JUDGMENT Vikram Aggarwal, J. CM-72-FACOM-2Q22 in FAO-COM-27-2022 For the reasons mentioned in the application, the same is allowed subject to just exceptions. Additional document Annexure 39 is taken on record. CM-81-FACOM-2Q22 in FAO-COM-30-2022 For the reasons mentioned in the application, the same is allowed subject to just exceptions. Additional documents as Annexure A-l to A6, A-8 to A-ll and A-26 are taken on record. CM-80-FACQM-2022 in FAO-COM-30-2022 Prayer in this application is for condonation of delay of 03 days in filing the appeal. For the reasons mentioned in the application, the delay of 03 days in filing the appeal is condoned. Application stands disposed of. Main Case(s) This judgment shall dispose of the aforementioned two appeals. Challenge in both appeals is to the order dated 11.10.2022 passed by the Commercial Court, Gurugram vide which the application filed under Order 7, Rule 10 CPC by the appellant in the first appeal was disposed of though not strictly in terms of the prayer made by the appellants, as claimed. 2. The facts, necessary for the disposal of these present appeals and as emanating from the record, are that the dispute revolves around 5.629 acres of land bearing Plots No. 1202, 1203 and 1204 situated in DLF City, Phase-1, Sector-28, Gurugram (hereinafter referred to as 'the disputed land'). The appellant in the first appeal i.e. Nayati Healthcare and Research NCR Pvt. Ltd. and respondent No.2 i.e. Nira Radia (hereinafter collectively referred to as 'the owners') were owners of the disputed land. A memorandum of understanding was executed on 08.04.2022 (Annexure A-3 with the first appeal) (reference to Annexures shall be from the first appeal i.e. FAO-COM-27-2022) vide which the owners agreed to sell the disputed land to one Ujjagar Constructions Pvt. Ltd. (respondent No.1 in the first appeal) (hereinafter referred to as 'the purchaser'). The total sale consideration was fixed at Rs.468 crores which was to be paid to different parties as agreed under Clause 2 of the MoU. A dispute arose between the parties leading to the filing of a civil suit No.81 of 2022 filed by the purchaser against the owners for possession of the disputed land by way of specific performance of the MoU. A dispute arose between the parties leading to the filing of a civil suit No.81 of 2022 filed by the purchaser against the owners for possession of the disputed land by way of specific performance of the MoU. During the pendency of the suit, the disputed land was alienated by the owners to M/s. Apollo Hospitals North Ltd. (respondent No.3 in the first appeal) (hereinafter referred to as 'the subsequent purchaser') vide registered sale deed dated 08.08.2022 for a total sale consideration of Rs.427.05 crores. Details with regard to previous liabilities of the owners to banks etc. and the orders passed during the course of litigation regarding those matters are not being referred to, being unnecessary for the purposes of the decision of the present appeals, though the appellants in both cases have filed extremely voluminous petitions annexing all documents, whether necessary or not for the purposes of decision of the present appeals, for reasons best known to them. The facts are being taken from the FAO-COM-27-2022 titled as Nayati Healthcare and Research NCR Pvt Ltd. v. Ujjagar Construction Pvt Ltd. and Ors. 3. The order which is in dispute in the present case is the order dated 11.10.2022 which finds mention in the opening paragraphs of the present appeals. An application under Order 7, Rule 10 CPC (Annexure A-29) was moved by the owners stating that since the matter was with regard to an infrastructure project as defined under Section 20-A and 20-B of the Specific Relief Act, 1963 (hereinafter referred to as 'the 1963 Act'), the Commercial Court did not have the jurisdiction to hear and try it and the Special Court which was the Court of Civil Judge (Senior Division), Gurugram would be entitled to hear and try the same. It was, therefore, prayed that the plaint be returned to the plaintiff for presentation to the Court in which the suit should have been instituted i.e. the Court of Civil Judge (Senior Division), District Court, Gurugram. 3.1. This application was opposed by the purchaser by filing a reply stating that the disputed land was not a hospital and an infrastructure project. 