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IN THE HIGH COURT QF DELHI AT NEW DELHI
+ FAO(OS) (COMM) 134/2016 & CM No.44366/2016
R P MALHAN & COMPANY PRIVATE LIMITED ..... Appellant
Through Mr;Sunil Choudhary, Adv.
Through Mr.Dhruv Khanna, proxy counselfor
Mr.Janender Kumar, Adv. for R-2.
+ FAO(OS) (COMM) 140/2016 & CM No.46184/2016
R.P: MALHAN & COMPANY PRIVATE LIMITED Appellant
Through Mr.Sunil Choudhary, Adv.
Through Mr.Dhruv Khanna, proxybounsel for, ; Mr.Janender Kumar, Adv. for R-2
. ' CORAM; ' •
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE NAVIN CHAWLA
% 10.07.2017
We have examined the prayer made by the appellant in OMP
(I)(COMM) 401/2016 and OMP (IXCOl^^) 403/2016, .which read as under: . -
OMP (I) (COMM) 403/2016
"(a) Pass an ex-parte ad-interim order restraining the
Respondents from relying/acting/proceeding and/or doing any
2017:DHC:9063-DB act, deed or thing in any manner, whatsoever, on the basis of the said Tripartite Agreement dated 29.03.2013 and /or m respect of all the matters concerning the said Tripartite
Agreement dated 29.03.2013. ^
(b) ' Pass, an ex-parte ad-interini order restraining the
Respondents from taking any action in any manner, whatsoever, more particularly coercive action against the
Petitioner such as auction/sale ofthe "Residential Apartment and attachment of the Bank Accounts of the Petitioner etc. in pursuance to the fraudulent, false, forged and fabricated
Tripartite Agreement dated 29.3.2013 which is null and void-in the eyes oflaw arid is not binding on the parties;"
OMP m (COMM) 401/2016
"(a) Pass an ex-parte ad-interim order restraining the
Respondent from in any manner, taking any action, more particularly coercive action against the Pethioner such auction/sale ofthe "Residential Apartment" and attachment of the Bank Accounts of the Petitioner etc. in pursuance to the, „ fraudulent, false, forged and fabricated Loan-Agreement dated
28.3.2013which is null and void in the eyes of law and is not bindingon the parties.'"
Learned Single Judge while dealing ,with the said OMPs prima facie found that the. reliefs cannot be granted and while dismissing the applications under Section 9of the Arbitration and Conciliation Act, 1996 observed as under: . . , '
OMP m (COMM^ 403/2016
"12. The contention that the present petition is in relation to the tripartite agreement and not in relation to the allotment letter and therefore, the relief against the Builder cannot be sought before the arbitrator is not; persuasive. The tripartite agreement is admittedly a part ofthe transaction for purchase ofthe residential apartment and the petitioner is at liberty to claim interim relief against the Builder in
A c • relation, to disputes relating to the transaction before the Sole
ArbitratOTo^^r (player (a) quoted above) _is concerned, the same is vague and a blanket order restrammg the parties from acting on behalf of the tripartite agreement camiot be granted. Admittedly, the petitioner has executed the tripartite agreement. The petitioner's grievance that the said agreement was fraudulent as null and void is a subject matter of disputes to be adjudicated in, appropriate proceedings. It is not disputed that^^he
Bank had disbursed the amount of Rs.3,24,71,802/- on behalfofthe petitioner. The petitioner was fully aware that such loan had been disbursed as the equated monthly instalments (EMIs) for repayment ofthe loan were debited from the bank account ofthe petitioner from
April, 2013 onwards. Further, the disputes between the petitioner and the Bank are already subject matter ofproceedings before the DRT as well as the proceedings relating to the suit filed by the petitioner.
ORDER
14. The petition is, accordingly, dismissed. However, it is clarifaed that this would not preclude the petitioner from seeking appropriate reliefinappropriate proceedings." OMP (I) (COMM) 401/2016 "15. The present petition -apart from being prima facie unconvincing -is also highly belated and is accordingly dismissed.
16. However, it is clarified that this order will not preclude, or prejudice the petitioner from claiming any relief in any appropriate proceedings." We clarify that that observations made in the said orders are with reference to the applications under Section 9 of the Arbitration and Conciliation Act, 1996 and are prima facie in nature as the disputes are pending before the Arbitrator. Learned counsel for the respondent Bank states that proceedings before the Arbitrator are not maintainable as Bank has already invoked the jurisdiction of Debt Recovery Tribunal. We do not comment anything on the said aspect as the said issue is to be decided either by Debt Recovery Tribunal or by the Arbitrator. Learned counsel for the appellant states that in view ofthe abovesaid observations, he wishes to withdraw the present appeals beingnot pressed. The appeals along with pending applications stands disposed ofas not pressed. No costs. JULY 10,2017/vp SANJIV KHANNA, J NAVINCHAWLA,J