Delhi High Court
Dhruva Goel vs M/S Chetanya Buildcon Pvt Ltd & Ors. on 17 January, 2025
Author: Prathiba M. Singh
Bench: Prathiba M. Singh
$~1 (OS)
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 17th January, 2025
+ CS(OS) 166/2024 and I.A.46652/2024
DHRUVA GOEL ..... Plaintiff
Through: Mr. Anand Shankar Jha, Mr. Sachin
Mintri & Mr. Shubhank Sharma,
Advs. (M: 7974737648)
versus
M/S CHETANYA BUILDCON PVT LTD & ORS. ..... Defendants
Through: Mr. Shreyans Singhvi, Ms. Tanuja
Singh and Ms. Akanksha Agarwal,
Advocates for D-1 to 5 (M:
9267958702).
Mr. Bishwajit Bhattacharyya, Sr.
Advocate with Mr. Chandrachur
Bhattacharyya, Adv. for D-6 & 7.
(M: 9810878919)
CORAM:
JUSTICE PRATHIBA M. SINGH
Prathiba M. Singh, J. (Oral)
1. This hearing has been done through hybrid mode.
I.A.46652/2024 (for modification and recall of decree)
Brief Background
2. The present application seeking modification and recall of the decree
dated 5th April, 2024, passed in the subject suit has been filed on behalf of
the Defendant Nos. 6 & 7 i.e., Ms. Seeta Nayyar and Mr. Sukumar D. Nayyar.
By way of this application, the Defendant Nos. 6 & 7 wish to withdraw from
the statements made before the Court by their counsels on 5th April, 2024, as
noted in paragraphs 7 & 10 of the order passed on the same date.
3. The subject suit was filed seeking specific performance in respect of
CS(OS) 166/2024 Page 1 of 14
Signature Not Verified
Digitally Signed
By:RAHUL
Signing Date:22.01.2025
20:44:42
the agreement to sell dated 1st January, 2016, executed in respect of the first
floor of the property bearing No. D-26 (now known as I-8), Maharani Bagh,
New Delhi (hereinafter ‘suit property’). The Plaintiff in the subject suit also
sought a sum of Rs. 72 Lakhs towards rental income.
4. The Defendant Nos. 6 & 7 in the subject suit were the original owners
of the suit property. They entered into a collaboration agreement dated 23rd
May, 2013, (hereinafter “Collaboration Agreement”) with Defendant No.1 –
M/s. Chetanya Buildcon Pvt. Ltd., which is engaged in the business of real
estate development, construction and sale of building apartment etc. Vide a
General Power of Attorney dated 24th December, 2014, (hereinafter “the
Power of Attorney”) the Defendant Nos. 6 & 7 had appointed Defendant No.1
to sell, lease out or to enter into agreement with respect to the suit property.
After the said collaboration agreement, the Plaintiff had agreed to buy the first
floor of the property vide agreement dated 1 st January 2016. Disputes arose
between the Plaintiff and Defendant no.1 which led to the filing of the present
suit seeking specific performance in respect of the said First Floor.
5. On 28th February, 2024, summons and notices were issued in the
subject suit, to all the Defendants, including the Defendant Nos. 6 & 7. The
matter was then listed on 5th April, 2024, on which date all the Defendants
were duly represented. Mr. Piyush Sanghi and Mr. Sahil Pahwa, ld. Counsels
had informed the Court that they were appearing on behalf of Defendant
Nos.6 & 7.
6. On 5th April, 2024, the ld. Counsel for the Plaintiff had submitted that
if Defendant Nos 1 to 5 executed the sale deed in the Plaintiff’s favour, then
the Plaintiff would be willing to forego the monetary claims raised in the
subject suit. At this stage the Defendant No. 2 – Mr. Vinod Saluja (Director
CS(OS) 166/2024 Page 2 of 14
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of Defendant No. 1 company), informed the Court that the power of attorney
was issued by the Defendant Nos. 6 & 7 in favour of an employee of
Defendant No. 1, who has since left the employment. For executing the sale
deed, a fresh PoA may be needed. In this regard, Mr. Piyush Sanghi, ld.