3.1. This application was opposed by the purchaser by filing a reply stating that the disputed land was not a hospital and an infrastructure project. A plea was also raised before the Commercial Court, Gurugram (as mentioned in the impugned order) by the purchaser that the Commercial Court, Gurugram had the jurisdiction to deal with the matter as the dispute was a commercial dispute as defined under Section 2(1) (c) (vii) of the Commercial Courts Act, 2015. 3.2. The Commercial Court, Gurugram disposed of the application after hearing both sides holding that the suit filed by the purchaser did not involve a contract relating to an infrastructure project specified in the schedule to the 1963 Act and, therefore, Sections 20-A and 20-B of the Act were not applicable, as a result of which, the jurisdiction of the Commercial Court was not ousted. In addition to this, it was also held that the suit did not involve a commercial dispute and, therefore, the Commercial Court did not have any jurisdiction to try the same. The plaint was, therefore, ordered to be returned to the plaintiff (purchaser) to be presented before the Court of Civil Judge (Senior Division), Gurugram. 4. Aggrieved by this order, the owners and the subsequent purchaser have preferred separate appeals. 5. We have heard Sh. Akshay Bhan, learned senior counsel representing the owners, Sh. Puneet Bali, learned senior counsel representing the purchaser and Sh. Sumeet Mahajan and Sh. Chetan Mittal, learned senior counsel representing the subsequent purchaser and with their assistance, have perused the voluminous paper books. 6. Sh. Akshay Bhan, learned senior counsel strenuously urged that the impugned order is not sustainable. It was contended that the disputed land is a hospital property and only medical facilities could be set up on the same. Reference was made to Sections 20-A, 20-B and 20-C of the 1963 Act as also to Clause 5 (c) of the Schedule to the 1963 Act and it was contended that as per the notification dated 30.08.2018, only the Special Court which was the Court of Civil Judge (Senior Division), Gurugram would have the jurisdiction to try the suit. 6.1. Reference was made to Sections 20-A, 20-B and 20-C of the 1963 Act as also to Clause 5 (c) of the Schedule to the 1963 Act and it was contended that as per the notification dated 30.08.2018, only the Special Court which was the Court of Civil Judge (Senior Division), Gurugram would have the jurisdiction to try the suit. 6.1. It was also contended that the trial Court gravely erred in so far as, on the one hand, it ordered the return of plaint and on the other hand specified that the plaint be presented to the Court of Civil Judge (Senior Division), Gurugram. Learned counsel submitted that the trial Court was not entitled to specify as to in which Court the plaint should be presented and it should only have been returned to the plaintiff for presentation to the court having jurisdiction. Learned senior counsel referred to almost all annexures annexed with the appeals and took the Court through the developments which took place from time to time including the orders passed by the NCLAT, the trial Court and even this Court from time to time. In support of his contentions, learned counsel placed reliance upon the judgment of Hon'ble Supreme Court in the case of Kanwar Singh Sami v. High Court of Delhi 2011 (4) RCR (Civil) 402 and Civil Appeal No.7843 of 2019 (arising out of SLP (Civil) No.9391 of 2019) tided as Ambalal Sarabhai Enterprises Ltd. v. K.S. Infraspace LLP and Others, decided on 04.10.2019. He also placed reliance upon the judgment of Delhi High Court in the case bearing CS (OS) No.423 of 2019 tided as Hari Ram Nagar and Others v. Delhi Development Authority and Others, decided on 22.08.2019 and CS (OS) No.500/2019 titled as Ravi Gupta @ Ravi Prakash v. Govt of NCT of Delhi & Anr., decided on 15.01.2020. Learned counsel also placed reliance upon the judgment of this Court in the case bearing CR No.2215 of 2021 titled as Chief Engineer, Haryana Vidyut Prasaran Nigam Limited and others v. Dayal Sarup and another, decided on 13.12.2021. 