Niyam AI | Landmark Property Development And ... vs Ansal Properties & Infrastructure Ltd. ... 2024 Latest Caselaw 6550 Del

Full Judgement

Delhi High Court
Landmark Property Development And ... vs Ansal Properties & Infrastructure Ltd. ... on 3 October, 2024
Author: Dinesh Kumar Sharma
Bench: Dinesh Kumar Sharma
                          $~

                          *    IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                                         RESERVED ON - 10.09.2024.
                          %                                         PRONOUNCED ON - 03.10.2024.

                          +    OMP (ENF.) (COMM.) 159/2019, EX.APPL.(OS) 940/2023,
                               EX.APPL.(OS) 941/2023, EX.APPL.(OS) 942/2023
                               LANDMARK PROPERTY DEVELOPMENT AND COMPANY
                               LTD. & ORS.                                           .....Decree Holders
                                                    Through:      Mr. Amit Sibal, Mr. Siddharth
                                                                  Aggarwal, Sr. Advs. with Ms.
                                                                  Manmeet Kaur, Mr. Gurtejpal Singh,
                                                                  Mr. Abhishek Rana, Ms. Aashna
                                                                  Arora, Advs.

                                                    versus

                               ANSAL PROPERTIES & INFRASTRUCTURE LTD. & ORS.
                                                                               .....Judgement Debtors
                                                    Through:      Mr. Ashwini Kumar Mata, Sr. Adv.
                                                                  with Mr. Sujoy Datta, Ms. Nishtha
                                                                  Khurana, Ms. Mahima Shekhawat,
                                                                  Mr. Karan Gaur, Advs. for R-1, 2 and
                                                                  3.
                                                                  Mr. Ashim Vachher, Mr. Vaibhav
                                                                  Dabas, Mr. Kunal Lakra, Mr.
                                                                  Vinayak Uniyal, Ms. Saiba M.
                                                                  Rajpal, Advs. with Mr. Anoop Sethi
                                                                  Mr. Sukrit Seth, Adv. for Intervener
                                                                  in EX.APPL.(OS) 1364/2023

                          EX.APPL.(OS) 940-42/2023 in OMP (ENF.) (COMM.) 159/2019            Page 1 of 57
Signature Not Verified
Signed By:PALLAVI VERMA
Signing Date:08.10.2024
17:09:20
                                   CORAM:
                                  HON'BLE MR. JUSTICE DINESH KUMAR SHARMA

                               S. No                        Particulars                    Para Nos.

                                 A.     Brief Facts                                          1-24

                                 B.     Submissions on behalf of Applicant/Judgment          25-32
                                        Debtors
                                 C.     Submissions on behalf of Non-Applicant/Decree        33-41
                                        Holders
                                 D.     Findings and Analysis                                42-72

                                                      JUDGMENT

DINESH KUMAR SHARMA, J:

EX.APPL.(OS) 940/2023, EX.APPL.(OS) 941/2023, EX.APPL.(OS) 942/2023 in OMP (ENF.) (COMM.) 159/2019

(A) BRIEF FACTS:

1. The present applications bearing EX.APPL.(OS) 940/2023 has been filed on behalf of Judgment Debtor No.1 under Section 47 and Order XXI Rule 2 (2) read with Section 151 CPC seeking order certifying adjustment, discharge and satisfaction of the Award, and disposing of the proceedings in OMP (ENF.) (COMM.) 159/2019 and application bearing EX.APPL.(OS) 941/2023 filed on behalf of Judgment Debtor No.1 under Section 47 read with Section 151 CPC seeking necessary directions and application bearing EX.APPL.(OS) 942/2023 filed on behalf of Judgment Debtor No.1 under Section 5 of the Limitation Act,

EX.APPL.(OS) 940-42/2023 in OMP (ENF.) (COMM.) 159/2019 Page 2 of 57 Signature Not Verified Signed By:PALLAVI VERMA Signing Date:08.10.2024 17:09:20 1963 read with Section 151 CPC seeking condonation of delay in filing the application under Section 47 and Order XXI Rule 2(2) read with Section 151 CPC.

2. Facts as briefly stated are that a joint venture agreement was executed between "Landmark Group" and "Ansal Properties and Infrastructure Limited" to carry out various activities relating to real estate. The joint venture company was named as Ansal Landmark Township Pvt. Ltd.

(ALTPL). The main object of the Joint Venture Agreement was development of real estate projects in Meerut, Ghaziabad and Karnal. In the year 2011, in order to settle certain disputes between the parties a Term Sheet dated 21.12.2011 and Business Transfer Agreement dated 02.04.2012 was executed between the parties, which, inter alia, provides for the terms and conditions under which the entire operations with respect to the Karnal Project, were to be transferred to Ansal Landmark Karnal Township Pvt. Ltd. (ALKTPL), which is part of the Landmark Group. However, subsequently, certain disputes arose between the parties and the same were referred to arbitration, wherein late Mr. Justice Ramesh Chandra Lahoti (Retd.), Former Chief Justice of India passed an Arbitral Award dated 07.09.2018 as corrected on 17.09.2018 and 13.11.2018 against the Judgment Debtor No.1. This award was challenged by the Judgment Debtor vide O.M.P. (COMM) 68/2019 under Section 34 of the Arbitration and Conciliation Act. The Decree Holder also filed the Enforcement petition bearing OMP (ENF.) (COMM.) 159/2019 under Section 36 of the Arbitration and Conciliation Act seeking execution of the award passed by the learned

EX.APPL.(OS) 940-42/2023 in OMP (ENF.) (COMM.) 159/2019 Page 3 of 57 Signature Not Verified Signed By:PALLAVI VERMA Signing Date:08.10.2024 17:09:20 Sole Arbitrator.

3. While the matter rested thus, the applicant / Judgment Debtor moved the present applications in OMP (ENF.) (COMM.) 159/2019 praying therein that an order may be passed recording and certifying adjustment, discharge and satisfaction of the Impugned Award made by the Judgment Debtors towards the award dated 07.09.2018 as rectified on 17.09.2018 and 13.11.2018 and to discharge the Judgment Debtors from these proceedings and disposing of the proceedings in OMP (ENF.) (COMM.) 159/2019. In alternative the prayer was made that the OMP (ENF.) (COMM.) 159/2019 be dismissed on account of the Decree Holders unconditional waiver and abandonment of the award in terms of Undertaking Letter dated 21.03.2023. The prayer was also made to stay the operation of the award dated 07.09.2018 as rectified by order dated 17.09.2018 and 13.11.2018 and the present execution proceedings during the pendency of the present petitions.

4. The applicant submitted that in October 2022 the settlement talks were initiated at the instance of the representatives of the Respondents/ Decree Holders, namely Mr. Aryaman Dalmia, son of Mr. Gaurav Dalmia and Mr. Sanjeev Malhotra, an official of the Landmark Group with the Judgment Debtors. In February 2023 parties started final discussions and negotiations qua settlement of the disputes between the parties including the present enforcement proceedings with Mr. Indeep Singh as a mediator. The applicant submitted that believing the representations made by the Decree Holders and in order to rebuild their relationship with the respondents/ Decree Holders, considered the

EX.APPL.(OS) 940-42/2023 in OMP (ENF.) (COMM.) 159/2019 Page 4 of 57 Signature Not Verified Signed By:PALLAVI VERMA Signing Date:08.10.2024 17:09:20 settlement of various legal proceedings including the present proceedings outside the Court. The deliberations were held between the parties and various meetings were held on 21.10.2022, 31.10.2022, 03.11.2022, 25.02.2023, 20.03.2023 and 21.03.2023.

5. During discussion various options were discussed. Since there was a long-standing dispute, which the parties had tried to resolve on multiple occasions, the parties in good faith, mutually decided that pending completion of various acts contemplated under proposed settlements, the duly executed agreements would be kept with a mutually trusted well-wisher of the parties, namely Mr. Jayant Davar. Mr. Jayant Davar is a businessman and is founder, Co-Chairman & Managing Director of Sandhar Technologies Limited.

6. The applicant submitted that after multiple discussions and negotiations a comprehensive settlement was negotiated and iteratively finalized several agreements which captured the overall terms of settlement. The applicant submitted that these documents were drafted, exchanged, negotiated and finalized by parties under respective legal advice arrived at a comprehensive settlement putting an end to all disputes pertaining to the Business Transfer Agreement dated 02.04.2012 and the Award dated 07.09.2018 and also executed actionable documents recording their agreement on 21.03.2023. It was also agreed that since 'closing' envisioned several aspects including performances on part of both contestants, it was mutually advantageous that Mr. Jayant Davar would retain the executed agreements for duration of time within which respective performances were accomplished.

EX.APPL.(OS) 940-42/2023 in OMP (ENF.) (COMM.) 159/2019 Page 5 of 57 Signature Not Verified Signed By:PALLAVI VERMA Signing Date:08.10.2024 17:09:20

7. The applicant submitted that the parties executed the following documents:

a) Supplementary cum Amendment Agreement dated 21.03.2023.

b) Payment and Performance Obligation Agreement dated 21.03.2023.

c) Application for withdrawal of the following cases:

i. OMP (ENF.) (COMM.) No. 159 of 2019 ii. OMP (I) COMM. NO. 399 of 2018 iii. OMP (I) COMM. NO. 166 of 2019 iv. CCP (O) NO. 28 of 2022 in OMP (ENF.) (COMM.) NO. 159 OF 2019 v. CCP (O) NO. 35 of 2022 in OMP (I) (COMM.) NO. 399 of 2018 vi. Contempt Case (Civil) No. 812 of 2019 vii. Complaint filed before Economic Offences Wing bearing Diary No. 3455/Dcp/EOW dated 18.11.2021 and representation vide Letter No. 703/R-ACP/SECI/EOW dated 06.10.2022. viii. Complaint Case bearing No. 1047/2022 filed under Section 156(3) of the Code of Criminal Procedure, 1973 filed before the Additional Chief Metropolitian Magistrate, New Delhi.

                               d)      Undertaking dated 21.03.2023.

                               e)      No Objection Letter dated 21.03.2023.

                           EX.APPL.(OS) 940-42/2023 in OMP (ENF.) (COMM.) 159/2019            Page 6 of 57
Signature Not Verified
Signed By:PALLAVI VERMA
Signing Date:08.10.2024
17:09:20
                                f)   Board Resolutions

                               g)   Power of Attorneys.

8. The applicant along with the applications filed true copies of the Supplementary cum Amendment Agreement, Payment and Performance Obligation Agreement, Undertaking letter, NOC for registration of sale / conveyance deeds or any other document of similar nature of individual plots / houses / apartments / commercial FSI or units in various parts of India involving the Ansal Group. It was stated that the original of these documents are in the custody of Mr. Jayant Davar. The applicant stated that the documents were duly notarised by Ms. Sushma Gupta. The applicant submitted that the sum and substance of the settlement between the parties are as follows:

a) Parties agreed to enter into Supplementary cum Amendment Agreement dated 21.03.2023 amending the Business Transfer Agreement dated 02.04.2012, and Payment and Performance Obligation Agreement so as to fulfil obligations and conditions set out in the Business Transfer Agreement dated 02.04.2012 and effectuate the complete transfer of Karnal Project to the Landmark group;

b) Parties agreed to enter into undertaking under which the Decree Holders, in lieu of execution of the amendment to the BTA, agreed to withdraw the following eight cases pending between the parties:

(i) OMP (ENF.) (COMM.) No. 159 of 2019 titled "Landmark

EX.APPL.(OS) 940-42/2023 in OMP (ENF.) (COMM.) 159/2019 Page 7 of 57 Signature Not Verified Signed By:PALLAVI VERMA Signing Date:08.10.2024 17:09:20 Property Development Company Ltd. Vs. Sushil Ansal & Ors" filed before Hon'ble Delhi High Court

(ii) OMP I (COMM.) No. 399 of 2018 titled "Landmark Property Development Company Ltd. Vs. Sushil Ansal & Ors" filed before Hon'ble Delhi High Court

(iii) OMP (1) COMM. NO. 166 OF 2019 titled "Landmark Property Development Company Ltd. vs Ansal Properties & Infrastructure Ltd. & Ors." filed before Hon'ble High Court of Delhi

(iv) Contempt Case (Civil) No. 812 of 2019 titled "Landmark Property Development Company Ltd. Vs. Sushil Ansal & Anr" filed before Hon'ble Delhi High Court

(v) Contempt Case (Civil) No. 28 of 2022 titled "Landmark Property Development Company Ltd. Vs. Sushil Ansal & Anr" filed before Hon'ble Delhi High Court

(vi) Contempt Case (Civil) No. 35 of 2022 titled "Landmark Property Development

(vii) Complaint filed before Economic Offences Wing bearing Diary No. 3455/Dcp/EOW dated 18.11.2021 and representation vide Letter No. 703/R-ACP/SEC I/EOW dated 06.10.2022.

