IN THE HIGH COURT OF DELHI AT XX

(APPELLATE CIVIL JURISDICTION)

FAO(OS) (COMM.) NO. _______ OF 2024.

IN THE MATTER OF: a

XX    : APPELLANT

VERSUS

XX

PVT. LTD. & OTHERS                             : RESPONDENTS

INDEX

DELHI                                                       Appellant

THROUGH

DATED

XX

COUNSELS FOR THE APPELLANT

xx

Mobile No. xx

Email: xxx

[Note: It is stated that the Synopsis & List of Dates in the present matter run into ___ pages, which in the facts & circumstances of the present case, cannot be curtailed/shortened any further. Accordingly, it is most humbly requested to kindly list the present matter, as it is, before the Hon’ble High Court.]

IN THE HIGH COURT OF DELHI AT XX

(APPELLATE CIVIL JURISDICTION)

FAO(OS) (COMM.) NO. _______ OF 2024.

IN THE MATTER OF: a

XX    : APPELLANT

VERSUS

XX

                    : RESPONDENTS

NOTICE OF MOTION

To,

The Respondents

Respected Sir,

          Please find enclosed copy of the above mentioned appeal which is being filed before this Hon’ble Court on ___.11.2024 and which is likely to get listed on any appropriate date thereafter, as per the directions of this Hon’ble Court. Please take notice accordingly.

DELHI                                                       Appellant

THROUGH

DATED

xx

COUNSELS FOR THE APPELLANT

xxx

Mobile No. xx

Email: xxxx

IN THE HIGH COURT OF DELHI AT XX

(APPELLATE CIVIL JURISDICTION)

FAO(OS) (COMM.) NO. _______ OF 2024.

IN THE MATTER OF: a

XX                                   : APPELLANT

VERSUS

XX

                                        : RESPONDENTS

URGENT APPLICATION

To:

The Deputy Registrar

Delhi High Court of Delhi.

Xx.

Respected Sir,

          Kindly treat the accompanying appeal and applications as an urgent one in accordance with the Rules of this Hon’ble High Court. The grounds of urgency are as enumerated in the accompanying appeal.

DELHI                                                       Appellant

THROUGH

DATED

xx

COUNSELS FOR THE APPELLANT

xxx

Mobile No. +xx

Email: xxx

IN THE HIGH COURT OF DELHI AT XX

(APPELLATE CIVIL JURISDICTION)

FAO(OS) (COMM.) NO. _______ OF 2024.

IN THE MATTER OF: a

XX    : APPELLANT

VERSUS

XX

                             : RESPONDENTS

CERTIFICATE

That the Appellant has filed the complete paper book / records alongwith the present Memorandum of Appeal.

DELHI                                                       Appellant

THROUGH

DATED

xx

COUNSELS FOR THE APPELLANTS

xxxx

Mobile No. xxxx

Email: xxx

IN THE HIGH COURT OF DELHI AT XX

(APPELLATE CIVIL JURISDICTION)

FAO(OS) (COMM.) NO. _______ OF 2024.

IN THE MATTER OF: a

XX    : APPELLANT

VERSUS

XX

PVT. LTD. & OTHERS                             : RESPONDENTS

MEMO OF PARTIES

M/S. XX

Having its registered office at:

xxxx

Email: xx

Regional Office at: xxx

Email xxx             : APPELLANT

VERSUS

M/S. XX PVT. LTD.,

Having its registered office at:

xxxx

Also at:

xxxx

Email id: xx

2. XX

Having its Registered office at: xx

Also at:

xx

Email id: xxx

3. XX,

S/o xx

R/o xxx

Also at:

xx

And Also at xxx

Email id: xxx

4. xxx

S/o xx

R/o xxx

Also at:

xxx

And Also at

xx

Email id xx

5. XX

S/o Xx

R/o Xx,

Xx

Also at:

xx

xx

And Also at

xx

Email id xx

6. XX

At xx

Email: xx

7. XX

C/o Partnership concern

Having xxx as partners

Address: xx,

xxx.

Email: xx

8. xx

xx

Email: xxxx

9. xx

xxx

Email: xx

10. xx

xxx

Email: xxx

11. xxx

S/o xxx

xxx

Email: xxxx

12. xx

W/o xx

R/o xxx

Email id: xxx

13. xxx

W/o xx

xxx

Email: xxx

14. xx

W/o xx

R/o xx

Email: xxx

15. xx

W/o xx

xx

Email id: xxx

16. xxx

xx

Email: xx

17. xxx

xx,

xx

Email xx               : RESPONDENTS

-------------------------------------------------------------------------------

DELHI                                                       Appellant

THROUGH

DATED

xx

COUNSELS FOR THE APPELLANTS

xxx,

xxx

Mobile xx

Email: xx

XX

DATED:

IN THE HIGH COURT OF DELHI AT XX

(APPELLATE CIVIL JURISDICTION)

FAO(OS) (COMM.) NO. _______ OF 2024.

