An application under Order 38 Rule 2 and Rule 5 of the Code of Civil
Procedure was also filed, and the apparent reason is that having collected
about `85 crores from the plaintiffs not a penny was spent on development
of the land and construction of the building in which space had to be
allocated to the plaintiffs by Blue Coast Infrastructure Development Pvt.
Ltd. and Silver Resort Hotel India Pvt. Ltd. Said application was pending
when another application under Section 151 of the Code of Civil Procedure
was filed by the plaintiffs intimating the Court that to recover its dues, IFCI
had sold a property of Blue Coast Hotel Ltd. at Goa and out of the sale
consideration in sum of `515 crores payable by ITC Group of Companies,
after adjusting its dues, `178.48 were lying in the coffers of IFCI. It was
prayed that a sum of `85 crores be attached out of `178.48 lying in the
coffers of IFCI. It is apparent that a garnishee order was prayed for.
5. Issuing notice in the application IFCI was directed not to disburse `85
crores.
6. This order dated July 31, 2005 has been challenged in the appeal.
7. In our opinion the impugned order is not a judgment as per the law
declared by the Supreme Court in the decision reported as(1981) 4 SCC 8
Shah Babulal Khimji Vs. Jayaben D.Kania & Anr. for the reason a final
adjudication in the application filed by the plaintiffs has yet to take place.
The impugned order may cause some inconvenience to the appellant, but is
not of a kind which would amount to an interim judgment. A pro-tem order
has been passed pending completion of pleadings and a decision would
enure which would last till the disposal of the suit; said decision would be an
interlocutory judgment capable of being appealed against.
IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment Delivered on : February 05, 2016
FAO(OS) 570/2015
BLUE COAST HOTELS LIMITED ..
versus
KAMAL SHARMA & ORS ..
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE MUKTA GUPTA
1. 81 plaintiffs got together and filed a suit seeking declaration,
permanent injunction and mandatory injunction. 9 defendants were
impleaded in the suit : (i) Blue Coast Infrastructure Development Pvt.Ltd.;
(ii) Silver Resort Hotel Pvt.Ltd.; (iii) Blue Coast Hotel Ltd.; (iv)
Sh.P.L.Suri; (v) Sh.Sanjay Suri; (vi) Ms.Anju Suri; (vii) Ms.Sunita Suri;
(viii) Sh.Sushil Suri; and (ix) M/s Delhi International Airport Pvt. Ltd.
2. Succinctly stated, the plaintiffs claimed that defendants No.1 to 3
were companies under a common management of the ‘Suris’ and the
plaintiffs had invested money in a project named ‘MGM GRAND NEW
DELHI’. It was pleaded that defendant No.9 was given a right by the
Airport Authority of India to develop land in ‘Asset Area 3’, which right
was assigned by defendant No.9 in favour of defendant No.3 (Blue Coast
Hotels Ltd.) which in turn created a special purpose vehicle : Silver Resort
Hotel Pvt. Ltd.(defendant No.2), which in turn had some kind of an internal
agreement with Blue Coast Infrastructure Development Pvt. Ltd. (defendant
No.1) concerning the Asset Area 3. A reference was made to Assured
Return Agreement and a Space Agreement of even date entered into
between the plaintiffs and Blue Coast Infrastructure Development Pvt.Ltd.
and Silver Resort Hotel India Pvt.Ltd.; albeit on different dates. As per the
plaint, the 81 investors had paid `84,03,54,452/- (Rupees Eighty Four
Crores Three Lacs Fifty Four Thousand Four Hundred and Fifty Two only)
under the Assured Return Agreement and Space Agreement. It was pleaded
that under the Assured Return Agreement the plaintiffs were entitled to
receive as of November, 2014, `11,79,96,192/- (Rupees Eleven Crores
Seventy Nine Lacs Ninety Six Thousand One Hundred and Ninety Two
only). It was pleaded that defendants No.1 to 3, under the operational
control of the Suris, were holding out that all their projects are group
projects, one of which was in Goa called Park Hyatt Goa situated Arossim
Beach, Cansaulim in South Goa. Reference was made to Sheraton Hotel in
Chandigarh and at Amritsar.