7. Sh. Sumeet Mahajan and Sh. Chetan Mittal, learned senior counsel representing the subsequent purchaser submitted that the Court of Civil Judge (Senior Division), while deciding the injunction application relied upon the observations of the Commercial Court which was not permissible and, therefore, it was aggrieved of the same. 7. Sh. Sumeet Mahajan and Sh. Chetan Mittal, learned senior counsel representing the subsequent purchaser submitted that the Court of Civil Judge (Senior Division), while deciding the injunction application relied upon the observations of the Commercial Court which was not permissible and, therefore, it was aggrieved of the same. Remaining arguments were the same as those addressed by Sh. Akshay Bhan. They also placed reliance upon some judgments of Hon'ble Supreme Court in the case of Sri Athmanathaswami Devasthanam v. Gopalaswami Ayyangar AIR 1965 SC 338 ; Oil and Natural Gas Corporation Ltd. v. Modem Construction and Company (2014) 1SCC 648; R.S.D.V. Finance Co. Pvt Ltd. v. Shree Vallabh Glass Works Ltd. (1993) 2 SCC 130 ; Exl Careers and Another v. Frankftnn Aviation Services Pvt Ltd. (2020) 12 SCC 667 ; Auto Engineering Works v. Bansal Trading Company and Others (2001) 10 SCC 630 and Harshad Chimanlal Modi (II) v. DLF Universal Ltd. and Another (2006) 1 SCC 364 . Learned senior counsel also placed reliance upon the judgments of Delhi High Court in the case of CS (OS) No. 423/2019 titled as Hari Ram Nagar and Others v. Delhi Development Authority and Others, decided on 22.08.2019 and CS (OS) No.500/2019 titled as Ravi Gupta @ Ravi Prakash v. Govt of NCT of Delhi & Anr., decided on 15.01.2020. 7.1. Sh. Chetan Mittal, learned senior counsel placed reliance upon the judgment of Hon'ble Supreme Court in the case of Mohammed Ansari v. Union of India and others (2017) 3 SCC 740 . He also placed reliance upon the judgments of Gujarat High Court, Patna High Court and Karnataka High Court in the case of Gujarat Ambuja Cements Ltd. (Now) Ambuja Cements Ltd. v. Sardar Sarovar Narmada Nigam Ltd. 2012 (73) RCR (Civil) 145; A.F.O.O No. 127 of 1950 titled as Ramdhari Lai and Others v. Uday Narayan and Others, decided on 30.01.1957 and MFA No.916 of 2017 (IPR) tilled as Manipal University and other v. Manipal Holdings Private Ltd and other, decided on 28.05.2018. 8. On the other hand, Sh. Puneet Bali, learned senior counsel representing the purchaser, with equal vehemence, opposed the arguments addressed by learned for the appellants and submitted that the appellants have not approached the Court with clean hands. 8. On the other hand, Sh. Puneet Bali, learned senior counsel representing the purchaser, with equal vehemence, opposed the arguments addressed by learned for the appellants and submitted that the appellants have not approached the Court with clean hands. Reference was made to the previous orders passed by this Court in the same dispute and it was argued that the appellants were not entitled to raise the issues again. Arguments were also addressed on the merits of the case. It was submitted that the disputed land was not for the purposes of construction of a hospital and, therefore, the jurisdiction was not that of the special Court. He supported the impugned order passed by the trial Court and submitted that the present appeals have been filed after the appellants could not get any relief before the trial Court. 9. We have given our thoughtful consideration to the submissions made by learned counsel for the parties and find that there is no merit in the appeals and the impugned order does not suffer from any illegality. In fact, this Court would not hesitate to add that the conduct of the appellants is far from satisfactory. The reasons for this observation and for upholding the impugned order are enumerated in the succeeding paragraphs. 10. When the civil suit was filed by the purchaser, no stay was granted. An application for preponement was also filed by the purchaser on the ground that the stay against alienation granted by the Arbitrator in an arbitration reference was to expire on 05.08.2022 and after that the suit property will be alienated. However, the request for preponement was declined vide order dated 02.08.2022 (Annexure A-18). Thereafter, an application for early hearing of the application for ad-interim injunction was moved by the purchaser on 06.08.2022 and notice of the same was issued to the owners for 08.08.2022 (Annexure A-23). In the meantime, written statement dated 07.08.2022 was filed by the owners which is on record as Annexure A-20. Reply to the application for ad-interim injunction was also submitted (Annexure A-21). An application under Order 7, Rule 11 CPC was also filed by the owners on the ground that no cause of action had been disclosed against them. 10.1. The order dated 08.08.2022 (Annexure A-23) passed by the Commercial Court, Gurugram shows the conduct of the owners. Reply to the application for ad-interim injunction was also submitted (Annexure A-21). An application under Order 7, Rule 11 CPC was also filed by the owners