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2019 DIGILAW 1151 (HP)

Diamond Traxeim Pvt. Ltd. v. Sunil Kumar Sood

2019-08-13

SURESHWAR THAKUR

body2019
JUDGMENT : SURESHWAR THAKUR, J. 1. Through COMS No. 8 of 2017, and, through COMS No. 23 of 2018, respectively constituted by the plaintiff(s), the latters' hence impugn the validity of execution of registered deed, of, conveyance, executed, inter-se, one Suneel Kumar Sood and M/s Nirvana Woods and Hotels Pvt. Ltd, vis-a-vis, the suit property. However, before proceeding to determine, the, prima-facie validity, vis-a-vis, the contention reared against M/s Nirvana Woods and Hotels Pvt. Ltd, by the plaintiff in COMS No. 8 of 2017, for, its therethrough impugning, the, apposite sale deeds, on, anvil of, despite, the sale consideration, being purveyed by it, vis-a-vis, one Suneel Kumar Sood, arrayed therein as codefendant No.1, the latter proceeding, to, execute a sale deed, vis-a-vis, the suit property, with, co-defendant No.2 M/s Nirvana Woods and Hotels Pvt. Ltd. However, given, the existence on record, of, Annexure A-1, a compromise deed, executed inter-se one Suneel Sood, and, the plaintiff i.e M/s Diamond Traexim Pvt. Ltd., in sequel whereto, an order, vide annexure A-2, was, rendered by the Hon'ble Delhi High Court, hence accepting, the, afore compromise deed, and, with the suit land being also embodied in Annexure A-1, and, also obviously in Annexure P-2, is of utmost, and, conspicuous significance, (i) thereupon, at this stage the plaintiff in COMS No. 8 of 2017, prima-facie does not hold any valid espousal, for, impugning, the, sale deeds, unless, of course evidence surges forth during the course of the apposite suit being put to trial, before the competent Court, vis-a-vis, the compromise borne in Annexure A-1, and, in pursuance whereof Annexure P-2 was rendered, rather being a sequel of fraud or misrepresentation, given, the contents borne therein, being intentionally infracted by co-defendant No.1, one Suneel Sood. 2. 2. Be that as it may, an acerbic contest, has emerged inter-se the plaintiff one Suneel Kumar Sood, and, M/s Nirvana Woods and Hotels Pvt. Ltd, both of whom whereof, are, respectively pleaded, as, plaintiff, and, co-defendant No.1 in COMS No. 23 of 2018, (i) and, wherethrough the plaintiff therein, the, afore Suneel Sood, has, impugned the validity of execution of registered deeds, of conveyance inter-se him and codefendant No.1 M/s Nirvana Woods and Hotels Pvt. Ltd, (ii) on, anvil of recitals in the impugned registered deeds of conveyance, vis-a-vis, payment of sale consideration, from, M/s Nirvana Woods and Hotels Pvt. Ltd, to, one Suneel Kumar Sood, occurring, in contemporaneity, vis-a-vis, the execution of registered deed of conveyance, being, false recitals. For resting the vigor of the rival contention(s) reared by the learned counsel, for the contesting litigants, who, respectively contended, that, the apposite recitals, as are, carried in the registered deed, of, conveyance, being fraudulent or otherwise, (a) hence this Court had pronounced an order, on, 4.5.2019, order whereof stands extracted hereinafter, and, in compliance, with the afore directions rendered upon HDFC Bank, and, also upon the Income Tax Officer, concerned, both placed on record their respective affidavits, with, echoings borne therein, vis-a-vis, in contemporaneity qua execution, of, the apposite impugned sale deeds, the apposite sale consideration being reflected, to be, entered, into the accounts of one Suneel Kumar Sood arrayed as plaintiff in COMS No. 23 of 2018. Even though the afore echoings, borne in the compliance affidavits furnished before this Court, by the Manager of the HDFC Bank, and, by the Income Tax Officer of the ward concerned, do, prima-facie rest the afore res-controversia, engaging the contesting litigants, (i) nonetheless Mr. Ankush Dass