3. Reliefs prayed in the suit are as under:-
(a) Pass a decree for rendition of accounts of
defendants in respect of amounts received by them from
plaintiffs and other investors, and after enquiry is made
pass a decree for such sum as may be found to be payable
to each of the plaintiffs including at least for the amounts
due to the plaintiffs for which the defendants No.1 & 2
have issued post dated cheques as shown in the statement
annexed hereto and marked as ANNEXURE P-1 against
defendants jointly as well as severally, alongwith interest
@ 18% p.a. from the date the said amounts were due and
payable by the defendants till realization. The plaintiffs
undertake to pay the court fees as may be directed by this
Hon’ble Court.;
(b) Pass a decree of perpetual injunction thereby
injuncting and restraining the defendants, their servants,
agents, representatives etc. from dealing with, disposing
of, alienating or in any other way encumbering the asset
i.e. “MGM Grand asset area 3” which is more
particularly define in ANNEXURE-A of the Agreement
dt.26.02.2010 executed between defendant No.9, 2, asset
on which the Project was to be built.
(c) Pass an order appointing an Expert Committee to
look and consider the claims of plaintiffs and other
investors and make appropriate suggestions thereof for
disbursal of money and damages and compensation;
(d) Pass a decree of mandatory injunction thereby
directing defendants jointly as well as severally to repay or
restore the money or property with interest of plaintiffs
which has been siphoned off, retained or in respect of
which they have committed misfeasance or breach of trust
as may be found on enquiry;
(e) Pass a decree of permanent injunction thereby
restraining defendants and each one of them from dealing
with, disposing of, alienating or in any other way
encumbering the assets and properties of defendant No.1
to 3 and further attaching the said properties and assets as
described in a statement annexed hereto and marked as
Annexure P-2.
(f) Pass a decree of permanent injunction thereby
restraining defendants and each one of them, from
changing the position of share holdings, and status quo in
respect of share holding as existing on date of defendant
No.1 to 3.
(g) Pass a decree of permanent injunction thereby
restraining defendants from operating all the bank
accounts of defendant No.1 to 3 company and incurring
any expenditure for defending this suit as well as other
litigation/cases/FIRs pending against them out of the
funds of the defendant No.1 to 3 company;
(h) Pass a decree of permanent injunction thereby
restraining defendants, their servants, agents,
representatives etc. from parting with or alienating or
otherwise dealing with their personal assets and also the
assets created by the use of funds of defendant No.1 to 3 by
the firms, companies owned and/or controlled by
defendants as may be found on enquiry;
(i) Pass a decree of permanent injunction thereby
restraining defendants, their servants, agents,
representatives etc. from doing any act of receiving or
disbursing any money on behalf of defendant No.1 to 3 or
otherwise to anyone;
(j) Pass a decree of permanent injunction thereby
restraining Defendants, their servants, agents,
representatives etc. from inviting public to invest in their
project or advertising their project;
(k) Costs;
(l) Pass such other further orders as may be deemed fit
and proper in the interest of justice.”
4. An application under Order 38 Rule 2 and Rule 5 of the Code of Civil
Procedure was also filed, and the apparent reason is that having collected
about `85 crores from the plaintiffs not a penny was spent on development
of the land and construction of the building in which space had to be
allocated to the plaintiffs by Blue Coast Infrastructure Development Pvt.
Ltd. and Silver Resort Hotel India Pvt. Ltd. Said application was pending
when another application under Section 151 of the Code of Civil Procedure
was filed by the plaintiffs intimating the Court that to recover its dues, IFCI
had sold a property of Blue Coast Hotel Ltd. at Goa and out of the sale
consideration in sum of `515 crores payable by ITC Group of Companies,
after adjusting its dues, `178.48 were lying in the coffers of IFCI. It was
prayed that a sum of `85 crores be attached out of `178.48 lying in the
coffers of IFCI. It is apparent that a garnishee order was prayed for.
5. Issuing notice in the application IFCI was directed not to disburse `85
crores.
6. This order dated July 31, 2005 has been challenged in the appeal.
7. In our opinion the impugned order is not a judgment as per the law
declared by the Supreme Court in the decision reported as(1981) 4 SCC 8
Shah Babulal Khimji Vs. Jayaben D.Kania & Anr. for the reason a final
adjudication in the application filed by the plaintiffs has yet to take place.
The impugned order may cause some inconvenience to the appellant, but is
not of a kind which would amount to an interim judgment. A pro-tem order
has been passed pending completion of pleadings and a decision would
enure which would last till the disposal of the suit; said decision would be an
interlocutory judgment capable of being appealed against.