(viii) Complaint Case bearing No. 1047/2022 filed under Section 156 (3) of the Code of Criminal Procedure, 1973 filed before the Additional Chief Metropolitan Magistrate, New Delhi.

EX.APPL.(OS) 940-42/2023 in OMP (ENF.) (COMM.) 159/2019 Page 8 of 57 Signature Not Verified Signed By:PALLAVI VERMA Signing Date:08.10.2024 17:09:20

c) Under the said undertaking, the Decree Holders or any of the parties to the aforementioned legal proceedings have the power and right exercisable singly to withdraw / seek disposal of all the aforementioned legal proceedings unconditionally and irrevocably in view of the settlement arrived between the parties on any day after 14th April, 2023. Hence, the Decree Holders, separately and independently from the terms and performance of the other agreements, unconditionally waived all rights under and abandoned the award, and consequential actions following therefrom vide this undertaking, with effect from 14.04.2023.

d) Parties agreed that as per one of the terms of the Payment and Performance Obligation Agreement, Decree Holders would be entitled to the amounts which stand deposited before the registry of this Hon'ble Court.

e) Parties agreed that the Decree Holders would return the title deeds of 120 plots situated at Sushant City-I, Bhatinda owned by Judgement No.1, to the Judgement Debtors.

9. The applicant submitted that as per the understanding between the contesting parties, all the original, executed documents, agreements, undertakings, application for withdrawal for pending disputes including the present proceedings, except power(s) of attorney and board resolutions were kept in sealed envelopes and were given to Mr. Jayant Davar to keep in his custody for the satisfaction of the Decree Holders

EX.APPL.(OS) 940-42/2023 in OMP (ENF.) (COMM.) 159/2019 Page 9 of 57 Signature Not Verified Signed By:PALLAVI VERMA Signing Date:08.10.2024 17:09:20 mutual compliances and performances and other elements of 'closing'. It was stated that the Original Powers of Attorney and certified true copies of Board Resolutions were handed over to the Decree Holders and in fact they also acted upon the same by proceeding further with the same and approached relevant authorities for enforcement of amended BTA. It was stated that in the circumstances, there thus remained no reason to further press any legal proceedings against the Respondents, as actionable settlements had been executed. The applicant stated that in pursuance to that the original allotment letters of 120 plots at Sushant City-1, Bhatinda were handed over by the Decree Holder to Mr. Jayant Davar at his residence on 14.04.2023. The applicant submitted that the effect of all these agreements was to put an end to all disputes between the parties once and for all completely and it voluntarily overwrites anything inconsistent therewith in any previous documents including the Award dated 07.09.2018.

10. The applicant stated that the parties have also executed an undertaking stated that the parties have arrived at a full and final comprehensive settlement and Decree Holders have agreed to withdraw the legal proceedings, including the present proceedings, filed by Respondents / Decree-Holders against Ansal Properties & Infrastructure Limited its affiliates and its promoters namely, Mr. Sushil Ansal and Mr. Pranav Ansal and its Directors. The applicant submitted that in view of this the Court may record comprehensive settlement and satisfaction of the Award under enforcement and a corresponding discharge of all Respondents. It has further been submitted that other aspects of

EX.APPL.(OS) 940-42/2023 in OMP (ENF.) (COMM.) 159/2019 Page 10 of 57 Signature Not Verified Signed By:PALLAVI VERMA Signing Date:08.10.2024 17:09:20 performances, compliances and closing have been performed by the applicant before 30.06.2023. It was stated that Judgment Debtor No.1 approached the escrow, Mr. Jayant Davar for release of the documents placed with him. However, the Decree-Holders/Landmark group refused to agree on release of the documents, ostensibly on the pretext that they were examining whether any other documents or cooperation would be required from the Judgment Debtor No. l in addition to the document handed over, and also on the pretext that the process would in any event await the outer deadline of 30.06.2023.

11. The applicant submitted that though the Judgment Debtor has discharged all their obligations however, the Decree Holders appeared not to have instructed their advocates in the present proceedings about the fact of settlement. The Decree Holders also filed the EA No. 727/2023 on 31.05.2023 seeking direction to Judgement Debtor No. 1 for transfer of 120 plots at Sushant City-1 Bhatinda in favour Decree- Holders for a value of Rs.13.5 crores, which was against the terms of the settlement. The applicant submitted that still they believed in good faith that the settlement would be honored by the Decree Holders and the next steps towards release of documents from escrow would only occur after 30.06.2023. The applicant submitted that even after 30.06.2023 the Decree Holders changed their color and did not agree for release of the documents from Mr. Jayant Davar. Mr. Jayant Davar showed his inability to release the documents unless both parties reach consensus for release of the same.

12. The applicant submitted that the Decree Holders have played fraud on

EX.APPL.(OS) 940-42/2023 in OMP (ENF.) (COMM.) 159/2019 Page 11 of 57 Signature Not Verified Signed By:PALLAVI VERMA Signing Date:08.10.2024 17:09:20 the Respondents and are now dishonestly and mala-fidely evading their obligations and liabilities under the payment and. performance obligation agreement dated 21.03.2023. It has been submitted that in view of the documents executed between the parties this Court may record an adjustment satisfaction and discharge of the award claim of the Decree Holder. The application EX.APPL.(OS) 941/2023 has also been filed seeking direction for Mr. Jayant Davar and Ms. Sushma Gupta for production of documents in their power and possession.

13. The applicants have also moved an application bearing EX.APPL.(OS) 942/2023 seeking condonation of the delay in filing the application under Section 47 and Order XXI Rule 2(2) read with Section 151 CPC. The applicants have submitted that on 01.07.2023 the Judgment Debtor No.1 approached the Decree Holders stating that the deadline of 23.06.2023 has expired and Judgment Debtor No.1 has fulfilled all its obligations as per the agreements and therefore the documents with Mr. Jayant Davar be released. However, the Decree Holders refused to agree for the release of the documents. Mr. Jayant Davar also expressed his inability to help unless both parties reach consensus that the documents shall be released.

14. The applicant submitted that they were following up with the Decree Holders and Mr. Jayant Davar and waited for few days. It has been submitted that the Decree Holders have played fraud upon the Judgment Debtor. It has been submitted that the applicant came to know about the fraud around 19.07.2023 when upon repeated requests Mr. Davar confirmed that the Decree Holders refused to give consent

EX.APPL.(OS) 940-42/2023 in OMP (ENF.) (COMM.) 159/2019 Page 12 of 57 Signature Not Verified Signed By:PALLAVI VERMA Signing Date:08.10.2024 17:09:20 for release of documents from Mr. Jayant Davar. It has been submitted that though the application is within the period of limitation. However, as an abundant caution, the present application has been moved for the condonation of delay, if any.

15. The Decree Holder No.1 has filed a short reply to EX.APPL.(OS) 940/2023. In the reply, the Decree Holder submitted that at the outset no settlement and/or satisfaction of the Arbitral Award has taken place. It has been submitted that Judgment Debtor no.1 has not placed any Settlement Agreement whatsoever which records or even contemplates the adjustment/satisfaction of the monies payable under the Arbitral Award which remains unsatisfied till date. It has been submitted that the Decree Holders were only in discussions/negotiations with the Judgement Debtors, and certain forward looking privileged documents were prepared and kept with an escrow agent, i.e., Mr. Jayant Davar. However, there is no document with the Escrow Agent, which shows settlement or any kind of adjustment of the liabilities under the Arbitral Award.

16. The Decree Holder submitted that the execution of any document followed by the very act of placing the said document/instrument in escrow evinces an intent that the document would continue to lie in escrow until certain conditions which are precedent to the enforceability of the document come to be fulfilled. Respondent stated that only upon the performance of such certain conditions a document placed in escrow becomes an absolute deed. However, if such conditions are not performed, such documents do not become valid. It

EX.APPL.(OS) 940-42/2023 in OMP (ENF.) (COMM.) 159/2019 Page 13 of 57 Signature Not Verified Signed By:PALLAVI VERMA Signing Date:08.10.2024 17:09:20 has further been submitted that any document which has been executed or exchanged between the parties during a negotiation process, is a privileged document, and the same cannot be shared with anyone without the express consent of the other party. It has been submitted that the present application has been moved only to derail the enforcement proceedings.

17. The Decree Holders submitted that given the past conduct of the Judgment Debtor, the Decree Holder conveyed to the Judgment Debtor that as a pre-condition to any settlement discussions, for the Arbitral Award, Judgment Debtors would need to complete the procedural formalities, for perfecting the transfer of Karnal project to Decree Holders, consideration for which was already paid for by Decree Holders and accepted by Judgment Debtors under the Arbitral Award. The Decree Holders submitted that it was agreed between the parties that Judgement Debtors would, to prove their bonafide and as a pre- condition to settlement discussions, would (a) the transfer of shares of Ansal Landmark (Karnal) Township Private Limited (ALKTPL) and

(b) execute a Supplementary cum Amendment Agreement, as an amendment to Business Transfer Agreement dated 02.04.2012, reaffirming the obligations of Judgement Debtors which related to Karnal project only.

18. It has been submitted that in these circumstances at the request of the Judgment Debtors certain forward-looking documents were executed and kept for comfort of the Judgement Debtors, with an Escrow Agent, namely Mr. Jayant Davar, which were to become relevant or

EX.APPL.(OS) 940-42/2023 in OMP (ENF.) (COMM.) 159/2019 Page 14 of 57 Signature Not Verified Signed By:PALLAVI VERMA Signing Date:08.10.2024 17:09:20 operational only on the overall disputes, including satisfaction of arbitral award and withdrawal of FIR 96/2019, PS: TP Nagar, Meerut, Uttar Pradesh, between the parties getting resolved.

19. The Decree Holders submitted that in these circumstances the documents as stated by the Judgment Debtors were executed which were placed with the Escrow Agent and were to be released to the Judgment Debtors, post conclusion of a settlement between the parties. The Decree Holders submitted that though the undertaking was executed in 21.03.2023, it mentioned date of 14.04.2023, before which it could not be acted upon. It was stated that the said date of 14.04.2023 was captured assuming that parties will be able to conclude the settlement by that date. It was stated that the Payment and Performance Obligation Agreement, the main objective of the said Agreement was funding the obligations of Judgment Debtors under Business Transfer Agreement dated 02.04.2012, including execution and registration of various sale deeds, collaboration agreements, transfer of licenses, change of developer along with any other ancillary formalities. It was stated that owing to lack of resources with the Judgment Debtors to fund these pending obligations, the Judgment Debtors approached ALKTPL for taking over the funding of these obligations, on its behalf. ALKTPL, one of the Decree Holders, had agreed to the same but subject to Judgment Debtors allowing Decree Holders to amicably withdraw the monies already deposited with the High Court.