IN THE MATTER OF: a

XX    : APPELLANT

VERSUS

XX

                             : RESPONDENTS

MEMORANDUM OF APPEAL SECTION 13(1) OF THE COMMERCIAL COURTS, COMMERCIAL DIVISION AND COMMERCIAL APPELLATE DIVISION OF THE HIGH COURTS ACT, 2015 READ WITH SECTION 37(2) OF THE ARBITRATION & CONCILIATION ACT, 1996 READ WITH SECTION 10 OF THE DELHI HIGH COURTS ACT, 1966 AGAINST IMPUGNED ORDER DATED …11.2024 PASSED BY LD. ARBITRAL TRIBUNAL IN ARBITRATION CASE NO. ………..2024.

MOST RESPECTFULLY SHOWETH:-

1.                 That the present Appeal is being filed by the Appellant under Section 37(2) of the Arbitration & Conciliation Act, 1996 as amended by the Arbitration and Conciliation (Amendment) Act 2015 (the ‘Act’), against the Order dated ….11.2024 passed by the Ld. Arbitral Tribunal in Arbitration Case No. …………2024 (the ‘Impugned Order’). Vide the Impugned Order the Ld. Arbitrator has erroneously and in grave error of law dismissed the application of the Appellant under Section 17 of the Act. Copy of the Impugned Order dated …..11.2024 is filed herewith and marked as ANNEXURE P-1.

2.                 The Appellant is constrained to initiate the arbitration proceedings before the Ld. Arbitrator inter alia for directions towards security, protection and preservation of the subject matter of the dispute and to further restrain the Respondents from selling, transferring, gifting, in any way alienating and/ or creating any third-party rights with respect to the properties identified hereinafter and pursuant to the specific liberty granted to the instant Appellant by way of judgment dated 21.07.2022 of the Hon'ble Supreme Court of India in Miscellaneous Application No. 50 of 2019 in Civil Appeal No. xx of 2015 titled "Rameshwar v. State of Haryana" ("Judgment").

3.                 Brief facts of the case are as follows:

4.                 That the Appellant is a public limited company incorporated under the Companies Act, 1956 having its registered office at xxx and its Regional office at xx. The Appellant Company is a fully integrated real estate development company involved in all activities associated with the development of residential and commercial real estate. The Appellant has acquired a goodwill over the years, which is being disturbed by the acts of Respondents No. 1 to 5 causing severe reputational loss to the Appellant.

5.                 That the Respondent No. 1 (earlier known as xxx.) and Respondent No. 2 are companies incorporated under the Companies Act, 1956 and are engaged in the business of real estate. Respondents No. 3 and one Late Xx are the original owners of the land parcel admeasuring 5.175 acres, being and forming a part of the Subject Property. Respondents No. 4 and 5, namely, Xx and xx are the legal heirs of now deceased xx.

6.                 That the Respondents No. 6 to 17 are third parties to whom flats have been allocated by Respondent No. 1 in terms of clauses of the Development Agreement, as detailed in the Additional Affidavit dated 04.11.2020 filed by Respondent No. 1 in the Hon'ble Supreme Court in M.A NO. xx/2019 IN CIVIL APPEAL NO. xx/2015. With respect to these transferred flats / units, it is submitted that Respondents No. 1 and 2 have transferred the certain units in terms of Recital K of the Development Agreement to Respondent No. 6 to 9 and that some other units have been transferred in the name of Respondents No. 10 to 17, who are either the Directors of the Respondent No. 1 and/ or 2 or the family member of such Directors. It is further submitted the details of Respondents No. 16 and 1 7 have been enumerated in the Additional Affidavit filed by Respondent No. 1 in the Hon'ble Supreme Court in M.A NO. xx/2019 IN CIVIL APPEAL NO. xx/2015. It is respectfully submitted that the said units are held by and/ or on behalf of Respondents No. 1 by Respondents No. 6-17.

7.                 The Respondents No. 1 to 5 (with Xx on behalf of Respondents No. 4 and 5) executed the Development Agreement in favor of the Appellant to grant and assign the exclusive and irrevocable Developmental Rights pertaining the subject property i.e. all the pieces and parcels of land bearing xxxx (hereinafter referred to as "Land B"). Land A and Land B, hereinafter collectively referred to as "Subject Property", are situated at village xxx.

8.                 The Land A was acquired by Respondent No. 1 on 16.08.2004.

9.                 On 27.08.2004, the State of Haryana issued acquisition proceedings to acquire 922 Acres of land under Section 4 of the Land Acquisition Act, 1894 ("Acquisition Notification"). It is submitted that Land A and Land B, (i.e. collectively, 13.743 acres) were included in the Acquisition Notification.

10.             On 24.08.2006, despite the Acquisition Notification, Respondent No. 3 and Xx(i.e. the predecessor of Respondents No. 4 and 5) entered into a collaboration agreement with Respondent No. 2 for development of Land B ("Collaboration Agreement"). The Collaboration Agreement specifically provided for assignment of the rights under the agreement to third parties. A copy of the Collaboration Agreement dated 24.08.2006 is marked herewith as Annexure A.

11.             On 11.12.2006, pursuant to the above-mentioned Collaboration Agreement, Respondent No. 2 (on behalf of Respondents No. 3, 4 and 5), entered into a development cum collaboration agreement with Respondent No. 1 in respect of Land B ("Development cum Collaboration Agreement"). As consideration for the Development cum Collaboration Agreement, Respondent No. 1 agreed to develop Land A and Land B collectively as a residential housing project. A copy of the Development cum Collaboration Agreement dated 11.12.2006 is marked herewith as Annexure-C. Thereafter a Supplemental Agreement dated 27.12.2006 was executed between Respondent No. 2, 3 and Predecessor of Respondent No. 4 & 5. A copy of the Supplemental Agreement dated 27.12.2006 is marked as Annexure-C.

