M/S R K Bararia vs Nandi Infratech Private Limited

* IN THE HIGH COURT OF DELHI AT NEW DELHI
th
Date of decision: 11 MARCH, 2026
IN THE MATTER OF:
I.A. 4623/2019 & I.A. 8900/2019, I.A. 11461/2019
IN
+ CS(COMM) 166/2019 & CCP(O) 74/2019, I.A. 10609/2020, I.A.
19721/2023, I.A. 33382/2024
M/S R K BARARIA .....Plaintiff
Through: Appearance not given

versus

NANDI INFRATECH PRIVATE LIMITED .....Defendant
Through: Mr. Vinay Kumar Garg, Senior
Advocate, Mr. Bipin Kumar, Mr.
Suresh Chandra Sharma, Mr. K. S.
Rekhi, Mr. Shivom Sharma,
Advocates

CORAM:
HON'BLE MR. JUSTICE SUBRAMONIUM PRASAD
JUDGMENT
I.A. 4623/2019 & I.A. 8900/2019, I.A. 11461/2019
1. The present applications being I.A. 4623/2019 has been filed by the
Plaintiff under Order XXXIX Rule 1 and 2 read with Section 151 of the
CPC seeking ex-parte ad-interim injunction restraining the Defendant, their
agents, representatives or any other person from selling, transferring,
alienating or creating any third party interest in 50 Flats in Tower A, J, B, &
I and 130 Flats in other Towers and further retrain them, their agents,
representatives or any other person acting on their behalf from transferring
Signature Not Verified
Signed By:RAHUL
SINGH
Signing Date:17.03.2026
10:52:41
CS(COMM) 166/2019 Page 1 of 17

in any manner till the disposal of the main suit. I.A. 8900/2019 has been
filed by the Defendant under Order XXXIX Rule 4 read with Section 151 of
the CPC for setting aside the Interim Order dated 09.04.2019 passed by this
Court and I.A. 11461/2019 which has also been filed by the Defendant
under Order XXXIX Rule 4 read with Section 151 of the CPC seeking
modification of the Interim Order dated 05.07.2019 passed by this Court.
2. Shorn of unnecessary details, the facts of the case read as under:
i. The Plaintiff is M/s R. K. Bararia, which is a proprietorship concern
engaged in civil constructions and Nandi Infratech Private Limited is
the Defendant, who is the Project Developer and has awarded the
work of construction to the Plaintiff.
ii. The Plaintiff and the Defendant entered into a Construction Contract
dated 31.01.2015 ( hereinafter referred to as “ the Contract ”) for the
construction of multi-storeyed flats in the project “Amaatra Homes”
at Sector 10, Greater Noida. ( hereinafter referred to as “ the Project” )
iii. Initially, as per the award letter dated 1.11.2014, the scope of work
entailed construction of 08 towers i.e., B, C, D, E, F, G, H & I of the
Project for a tentative value of Rs. 36,12,50,000/- and later two more
towers i.e., A and J were added and hence the Plaintiff had to
construct a total of 10 towers.
iv. The Plaintiff has filed the instant suit seeking recovery against the
Defendant for the sum of Rs. 10,32,54,740/- along with interest at the
rate of 18% per annum which is due and payable for the work
executed under the Contract. It is also alleged by the Plaintiff that the
termination of the Contract by the Defendant was arbitrarily and
wrongful.
Signature Not Verified
Signed By:RAHUL
SINGH
Signing Date:17.03.2026
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CS(COMM) 166/2019 Page 2 of 17