on the ground that no cause of action had been disclosed against them. 10.1. The order dated 08.08.2022 (Annexure A-23) passed by the Commercial Court, Gurugram shows the conduct of the owners. On this date, arguments on the application for early hearing of the application for ad-interim injunction were addressed. It was noticed by the Commercial Court as under:- "As stay against alienation ceased to operate, on behalf of plaintiff, present application came to be filed on 06.08.2022. Notice of the application was ordered to be issued to respondents/defendants for today. They were duly served and their respective counsel appeared in court during prelunch session. Matter could not be heard at that time for one reason or the other and matter was eventually taken up for hearing at 01.45 PM. At that time, before arguments on the application could be commenced, learned counsel for defendants brought to the notice of the court that sale deed qua the suit property had already been executed and got registered in the office of Sub Registrar concerned today at about 01.30 PM. Thus, it was argued that application seeking stay against alienation had become infructuous. What is pertinent to mention here is that after having been duly served with the notice of the application, respondents/defendants as well as their counsel very well knew that the present suit is fixed for hearing today on account of the application for early hearing of stay application filed on behalf of plaintiff They had duly appeared in the morning hours and this court was expecting the arguments on the application to be advanced by counsel for the parties. However, respondents/defendants were upto something else. They in fact in the office of Sub Registrar concerned were actively pursuing for registration of sale deed qua suit property in favour of third party M/s Apollo Hospitals North Limited. Only after registration of sale deed, respondents/defendants turned up in court at 01.45 PM to address arguments on the application in hand knowing fully well that with the registration of the sale deed, nothing was going to happen on the application as the same had been rendered infructuous. Only after registration of sale deed, respondents/defendants turned up in court at 01.45 PM to address arguments on the application in hand knowing fully well that with the registration of the sale deed, nothing was going to happen on the application as the same had been rendered infructuous. Since this court was seized of the matter, respondents/defendants should have shown some patience and propriety demanded that even though there was no stay against alienation, they ought to have appeared before the court and addressed arguments on the application. However, they acted hurriedly and got something done which was being apprehended by the plaintiff. Apprehension of plaintiff came true and suit property stood alienated by way of registration of sale deed in favour of third party during pendency of present Civil Suit. Be that as it may, after alienation of the suit property, law will take its own course. Application for early hearing stands disposed of. At this stage, an application under Order 1, Rule 10 read with section 151 CPC for impleadment of M/s Apollo Hospitals North Limited has been moved on behalf of plaintiff to which "no objection " has been endorsed by learned counsel for defendants. Application is allowed as prayed for. M/s Apollo Hospitals North Limited is hereby impleaded as defendant No.3 to the present suit. Amended title filed. Amended plaint be filed on 16.08.2022. Till next date of hearing, parties to the suit shall maintain status quo in all respects qua the suit property. " 10.2. The above order shows that the owners kept on delaying the matter before the Commercial Court, Gurugram and in the meantime, alienated the disputed land to the subsequent purchaser. This shows the manner in which the owners hoodwinked the process of law and alienated the disputed land. 11. Ultimately the impugned order was passed. Before the impugned order was passed, an appeal bearing No.FAO-COM-20-2022 was filed by the appellant in the first appeal challenging the jurisdiction of the Commercial Court to proceed with the matter. This appeal was withdrawn with liberty to move an appropriate application before the Commercial Court pointed out the statutory bar as also the jurisdictional aspect of the Court below with regard to the entertainment of the petition. The order dated 25.08.2022 is on record as Annexure