12.             Under the Development cum Collaboration Agreement and a subsequent settlement agreement dated 20.09.2008 entered into between Respondents No. 1 to 5 (with Respondent No. 4 and 5 being represented by their predecessor, Xx), Respondents No. 2 - 5 were entitled to each receive, inter alia, 7% of the super built-up area in the residential housing project. A copy of the Settlement agreement dated 20.09.2008 is marked as Annexure-D.

13.             On 07.05.2008, License No.xxof 2008 was issued by the Department of Town and Country Planning of the State of Haryana ("DTCP") in the name of Respondent No. 1 - 3 and Xx(being the predecessor of Respondents No. 4 and 5) in respect of the entire composite area of 13.743 acres (i.e. Land A and Land B).

14.             On 29.01.2010, the land acquisition proceedings were dropped by the State of Haryana. 26. After the final decision of the State of Haryana to drop the acquisition on 29.01.2010, on 24.06.2010, the four licensees transferred their rights to develop all 13.743 acres (i.e. Land A and Land B) to the Appellant.

15.             More particularly, on 24.06.2010, the Appellant executed the Development Agreement with Respondents No. 1 - 3 and Xx(the predecessor of Respondents No. 4 and 5), for construction and development of group housing colony as per the License No xx of 2008 on the said 13.743 acres of land. In view of all the representations and warranties contained in the Development Agreement, including those concerning the unimpeachable title of the Respondents No. 1 to 5 with respect to the Subject Property, after obtaining all requisite permissions, the Appellant commenced and completed the construction of the said project, involving a total of 567 residential units (i.e., 475 Residential; 84 EWS and 8 commercial) and one nursery school. Subsequently, third-party rights have been created over the said constructed lands.

16.             Out of the 567 units constructed and developed under the name 'Xx', the allocation of flats / benefits was carried out as follows:

(i)      the original land-owners (LRs of Xx- i.e., Respondent No. 4 and 5) received, inter alia, the following benefits:

(a) Total 26 flats in the project (worth approximately Rs. 26 crore).

(b) Three plots of land in Gurgaon (with a combined market value of approx. INR 11 Crores). One plot bearing no. xx, admeasuring 220 sq. metres in the name of Xx/ Respondent No. 3, and two plots bearing no. xx and xx at Xx admeasuring 135 sq. metres. in the share of legal heirs of Xxi.e., Respondents No. 4 and 5. Pertinently, the market rate of these three plots as of the date of the instant Petition is about Rs. 11 Crores.

(c) Waiver of car parking, club membership etc. worth about INR 2 Crores.

(ii)     Respondents No. 1 and 2 received a total ofxxflats in the said Project (worth approximately Rs.xxcrores).

(iii)    The Appellant received 453 units which includes 361 residential flats, 84 EWS units, 8 shops and nursery school.

It is a matter of record that the Appellant has incurred a total cost of INR 308.61 Crores (including other minor development costs incurred) for the development of the said Project, and the estimated profit before tax for units sold as on 31.01.2021 was only around INR 16.70 Crores.

17.             After nearly 18 months from the date of entering into the Development Agreement, on 19.12.2011, certain farmers / land-owners preferred a writ petition before the High Court of Punjab and Haryana being CWP No. 23769 of 2011, inter alia praying for the following:

"a) Issue writ direction or order, especially in the nature of certiorari quashing the entire action of the respondents who invoked Sections 4 & 6 for alleged public purpose but ultimately compelled the Appellants to be divested of their valuable and fertile land at throwaway prices under the threat of acquisition to the private persons and consequently after issuing Section 6 and at the stage of final proceedings under Section 9, the acquisition was withdrawn with fraudulent intentions after the land was purchased by the private builders in active connivance with State functionaries and further the entire acquisition proceedings were initiated with mala fide intention, illegally and in violation of the provisions of the Land Acquisition Act .... "

18.             Three years hence, on 15.12.2014, the Hon'ble High Court of Punjab and Haryana, after hearing all the parties, dismissed the writ petition. A copy of the Order dated 15.12.2014 passed by the High Court of Punjab and Haryana is marked as Annexure-E.

19.             Aggrieved by the judgment of the Hon'ble High Court of Punjab and Haryana, various petitions were filed in the Hon'ble Supreme Court of India challenging the decision of the Hon'ble High Court dated 15.12.2014.

