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High Court of Delhi
MANMOHAN SINGH, J.
Sicpa India Private Ltd.
Versus
Kapil Kumar & Others
I.A. Nos. 478, 6654, 6657 & 20809 of 2011 & I.A. Nos. 274 of 2012 & I.A. Nos. 15011 & 15012 of 2010 & CS(OS) No. 2277 of 2010
Decided on: 01-07-2014
Arbitration and Conciliation Act, 1996 -Section 8 - Arbitration - Agreement - Arbitration clause - Maintainability of suit - Loan agreements contain an arbitration clause - Plaintiff has not taken any steps for arbitration - Plaintiff has also not filed the suit for recovery of loan amount against the defendants No.1 to 3 - Merely because there are parties other than defendants No.1 to 3 against whom the reliefs are being sought, which is permissible against the third party, arbitration proceedings cannot be denied - Suit is held not maintainable.
Civil Procedure Code, 1908 - Order 2 Rule 2 - Order 1 Rule 10(2) - Order 7 Rule 11 - Impleadment of party - Deletion of party - Agreement - Party to agreement - Various loan agreements were executed between the plaintiff and defendants No.1 to 3 - Defendants No.4 to 6 are not parties to the agreements and have no privity of contract with the plaintiff - Defendant No.6 is mentioned as Performa party in the plaint - There is no cause of action against the defendants No.4 to 6 - Relief against the defendants No.4 to 6 is barred by law - Suit against the defendants No.4 to 6 is not maintainable and no cause of action exists against them.
Civil Procedure Code, 1908 - Order 39 Rule 1 & 2 - Order 2 Rule 2 - Order 1 Rule 10(2) - Order 7 Rule 11 - Order 6 Rule 17 - Transfer of Property Act, 1882 - Section 52 - Specific Relief Act, 1963 - Section 41 (e), (g) - Agreement to sell - Third party rights - Cause of action - Amendment - Being aware of third party rights over the suit property have been created, application for amendment was filed almost after two years, seeking specific performance of its agreement to sell and cancellation of the sale deed - Plaintiff, having chosen not to enforce the agreement to sell when offered in February, 2009 by not settling the dues of ICICI Bank - Held, plaintiff cannot take a U turn and try to enforce the same without having to fulfill its obligation which has been paid by defendant No.6 - Plaintiff waited for the dues of ICICI to be paid which were eventually paid by Defendant No.6 - V property became unencumbered then it filed declaratory suit which clearly lacks cause of action.
Registration Act, 1908 - Section 17, 49 - Transfer of Property Act, 1882 - Section 59 - Injunction - Second charge - Unregistered documents - Suit for declaration/injunction - Plaintiff's claim of second charge over the properties is based on the loan agreement - Enforcement of agreement to sell was also sought - Claim of second charge on the immovable properties is based on the unregistered document - Document purporting to create a charge would require to be executed on a stamp paper of requisite value which has not been done - A document, which is not adequately stamped in accordance with law, cannot be looked into for any purpose.
Transfer of Property Act, 1882 - Section 52, 100 - Civil Procedure Code, 1908 - Order 39 Rule 1 & 2 - Order 2 Rule 2 - Order 1 Rule 10(2) - Order 7 Rule 11 - Order 6 Rule 17 - Amendment - Charge - Bonafide transferee - Notice - Defendant No. 6 purchased the G property - Mr. has purchased the V property - There was no interim order on that date - Plaintiff was aware about the said transaction - A charge is not enforceable against a bonafide transferee of the property for value without notice of the charge - No steps were taken by the plaintiff to recover the loan amount from defendants No.1 to 3 - Suit is merely filed for declaration - No proposed amendment in the plaint is for alternative prayer for recovery from the defendants No.1 to 3 is available.
Specific Relief Act, 1963 - Section 41 (e), (g) - Civil Procedure Code, 1908 - Order 39 Rule 1 & 2 - Order 2 Rule 2 - Order 1 Rule 10(2) - Order 7 Rule 11 - Order 6 Rule 17 - Permanent injunction - Amendment - specific performance - Scope of - Suit was filed initially for permanent injunction and for mandatory injunction regarding registration of the suit property - Reliefs was claimed under the Loan Agreement - Proposed amendments seek to change the nature and character over the suit by claiming declaration and cancellation of the sale deed, possession, decree for specific performance of the agreement and in alternative decree for recovery of an amount of Rs. 8,50,36,918/- - Held, reliefs would alter the nature and character of the suit - proposed amendment fundamentally changes the basic nature and character of the suit and cannot be allowed.
