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CoM"PANY,4PPL!9AIlo,N .N,os.a7Q S +27,9F 20t 3

IN COMPANY P
IN THE MATTER OF:

Dinesh Mittal & Oths.

Petitioners
Vs

Triveni I nfrastructure Development

Company Limited
Respondents
INDEX

Sr

Particulars

Page No.

Reply on Behalf of ex management of triveni

infrastructure development Company Limited, for
which provisional Liquidator has been appointed
vide order dated 17.10,12 to the application under
Rule 9 of Company court Rule 1959, ,read with
section 151 CPC for directions Filed by Zion
promoters & Developers Pvt. Ltd.

1---22

No.
1

C&ASolutions

(Sanjay S. Chtiabra & Alok Agarwal

Counsels for the respondents
H-- 5 Jungpura Extensions
New delhi 110014
D/64/96
9899068509

Place -New Delhi

Date - 15 th May 2013

tN rHE ,l_{tcH qquRT o,F pELhtl +r NEW pELHI

GOMPANY APPI-ICATIoN N.os,4T6 fr {77.oF 2013
tN C9MPANY FETlflgN r!9. 3e/390e
IN THE MATTER OF:

Dinesh Mittal & Oths.

Petitioners
Vs

Triveni Infrastructure Development

Company Limited
Respondents

Replv gq ,Beh,alf of ex ,mpnaqement of triv.eni inffegt':ucture

dgvelopnlent 9omp?ny Limited., for Whiqh provisionat Liqu.id?tor has
be--en appointeC -vid.e order dateC 17.10.1? to thg application undgr
Rule 9 of companv court Rule 19s9. ,read with sgction 1s1 Qpc fo_r
directions Filed bv Zion promoterF & Devetopers pvt. L,td.
MOqT RESPECTFULLy SHOWETH

Pieliminarv Obiection :1. That the applicant is not a party and stranger to present company

petition and such has no locus standi to file the present application. The
present application is liable to be dismissed on this ground alone.

2, That the relief sought in the present application is untenable in Law and
misconceived .The applicant by the way of present application is indirectly
seeking specific performances of an Unregistered Agreement dated 19.12
.2A07. Without prejudice to the fact that the said Agreement does not
transfer and convey any right, title & lnterest in the immovable property
owned by the Cbmpany but only Grants right to the applicant for
constructing and developing 300000 sq.ft. on portion of the Land that
comprises Triveni Galaxy Project. The land is owned by TIDCO. lt has
License in its favor to develop Group Housing projects. Any action for the
specific performances of the Agreement dated 19.12 .2407. is barred by
limitation and cannot be secured in a clandestine manner by way of present
application.
Further Honorable Supreme Court of lndia in "Suraj Lamp & lndustries
Pvt. Ltd. Vs. State of Haryana & Anr. (2011 STPL(WEB) 879 SC) held
that-

...ttis fhus clear that a transfer of a immovable property by the

way of sale can only be by Deed of Conveyance (sa/e deed). ln The
11

absence of deed of conveyance (duty Stamped & registered as required by

Law) no right, Title or interest in an immovable property can be
Transferred.

. We therefore reiterate that immovable property can legatty and tawfulty

be transferred/Conveyed only by a registered deed of Conveyance.
Transaction of the nature of "GPA sa/es" or "SNGPA/WILL transfers" do
not convey titte and do not amount to transfer, nor they can be recognized
or valid mode of transfer of immovable property.......
1

3. The Section5 & Section 54 of Transfer of property Act 1882, define

transfer of property and sale respectively. The said relevant provisions are
reproduced hereunder for ready reference of the Honorable Court-----

Section 5- Transfer of property Defined:-- ln the Following section

Transfer of property' means an Act by which a living person ,conveys

property, in present or in future, to one or more living person's, or to himself

and one or more other living person, and to' transfer property' is to perform
such act.
[ln this Section a Living person includes a Company or association or Body
of individuals, whether incorporated or not, but nothing contained herein
shall affect any Law for the time being in force relating to transfer of
property to or by 'Companies or association , or Body of lndividuals]"
54 Sale defined- sale is a Transfer of ownership in exchange for which a
price paid or promised or part- paid and part- promised.