v. A cross Suit being CS(OS) No. 160/2018 was filed by the Defendant
against the Plaintiff herein stating that the Plaintiff has been paid an
extra sum of Rs. 2,58,00,000/-. Liquidated damages to the extent of
Rs. 8,59,00,000/- due to delay in execution of the Project had also
been claimed in the said Suit filed by the Defendant.
vi. The present Suit was listed for hearing on 09.04.2019. This Court
found that since the amount claimed by the Plaintiff is quite
substantial and the claim of the Defendant is primarily for liquidated
damages which are to be established at trial, it directed that any
transfer of flats in Tower A and J made by the Defendant in the
Project constructed by the Plaintiff shall be subject to further Order of
this Court. The Defendant was permitted to deal with these flats by
informing the proposed buyers of the Order of this Court. Certain
Orders were also passed for carrying out joint measurements for
ascertaining the value of the work which the Plaintiff has done under
the Contract.
vii. The said Order was modified on 05.07.2019. The Order sheet dated
05.07.2019 reveals that the learned Counsel for the Defendant made a
settlement offer for deposit of Rs. 5,00,00,000/- being a sale
consideration for 06 flats to ensure that the entire Project was not
stalled.
3. This Court on 05.07.2019 modified the Order dated 09.04.2019 by
directing that the sale consideration of the first 06 flats or any other number
of flats amounting to a total sum of Rs. 5,00,00,000/- which are sold by the
Defendant, shall be deposited with the Registrar General of this Court and
subject to such deposit, the Defendant was free to deal with the remaining
Signature Not Verified
Signed By:RAHUL
SINGH
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flats in the Project.
4. It is pertinent to mention that the prayer in I.A. 11461/2019 is for
modification of the Order dated 05.07.2019 and pass an Order for keeping
the 16 flats of total sale consideration value of more than Rs. 5,00,00,000/-
as security till the disposal of the application being I.A. 4623/2019 under
Order XXXIX Rule 1 and 2 filed at the first instance of the Suit.
5. This Court vide Order dated 17.01.2023 recorded that the Defendant
had not deposited the requisite amount in terms of the Order dated
05.07.2019 leading to contempt of the Order of this Court and therefore, the
Plaintiff had filed a contempt petition being CCP (O) 74/2019 for non-
compliance of the said Order. The Defendant was directed to file an affidavit
within a period of four weeks placing on record the details of the flats in two
towers i.e., A and J which have been sold by the Defendant in the aftermath
of the Order dated 09.04.2019 together with the details of the sale
consideration realized as a result of the said sales.
6. An affidavit has been filed by the Defendant on 01.03.2023 in
compliance of the Order dated 17.01.2023. Relevant paragraph of the said
affidavit reads as under:
“4. I say that when the IA No. 8900/2019 was listed for
hearing on 05.07.2019 before this Hon'ble Court, the
Hon'ble Court was pleased to pass an order dated
05.07.2019, whereby a liberty was given to the
Defendant company to deal with the flats in Tower 'A'
& 'J' subject to deposit of sale consideration of first 6
flats or any other number of flats amounting to a total
sum of Rs. 5 Cr., which are sold by the company. I
further say that this Hon'ble Court in the said order
also recorded that the said deposit shall be without
prejudice to the rights and contentions of the parties
Signature Not Verified
Signed By:RAHUL
SINGH
Signing Date:17.03.2026
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CS(COMM) 166/2019 Page 4 of 17

till the time of completion of joint measurement. The
said deposit shall also be without prejudice to the fact
that it is the case of the company that upon joint
measurement being conducted, it would be evident that
the Contractor, in fact, owes money to the Company.

5. I say that 29 flats in Tower 'A' and 28 flats in Tower
'J' have been sold so far after 05.07.2019 and two flats
are unsold. I say that the total sale consideration of the
said flats was Rs. 30,42,83,303/- out of which the
defendant has received Rs. 29,93,27,014/- time to time
in structured manner as per the payment plan opted by
the individual buyer.

6. I say that the defendant finding itself unable to
comply with the order dated 05.07.2019 passed by this
Hon'ble Court preferred another application under
Order 39 Rule 4 read with Section 151, I CPC being
LA. No. 11461 of 2019 for modification of the order
dated 05.07.2019 and instead of deposit of the amount
of 5 crores offered security of 16 flats of total value of
about Rs.5,04,27,638/- till the final disposal of the
application under Order 39 Rule 1 & 2 filed by the
Plaintiff.”