20. The Decree Holders submitted that the Supplementary cum Amendment Agreement & Payment and Performance Obligation

EX.APPL.(OS) 940-42/2023 in OMP (ENF.) (COMM.) 159/2019 Page 15 of 57 Signature Not Verified Signed By:PALLAVI VERMA Signing Date:08.10.2024 17:09:20 Agreement were related to Karnal project only and it was agreed that the Judgments Debtors would put forth a commercial proposal, acceptable to the Decree Holders, for settlement of the Arbitral Award and will withdraw the false and frivolous case arising out of FIR 96/2019 filed by the Applicant at PS: TP Nagar, Meerut, Uttar Pradesh. The Decree Holders stated that Judgment Debtors did not fulfill any of such obligations.

21. The Decree Holders have also invited the attention of the Court to the conduct of the Judgment Debtors. It has been submitted that the enforcement petition was listed for 10 dates after 21.03.2023., and the present application was filed only on 07.08.2023 to derail the Contempt proceedings which were listed for final arguments on 08.08.2023 and 10.08.2023. The Decree Holder also invited the attention of the Court to filing and withdrawal of E.A. 473/2023 regarding Bhatinda project. The Decree Holders stated that the Judgment Debtors vehemently opposed the release of money lying deposited with the Court. It has further been submitted that the Judgment Debtors failed to fulfill obligations under Supplementary cum Amendment Agreement relating to securing permissions from DTCP, Haryana for change of developer in favour of ALKTPL by 30.06.2023. It has also been submitted that the Decree Holders did not furnish any commercial proposal/ plan to satisfy obligations under the Arbitral Award.

22. The respondent submitted that it is totally outlandish and wholly improbable settlement scenario as narrated by the Judgment Debtor No. 1, whereby all the proceedings against the Judgment Debtors to be

EX.APPL.(OS) 940-42/2023 in OMP (ENF.) (COMM.) 159/2019 Page 16 of 57 Signature Not Verified Signed By:PALLAVI VERMA Signing Date:08.10.2024 17:09:20 withdrawn and the proceedings against the Decree Holders were allowed to remain continuing. The Decree Holders further submitted that the transfer of shares of ALKTPL was an obligation of the Judgment Debtor outside the scope of disputes culminating in the Arbitral Award. The Decree Holders stated that de-facto it had taken control of the business of ALKTPL, post Business Transfer Agreement dated 02.04.2012, and on the default being committed by the Judgment Debtor No.2, the Decree Holders issued notice under Section 100 of the Companies Act, 2013. It has further been submitted that the Decree Holders had also to file a petition under Section 9 of A&C Act being OMP (I) (COMM) No. 166 of 2019 in which this Court granted a stay in favor of the Decree Holders and barred the Judgment Debtors from dealing with the shares of ALKTPL. It has further been submitted that as of March 2023, a Section 11 UA valuation of Income Tax Act 1961 had certified that ALKTPL had a negative net worth. The Decree Holders submitted that even as per Escrow agent there was no settlement.

23. In reply to application bearing EX.APPL.(OS) 941/2023 also the Decree Holders stated that no settlement/adjustment had taken place between the parties and the documents sought to be produced for proving the factum of settlement are completely irrelevant to the case at hand. It was further stated that the documents are also privileged as much as it is an acknowledged position that parties had exchanged the documents only during discussions of a prospective settlement to be arrived at.

EX.APPL.(OS) 940-42/2023 in OMP (ENF.) (COMM.) 159/2019 Page 17 of 57 Signature Not Verified Signed By:PALLAVI VERMA Signing Date:08.10.2024 17:09:20

24. In reply to application bearing EX.APPL.(OS) 942/2023 the Decree Holders stated that Article 125 of the Limitation Act, 1963 provides for 30 days' time to apply to the court for issuing a notice to the Decree Holder to show causes why payment or adjustment should not be recorded or certified. The Decree Holder submitted that even Judgment Debtor no.1 has failed to quantify the delay for which the condonation has been sought for. It has further been submitted that Section 5 of the Limitation Act is not applicable to Applications made under Order XXI CPC. It has been submitted that the present application is barred by limitation.

(B) SUBMISSIONS ON BEHALF OF APPLICANT/JUDGMENT DEBTORS:

25. Sh. Ashwini Mata and Sh. Ravi Sikri, learned senior counsels for the Judgment Debtor No.1/appellant have submitted that the parties vide a joint letter dated 08.05.2017 appointed Former Chief Justice of India, late Mr. Justice Ramesh Chandra Lahoti (Retd.) to act as Sole Arbitrator to adjudicate their disputes arising out of the Term Sheet, BTA 2012 and other definite documents. It did not include any claim pertaining to transfer of Karnal project.

26. Learned senior counsels submitted that the Impugned Award incorrectly recorded that the entire interest of the Award Debtors in the Karnal project stood transferred to the Award Holders, and the said recordal has been challenged by the Award Debtors in their objections under Section 34 of the A&C Act 1996.

EX.APPL.(OS) 940-42/2023 in OMP (ENF.) (COMM.) 159/2019 Page 18 of 57 Signature Not Verified Signed By:PALLAVI VERMA Signing Date:08.10.2024 17:09:20

27. Learned senior counsels submitted that as a matter of fact, even till 21.03.2023 (when shares were transferred in furtherance of the subject settlement) ALKTPL continued to be a 100% subsidiary of the Judgment Debtor No.2, (i.e. ALTPL). Learned senior counsels submitted that the submission of the Decree Holders that the transfer of the Karnal project could not form any consideration for a settlement as it was in any case an obligation of the Judgment Debtors under BTA 2012 and the definitive documents are false. It has been submitted that during the pendency of the present execution proceedings for the Money Award, and the petition under Section 34 challenging the said Award and rejection of counter-claim, the parties with a view to settling the award and all outstanding obligations and actions under BTA 2012, arrived at a comprehensive commercial full and final settlement and accordingly, on 21.03.2023, the Award Debtors and ALKTPL recorded, captured and memorialized the Supplemental cum Amendment Agreement (BTA), Payment and Performance Obligation Agreement (PPOA) and Undertaking. It was stated that the parties agreed to amend BTA 2012 by entering into the Supplementary BTA dated 21.03.2023 which supplemented the BTA dated 02.04.2012 to fulfill the obligations which remained unfulfilled under the BTA 2012.

28. It has further been submitted that the terms of BTA were re-written to the effect that the sole obligation of Award Debtors is to give absolute authority to Award Holders by way of Board Resolutions and Power of Attorneys in favour of representatives of Award Holders to carry out all acts necessary to fulfill the unfulfilled terms of the BTA at Award

EX.APPL.(OS) 940-42/2023 in OMP (ENF.) (COMM.) 159/2019 Page 19 of 57 Signature Not Verified Signed By:PALLAVI VERMA Signing Date:08.10.2024 17:09:20 Holders own expenses. It was stated that the above noted obligation under the said settlement documents conferred a monetary benefit of around Rs. 1015.67 crores to Landmark Group. It has further been submitted that in the undertaking the parties had arrived at a full and final comprehensive settlement on the basis of which the Award Holders had agreed to withdraw the legal proceedings ﬁled against Ansal Properties & Infrastructure Limited its afﬁliates and its promoters namely, Mr. Sushil Ansal and Mr. Pranav Ansal and its Directors / Principal Ofﬁcers. It was further submitted that upon execution of the Undertaking, either the Award Holders or the Award Debtors on their behalf, had the right singly to withdraw/ have disposed the present proceedings, exercisable on any date after 14.04.2023. It was stated that Undertaking would prevail over any other document concerning the subject matter of disputes between parties including the BTA.

29. The applicant submitted that the Award Holders had duly executed applications seeking unconditional withdrawal of the present proceedings along with affidavits and vakalatnama to enable the Award Debtors to singly withdraw / seek disposal of the present proceedings in terms of the Undertaking. It was further stated that Undertaking dated 21.03.2023 is in the form of Deed poll executed by the Award-

holders in favour of the Award-Debtors assuring that anytime on or after 14.04.2023, any party to the 8 legal proceedings can withdraw the said litigations. It was stated that the said Deed poll is valid and binding on the Award Holders. Reference was made to Halsbury Laws

EX.APPL.(OS) 940-42/2023 in OMP (ENF.) (COMM.) 159/2019 Page 20 of 57 Signature Not Verified Signed By:PALLAVI VERMA Signing Date:08.10.2024 17:09:20 of England , Volume X, Part 1- Deeds Cl. 680-681 and Chelsea and Walham Green Building Society v Armstrong., [1951 C. 935.]. It was further stated that the No Objection Certificate was unilaterally signed and duly notarised by the Award Holders on 21.03.2023.

30. Learned senior counsel submitted that any dispute with respect to whether the obligations under the aforesaid settlement documents i.e. Supplemental BTA and PPOA were complied with or not would be the subject matter of those settlement documents, both of which contain an independent dispute resolution / arbitration clause and therefore, the appropriate remedy for the Award Holders in case of non-fulfillment of these documents would not lie in the present proceedings. It was further stated that without prejudice to above, all obligations of Award Debtors under Supplemental BTA and PPOA stand performed after 21.03.2023. It was stated that E.A (OS) (COMM). No. 940/2023 was filed within limitation. Learned senior counsels submitted that;

1. The entire shareholding (that as on 21.03.2023 was held by JD-2 in ALKTPL) was transferred to the Award Holders;

2. The land-owning companies controlled by the Award Debtors were also transferred to the Award Holders;

3. The business of ALKTPL transferred to the Award Holders is valued in excess of Rs. 1015.67 crores as per the circle rate prevalent in Sector 36 Karnal;

4. Board Resolutions were executed in favour of Award Holders and no objection and justification were given by Award Debtors which

EX.APPL.(OS) 940-42/2023 in OMP (ENF.) (COMM.) 159/2019 Page 21 of 57 Signature Not Verified Signed By:PALLAVI VERMA Signing Date:08.10.2024 17:09:20 were used by the Award Holders to get the DTCP to approve the change of developer licence in favour of ALKTPL; and

5. The Award Debtors were to provide support and cooperation to the Award Holders in order to fulfil the obligations for which the Award Debtors had provided the Board Resolutions and Power of Attorneys to the Award Holders to do all acts necessary for the fulfilment of the obligations and transfer of the Karnal project.

31. It was stated that for making such a motion by an Award Holder, no period of limitation is prescribed or can be prescribed, and by the same logic, where the Award Holders have permitted the opposite parties to make such a motion, no period of limitation would be applicable. Learned senior counsel submitted that at best, the residual period of limitation under Article 137 of Limitation Act, 1963 could be pressed. It was further submitted that since the Award is not a decree, the period of limitation prescribed in the Article 125 of the Limitation Act, 1963 has no applicability to the present proceedings. Therefore, the strict rigours of Order XXI Rule 2 and the period of limitation would not apply.