sale How made-- Such transfer, in the case of tangible immovable

property of the value of one hundred rupees or upward, or in the case of
reversion or other intangible thing can be made only by a registered
instrument."
4. TheSection 27 of lndian StampAct, 1889, cast upon the party, liableto
pay stamp duty, an obligation to set forth in the instrument, or facts and
circumstances which affect the chargeability of duty on that instrument.
Article 23 describes Stamp Duty or conveyance.
5. The Section 17 of Registration Act 1g0g, which makes a Deed of
conveyance compulsory registrable, is extracted below for ready reference
of Honorable Court-

section 17-Documents for which Regisfra tion is computsory

1 The following documenfs sha// be Regrs tered namely ;xxxxxxxxxx

b. Other non testamentary instruments which purport or operate to create,

declare or assign, limit or extinguish in the present or in the future, any
right, title & lnterest, whether vested or contingent of the value of the one
hundred rupees and upward to or in immovable properly.

xxxxxxxxxxx

(1A) The documents containing contract to transfer for consideration ,any

immoveable property for the Section 53 A of The Transfer Of Property Act
1882,(4 of 1882) shall be registered if they have been executed on or after
the Registration or other related Laws (Amendment Act )2001 and if such
documents are not registered on or after such commencement , than they
shatt have no effect for the purpose of said Section 53A.
The object and benefit of registration has been repeatedly explained by the
Honorable Supreme court of lndia in catena of Judgments' and an extract
of the judgments is reproduced hereunder for the ready reference of the
honorable Court:-

The Registration Act 1908 , was enacted with the intention of providing
orderliness, discrp line and public order in regard to transaction relating to
immovable property and protection from fraud, and forgery of documenfs of
transfer .This is achieved by compulsory registration of certain type of
documents (other than testamentary instruments) which purports or
operate to create, declare or assign, limit or extinguish whether in present
or in future 'any right, title or interest' whether vested or contingent of the
value of Rs. 100 or upwards to or in immovable property. Section 49 of the
said act provides that no document required by section 17 to be registered,
shall affect and immovable property, comprised therein or received as
evidence of transaction affected such property, unless it has been
registered registration of a document gives notice to the world that such a
documenf has been executed. Registration provides safety & security to
the transactions relating to immovable property, even if documents are lost
or destroyed.. lt gives publicity & public exposure to documenfs thereby
preventing forgeries and fraud in regards to transactions and execution of
documenfs. Registration provides information to the people who may deal
with the property, as fo nature and extent of the rights, which person may
have, affecting the property ln other words it enables people to find out
whether any particular property with which they are contcerned, has been

subiected to legal obligations or liability and whois or are the person/s

presently have the right, title & interest in the property, it gives solemnity of
form and perpetuates documents, which are of legal importance or
relevance by recording them, where people may see the record and
enquire and ascertain what the particulars are and as far as land is
concerned what obligations exrsf with regard to it. lt ensure that every
person dealing with immovable property can rely with confidence upon the
statement contained in the register (maintained under this Act)as a futt &
complete account of att transactions by which the titte of the property may
be affected and secure extracts/copies duly certified "
6. That the Agreement dated 1911212007 is unregistered on which stamp
duty of Rs.100l has been paid and not as prescribed on conveyance. As
per the scope of the agreement, TIDCo has agreed to grant, convey
transfer to the applicant all their rights, title & interest in the construction of
300000 sq. ft. to be constructed on the portion of the Licensed land owned
by the Company TIDCO has neither agreed nor transferred , their right
title or interest in the land on which the construction of 300000sq.ft.was
agreed to be raised by the applicant under the agreement, The agreement
is for development / construction of flats/units on a portion of land with
permission to sell the said constructed flats on completion.
,

7, That the applicant has not fulfilled this agreement dated 19.12,2007.The
applicant has not completed the construction. The applicant has not paid
his share of enhanced external & internal charges with the authorities as
envisaged in the Clause 3.10 in the agreement.
8. The applicant has not carried out the construction of EWS flats and other
prerequisite for grant of License. Due to non construction of EWS flats the
project will not be given Completion certificate. The non applicant have
already communicated to the applicant that due to winding up petition
pending against the company and the order passed on 17.10.2012, the
company will not be able to fulfill its obligations under the Agreement and
the agreement stands frustrated and cancelled by reason of force majeure
aS stipulated in Clause 13 of the Agreement.