20.             On 12.03.2018, the Hon'ble Supreme Court set aside the judgment of the Hon'ble High Court dated 15.12.2014 ("SC Judgment") holding and directing as under:

"40. There are certain other elements which need attention at this stage. The Act now stands replaced by "The Right of Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 ". In terms of Section 24(J)(b) of said 2013 Act, where an award had been made under Section 11 of the Act, the proceedings under the provisions of the Act would continue as if the Act had not been repealed. Thus, even if a direction is passed that an award be deemed to have been made on 26.08.2007, the provisions of the Act would still continue to operate in respect of such acquisition in question. There is however, one point which may pose some difficulty. Out of 688 acres of land which was covered by Declaration under Section 6 of the Act in the present matter, majority of the lands were taken over by builders/private entities and as such presently the concerned landholders are not in possession of their holdings. However, in case of certain other lands where no transactions were entered into, as a result of dropping of the acquisition, those land holders are presently in occupation without there being any cloud of acquisition. If we restore status ante where the entirety of 688 acres of land continues to be under acquisition, the interest of such landholders is bound to be put to some prejudice. Those landholders are not parties to this litigation, nor their interest in any manner, is represented in the proceedings. They would now be visited with the prospect of losing their holdings. Those who sold away their holdings to the builders/private entities after the acquisition was initiated, naturally would not be prejudiced at all nor can the builders/private entities who purchased the land after the land was initiated can put up a plea of prejudice. However those who had never sold the holdings and continued to face the prospect of acquisition will certainly be put to prejudice. It is possible that some such landholders may have sold away their holdings or may have applied and secured licences for construction. In cases, where third party interests have thus intervened, there would be some more concern.

41. The relief to be granted in the matter has therefore to take care of all the aforesaid aspects. On one hand, the real and substantial relief to be granted in the matter would be not just restoring the status ante and invalidating of the transactions but the relief ought to be that the process of acquisition is taken to its logical end and the objective that said acquisition was to achieve must be sub-served. On the other hand, even while passing appropriate directions in the nature that there was a deemed Award, the interest of those landholders who had not parted with their holdings and had faced the acquisition and had not participated in the proceedings ought to be secured. Further, the interest of purchasers of individual apartments is also required to be protected. It is axiomatic that wherever a superior Court finds that the exercise of power by the executive was mala fide or that there was fraud of power, the full and substantial relief must be granted. The principles of restitution and concept of unjust enrichment as explained in cases referred to hereinabove show that no person who directly or indirectly was a party to the fraud of power be allowed to reap or retain any unjust enrichment. Though, it is through the acts on part of the landholders that the builders/private entities were brought on the scene, we don't hold them to be pari delicto alongwith builders/private respondents. But at the same time they cannot be given benefit of annulment of transactions and restoration of their holdings. The greater victim in the matter was the public interest. The land holders in any case had received considerations which were greater than what was awarded in Awards dated 09.03.2006 and 24.02.2007, which were the most proximate awards in terms of time. However, even when we propose to take the matter to its logical end and say that there was a deemed award, those who had not sold away their holdings and had not in any manner either directly or indirectly, tried to jeopardize the process of acquisition, cannot at this length of time be subjected to any prejudice. We will therefore have to exclude that body of landholders who had not transferred their holdings unlike the writ Appellants and similarly situated landholders, so also the purchasers of individual apartments from the width of our directions. Though fraud vitiates every resultant action and on that principle every beneficiary/ purchaser in subsequent transaction must restore such benefit, an exception has to be made in favour of individual purchasers of flats or apartments who are being left undisturbed while moulding the relief ..

42. Having bestowed our attention to various competing elements and issues we deem it appropriate to direct:

42.2 The decision dated 24.08.2007 was taken when the matters were already posted for pronouncement of the award on 26.08.2007. Since all the antecedent stages and steps prior thereto were properly and validly undertaken, and since the decision dated 24.08.2007 has been held by us to be an exercise of fraud on power, it is directed that an Award is deemed to have been passed on 26.08.2007 in respect of lands

(i) which were covered by declaration under Section 6 in the present case; and

(ii) which were transferred by the landholders during the period 27.08.2004 till 29.01.2010. The lands which were not transferred by the landholders during the period from 27.08.2004 till 29.01.2010 are not governed by these directions."

(Emphasis supplied)

21.             The Hon'ble Supreme Court in paragraph 42.2 of the SC Judgment (Rameshwar Vs State of Haryana: 2018 6 SCC 215), invalidated all transfers effected during the Suspect Period, i.e., from the date of publication of the notification under Section 4 to the date of publication of the State's decision to revoke the acquisition (from 27.08.2004 to 29.01.2010). It is a matter of record, that the Collaboration Agreement and the Development cum Collaboration Agreement entered into between the Respondents No. 1 to 5 were all entered into during the said Suspect Period. Pertinently, License No.xxof 2008 issued to Respondents No. 1 to 5 by DTCP was also obtained during the Suspect Period.

22.             The Appellant submits that in intervening period between the execution of the Development Agreement on 24.06.2010 and the SC Judgment on 12.03.2018, the Appellant, after obtaining all requisite perm1ss10ns, commenced and completed the construction of the said Project (involving a total of 475 residential flats, 84 EWS, 08 shops and 1 Nursery School) on the Subject Property. By Memo No. ZP- xx  dated 16.10.2014, DTCP granted an occupation certificate for the residential portions of the said Project, EWS and shops. An occupation certificate for the community building and swimming pool was granted by DTCP vide Memo No. xxxx  on 19.06.2017. A copy of the Occupation Certificate dated 16.10.2014 and 19.06.2017 is marked as Annexure-F. A copy of the Hon'ble Supreme Court Judgement dated 21.03.2018 is marked as Annexure-G.

