect thereto.

X. The First Party shall be at liberty to seek refund of the court fees in terms of Section 16 of the Court Fees Act 1870 read with Section 89 of CPC, 1908 from the respective Courts where the suits are pending in light of the Settlement Agreement arrived at and that the Second Party shall have no objection in this regard.”

20. From the admitted facts, it emerges that the present suit CS(OS)309/2016 pertains to an Agreement to Sell in respect of property No.FA-33, First Floor, Sector F&G, Shivaji Enclave, New Delhi of which undisputably M/s V Local Promotors Private Limited i.e. Judgment Debtor No.1 was the owner, who had entered into an Agreement to Sell (ATS) dated 08.01.2014 with the Decree Holders for sale of this property. The Judgment Debtor No.1 being the owner of the property and against whom the suit had been filed by the Decree holders, was the only competent person to enter into any Settlement Agreement with the Decree Holders, through its authorized representative. The Agreement dated 30.05.2017 has admittedly been executed and signed by Judgment Debtor No.2/ Shri Sunil Kumar Dahiya.

21. The question which arises for determination is whether Shri Sunil Kumar Dahiya was the authorised representative of Judgment Debtor No.1, the owner of the suit property. Pertinently, the suit was filed for Specific Performance of an Agreement to Sell in respect of the Suit property of which Judgment Debtor No.1 was admittedly the owner. The first pertinent aspect for consideration is who all were the parties to the Suit. Judgment Debtor No.1, the Company through the Director, whose name is not mentioned in the Case Title and Judgment Debtor No.2, Shri Sunil Kumar Dahiya who is described as Director of M/S Foxtort Megastructures Private Limited. Shri Sunil Kumar Dahiya as the Director Judgment Debtor No.2 Company, obviously was not a necessary or proper party which had no concern with the suit property. However, the matter is not as simple as projected by the Judgment Debtor No.1/ Objector.

22. Along with Shri Sanjay Kumar Dahiya, Shri Sunil Kumar Dahiya was also the Director of M/s V Local Promotors Private Limited/ Judgment Debtor No.1. There is neither any challenge nor any denial on behalf of the Judgement Debtor/Objector that Shri Sunil Kumar Dahiya was not the Director of Judgment Debtor No.1. This is further confirmed from the Settlement Agreement dated 30.05.2017 wherein Shri Sunil Kumar Dahiya has been mentioned as Director of Judgment Debtor No.1. Judgment Debtor No.2 may have been described as the Director of another Group of Companies of the Judgment Debtors, namely M/s Foxtort Megastructures Private Limited, but he was made a party to this Suit because he was the Director of Defendant/ Judgement Debtor No.1. This makes it abundantly clear that aside from being a Director of M/s Foxtort Megastructures Private Limited, he was also the Director of Judgment Debtor No.1/ V Local Promoters Private Limited and was duly authorized to enter into the Agreement on behalf of Judgment Debtor No.1 in respect of the properties owned by Judgment Debtor No.1. Further, he had signed the Agreement as well as Director of Judgment Debtor No.1. The mere description of Judgment Debtor No.2 as Director of another Company, does not take away his character as Director of Judgment Debtor No.1 or to any inference that he had no authority to enter into the Agreement. This also explains why he was impleaded as defendant No.2.

23. Shri Sanjay Dahiya, who was the Director of Judgment Debtor No.1 may have been in judicial custody at the relevant time, but from the undisputed facts, the it is abundantly evident that Shri Sunil Kumar Dahiya was the other Director of Judgment Debtor No.1, and had the authority to enter into the Settlement.

24. Pertinently, no objection as to the authorization of Shri Sunil Kumar Dahiya who had signed as Director of Judgment Debtor No.1, was taken by any party. It is only after many years when the Execution has been filed, that these present objections have been filed on behalf of Shri Sanjay Dahiya who now wants to wriggle out of this Settlement by taking a specious objection of the Settlement Agreement not being signed by a duly authorized person.

25. This conclusion is further corroborated as this Court in its Order dated 6.07.2017 had also noted as under:

defendant no.1 V. Local Promotors Pvt. Ltd. and that some of the properties subject matter of Settlement Agreement are owned by Sanjay Dahiya who is not even a party to the Settlement Agreement. It is yet further stated that enquiry by the Serious Fraud Investigation Office (SFIO) has been ordered by this Court in another proceedings in the affairs of the defendants and their other group companies.

16. In spite of the Settlement Agreement being before this Court for the last six months, no application reneging therefrom has been filed. All that is being said today by the counsel for the defendants is being urged orally and to which no credence can be given.

17. Moreover, as aforesaid this suit was concerning one property only i.e. property No.FA-33, First Floor, Sector F&G, Shivaji Enclave, New Delhi and the decree in this suit will pertain to the said property only and cannot be with respect to other properties which are subject matter of other suit.

18. I may record that vide earlier order dated 15th September, 2017, the defendant no.2 Sunil Kumar, in judicial custody, was ordered to be produced today and is present in the Court; though the counsel for the defendants on the last date of hearing i.e. 15th September, 2017 had also sought adjournment to file authorization of S.K. Dahiya on behalf of defendant no.1. however the same was also on the request of the counsel for the defendants no.l&2. Else, the defendant no.2 has signed the Settlement Agreement on behalf of defendant no.1 and if the defendant no.2 did so without authorization, it is the outlook of the plaintiffs. It is of course the contention of the senior counsel for the plaintiffs that the defendant no.2 Sunil Kumar was duly authorized on behalf of defendant no.1 on the basis of Articles of Association.

19. In this view of the matter, subject to the aforesaid, a decree is passed in favour of the plaintiffs and against the defendants insofar as pertaining to the subject matter of the present suit in terms of the Settlement Agreement dated 30th May, 2017 and which Settlement Agreement and today's order shall form part of the decree sheet, leaving the parties to bear their own costs.”

26. The Decree on the basis this Settlement duly entered into between the parties, had been passed after specifically rejecting the objections now sought to be re-agitated by way of present Objections. The only inference that can be drawn here is that on the basis of Settlement Agreement, the legality and validity of this Decree being satisfied and passed.

27. Pertinently, Judgment Debtor. No.1 is claiming that he became aware of the Settlement Agreement on 06.12.2017 for the first time when he appeared in Gurgaon District Court. In this regard, the concerned Court in the Suit titled as Suresh Kochhar v. Sanjay Kumar, had observed that on enquiry, the counsel for the defendants in that Suit, had supported the Settlement Agreement, but later when the Court started dictating the Order, the Counsel stated that since the plaintiff had not complied with certain obligations under the Settlement Agreement, his statement that he is fully supporting the Agreement, may not be recorded. The observations of the Gurgaon Court as stated above, also corroborate that the Objector had not taken any Objection before the present Objections that the Settlement was entered into by Sh. Sunil Kumar Dahiya without any authority; rather he accepted the Settlement.

28. The Objector Shri Sanjay Dahiya on behalf of Judgment Debtor No.1, has not been able to support and corroborate that Shri Sunil Dahiya, the second Director of Judgment Debtor No.1, had no valid authorization on behalf of Judgment Debtor No.1 Company to enter into this Settlement. This is the only objection taken on behalf of Judgment Debtor No.1, which is without merit.

29. The objections are hereby dismissed.

30. EX. P.63/2018 & EX.APPL.(OS) 377/2021

31. Reply to the application EX.APPL.(OS) 377/2021 had to be filed as per Order dated 22.03.2021, however reply is not on record.

32. Matter to be listed for completion of pleadings before the Joint

JUDGE JULY 15, 2024