9' That in the event the applicant had grievances and

was aggrieved by the
said communication by the non applicant, the applicant
is free to invoke
Arbitration as provided under the Agreement for resolution
of Disputes. l6e
applicant instead of invoking Arbitration as agreed
legal recourse available
to the applicant in the event of any dispute arising
including non
performance of the obligations by any of
the parties, the a[plicant
surreptitiously has fired the present apprication to secure
specific
performance of a unregistered and unstamped
Agreement, which even
othenrvise does not convey any right, title or interest
in the immovable
property in favor of the applicant. The applicant
in the garb of the present
application is trying to grab and usurp the portion of
Land, possession
whereof was derivered to the appricant for deveropment purpose.
The
applicant is claiming ownership right in land which has
never been
transferred or conveyed in favor of the applicant by
the company. Besides
such ownership rights of the land are not transferrable
by unregistered,
unstamped Agreement dated 19.12.2007 which has
not even been
described as "Agreement to sell". The Honorable
High court of Fombay in
"Crest Hotel Ltd. Vs Assistant Superintendent of Stamp (AlR1g9a
Bom 228)"had taid down that the ownership witl always
re-main with the
seller and will be transferred to the buyer only
on execution of the sale
deed by the sellef'.
10' That from the aforesaid provisions it is clear
that the Agreement per se
does not, of itself, create any interest or charge
in the property. The
transfer of the immovabre property can onry be
by the way of Deed of
Conveyance' ln the absence of Deed of conveyance
duly registered and
stamped as required by the law grants no right, tile
or interest in the
immovable property The agreement enforced by
the applicant in the
present proceedings is not a agreement/contract
for the sare of an
immovable property. It does not confer any right,
Tiile or interest nor
transfer the immovabre property, It is an ,gr"*runt granting
permission to
the applicant to carry out construction and development
in the Land owned
by the Company, with the permission that during construction
and/or the
completion of construction, the applicant can offer the
constructed unit to a

third party. Since now the ownership of the land now vests with the office of
the Official Liquidator and has been directed by the division bench of the
Honorable Delhi high court, the agreement stands frustrated by operation
of law since the applicant is prevented in law to transfer the construction in
favor of third party with a proportionate land underneath. However the
applicant is entitled to submit their claim with the Official liquidator and the
relief sought in the application for the facts and circumstances cannot be
considered or granted in favor of the applicant. Further honorable High
Court of Delhi in "Smt. Sharda Mahajan Vs. Mapple Leaf Trading
lnternational private ltd.[(2007)1 39 Compcas 718 (Delhi)J
Had held that"when contractuat obtigations become practically impossible
of performance due to interuening circumsfances, the contracf sfands
frustrated. ln such cases the parties are released from their obligations.
Once the contract is frustrated than the principle of restitution applies and
the considerations received must be repaid."
1. lt is pertinent to state here that the power of Attorney is not an
instrument of transfer in regard to any right, title or interest in a immovable
property. The power of attorney is a creation of agency whereby the
Guarantor authorizes a guarantee to do the acts specific therein. Even an
irrevocable Power of attorney does not have the effect of transferring title to
the Guarantee.
ln The "State of Rajasthan vs. Nihata 2005(12) SCC 77 , the Honorable
supreme Court of lndia has held that "A grant of Power of attorney is
essentially governed by Chapter 10 of The Contract act. By ieason of a
deed of Power of attorney, an agent is formally appointed to act for
principle in one transaction or series of transaction or to manage the affair
of principal generally conferring necessa ry authority upon another person.
A Deed of Power of attorney is executed by the principal in favor of the
agent. The agent derives the right fo use his name and allacfs, deed and
things done by him and subjected to the limitations contained in the said
deed, the same shall be read as if done by the donor..A power of attorney
in terms of provision of the Contract Act and also the Power of attorney
Act is valid. The power Of Attorney, we have noticed herein before, is
executed by the donor so as to enable the done to act on his behalf. Except
'1

in cases where the Power of Attorney is coupled with interest, it is

revocable. The done in exercise of his power under such Power of attorney
only acts in place of the donor subject to the powers granted to him by
reason thereof .He cannof use the power of Attorney for his own benefit
He acts in a fiduciary capacity. Any act of infidelity or breach of trust is a
matter between the donor and done"
Parawise Reply
1, That the content of para 1 in the manner are contrary to the order dated
15.3.13. The application filed by the applicant before the Division bench in
company appeal number 9412012 was dismissed as not entertained, The

