9911796707
TMI Blog2022 (6) TMI 994X X X X Extracts X X X X X X X X Extracts X X X X ..... oned in the application, the same is allowed. The reply is taken on record, subject to all just exceptions. CM-4895-CWP-2022 Prayer made in this application is for placing on record Annexure P-25 to Annexure P-29. For the reasons mentioned in the application, the same is allowed. Annexure P-25 to Annexure P-29 are taken on record, subject to all just exceptions. Main case [1]. Petitioner has preferred this writ petition for the issuance of an appropriate writ, order or direction especially in the nature of certiorari for quashing the award dated 09.12.2016 passed by the Daily Lok Adalat in Civil Suit No.160 of 2016/CS No.2536 of 2016 titled "Sparash Promoters Pvt. Ltd. And others vs. Cosmo Propbuild Pvt. Ltd. And others" along with all subsequent proceedings arising therefrom. Further a writ, order or direction in the nature of prohibition has also been sought seeking to stay the operation of Award dated 09.12.2016 passed by the Daily Lok Adalat and also directing the respondent No.2 to defer the proceedings pending before the Authority in the context of change of land use. Petitioner has also prayed for issuance of mandamus directing respondent No.1 to submit an inquiry repor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... struction & Anr. vs. Kothakapu Muthyam Reddy & Ors., 2017 SCC Online SC 1053. [5]. It has been pleaded that during statutory demerger, the petitioner received usage and development rights in certain land parcels in village Chauma, Tehsil & District Gurugram. The said land parcels are situated in Sectors 111 and 113, Gurugram. As per demerger order dated 08.01.2018 corrected on 16.07.2018 passed by the NCLT, petitioner has exclusive right to use and develop these land parcels. Respondents No.7 to 11 fraudulently obtained the consent of the petitioner in passing of impugned award by the Daily Lok Adalat, Gurugram vide order dated 09.12.2016 and have fraudulently managed to get the mutation of the ownership entered in the revenue record. The agreed amount of Rs.114.00 crores as mentioned in the award has not been paid to the petitioner except an amount of Rs.16,30,03,539/-. An amount of Rs.96,68,83,585/- still remains unpaid. The cheques have already been dishonoured, therefore, as per clause 7 of the compromise deed dated 23.11.2016 which is integral part of the impugned award, the deed is automatically stood cancelled and has been rendered null and void. Respondents No.7 to 11 have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rugram). [8]. In the present writ petition the petitioner has pleaded that in furtherance of its business interest, the petitioner expressed interest in exchange of the aforesaid land parcels in Sectors 111 and 113 Gurugram with respondents No.7 to 11 i.e. Subsidiaries companies of respondent No.5/M3M Developers Ltd. On 18.11.2016, respondents No.7 to 11 started to claim interest in the aforesaid land even before execution of any formal document. Petitioner got filed a civil suit No.160 of 2016/CS No.2536 of 2016 titled 'Sparash Promoters Pvt. Ltd. and others Vs. Cosmo Propbuild Pvt. Ltd. and others. During pendency of the suit, a compromise was effected between the plaintiffs (which the petitioner claims that the suit was filed on its behalf as it was represented by the proforma respondents No.13 to 15) and defendants (respondents No.7 to 11 herein). According to the petitioner, the compromise was effected by proforma respondents No.13 to 15 on its behalf, which was in consonance with the agreements executed between the joint ventures partners (EMAAR Properties PJSE Dubai & MGF Developments Ltd.) The compromise was effected on 23.11.2016. [9]. In terms of the compromise deed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 27.03.2018. In the month of October 2018, petitioner got into dispute with its erstwhile joint venture partner EMAAR Properties PJSE Dubai along with EMAAR MGF Land Limited on the other part i.e the holding company of respondents No.13 to 15 since June 2019. Respondents No.7 to 11 took undue advantage of dispute and obtained partition of the land parcels at the back of the petitioner and got the revenue entries incorporated in the names of respondents No.13 to 15. All these things happened at the back of the petitioner. Petitioner further claims that factum of partition came to the notice of the petitioner only in the month of July, 2021, when its officials were pursuing other licence applications and application for change of land use was being processed in the office of District Town Planner, Gurugram. On 27.08.2021, petitioner filed a formal complaint against the grant of licence in favour of respondents No.7 to 11 in collaboration with respondents No.5 & 6. On this application, the date was fixed and thereafter it was preponed and intimation was given to the petitioner only on 08.12.2021 for the date of appearance for personal hearing on 09.12.2021. It was only on long persua ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... give sufficient time to the petitioner to produce its documents and only a week's time was given thereafter and now the case is fixed for 16.12.2021 for disposal. Learned Senior Counsel submits that the petitioner apprehends that the aforesaid indifferent attitude on behalf of respondent No.2 is on account of influence of respondents No.5 to 11. Notice of motion for 20.01.2022. Dasti as well. Till the next date of hearing, respondent No.2 shall adjourn the proceedings arising out of Annexures P17 and P18." [13]. Learned Senior counsel for the petitioner submits that the civil suit was filed by respondents No.13 to 15 only at the instance of the petitioner and petitioner is a necessary party. [14]. Learned Senior counsel further submits that the award dated 09.12.2016 