Ganton Limited v. Anova Infracon Private Ltd & Another

')\ j(^, .t (\ s7 $- ,K IN TTIT] IIIGII COUIIT OF DEI,HI AT NIIW DELHI I o.M .I>. 75412011 Judgment Delivered on: 21.02.2012 GANTON LIMITUD ..... Pctilioncr 'Ihrough: Mr.Anil Sapra, Sr. Advocatc with Mr.(iaurav Mitra. Mr.Sachin Midha, Advs. VCTSUS nNOVn INIIIIACON PRIVATfI LTD & ANO'I'Iil1R..... Itcspondent 'l'hrough: Mr.IIarish Malhotra, Sr. Advocale and Mr.Sanjeev Sachdcva, Sr. Advocate with Sanjay S. Chhabra, Adv for respondent I &'2 Mr.Puneet Jain and Mr.Shailcndra Paul, Adv for applicant in I.A. No.I226l20I2 COITAM: I'ION'I}I,II MII. JUSTICE G.S.SISTANI c.s.slsll^Nl, J. (oft,4/.)

¶1Pctitioncr had approachcd this cclurt by filing the present pctition undcr Scction 9 of thc Arbilration & Conciliation Act, 1996 with thc following praycr: a) I'}cnding disposal of thc accompanying petition and during thr: arbitration procccdings, this I-Ion'ble Court rnay be pleascd to pass an ad intcrirn ex-paltc ordcr rcstraining the Itespondents, their: employccs, agcnts, successors, rcprescntativcs anci assignecs fi'om disposing, sclling, creating third party intcrcst, lctting, mortgaging, furthcr lcasing or so of thc property bearing . plot No.IS-3, Sector 22I),NOIDA adrncasuring about 4,00,000 scluarc mctcrs situatcd aI Yanuna Iixprcssway under the' Sohcmc Codc YIIA-I{T-02 till the arbitral award is madc by thc arbitrator and till thc said award. if rnadc in favour of thc pctitioncr is fully satisllcd." f oMP 754-20LL Page 1" of 5 1- ,r''r

¶2While issuing notice in thc matter, this court by an order dated 10.10.2011 hacl rcstraincd thc rcspondcnts fiom disposing, sclling, creating third pafty intcrcst, lctling, morlgaging, further leasing or so of the property bearing plot No.l S-3, Sector 22 D, NOIDA admsasuring about 4,00,000 square rncters situatcd at Yamuna Iixpressway undcr thc Schcme Code YIln-RT-

02.

¶3Aflcr completion of plcadings, thc mattcr was taken up for hearing on

30.1 1 .2011and on various othcr dates. During hearing of this rnattcr, the parLics cxpressed their dcsire to entcr into an amicablc scttlernent, and the agrccd tenns wcre recorded in the ordcr datcd I6.L2.2011, which are reproduccd bclow: "(i) Petitioner or a nolninec of thc petitioner, which shall bc a subsidiary of the petitioner and whose name will be given within fourtccn (14) days fiom today, will contribute 70% of thc cntirc ducs payablc to Yatnuna llxprcssway Industrial I)cvclopmcnl Authority (for short, "YliII)A") by way of prcmium and all instahnents. llpon payments being made to YIIIDA and the exccution of a lease deed, rcspondcnt no.1 shall immediately exccutc a sub-lease, as per YIIIDA norms, in favour of thc aforesaid nominee of the pctitioncr tor 55o/o of the ullenoumbcrcd arca which should bc of thc samc charucLerluse as thc 45Yo being rctaincd by the rcspondcnt. (iD petitioner and/or its subsidiary shall make all such payrnenls to YIIIDA on or bcforc 04.02.2012, so that the ratio of paymcnts bctween the petitioncr and the rcspondcnt is 70:30 respeotively, to facilitatc cxccution of a lease deed by YIIIDA. (iiD Rcspondent shall makc an application for extension of timc to makc the balance paymcnt to YIIIDA on or before

04.02.2012.

(iv) In thc cvcnt of the pclitioncrs ancl/or their nominees fail to cornply with and make payment to YIIIDA on or bcforc 04.02.2012, petitioners and/or its subsidiary-nbrninee shall pay to the respondent a sum of I{s.1 .0 crore in lieu of all oMP 754-2071. ,r6 or cvery clairn of thc respondent, and shall forfeit all the rights of thc petitioncr and/or its subsidiary nominee by or undcr or in the joint venturc agrcclnent dated 27.I2.20I0 and the land in question.

(v) In thc cvent of respondent failing to comply with the respondent's obligation to irnrncdialcly executing a sub-lcase, as stated aforesaid, it will be opcn to thc pctitioner and/or its subsidiary norninee, to cnforcc thc said obligation by way of spccific performancc.