Counsel, informed the Court that he has obtained instructions from Defendant
No. 6 & 7, who are willing to provide a fresh power of attorney in favour of
Mr. Vinod Saluja and Mr. Ankush Saluja.
7. In terms of the aforesaid submissions, the Court passed a decree in the
subject suit on 5th April, 2024. The relevant portion of the order dated 5 th
April, 2024, is reproduced hereunder for ease of reference:
“[…]
7. Mr. Piyush Sanghi and Mr. Sahil Pahwa, ld.
Counsel appearing for the owners i.e., Defendant Nos.
6 &7, submit that the main relief is being sought only
against Defendant Nos. 1 to 5 and his clients are
merely proforma parties.
[…]
10. In view of the above position, the Defendant
Nos. 1 to 5 are directed to execute the sale
deed/conveyance deed in respect of the suit property in
favour of the Plaintiff. At this stage, it is submitted by
Mr. Vinod Saluja that the power of attorney issued by
Defendant Nos. 6 and 7 is in favour of his employee, who
has since left the Company. For the said purpose, Mr.
Piyush Sanghi, ld. Counsel has obtained instructions
from Defendant Nos. 6 & 7 who are agreeable to issue
a fresh power of attorney in favour of Mr. Vinod
Saluja and Mr. Ankush Saluja. Let the power of
attorney be issued within two weeks and the registration
of the sale deed be completed in eight weeks from now.
CS(OS) 166/2024 Page 3 of 14
Signature Not Verified
Digitally Signed
By:RAHUL
Signing Date:22.01.2025
20:44:42
[…]”
8. Thereafter, the Defendant No. 6 & 7 have filed the present application
for modification and recall of the decree dated 5th April, 2024, seeking to
withdraw from the statements made before the Court by their counsels on 5 th
April, 2024, in paragraphs 7 & 10 of the order passed on the same date, as
reproduced hereinabove.
9. On the last date of hearing i.e., 6th December, 2024, when this
application was listed for the first time, considering the nature of the
allegations made in the said application, the Court had directed as under:
“8. Mr. Bhattacharya, ld. Senior Counsel,
appearing for the Defendant Nos. 6 & 7, submits that
the lawyers appearing on behalf of Defendant No. 6 &
7 on 5th April, 2024, i.e., Mr. Piyush Sanghi and Mr.
Sahil Pahwa, did not have instructions on behalf of the
Defendant Nos. 6 & 7 to make such statements as
recorded in paragraphs 7 & 10 of the said order.
9. The Court notices that the Counsels, who had
appeared on behalf of Defendant Nos.6 & 7 on 5 th April,
2024, are not the Counsels in this application. There is
a fresh Counsel engaged for the same.
10. In view thereof, it is directed that Court notice
be issued to Mr. Piyush Sanghi (Mob.9899699242)
and Mr. Sahil Pahwa (Mob.9718790991) with a
direction to appear before the Court on the next date of
hearing.
11. Defendant Nos. 6 & 7 are also directed to
remain present in Court on the next date of hearing for
recording of their statements, if needed.
12. The consequences of non-compliance shall be
considered by the Court on the next date of hearing.
13. Registry to communicate the copy of this order
to both the counsels on their mobile numbers.
Remaining non-applicants shall make theirCS(OS) 166/2024 Page 4 of 14
Signature Not Verified
Digitally Signed
By:RAHUL
Signing Date:22.01.2025
20:44:42
submissions on the next date of hearing.
14. List on 17th January, 2025.”
10. Today, the Defendant No.6 & 7 – Ms. Seeta Nayyar and Mr. Sukumar
D. Nayyar are present in person along with their ld. Senior Counsel and ld.
Counsel on record. Ld. Counsel Mr. Piyush Sanghi, who made the relevant
statement on 05th April, 2024, is also present, along with Mr. Sahil Pahwa, ld.
Counsel. The Plaintiff and Defendant No. 1 are all represented before the
Court.
