TaxTMI 
TaxTMI 
2023 (7) TMI 1562
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....bsp;139 Rect. No. 25 Killa No. 21(8-0), 22(8-0), 23(8-0), 24/1 ( 5-16) and Rect. No. 26 Killa No. 2/111 (2-3 ), 9/2/2(2-8) and Rect. No. 31 Killa No. 3(8-0), 4(8-0), 5/1 (2-4) ad-measuring 6 Acre 4 Kanal 11 Marla situated in the revenue estate of Village Nangalia, Tehsil Palhawas, District Rewari, Haryana and (ii) Khewat No. 140 Min Khatauni No. 149 Min Rect. No. 25 Killa No. 16(8-0), 17(8-0), 18( 7-18), 19(7-16), 20(8-0), 24/2(2-4), 25(8-0) and Rect. No. 25 Killa No. 26/1(0-6) and Rect. No. 26 Killa No. 2/112(1-19), 9/2/1(2- 4) admeasuring 54 Kanal 7 Marla total Field 10, total admeasuring 54 Kanal 7 Marla or 6 Acre 6 Kanal and 7 Marla. 3. It is the case of the respondent no.1/claimant that as per the Joint Venture Agreement, the respondent nos.2 to 8 were to transfer the aforesaid property to an LLP to be incorporated for development of the project. 4. It has been averred in the statement of claim, filed before the Arbitral Tribunal, that the respondent no.1/claimant incorporated a new LLP entity under the name and style of "SY Logistics Park LLP, for the purpose of transferring the concerned property for the....
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....EMEDY SOUGHT 5.1 In view of the aforementioned facts and circumstances, it is most respectfully prayed that this Hon'ble Court may be pleased to: (A) Issue ad interim ex-parteorders/direction for preserving and protection of the subject matter of arbitration i.e. Disputed Property, by ordering status quo on title and possession and complete cessation of any act acts by which the character of property undergoes a change including stoppage of ongoing/projected construction so that no further third-party rights/equities are created on the Disputed Property. (B) Direct and Restrain the Respondents from making any construction on the Disputed Property and not to in any manner engage in any kind of commercial activity on the subject/Disputed Property or advertise /communicate/display bill-boards with third parties as regards the marketability of the same, as these may lead to creation of further third party rights, interest and equities, which shall have a direct bearing on the rights of the Applicant/Claimant; and (C) Pass any other order which this Hon'ble Court may deem fit and proper in the facts and circumstances of the case." 13. The relief sought by the respo....
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....Respondent No. 8, it is made clear that in case the Respondent No. 8 chooses to carry on factory operations or other commercial activity on the 3 acres (approx.) of land constructed by it on the Disputed Property, it will not be open to the Respondent No 8 to claim any special equities by reason thereof. 87. Resultantly, application under Section 17 of the Act filed by the Claimant is allowed in the above terms. 88. It is clarified that all observations made in this order are prima facie and shall not operate to the prejudice of any of the parties at any subsequent stage of the proceedings. All rights, objections and pleas of the parties are left open to be decided after the trial of the case." SUBMISSIONS ON BEHALF OF APPELLANT 15. Learned counsel for the appellant has strenuously contended that the impugned order results in grave hardship to the appellant and is required to be vacated forthwith. It has been emphasized by learned counsel for the appellant that the appellant is a bonafide purchaser with consideration and has invested a huge amount in carrying out development/construction on the property in question. It is further contended that the appellant has....
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....cifically be enforced. In this regard, reliance has been placed on the following authorities : i. Gopal L Raheja and Another v. Vijay B. Raheja and Others;[2007 SCC OnLineBom 399] ii. 'The Treatise on the Specific Performance of Contract' [Rt Hon Sir Edward Fry, 6th Edition, First Indian Reprint, 1997]; iii. 'American Jurisprudence' [2nd Edition, Vol 46, 1994]; iv. Faqir Chand Gulati v. Uppal Agencies Pvt. Ltd. &Ors; [(2008) 10 SCC 345] v. North-Eastern Handloom and Handicraft v. Sports Station India Pvt. Ltd. [MANU/DE/8181/2007] and vi. Indian Rly. Catering and Tourism Corporation Ltd. And Ors. V. Cox and Kings Ltd. [MANU/DE/0033/2012] 21. Alternatively, it has been contended that the Joint Venture Agreement is in the nature of an agreement to enter into a further agreement and even on that count there can be no specific performance. In this regard reliance has been placed on the following judgments: i. Dresser Rand SA v. BindalAgroChern Ltd; [(2006) 1 SCC 751] ii. Speech Software Technologies (India) Pvt. Ltd. V. Neos Interactive Ltd.; [(2009) 1 SCC 475] and iii. Devinder Kumar Sharma v. Mohinder Singh. [2012 SCC OnLine Del 4442] 22. Finally, it is co....
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.... Window Infrastructure Pvt. Ltd. Vs. Central Warehousing Corporation. [MANU/DE/3207/2021] 28. It has been emphasized that there is no impediment to specific performance in the present case and the necessary evidence in this regard is being adduced before the learned Sole Arbitrator. In the circumstances, it is contended that there is no occasion or justification whatsoever to interfere with the impugned order dated 09.06.2022. Submissions on behalf of Respondent nos.2 to 8 29. Notably, the respondent nos.2 to 8 have not filed any appeal against the order dated 09.06.2022. However, in the written submissions filed on behalf of respondent nos.2 to 8, the said respondents have supported the plea raised by the appellant and have contended as under: i. the Joint Venture Agreement is incapable of specific performance; ii. the balance of convenience was against grant of interim relief; and iii. the impugned order does not properly appreciate the legal and factual position, while granting the interim order in favour of the respondent no.1. ANALYSIS AND CONCLUSION 30. A perusal of the impugned order dated 09.06.2022, reveals that the learned Sole Arbitrator has considered the matter....