8. Contention of learned counsel for the appellant that there was just no
material before the learned Single Judge to even pass the pro-tem order and
that the order in question adversely affected the interest of the appellant who
was not even a party to the Assured Returned Agreement and the Space
Agreement, was repelled by learned senior counsel for the respondents No. 1
to 81 by referring to various documents which showed that defendants No.1
to 3 were holding themselves out as group companies and were under the
common management of the Suris. Therefrom, learned senior counsel for
the respondents urged that keeping in view the fact that defendant No.1 and
2 had siphoned off the entire money paid by the plaintiffs evidenced by no
development whatsoever commencing at Asset Area 3 and MGM Grand
New Delhi not even surfacing above the womb of the earth, the pro-tem
measure pending consideration whether a garnishee order should be issued
was fully justified. Referring to the annual report of the appellant, learned
counsel referred to the fact recorded therein that the appellant is the holding
company of defendants No.1 and 2. Drawing attention to the list of
Directors of defendant No.2 and 3, learned counsel successfully showed that
the members of the Suri family were in control of defendant No.2 and 3.
Learned counsel showed that on the letterheads defendants prominently
display :
Blue Coast
Group of Hotels
9. Learned senior counsel referred to a common website of defendants
No.1 to 3, as per which the hotel at Goa, MGM Grand, Sheraton at
Chandigarh and Amritsar were shown to be the hotels of the same group.
Learned senior counsel referred to the profile of the Blue Coast Group of
Companies displayed as per which it was held out to the world that
defendants No.1, 2 and 3 are the three faces of the same obelisk.
10. Learned senior counsel also referred to a writ petition filed by the
Blue Coast Hotel Ltd. registered as No.916/2015, before the High Court of
Bombay at Panji, challenging the auction conducted by IFCI in which the
appellant itself pleaded that it had won a bid pursuant to which Delhi
International Airport Ltd. had allotted Asset Area No.3 at DIAL hospitality
district and that Blue Coast Hotel Ltd. had envisaged construction of a five
star deluxe building under MGM Grand Category with serviced apartments
and nine restaurants wherein, to bring home the point that the appellant was
itself proclaiming to be a vital stake holder in the MGM Grand New Delhi
Building which was proposed to be constructed and for the construction of
which the plaintiffs had paid nearly `85 crores to defendants No.1 and 2.
11. Since we have held the appeal to be not maintainable we are not
commenting on the inferences which can be drawn from the documents
referred to by learned senior counsel for respondents No.1 to 81, save and
except to say that they are sufficient to rebut the argument advanced by
learned counsel for the appellant that there was no material whatsoever
before the learned Single Judge to even pass a protective pro-tem order.
12. We dismiss the appeal as not maintainable.
13. No costs.
(PRADEEP NANDRAJOG)
JUDGE
(MUKTA GUPTA)
JUDGE
FEBRUARY 05, 2016
Print Page
Procedure was also filed, and the apparent reason is that having collected
about `85 crores from the plaintiffs not a penny was spent on development
of the land and construction of the building in which space had to be
allocated to the plaintiffs by Blue Coast Infrastructure Development Pvt.
Ltd. and Silver Resort Hotel India Pvt. Ltd. Said application was pending
when another application under Section 151 of the Code of Civil Procedure
was filed by the plaintiffs intimating the Court that to recover its dues, IFCI
had sold a property of Blue Coast Hotel Ltd. at Goa and out of the sale
consideration in sum of `515 crores payable by ITC Group of Companies,
after adjusting its dues, `178.48 were lying in the coffers of IFCI. It was
prayed that a sum of `85 crores be attached out of `178.48 lying in the
coffers of IFCI. It is apparent that a garnishee order was prayed for.
5. Issuing notice in the application IFCI was directed not to disburse `85
crores.
6. This order dated July 31, 2005 has been challenged in the appeal.
7. In our opinion the impugned order is not a judgment as per the law
declared by the Supreme Court in the decision reported as(1981) 4 SCC 8
Shah Babulal Khimji Vs. Jayaben D.Kania & Anr. for the reason a final
adjudication in the application filed by the plaintiffs has yet to take place.
The impugned order may cause some inconvenience to the appellant, but is
not of a kind which would amount to an interim judgment. A pro-tem order
has been passed pending completion of pleadings and a decision would
enure which would last till the disposal of the suit; said decision would be an
interlocutory judgment capable of being appealed against.
IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment Delivered on : February 05, 2016
FAO(OS) 570/2015
BLUE COAST HOTELS LIMITED ..
versus
KAMAL SHARMA & ORS ..
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE MUKTA GUPTA
1. 81 plaintiffs got together and filed a suit seeking declaration,
permanent injunction and mandatory injunction. 9 defendants were
impleaded in the suit : (i) Blue Coast Infrastructure Development Pvt.Ltd.;
(ii) Silver Resort Hotel Pvt.Ltd.; (iii) Blue Coast Hotel Ltd.; (iv)
Sh.P.L.Suri; (v) Sh.Sanjay Suri; (vi) Ms.Anju Suri; (vii) Ms.Sunita Suri;
(viii) Sh.Sushil Suri; and (ix) M/s Delhi International Airport Pvt. Ltd.
