BHUPENDER SINGH & ANR. vs M/S. BCC DEVELOPERS AND PROMOTERS PVT. LTD
$~31
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ O.M.P.(I) 9/2024
BHUPENDER SINGH & ANR. …..Petitioners
Through: Mr. S.C. Singhal and Mr. Parth Mahajan, Advs.
versus
M/S. BCC DEVELOPERS AND PROMOTERS PVT. LTD
…..Respondent
Through: Mr. Rahul Malhotra, Adv.
CORAM:
HON’BLE MR. JUSTICE C. HARI SHANKAR
O R D E R
% 02.09.2024
1. By this petition under Section 9 of the Arbitration and Conciliation Act, 19961, the petitioners seek pre arbitral interim reliefs.
2. The reliefs have been sought in the context of an Agreement to Sell2 dated 5 August 2023 executed between the petitioners, jointly called the Vendee, and the respondent as the Vendor. The respondent-Vendor represented itself to be the lawful owner of agricultural land admeasuring 3.905 Hectares/15.62 Bighas situated in Sahajahanpur Neemrana3. Annexure-1 to the ATS contains the details of the disputed property, which reads thus:
BCC DEVELOPERS & PROMOTERS PVT.LTD
Agriculture Land Details
Particular
Khasra No
Area in (Hec.)
1325
0.49 (5/14)
1326
0.83(1/2)
1327
0.6 (1/2)
1329
0.21(1/2)
0.995 Hec
370
39
1325
49(9/14)
1326
83(1/2)
1.12 Hec
1322
0.37
1323
0.25
369
0.45
1.07 Hec
1324
1.20(1/2)
0.60 Hec
366
0.32(1/4)
367
0.16(1/4)
0.12 Hec
Total Hec.
3.905
3. The total sale price for the property covered by the ATS was fixed at ? 8.21 crores. Prior to the execution of the ATS, the petitioner paid ? 1.65 crores as advance, the receipt of which stands acknowledged in paragraph 2 of the ATS. Paragraph 3 of the ATS sets out the manner in which the balance was to be paid, thus:
(a) Rs. 1,65,00,000/- on or before 30.11.2023.
(b) Rs.1,65,00,000/- on or before 15.12.2023.
(c) Rs.1,65,00,000/- on or before 15.01.2024.
(d) Rs.1,61,00,000/- on or before 20.02.2024.
4. Prior to 30 November 2023, when the next instalment of ? 1.65 crores was to be paid by the petitioners to the respondent, the petitioners came to learn that a civil suit relating to the disputed property was pending before the Judicial Additional Collector, Behrod District Alwar, Rajasthan between Lakhan Devi as the plaintiff and Jatan Singh and Om Pal Singh, as the defendants. In the said suit, the plaintiff had moved an application seeking temporary injunction restraining the respondents from selling or using or in any other manner alienating the land forming subject matter of the suit.
5. Mr. Singhal has taken me through the particulars of the land forming subject matter of the suit, vis-a-vis the land forming subject matter of Annexure-1 to the ATS reproduced (supra). The particulars of the land forming subject matter of the suit, as set out in the temporary injunction application include 1/8 share of khasra No. 381 Area 14 Acre, 370 Area 33 Acre, 1325 Area 49 Acre, 1326 Area 83 Acre. The very same land is seen to figure in the table in Annexure-1 to the ATS. On the temporary injunction application of the plaintiff in the Alwar suit, the Court of the Judicial Additional Collector, Behrod granted stay against alienation on 17 September 2013.
6. In this context, Mr. Singhal has drawn my attention to clause 5 of the ATS which read thus:
5 That the vendor has assured the Vendee that at the time of sale the above said property will be free from all sorts of encumbrance such as sales, lien, gift, exchange, dispute, stay, litigation attachment and decree of any court of law and if proved otherwise and time period of this deed shall stand extended till disposal of the same. The Vendor shall be liable and responsible for the same. The part of the said land is given as security by the Vendor which will be got release before the date of the sale deed.
7. On being queried in the above regard, the present petition alleges that the respondent refused to communicate. The petitioners thereupon made inquiries and came to learn that the respondent had already transferred part of the land by executing sale deeds in favour of one Giriraj Yadav, his wife, son, daughter and two other associates Rupesh Kumar and Kuldeep Yadav.
8. In these circumstances, the petitioners petition expresses an apprehension that the respondent would alienate the remaining land covered by the ATS as well to third parties.