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....isible for about 6 kilometres therefrom. The Claimant has asserted that till date it does not know the extent of the construction carried out at the site and it was only when in November, 2021, the Respondent no. 8 put its signage board, that the Claimant got apprehensive that behind its back some third-party rights were being created. Immediately, the Claimant moved its Section 9 Application on 17.12.2021, which got listed on 21.12.2021. 75. The aforesaid assertions of the Claimant prima facie appear to be correct and, in any event, it is difficult without evidence to the contrary to impute knowledge to the Claimant of the transfer of the land in question and of the construction activity thereon." 31. There appears no infirmity in the aforesaid conclusion by the learned Sole Arbitrator. 32. The learned Sole Arbitrator has rightly taken note of the fact that the sale deeds were executed in favour of the appellant by the respondent nos.2 to 8 after the notice invoking arbitration was issued by the respondent no.1 on 10.02.2020, which is the date on which arbitral proceedings have commenced in terms of Section 21 of the Act 33. The learned Sole Arbitrator has rightly taken not....
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....re tone and tenor of the Agreement, prima facie appears to suggest that it was neither determinable nor could be terminated and, in any event, the same has not been terminated till date. 78. The argument of the Respondents that interim relief cannot be granted in view of the fact that JVA is hit by Section 14(b) and (d) of the Specific Relief Act read with Section 41 (h) of the said Act also appears to me to be based on a mis-construction of the Recitals and Clauses of the Agreement. The terms of the Agreement appear to me to be clear and precise, which do not require monitoring from this Tribunal. Much stress has been laid by Mr. Sethi on his argument that the terms of JVA are not specific and incapable of being enforced but upon close reading of the JVA, it is more than apparent that there is no non-certainty or ambiguity in the terms of the Agreement. The fulcrum of the Agreement is the transfer of land from the first party to the second party for the purpose of development of the land by raising construction of a warehouse thereon. Formation of LLP by itself does not appear to be the bargain, but only a device for transfer of the land from the Respondents No. 1 to 7 to ....
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....by the defendant as the agent or trustee of the plaintiff." 69. After amendment with effect from 1-10-2018, Section 10 of the SRA provides: "10. Specific performance in respect of contracts.-The specific performance of a contract shall be enforced by the court subject to the provisions contained in sub-section (2) of Section 11, Section 14 and Section 16." 70. After the amendment of Section 10 of the SRA, the words "specific performance of any contract may, in the discretion of the court, be enforced" have been substituted with the words "specific performance of a contract shall be enforced subject to ...". The court is, now obliged to enforce the specific performance of a contract, subject to the provisions of sub-section (2) of Section 11, Section 14 and Section 16 of the SRA. Relief of specific performance of a contract is no longer discretionary, after the amendment. 71. An agreement to sell immovable property, generally creates a right in personam in favour of the vendee. The vendee acquires a legitimate right to enforce specific performance of the agreement." 36. It is also pertinent to note that in the statement of claim filed on behalf of respondent no.1/claim....
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....nLine SC 759 (Para-6, 9); Ram Swarup Singh v. Maltabir Mahton, 1959 SCC OnLine Pat 48: AIR 1960 Pat 235 (Para-4, 14). No law to the contrary has been cited by the Respondents. 80. Also, as regards the massive investments made by the Respondent No. , 8 in the setting up of its factory for production of aluminium foils, it is the admitted case of Respondent No. 8 and is clearly set out in the Statement of Defence that a major part of the construction has been done by the Respondent No. 8 on the lands purchased from other land owners and "only a small portion of construction has been done on the lands in dispute .... " (Para 9 of the Statement of Defence). On a specific query put by this Tribunal to Mr. Sethi in this regard, Mr. Sethi submitted on instructions, that out of the total Disputed Land measuring 13 acres, 2 canals and 18 marlas purchased by the Respondent No. 8 from Respondents No. 1 to 7, construction had been made only on land measuring approximately 3 acres, which is covered by the JV A and the remaining construction of the factory is on the land purchased from other land owners by the Respondent No. 8. To be noted that the JVA covers lan....
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....ement being not capable of specific performance and/or as to whether the appellant's rights, as an alleged bonafide purchaser can be interdicted or not, are all issues which are yet to be determined by the learned Sole Arbitrator. 42. At this stage, in these proceedings, it would not be appropriate to render any findings/conclusion with regard to the aforesaid issues since the learned Sole Arbitrator is seized of the same. Needless to say, the learned Sole Arbitrator shall take into account the contentions of the appellant at the stage of passing of the final award. However, in the meantime, it would be wholly inappropriate if the appellant is allowed to disrupt the status quo in respect of the property in question. 43. The law is also well settled that this court while exercising jurisdiction under Section 37 of the Act would be loathe to interfere with an interim measure of protection granted by an Arbitral Tribunal, particularly when the order passed under Section 17 is well reasoned and based on a thorough and minute examination of the matter, as in the present case. 44. In this regard reference may be made to the observations made by this Court in Dinesh Gupta & Ors vs. Ana....