32. In regard to the contentions of the Decree Holders, that the Supplemental BTA, PPOA, Undertaking and applications for withdrawal of litigations were merely 'forward looking and privileged documents'. Learned senior counsel submitted that aforementioned settlement documents encompass the full and final comprehensive commercial settlement of all disputes which is evident from the language of the Undertaking and the NOC which are duly signed and

EX.APPL.(OS) 940-42/2023 in OMP (ENF.) (COMM.) 159/2019 Page 22 of 57 Signature Not Verified Signed By:PALLAVI VERMA Signing Date:08.10.2024 17:09:20 notarized. It has been submitted that no such understanding of "forward looking documents" is recorded in any of the documents, itself shows that the documents being forward looking is a figment of imagination and an afterthought by the Award Holders. It has further been submitted that the contention of the Award Holders is directly hit by Sections 91 and 92 of the Indian Evidence Act. In regard to the contention raised by the Decree Holders that the documents were in escrow, it was submitted that the undertaking records that the settlement documents will be delivered to the parties on 14.04.2023 and therefore, the Undertaking clearly mentions that the documents to be kept with Mr. Jayant Davar only till 14.04.2023 and no other condition was agreed upon. It was stated that no other alleged oral agreement or condition can prevail upon the written, signed and notarized Undertaking which categorically records that documents to be handed over to the parties on 14.04.2023. It has further been submitted that both the Award Holders are commercially sophisticated parties who had signed and executed the aforementioned documents specifically the undertaking recording that the 'parties have arrived at a full and final comprehensive settlement' and now the Award Holders cannot renege out of the settlement

(C) SUBMISSIONS ON BEHALF OF NON-APPLICANT/DECREE HOLDER:

33. Sh. Amit Sibal, learned senior counsel for the Decree Holders submitted that the case as setup by the applicant/Judgment Debtor is ex facie outlandish, wholly improbable and not even remotely credible

EX.APPL.(OS) 940-42/2023 in OMP (ENF.) (COMM.) 159/2019 Page 23 of 57 Signature Not Verified Signed By:PALLAVI VERMA Signing Date:08.10.2024 17:09:20 that there is a settlement, the terms of which are not even recorded in any document. Learned senior counsel submitted that there is no document to show that the Decree Holder has given up their money claim of Rs. 310 Cr. under the Arbitral Award. Learned senior counsel submitted that Order XXI Rule 2 of CPC provides for payment / adjustment of a decree. Rule 2A provides that payment / satisfaction can be recorded in the following three scenarios :-

i. Payment is made in accordance with Rule 1 i.e. decretal amount paid to the decree holder or deposited in Court; or ii. Payment / adjustment is proved by documentary evidence; or iii. Payment / adjustment admitted by decree holder in its reply to notice issued under Rule 1(2).

34. Learned senior counsel submitted that it is for the Judgment Debtors to prove payment / adjustment on the basis of documentary evidence and the Judgment Debtors have not shown a single document which records payment / adjustment of the Arbitral Award under Order XXI Rule 2. Learned senior counsel submitted that that provisions of CPC and Limitation Act, 1963("Limitation Act") which may be applicable for enforcement of decrees of court shall equally apply to enforcement of Arbitral Awards is well settled. Reference has been made on Punjab State Civil Supplies vs. Atwal Rice and General Mills (2017) 8 SCC

116. Learned senior counsel submitted that the E.A. No. 940/2023 is badly barred by limitation as having been filed beyond 30 days as provided under Article 125 of the Limitation Act. Learned senior counsel submitted that there is no provision of the condonation of such

EX.APPL.(OS) 940-42/2023 in OMP (ENF.) (COMM.) 159/2019 Page 24 of 57 Signature Not Verified Signed By:PALLAVI VERMA Signing Date:08.10.2024 17:09:20 delay. Reliance has been placed upon Shyam Lal v. Shanti Devi [MANU/UP/0822/2008].

35. Learned senior counsel submitted that Judgment Debtors have taken various contradictory and vague pleas, which falsify their own case. Learned senior counsel submitted that the case relied upon by the Judgment Debtors of Paramjeet Singh Patheja v. ICDS Limited, (2006) 13 SCC 322 and Amazon.com NV Investment Holdings LLC v. Future Retail Ltd., (2022) 1 SCC 209 are not applicable to the facts of the present case. Learned senior counsel submitted that Section 36 of the Arbitration Act, prescribes that an Arbitral Award 'shall be enforced in accordance with the provisions of the Code of Civil Procedure, 1908 (5 of 1908), in the same manner as if it were a decree of the court'. It has further been submitted that Section 43 of the Arbitration Act prescribes that the Limitation Act, 1963 shall apply to arbitrations as it applies to proceedings in Court. Reliance has been placed upon Punjab State Civil Supplies Corporation (supra), Hindustan Construction Co. Ltd. v. Union of India (2020) 17 SCC 324 and Sundaram Finance Ltd. Vs. Abdul Samad and Anr. (2018) 3 SCC 622.

36. In respect of the applicability of limitation Act, learned senior counsel has relied upon the case of Manak Shoe Company Pvt. Ltd. Vs. HCL Comnet Systems & Services Ltd. (2023) SCC Online Del 21 and Growth Techno Projects Vs. Ishwar Industries [Judgment dated 01.07.2024 in OMP (ENF)(COMM) 224 of 2023].

EX.APPL.(OS) 940-42/2023 in OMP (ENF.) (COMM.) 159/2019 Page 25 of 57 Signature Not Verified Signed By:PALLAVI VERMA Signing Date:08.10.2024 17:09:20

37. Learned senior counsel submitted that the Judgment Debtors have wrongly invoked Section 47 of the CPC as only under Order XXI Rule 2, the recording of adjustment / satisfaction of a decree can be prayed for. It has been submitted that since there is specific provision under Order XXI Rule 2 of CPC for satisfaction of decree, Section 47 CPC cannot be imported to have a three year limitation period. Learned senior counsel submitted that an escrow is a legal document or property delivered by a promisor to a third party to be held by the third party for a given amount of time or until the occurrence of a condition, at which time the third party is to hand over the document or property to the promisee. It has been submitted that the documents relied upon by the Judgment Debtors are admittedly in escrow which is revealed from the bare pleadings.

38. Learned senior counsel submitted that in Jeweltouch (India) Pvt. Ltd. v. Naheed Hafeez Quraishi (Patrawala), 2008 SCC OnLine Bom 82 the principles regarding release of documents through escrow mechanism were laid down, and it was inter alia observed that the documents, even though executed, become valid and enforceable in law only upon release of such documents after due fulfillment of perquisites and satisfaction of the Escrow agent. Learned senior counsel submitted that Mr. Jayant Davar in his letters dated 24.09.2023 and 24.10.2023 clearly spelled out conditions for release of documents from escrow after a written settlement agreement between the parties and mutual request of parties to release the documents from escrow. It has been submitted that the escrow documents were forward looking

EX.APPL.(OS) 940-42/2023 in OMP (ENF.) (COMM.) 159/2019 Page 26 of 57 Signature Not Verified Signed By:PALLAVI VERMA Signing Date:08.10.2024 17:09:20 documents, and it envisaged that an offer for settlement of the Award would be made by the Judgment Debtors and this was the reason for the Undertaking to have a subsequent date of 14.04.2023 for withdrawal of proceedings.

39. Sh. Amit Sibal, learned senior counsel submits that even Section 92(3) of Indian Evidence Act provides that "any separate oral agreement, constituting a condition precedent to the attaching of any obligation under any such contract, grant or disposition of property, may be proved." Learned senior counsel submits that therefore Section 91 and 92 of the Indian Evidence Act does not bar proving any condition precedent or any separate agreement which would make a document effective and enforceable.

40. Sh. Amit Sibal, learned senior counsel submits that it is totally improbable and outlandish that the Decree Holders would have settled the entire matter without receiving any payment towards Arbitral Award and without withdrawal of criminal cases in Meerut which arise out of issue of transfer of shares of Judgment Debtor No.2 (hereinafter "ALTPL") adjudicated in the Arbitral Award. Learned senior counsel submitted that agreement dated 21.03.2023 i.e., Supplementary cum Amendment Agreement 'SAA' and Payment and Performance Obligation Agreement 'PPOA' pertains to Karnal project only and do not record and/or adjustment of the award dated 07.09.2018 to the tune of Rs. 310 Crore.

41. Learned senior counsel also invited the attention of the Court to the

EX.APPL.(OS) 940-42/2023 in OMP (ENF.) (COMM.) 159/2019 Page 27 of 57 Signature Not Verified Signed By:PALLAVI VERMA Signing Date:08.10.2024 17:09:20 conduct of Judgment Debtors pursuant to 21.03.2023 till filing of Applications on 07.08.2023 which showed no settlement and Judgment Debtors are in default of obligations under SAA and PPOA. Learned senior counsel submitted that ALKTPL and Karnal project belonged to Landmark Group from April 2012 and it was never disputed, and Landmark Group has been managing operations of Karnal project since 2012. Learned senior counsel submitted that even as per documents ALKTPL's Karnal project had a negative valuation / net worth as of March 2023. Learned senior counsel further submitted that the shares in ALKTPL and the licenses to the Karnal Project were of no use to the Judgment Debtors & were a potential liability including criminal prosecution. Learned senior counsel submitted that in these circumstances, the present applications may be dismissed.

(D) FINDINGS & ANALYSIS

42. The applicant/Judgment Debtors have filed the present applications bearing EX.APPL.(OS) 940/2023, EX.APPL.(OS) 941/2023 and EX.APPL.(OS) 942/2023 predominantly stating therein that in view of the full and comprehensive settlement arrived into between the parties and the documents executed between them in March 2023 such as Supplementary cum Amendment Agreement 'SAA' and Payment and Performance Obligation Agreement 'PPOA', and undertaking and order passed for recording and certifying and adjustment and satisfaction in full paid by the Judgment Debtors towards the award dated 07.09.2018 as rectified on 17.09.2018 and 13.11.2018 and discharge the Judgment Debtors from these proceedings and dispose of

EX.APPL.(OS) 940-42/2023 in OMP (ENF.) (COMM.) 159/2019 Page 28 of 57 Signature Not Verified Signed By:PALLAVI VERMA Signing Date:08.10.2024 17:09:20 these proceedings bearing O.M.P. (COMM) 159/2019. The Judgment Debtors have also prayed that Mr. Jayant Davar with whom the executed documents are lying in original has refused to hand over the same as the Decree Holders has agreed to consent and therefore Mr. Jayant Davar may be directed to produce the documents before the Court. The Judgment Debtors have also submitted that though there is no delay in filing the application yet delay, if any be condoned. Judgment Debtors have also taken a plea that the present application may also be considered under Section 47 of the CPC. The pleas of the Judgment Debtors/applicants are that all the disputes between the parties have fully and finally / comprehensively settled.

43. The Decree Holder / non-applicant have taken several objections predominantly, firstly, that there is no settlement between the parties regarding satisfaction of the Arbitral Award dated 7.09.2019 and satisfaction of OMP (ENF.) (COMM.) 159/2019. The Decree Holders have also taken a plea that the present application under Order XXI Rule 2 CPC has been filed beyond the period of limitation and thus is liable to be dismissed. It has also been submitted that the documents as stated by the Judgment Debtors are in fact only forward looking documents and were lying with escrow agent Mr. Jayant Davar and can only be released after fulfilling all the conditions as mentioned by Mr. Jayant Davar in his letter dated 24.09.2023 and 24.10.2023.

44. Before proceeding further, it is necessary to refer to the relevant provisions of the CPC. Section 47 of the CPC provides as under:

EX.APPL.(OS) 940-42/2023 in OMP (ENF.) (COMM.) 159/2019 Page 29 of 57 Signature Not Verified Signed By:PALLAVI VERMA Signing Date:08.10.2024 17:09:20

"Questions to be determined by the Court executing decree: (1) All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit. *****

(3) Where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purposes of this section, be determined by the Court."

45. Order XXI Rule 2 of CPC provides as under:

"2. Payment out of Court to decree-holder.-(1) Where any money payable under a decree of any kind is paid out of Court, or a decree of any kind is otherwise adjusted] in whole or in part to the satisfaction of the decree-holder, the decree-holder shall certify such payment of adjustment to the Court whose duty it is to execute the decree, and the Court shall record the same accordingly.

(2) The judgment-debtor for any person who has become surety for the judgment-debtor] also may inform the Court of such payment or adjustment, and apply to the Court to issue a notice to the decree-holder to show cause, on a day to be fixed by the Court, why such payment or adjustment should not be recorded as certified; and if, after service of such notice, the decree-holder fails to show cause why the payment or adjustment should not be recorded as certified, the Court shall record the same accordingly.