Submissions of the Parties:
11. Mr. Sukumar D. Nayyar, on being queried from the Court, submits that
the main apprehension is that he and his wife, after the execution of the
Collaboration Agreement, the Power of Attorney and all other related
documents including the possession letter, do not have any rights in the suit
property. Further, his Chartered Accountant has advised him that there may
be further liabilities if a fresh Power of Attorney is executed by them. He also
submits that he did not have a call with his counsel Mr. Piyush Sanghi on 5th
April 2024. As per him, Mr. Piyush Sanghi, ld. Counsel did not have
instructions to make the statement, which is recorded in the order dated 05th
April, 2024 i.e., that a fresh Power of Attorney would be executed by him and
his wife in favour of Mr. Vinod Saluja and Mr. Ankush Saluja.
12. He submits that the attempt of Plaintiff and Defendant No. 1 company
is to merely evade stamp duty by getting a fresh Power of Attorney executed.
It is also his submission that since his own income tax return for Financial
Year 2013-14 has already been finalised and in the said tax return it is being
reflected that the suit property has already been sold to Defendant No. 1, he
and his wife are unable to execute any fresh Power of Attorney in favour of
CS(OS) 166/2024 Page 5 of 14
Signature Not Verified
Digitally Signed
By:RAHUL
Signing Date:22.01.2025
20:44:42
Mr. Vinod Saluja and Mr. Ankush Saluja. Finally, it is submitted that even
the capital gain tax has been paid by him in respect of the sale of the suit
property.
13. The Court has then queried if the Defendant Nos. 6 & 7 have any
objection to the suit property being transferred to the Plaintiff by Defendant
No. 1. In response, it is submitted by the Defendant Nos. 6 & 7 that they do
not have any objection if the suit property is transferred to the Plaintiff so long
as they are not involved in any manner in the said transfer.
14. Mr. Piyush Sanghi, ld. Counsel, who is present, has been asked as to
whether he had instructions from Defendant No. 6 & 7 to make the statement
recorded in the order dated 5th April, 2024. In response to which he has placed
on record the WhatsApp chats between him and his client i.e., Defendant
No.7 – Mr. Nayyar, as also various emails exchanged between them. The
Court has perused the same. It is the submission of Mr. Piyush Sanghi, ld.
Counsel that he had joined virtually in the hearing of 05 th April, 2024. He had
initially sought a pass over, when the matter was heard, to take instructions
from the Defendant Nos. 6 & 7. Accordingly, he had spoken to the Defendant
No.7 and had obtained instructions to make the statement on 05th April, 2024.
He also relies upon the WhatsApp chats of 08th April, 2024 and 09th April,
2024 wherein the exchange of messages read as under:
“08/04/24, 10:50- Sukhu Nayyar: hi. what happened at
the hearing on 5th?
08/04/24, 22:16- Piyush Sanghi: <Media
omitted>
08/04/24, 22:16- Piyush Sanghi: You deleted this
message
08/04/24, 22:16- Piyush Sanghi: The matter got
disposed off on 05thCS(OS) 166/2024 Page 6 of 14
Signature Not Verified
Digitally Signed
By:RAHUL
Signing Date:22.01.2025
20:44:42
08/04/24, 22:17- Piyush Sanghi: I was down with
viral therefore couldn’t update you in time. Sorry
for late reply
08/04/24, 22:19- Piyush Sanghi: You have to
execute a fresh power of attorney in terms of
Para 10 of the judgement
09/04/24, 11:33- Sukhu Nayyar: Please contact
the other party and ask them for the draft of the
new PA that we have to give.”
15. Further, his submission is that his client – Mr. Nayyar, never had any
objection in the transfer of the suit property to Plaintiff and the Defendant
Nos.6 & 7 had, in fact, instructed him clearly when the statement was made
on 05th April, 2024.
16. Insofar as the Counsel for Defendant No. 1 is concerned, it is submitted
that in fact, the Special Power of Attorney was required only because the
earlier Power of Attorney holder, who could have executed the sale deed, had
left the employment of the Defendant No. 1 company and for nothing more.
He also submits that a notarized and signed Special Power of Attorney has
been given by Defendant No. 6 & 7, which is duly notarised but the only
problem is that it is not a registered agreement.
Analysis & Findings:
17. Submissions have been heard. After having heard the ld. Counsels for
all the parties and the Defendant Nos. 6 & 7, who are present in Court, the
facts which have emerged are as under:
(i) The Collaboration Agreement was executed by the Defendant
Nos. 6 & 7 way back on 16th October, 2012.
