RAJIV SHAKDHER, SANJAY KISHAN KAUL, JJ.

IA No.6386/2008 (under Order 23 Rule 1 CPC) in CS (OS) No.1077/2000

1. The prayer made by the plaintiffs seeking unconditional withdrawal of the suit filed for foreclosure of mortgage or sale and in the alternative for recovery or `2,04,76,219.00 is being resisted by the defendant.

2. One Shri Shridev Sharma (for short „Mr. Sharma?) is stated to be the Director/Constituted Attorney and has controlling interests in all the plaintiff companies except plaintiff No.8. Mr. V.K. Misra (for short „Mr. Misra?), an acquaintance of Mr. Sharma is stated to have informed Mr. Sharma that he intended to initiate a luxury housing project for his son Mr. Gautam Misra for which he had identified 15 acres of land in Village Bamnauli, Tehsil Vasant Vihar, Near Brijwasan in the National Capital Territory of Delhi. It is the case of the plaintiffs that since Mr. Misra at that time was posted as the Controller of Defence Accounts at Meerut, U.P. and held a Government position, help of Mr. Sharma was sought for purchase of the land and also for a loan of `2.00 crore. Mr. Sharma is stated to have past experience in the real estate business in various capacities. To achieve this object it was decided to incorporate a new company with the father of Mr. Misra and his son being the only Directors and shareholders apart from Mr. Sharma or his nominee as shareholders in proportion to their financial involvement. Since Mr. Sharma is stated not to have been comfortable with this arrangement an alternative proposal of a loan of `2.00 crore was explored with rights to sell luxury apartments to be built on the land.

3. Mr. Sharma is stated to have, thus, committed an investment of up to `1.70 crore from the plaintiff companies to be repaid on or before 31.3.2000 together with interest @ 24 per cent per annum from the date of payment of the money till the date of repayment and the title deeds of the land were to remain deposited with the nominees of Mr. Sharma, as security by way of equitable mortgage, who will be advancing the money. On the repayment of the entire amount the title deeds had to be handed back. No construction is stated to have been contemplated on the land prior to the said date of 31.3.2000 and, thus, it was also agreed that the vacant physical possession of the land was to remain with Mr. Sharma on behalf of the plaintiffs till repayment of the entire amount advanced, as licensee of the defendant in whose name the property was to be acquired. The total amount of `1,69,95,000.00 was paid by the plaintiffs to the defendant as per details set out in paragraph 6 of the plaint between the period July, 1999 to December, 1999. The only amount refunded is stated to be `25,000.00. Sale deeds were executed by the owners in favour of the defendant. The land in question is stated to had some existing construction and in view of there being threat of encroachment, the plaintiffs are stated to have spent monies for repairing the boundary wall.

4. It is the say of the plaintiffs that the intention of the Misras turned dishonest from the last week of the month of January, 2000 as they started expressing their inability to repay the amount while simultaneously wanting the possession of the land from the plaintiffs. Since all negotiations broke down, the present suit was filed by the plaintiffs.

5. It is the say of the plaintiffs that the license granted by the defendant to exclusively use and occupy the property is not revocable till payment of dues of the plaintiffs. The title deeds are deposited with the plaintiffs. The endeavour of the defendant to send some cronies to take forcible possession of the land hastened litigation.

6. The plaintiffs say that an earlier suit No.338/2000 was filed by them against the Misras simplicitor for injunction to restrain them from forcibly dispossessing the plaintiffs from the aforesaid property till repayment of the entire dues and by an interim order dated 18.2.2000 this Cour