Full Text
$-2 & 3 HIGH COURT OF DELHI
FAO(OS) 332/2015
KULDEEP SOBTI Appellant Represented by: Mr.Sanjiv Kakra, Advocate with
Mr.Amit Purl, Advocate
Represented by: Mr.Dinesh Garg, Advocate with
Ms.Rachna Aggarwal, Advocate for R-1
M/S AMBICA BUILDTRADE LTD Appellant Represented by: Mr.Kaushik Chaudhary, Advocate
Mr.Amit Puri, Advocate for R-1 Mr.Dinesh Garg, Advocate with
Ms.Rachna Aggarwal, Advocate for R-3
HON'BLE MS. JUSTICE MUKTA GUPTA FAO (OS) Nos.332/2015 & 510/2015 Page 1 of5
2016:DHC:8558-DB c
22.01.2016 CM No. 18691/2015 in FAQ (OS) No.510/2015
Allowed.
CM Nos. 18692-93/2015 in FAQ COS^ No.510/2015
For the reasons stated in the two applications delay of filing and re filing the appeal is condoned.
FAQ rOS) Nos.332/2015 & 510/2015
ORDER
1. The undisputedfacts are that the two defendantcompanies in the suit:
(i) M/s.Pahwa Buildtech (P) Ltd.; and (ii) M/s.Ambica Buildtrade Ltd.
entered into an agreement to sell dated March 06, 2011 with one Dr.Jwahar Lai Chakravarthy concerning property bearing Municipal No.38/61, West Punjabi Bagh, Delhi. The two companies had to pay T28 crores to Dr. Jwahar Lai Chakravarthy as per the terms ofthe agreement to sell.
2. In two tranches total sum of ?12 crores was paid by the two companies to Dr. Jwahar Lai Chakravarthy. That left ^16 crores more to be paid to Dr. Jwahar Lai Chakravarthyby the two companies. ^ 3. Being in financial stringency the two companies approached the plaintiff: Kuldeep Sobti, for finances; and it was agreed that upon Kuldeep Sobti paying ^14 crores to the two companies they would transfer half interest which they would acquire in property No. 38/61, West Punjabi Bagh, Delhi under Dr. Jwahar Lai Chaloravarthy to Kuldeep Sobti.
4. A written agreement was drawn up and signed by Kuldeep Sobti and the two companies. Kuldeep Sobti gave ^6 crores to the two companies followed by further payment of ?8 crores. In all ^14 crores werepaid to the two companies. FAO (OS) Nos.332/2015 & 510/2015 (T
5. The assurance by the two companies to Kuldeep Sobti was that the two companies would acquire interest concerning the property at West Punjabi Bagh from Dr. Jwahar Lai Chakravarthy.
6. There was a dispute between the two companies and Dr. Jwahar Lai Chakravarthy. Suit for specific performance was filed by the two companies. Compromise was arrived at between the companies and Dr.Jwahar Lai Chakravarthy. The two companies took back the money they had paid to Dr. Jwahar Lai Chakravarthy.
7. Kuldeep Sobti filed a suit for recovery against the two companies. It ^ is apparent that under the circumstances the two companies could not transfer half interest in property bearing Municipal No.38/61, West Punjabi Bagh in favour of the plaintiff necessitating plaintiff filing a summary suit for recovery of ?14 crores paid to the two companies. Pleading that under the agreement it was stipulated that upon default the two companies would pay to the plaintiff by way of penalty crores, interest in sum of ?2,02,65,744/- being added; suit was filed claiming decree in sum of ^22,02,65,744/-. ^ 8. The two companies filed applications seeking leave to defend.
9. Observing whether the sum stipulated in the agreement between the -A parties was by way of penalty i.e. ^6 crores, learned Single Judge has formed an opinion vide impugned order dated April 30, 2015 that case was made out to grant conditional leave to defend.
10. The condition of the leave to defend is that each defendant would deposit ?7 crores in the Court.
11. Kuldeep Sobti has challenged the impugned order granting leave to defend upon a term. M/s.Ambica Buildtrade Ltd. has also filed the appeal FAO (OS) Nos.332/2015 & 510/2015 Page 3 of[5] questioning the condition ofgrant of leave to defend.
12. Technically speaking appeal filed by Kuldeep Sobti may not be maintainable in view of the law declared by the Supreme Court in the decision reported as (1981) 4 SCC 8 Shah Babulal Khimii Vs. Javahp.n D.Kania &Anr., however we need not decide the merits ofthe two appeals nor the maintainability ofeither for the reason on a suggestion given by the Court parties have agreed as under:-
(i) The two defendant companies would pay tl crores each to the ' plaintiffwithin 4weeks from today.
(ii) Since M/s.Pahwa Buildtech Pvt. Ltd. has deposited ^7 crores in this
Court pursuant to the impugned order, M/s. Pahwa Buildtech Pvt. Ltd. need not pay any money to the plaintiff, qua whom we direct the Registry to pay oversaidsumalong withaccrued interest thereon to Kuldeep Sobti.
(iii) Suit shall proceed for trial with respect to Kuldeep Sobti's claim for damages and interest.
(iv) The directors of M/s.Ambica Buildtrade Ltd. shall be personally responsible for payment of T[7] crores as per the agreement in terms whereof the above captioned appeals are disposed of.
13. Before bringing the curtains down we would record that the disposal -1, of the two appeals on consent terms is on the express understanding that the directors ofM/s.Ambica Buildtrade Ltd. wouldbe personally responsible for implementation ofthe consent given by M/s.Ambica Buildtrade Ltd. and the assurance, being taken as the representation to the Court has been accepted by the Court and forms the foundation of the consent order. Violation thereafter would be treated as intentional constituting contempt of this Court. FAO (OS)NOS.332/2015 & 510/2015 Page[4] of 5
14. In token of the correctness of the terms of the consent-as recorded in this order we have obtained signatures of learned counsel for Kuldeep Sobti, M/s. Pahwa Buildtech Pvt. Ltd and M/s.Ambica Buildtrade Ltd. on this order.
15. No costs.
JANUARY 22, 2016 mamta PRADEEP N JOG, J. MUKTA GUPTA, J. cucom"^'') PS, -> G)n M fli 55'4-/'2-o16• FAO (OS) Nos.332/2015 & 510/2015. ^))>v-e (fc^s piTi^r^co-J" iy