23.             Pursuant to the SC Judgment, the State of Haryana, through HSIIDC filed an application before the Hon'ble Supreme Court bearing I.A No xx of2019 in M.A. No. xx 0f2019 in C.A. No. xx of 2015 seeking a clarification on whether the term 'transfer', includes only conveyance, formal transfer of lands or would include parting with valuable developmental rights. A copy of Application bearing I.A No xx of 2019 in M.A. No. xx Of 2019 in C.A. No. xx of 2015 is marked as Annexure-H.

24.             That Respondent No. 1 filed additional affidavit dated 03.11.2020 in I.A No xx of 2019 in M.A. No. xx Of 2019 in C.A. No. xx of 2015. Copy of additional affidavit dated 03.11.2020 filed by Respondent No. I before Hon'ble Supreme Court in I.A Noxxof2019 in M.A. No. xx 0f2019 in C.A. No. xx of 2015 is marked as Annexure-I.

25.             On 21.07.2022, the Hon'ble Supreme Court passed the Judgment concluding that the expression 'transfer' has to be interpreted widely and not in a narrow or technical manner. Thus, in all cases where collaboration agreements were entered into or developmental rights were parted with for valuable consideration, or where licenses were applied for during the suspect period (i.e. 27.08.2004 till 29.01.2010), the transactions would fall within the mischief of the expression 'transfer'.

26.             It is in this context of the matter, while: (i) acknowledging that the Appellant was not a part of the transactions in the aforementioned Suspect Period; (ii) assigning financial liability on all parties who were beneficiaries of the acquisition proceedings; and (iii) recording that construction of 567 units in total (i.e. 475 residential, 84 EWS and 8 commercial residential flats / apartments) had been undertaken by the Appellant, the Hon'ble Supreme Court in its Judgment directed the Appellant to make an upfront payment of INR 67,36,30,000/- (Indian Rupees Sixty-Seven Crores, Thirty-Six Lakhs and Thirty Thousand only) (i.e. the Principal Payment) to HSIDC within six months from the date of the Judgment, i.e., on or before 20.01.2023, categorically entitling and providing the Appellant with the liberty to claim such proportionate sums from the Respondents No. 1 to 5 in terms of the Development Agreement. In doing so, the Hon'ble Supreme Court protected the Appellant by categorically entitling the Appellant to recover the contractually agreed proportionate Principal Payment from the Respondents.

27.             In view of the above facts and circumstances, the agreed proportionate share of ownership and liability set out in the Development Agreement entered into between the Appellant and the Respondents, it is submitted that in accordance with the directions of and liberties granted to the Appellant as per Paragraph 42 of the Judgment read in conjunction with Clause 3.1 of the Development Agreement, the Appellant is entitled to claim and receive 30% of the Principal Payment (amounting to INR 20,20,89,000/- (Indian Rupees Twenty Crores Twenty Lakhs and Eighty-Nine thousand only)) from the Respondents No. 1 to 5 as their proportionate contribution towards the monies directed to be paid upfront by the Appellant to HSIIDC on or before 20.01.2023.

28.             Furthermore, a conjoint reading of Clause 5.5.2 (Respondents' representation and warranty) and 7.1 (Indemnity) of the Development Agreement makes evident that the Respondent No. 1 has undertaken to indemnify the Appellant, against any and all losses, expenses, claims, costs and damages suffered, arising out of, or which may arise in connection with any litigation and proceedings of any nature in respect of said Land. The Appellant's right to be indemnified of losses, expenses, claims, etc. is unequivocal under the Development Agreement and formed the very basis of entering into the Development Agreement. Accordingly, the Appellant is entitled to claim the Appellant's portion of liability under paragraph 42 of the Judgment (i.e. 70% of the Principal Payment) towards HSIIDC, being INR 47,15,41,000/- (Indian Rupees Forty-Seven Crores Fifteen Lakhs and Forty-One Thousand only) from the Respondents.

29.             As stated above, the Appellant has incurred a total cost of INR 308.61 Crore (including other minor development costs to be incurred) for the development of the said Project, and the estimated profit before tax for units sold as on 31.01.2021 was estimated to be Rs 16. 70 Crores from the said project. A copy of the CA certificate dated 05.02.2021 is marked as Annexure-J.

30.             That HSIIDC has been demanding Appellant to comply with the directions of the Hon'ble Supreme Court of India as detailed in its Judgement dated 21.07.2022 and in this regard have issued demand letters dated 17.08.2022 and 27.09.2022. Copy of the HSIIDC letters dated 17.08.2022 and 27.09.2022 is marked as Annexure-K(Colly).

31.             That Appellant has also filed Review Petition bearing Diary No. 28497 of 2022 in M.A. No. 50 of2019 in Civil Appeal No. xx of 2015 before Hon 'ble Supreme Court. Same has been dismissed vide Order dated 29.11.2022. A copy of Hon'ble Supreme Court's Order dated 29.11.2022 in Review Petition bearing Diary No. 28497 of 2022 in M.A. No. 50 of 2019 in Civil Appeal No. xx of 2015 is marked as Annexure-L.