(2A) No payment or adjustment shall be recorded at the instance of the judgment-debtor unless-

(a) the payment is made in the manner provided in rule 1; or

(b) the payment or adjustment is proved by documentary evidence; or

EX.APPL.(OS) 940-42/2023 in OMP (ENF.) (COMM.) 159/2019 Page 30 of 57 Signature Not Verified Signed By:PALLAVI VERMA Signing Date:08.10.2024 17:09:20

(c) the payment or adjustment is admitted by, or on behalf of, the decree-holder in his reply to the notice given under sub-rule (2) of rule 1, or before the Court.] (3) A payment or adjustment, which has not been certified or recorded as aforesaid, shall not be recognised by any Court executing the decree."

46. In Victor Cable Industries Ltd. vs. Delhi Vidut Board [2002 (63) DRJ 682] wherein it was inter alia held as under:

"7. The moot point for consideration in this case is whether where two parties hold cross decree against each other, the party holding decree of a lessor amount can make adjustment on its own and get the satisfaction of other decree recorded by paying off the balance amount, without concurrence of the decree holder of the larger amount. The relevant provision which governs the situation is Order XXI Rule 2 CPC which reads as under:-

2. Payment out of Court to decree-holder Where any money payable under a decree of any kind is paid out of Court, (or a decree of any kind is otherwise adjusted) in whole or in part to the satisfaction of the decree-holder, the decree-holder shall certify such payment of adjustment to the Court whose duty is to execute the decree, and the Court shall record the same accordingly.

XXXXXXXXXX

8. In the case of A.P. Bagchi v. Mrs. F. Morgan, AIR 1935 Allahabad 513 it was held that for recording satisfaction under Order XXI Rule 2 CPC "an allegation of some understanding as to adjustment between judgment debtor and decree holder is necessary. Order XXI Rule 2 applies to cases in which the payments have been made to the decree holder or where the adjustment of decree otherwise has

EX.APPL.(OS) 940-42/2023 in OMP (ENF.) (COMM.) 159/2019 Page 31 of 57 Signature Not Verified Signed By:PALLAVI VERMA Signing Date:08.10.2024 17:09:20 taken place to the satisfaction of the decree holder. It cannot apply to a case in which the adjustment was not acceptable to the decree holder. It is not open to the judgment debtor to decide for himself and act on the supposition that decree has been wholly or partly adjusted though the decree holder is unwilling to accept that position. Mutual understanding is the essence of the rule. This obviously means that when it is not suggested by the judgment debtor that there was an understanding between the parties that the decree should be mutually adjusted Order XXI Rule 2 will not apply. Likewise in the case of M.P. Shreevastava v. Mrs. Veena, AIR 1967 Supreme Court 1193 (V 54 C 248) it was observed that provisions of Order XXI Rule 2 CPC are not applicable if consent of parties for adjustment is absent. In absence of allegation of consent of decree holder to the adjustment, Order XXI Rule 2 cannot be invoked. In the present case the application under consideration viz. IA No. 463/2000 filed by the DVB does not contain any al legation to the effect that the decree holder contractor company had agreed to and consented to the adjustment of the money due to the DVB in respect of decree dated 15th January, 1995 against the decree dated 26th September, 1996 in favour of the contractor. Contractor company is vehemently against any such adjustment as is clear from the reply filed by it. What DVB did is that it unilaterally adjusted the amount due to it in respect of decree dated 15th January, 1995 against decree dated 26th September, 1996 in favour of the contractor company without getting adjustment recorded through the Court under Order XXI Rule 2, CPC which is clearly not permissible under the law. Therefore the applicant/DVB cannot be allowed adjustment of the amount claimed by them. "

47. In Sultana Begum vs. Prrem Chand Jain [1997 1 SCC 373] it was inter alia held as under:

"20. The words "or the decree of any kind is otherwise adjusted" are of wide amplitude. It is open to the parties

EX.APPL.(OS) 940-42/2023 in OMP (ENF.) (COMM.) 159/2019 Page 32 of 57 Signature Not Verified Signed By:PALLAVI VERMA Signing Date:08.10.2024 17:09:20 namely, the decree-holder and the judgment-debtor to enter into a contract or compromise in regard to their rights and obligations under the decree. If such contract or compromise amounts to an adjustment of the decree, it has to be recorded by the court under Rule 2 of Order 21. It may be pointed out that an agreement, contract or compromise which has the effect of extinguishing the decree in whole or in part on account of decree being satisfied to that extent will amount to an adjustment of the decree within the meaning of this Rule and the Court, if approached, will issue the certificate of adjustment. An uncertified payment of money or adjustment which is not recorded by the court under Order 21 Rule 2 cannot be recognised by the executing court. In a situation like this, the only enquiry that the executing court can do is to find out whether the plea taken on its face value, amounts to adjustment or satisfaction of decree, wholly or in part, and whether such adjustment or satisfaction had the effect of extinguishing the decree to that extent. If the executing court comes to the conclusion that the decree was adjusted wholly or in part but the compromise or adjustment or satisfaction was not recorded and/or certified by the court, the executing court would not recognise them and will proceed to execute the decree.

22. Section 47, as pointed out earlier, gives full jurisdiction and power to the executing court to decide all questions relating to execution, discharge and satisfaction of the decree. Order 21 Rule 3, however, places a restraint on the exercise of that power by providing that the executing court shall not recognise or look into any uncertified payment of money or any adjustment of decree. If any such adjustment or payment is pleaded by the judgment- debtor before the executing court, the latter, in view of the legislative mandate, has to ignore it if it has not been certified or recorded by the court.

23. The general power of deciding questions relating to execution, discharge or satisfaction of decree under Section

EX.APPL.(OS) 940-42/2023 in OMP (ENF.) (COMM.) 159/2019 Page 33 of 57 Signature Not Verified Signed By:PALLAVI VERMA Signing Date:08.10.2024 17:09:20 47 can thus be exercised subject to the restriction placed by Order 21 Rule 2 including sub-rule (3) which contain special provisions regulating payment of money due under a decree outside the court or in any other manner adjusting the decree. The general provision under Section 47 has, therefore, to yield to that extent to the special provisions contained in Order 21 Rule 2 which have been enacted to prevent a judgment-debtor from setting up faise or cooked- up pleas so as to prolong or delay the execution proceedings.

30. Where an application is given by a decree-holder for certification of payment or recording an adjustment. Order 21 Rule 2 presents no difficulty. Where, however, an application is given by the judgment-debtor to the court for the certification, the court has to act judicially. It was observed by the Privy Council in Raja Shri Prakash Singh v. Allahabad Bank Ltd. 17 as under:

"Sub-rule 2 therefore does contemplate an application by the judgment-debtor; further, it for notice being given to the decree-holder, it affords an opportunity for the decree-holder to appear, and it involves a judicial decision by the Court whether the payment should be recorded."

37. In Konchada Ramamurthy Suhudhi v. Gopinath Naiklx, this Court relied upon the theory of intention and held that the intention of the parties was the decisive test as to whether the rights under the decree were given up or not. In that case, the landlord had filed a suit for eviction of the tenant which was dismissed by the trial court, but was compromised at the appellate stage. The decree was passed in terms of the compromise which provided that the tenant could continue in possession for five years but if he did not pay rent for three consecutive months he would be evicted by executing the decree. When execution proceedings were initiated against the tenant, an objection was raised by him that the compromise decree created a fresh lease and,

EX.APPL.(OS) 940-42/2023 in OMP (ENF.) (COMM.) 159/2019 Page 34 of 57 Signature Not Verified Signed By:PALLAVI VERMA Signing Date:08.10.2024 17:09:20 therefore, the decree was inexecutable. This plea was rejected and it was held that the intention of the parties, which was the decisive test, was not to enter into the relationship of landlord and tenant. Reliance in this case was placed on the decision of Subba Rao, J. (as he then was) in Associated Hotels of India Ltd. v. R.N. Kapoor22 in which one of the propositions laid down was:

"The real test is the intention of the parties whether they intended to create a lease or a licence."

38. Reliance was also placed on the observations of Lord Greene, M.R. in Booker v. Palmer23 which is quoted below:

"There is one golden rule which is of very general application, namely, that the law does not impute intention to enter into legal relationships where the circumstances and the conduct of the parties negative any intention of the kind."

39. Ramamurthy case was followed by this Court in Kalloo v. Dhakadevi, in which again the intention of the parties was held to be the decisive test and it was laid down that whether a fresh lease was intended to be created would depend upon the intention of the parties.

40. In the instant case, the respondent himself says that it was only a licence which was created in his favour and that he had to pay the licence fee. This itself is indicative of the fact that a fresh lease was not created in his favour and consequently the rights under the decree were neither intended to be surrendered nor were they actually surrendered. The decree remained preserved and the creation of a licence had not the effect of destroying it."

48. In Patel Muddegowda and Ors. Vs. Gangamma & Ors. [1962 SCC Online Kar 128] it was inter alia held as under:

"3. The main point for consideration is whether the non- filing of the application for recording satisfaction by the

EX.APPL.(OS) 940-42/2023 in OMP (ENF.) (COMM.) 159/2019 Page 35 of 57 Signature Not Verified Signed By:PALLAVI VERMA Signing Date:08.10.2024 17:09:20 appellants within time, disentitles them to the relief sought for. It is urged by Shri Venkata Rao, the learned Advocate for the appellants, that the application of the appellants should be regarded as one falling under Sec. 47, C.P.C. and not under the provisions of Order 21, Rule 2 thereof. If so, it is urged that the period of limitation would not be 90 days as per Article 174 but three years as per Article 181 of the Limitation Act. The relevant portion of provisions of O. 21, R. 2. C.P.C. runs as follows:

"Where any money payable under a decree of any kind is paid out of Court, or the decree is otherwise adjusted in whole or in part to the satisfaction of the decree-holder, the decree-holder shall certify such payment or adjustment to the Court whose duty it is to execute the decree and the Court shall record the same accordingly.

...................

3. A payment or adjustment, which has not been certified or recorded as aforesaid, shall not be recognised by any Court executing the decree"

12. If so, there can be no doubt that the application of the appellant comes within the purview of O. 21, R. 2, C.P.C. to the exclusion of Sec. 47. Thus, it is clearly barred by time. On this ground alone the appeal is liable to be dismissed. Under these circumstances I do not consider there is much force in the contention of Sri Venkata Rao, the learned Advocate for the appellant, that Sec. 47 is the relevant provision which applies. That section is, no doubt, very wide in its terms and in one sense all questions relating to execution, discharge or satisfaction of the decree that arises between the decree-holder and the judgment- debtor, come within its purview. Yet, that Section ought to be so interpreted as not to render redundant, the other provisions of the Code. When there is a specific provision like O. 21, R. 2 applicable to the facts of this case, the provision under

EX.APPL.(OS) 940-42/2023 in OMP (ENF.) (COMM.) 159/2019 Page 36 of 57 Signature Not Verified Signed By:PALLAVI VERMA Signing Date:08.10.2024 17:09:20 Sec. 47 is excluded."

49. In Jitendra Pal Singh vs. Chandrakala Jain & Ors. [2015 SCC Online Jhar 5479] it was inter alia held as under:

"13. In this context, the decision relied on by the learned counsel for O.P. in the case of Dasrath Rai (AIR 1951 Pat

372) (supra) is relevant as it has been observed in the said decision in para-18 "......... that there is no authority for the proposition that an application under Section 47 should not be summarily dismissed. It is always open to a court to which a petition is presented to consider it on its merit at the time of presentation if it is clear that the contentions raised in the petition have no merit, it is not right that public time and money should be wasted and the O.P. be harassed and put to additional expense by deferring the passing of orders until both parties have been heard at length". In this connection, it will also be pertinent to note that in the case of Sultan Begam (supra) the Apex Court, has discussed and elaborated the dictum of various decisions, while interpreting the provision of Section 47 and Order XXI, Rule 2 of the CPC and held that the Rule of harmonious construction should be adhered to in avoiding any inconsistency between two different sections of provisions of the same statute. Elaborating on the rule of construction, it has been held that though Section 47 contemplates that the question relating to execution, discharge or satisfaction of the decree shall be determined by the court in executing the decree whereas Order 21, Rule 2 of the CPC enumerates the procedure to be followed by the court in a limited class of cases in execution of a decree relating to the discharge or satisfaction of a decree by payment or adjustment of the decree out of the court. In the said decision reference has also been made to the case of M.P. Shreevastava (AIR 1967 SC 1193) (supra) relied on by the learned counsel for the petitioner wherein it was held that the application under Section 47 of the CPC was maintainable even though execution proceeding had not

EX.APPL.(OS) 940-42/2023 in OMP (ENF.) (COMM.) 159/2019 Page 37 of 57 Signature Not Verified Signed By:PALLAVI VERMA Signing Date:08.10.2024 17:09:20 been initiated.