Manmohan Singh, J.
1. By this order, I propose to decide the following application filed by the parties to the suit. The details of the same are mentioned below :
Applications filed by plaintiff :
i. I.A. No.15011/2010 (Order XXXIX Rule 1 & 2 r/w S 151 CPC)
ii. I.A. No.15012/2010 (Order II Rule 2 r/w S 151 CPC)
iii. I.A. No.478/2011 (Order I Rule 10(2) CPC)
iv. I.A. No.274/2012 (Order VI Rule 17 r/w S 151 CPC)
Applications filed by D-1 to D-3 :
i. I.A. No.6654/2011 (Section VIII of Arbitration & Conciliation Act, 1996)
ii. I.A. No.6657/2011 (Order I, Rule 10 r/w S 151 CPC)
iii. I.A. No.20809/2011 (Order VII Rule 11 r/w S 151 CPC)
2. The plaintiff on 2nd November, 2010 filed a suit for declaration and permanent injunction against the six defendants namely Mr. Kapil Kumar, Mrs. Ritu Kumar, M/s. Brushman (India) Ltd., ICICI Bank Ltd., DLF Ltd. and M/s. Genesis Finance Company Ltd. The reliefs claimed by the plaintiff in the suit are :
(a) A decree of declaration is claimed in respect of the property in question claiming a second charge of the plaintiff and further that defendant Nos.4, 5 and 6 are bound to take note of the said second charge in their records.
(b) Mandatory injunction directing defendant Nos.4, 5 and 6 to record in their books of account, the name of plaintiff as the second charge holder.
(c) A decree of permanent injunction seeking restraint against the defendant Nos.1 and 2 from selling, transferring, conveying and/or creating third party interest in respect of the property in question.
3. Brief facts of the present case as per the plaint are that the plaintiff lent and advanced to defendant No. 3, i.e. M/s Brushman (India) Limited through its Managing Director, defendant No.1, a sum of Rs.5,00,00,000/-by way of a Loan Agreement dated 27th August, 2008. After expiry of the term of repayment, the defendant No.3 requested plaintiff to roll over the loan for a further period of three months in view of the fact that it was not in a position to repay the loan amount. Accordingly, a fresh loan agreement dated 27th November, 2008 was entered into. Again on expiry of three months, the defendant No. 3 was not in a position to re-pay, and so the loan was re-rolled for a further period of 124 days commencing from 27th February, 2009 with additional security, inter alia, by way of second charge over two suit properties situated at D-6/2, Vasant Vihar, New Delhi and another at Penthouse No. 1917-A (New No. 1923-A), DLF, Magnolias, Gurgaon. Defendants No.1 and 2 alongwith Mrs. Raj Rani executed letter of guarantees all dated 27th February, 2009 in favour of the plaintiff. The first charge of the suit properties was with ICICI Bank i.e. defendant No.4 in the present suit.
4. On the same day, the defendants No.1 and 2 also executed an agreement to sell dated 27th February, 2009 in respect of ground floor of the Vasant Vihar property in favour of the plaintiff and also executed a General Power of Attorney dated 27th February 2009 in favour of the plaintiff in respect of both the suit properties.
5. It is alleged in the plaint that defendants No. 1 and 2 took further loan from defendant No.6 against the suit properties, which they used to clear the dues of ICICI bank i.e. defendant No.4. Defendant No.6 is understood to have become the first charge holder of the aforesaid two suit properties. On expiry of the said 124 days, defendant No.3 was unable to repay debts. Various reminders were given to repay the loan amount together with accrued interest, however, no steps were taken to clear the dues of the plaintiff.
6. Plaintiff called up the depository participants of the company, namely Abhipra Capital to transfer shares of 10,00,000 of defendant No.1 and 8,75,000 of Mrs. Raj Rani in favour of the plaintiff. Plaintiff thereafter sold the shares pledged with it. 18,74,000 shares were sold upto 17th May 2010 for a sum of Rs.1,69,95,042/- and 1,000 equity shares were held by the plaintiff. Accordingly, as on 30th September, 2010, a s
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