Full Text
HIGH COURT OF DELHI
Date of Decision: 22.05.2023
M/S ASHUTOSH INFRA PVT. LTD. ..... Petitioner
Through: Mr.Nidhesh Gupta, Sr. Adv. with Mr.Madhav Gupta, Mr.G.Balaji, Ms.Pallavi Singh, Ms.Japneet Kaur, Ms.Vriti
Gujral, Advs.
Through: Mr.Akhil Sibal, Sr. Adv. with Mr.Vikas Mishra, Mr.Varun
Ahuja, Mr.Achint Singh, Mr.Krishna Dev Yadav, Advs. for R-1.
Mr.Dhanesh Relan, Mr.Arindam Dey, Mr.Jatin Bhatia, Advs. for R-2.
Ms.Nandani Sahni,Adv. for R3.
Mr.Rajshekhar Rao, Sr. Adv. with Ms.Nandani Sahani, Adv. for R-4.
JUDGMENT
1. Allowed, subject to all just exceptions. O.M.P.(I) (COMM.) 152/2023
2. Issue notice.
3. Notice is accepted by the counsels representing the respective parties.
4. Let reply be filed within a period of four weeks. Rejoinder thereto, if any, be filed within a period of two weeks thereafter.
5. It is the case of the petitioner that the petitioner had entered into a Collaboration Agreement dated 25.06.2015 with the respondent no.1, which, inter alia provides as under:
6. The learned senior counsel for the petitioner submits that, therefore, it was an express covenant of the Collaboration Agreement that in case the petitioner’s allocation is not leased out by the respondent no.1 within six months of the grant of the Occupancy Certificate, the petitioner shall be at liberty to lease the same on its own and the respondent no.1 shall be left with no right to deal/lease the said area.
7. Disputes arose between the parties which ultimately resulted in a Consent Award dated 08.04.2022, which inter alia provided as under:
(i) Pursuant to the exercise of its rights under the Collaboration Agreement by the Respondent the additional carpet area admeasuring 506.873 sq. meter on the Lower Ground Floor of the Project i.e., on the north side of the Project/shopping mall/Complex more specifically detailed and depicted in green colour in Annexure-4 of the Settlement Agreement shall belong to and be owned by the Respondent as part of the Respondent/Owner‟s Share in place of/lieu of its erstwhile share on the 4th and 5th floor of the Project. Consequently, the Respondent/Owner shall have no right, interest and title in the entire built-up area on the 4th and 5th floor under the Collaboration Agreement and the Claimant/Developer shall have no right on additional area given to the Owner at Lower Ground Floor in lieu of its area on 4th and 5th floor. As such, the entire built-up area on the 4th and 5th floors more specifically detailed and depicted in Annexure- 5 and Annexure-6 of the Settlement Agreement shall form part of the Claimant/Developer‟s Share and there shall be no restriction of any nature over the right, title and interest on the built-up area of the 4th and 5th floor of the Project.
(ii) The Respondent/Owner shall have no right, interest and title over the built-up area on 4th and 5th floor of the Commercial Project and the Claimant/Developer shall have an exclusive right to deal with it in any manner whatsoever, As such the entire built-up area on 4th and 5th floor shall form part of the Claimant/Developer‟s Share. xxxx
(v) The summation of the above said apportionment and identification of the
Respondent/Owner‟s Share and the Claimant/Developer‟ Share in the Commercial Project is as under: Floor Total Carpet Area Owner’s Share Developer’s Share Lower Ground Floor 3148.105 1141.188 + 506.873 = 1648.061 1500.044 Upper Ground Floor 2696.774 977.581 1719.193 Mezzanine Floor 603.253 184.230 419.023 1st Floor 2790.136 1011.424 1778.712 2nd Floor 2855.67 1035.180 1820.490 3rd Floor 1947.554 705.988 1241.566 4th Floor & 5th Floor 1398.271 Nil 1398.271 15439.763 5562.464 9877.299
8. The learned senior counsel for the petitioner submits that the above Agreement/Consent Award between the parties’ reemphasises Clause 26 of the Collaboration Agreement, whereunder, after the expiry of six months from the date of the Occupancy Certificate, the respondent no.1 was to be left with no right to lease out the petitioner’s share in the development. He further submits that the Occupancy Certificate was received for the development on 14.03.2022 and, therefore, in terms of the Collaboration Agreement, as re-emphasized in the Consent Award, after 14.09.2022 the respondent no.1 could not have leased out the petitioner’s share in the commercial building.
9. He submits that the respondent no.1 has now ante-dated purported Lease Deed(s) dated 06.04.2022 purporting to lease out petitioner’s share in the developed commercial building to the respondent nos.[3] and 4. He submits that the ante-dating of the Lease Deed(s) is evident from the fact that though it purports to have been executed on 06.04.2022, the Stamp Paper for the same has been purchased only on 10.04.2023. He submits that there is further no document which would show the fact of execution of the Lease Deed(s) on 06.04.2022, let alone any rent received against the same. He submits that, in fact, the respondent no.3 is being controlled by the father of Mr.Romi Garg, who is the Director of the respondent no.1. He submits that the document has been ante-dated only to avoid the effect of Clause 26 of the Collaboration Agreement as reiterated in the Consent Award.
