EX.P.--79/2014. Case: JAYANT GHADIA Vs. HINDUSTAN TRADEX & MANUFACTURING PVT LTD AND OTHERS. High Court of Delhi (India)
| Case Number | EX.P.--79/2014 |
| Citation | NA |
| Judgement Date | December 09, 2019 |
| Court | High Court of Delhi (India) |
Judgement reserved on 10.04.2019 Judgement pronounced on 09.12.2019 + EXECUTION PETITION No. 79/2014 & EXECUTION
APPLICATION (OS) Nos. 833/2015, 837/2015, 1122/2015, 167/2016, 68/2017 & 363/2017
JAYANT GHADIA ..... Petitioner
Through: Mr. Ankit Jain & Mr. Siddhant Nath,
Advocates.
versus
HINDUSTAN TRADEX & MANUFACTURING PVT LTD AND OTHERS ..... Respondents
Through: Mr. Dinesh Agnani, Senior Advocate with Mr. Shohit Chaudhry, Advocate, for judgment debtor no. 1
Mr. J.S. Lamba, Advocate, for objector Kuldeep Singh Dalal.
Ms. Kajal Chandra with Ms. Prerna Chopra, Advocates, for Objector Ms. Amna Bi.
Mr. Sandeep Sharma with Mr. Mrinal Srivastava, Advocates, for objector VP Gupta.
CORAM:
HON'BLE MR. JUSTICE RAJIV SHAKDHER RAJIV SHAKDHER, J.:
Preface
-
Principally I have been called upon to adjudicate upon Ex. P. 79/2014 (in short “Execution petition”). This execution petition has been filed by one Mr. Jayant Ghadia (in short, “Ghadia”). Ghadia has filed an
Ghadia has sought a direction to summon documents from the concerned Debt Recovery Tribunal. In the execution petition, Ghadia seeks enforcement of the award dated 28.1.2009 (in short “award”) passed by the Learned Arbitrator in the matter titled "Jayant Ghadia versus Hindustan Tradex & Manufacturing Private Limited and Ors."
1.1 The execution of the award is opposed by four persons who have filed separate applications in this behalf. These applications are numbered as EA 833/2015, EA 837/2015, EA 1122/2015, and EA 167/2016.
1.2 EA 833/2015 has been filed by one Mr. V.P. Gupta (hereafter referred to as “objector No. 1”). EA 837/2015 has been filed by Amna Bi (hereafter referred to as “objector No. 2”). EA 1122/2015 has been filed by a person by the name Kuldeep Singh Dalal (hereafter referred to as “objector No. 3”). EA 167/2016 has been filed by judgment debtor No. 1
i.e. Hindustan Tradex Manufacturing & Private Limited (hereafter referred to as HTML).
1.3 Besides EA 363/2017, Ghadia has filed another application in which the relief sought is directed against objector No. 1. This application is numbered as EA(OS) 68/2017.
and the applications filed by Ghadia, is in a sense, dependent on the conclusion that I would reach with regard to the sustainability of the execution petition.
Backdrop
-
Thus, in order to reach a conclusion either way, the following broad facts are required to be noticed.
-
The record shows that HTML (which had on its board at one point in time, one, Mr. Anil Shah as the managing director), secured a loan from State Bank of India. In lieu of the loan offered by State Bank of India, the following seven properties were offered as security:
(i) Flat no. 1209 & 1210, 12th Floor, 26, Kailash Building, K.G. Marg, New Delhi-110001 (hereafter referred to as “K.G. Marg Property no. 1”);
(ii) Flat no. 309, 3rd Floor, Kanchanjunga Building, 18, Barakhamba Road, New Delhi -110001 (hereafter referred to as “Barakhamba Road Property”);
(iii) Property No. 2139, Old Bus Stand, Ganesh Pura-B, Tri Nagar, New Delhi (hereafter referred to as “Tri-Nagar Property no. 1”);
Delhi-110001 (hereafter referred to as “K.G. Marg Property No. 2”);
(v) Sub-Plot No. 1480/1, Holding No. 116(D), Ward No. 17, Village Konka, S.K. Sahai Road, Circular Road, Ranchi (hereafter referred to as “Ranchi property No. 1”);
(vi) Sub-Plot No. 1480/2, Ward No. 17, Village Konka, S.K. Sahai Road, circular Road, Ranchi (hereafter referred to as “Ranchi property No. 2”); and
(vii) Property No. 2134, Old Bus Stand, Ganesh Pura, Tri Nagar, New Delhi (hereafter referred to as “Tri Nagar Property No. 2”)
-
There are claims and counter claims concerning the ownership of some, if not, all the properties referred to above.
5.1 Ghadia claims that HTML owned K.G. Marg Property No. 1 and Barakhamba Road Property.
5.2 Likewise, it is claimed by Ghadia that Tri Nagar Property No. 1 is owned by a company by the name Aqua Cross Enterprises Private Limited (in short “ACPL”).
5.3 It is also the claim of Ghadia that K.G. Marg Property No. 2 is owned by a company by the name Yogi Trading Company Private Limited (in short YTPL).
Ghadia that the same is owned by an individual by the name Ms. Bibha Ranjan, who as per the record at one point in time was apparently appointed as an additional director in HTML, ACPL and YTPL.