A-28. This appeal was withdrawn with liberty to move an appropriate application before the Commercial Court pointed out the statutory bar as also the jurisdictional aspect of the Court below with regard to the entertainment of the petition. The order dated 25.08.2022 is on record as Annexure A-28. A direction was also given by a coordinate bench of this Court that in case such an application was moved, the Commercial Court would make an endeavour to decide the same within a period of six weeks. Interestingly, the appellants have not attached the heading of this appeal but have simply referred about it in the grounds of appeal. It has been mentioned in para xxxviii on page 33 of the appeal that this appeal had been filed against the order dated 08.08.2022 and 16.08.2022 passed by the Commercial Court. It was claimed in that appeal that despite lacking jurisdiction under Section 20-B of the 1963 Act and on account of various other grounds mentioned in the appeal (not referred to in the present appeal), the Commercial Court did not have jurisdiction to try the suit. In pursuance to this order dated 15.08.2022, application under Order 7, Rule 10 CPC was moved by the owners (Annexure A-29) in which it was prayed as under:- "14. Therefore, in view of the above it is respectfully submitted that the Ld. Court of Additional District Judge-Cum-Presiding Judge, Exclusive Commercial Court at Gurugram Exercising Jurisdiction Under the Commercial Courts Act, 2015 has no jurisdiction to entertain the suit in question in view of the statutory bar as per section 20A and 208 of the Specific Relief Act, 1963; and the Plaint must be returned to the Plaintiff for presentation to the Court in which the present suit should have been instituted i.e., the Civil Judge (Senior Division), District Court, Gurugram. That the Hon'ble High Court of Punjab and Haryana in the matter titled as Nayati Healthcare and research NCR Pvt. Ltd v. Ujjagar Constructions and Ors., numbered as FAO COM. 27 of 2022 was pleased to observe that in case appropriate application is moved before the Ld. Commercial Court pointing out statutory bar as also the jurisdictional aspect of the Court then the Ld. Commercial Court should make an endeavour to decide the same at the earliest and in any case within a period of six weeks of such moving of application. Commercial Court pointing out statutory bar as also the jurisdictional aspect of the Court then the Ld. Commercial Court should make an endeavour to decide the same at the earliest and in any case within a period of six weeks of such moving of application. Copy of Order dated 25 August 2022 passed by the Hon'ble High Court of Punjab and Haryana in FAO COM. 20 of 2022 is annexed and marked herewith as Annexure-3. " 12. The matter did not rest here. The impugned order was challenged by the purchaser by way of FAO-COM-25-2022 which was decided on 27.10.2022 (Annexure A-40). In this, the decision of the Commercial Court, Gurugram that the dispute was not a commercial dispute was upheld. While deciding the appeal, a Coordinate Bench held as under:- "Since we do not find any error in the order passed by the Commercial Court, we do not propose to interfere with the said order. However, the application presented along with the plaint by the appellant under Order 39, Rule 1 &2 CPC is directed to be decided by the learned Civil Judge (SD), Gurugram within one week of presentation of the plaint afresh pursuant to the impugned order passed by the Commercial Court, after hearing all the parties and their respective counsels. Counsel for all the parties assure this Court that they will be present before the Court of learned Civil Judge (SD), Gurugram on 28.10.2022 at 10:00 AM without fail. " 12.1. A perusal of the order shows that the impugned order was upheld and in pursuance to the same, the parties duly appeared before the Civil Judge (Senior Division), Gurugram and pursued the injunction application. However, at a subsequent stage, the present appeals were filed and during the hearing of the appeals, learned counsel for the appellants did not point out about the aforesaid order and it was only pointed out by learned counsel representing the purchaser. It is not understood as to what prevented the owners and the subsequent purchaser who were duly represented by their counsel during the course of the preliminary hearing and had accepted notice on their behalf to raise the other pleas also which are being raised now in the present appeals or to contend before the Bench that they would file separate appeals challenging the impugned order. Although, technically the appellants would not be barred from filing these appeals but, in the considered opinion of this Court, they should have pointed out this fact to the Bench at that point of time. In any case, these appeals came up for hearing for the first time after the decision in the injunction application by the Court of Civil Judge (Senior Division), Gurugram which was decided on 11.11.2022. 