(ii) Thereafter, the Defendant Nos. 6 & 7 executed a registered
General Power of Attorney dated 24th December, 2014 in favour
of Shri Rakesh Sharma, who is an authorized signatory ofCS(OS) 166/2024 Page 7 of 14
Signature Not Verified
Digitally Signed
By:RAHUL
Signing Date:22.01.2025
20:44:42
Defendant No. 1 – M/s. Chetanya Buildcon Pvt. Ltd.
(iii) Agreement to Sell dated 01st January, 2016, which is a Tripartite
agreement, contains the following clause:
” 5. That within __ months from the date hereof, the
Confirming Party (on receiving the balance sale
consideration] alongwith the Vendors will execute
and get the sale deed of the said portion of the said
property registered, in favour of the Vendee or his
nominee/ s.”
18. After the execution of these documents as also the possession letter
dated 27th January, 2021 issued by the Defendant No. 1 in favour of the
Plaintiff, disputes arose in respect of the suit property. The Plaintiff had paid
a substantial amount of the sale consideration i.e., Rs.6.5 crores out of the
total of Rs.7.5 crores. A sum of Rs.1 crore was also paid subsequently in 2021.
Pursuant to the said disputes the subject suit came to be filed by the Plaintiff,
who is the purchaser of the suit property from Defendant No.1.
19. Summons were issued in the subject suit on 28th February, 2024 and
the following order was passed on the said date.
“[…]
8. Issue summons in the suit and notice in the
application through all modes. Considering the
grievance being only in respect of sale deed Mr.
Shreyans Singhvi, ld. Counsel, who was appearing for
Chetanya Buildcon in another matter before this Court,
has been asked to accept summons and notice. Mr.
Shreyans Singhvi, ld. Counsel accepts summons and
notice on behalf of Defendant Nos.1 to 5. Accordingly,
ld. Counsel to seek instructions in this matter and make
submissions on the next date of hearing. If instructions
are not given, Mr. Vinod Saluja shall remain present in
the Court on the next date of hearing.
CS(OS) 166/2024 Page 8 of 14
Signature Not Verified
Digitally Signed
By:RAHUL
Signing Date:22.01.2025
20:44:42
9. Issue summons and notice to Defendant Nos.6 & 7
through all modes upon the steps being taken by the
Plaintiff. Status quo shall be maintained in respect of the
title of the first floor.
10. List on 5th April, 2024.
11. Order Dasti.”
20. As can be seen from the above, status quo was directed on the said date
and the returnable date was on 05th April, 2024. On 05th April, 2024 all the
parties were duly represented before the Court including the ld. Counsels for
Defendant Nos. 6 & 7. After hearing all the parties, the following order was
passed on 5th April, 2024:
“2. This is a suit for specific performance in
respect of the agreement to sell dated 1st January, 2016
executed in respect of the first floor of the property
bearing No.D-26 (now known as I-8), Maharani Bagh,
New Delhi (hereinafter referred as the ‘suit property’).
The Plaintiff in the present suit also seeks a sum of Rs.
72 Lakh towards the rental income for the time period
27th January, 2021 to 27th January, 2024.
3. The Defendant Nos. 6 & 7 are the owners of
the suit property who entered into a collaboration
agreement dated 23rd May, 2013, with Defendant No.1
company which is engaged in the business of real estate
development, construction and sale of building
apartment etc. The Defendant Nos. 2 to 5 are the
directors of the Defendant No.1 company. Vide a
General Power Attorney dated 24th December, 2014 the
Defendant Nos.6 & 7 appointed Defendant No.1 to sell,
lease out or to enter into agreement with respect to the
suit property.
4. The Plaintiff, Defendant Nos. 6 & 7 and the
Defendant No.1 (as confirming party) entered into a
sale agreement with respect to the suit property for aCS(OS) 166/2024 Page 9 of 14
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Digitally Signed
By:RAHUL
Signing Date:22.01.2025
20:44:42
total sale consideration of Rs. 7.5 crores. The case of the
Plaintiff is that out of the total sale consideration of
Rs.7.5 crores, Rs.6.5 crores has already been paid and
thereafter, Rs.1 crore is stated to have been paid in 2021
and the possession was handed over of the entire first
floor. Grievance of the Plaintiff in this case is that the
sale deed is not being executed.