7. Another affidavit has been filed by the Defendant on 09.05.2023.
Relevant paragraph of the said affidavit reads as under:-
“3. I say that due to upward surge in Real Estate
market, the value of the flats in Real Estate Project,
namely, "AMAATRA HOMES" has substantially
increased, as per current trend in the real estate
market. It is respectfully submitted that due to
immediate requirement of funds required for the
purpose of completing the construction of the said
Project, the Defendant has to sell four flats. It is
submitted that the Defendant, despite all obstacles
arising out of recession in real estate market clubbed
Signature Not Verified
Signed By:RAHUL
SINGH
Signing Date:17.03.2026
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with negative market sentiments due to Covid-19
Pandemic, left no stones unturned to complete the
construction and development of the said Project as
high stakes of several innocent homebuyers were
involved. I say that due to Defendant's conviction to
complete the said Project despite all odds, the said
Project was duly completed and flats therein were
handed over to the respective Allottees, after obtaining
Occupancy Certificate from GNIDA. I say that as of
date the Defendant has an unsold inventory of 17 flats
in total in the said Project. I say that subject to this
Hon'ble Court allowing I.A No. 11461 of 2019, the
Defendant is ready and willing to secure as many flats
from the aforesaid unsold stock, as may be directed by
this Hon'ble Court.

4. I say that the current valuation of the said unsold
inventory in the said Project is approximately
quantified @ Rs.4800 per sq. feet. The Defendant
further sometimes also provide discounts however, the
average rate upon which the Defendant has currently
sold some flats in the said Project is Rs. 4400/- per sq.
feet. It is submitted that without prejudice rights of the
Defendant, the rights and interests of the Plaintiff
insofar as deposit of amount before the Registry of this
Hon'ble Court is concerned could be secured by
offering approximately 11,300 sq. feet of area in the
said Project, which approximately culminates into 12
flats. The Defendant, therefore, respectfully prays to
this Hon'ble Court to allow the Defendant to secure 12
flats in the said Project. The detail of unsold 17 flats is
annexed herewith for kind and ready reference of this
Hon'ble Court.

A tabular chart encompassing the details of 17 unsold
inventory/ flats in the said Project is annexed herewith
as Document-2.

Signature Not Verified
Signed By:RAHUL
SINGH
Signing Date:17.03.2026
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CS(COMM) 166/2019 Page 6 of 17

5. I say that in order to substantiate the respectful
submission as contained in Para No. 3 of the present
Affidavit, the Defendant intends to draw kind attention
of this Hon'ble Court towards the following germane
facts:

(a) The current price upon which the Defendant is
marketing its flats in the aforesaid Project is @
4800 per sq. feet. The total area of 17 unsold flats
is 17114 sq. feet. Accordingly, as per the current
rate, the value of the aforementioned 17 flats
comes to Rs. 8 crores approximately.

A copy of current offering rate as published and
circulated by Defendant is annexed herewith as
Document-3.

(b) The other Real Estate Developers, who are
developing and marketing their respective
projects adjacent to the Defendant's Project, are
also currently selling their flats in their respective
Project within the range of Rs. 4700/- to Rs.
6000/-per sq. feet.

Copies of price list and brochures of other Real
Estate Developers are annexed herewith as
Document-4(Colly)”