Honorable division Bench did not grant any liberty to the applicant to make
a application to the Honorable Court. The contention of the applicant that
the agreement is unstamped and cannot be looked into for any purpose
whatsoever was specifically recorded. The agreement for the reasons
submitted in preliminary submission does not convey any right, title or
interest in favor of applicant in the immovable property. Due to the changed
circumstances the agreement is frustrated and not enforceable in law much
less in filing the present application under rule g in Company court Rule
I 959.

2. lt is admitted that the applicant was granted development right to

develop 318618 sq.ft. on the portion of the land falling underTriveni galaxy.
The non applicant has not transferred/conveyed the ownership right on the
land on which the said development work had to be carried out by the
applicant. lt is denied that the applicant had approached the Monitoring
Committee and the Monitoring Committee did not pass any order due to
non availability of staff or supporl by TIDCO. The averments made therein
are after thoughts to mislead and prejudice this Honorable Court. The ExManagement had already conveyed to the applicant that in terms of the
order dated 17.10.12Lhe agreement has been frustrated and the applicant
is free to lodge their claim with the Official Liquidator.

3' That the contents in Para 3 are wrong and denied. The applicant
was
fully aware of the winding up proceedings pending against the
company
since 2009. The applicant was fully aware of the proceedings since
the
staff was available at the site and meetings held with the customers
with
the company at the site where the applicant was entrusted with the right
to
carry out development work The applicant was informed by the non
applicant about passing of the order dated 17.1A.12 and its consequences
and repercussions on the present agreement. lt was under these
circumstances that the applicant was keeping regular watch on the
proceedings pending before this honorable courl against the
company, The
applicant deliberately suppressed the source of information of passing
of
the order dated 11.2,13.
4. That the content in para 4 are wrong & denied. Narendra Huda had no
authority in Law to file present application.

5' That the content in para 5 are to mislead & Misdirect the Honorable
court' The applicant was fully aware and had the knowledge of the order
dated 17 .10.1 2 passed by this Honorable court,, since specifically
conveyed by the Ex management,. The applicant was keeping watch
on
the proceedings filed by the company and/or the ex management against
the order dated 17.10,12. There was no order passed by the Honorable
court to arrest the ex management .There was no appeal preferred by
ex
management before this Honorable court in the order passed on
Bail
application dated 17.10.12.The ex management had preferred
a company
appeal against the order dated 17.10.12 passed in the Company petition
'filed for winding up of the company.
6. That the content of para 6 area matter of record and need no reply.
7. That Para no T of content of the Agreement dated 19.12.2007
and
13.09.2010 entered into between the parties for carrying out development
of the licensed Land that belongs to TIDCO. The applicant has reproduced
the Clauses of the Agreement that are a matter of Record and need no
reply. lt is vehemently denied that under the agreement powers were given

to the applicant to deal with the land. The applicant was entitled to deal with
as they deemed fit to launch, book and sell the constructed area. lt was
agreed between the Parties that on completion of construction, the parties
will negotiate the terms & conditions for transfer of Land in order to grant
power to the applicant to execute sale deed of the flat in favor of its
allottees. lt is admitted that the possession of portion of the land on which
the applicant was permitted to carry out the development was delivered on
execution of the Agreement. The applicant is now trying to take advantage
on the said position and is falsely claiming ownership right on the basis of
the Agreement under which no ownership rights were conveyed to the
applicant by the Company.
8. The execution of lrrevocable Power of Attorney is not denied. The Power
of Attorney authorized the Applicant and/or it nominees to sell the
construction e.g. offices, shops, Flats, Showroom, Stores etc. and by no
stretch of imagination can it be construed as a transfer agreement for the
transfer of the immovable property. The applicant was acting in a Fiduciary
capacity was doing act for the benefit of the non applicant.
9. That the content of the para 9 are wrong and denied. lt is denied that the
applicant got any approval of the project from the statutory authority, The
approvals are in the name of TIDCO granted by the authority being the
owners of the Land, for which the license is granted. The approval from
financial institution is denied for the want of knowledge Even assuming
such a approval has been granted it is a internal arrangement between the
applicant and financial institution,.
10. That the content of para 10 are denied. lt is denied that the applicant
had entered into or sold 300 flats, without prejudice thereto, since no valid

right, title or interest can now be conveyed to these flat owners, the
applicant was informed and advised by the non applicant to lodge their
claim with the official liquidator pursuant to the order passed by the division
bench dated 11 .02.2013.
1