passed by the Daily Lok Adalat is totally nonspeaking and no satisfaction has been recorded as required under Order 23 Rule 3 CPC. For ready reference, the award dated 09.12.2016 is reproduced here as under:- "AWARD The case taken up before Daily Lok Adalat for compromise. Learned counsel for parties stated that parties to the suit have compromised the matter. Shri Rakshit Jain, Authorized Representati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve matter for any directions that may be necessary. Sd/ (M.M. KUMAR) PRESIDENT Sd/- (DEEPA KRISHAN) MEMBER (TECHNICAL)" [16]. The Scheme of arrangement before the NCLT was approved wherein EMAAR MGF Land Ltd. was the demerged company and MGF Developments Ltd., was the resulting company. The scheme of arrangement provided for the demerged company (as defined hereinafter) from the demerged company to the resulting company and consequent issue of shares by the resulting company to the shareholders of the demerged company, except to the extent shares held by the resulting company in the demerged company. The Scheme also provided provisions for various other matters consequential or related thereto and otherwise integrally connected therewith, including reorganization/reduction of the share capital of the demerged company. 30.09.2015 was the appointed date which shall mean closing hours of September 30, 2015 or such other date as may be fixed or approved by the Hon'ble High Court. According to definition of share capital shown in the scheme of arrangement, the effective date when the National Company Law Tribunal, New Delhi approved the scheme was 16.07.2018. [17]. All deve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the provisions contained in Section 391 to 394 and all other applicable provisions, if any, of the Act and without any further act, deed, matter or thing. 3.3. In respect of the assets of the Demerged Company relating to the Demerged Undertaking other than those referred to in Clause 3.2 above, including immovable properties, trade receivables, outstanding loans and advances, advances paid to any parties for acquisition of development rights, recoverable in cash or in kind or for value to be received, bank balances, deposits and balances, if any, with Government Authorities, customers and other persons, the same shall be transferred to and vested in and be deemed to have been transferred to and vested in the Resulting Company pursuant to the provisions of Section 394(2) of the Act upon the coming into effect of this Scheme. 3.4. Upon coming into effect of this Scheme, all debts, duties and obligations of every kind, nature and description and liabilities (including contingent liabilities) relating to the Demerged Undertaking shall without any further act, application, instrument or deed, matter or thing stand transferred to and assumes by and/or deemed to be transferred to an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ally by, issued to or executed in favour of the Resulting Company; and the rights and benefits under the same shall be available to the Resulting Company." [19]. Similarly, para no.6 relates to legal proceedings. Paras No.6.1 and 6.2 read as under:- "6.1. Upon the coming into effect of this Scheme all suits, actions, administrative proceedings, tribunals, proceedings, show cause cases, demands and legal proceedings of whatsoever nature by or against the Demerged Company pending and/or arising on or before the Appointed Date or which may be instituted any time thereafter and in each case relating to the Demerged Undertaking shall not abate or be discontinued or be in any way prejudicially affected by reason of the Scheme or by anything contained in this Scheme but shall be continued and be enforced by or against the Resulting Company with effect from the Appointed Date in the same manner and to the same extent as would or might have been continued and enforced by or against the Demerged Company. Except, as otherwise provided herein, the Demerged Company shall in no event be responsible or liable in relation to any such legal or other proceedings that stand transferred to the Resu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duced hereasunder:- "8.5. All assets (including fixed assets, current assets, cash and bank balances etc.) acquired by the Demerged Company after the Appointed Date and prior to the Effective Date for operation of the Demerged Undertaking or pertaining to the Demerged Undertaking shall be deemed to have been acquired for and on behalf of the Resulting Company." [22]. Para 11 of the Scheme relates to mutual co-operation for giving effect to the Scheme. In nutshell, the petitioner laid emphasis on the Scheme to contend that whatever was done on the appointed date/effective date by respondents No.13 to 15, the same was for the benefit of the petitioner and, therefore, petitioner is a necessary party in respect of land in question. Technically petitioner is not party in the civil suit, in the compromise and in the exchange deeds, but for all intents and purposes petitioner would be deemed to be a party as all steps taken by respondents No.13 to 15 were for the benefit of the petitioner. [23]. Learned Senior counsel for the petitioner further submits that the compromise decree obtained by respondents No.5 to 11 is fraudulent and the same is not executable. Firstly the Court has not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le examining the terms of settlement before suit is disposed of in terms of settlement. The Court shall decide the question where it is alleged by one party or denied by other party that an adjustment or satisfaction has been arrived, the Court shall decide the question. The Court before whom the compromise is effected has to decide the question whether satisfaction has been arrived at on the basis of any lawful settlement. Learned