Icp Investments (Mauritius) Ltd v. Uppal Housing Pvt. Ltd. & Ors

RAJIV SAHAI ENDLAW, J. AUGUST 30, 2019 "ak/bs/gsr" (corrected and released on 28th September, 2019)

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 30th August, 2019 + CS(COMM) 1079/2018 & IA No.17779/2018 (u/O VII R- 11(a)&(d) CPC) ICP INVESTMENTS (MAURITIUS) LTD. ..... Plaintiff Through: Mr. Pranav Vyas with Mr. Parinay T. Vasandani, Advs. Versus UPPAL HOUSING PVT. LTD. & ORS ..... Defendants Through: Mr. Manoj K. Singh with Ms. Nilava Bandyopadhyay, Ms. Vijaya Singh & Mr. Satwik Singh, Advs. for D-1. CORAM: HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. The plaintiff has instituted this suit against defendants no.1 to 5, viz. (i) Uppal Housing Pvt. Ltd., (ii) Mangalmay Holdings Pvt. Ltd., (iii) Manoj Talwar, (iv) Jitendra Singh, and, (v) Umang Realtech Pvt. Ltd., for (A) declaration, that (a) the Agreement dated 27th March, 2009 entered between defendant no.5 Umang Realtech Pvt. Ltd. (Umang) and defendant no.1 Uppal Housing Pvt. Ltd. (Uppal) with respect to property at Paprawat is void, having been brought about by fraudulent misrepresentation by Uppal to Umang; (b) the Agreement, also dated 27th March, 2009 entered between Umang and Uppal with respect to property at Daulatpur is void, having been brought about by fraudulent misrepresentation of Uppal to Umang; (c) the Agreements dated 27th March, 2009 aforesaid with respect to properties at Paprawat and Daulatpur were "impossible from the date of Agreement" and thus void; (d) the Agreements dated 27th March, 2009 aforesaid with respect to properties at Paprawat and Daulatpur are vague and uncertain and thus void; (e) the defendants no.2 to 4 Mangalmay Holdings Pvt. Ltd. (Mangalmay), Manoj Talwar (Manoj) and Jitender Singh (Jitender) have acted contrary to the interest of Umang; (f) Umang has unreasonably failed to take steps to recover its monies from Uppal and has thus acted to its own detriment; and, (B) consequential direction to Uppal to pay the amount of Rs.288,05,00,000/- to Umang together with interest at 18% per annum. 2. The suit, unaccompanied with any application for urgent relief, came up before the Joint Registrar on 20th August, 2018, when summons thereof were ordered to be issued. 3. Pleadings in the suit have since been completed. 4. Uppal has filed IA No.17779/2018 under Order VII Rule 11 (a) and (d) of the CPC for rejection of the plaint, on the ground of (i) the plaint not disclosing any cause of action; (b) the suit claim being barred by time; and, (c) the plaintiff being not entitled to maintain the suit as a derivative action on behalf of Umang. 5. The aforesaid application of Uppal came up before this Court on 13th February, 2019, when though the counsel for the plaintiff appeared, but sought adjournment. 6. The counsel for the plaintiff and the counsel for Uppal have been heard. 7. None appears for any of the other defendants, all of whom were reported to be served as far back as on 4th September, 2018 and of which, Manoj as well as Jitender and Umang together, have also filed written statements. The right of Mangalmay to file written statement was closed on 23rd January, 2019. Mangalmay, Manoj, Jitender and Umang are proceeded against ex-parte. 8. It is the case of the plaintiff in the plaint, that (i) the plaintiff and Uppal are shareholders of Umang, with plaintiff having 52% shareholding of Umang and Uppal having 45% of the shareholding of Umang; (ii) Mangalmay has remaining 3% of the shareholding of Umang; (iii) Manoj and Jitender are the Directors of Umang; (iv) the plaintiff, in its capacity as a shareholder of Umang, is filing this derivative suit to protect the interest of Umang and secure recovery of the amount of Rs.288,05,00,000/- due from Uppal to Umang; (v) the said amount was paid by Umang to Uppal, to "obtain" approximately 44,43,120 sq. ft. Floor Space Index (FSI) of certain land parcels located at Daulatpur and Paprawat area; (vi) the said amount was paid as advance by Umang to Uppal and which monies Umang, in dereliction of its duty, has failed to recover back from Uppal; (vii) Uppal, in the year 2007, misrepresented to