14. The judicial pronouncement and the plain reading of the provisions of Section 47 and Order 21, Rule 2 and sub-rule (3) makes it abundantly clear that Order 21, Rule 3 places a restraint on the exercise of the power under Section 47 by providing that the Executing Court shall not recognize or look into any uncertified payment of money or any adjustment of decree as mandated under sub-rule 3 of Order 21. It is well settled that general provision under Section 47 in such circumstances has to yield to the special provisions of Order 21, Rule 2.

15. Learned Senior counsel has contended that the words and language used in sub -rule (1) of Rule 2 is "... that the decree-holder shall certify such payment or adjustment...." whereas in sub-rule (2) of Rule 2 words used are.....the judgment is that the judgment debtor is not obligated to get the satisfaction of the decree to be recorded and certified rather it is imperative for the decree-holder to get the adjustment/satisfaction certified. Judgment debtor can get it certified only when the execution proceeding is taken out by the decree-holder. That in the instant case the judgment- debtor did so by filing his show-cause detailing the facts regarding adjustment and discharge of the decree.

18. It is necessary to point out that in the scheme of the provision and settled legal position the payment or adjustment has to be recorded within a period of thirty days. in terms of Article 125 of Limitation Act, 1963. that the payment or adjustment of the decree has to be agreed to by the decree holder and if it is not, then the Executing Court is restrained to recognize such

19. From the nature of the language used in Order 21, Rule 2 it is abundantly clear payment or adjustment until and unless it is certified by the decree-holder. Therefore, in the absence of admission by the decree-holder regarding such adjustment/satisfaction of payment made out of the court by

EX.APPL.(OS) 940-42/2023 in OMP (ENF.) (COMM.) 159/2019 Page 38 of 57 Signature Not Verified Signed By:PALLAVI VERMA Signing Date:08.10.2024 17:09:20 the judgment debtor, such plea or document cannot be recognized, accordingly, in view of the settled law the Executing Court has rightly rejected the application/show cause filed by the petitioner."

50. The bare perusal of these judgments along with Order XXI Rule 1 makes it clear that the Decree Holder is required to certify the payment of adjustment to the Court where the decree is pending execution and the Court shall record the same accordingly. Under Order XXI Rule 2 the Judgment Debtor may also inform the Court of such payment or adjustment and the Court upon issuing the notice to the Decree Holder that why such payment or adjustment should not be recorded as satisfied if Decree Holder fails to show cause why the payment or adjustment should not be recorded as certified may record the same, Order XXI Rule 2A specifically provides that no payment or adjustment shall be recorded at the instance of Judgment Debtor unless

(a) the payment is made in the manner provided in Rule-1 or the payment or adjustment is proved by documentary evidence or payment or adjustment is admitted by, or on behalf of the Decree Holder in his reply to the notice given under sub Rule (2) of Rule 1 before the Court.

51. Order XXI Rule 3 specifically provides that a payment of adjustment which has not been certified or recorded as aforesaid shall not be recognized by any Court executing the decree. It is a settled proposition that under Order XXI Rule 2 either the Decree Holder has to certify the payment to the executing Court and in case the Decree Holder has not reported, the Judgment Debtor may inform the Court and the Court may certify the payment or adjustment after notice to the Decree

EX.APPL.(OS) 940-42/2023 in OMP (ENF.) (COMM.) 159/2019 Page 39 of 57 Signature Not Verified Signed By:PALLAVI VERMA Signing Date:08.10.2024 17:09:20 Holder. Sub-Rule-3, provides that a payment or adjustment which has not been certified or recorded under Sub Rule-1 or Sub Rule-2 shall not be recognized by the Court executing the decree. It is also a settled proposition that the general provision under Section 47 of the CPC has to yield to the special provision as contained in Order XXI Rule 2 which has been enacted to prevent a Judgment Debtor from setting up a false or cooked up pleas so as to prolong or delay the execution proceedings. It is no longer res integra the rule of "harmonious construction" provides that the general provision must yield to the special provision, therefore the plea of the Judgment Debtor that the limitation as provided under Section 47 be taken into account is liable to be rejected.

52. The Judgment Debtor in his application for condonation of delay has taken a plea that till 19.07.2023 he was misrepresented by the Decree Holder and only after 19.07.2023, when he came to know about the fraud being played by the Decree Holder, he moved the present application for recording the satisfaction. The question now is to be examined is whether the settlement or document as being relied upon by the Judgment Debtor actually amounts to satisfaction of the decree for which the enforcement petitions are pending. In this regard, it is necessary to look at the relevant documents. Recital-B of the Payment and Performance Agreement provides as under:

B. Under the BTA, APIL and ALTPL have undertaken to perform certain actions and obligations. APIL and ALTPL agree and acknowledge that actions, obligations and liabilities of APIL and ALTPL, as set out in Clause 3.1 of

EX.APPL.(OS) 940-42/2023 in OMP (ENF.) (COMM.) 159/2019 Page 40 of 57 Signature Not Verified Signed By:PALLAVI VERMA Signing Date:08.10.2024 17:09:20 the BTA remain unfulfilled and unsatisfied as on date ("Actionable"). APIL and ALTPL have hereby agreed to perform and complete the said Actionable in accordance with terms of the BTA and the terms set out herein

53. The bare perusal of this makes it clear that this document was executed as certain obligations and liabilities of APIL and ALTPL as set out in clause 3.1 of the BTA dated 02.04.2012 remained unfulfilled and unsatisfied as on the date. It is also necessary to reproduce Recital-C of the PPOA which is as under:

"C. The Parties have estimated that an amount of approximately INR 24.17 Crores ("Actionable Expenses") (partial break-up of which is stipulated in Schedule II (Actionable Expenses herein) shall be required to be expended for the performance and completion of the Actionable under the BTA including Key Actionable as set out in Schedule I (Key Actionable)."

54. The perusal of this also makes it clear that the key actionables are only limited to the actionable under the BTA. Before proceeding further, it is also necessary to refer that the agreement between these parties are APIL and ALTPL and ALKTPL. The record reveals that Mr. Gaurav Dalmia and others have been Directors of the ALKTPL since 2011. Clause-1.1 of the PPOA also provides "event of default" which means any event or circumstances specified in Clause-5. Clause-2.2 of this agreement provides as under:

"2.2. In lieu of the Obligation, ALKTPL or its affiliates / related parties / promoters will be entitled to withdraw the amount deposited by APIL/ALTPL or any other Judgment Debtors before the Registry of the Hon'ble High Court of Delhi in litigation pending between the parties, more fully

EX.APPL.(OS) 940-42/2023 in OMP (ENF.) (COMM.) 159/2019 Page 41 of 57 Signature Not Verified Signed By:PALLAVI VERMA Signing Date:08.10.2024 17:09:20 described in Schedule III, with interest accrued thereon, APIL/ALTPL shall have no right, claim or interest over the said amounts and ALKTPL or its affiliates / related parties / promoters shall be at liberty to utilize the amount as they deem fit."

55. The bare reading of this makes it clear that ALKTPL or its affiliated / related parties/promoters were held entitled to withdraw the amount deposited by APIL/ATPL or any other Judgment Debtor before the Registry of this Court in litigation pending between the parties. If the Arbitral Award is the subject matter of the present proceedings, there was no purpose of putting this clause. It is also a matter of record that the applicant / Judgment Debtor objected to the release of the payment and thus the event of default as provided under Clause-1.1 has also taken place which entitles ALKTPL under Clause-5.2(iii) that it will not be held liable to perform any of its obligations under this agreement. It is relevant to say that the entire PPOA does not speak even an iota of word about the Arbitral Award or the present enforcement proceedings. Clause-2.3(ii) also provides that the APIL or ALTPL were to provide all requisite cooperation, support and documentation to ALKTPL within seven working days of a written request from ALKTPL. It was also provided that in case of default ALKTPL will not be held liable to perform any of its obligations under this agreement.

56. Now coming to the Supplementary cum Amendment Agreement (Amendment Agreement), Recital-C of this agreement provides that parties agreed and acknowledged that certain obligations as

EX.APPL.(OS) 940-42/2023 in OMP (ENF.) (COMM.) 159/2019 Page 42 of 57 Signature Not Verified Signed By:PALLAVI VERMA Signing Date:08.10.2024 17:09:20 contemplated under the BTA of the seller i.e., ALTPL and the confirming party i.e., APIL remained unfulfilled and unsatisfied leading to dispute and arbitration between the relevant parties and the seller and confirming party agreed and undertook to fulfill the same in accordance with the terms hereof.

57. Clause-2.4 of the agreement provides as under:

"2.4. Notwithstanding anything contained herein and in the BTA: (i) the Parties agree and confirm that the sale and transfer of the Business has already taken effect under Clause 2.1.2 (Transfer of Business) and 2.2.1 (Purchased Assets) of the BTA on and from the Appointed Date which is also an admitted/undisputed fact set out in the Para 3.6 of Part III of the arbitration award dated 07 September 2018 announced inter alia in respect of the parties to theBTA, by the sole arbitrator, Late Justice RC Lahoti; (ii) and the Seller and Confirming Party agree and acknowledge that the Buyer has no outstanding obligations under the BTA and the Seller and Confirming Party irrevocably and unconditionally waive any and all of their claims, against the Buyer, in relation to the same and further agree and undertake not to dispute the same before any judicial forum or otherwise."

58. The perusal of this makes it clear that the parties agreed and confirmed that the sale and transfer of the business has already taken effect under Clause-2.1.2. (Transfer of Business) and Clause-2.2.1 purchase assets of BTA on and from the appointed date which is also an admitted / undisputed fact set out in para 3.6 part-3 of the Arbitration Award dated 07.09.2018 announced inter alia in respect of the parties to the BTA by the Sole Arbitrator late Hon'ble Mr. Justice Ramesh Chandra Lahoti (Retd.), Former Chief Justice of India. This clause also provided

EX.APPL.(OS) 940-42/2023 in OMP (ENF.) (COMM.) 159/2019 Page 43 of 57 Signature Not Verified Signed By:PALLAVI VERMA Signing Date:08.10.2024 17:09:20 that the seller and confirming party agreed and acknowledged that the buyer i.e., the Decree Holder has no outstanding obligations under the BTA and the seller and confirming party irrevocably and unconditionally waived any and all of their claims against the buyer in relation to the same and further agreed and undertook not to dispute the same before any judicial form or otherwise. Similarly, Clause-2.5 provided that the confirming party and the seller shall be jointly and severely liable to fulfill all such obligations required to be fulfilled under the BTA and this agreement. It also provided that the entire share capital of the ALKTPL had been transferred in terms of the SPA letter.