32.             In addition to the amounts specified hereinabove, the Appellant intends to claim additional amounts from the Respondents No. 1 to 5 attributable to, inter alia: (i) the loss of goodwill of the Appellant and its brand 'xx'; (ii) amounts due and payable by the Respondents No. 1 to 5 in connection with the Common Area Maintenance payments for period from 2015 till December, 2022; (iii) costs incurred by the Appellant towards the various litigations arising against or involving the Appellant as a direct consequence of the fraudulent and conspiratorial conduct of the Respondents No. 1 to 5 as elucidated above; (iv) litigation costs already incurred by the Appellant till date; and (v) recovery of balance External Development Charges/ Internal Development Charges, (vi) other losses/ damages etc., which Appellant is in the process of assessment.

33.             The Appellant submits that in view of the aforesaid facts and circumstances and the conduct of the Respondents No. 1 to 5 which has been judicially determined to be fraudulent and conspiratorial, the Appellant strongly apprehends imminent danger that the Respondents would evade their liabilities under the Development Agreement, and shall alienate/ dispose of their immovable assets or create third party rights against such assets in order to defeat the legitimate dues of the Appellant and specifically any A ward passed in favour of the Appellant. The Appellant submits that in the event the Respondents are not restrained from selling, transferring and alienating their assets, the Appellant would not be able to recover its legitimate dues and any decree passed in favor of the Appellant, and the arbitration proceedings shall be rendered a mere paper decree and an empty formality. A restraining order is essential to estop the Respondents from any attempt to render nugatory any final award of an arbitral tribunal. It also bears noting that in furtherance of such direction and on fulfilment of the condition, the Appellant shall continue to pursue selling the unsold flats / assets and recover dues from the Respondents.

34.             The Appellant submits that to the best of the Appellant's knowledge, the Respondents No. 1 to 5's financial condition is precarious, and they do not have adequate means to indemnify the Appellant and / or no assets other than the unsold flats in the said Project are available with the Respondents No. 1 to 5 to discharge their judicially determined and contractual liabilities towards the Appellant.

35.             In view of the grave urgency, the Appellant is filing the petition under Section 9 of the Arbitration Act before the Hon’ble High Court of Delhi to protect the Appellant's interest during the intervening period so that the Appellant's rights are not defeated by the Respondents in an illegal and unlawful manner and vide order dated …….. the Ld. Arbitrator has been appointed by the Hon’ble High Court of Delhi. The Appellant therefore submits that the Respondents deserve to be injuncted from diversion of any of its assets till the arbitral process is complete.

36.             It is submitted that the Clause 9 of the Development Agreement provides for Arbitration in the event of any disputes and difference between the parties.

Clause 9 of the Agreement is as under:

"9. GOVERNING LAW AND DISPUTE RESOLUTION

9.1 The Agreement shall be governed by, and construed in accordance with, laws of India.

9.2 In the case of any dispute, controversy or claim arising out of or in connection with this Agreement, including any question regarding its existence, validity, interpretation, breach or termination, between any of the Parties such Parties shall first attempt to resolve such dispute or claim through discussions between senior executives or represeniatives of the disputing Parties.

9.3 If the dispute is not resolved through such discussions within 7 (Seven) days after one disputing Party has served a written notice on the other disputing Party requesting the commencement of discussions, such dispute shall be finally settled through arbitration in accordance with the Arbitration and Conciliation Act, 1996 as in force on the date hereof or any subsequent amendment thereof

9.4 The venue of arbitration shall be Xx and the language of the arbitration proceedings shall be English".

37.             The Appellant submits that the Appellant's officials met Respondent No. l's officials on 10.01.2023 and further had a discussion on 12.01.2023 and pursuant thereto Appellant has issued a letter dated 12.01.2023 to the Respondents No. 1 to 5 pursuant to the Judgment of the Hon'ble Supreme Court in keeping with the abovementioned arbitration agreement between the parties, calling upon the Respondents No. 1 to 5 to pay the above-mentioned amounts and seeking to amicably close all disputes between the parties, keeping in mind the fact that payment to HSIIDC in terms of the Hon'ble Supreme Court Order has to be made by 20.01.2023. The Appellant submits that 7 days has passed since the issuance of the letter and no response whatsoever has been received by the Appellant from the Respondents, confirming the apprehensions of the Appellant and further necessitating this Hon'ble Court to issue protective orders against the Respondents and in favour of the Appellant in the instant matter. The Appellant submits that in view of the above, pending the hearing and final disposal of the Arbitration proceedings, which are yet to be commenced, it is just, necessary, and in the interest of justice, especially considering the fact that Appellant will make payment of INR 67,36,30,000/- to HSIIDC on/before 20.01.2023, that the Respondents be restrained from selling/alienating/creating third party interests over their share of the properties and maintain status quo till the disposal of the arbitration proceedings. In accordance with Section 9 of the Act, the Appellant declares its intention to invoke the arbitration clause in the Development Agreement soon after filing of the present petition for, inter alia, the claims set out herein. A copy of the Appellant's demand letter dated 12.01.2023 issued to the Respondents is marked as Annexure-L.

38.             In the meanwhile, representative of the Appellant met officials of HSIIDC on 16.01.2023 confirming that payment of amount of INR 67,36,30,000/- to HSIIDC and sought for bank account details for making necessary remittance. Appellant submits that payment of INR 67,36,30,000/- as directed by the Hon'ble Supreme Court is being remitted to the account of HSIIDC, who have provided the said account details on 16.01.2023. A copy of emails exchanged between HSIIDC and Appellant on 16.01.2023 are marked as Annexure-M.