Sood, Sr. Advocate, assisted by Mr. Rakesh Kumar, Advocate, has contended qua the apt disclosures borne therein rather being falsified, (ii) in as much, as, in contemporaneity, vis-a-vis, the execution, of, sale deeds amongst the afore litigants, hence, the apposite sale consideration, being retransmitted into the accounts, of, co-defendant M/s Nirvana Woods, and, Hotels Pvt. Ltd, and, (iii) in succoring the afore espousal, he relies, in consonance therewith pleadings borne in COMS No. 23 of 2018. However, the afore espousal is benumbed, and, would not underwhelm, the, echoings, borne in the afore affidavits, furnished before this Court, as, in the written-statement furnished thereto, by the learned counsel for contesting defendants No.1 and 2, (i) an, averment is borne in paragraph 31 thereof, qua the afore remittance, in, contemporaneity, vis-a-vis, the execution of the registered deed of conveyance inter-se the plaintiff, and, contesting defendants rather being a sequel to, or, appertaining to a commercial transaction, other, than, the one embodied in the impugned sale deed. Since the plaintiff, has not, contested the afore contention by preferring any replication thereto, thereupon, the afore contention/espousal, carries tenacity, and, obviously nails the afore contention, reared by the counsel for the plaintiff. In aftermath, prima-facie, at this stage, the impugnings made by the learned counsel for the plaintiff, vis-a-vis, the apposite sale deeds, and, hinged, upon, no sale consideration in contemporaneity, vis-a-vis, the execution of registered sale deed, passing from vendee to the vendor hence is rudderless, and, obviously is rejected. "The core controversy, which has arisen interse the parties at contest, before this Court, more particularly, interse one Sunil Sood, defendant No. 1 in COMS No. 8 of 2017, and, M/s Nirvana Woods and Hotels Pvt. Ltd, is embodied (a) in the sale consideration recited in the apposite registered deed, of conveyance, executed interse Sunil Sood, and, M/s Nirvana Woods and Hotels Pvt. Ltd, passing or not passing, in contemporaneity, vis-`-vis, execution thereof, and, qua the afore. (b) The importance of the afore, upon an affirmative decision being made, either, vis-`-vis, the afore Sunil Sood, or vis-`-vis, M/s Nirvana Woods and Hotels Pvt. Ltd., ( c) is, qua this Court, proceeding to either make absolute the order, rendered on 18.12.2017, or vacate it. Mr. Suneet Goel, Advocate, makes a submission, before this Court, qua the recited sale consideration, rather in contemporaneity, vis-à-vis, the execution of, a, registered deed(s) of conveyance, hence passing from the vendee, to the vendor, and, his submission is rested, upon, an affidavit, existing at page No. 1085 of the paper book, of, COMS No. 23 of 2018, and, wherein the details, of, the amounts transmitted through, cheques mentioned therein, hence purportedly entered into the accounts, of, Mr. Sunil Sood. However, Mr. Ankush Dass Sood, learned senior Advocate, and Mr. Sunil Sood. However, Mr. Ankush Dass Sood, learned senior Advocate, and Mr. Neeraj Gupta, Advocate, appearing for the afore Sunil Sood, both contest the validity of the recitals, borne in the afore affidavit, (i) and for repelling all the recitals, borne therein, and, also qua the afore factum, they, place reliance, upon Annexure A-C, occurring at page No. 243 of the paper book, of COMS No. 23 of 2018, (ii) wherein contrary reflections qua the cheques, mentioned in the affidavit, relied upon by Mr. Suneet Goel, Advocate, and theirs' purportedly rather working towards passing, of, sale consideration, interse the afore, rather stand embodied or rather contrarily therefrom hence stand reflected to flow, into, the accounts of entities,/individual other than M/s Nirvana Woods and Hotels Pvt. Ltd. However, before meeting credence either to the submission, of, Mr. Suneet