13. In so far as the issue of whether the Commercial Court had the jurisdiction or not is concerned, the same stands settled by way of judgment dated 27.10.2022 (Annexure A-40) and we need not go into the issue again. In so far as the issue whether the suit should be tried by a Special Court is concerned, we do not find any infirmity in the findings recorded by the Commercial Court, Gurugram. In the MoU dated 08.04.2022 (Annexure A-3), there is no reference of the project being a hospital property or the land being alienated for the purposes of construction of a hospital. It only refers to land measuring 5.629 acres. The Commercial Court rightly held that there is no reference in the MoU dated 08.04.2022 regarding construction of any infrastructure project like hospital etc. and, therefore, it could not be said to be a contract relating to an infrastructure project and, therefore, the bar of Section 20-B of the 1963 Act would not be attracted. Even in the written statement filed to the unamended plaint before the disputed land was alienated, no such stand was taken and only in the amended written statement it was pleaded that the subsequent purchaser had purchased the disputed land for constructing a hospital. Even in the registered sale deed dated 08.08.2022 executed in favour of the subsequent purchaser, there is no reference to any infrastructure project i.e. hospital as has been rightly noticed by the Commercial Court. The suit, therefore, originally filed did not have any effect of stalling an infrastructure project. The learned trial Court, therefore, rightly held that the judgments relied upon by learned counsel for the parties including judgments in Hari Ram Nagar's case and Ravi Gupta alias Ravi Parkash's case (supra) would not be applicable. 14. The suit, therefore, originally filed did not have any effect of stalling an infrastructure project. The learned trial Court, therefore, rightly held that the judgments relied upon by learned counsel for the parties including judgments in Hari Ram Nagar's case and Ravi Gupta alias Ravi Parkash's case (supra) would not be applicable. 14. The arguments that the Commercial Court should not have referred the matter to the Court of Civil Judge (Senior Division), Gurugram is also devoid of merit because firstly it was the own prayer of the owners in their application filed under Order 7, Rule 10 CPC that the parties be asked to appear before the Court of Civil Judge (Senior Division) Gurugram which was the Special Court to try the matter. Now, since the Commercial Court had rejected this application, the question which would arise was as to before which Court the parties would go. The Court of Civil Judge (Senior Division) being the senior most Court dealing with the civil matters which would have the option of either retaining the suit with itself or marking it to some other Court. We do not, therefore, find any illegality in the Commercial Court asking the parties to appear before the Court of Civil Judge (Senior Division), Gurugram. It is not understood as to what actually the appellants wanted. They did not want the Commercial Court, Gurugram to hear the civil suit. They wanted the Civil Judge (Senior Division), Gurugram to hear the matter being a Special Court but were again aggrieved by the suit having been referred to the Court of Civil Judge (Senior Division), Gurugram. It is, therefore, clear that what the appellants wanted was only delay and by delaying they were successful in alienating the disputed land to the subsequent purchaser during the pendency of the civil suit. We cannot refrain ourselves from deprecating this conduct of the owners and the subsequent purchasers. 15. In view of the aforementioned facts and circumstances, we do not find any merit in the present appeals and the same are, therefore, dismissed. In view of the dismissal of the main appeals, no orders are required to be passed in the pending miscellaneous applications, if any, and the same stand disposed of as having been rendered infructuous.