(vi) Parties agree to withdraw and/or not press proccedings against cach othcr and/or their officers employecs." On 16.12.2011 this mattcr was adjourned to 0I.02.2012. In the mcanwhile an application (IA.No .122612012) was filed by onc Mr.Karan Luthra for bcing irnplcadcd as a pafty, as according to hirn the respondent hacl acccptcd a sum of Rs.20.0 orores for thc salnc vcry plot, subject mattcr of OMIr.No.754l2011 . Notioe was issuccl in thc application for

30.01 .2012 and thereaftcr thc mattcr was adjoumed to 01 .02.2AI2. On 0I.02.2012 cgunsel fur thc pctitioner informcd this court that petitioner has not becn able to arfangc the moncY,' in tcrms of thc order daled

16.12.2011 and sought an adjournment. Order datcd 0I.02.2012 reads as nndcr: "It is pointed out that the petitioner has not bcen able to arrange for moncy in tcrms of order daled 16.12.2011. Counsel for the pctitioner prays for an adjournmcnt. Mr.sanjccv Sachdcva, learncd senior advocate for the rcspondent subrnits that his client will approach the Yatnltna Authorities for enlargement of tirnc in vicw of pendency of these proceeclings and the stay ordcr, which has been granted, and approach anothcr iuvostor. Mr.Sundaram, learned scnior counsel for the applicant in I.z\.12262012 submits that although his client is yet to be irnpleadcd as a party to the pctition, hc prays that above order passcd bc without prejudice to his righls and contctrtions, as his all and

¶4"l|. {r oMP 754-201L fl

¶5clicnl has already invested an atnount of I{s.22.65 crores. This is disputcd by Mr.Sachdeva, learncd scnior counsel for the rcspondcnt. At rcqucst of counscl for the pctitioner, adjoumed to

09.02.2012. DASTI 1o counsel for the paflics under thc signatures of the Court Master." Subscclucntly thc pctitioner hled an application (IA.No.22l2l20l2) sceking cxtcnsion of tirnc i1 complying with thc ordcr datcd 16-12'2011' Thc application for cxtcnsion of timc was opposed by counsel for the rcsponclcnL, printarily on the ground that on account of dcfault of the petitioncr, thc plot, subjcct maltcr of the petition stands canccllcd by YIiIDA. As pcr this settlcmcnt, it was agrccd that petitioner or his nornincc will contributc 70Yo t>1' thc cntire ducs payablc to YIIID^ and various terms wcrc cxlraoted, which arc reproduccd abovc. The petitioner was to make payrncnt to YEIDA on or beforc 04.02.2012. As pcr clausc (iv) of the Scttlcrncnt, in the evcnt clf thc pctitioncr and/or his norninccs fail to comply with and rnakc thc payrnent to YIjIDA. on or bcforc 04.02.2012' thc pctitioncr and/ or his subsicliary-nomince was to pay to the respondcnl a sum of Its.1.0 clorc in licu of all or cvery claim of thc respondcnt, and shall forl'eit all thc rights of thc petitioncr under or in the Joint Vcnlurc Agrccmcnl datcd 27.12.2010 and the land in qucstion. Admittcdly, thc amount as agreed was not paid by 04'02'2012, and even' thc amounl.has not bcen pai<l till date, despite thc mattcr bcing adjourned fiom lirnc to timc. 'Ihc pctitioncr had made an application seeking cxtcnsion of timc, which was opposed by counscl for the pctitioner' In thc rncanwhilc, admittcdly thc plot stands cancelled on account of non-paytncnt.

¶6/

¶7oMP 754-20L7 AN {l' (lounsel ft)r the petitioner subrnits that petitioner has not rnadc the payment on accotlnt of thc lact that pctitioncr learnt subscquently that rcspondcnt had cntcrcd into another agreemcnt with Mr.Karan Luthra and hacl acceptcd a surn of I{s.20.0 crorcs for thc samc very project. It is also statcd by counscl lor thc pctitioncr thal an application has since becn preparcd for declaring thc sctllcrncnt to bc nulr and void. c)' Mr'IIarish Malhotra, lcarncd scnior advocate lbr the rcsponclents no.1 ancl 2 subrnits that thc cntirc dispute has ariscn on account of thc fact that pctitionel was not ablc to arrangc for the money even aftcr thc scttlcment, rvhich js cvidcnt fiorn thc lact that moncy has not bccn paid to yEIDA uplo 04'02'20J2 and cvcn tili datc moncy has not bccn paid, which led to thc cancellation of thc plot. counscl also submits that understanding, if any, bctlvccn thc t'cspotrdent and Mr.Karan Luthra woulcl havc 'o clfect on thc an"angctncnt with thc pctilioner hcrcin, as the arrangcmcnt was ituivcd at in court and the samc would havc bccn irnplcmcntcd in case the pctitioner would havc paicl thc moncy. l0' 'l'aking into consideration thal thc pctitioncr has lbilccl to honour the tenns of thc scttlcmcnt ancl thc plot harring becn canccllcd, thc prescnt petitio' is iiablc to bc dismissed, as pcr clause (vi) of thc sctllerncnt. T he petition is nccordi'gly, disrnissccr with costs of Its.50,000/-. I l ' In vicw of ordcr passcd in thc O.M.P. No.754/2011, prcsent applications stand disrnisscd. - -.c. I{'IIBI{UAIIY 21, 2012 ssn G.S.SIS't'AN I ,.f f, oMP 754-207L