39.             On 17.01.2023, Appellant again issued reminder demand letter to Respondents No. 1 to 5. A copy of Appellant's reminder letter dated 17.01.2023 is marked as Annexure-N.

40.             In the present circumstances, the Appellant is filed the application for interim relief on ………. but same was dismissed by the Ld. Arbitral Tribunal without application of mind, which is impugned in the present Appeal.

41.             In these circumstances, the Appellant is constrained to approach this Hon'ble Court for urgent interim relief. There is a possibility that during the pendency of the dispute, the Respondents will dissipate the only asset i.e. the unsold flats in the said Project and the Plots. The details of the unsold flats of the Respondents in the Project Godrej Frontier and the three Plots is mentioned in the list, marked as Annexure-O. Further, the details of said flats and plots also find mention in the Additional Affidavit dated 16.11.2020 filed by the Appellant, Additional Affidavit dated 26.04.2022 of Respondent no.3, Additional Affidavit dated 26.04.2022 of Respondent no. 4 and Additional Affidavit dated 26.04.2022 of Respondent no. 5 filed in in the Hon'ble Supreme Court in M.A No. xx/2019 in Civil Appeal No. xx of 2015, a copy of which is marked as Annexure-P(Colly).

42.             As evident from the above narration of facts, the decisions of the Hon'ble Supreme Court and the provisions of the Development Agreement, the Appellant has a strong prima facie case in its favour. The balance of convenience is entirely in favour of the Appellant for the reasons elucidated hereinabove. Furthermore, the Appellant submits that in case the interim orders as prayed by the Appellant are not granted, the Appellant shall suffer irreparable loss and injury.

43.             Thereafter, the Ld. Tribunal vide the impugned Order dated …11.2024 was pleased to dismiss the application under Section 17 of Arbitration and Conciliation Act of the Appellant.

44.             That in addition to non-consideration of the aforesaid factual position by the Ld. Tribunal, it is submitted that the impugned Order is also liable to be set-aside inter-alia on the following amongst other grounds:

GROUNDS:-

A.   Because the Ld. Arbitral Tribunal failed to appreciate that the

B.    Because the Ld. Arbitral Tribunal failed to appreciate that

C.    Because the Ld. Arbitral Tribunal failed to appreciate that

D.   Because the Ld. Arbitral Tribunal failed to appreciate that

45.             That the Appellant craves leave to add to, amend, alter, modify and/ or delete any of the aforesaid grounds as may be necessary in the facts and circumstances of the present case.

46.             That the Appellant has not filed any other appeal before any other Court for the reliefs claimed except the present petition before this Hon'ble Court, against the impugned award.

47.             The Appellant has no other efficacious remedy against the Impugned Order except to approach this Hon’ble Court by way of the present Appeal.

48.             That the Appellant submits that all arguments raised in this Petition were raised before the Tribunal and all documents being relied upon formed part of the record before the Tribunal and that no new arguments or documents are being presented in support of the instant petition. The Appellant will rely upon the documents, a list whereof is annexed to this Petition.

49.             That the Impugned Order was passed by the Ld. Arbitral Tribunal on …11.2024 and therefore this Hon'ble court has the requisite jurisdiction.

50.             That the present Appeal is within limitation period as prescribed under Section 13 of The Commercial Courts, Commercial Appellate Division of High Court Act, 2015.

51.             That the requisite Court fee in respect of the present Appeal has been affixed.

PRAYER

          In the view of aforementioned submissions, it is most respectfully prayed that this Hon’ble Court may be pleased to:

a)                Allow the present Appeal and set aside the Impugned Order dated …11.2024, passed by the Ld. Arbitral Tribunal in DIAC…….24;

b)               Allow the Interim Application under Section 17 of Arbitration and Conciliation Act of the Appellant.

c)                 Pass such further or other orders as this Hon’ble Court may deem fit in the facts and circumstances of the case in favour of the Appellant and against Respondents herein.

DELHI                                                       Appellant

THROUGH

DATED

xx

COUNSELS FOR THE APPELLANT

xx

Mobile No. x

Email: xx

VERIFICATION

          Verified at Xx on this ____ day of November, 2024 that the contents of accompanying Appeal, are based upon the records of the present case and the legal submissions made therein are as per legal advice received which I believe to be correct and that nothing material has been concealed there from, nor any part of it is false.

Appellant

IN THE HIGH COURT OF DELHI AT XX

(APPELLATE CIVIL JURISDICTION)

FAO(OS) (COMM.) NO. _______ OF 2024.

IN THE MATTER OF: a

XX    : APPELLANT

VERSUS

XX

                             : RESPONDENTS

AFFIDAVIT

Affidavit of Xx, Wife of Xx, aged about xx years, Authorized Signatory Xx., having her office at Xx, presently in Xx,, do hereby solemnly affirm and declare as under:-

1.                 That I am the Appellant in the above case and well conversant with the facts and circumstances of the present proceedings on the basis of records maintained by the Appellant company in its regular course of business, as such I am competent to swear this affidavit.