Goel, Advocate, or, of Mr. Ankush Dass Sood, Senior Advocate, and, of Mr. Neeraj Gupta, Advocate, (i) imperatively qua passing or non-passing of the apposite sale consideration, in, contemporaneity, vis-à-vis, execution of the requisite sale deeds, (ii) in sequel(s) whereof, the contract of sale would be construable to void or not void, (iii) and when further there, onwards rather, a, conclusion may emanate qua the order pronounced, on 18.12.2017, being amenable, vis-a-vis, it being made absolute or, it, being vacated, (iv) thereupon, it is deemed imperative, that, the banker concerned, i.e. HDFC Bank Ltd.SCO 52, Sector-11, Panchkula, be ensured by the Registry of this Court, that it, vis-à-vis, the afore factum, and, vis-à-vis, the veracity, of, Annexure-C, existing at page No. 243, of, the paper book, of, COMS 23 of 2018, is hence dispatched rather all photo copies thereofs, along with, a requisite request thereto, to, on affidavit, it making a certificate, within two weeks before this Court, and, with a disclosure therein, qua all the bills and cheques, mentioned in the affidavit, relied upon by Mr. Suneet Goel, Advocate, appertaining or not, to, transfer of money, disclosed therein, to Mr. Sunil Sood, or to the persons/entities, individuals, other than Mr. Sunil Sood. The Registry is also directed to make a request upon the Income Tax Officer concerned, that he also makes, within the afore period, a disclosure on affidavit, whether income tax returns filed before him, vis-à-vis, PAN No. ACJPS6744E, being a valid, and, authentic document or not. Sunil Sood, or to the persons/entities, individuals, other than Mr. Sunil Sood. The Registry is also directed to make a request upon the Income Tax Officer concerned, that he also makes, within the afore period, a disclosure on affidavit, whether income tax returns filed before him, vis-à-vis, PAN No. ACJPS6744E, being a valid, and, authentic document or not. For facilitating the afore emanation(s), from, the afore Income Tax Officer, the Registry shall transmit, the photo copy, of Annexure D-4, to the afore Income Tax Officer. List on 28.5.2019." 3. Be that as it may, the rejection of the afore espousal of the plaintiff in COMS No. 23 of 2018, would not relieve M/s Nirvana Woods and Hotels Pvt. Ltd, of, the dire obligation, of, its ensuring its raising construction, upon, the suit land, upon, its/theirs holding, a, valid sanction, from the authorities concerned, vis-a-vis, the proposed construction. In sequel the contesting defendants are permitted to raise construction, only upon, its holding a validly meted sanction, by the authorities concerned, and, also if construction is commenced by M/s Nirvana Woods and Hotels Pvt. Ltd, yet with the authorized person hence, on, behalf of M/s Nirvana Woods and Hotels Pvt. Ltd, filing an affidavit with a clear disclosure therein, that, it would not claim any equities, in, the construction raised, upon, the suit land, (a) even if a verdict adverse to it is pronounced, upon, COMS No. 8 of 2017, and, upon COMS No. 23 of 2018, (b) thereupon, the afore espousal made in the affidavit furnished, on behalf of M/s Nirvana Woods and Hotels Pvt. Ltd, shall obviously carry the requisite binding effects, upon, it. Since accordingly prima-facie case is loaded in favour of the applicants/defendants concerned, balance of is convenience also is loaded in favour of the applicants/defendants concerned, and, also since, the, continuance of the order, strived to be modified rather would encumber hardship and injury, upon, the applicants/defendants concerned, hence not recompensable in monitory terms thereupon, the relevant order(s), is/are, with the afore observations hence modified. In view of the afore, all the applications stand disposed of. Any observations made in this order shall not affect the merits, of the lis embodied, in, both the COMS. No costs.