5. On the last date, i.e., on 28th February, 2024,
summons and notices were issued in the suit and in the
applications. The Court had then directed as under:-
“8. Issue summons in the suit and notice in the
application through all modes. Considering the
grievance being only in respect of sale deed Mr.
Shreyans Singhvi, ld. Counsel, who was appearing for
Chetanya Buildcon in another matter before this Court,
has been asked to accept summons and notice. Mr.
Shreyans Singhvi, ld. Counsel accepts summons and
notice on behalf of Defendant Nos.1 to 5. Accordingly,
ld. Counsel to seek instructions in this matter and make
submissions on the next date of hearing. If instructions
are not given, Mr. Vinod Saluja shall remain present in
the Court on the next date of hearing.
9. Issue summons and notice to Defendant Nos.6 & 7
through all modes upon the steps being taken by the
Plaintiff. Status quo shall be maintained in respect of the
title of the first floor.”
6. Today, Defendant Nos. 2 & 3 i.e., Mr. Vinod
Saluja and Mr. Ankush Saluja are duly represented by
Mr. Nandrajog, Sr. Advocate and Mr. Shreyansh
Singhvi. Ld. Counsel accepts notice and summons on
behalf of Defendant Nos. 1 to 5. Defendant Nos. 6 and 7
are the owners of the property, who are residents of
Mumbai.
7. Mr. Piyush Sanghi and Mr. Sahil Pahwa, ld.
Counsel appearing for the owners i.e., Defendant Nos.
6 &7, submit that the main relief is being sought only
against Defendant Nos. 1 to 5 and his clients are merely
proforma parties.
CS(OS) 166/2024 Page 10 of 14
Signature Not Verified
Digitally Signed
By:RAHUL
Signing Date:22.01.2025
20:44:42
8. Mr. Vinod Saluja, is also present in person. He
submits that he is willing to execute the sale deed in
respect of the first floor of the suit property as defined
above in favour of the Plaintiff. The consideration
received from the Plaintiff is also duly acknowledged by
the Defendant Nos. 1 to 5.
9. Ld. Counsel for the Plaintiff has sought
instructions and submits that if the Defendant Nos. 1 to
5 execute the sale deed in favour of the Plaintiff, the
Plaintiff is willing to give up the monetary and other
reliefs including interest etc., which has been sought in
this suit.
10. In view of the above position, the Defendant
Nos. 1 to 5 are directed to execute the sale
deed/conveyance deed in respect of the suit property in
favour of the Plaintiff. At this stage, it is submitted by
Mr. Vinod Saluja that the power of attorney issued by
Defendant Nos. 6 and 7 is in favour of his employee, who
has since left the Company. For the said purpose, Mr.
Piyush Sanghi, ld. Counsel has obtained instructions
from Defendant Nos. 6 & 7 who are agreeable to issue
a fresh power of attorney in favour of Mr. Vinod Saluja
and Mr. Ankush Saluja. Let the power of attorney be
issued within two weeks and the registration of the sale
deed be completed in eight weeks from now.
11. It is also submitted on behalf of the Plaintiff
that the TDS amount on the consideration which was
paid was not deducted when the payment was made in
respect of January, 2021. Since the receipt of
consideration is acknowledged, Mr. Vinod Saluja
undertakes to give a certificate to the effect that the tax
liability in respect of the consideration received has
been discharged. Let the said certificate be issued by
Mr. Saluja to the Plaintiff within eight weeks. No other
relief is pressed.
12. In view of the fact that the suit has been
decreed only on the second hearing, full Court fee which
has been deposited is directed to be refunded to the
CS(OS) 166/2024 Page 11 of 14
Signature Not Verified
Digitally Signed
By:RAHUL
Signing Date:22.01.2025
20:44:42
Plaintiff.
13. The suit is decreed in the above terms.”
21. The issue in respect of executing a fresh Power of Attorney had arisen
only because the earlier Power of Attorney holder had left the employment of
Defendant No.1 and the sale deed for the first floor was yet to be registered.