8. Perusal of the said affidavit indicates that due to an upward surge in
real estate market, the value of the flats in the project, namely, “Amaatra
Homes” substantially increased and the Defendant was in an immediate
requirement of funds for the purpose of completion of construction of the
Project. The said affidavit indicates that only 17 flats are left out of a total
inventory of 942 flats under the Project and the Defendant is willing to
secure 12 flats as unsold stocks. The details of the 17 unsold flats were
Signature Not Verified
Signed By:RAHUL
SINGH
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furnished along with the affidavit.
9. The amount was deposited only in the year 2024 i.e., after 05 years
and that too in two tranches of Rs. 2,00,00,000/- and Rs. 3,00,00,000/- on
15.02.2024 and 10.05.2024 respectively.
10. Learned Senior Counsel appearing on behalf of the Defendant
strenuously submits that in a suit for recovery of money, an injunction on
immovable property cannot be passed. He draws the attention of this Court
and contends that an Order under Order XXXIX Rule 1 and 2 can be passed
only when the suit is regarding a property and that the property which is the
subject matter of the suit is endangered of being wasted, damaged or
alienated by any party of the suit or where there is an eminent danger that
the Defendant will remove or dispose of the property with a view to defraud
its creditors or where there is a threat of dispossession of the Plaintiff from
the suit property. He states that until and unless all these conditions are
satisfied, no order under Order XXXIX Rule 1 and 2 can be passed even in a
suit pertaining to an immovable property. He, therefore, states that in the
present Suit which is one for recovery of money, no Order can be passed
while exercising the jurisdiction under Order XXXIX Rule 1 and 2.
11. Learned Senior Counsel appearing on behalf of the Defendant
thereafter, draws attention of this Court to Order XXXVIII Rule 5 and
contends that in a suit for recovery of money, the Court can only pass an
attachment before judgment, and even to pass such an Order, the Plaintiff
has to satisfy the Court that there is a threat that the Defendant could dispose
of whole or a part of his property or is about to remove whole or a part of his
property from the local limits of the jurisdiction of the Court and thereby
reducing the decree passed in a suit for recovery of money only to a paper
Signature Not Verified
Signed By:RAHUL
SINGH
Signing Date:17.03.2026
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decree. He further states that the facts of this case do not demonstrate that
either of these two conditions under XXXVIII Rule 5 are satisfied for
passing an Order under the aforesaid provision.
12. He, therefore, states that the Order dated 09.04.2019 as modified vide
Order dated 05.07.2019 has been passed wholly without jurisdiction, and
therefore, cannot be confirmed and resultantly, I.A. 8900/2019 which has
been filed by the Defendant under Order XXXIX Rule 4 read with Section
151 of the CPC for vacation/setting aside the Interim Order dated
09.04.2019 passed by this Court and as modified by the Order dated
05.07.2019 should be allowed,
13. Learned Senior Counsel appearing on behalf of the Defendant draws
attention of this Court to a judgment of a Division Bench of this Court in
Evolve Info Train India Pvt. Ltd. v. Versatile Commotrade Pvt. Ltd. & Anr.,
(2018) SCC OnLine Del 7016 , Sunil Kakrania & Ors. v. M/s. Saltee
Infrastructure Ltd. & Anr., (2009) SCC OnLine Cal 1638 , Kohinoor Steel
Private Limited v. Pravesh Chandra Kapoor, (2010) SCC OnLine Cal 1856
and Maharashtra Jeevan Pradhikaran and Another v. Lark Construction Pvt.
Ltd., (2005) 1 Mah LJ 953 to substantiate his contention that interim
injunction against him in a property cannot be granted in a money suit.
14. Learned Senior Counsel appearing on behalf of the Defendant draws
the attention of this Court to a judgment of the Apex Court in Raman Tech.
& Process Engg. Co. And Another v. Solanki Traders , (2008) SCC 2 302 to
highlight the circumstances under which Order XXXVIII Rule 5 can be
invoked. Relevant paragraphs of the said judgment reads as under:
“ 5. The power under Order 38 Rule 5 CPC is a drastic
and extraordinary power. Such power should not be
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SINGH
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exercised mechanically or merely for the asking. It
should be used sparingly and strictly in accordance
with the Rule. The purpose of Order 38 Rule 5 is not to
convert an unsecured debt into a secured debt. Any
attempt by a plaintiff to utilise the provisions of Order
38 Rule 5 as a leverage for coercing the defendant to
settle the suit claim should be discouraged. Instances
are not wanting where bloated and doubtful claims are
realised by unscrupulous plaintiffs by obtaining orders
of attachment before judgment and forcing the
defendants for out-of-court settlements under threat of
attachment.
6. A defendant is not debarred from dealing with his
property merely because a suit is filed or about to be
filed against him. Shifting of business from one
premises to another premises or removal of machinery
to another premises by itself is not a ground for
granting attachment before judgment. A plaintiff
should show, prima facie, that his claim is bona fide
and valid and also satisfy the court that the defendant
is about to remove or dispose of the whole or part of
his property, with the intention of obstructing or
delaying the execution of any decree that may be
passed against him, before power is exercised under
Order 38 Rule 5 CPC. Courts should also keep in view
the principles relating to grant of attachment before
judgment. (See Premraj Mundra v. Md. Manech
Gazi [AIR 1951 Cal 156] for a clear summary of the
principles.”