2.                 That I have read and understood the contents of the accompanying Appeal, which has been drafted by my counsel under my instructions.

3.                 That the contents of the Para Nos. ___ of the accompanying appeal are true to my knowledge on the basis of records maintained by the Appellant company and legal averments contained in Para No. ____ are based on legal advice received which I believe to be correct.

4.                 I state that the documents filed along with the present Appeal are true copies of the documents referred to and relied upon by me.

DEPONENT

VERIFICATION

I, abovenamed deponent do hereby verify that all the facts stated in the above affidavit are true to my knowledge as derived from the records of the Appellant Company and nothing material has been concealed therefrom.

Verified at Xx on this ____ day of November, 2024.

DEPONENT

IN THE HIGH COURT OF DELHI AT XX

I.A. NO. ______ OF 2024.

IN

FAO(OS) (COMM.) NO. _______ OF 2024.

IN THE MATTER OF: a

XX    : APPELLANT

VERSUS

XX

                             : RESPONDENTS

AFFIDAVIT

Affidavit of Xx, Wife of Xx, aged aboutxxyears, Authorized Signatory Xx., having her office at Xx, presently in Xx,, do hereby solemnly affirm and declare as under:-

1.                 That I am the Appellant in the present case and as such I am well conversant with the facts of the present case, and therefore, am competent to depose this affidavit.

2.                 That I have gone through the contents of the accompanying application for exemption, which has been prepared under my instructions. The contents of the accompanying application be read as part of this affidavit, which are not being repeated herein for the sake of brevity.

DEPONENT

VERIFICATION:-

Verified at Xx on this ____ day of November, 2024 that the contents of above affidavit are true and correct to my knowledge as derived from the records of the Appellant Company and nothing material has been concealed therefrom.

DEPONENT

IN THE HIGH COURT OF DELHI AT XX

I.A. NO. ______ OF 2024.

IN

FAO(OS) (COMM.) NO. _______ OF 2024.

IN THE MATTER OF: a

XX              : APPELLANT

VERSUS

XX

                             : RESPONDENTS

APPLICATION UNDER SECTION 151 CPC SEEKING EXEMPTION FOR FILING ORIGINAL/CERTIFIED COPIES, TRUE TYPED COPIES OF THE IMPROPERLY FORMATTED, LEFT MARGIN AND DIM DOCUMENTS.

MOST RESPECTFULLY SHOWETH:

1.                 That the present Appeal is being filed by the Appellants under Section 37(2) of the Arbitration & Conciliation Act, 1996 as amended by the Arbitration and Conciliation (Amendment) Act 2015 (the ‘Act’), against the Order dated …11.2024 passed by the Ld. Arbitral Tribunal in Arbitration Case No. ……..  (the ‘Impugned Order’). Vide the Impugned Order the Ld. Arbitrator has erroneously and in grave error of law dismissed the application of the Appellant under Section 17 of the Act. It is submitted that in view of the averments made in the accompanying Appeal, the same may be treated as part & parcel of the present application which are not repeated herein for the sake of brevity.

2.                 That due to urgency in the matter the Appellant herein is filing the present Appeal alongwith true photocopies of the documents, which may not be in consonance with the rules prescribed by this Hon’ble Court in respect of the margins and/or spacing between each line and/or font size and/or being fair typed copies of their respective originals and/or certified copies, and is hereby seeking leave of this Hon'ble Court to so present the present Appeal.

3.                 That the applicant/Appellant hereby undertakes to furnish the true typed copies of the documents as and when directed by this Hon'ble Court.

4.                 That the application is bona-fide and it is in the interest of justice that this Hon'ble Court may kindly be pleased to allow the Appellant exemption as sought for by way of the present application.

PRAYER

It is, therefore, most respectfully prayed that this Hon'ble Court may most graciously be pleased to:

a)     Exempt the Appellant from filing true typed copies of the dim and/or improperly formatted and/or certified copies of the documents filed along with accompanying Appeal.

b)    Pass such other or further orders as this Hon'ble Court deems fit and proper under the facts and circumstances of the case.

DELHI                                                       Appellant

THROUGH

DATED

xx

COUNSELS FOR THE APPELLANT

xx

Mobile No. xx

Email: xxx

IN THE HIGH COURT OF DELHI AT XX

I.A. NO. ______ OF 2024.

IN

FAO(OS) (COMM.) NO. _______ OF 2024.

IN THE MATTER OF: a

XX    : APPELLANT

VERSUS

XX

PVT. LTD. & OTHERS                             : RESPONDENTS

AFFIDAVIT

Affidavit of Xx, Wife of Xx, aged about xx years, Authorized Signatory Xx., having her office at Xx, presently in Xx,, do hereby solemnly affirm and declare as under:-

1.                 That I am the Appellant in the present case and as such I am well conversant with the facts of the present case, and therefore, am competent to depose this affidavit.

2.                 That I have gone through the contents of the accompanying application for exemption, which has been prepared under my instructions. The contents of the accompanying application be read as part of this affidavit, which are not being repeated herein for the sake of brevity.

DEPONENT

VERIFICATION:-

Verified at Xx on this ____ day of November, 2024 that the contents of above affidavit are true and correct to my knowledge as derived from the records of the Appellant - Company and nothing material has been concealed therefrom.

DEPONENT