2. Succinctly stated, the plaintiffs claimed that defendants No.1 to 3
were companies under a common management of the ‘Suris’ and the
plaintiffs had invested money in a project named ‘MGM GRAND NEW
DELHI’. It was pleaded that defendant No.9 was given a right by the
Airport Authority of India to develop land in ‘Asset Area 3’, which right
was assigned by defendant No.9 in favour of defendant No.3 (Blue Coast
Hotels Ltd.) which in turn created a special purpose vehicle : Silver Resort
Hotel Pvt. Ltd.(defendant No.2), which in turn had some kind of an internal
agreement with Blue Coast Infrastructure Development Pvt. Ltd. (defendant
No.1) concerning the Asset Area 3. A reference was made to Assured
Return Agreement and a Space Agreement of even date entered into
between the plaintiffs and Blue Coast Infrastructure Development Pvt.Ltd.
and Silver Resort Hotel India Pvt.Ltd.; albeit on different dates. As per the
plaint, the 81 investors had paid `84,03,54,452/- (Rupees Eighty Four
Crores Three Lacs Fifty Four Thousand Four Hundred and Fifty Two only)
under the Assured Return Agreement and Space Agreement. It was pleaded
that under the Assured Return Agreement the plaintiffs were entitled to
receive as of November, 2014, `11,79,96,192/- (Rupees Eleven Crores
Seventy Nine Lacs Ninety Six Thousand One Hundred and Ninety Two
only). It was pleaded that defendants No.1 to 3, under the operational
control of the Suris, were holding out that all their projects are group
projects, one of which was in Goa called Park Hyatt Goa situated Arossim
Beach, Cansaulim in South Goa. Reference was made to Sheraton Hotel in
Chandigarh and at Amritsar.
3. Reliefs prayed in the suit are as under:-
(a) Pass a decree for rendition of accounts of
defendants in respect of amounts received by them from
plaintiffs and other investors, and after enquiry is made
pass a decree for such sum as may be found to be payable
to each of the plaintiffs including at least for the amounts
due to the plaintiffs for which the defendants No.1 & 2
have issued post dated cheques as shown in the statement
annexed hereto and marked as ANNEXURE P-1 against
defendants jointly as well as severally, alongwith interest
@ 18% p.a. from the date the said amounts were due and
payable by the defendants till realization. The plaintiffs
undertake to pay the court fees as may be directed by this
Hon’ble Court.;
(b) Pass a decree of perpetual injunction thereby
injuncting and restraining the defendants, their servants,
agents, representatives etc. from dealing with, disposing
of, alienating or in any other way encumbering the asset
i.e. “MGM Grand asset area 3” which is more
particularly define in ANNEXURE-A of the Agreement
dt.26.02.2010 executed between defendant No.9, 2, asset
on which the Project was to be built.
(c) Pass an order appointing an Expert Committee to
look and consider the claims of plaintiffs and other
investors and make appropriate suggestions thereof for
disbursal of money and damages and compensation;
(d) Pass a decree of mandatory injunction thereby
directing defendants jointly as well as severally to repay or
restore the money or property with interest of plaintiffs
which has been siphoned off, retained or in respect of
which they have committed misfeasance or breach of trust
as may be found on enquiry;
(e) Pass a decree of permanent injunction thereby
restraining defendants and each one of them from dealing
with, disposing of, alienating or in any other way
encumbering the assets and properties of defendant No.1
to 3 and further attaching the said properties and assets as
described in a statement annexed hereto and marked as
Annexure P-2.
(f) Pass a decree of permanent injunction thereby
restraining defendants and each one of them, from
changing the position of share holdings, and status quo in
respect of share holding as existing on date of defendant
No.1 to 3.
(g) Pass a decree of permanent injunction thereby
restraining defendants from operating all the bank
accounts of defendant No.1 to 3 company and incurring
any expenditure for defending this suit as well as other
litigation/cases/FIRs pending against them out of the
funds of the defendant No.1 to 3 company;
(h) Pass a decree of permanent injunction thereby
restraining defendants, their servants, agents,
representatives etc. from parting with or alienating or
otherwise dealing with their personal assets and also the
assets created by the use of funds of defendant No.1 to 3 by
the firms, companies owned and/or controlled by
defendants as may be found on enquiry;
(i) Pass a decree of permanent injunction thereby
restraining defendants, their servants, agents,
representatives etc. from doing any act of receiving or
disbursing any money on behalf of defendant No.1 to 3 or
otherwise to anyone;
(j) Pass a decree of permanent injunction thereby
restraining Defendants, their servants, agents,
representatives etc. from inviting public to invest in their
project or advertising their project;
(k) Costs;
(l) Pass such other further orders as may be deemed fit
and proper in the interest of justice.”