15. Learned Senior Counsel appearing on behalf of the Defendant
thereafter has taken this Court to a judgment of Premraj Mundra v. Md.
Maneck Gazi & Ors., (1951) SCC OnLine Cal 20 , a judgment relied upon
by the Apex Court, wherein the Single Bench of the Calcutta High Court has
laid down the guiding principles before exercising powers under Order
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SINGH
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XXXVIII Rule 5 which reads as under:-
“ 18. From a perusal of all the authorities, I think that
the following guiding principles can be deduced:
(1) That an order under O. 38, Rr. 5 & 6, can only be
issued, if circumstances exist as are stated therein.
(2) Whether such circumstances exist is a question of
fact that must be proved to the satisfaction of the
Court.
(3) That the Court would not be justified in issuing an
order for attachment before judgment, or for security,
merely because it thinks that no harm would be done
thereby or that the defts. would not be prejudiced.
(4) That the affidavits in support of the contentions of
the applicant, must not be vague, & must be properly
verified. Where it is affirmed true to knowledge or
information or belief, it must be stated as to which
portion is true to knowledge, the source of information
should be disclosed, & the grounds for belief should be
stated.
(5) That a mere allegation that the deft, was selling off
& his properties is not sufficient. Particulars must be
stated.
(6) There is no rule that transactions before suit cannot
be taken into consideration, but the object of
attachment before judgment must be to prevent future
transfer or alienation.
(7) Where only a small portion of the property
belonging to the deft, is being disposed of, no inference
can be drawn in the absence of other circumstances
that the alienation is necessarily to defraud or delay
the pltf's. claim.
(8) That the mere fact of transfer is not enough, since
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SINGH
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nobody can be prevented from dealing with his
properties simply of cause a suit has been filed: There
must be additional circumstances to show that the
transfer is with an intention to delay or defeat the
pltf.'s claim. It is open to the Court to look to the
conduct of the parties immediately before suit, & to
examine the surrounding circumstances, to draw an
inference as to whether the deft. is about to dispose of
the property, & if so, with what intention. The Court is
entitled to consider the nature of the claim & the
defence put forward.
(9) The fact that the deft, is in insolvent circumstances
or in acute financial embarrassment, is a relevant
circumstance, but not by itself Sufficient.
(10) That in the case of running businesses, the
strictest caution is necessary & the mere fact that a
business has been closed, or that its turnover has
diminished, is not enough.
(11) Where however the deft, starts disposing of his
properties one by one, immediately upon getting a
notice of the pltf.'s claim, &/or where he had
transferred the major portion of his properties shortly
prior to the institution of the suit & was in an
embarrassed financial condition, these were grounds
from which an inference could be legitimately drawn
that the object of the deft. was to delay and defeat the
pltfs'. claim.
(12) Mere removal of properties outside jurisdiction, is
not enough, but where the deft, with notice of the pltfs'.
claim, suddenly begins removal of his properties
outside the jurisdiction of the appropriate Court, &
without any other satisfactory reason, an adverse
inference may be drawn against the deft. Where the
removal is to a foreign country, the inference is greatly
strengthened.
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(13) The deft, in a suit is under no liability to take any
special care in administering his affairs, simply
because, there is a claim pending against him. Mere
negect, or suffering execution by other creditors, is not
a sufficient reason for an order under O. 38 of the
Code.
(14) The sale of properties at a gross undervalue, or
benami transfers, are always good indications of an
intention to defeat the pltfs. claim. The Court must
however be very cautious about the evidence on these
points & not rely on vague allegations.”
16. Learned Senior Counsel appearing on behalf of the Defendant,
therefore, states that the Order dated 09.04.2019 passed by this Court and
modified by the Order dated 05.07.2019 has been passed without any
jurisdiction wherein this Court has invoked the power of Order XXXIX Rule
1 and 2 in an immovable property which is not a subject matter of the
present suit and has also not applied its mind to acknowledge various factors
to be kept in mind while exercising the power under Order XXXVIII Rule 5.
Hence, I.A. 4623/2019 which has been filed by the Plaintiff under Order
XXXIX Rule 1 and 2 ought to be dismissed and I.A. 8900/2019 and I.A.
11461/2019 should be allowed/disposed of accordingly.
17. Per contra , learned Senior Counsel appearing on behalf of the
Plaintiff strenuously contends that the power of the Court while dealing with
an application under Order XXXIX Rule 1 and 2, is inherent in its nature
and Orders can be passed to meet the ends of justice. He states that the
Order dated 05.07.2019 shows that the learned Counsel for the Defendant
has himself offered a sum of Rs. 5,00,00,000/-. He states that the conduct of
the Defendant is such that he kept on selling the flats in the Project without
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adhering to the commitment given by it to the Court and the requisite
amount came to be deposited only on 15.02.2024 and 10.05.2024 which is
about 4 years after the Order was passed and the Defendant, therefore, does
not deserve any indulgence of this Court for modification of the Order.
18. The learned Senior Counsel for the Plaintiff has relied upon several
orders of this Court and various other High Courts, wherein Orders
regarding immovable properties have been passed even in recovery suits by
exercising powers under Order XXXIX Rules 1 & 2 of CPC.