10. He submits that the petitioner has executed Conveyance Deed/Sale Deeds dated 29.03.2023 and 31.03.2023, pertaining to shop No.1 on the third floor and No. 1 and 2 on the upper ground floor, respectively, transferring its rights in the above shops to third parties. The use of the said shops by the vendees cannot be, therefore, interfered with by the respondents and the respondents are liable to be injuncted. At the same time, the respondent nos.[3] and 4 cannot be allowed to use or occupy the said shops or carry out any activity therefrom.
11. The learned senior counsel for the petitioner further submits that in the Consent Award, the respondent no.1 had represented that the total carpet area on the fourth and fifth floors is only 1398.271 sq. mtrs. It was on that basis that it was agreed that the petitioner’s share would be nil for these floors. However, on actual measurement, it has been found that the total carpet area on the fourth and fifth floors is 2195 sq. mtrs. He submits that, therefore, the petitioner is entitled to allocation of further area in the fourth and the fifth floor in terms of the Collaboration Agreement, which provides the owner’s share to be 36.25%. He submits that the respondent no.1 should, therefore, be restrained from creating any further third-party interest in the commercial building so as to protect the interest of the petitioner. He submits that a Local Commissioner be also appointed to measure the area of the commercial building.
12. On the other hand, the learned senior counsel for the respondent no.1 submits that the petitioner was always aware of the execution of the Lease Deed(s) by which the subject shops have been handed over to the respondent nos.[3] and 4 for their use. In fact, the petitioner admits having received amounts under the Lease Deed(s) in April, 2023 for the said premises.
13. He further submits that the petitioner already having divested its rights in the subject shops, cannot maintain the present petition for restraining the respondent no.3 and 4 to use the same. The right, if any, would be of the vendees of these shops. He further submits that the aim of the petitioner is merely to stall the occupancy of the commercial building and to re-open the amicably settled disputes by the Consent Award. He further submits that one of the Stamp Papers for the lease was purchased on 10.01.2022, therefore, the allegation of antedating the same is incorrect.
14. The learned counsel for the respondent no.2, who appears on an advance notice, submits that no relief can be pressed against the respondent no.2 who is in occupation of the fourth and fifth floors of the subject building in terms of a registered Lease Deed dated 07.10.2022, which is inter alia executed also by the petitioner as a Confirming Party.
15. The learned senior counsel for the respondent no.4 submits that the respondent no.4 has taken the subject flats on lease on 06.04.2022. He submits that opportunity to file a reply to the petition be given. The learned senior counsel for the respondent no.4 submits that the respondent no.4 shall not claim any special equity in the subject flats due to the work that is carried out in the subject shops.
16. The learned counsel for the respondent no.3 reiterates the submissions made by the learned senior counsel for the respondent no.4.
17. I have considered the submissions made by the learned counsels for the parties.
18. As is evident from the above, there are two separate claims of the petitioner involved in the present petition. The first relates to the purported lease of the commercial shop Nos.[1] and 2 on the upper ground floor and, of the commercial shop No.1 on the third floor of the subject commercial property.
19. Clause 26 of the Collaboration Agreement read with the Consent Award states that the respondent no.1 shall not have any right to lease out the petitioner’s share in the subject property on expiry of six months from the grant of the Occupancy Certificate, which in this case is admitted to have been issued on 14.03.2022. The question, therefore, would be whether the Lease Deed(s) purported to have been executed on 06.04.2022, have been ante-dated, as contended by the petitioner.
20. Prima facie, the petitioner has been able to show through the circumstances, which would at least put a doubt on the execution of the Lease Deed(s) as claimed to be executed on 06.04.2022. This opinion is based on the Stamp Paper that has been purchased on 10.04.2023; the fitment process being still ongoing as per the respondents; and it was only in April, 2023 that the payment under the Lease Deeds was made by the respondent no. 1 to the petitioner after the petitioner had already protested and had issued a notice dated 19.04.2023 claiming that the respondent no.1 cannot deal with the shops in question.
21. At the same time, it is the own case of the petitioner that the petitioner has divested itself of its rights and interest in the subject shops in favour of third parties by executing the registered Conveyance Deed/Sale Deeds. The said vendees are not parties to the present petition. Neither is the petitioner claiming its rights under them. The locus of the petitioner to now claim a right in this petition for such vendees, in their absence, will have to be considered.
22. In view of the above, in my opinion, the balance of convenience will be met by binding the respondent nos.[3] and 4 to the statement made to the effect that any fitment activity carried out by the respondent nos.[3] and 4 in the subject shops shall be at the own peril of the respondent nos.[3] and 4 and they shall not claim any special equity/right or title in the subject shops based thereon. They shall also not begin commercial operation from the shops in question without seeking prior permission of this Court.
23. The learned senior counsel for the petitioner submits that there are other portions of the petitioner’s share in the commercial property which till now has not been leased out by the respondent no.1. This is disputed by the learned counsel for the respondent no.1.
24. Be that as it may, the respondent no.1 shall not deal with the petitioner’s share in the subject mall any further.
25. On the second issue of the petitioner being entitled to further share in the subject mall due to more area being available on the fourth and fifth floor of the commercial property, in my prima facie opinion, this is an issue which would have to await the reply of the respondent. Therefore, no direction is passed on the same at present.
26. List on 18th August, 2023.
NAVIN CHAWLA, J MAY 22, 2023