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2023 Supreme(Del) 4592
IN THE HIGH COURT OF DELHI AT NEW DELHI
Navin Chawla, J.
M/s Ashutosh Infra Pvt. Ltd. – Appellant
Versus
M/s Pebble Downtown India (P.)Ltd. & Ors. – Respondents
O.M.P.(I) (COMM.) 152 of 2023
Decided On : 22-05-2023
Mr.Nidhesh Gupta, Senior Advocate with Mr.Madhav Gupta, Mr.G.Balaji, Ms.Pallavi Singh, Ms.Japneet Kaur, Ms.Vriti Gujral, Advocates, for the Petitioner.
Mr.Akhil Sibal, Senior Advocate with Mr.Vikas Mishra, Mr.Varun Ahuja, Mr.Achint Singh, Mr.Krishna Dev Yadav, Advocates, for the Respondent-1.
Mr.Dhanesh Relan, Mr.Arindam Dey, Mr.Jatin Bhatia, Advocates, for the Respondent-2.
Ms.Nandani Sahni, Advocate, for the Respondent-3.
Mr.Rajshekhar Rao, Senior Advocate with Ms.Nandani Sahani, Advocate, for the Respondent-4.
The main legal point established in the judgment is the interpretation and application of Clause 26 of the Collaboration Agreement, which restricted the respondent from leasing the petitioner's share in the commercial property after six months from the Occupancy Certificate.
Headnote:
Collaboration Agreement - Commercial Property Dispute - Clause 26, Consent Award - [LEASE, COMMERCIAL PROPERTY] - [Arbitration and Conciliation Act, 1996 - Section 34, Specific Relief Act, 1963 - Section 38] - The court discussed the Collaboration Agreement and Consent Award, emphasizing Clause 26 which restricted the respondent from leasing the petitioner's share in the commercial property after six months from the Occupancy Certificate. The court analyzed the circumstances surrounding the purported lease deeds and the petitioner's divestment of rights, ultimately restraining the respondents from claiming special equity in the subject shops and directing the respondent no.1 not to deal with the petitioner's share in the mall further.
Fact of the Case:
Dispute arose between the parties regarding the lease of commercial property as per the Collaboration Agreement and Consent Award. The petitioner claimed that the respondent no.1 ante-dated lease deeds to avoid the effect of Clause 26, while the respondents argued that the petitioner had divested its rights in the subject shops.
Finding of the Court:
The court found that the circumstances put a doubt on the execution of the lease deeds and restrained the respondents from claiming special equity in the subject shops. It also directed the respondent no.1 not to deal with the petitioner's share in the mall further.
Issues: The issues involved the purported lease of commercial shops, the petitioner's divestment of rights, and the entitlement to further share in the commercial property.
Ratio Decidendi: The court's decision was based on the interpretation of Clause 26 of the Collaboration Agreement, the circumstances surrounding the lease deeds, and the petitioner's divestment of rights.
Final Decision: The court restrained the respondents from claiming special equity in the subject shops, directed the respondent no.1 not to deal with the petitioner's share in the mall further, and reserved the decision on the entitlement to further share in the commercial property.
JUDGMENT
Navin Chawla, J. (Oral)
I.A. 9539/2023
1. Allowed, subject to all just exceptions.
O.M.P.(I) (COMM.) 152/2023
2. Issue notice.
3. Notice is accepted by the counsels representing the respective parties.
4. Let reply be filed within a period of four weeks. Rejoinder thereto, if any, be filed within a period of two weeks thereafter.
5. It is the case of the petitioner that the petitioner had entered into a Collaboration Agreement dated 25.06.2015 with the respondent no.1, which, inter alia provides as under:
"23. That 36.25% (thirty six and Quarter percent) of the saleable built up area of the Commercial Colony together with proportionate, undivided, indivisible or impartible ownership rights in the land underneath the said Commercial Colony as also in common areas and common facilities shall belong to and be owned by the Owner (hereinafter referred to as `Owner's allocation') and the remaining 63.75% (sixty three and three quarter percent) saleable built up area of the said Commercial Colony together with proportionate undivided, indivisible or impartible ownership rights in the land underneath the said Commercial Colony as also in the common areas and common facilities (hereinafter referred to as the `Developer's allocation') shall fall to the share of the Developer in consideration of the obligations undertaken by it under these presents and shall belong to and be owned by the Developer
a. Developer Share 63.75%
b. Owner Share 36.25%
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26. That it is understood and agreed between the Parties that the Commercial Colony shall be run as a Mall/Shopping Complex and/or for other commercial activities of reputed brands of the latest and/or popular products/services and for achieving that aim, the built up commercial space shall be either sold or leased out only to selective reputed and popular brand-owning companies/firms/individuals. The Developer shall have the exclusive rights to enter into lease-agreements, term-sheets, MOU or other leasing related agreement/deed etc. for the entire development with such reputed brand-owners/companies/organizations at such terms and conditions as may be deemed appropriate by the Developer and in conformity to the preferential location of the built-up area both for itself and on behalf of the Owner's share as well. It is clarified that the Owner shall have the exclusive rights to enter into lease-agreements, term-sheets, MOU or other leasing related agreement/deed etc of the office spaces constructed above 5th floor of the Project Allocation only with respect to Owner's Allocation. The Owner shall have all the Ownership rights in respect of its allocated share of the built up area except the right to lease the premises and/or to decide/choose the nature of commercial activity/business to be carried out in the said area within the said development, which right shall be exclusively held with the Developer and the Owner shall be able to sell his allocation in the built up area subject to the above right of the Developer. However, in case the units comprised in the Owners Allocation of the Commercial Colony are not leased by the Developer within 6 (Six) months of the Occupancy Certificate, the Owner shall be at liberty to lease the same on its own and the Developer shall be left with no right to deal lease the said area. The Owner shall have all the Ownership rights In respect of its allocated share of the built up area. The amount received by Developer in consideration for lease of Owner's Allocation shall be received by the Developer in the name of and on behalf of the Owner and the Developer shall to deposit the same in the bank account of the owner within 7 days from the receipt thereof."
(Emphasis supplied)
6. The learned senior counsel for the petitioner submits that, therefore, it was an express covenant of the Collaboration Agreement that in case the petitioner's allocation is not leased out by the respondent no.1 within six months of the grant of the Occupancy Certificate, the pet