59. Perusal of Clause-3 "Undertaking by the Seller and Confirming Party"

also indicates that all the actionables were in regard to the Karnal Project. It is necessary to reproduce Clause-5.2, Clause-5.3 and Clause- 5.4 of the agreement which reads as under:

"5.2 The Seller and Confirming Party agree and acknowledge that as mutually agreed in Clause 2.6.2(ii) (Sale Consideration) of the BTA, the balance sale consideration of INR 43,00,00,000/- (Rupees Forty Three Crores Only) was payable by the Buyer from the surplus amounts available from the sale proceeds of the Karnal Project after making the payment of the amounts set out in Clause 2.6.2(ii) (a) to (d) of the BTA. The Seller and Confirming Party acknowledge, agree and confirm that there was/is no surplus amount available from the sale proceeds of the Karnal Project, and despite the sale of a substantial part of the inventory associated with the Karnal Project, the Buyer has faced losses as per the 'percentage of completion method' and that accordingly the balance sale consideration of INR 43,00,00,000 (Indian Rupees Forty Three Crores) is not due and payable by the Buyer to the

EX.APPL.(OS) 940-42/2023 in OMP (ENF.) (COMM.) 159/2019 Page 44 of 57 Signature Not Verified Signed By:PALLAVI VERMA Signing Date:08.10.2024 17:09:20 Seller. To substantiate, upon joint and mutual re-assessment of the valuation of the Transferred Undertaking, confirmed by an independent valuation conducted in accordance with law and accepted accounting principles, the Parties agree that due to non-fulfilment of the obligations, as set out under the BTA, on part of the Seller; the value of the Transferred Undertaking has substantially eroded, depreciated and reduced and currently stand at a negative INR 78,42,33,000/- (Indian Rupees Seventy Eight Crores Forty Two Lakhs Thirty Three Thousand Only). The Seller and Confirming Party and the Buyer mutually agree to relinquish their respective claims as stated herein, which shall not in any manner affect the obligations and liabilities of the Seller and rights and privileges of the Buyer on going forward basis.

5.3 Further, notwithstanding anything contained in the BTA, on account of delays until the Execution Date, that have occurred on part of the Seller and/or Confirming Party in fulfilling their following obligations under the BTA, resulting in Buyer not being able to market and monetise the Karnal Project resulting in losses to the Buyer pursuant to

(a) delay in transfer of licenses/change of developer (b) delay in removing encroachments/land issues/removal of legal cases resulting in Buyer not being able to procure new licenses / consolidate land parcels (c) because of patches of Shamlat Land as set out in detail in Annexure-5 in the overall land parcel resulting in Buyer neither being able to procure new licenses nor being able to sell such land (d) development done by the Confirming Party and/or the Seller before transfer of business without requisite approvals resulted in extra cost to be incurred by Buyer and delay in completion (e) delay in provision of requisite documentation, as per BTA, resulting in Buyer not having been able to effectively proceed with the Karnal project (f) since April 2012, despite being an obligation of the Seller and/or the Confirming Party, the Specified Licenses being renewed under protest, by the Buyer at its own cost aggregating to INR 4,99,53,212/- (INR Four Crores Ninety

EX.APPL.(OS) 940-42/2023 in OMP (ENF.) (COMM.) 159/2019 Page 45 of 57 Signature Not Verified Signed By:PALLAVI VERMA Signing Date:08.10.2024 17:09:20 Nine Lakhs Fifty Three Thousand Two Hundred and Twelve Only), which has occurred until the Execution Date (g) non-

closure / settlement of civil suit number 445/ 2010 pending in the court of C.G.M Karnal(h) delay in completing the obligations under the BTA resulted in huge financial/ commercial loss because of time value of money wherein the Buyer has suffered losses to the tune of approximately INR 25,00,00,000/- (INR Twenty Five Crores Only). The Parties hereby agree and confirm that, the losses suffered by the Buyer on account of the non-fulfilment of the obligations by the Seller under the BTA and on account of the acts mentioned hereinabove are higher than the claims, counter claims, litigations, proceedings and any other outstanding due and payable by the Buyer to the Seller and the Confirming Party. The Seller, Confirming Party and the Buyer have mutually agreed to relinquish their respective claims against each other which were outstanding on the Execution Date (including but not limited to INR 16,71,39,352/-, recoverable by the Seller from the Buyer, and/or its associates, as more specifically set out in Annexure-4). Notwithstanding the foregoing the Parties agree and confirm that the Seller and the Confirming Party hereby undertake to rectify/remedy the defaults highlighted in this Clause 5.3 if any of them occur or continue post the Execution Date, and the Seller and the Confirming Party shall indemnify the Indemnified Parties for any Adverse Consequences arising from or in relation thereto. The Parties further agree and confirm that the current set off is only for delays until the Execution Date and the Indemnified Parties shall continue to have a right of indemnification in relation to any Adverse Consequences in relation to or on account of any and all further delays, against the Seller.

5.4 The Parties clarify and agree that the compensation and set off agreed among the relevant Parties under Clause 5.2 and Clause 5.3 of this Amendment Agreement, are only in relation to the known delays as communicated by the Buyer to the Seller, and as these delays, defaults and breaches are of a continuing nature, the Parties agree, confirm and

EX.APPL.(OS) 940-42/2023 in OMP (ENF.) (COMM.) 159/2019 Page 46 of 57 Signature Not Verified Signed By:PALLAVI VERMA Signing Date:08.10.2024 17:09:20 acknowledge that notwithstanding anything contained in this Amendment Agreement and the BTA, the compensation and set off referred to under Clause 5.2 and Clause 5.3 of this Amendment Agreement, does not prevent or restrict the Buyer from making any further claims (including indemnity claims) in relation to the subject matter of the Amendment Agreement and/or the BTA, including in relation to the delays communicated under Clause S.2 and Clause 5.3 of this Amendment Agreement."

60. The perusal of Clause-5.2 makes it clear that Judgment Debtor agreed that due to non-fulfillment of the obligations as set out under the BTA on the part of the seller, the value of the transferred undertaking has substantially eroded deprecated and reduced and currently stated at a negative INR. 78,42,33,000/- only and thus the seller and the confirming party and the buyer mutually agreed to relinquish their respective claims as stated herein. It was also acknowledged that on account of delays until the execution date that have occurred on part of the seller or confirming party on fulfilling their obligation under the BTA resulting in buyer i.e., the Decree Holder not being able to market and monetize the Karnal project resulting in losses to the buyer pursuant to delay in transfer of license / change of developer, delay in removing encroachment / land issues/ removal of legal cases resulting in buyer not being able to procure new licenses, consolidated land parcels, because of patches of land as set out in detail in overall land parcel resulting in buyer neither being able to procure new licenses nor being able to sell such lands, development being done by the confirming party and or the seller, before transfer of business without requisite approval resulted in extra cost incurred by the buyer and the

EX.APPL.(OS) 940-42/2023 in OMP (ENF.) (COMM.) 159/2019 Page 47 of 57 Signature Not Verified Signed By:PALLAVI VERMA Signing Date:08.10.2024 17:09:20 delay in completion. It was also acknowledged that there was delay in provision of requisite documentation resulting in buyer not having been able to effectively proceed with the Karnal project despite being an obligation on the Judgment Debtor. Licenses were being renewed under protest by the Decree Holder at its own cost aggregating to around INR. 4,99,00,000/-. The other defaults on the part of the Judgment Debtors were also noted. Clause also reveals that the parties agreed and confirmed that the losses suffered by the Decree Holder on account of non-fulfillment of the obligation by the Judgment Debtor under the BTA and on account of the acts mentioned herein above are higher than the claims, counter claims, litigation proceedings and any other outstanding due and payable by the Decree Holder to the seller and the confirming party. Thus the plea of the applicant/Judgment Debtor that by virtue of the settlement the Decree Holder got benefit of plus 1,000 Crores falls flat on the fact of it.

61. It is also relevant to mention that the parties agreed that the compensation and set of aggrieved amongst the parties under Clause- 5.2 and 5.3 of this Amendment Agreement were only in relation to the known delays as communicated by the buyer to the seller. Apparently, there was no mention as to the impugned award. It is also relevant to mention here that original Business Transfer Agreement dated 02.04.2012 was only in regard to real estate project at Karnal and the present agreement and PPOA were only to fulfill the obligation of Judgment Debtor which remained unfulfilled.

62. Recital-D made it clear that the seller i.e., ALTPL was desirous of

EX.APPL.(OS) 940-42/2023 in OMP (ENF.) (COMM.) 159/2019 Page 48 of 57 Signature Not Verified Signed By:PALLAVI VERMA Signing Date:08.10.2024 17:09:20 selling the entire operations with respect to the Karnal Project (herein after referred as the Project) by way of sale of Karnal project as a going concern to the ALKTPL. The business has been defined under Clause- 1.1. It is relevant to note that the Supplementary cum Amendment Agreement (Amendment Agreement) was pursuant to which the business as defined in the BTA i.e., 02.04.2012. It is also relevant to mention here that the matter was referred to learned Arbitrator vide communication dated 08.05.2017 in regard to the Term Sheet dated 21.12.2011 and the definitive agreements executed there under.

63. Clause-2.3 of the Amendment Agreement also recorded that the parties agreed and confirmed that the sale transfer of the business has already taken effect under Clause-2.1.2 and 2.2.1 of the BTA on and from the appointed date which is also an admitted/undisputed fact set out in para-3.6 part-3 of the Arbitration Award dated 07.09.2019. It is relevant to mention that in para-3.6 to 3.9 of the Award, learned Arbitral Tribunal has inter alia held as under:

"3.6 In pursuance to the aforesaid Term Sheet, in the period between Feb. 2012 and Sept. 2012 the following Definitive Agreements were signed by and between the parties:

1) Business Transfer Agreement (BTA) dated 02.04.2012 (Annexure C-4, p. 79 of Landmark's SoC) which inter alia provides for the terms and conditions under which the entire operations with respect to the Karnal Project, as a going concern, alongwith all the interests of the ALTPL were transferred to Ansal Landmark Karnal Township Private Limited ("ALKTPL") (part of the Landmark Group), with effect from the close of business hours on 31.03.2012.

EX.APPL.(OS) 940-42/2023 in OMP (ENF.) (COMM.) 159/2019 Page 49 of 57 Signature Not Verified Signed By:PALLAVI VERMA Signing Date:08.10.2024 17:09:20

2) Development Agreement dated 02.04.2012 (Annexure C-

5, p. 104 of Landmark's SoC) whereby, the Landowners, namely the Party No. 3 and 4 of the Ansal Group, irrevocably transferred, assigned and granted the sole and exclusive Development Rights on 3.43 Acres of Land belonging to the said Landowners, on the terms and conditions contained therein in favour of ALKTPL.

3) Share Purchase Agreement dated 02.04.2012 (Annexure C-6, p. 124 of Landmark's SoC) which inter alia records the transfer of 58645 shares of AUCPL (Party No. 5 of Ansal Group) held by ALTPL to ALKTPL for a consideration of Rs. 1 Crore on the terms and conditions stated therein.

4) Share Purchase Agreement dated 29.06.2012 (Annexure C-7, p. 137 of Landmark's SoC) which inter alia records the transfer of 4,05,000 shares of ALTPL held by Landmark Group Nos. 3 to 10 to Ansal Group No. 1 and one of its associates for a consideration of Rs. 99,13,51,222/- on the terms and conditions stated therein.

5) By way of the Deed of Guarantee dated 30.06.2012 (Annexure C-8, p. 151 of Landmark's SoC), Ansal Properties and Infrastructure Limited ("APIL"), inter alia, guaranteed Party No. 5, 7 and 4 of Landmark Group that the amount of Rs. 12,86,48,778/- advanced by them to ALTPL shall be repaid by ALTPL within 15 days of execution of the Deed of Guarantee, failing which APIL shall forthwith pay the said amount without demur or protest, alongwith 18% interest for the delayed period, if any.

6) Share Purchase Agreement dated 30.09.2012 (Annexure C-9, p. 158 of Landmark's SoC) which inter alia records the transfer of 10000 shares held by ALTPL alongwith its nominees in ALKTPL to Claimant No. 3 and 6 to 10 for a consideration of Rs. 1 Crore on the terms and conditions stated therein.