5.5 Insofar as the remaining two properties are concerned, i.e. properties referred at serial No. (vi) and (vii), these were owned by, one, Mrs. Sangeeta Shah, wife of Mr. Anil Shah.
5.6 It may also be relevant to note that along with Mrs. Bibha Ranjan, Anil Shah and P.K. Srivastava were apparently appointed as directors on the board of ACPL and YTPL apart from HTML.
5.7 What is however important to note at this stage is that properties referred to in serial nos. (i) to (v) are subject matter of the award. While properties in serial no. (i) to (iv) are subject matter of the Execution Petition, the property referred to in serial no. (v) though part of the award is curiously, not included in the execution petition.
5.8 Thus, the properties mentioned in the award will be collectively referred to as the “award-properties” while the remaining three properties (the details of which are given in serial no. (v) to (vii) in Paragraph 4 above), would be collectively referred to as “non-award” properties.
SBI filing a recovery action i.e. O.A. 127/2002 in the concerned Debt Recovery Tribunal (DRT). In this recovery action not only the borrower company i.e. HTML was arrayed as a defendant but even the guarantors and the mortgagors of the properties referred to hereinabove which formed the security for the loan advanced to HTML were made part of the recovery action.
-
Mr. Anil Shah, who, as indicated above, was one of the directors on the board of the borrower company (i.e. HTML) passed away on
1.12.2003.
-
The record seems to suggest that Mr. Anil Shah and his wife Mrs. Sangeeta Shah at some point in time acquired a Non-Resident Indian (“NRI”) status and were located in the USA.
-
It appears that while the recovery action filed by SBI was pending adjudication, it assigned the debt owed to it by HTML and its guarantors to Standard Chartered Bank (hereafter referred to as “SCB”).
9.1 The SCB, thereafter, entered into a “One Time Settlement” (OTS) with HTML and its guarantors. The OTS amount was pegged at Rs.9.60 crores, which was required to be paid in three monthly instalments with effect from 5.6.2008.
reflected in SCB’s letter dated 25.4.2008.
-
Apparently, in order to garner funds, a Memorandum of Understanding dated 4.5.2008 (in short 2008 MOU No. 1) was executed between HTML, ACPL, YTPL and Ms. Bibha Ranjan on one side and Ghadia on the other. Pertinently, HTML, ACPL and YTPL executed the 2008 MOU No. 1 via Mr. P.K. Srivastava based on three separate board of directors’ resolutions dated 3.5.2008, all of which, have been attested by Ms. Bibha Ranjan.
10.1 Parallelly, Ghadia had on the very same date i.e. 4.5.2008 entered into another Memorandum of Understanding (in short 2008 MOU No. 2) and an addendum with Mrs. Sangeeta Shah and her family (which included her children and her father) in respect of the following properties:
(i) X-6B, Hauz Khas Enclave, New Delhi (hereafter referred to as “Haus Khas Property”)
(ii) Plot No. 148/02, Holding No. 1186(C), Ward No. 17, Village Konka, S.K. Sahai Road, Circular Road, Ranchi (hereafter referred to as “Ranchi Property No. 3”)
[To be noted that except for the plot number the other indices which describe Ranchi Property No. 2 are identical to Ranchi Property No. 3. There is no clear indication in the record as to whether
properties]
(iii) Plot no. 2134/166 and 2139/166, Old Bus Stand Road, Ganesh Pura-B, Tri Nagar, Delhi-110035 (hereafter referred to as “Tri Nagar Property No. 3”)
[This property also replicates in description, except for the property number, the properties referred to as Tri Nagar Property No. 1 and Tri Nagar property No. 2. There is once again no clarity in the record as to whether Tri Nagar Property No. 3 is a separate property or a combination of Tri Nagar Property No. 1 and 2]
-
Interestingly, in and about 12.1.2009, Ghadia filed a petition under Section 9 of the Arbitration and Conciliation Act, 1996 (in short “1996 Act”) in this Court seeking an injunction against HTML, ACPL, YTPL and Ms. Bibha Ranjan in relation to the following properties: i.e. K.G. Marg property No. 1, Barakhamba Property, Tri Nagar Property No. 1, K.G Marg property No. 2 and Ranchi Property No. 1.
-
The substantive prayer made in the Section 9 Petition was as follows:
“a) pass ex-parte ad interim injunction restraining the respondents, their servants, agents etc. from in any manner creating any third party rights in the properties detailed in para 1 of this petition;”
a joint application under Order XXIII Rule 3 read with Section 151 of the Code of Civil Procedure, 1908 (in short “CPC”) was filed by the parties herein for recording the terms of compromise; this application was accompanied by the 2008 MOU No. 1. Evidently, on 20.1.2009 the court appointed a Retired Judge of this Court as an arbitrator in the matter qua persons and entities who were parties to the Section 9 petition. Via the very same order, the Court also directed the parties to appear before the learned arbitrator on 22.1.2009.
13.1 Before the arbitrator, Ghadia filed a Statement of Claim (“SOC”) on
22.1.2009. In the SOC, Ghadia adverted to the 2008 MOU No. 1 and prayed that an award be passed in his favour in terms of the said MOU. In other...
To continue reading
Request your trial