The Agreement to Sell executed by the Defendant No. 1 and Defendant Nos.6
& 7 in favour of the Plaintiff contains a clause that the sale deed would be
executed by both sets of parties. It was in this background that a fresh Power
of Attorney was directed to be executed vide order dated 5th April, 2024.
22. A perusal of the emails and the WhatsApp messages between Mr.
Piyush Sanghi, ld. Counsel and his client Mr. Nayyar – Defendant No. 7, as
also the signed and notarized Power of Attorney, which has been given by the
Defendant Nos. 6 & 7, shows that in principle, the Defendant Nos. 6 & 7 have
no objection in the Defendant No.1 transferring the suit property in favour of
the Plaintiff. In fact, the Defendant No.7, in the communications exchanged
with his counsel has asked for the draft Power of Attorney. Defendant Nos. 6
and 7 have in fact signed and sent a notarised copy of the Power of Attorney
to Defendant No.1. The objection appears to have arisen when the Plaintiff
asked for a registered Power of Attorney. At that stage, the Chartered
Accountant has been consulted and an allegation has been made that the
earlier counsel did not have instructions to make a statement. Defendant No.7
relies on the call data from his mobile in support of the allegation that the
Counsel did not speak to him. Ld. Counsel Mr. Sanghi relies upon other
communication to show how he was continuously in touch with the client and
how the client had expressed no objection to execute the Power of Attorney,
which shows that the statement made by him was with instructions.
CS(OS) 166/2024 Page 12 of 14
Signature Not Verified
Digitally Signed
By:RAHUL
Signing Date:22.01.2025
20:44:42
23. Under such circumstances, this Court is of the opinion that instead of
going into the allegations and counter allegations, between the client and the
counsel, in the unique facts and circumstances of this case, a direction can be
issued for execution of the sale deed in favour of the Plaintiff in respect of the
suit property. Bearing in mind the background and the relevant documents as
discussed above, the sale deed in favour of the Plaintiff is directed to be
executed through an Officer of this Court subject to the stamp duty and other
compliances being undertaken by the parties.
24. Let the sale deed in favour of the Plaintiff be executed by Defendant
No. 1 through an Officer of this Court, within two months, on the strength of
all the documents which are already on record including the Power of
Attorney, which was executed on 24th December, 2014, by the Defendant
Nos. 6 & 7 in favour of an employee of the Defendant No.1. Since the said
Power of Attorney holder is no longer available, an Officer of this Court shall
sign the sale deed on behalf of the Defendant Nos. 6 & 7.
25. It is, however, unfortunate that allegations have been made against the
lawyer, who has been careful enough to preserve all the WhatsApp chats and
the emails, which clearly show to the Court that the Defendant Nos.6 & 7 had
no objection in executing the Power of Attorney except for the tax
implications, which appears to have been the only issue raised much later. It
is accordingly made clear that the execution of the sale deed in favour of the
Plaintiff, shall not fasten any liability on the Defendant nos 6 and 7 who are
senior citizens and do not wish to have any complications as, admittedly, they
had transferred the property several years ago to Defendant no.1.
26. No further orders are called for in this application. The application is,
accordingly, disposed of. There is no occasion to recall or resile the decree
CS(OS) 166/2024 Page 13 of 14
Signature Not Verified
Digitally Signed
By:RAHUL
Signing Date:22.01.2025
20:44:42
dated 5th April, 2024 passed in the subject suit.
27. The emails and the WhatsApp chats exchanges handed over by Mr.
Piyush Sanghi, ld. Counsel, are taken on record.
28. List before the Worthy Registrar General for the purpose of nominating
an Officer of this Court for execution of the sale deed in above terms on 27th
January, 2025.
29. Mr. Piyush Sanghi and Mr. Sahil Pahwa, ld. Counsels, are exempted
from appearing in this matter.
PRATHIBA M. SINGH
JUDGE
JANUARY 17, 2025
gs/ms
CS(OS) 166/2024 Page 14 of 14
Signature Not Verified
Digitally Signed
By:RAHUL
Signing Date:22.01.2025
20:44:42
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