19. Heard learned Counsels for the Parties and perused the material on
record.
20. The present suit is one for recovery of money. Material on record
indicates that the money is to be recovered from the sale of flats. In order to
balance the equities, this Court on 09.04.2019 passed the following Orders.
Relevant paragraph of the said Order reads as under:
“3. Considering the nature of the disputes between the
parties, since the amount claimed by the Contractor is
quite substantial and the claim of the Company is
primarily for liquidated damages, which are to be
established at trial, any transfer of flats made by the
Company in Amatra Homes project in Tower Nos. 'A
and J' shall be subject to further orders of this court.
The Company is free to deal with those flats by
informing the proposed buyers of the order of this
Court. Let reply to the injunction application be filed
within two weeks and rejonder, if any, be filed within
one week thereafter.”
21. When the matter came up for hearing on 05.07.2019, this Court while
dealing with the application being I.A. 4623/2019 filed by the Plaintiff under
Order XXXIX Rule 1 and 2 and an application being I.A. 8900/2019 filed
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by the Defendant under Order XXXIX Rule 4, noted the submission of
learned Counsel for the Defendant that the Defendant is volunteering to pay
a sum of Rs. 5,00,00,000/- in order to secure the decree. Though the Plaintiff
in its pleadings has stated that the Plaintiff has not approached under Order
XXXVIII Rule 5, the offer made by the learned Counsel for the Defendant is
to secure the amount which is the principle under Order XXXVIII Rule 5.
Relevant paragraph of the said Order is reproduced and reads as under:
“4. It is submitted by ld. counsel for the Contractor
that the settlement offer made by his client was for
the payment of Rs.5 crores. Mr. Uppal, ld. Senior
Counsel submits that his client is willing to deposit
the sale consideration of 6 flats, which would be more
than Rs.5 crores, in order to ensure that the entire
project is not stalled.