1. That the content of para

11

are denied for want of kn6wledge.

12. Thalthe content of Para 12 are vehemently denied. lt is denied that the
contract for construction given to the applicant by Agreement dated

19.12.2007. has been fulfilled or the construction completed. Without

prejudice thereto, the contentions raised for completion of the constructiOn
andlor allotment of the Flats to the subsequent allottees are irrelevant for

the present aPPlication.

13. That the content of the para 13 are wrong and denied, lt is denied that
any construction/flat/unit has been sold to third party. The sale cannot be
completed unless the company executes the sale deed for the
proportionate land underneath the Flat in favor of the allottee. Since the
sale deed now cannot be executed by the company in the changed
circumstances more particularly in compliance with the order dated
11.02.2013 , which has been upheld by the Honorable supreme court of
lndia, the contentions raised by the applicant are irrelevant and the
applicant is only entitled to their claim which can be recovered from the

office of the official Liquidator.

14. That the content of the Para 14 are incomplete and misleading.

Despite the filling of the affidavit by Shree Madhur Mittal, the Honorable
Division of the Honorable court has directed the sale of entire project land
of the company by the way of public auction'
1S & 16.

Thatthe content of para 15 & 16 are irrelevanttothe Present

application and need no rePlY.

17.That the applicant admits that was sought to be transferred under the
agreement dated 19.12.2007 was not the Land but the right to raise the
construction on the portion of Land, As such there is no transfer of
immovable property in which the applicant has vested right, title or interest
sought to be claimed in the present application. The application is wholly
misconceived and untenable in law and devoid of any merit' The
application is liable to be dismissed with exemplary costs.

That it is clarified that the present application is not at the instance of the ex
-management. The ex management are opposing the application and
assisting the Honorable court by filing this reply to secure obedience and
compliance of the order dated 11.02.2013 passed by the division bench of
the Honorable Court and upheld by the Honorable Supreme court of india.
It is in the Larger interest of the public that the entire land of the company is
put to the public Auction which is likely to fetch huge amount of money
approximately Rs. 700-800 crores which would be sufficient to pay off all
the creditors of the company including the applicant.

APPLICANT
/RESPONDANT
Through

C&A Solution
(Sanjay S Chhabra & Alok K. Aggarwal)
Counsel of Respondants
H-SJungpura Extension
New Delhi -110014
D/64/96
9899068509

Dated :- 15 May 2013

co

IN 9OMFANY PETITI

IN THE MATTER OF:

Dinesh Mittal & Qths.

Petitioners
Vs

Triveni lnfrastructure Development

Company Limited
Respondents

AFFIDAVIT
l, Madhur Mittal, son of Late Shree H.C. Mittal aged about 40 years rlo of
C-691, New friends Colony, New Delhi ,do hereby solemnly affirm and
declare as under;, I am a erstwhile Director of the Company and I am fully conversant with
the Facts and circumstances of the case. Hence am competent to swear
this affidavit.
1

2. That I have read and understood the content of the accompanying reply
to the application under Rule 9 of the Company (Court) Rules 1959, read
with Section 151 CPC and same are true and correct to the best of my

J{'a,-'..,j:r....:F,!-iqB61:

'."4*!

Knowledge and belief. No part of this is false and nothing has been
concealei there from. The content of the reply be read as part of the
present Affidavit and the same are not repeated herein for the sake of'
Brevity.

DEPONANT

VERIFICATION
l, the deponent by above name, hereby verify that the content of para 1 &2
of the foregoing Affidavit are true and correct to the best of my Knowledge
and no part of this is false and nothing material has been suppressed

therefrom

Verified at New Delhi on15th day of May 2013