Senior counsel referred to Banwari Lal vs. Smt. Chando Devi (Through LR), 1993 AIR (SC) 1139. [25]. Learned Senior counsel further submits that the compromise forming the basis of decree can only be questioned before the same Court which has recorded the compromise and the fresh suit would be barred under Order 23 Rules 3 and 3-A, CPC. The said provision also covers the decree based on fraudulent compromise that it was obtained by fraudulent means and the same would also fall under the provisions of Order 23 Rule 3-A CPC. When independent suit is barred under Order 23 Rule 3-A CPC, therefore, the Court was obligated to decide all questions. Reference has been made to Charanjit Singh vs. Jagtar Kaur (dead) through Lrs, 2016(2) PLR 480 and Horil vs. Kesha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also submits that the petitioner cannot be left remediless. Filing of independent suit in terms of Order 23 Rule 3-A CPC is barred. If petitioner is divested of its rights arising from Scheme of Arrangement framed by the National Company Law Tribunal, New Delhi, the petitioner would be remediless. Where there is a right, there has to be a remedy to redress the grievance. Ubi jus ibi remedium applies to the present set of circumstances. The writ Court is competent to interfere in such circumstances as held by the Hon'ble Apex Court in Shiv Shakti Coop. Housing Society, Nagpur vs. M/s Swaraj Developers, 2003(2) R.C.R. (Civil) 676 (SC); Surya Dev Rai vs. Ram Chander Rai, 2004(1) R.C.R. (Civil) 147 (SC) and Radhey Shyam and another vs. Chhabi Nath and others, 2015(2) R.C.R. (Civil) 606. [29]. On the other hand, learned Senior counsel for respondents No.5 to 11 vehemently submits that the present writ petition is not maintainable. Petitioner never filed the civil suit, nor entered into any such exchange deeds. Petitioner was never privy to such litigation/deeds. Admittedly, the civil suit was filed by proforma respondents No.13 to 15. Exchange deeds were executed between the profo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n approach the same Court which has passed the compromise decree under Order 23 Rule 3 CPC. Petitioner if, permitted by law can assail exchange deed by way of declaratory civil suit against the incorporation of names in the revenue record. The petitioner can initiate necessary proceedings under Section 45 of the Punjab Land Revenue Act in accordance with law. [31]. Learned Senior counsel for respondents No.5 to 11 further submits that in the pleadings of the writ petition itself, the petitioner has acquiesced the knowledge of filing civil suit and knowledge of execution of exchange deed, therefore petitioner's action is highly belated and cannot espoused by the petitioner under the garb of maintaining this writ petition. [32]. Learned Senior counsel for respondents No.13 to 15 on the other hand by relying upon New Okhla Industrial Development Authority (Noida) vs. Yunus and others, 2022 SCC OnLine SC 138; Triloki Nath Singh vs. Anirudh Singh and others, (2020) 6 SCC 629 and Sneh Gupta vs. Devi Sarup and others, 2009(6) SCC 194 submits that the award passed by the Lok Adalat is the culmination of a non-adjudicatory process. The parties are persuaded even by members of the Lok ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Applicant to act on behalf of the Respondent and effect such formalization. Therefore, these documents are not essential for implementation of the Scheme." [35]. By referring to the aforesaid stand of respondents No.13 to 15, learned Senior counsel for the petitioner submits that the factum of petitioner being resulting company and beneficiary under the Scheme is an admitted fact, therefore, no attorney for filing the civil suit and other proceedings through respondents No.13 to 15 was required at any point of time and the proceedings undertaken by respondents No.13 to 15 suffice to bring the petitioner under the ambit of necessary party much less aggrieved party. [36]. By referring to the financial statements of respondent No.13 i.e. Sparsh Promoters Private Limited for the year 2019-2020, learned Senior counsel for the petitioner submits that the National Company Law Tribunal, New Delhi vide its order dated 08.01.2018 corrected on 16.07.2018 approved the arrangement as embodied in the Scheme of Demerger between EMAAR MGF Land Limited (the ultimate holding company) and MGF Developments Ltd. (the resulting company). The Scheme was filed with Registrar of Companies on 31.07.2018 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uate opportunity of hearing to the petitioner. Proceedings undertaken before respondent No.2 in the context of preponing the date of hearing from 24.02.2022 to 09.12.2021 unilaterally and thereafter making communication to the petitioner only on 08.12.2021 requiring petitioner to personally appear on 09.12.2021 need to be deprecated. The application for such preponement is not forthcoming except to see that it was done on the application of respondents No.7 to 11. It is because of this act of respondent No.2, petitioner became apprehensive and came to this Court. In my considered opinion, it was not reasonably expected from respondent No.2 to unilaterally prepone the date of hearing without issuing notice to the petitioner. Preponement was done unilaterally and thereafter intimation was issued to the petitioner on 08.12.2021 to come present on 09.12.2021 to submit its case. Further one week's adjournment was given only on account of persuasion made by the petitioner. In any case, preponement of date of hearing from 24.02.2022 to 09.12.2021 was not justified. [40]. The apprehension shown by the petitioner would be squarely answered, if the pending proceedings in terms of change ..... X X X X Extracts X X X X X X X X Extracts X X X X
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