5. Accordingly, it is directed that the sale consideration
of the first 6 flats or any other number of flats
amounting to a total sum of Rs.5 crores, which are sold
by the Company, shall be deposited with the Registrar
General of this Court. Subject to the said deposit of Rs.
5 crores, the Company is free to deal with the
remaining flats in the said project. The above deposit
shall be without prejudice to the rights and contentions
of the parties till the time of completion of the joint
measurement. The said deposit shall also be without
prejudice to the fact that it is the case of the company
that upon joint measurement being conducted, it would
be evident that the Contractor, in fact, owes money to
the Company.”
(emphasis supplied)
22. Admittedly, the said amount which has been offered by the Defendant
came to be deposited only in May 2024 which is 4 years after the Order was
passed. No valid reason is forthcoming as to why the amount was not
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deposited. The fact that an application has been filed for modification of the
Order dated 05.07.2019 alone cannot be a reason for not complying with the
Order.
23. The only inference that can be drawn by this Court after reading the
applicaiton is that the Defendant was in need of funds for which purpose the
flats were sold and the money has been utilized by the Defendant without
complying with the Order of the Court. In the opinion of this Court, the
conditions under Order XXXVIII Rule 5, therefore, stands automatically
fulfilled. There is nothing on record to show that other than this asset there is
any other asset available to the Defendant from a where a decree even if
passed against the Defendant, can be satisfied. It seems that the only asset
from where the Defendant can get liquid cash is only from the sale of the
flats in this Project and if these flats are sold without the money being
secured, the Plaintiff might only end up having a paper decree. The
statement of the Plaintiff that the Plaintiff has sought for directions under
Order XXXIX Rules 1 and 2 of CPC and not under Order XXXVIII Rule 5
of CPC is irrelevant and immaterial as the Court has the power to exercise
powers under Order XXXVIII Rule 5 of CPC even if prayers are made
under Order XXXIX Rules 1 and 2.
24. The question as to whether the Order dated 09.04.2019 passed by this
Court and as modified by the Order dated 05.07.2019 could have been
passed under Order XXXIX Rule 1 and 2 in a suit for recovery of money,
therefore, pales into insignificance because of the conduct of the Defendant.
The conduct of the Defendant does not inspire any confidence in this Court
for modification of the said Order or return of the money.
25. In the opinion of this Court, the Order dated 09.04.2019 passed by
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SINGH
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this Court and as modified by the Order dated 05.07.2019 does not call for
any modification and neither it is required to be vacated. The amount which
is sought for in the plaint is Rs. 10,32,54,740/- and an amount of Rs.
5,00,00,000/- stands deposited in this Court.
26. An assertion made by learned Counsel for the Defendant to
demonstrate its solvency is that its gross income stands at Rs. 24,00,00,000/,
its current income is at Rs. 60,00,00,000/- and its net profit is Rs.
9,00,00,000/-. However, in the absence of any verifiable material, this
assertion cannot be accepted. If this were the position, then there was no
reason for the Defendant to not comply with its own undertaking given to
this Court. It is settled law that violation of an undertaking given to this
Court amounts to contempt. The contention of the learned Senior Counsel
for the Defendant that the inventory of the builder is not a reflection of its
financial condition cannot be accepted in the absence of any material to
show the actual inventory of the defendant reflecting alternative projects and
other means for funds generation.
27. In view of the above, the present applications are disposed of.
CS(COMM) 166/2019 & CCP(O) 74/2019, I.A. 10609/2020, I.A.
19721/2023, I.A. 33382/2024
List on 11.08.2026.


SUBRAMONIUM PRASAD, J
MARCH 11, 2026
Prateek
Signature Not Verified
Signed By:RAHUL
SINGH
Signing Date:17.03.2026
10:52:41
CS(COMM) 166/2019 Page 17 of 17