9. Inasmuch as the ATS envisages resolution of disputes by arbitration, the petitioners have, by the present petition under Section 9 of the 1996 Act, sought a restraint against the respondent from transferring, alienating or creating third party interest in respect of any part of the land or properties forming subject matter of the disputed property in Annexure-1 to the ATS.
10. The respondent has filed a reply to the petition.
11. Appearing for the respondent, Mr. Rahul Malhotra, learned Counsel relies on para 8 of the ATS which records the assurance that the petitioners had done their due diligence regarding the ownership and current status and health of the disputed property and had purchased it on as is where is basis. He further submits that, by the following WhatsApp message, his client had terminated the ATS:
Dear Bhupinder Ji and Sandeep Ji, As per agreement to sell dated 05.08.2023 for the sale of agricultural land measuring 15.62 Bigha at Sahajahanpur, Neemrana for total payment of Rs 821 Lakh. You have paid an advance amount of Rs 165 Lakh. As per agreed terms you were supposed to pay 2nd installment of Rs 165 Lakh on and before 30.11.2023 and thereafter 3rd installment of Rs. 165 Lakh on and before 15.12.2023. However, as on date i.e till 3rd January 2023 you have failed to pay both 2nd and 3rd installment. After many attempts to contact you you finally responded to clear the dues by 3rd January and meet us in this regard. However after trying to contact you over phone no response has been given by you. It seems you are trying to avoid your obligations.
You are in breach of Clause 4 of agreement to sale. You are hereby served this notice to rectify the breach and pay the amount as agreed between the parties within 15 days of this email otherwise we will terminate the said agreement to sell and forfeit the advance as per clause 4 of the agreement.
12. Mr. Malhotra also relies on para 15 of the judgment of the Supreme Court in Ambalal Sarabhai Enterprise Ltd v KS Infraspace LLP Ltd4 and paras 37 to 42 of the judgment of the Coordinate Bench of this Court in C.V. Rao v Strategic Port Investments KPC Ltd5.
13. While examining a petition under Section 9 of the 1996 Act, the Court is not expected to embark upon a detailed excursion into the merits of the matter. All that has to be seen is whether the petitioners have made out a case for grant of interim protection regarding the arbitrable corpus, applying the principles of prima facie case, balance of convenience and irreparable loss.
14. Applying these principles, I am of the opinion that the petitioners have been able to make out a case for grant of interim protection. A comparison of the description of the lands in the temporary injunction application, filed by Lakhan Devi with the lands specified in Annexure to the ATS indicates that 0.49 hectares in Khasra No.1325 and 0.83 hectares in Khasra No.1326 are common. As far back as on 17 September 2013, there was a stay against alienation of the said properties.
15. It appears, prima facie, that concealing this fact, the respondent executed the ATS dated 5 August 2023 with the petitioners including, in the contracted land, the said parcels.
16. This cannot be wished away merely by a reference to Clause 8 of the ATS. It is difficult to understand how, even with due diligence, the petitioners could have learnt of the suit proceedings pending before the Alwar Court, in the absence of even a veiled indication to that effect in the ATS.
17. It is also clear that the WhatsApp message dated 3 January 2024 from the respondent to the petitioners does not amount to termination of the ATS. It merely states that the respondent would terminate the ATS in the event of failure of the petitioners in complying with the demand in the WhatsApp message.
18. The decision relied upon by Mr. Malhotra in Ambalal Sarabhai Enterprise relates to an Order XXXIX application in a suit, and is clearly distinguishable.
19. A prima facie case has, therefore, been made out by the petitioners. If the respondent is permitted to alienate or create third party rights in respect of the disputed property, it is bound to result in irreparable prejudice to the petitioners.
20. The balance of convenience is also, therefore, in favour of maintaining status quo with respect to the disputed land, pending disposal of the arbitral proceedings.
21. Accordingly, the respondent as well as all others acting on its behalf shall stand restrained from taking any further steps towards transfer or alienation of the land forming subject matter of Annexure-1 of the Agreement to Sell dated 5 August 2023.
22. The petition stands disposed of in the aforesaid terms.
C.HARI SHANKAR, J
SEPTEMBER 2, 2024
Dsn/aky
Click here to check corrigendum, if any
1 the 1996 Act, hereinafter
2 ATS, hereinafter
3 disputed property, hereinafter
4 AIR 2020 SC 307
5 218 (2015) DLT 200
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