3.7 The effect of the aforesaid Definitive Agreements and

EX.APPL.(OS) 940-42/2023 in OMP (ENF.) (COMM.) 159/2019 Page 50 of 57 Signature Not Verified Signed By:PALLAVI VERMA Signing Date:08.10.2024 17:09:20 Term Sheet was set out by the Ansal Group in their letter dated 29.06.2012 (C-10, p. 174 of Landmark's SoC) as follows:

"This has reference to the Agreements executed and proposed to be executed between the Landmark Group and Ansal Group for division of projects being undertaken by Ansal Landmark Township Private Limited ("Transaction")...

"Notwithstanding anything to the contrary contained in the Agreements or other documents executed regarding the Transaction, we would like to record the following:

"1. The Ansal Group shall make payment of an amount of Rs. 108 crores to the Landmark Group, for the Transaction. In addition to transfer of the Karnal Project (as defined in BTA), the Ansal Group shall also transfer of 25% interest in the Group Housing, Ghaziabad Project undertaken by Ansal Urban Condominiums Private Limited in favour of the Landmark Group.

"2. The said amount of Rs. 108 crores shall be paid by the Ansal Group to the Landmark Group in the following manner under the Agreements:

                                         Particulars                                Amount (Rs.)
                                                                                    Total
                                         Purchase Consideration under               99,13,51,222
                                         SPA-ALTPL
                                         Refund of Loan of Dalmia                   12,86,48,778
                                         Group by ALTPL
                                         Less: Purchase Consideration               (2,00,00,000)
                                         under BTA
                                         Less: Purchase Consideration               (1,00,00,000)
                                         under SPA-AUCPL
                                         Less: Purchase Consideration               (1,00,00,000)

                          EX.APPL.(OS) 940-42/2023 in OMP (ENF.) (COMM.) 159/2019             Page 51 of 57
Signature Not Verified
Signed By:PALLAVI VERMA
Signing Date:08.10.2024
17:09:20
                                          under SPA-Karnal Cr.
                                         Net payable to Landmark                    108,00,00,000
                                         Group

3. The Ansal Group has earmarked the assets listed in Annexure A hereof in favour of the Landmark Group. The Ansal Group shall be entitled to sell the said assets, however the sale proceeds thereof shall be paid immediately to the Landmark Group towards payment of Rs. 108 Crores or any other amount payable as per this Letter.

"5. In addition to the aforesaid amount of Rs. 108 crores, the Ansal Group shall pay interest to the Landmark Group on the unpaid amount out of Rs. 108 crores at the rate of 7.5% p.a. to be compounded quarterly with effect from 01.12.2011, provided that if any part of the said amount of Rs. 108 crores remains outstanding after 31.05.2012 shall carry interest @ 15% to be compounded quarterly until it is fully paid."

"We, on behalf of the Ansal Group hereby undertake to honour the contents of this letter and in the event of any default on the part of any of the parties to the Agreements, we shall undertake to indemnify the Landmark Group for any losses incurred by the Landmark Group including their directors and shareholders."

3.8 Thus, Ansal Group committed (a) to make payment of Rs. 108 crores, for which certain properties were earmarked for liquidation to realize the sums due, (b) to transfer Karnal Project and (c) to transfer 25% in Ghaziabad project to the Landmark Group as consideration for the exit of Landmark Group from the transaction. It was also agreed that if the said sum of Rs. 108 crores remained outstanding beyond 01.12.2011, it would carry interest @ 7.5% p.a. to be compounded quarterly till 31.05.2012, and@ 15% to be compounded quarterly thereafter until

EX.APPL.(OS) 940-42/2023 in OMP (ENF.) (COMM.) 159/2019 Page 52 of 57 Signature Not Verified Signed By:PALLAVI VERMA Signing Date:08.10.2024 17:09:20 fully paid.

3.9 Thereafter, parts (b) and (c) were implemented, inasmuch as the Karnal Project was transferred in favour of Landmark Group and 25% of shareholding in AUCPL, the Company implementing the Group Housing portion of the Ghaziabad Project, was also transferred to Landmark Group."

64. It is also necessary to refer that the learned Arbitral Tribunal in para-

3.7 has also referred to the letter of Ansal Group dated 29.06.2012 wherein it stated that the Ansal Group shall make payment of an amount of Rs. 108 crores to the Landmark Group for the transaction.

65. It is pertinent to mention that, the Award dated 07.09.2018 has not been stayed or set aside by the Court. It is also necessary to refer that in Clause-2.1.2 it was specifically mentioned that notwithstanding the completion of the transaction contemplated under this agreement at a date after the appointed date, the sale and transfer of business shall take effect on and from the appointed date. The appointed date has been defined in Clause-1.1.1 as stated in Recital-E. Recital-E defines the appointed date as 31.03.2012.

66. Similarly, in Clause-2.2.1 of BTA of 2012 it was stated that subject to the terms and conditions of this agreement on and from the appointed date all the interest, titles and rights in the business including purchase assets shall stand transferred and conveyed in the favour of the buyer as the legal and beneficial owner thereof and seller shall be left with no right, title or interest of the same.

67. It is also relevant to mention that applications for withdrawal of the

EX.APPL.(OS) 940-42/2023 in OMP (ENF.) (COMM.) 159/2019 Page 53 of 57 Signature Not Verified Signed By:PALLAVI VERMA Signing Date:08.10.2024 17:09:20 proceedings and Undertaking dated 21.03.2023, duly signed by the parties, does not in manner show that any money payable under the award is paid out of Court in whole or in part to the satisfaction of the Decree Holder. The applicant/ Judgment Debtors have approached this Court during the proceedings of the enforcement proceedings and particularly when the contempt proceedings were on and with the present application inter alia taking the plea that a comprehensive settlement has taken place between them. It is a matter of record that even after March 2023 when the applications were moved by the Decree Holder for release of the deposited amount the same was contested tooth and nail by the Judgment Debtor, whereas it was ostensibly agreed between the parties that the Judgment Debtor shall not oppose withdrawal of money deposited with the Registry of this Court by the Decree Holder. The Judgment Debtor filed these applications only on 07.08.2023 only a day before 08.08.2023 when this Court ordered for the release of the amount.

68. I consider that as far as the calling of the documents by this Court is concerned that was necessary in view of the issue being raised by the judgment debtor/applicant that the parties have reached on a comprehensive settlement. In this regard, the objection taken by the learned senior counsel for the Decree Holder that these documents being an escrow could not have been called and have no binding effect had to be ignored for the reason that the Court wanted to reach to the logical conclusion, and it was necessary for this Court to look at the documents. It is also pertinent to mention here that though the

EX.APPL.(OS) 940-42/2023 in OMP (ENF.) (COMM.) 159/2019 Page 54 of 57 Signature Not Verified Signed By:PALLAVI VERMA Signing Date:08.10.2024 17:09:20 Judgment Debtors also in his pleadings has referred Mr. Jayant Davar as an escrow, but there was no written agreement between the parties to the effect that Mr. Jayant Davar was appointed as an escrow or the documents were kept in the escrow. Keeping aside the technicalities, the Court has examined the documents as relied upon by the Judgment Debtor.

69. There is no doubt in the mind of the Court that the parties were in the process of settlement and they had executed certain documents like PPOA and the Amendment Agreement which has been examined afresh herein before. However, these documents in no way fulfills the conditions as prescribed under Order XXI Rule 2 CPC. There is nothing in these documents to suggest that the Judgment Debtor/ applicant has made any payment under a decree to the satisfaction of the Decree Holder. The plea taken by the learned senior counsel for the Judgment Debtor that the award cannot be taken as a decree has also to be rejected out rightly in view of the discussion made herein before and Section 36(1) of the Arbitration and Conciliation Act, 1996. Section 36(1) of Arbitration and Conciliation Act, 1996 specifically provides that the award has to be enforced as if it were a decree of the Court.

70. The discussion made herein above makes it amply clear that the documents executed on 21.03.2023 does not at all relate to the Arbitral Award dated 07.09.2018. The agreement, if any, entered into between the parties upto that stage was only in regard and furtherance of the Term Sheet dated 21.12.2011 and BTA (Business Transfer Agreement) dated 02.04.2012. None of the clauses or the recitals of this even

EX.APPL.(OS) 940-42/2023 in OMP (ENF.) (COMM.) 159/2019 Page 55 of 57 Signature Not Verified Signed By:PALLAVI VERMA Signing Date:08.10.2024 17:09:20 remotely indicate that the award in favour of the Decree Holders has been satisfied in any manner. The application, in addition, is also liable to be dismissed out rightly as it has been filed much after 30 days of limitation as provided under Article 125 of Limitation Act. The cause of delay as shown by the applicant is totally baseless. It is also pertinent to mention that Section 43 of Arbitration and Conciliation Act, 1996 provides that the Limitation Act, 1963 shall apply to arbitration as it applies to proceedings in Court. Section 5 of the Limitation Act, 1963 will also not be applicable as it specifically excludes an application under any of provisions of Order XXI CPC.

71. Learned senior counsel for the Decree Holder has vehemently argued that documents being called from Mr. Jayant Davar, are an ESCROW, as being admitted by Judgment Debtor also in their pleadings. Learned senior counsel also submitted that this Court also vide order dated 01.03.2024 to 01.05.2024 made it clear that the documents have not been taken on record. Learned senior counsel also submitted that Applicant/Judgment Debtor has not proved any condition for release of documents from ESCROW. The Court considers that in absence of any formal/written agreement, it cannot be presumed that the documents were in ESCROW. It is correct that the parties were negotiating some settlement and during the course of such negotiation reached on some settlement, and the documents were kept with Mr.Jayant Davar. Merely because the Judgment Debtor has also in the pleadings termed Mr. Jayant Davar as ESCROW, it cannot be accepted. It is pertinent to mention that now unfortunately both the parties are not at an ad-idem

EX.APPL.(OS) 940-42/2023 in OMP (ENF.) (COMM.) 159/2019 Page 56 of 57 Signature Not Verified Signed By:PALLAVI VERMA Signing Date:08.10.2024 17:09:20 regarding the custody of documents executed by them. The documents executed as important documents containing signature of the parties and will have ever-lasting effect. Thus, this Court considers that without going into the technicalities, let the document received from Mr.Jayant Davar be kept in sealed cover with the Registry of this Court and the Court may pass an appropriate order at the culmination of the proceedings.

72. In view of the discussion made herein above, the present application being No. EX.APPL.(OS) 940/2023, EX.APPL.(OS) 941/2023, EX.APPL.(OS) 942/2023 stands disposed of.

DINESH KUMAR SHARMA, J OCTOBER 3, 2024/Ankit/KR

EX.APPL.(OS) 940-42/2023 in OMP (ENF.) (COMM.) 159/2019 Page 57 of 57 Signature Not Verified Signed By:PALLAVI VERMA Signing Date:08.10.2024 17:09:20
Landmark Property Development And ... vs Ansal Properties & Infrastructure Ltd. ... 2024 Latest Caselaw 6550 Del

Full Judgement

Similar Judgements

Orissa Administrative Tribunal Bar Association Vs. Union of India & Ors. 2023 Latest Caselaw 234 SC

Phoenix ARC Private Ltd. Vs. Spade Financial Services Ltd. 2021 Latest Caselaw 45 SC

M/S Skyline Engineering Contracts ... vs Union Of India & Ors. 2024 Latest Caselaw 1364 Del

Kunal Kapur vs Ekta Kapur 2024 Latest Caselaw 2624 Del

Banyan Real Estate Fund Mauritius vs Assistant Commissioner Of Income Tax ... 2024 Latest Caselaw 5035 Del

Landmark Property Development And ... vs Ansal Properties & Infrastructure Ltd. ... 2024 Latest Caselaw 6551 Del