4. An application under Order 38 Rule 2 and Rule 5 of the Code of Civil
Procedure was also filed, and the apparent reason is that having collected
about `85 crores from the plaintiffs not a penny was spent on development
of the land and construction of the building in which space had to be
allocated to the plaintiffs by Blue Coast Infrastructure Development Pvt.
Ltd. and Silver Resort Hotel India Pvt. Ltd. Said application was pending
when another application under Section 151 of the Code of Civil Procedure
was filed by the plaintiffs intimating the Court that to recover its dues, IFCI
had sold a property of Blue Coast Hotel Ltd. at Goa and out of the sale
consideration in sum of `515 crores payable by ITC Group of Companies,
after adjusting its dues, `178.48 were lying in the coffers of IFCI. It was
prayed that a sum of `85 crores be attached out of `178.48 lying in the
coffers of IFCI. It is apparent that a garnishee order was prayed for.
5. Issuing notice in the application IFCI was directed not to disburse `85
crores.
6. This order dated July 31, 2005 has been challenged in the appeal.
7. In our opinion the impugned order is not a judgment as per the law
declared by the Supreme Court in the decision reported as(1981) 4 SCC 8
Shah Babulal Khimji Vs. Jayaben D.Kania & Anr. for the reason a final
adjudication in the application filed by the plaintiffs has yet to take place.
The impugned order may cause some inconvenience to the appellant, but is
not of a kind which would amount to an interim judgment. A pro-tem order
has been passed pending completion of pleadings and a decision would
enure which would last till the disposal of the suit; said decision would be an
interlocutory judgment capable of being appealed against.
8. Contention of learned counsel for the appellant that there was just no
material before the learned Single Judge to even pass the pro-tem order and
that the order in question adversely affected the interest of the appellant who
was not even a party to the Assured Returned Agreement and the Space
Agreement, was repelled by learned senior counsel for the respondents No. 1
to 81 by referring to various documents which showed that defendants No.1
to 3 were holding themselves out as group companies and were under the
common management of the Suris. Therefrom, learned senior counsel for
the respondents urged that keeping in view the fact that defendant No.1 and
2 had siphoned off the entire money paid by the plaintiffs evidenced by no
development whatsoever commencing at Asset Area 3 and MGM Grand
New Delhi not even surfacing above the womb of the earth, the pro-tem
measure pending consideration whether a garnishee order should be issued
was fully justified. Referring to the annual report of the appellant, learned
counsel referred to the fact recorded therein that the appellant is the holding
company of defendants No.1 and 2. Drawing attention to the list of
Directors of defendant No.2 and 3, learned counsel successfully showed that
the members of the Suri family were in control of defendant No.2 and 3.
Learned counsel showed that on the letterheads defendants prominently
display :
Blue Coast
Group of Hotels
9. Learned senior counsel referred to a common website of defendants
No.1 to 3, as per which the hotel at Goa, MGM Grand, Sheraton at
Chandigarh and Amritsar were shown to be the hotels of the same group.
Learned senior counsel referred to the profile of the Blue Coast Group of
Companies displayed as per which it was held out to the world that
defendants No.1, 2 and 3 are the three faces of the same obelisk.
10. Learned senior counsel also referred to a writ petition filed by the
Blue Coast Hotel Ltd. registered as No.916/2015, before the High Court of
Bombay at Panji, challenging the auction conducted by IFCI in which the
appellant itself pleaded that it had won a bid pursuant to which Delhi
International Airport Ltd. had allotted Asset Area No.3 at DIAL hospitality
district and that Blue Coast Hotel Ltd. had envisaged construction of a five
star deluxe building under MGM Grand Category with serviced apartments
and nine restaurants wherein, to bring home the point that the appellant was
itself proclaiming to be a vital stake holder in the MGM Grand New Delhi
Building which was proposed to be constructed and for the construction of
which the plaintiffs had paid nearly `85 crores to defendants No.1 and 2.
11. Since we have held the appeal to be not maintainable we are not
commenting on the inferences which can be drawn from the documents
referred to by learned senior counsel for respondents No.1 to 81, save and
except to say that they are sufficient to rebut the argument advanced by
learned counsel for the appellant that there was no material whatsoever
before the learned Single Judge to even pass a protective pro-tem order.
12. We dismiss the appeal as not maintainable.
13. No costs.
(PRADEEP NANDRAJOG)
JUDGE
(MUKTA GUPTA)
JUDGE
FEBRUARY 05, 2016
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