Sng Developers Limited vs Lord Vardhman Buildtech Private Limited

$~2
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 22.04.2026
+ FAO(OS) (COMM) 58/2026 CM APPL. 16297/2026
SNG DEVELOPERS LIMITED .....Appellant
Through: Mr. Manish Vashisht, Sr. Advocate
and Mr. Akshay Makhija Sr.
Advocate with Mr. Prateek Gupta,
Mr. Pulkit Agarwal, Ms. Vishakha
Kaushik, Mr. Vedansh Vashisht, Mr.
Deepak Jonia, Mr. Garvil Singh, Ms.
Chitrakshi Sharma and Mr. NK
Verma, Advocates
versus
LORD VARDHMAN BUILDTECH
PRIVATE LIMITED
.....Respondent
Through: Mr. Sanjeev Kumar Dubey, Senior
Advocate with Mr. E. Krishna Dass,
Mr. Harsh Basoya, Ms. Tanya Verma
and Mr. Shahrukh, Advocates
CORAM:
HON'BLE MR. JUSTICE V. KAMESWAR RAO
HON'BLE MS. JUSTICE MANMEET PRITAM SINGH ARORA
MANMEET PRITAM SINGH ARORA, J. (ORAL)
Signature Not Verified
FAO(OS) (COMM) 58/2026 Page 1 of 21
Signed By:MAHIMA
SHARMA
Signing Date:02.05.2026
13:29

1. The present appeal has been filed under Section 37(1)(c) of the
Arbitration and Conciliation Act, 1966 (‘Act of 1996’) read with Section 13
of the Commercial Courts Act, 2015 with the following prayers:
“a) Set-aside the impugned judgement dated 11.02.2026 passed by
the Ld. Single Judge in O.M.P(COMM) 34812024 titled as 'SNG
Developers Limited vs. Lord Vardhman Buildtech Private
Limited' and also Set-aside the Arbitral Award dated 22.04.2024
passed by the Ld. Sole Arbitrator in the arbitration between the
parties.
b) Cost of the proceedings be awarded in favour of the appellant
and against the respondent.
c) Pass such other order / orders as this Hon'ble Court deems fit
and Proper.”
2. The relevant facts for deciding the present appeal are as follows:
2.1. The appellant is the owner of land bearing No. S-S001, admeasuring
approximately 5 acres, situated at P-8, Greater Noida, District Gautam Budh
Nagar, Uttar Pradesh [‘subject plot’]. The dispute arises out of an
Agreement to Sell [‘ATS’] dated 04.04.2011, whereby the appellant agreed
to sell an area admeasuring 2.929 acres out of the said land i.e., part of the
subject plot, to the respondent for a sale consideration of Rs. 7.50 crores.
2.2. It is contended by the appellant that under the said ATS, the
responsibility of obtaining the requisite statutory permissions, including
bifurcation/approval, was upon the respondent, while the appellant was only
to facilitate the same as owner.
2.3. It is stated that in terms of Clause 12 of the ATS, the date fixed for
performance was the date of payment which in present case was 20.05.2011
and, even if deferment were assumed, the outer limit for performance could
Signature Not Verified
FAO(OS) (COMM) 58/2026 Page 2 of 21
Signed By:MAHIMA
SHARMA
Signing Date:02.05.2026
13:29

not extend beyond 19.09.2011.
2.4. It is stated that since the respondent failed to secure the requisite
approvals from the Greater Noida Industrial Development Authority
[‘statutory authority’ or ‘GNIDA’], the appellant, by email dated
1
13.05.2013 , informed the respondent that the agreement had become
incapable of performance and had become null and void, and was
accordingly called upon the respondent to take refund of the amount.
However, for a considerable period, the respondent neither sought specific
performance of the agreement nor demanded refund of the amount.
2.5. It is stated that thereafter, the respondent belatedly invoked arbitration
only on 30.07.2018 and had only sought relief of execution of sale deed.
Pursuant thereto, a sole arbitrator was appointed by this Court on
04.04.2019.
2
2.6. It is stated that in the Statement of Claim dated 21.05.2019 , the
respondent, for the first time, sought an alternative relief of refund of Rs.
7.50 crores.
2.7. It is stated that the appellant, in its Statement of Defence dated
3
08.07.2019 , specifically raised the plea that the claims pertaining to specific
performance of ATS and claim for refund of amount were barred by
limitation. It is stated that during the arbitral proceedings, the respondent
relied upon the ATS, whereupon the appellant raised objections of
1
Annexure A-4 filed along with the appeal
2
Annexure A-7 (colly) filed along with the appeal
3
Annexure A-8 (colly) filed along with the appeal
Signature Not Verified
FAO(OS) (COMM) 58/2026 Page 3 of 21
Signed By:MAHIMA
SHARMA
Signing Date:02.05.2026
13:29

admissibility of the ATS, inter alia, on the grounds of non-payment of stamp
duty and non-registration of ATS.
2.8. It is stated that the learned Arbitrator vide interim award dated
01.11.2021 rejected the objections raised by the appellant pertaining to the
ATS being not appropriately stamped under Indian Stamp Act, 1899 and
deferred the objection of effect of non-registration of the ATS for
consideration at the stage of final hearing. The appellant assailed the said
interim award; however, the same was ultimately upheld and attained
finality.
2.9. It is stated that at the stage of final arguments, the respondent gave up
the relief of specific performance of ATS and restricted its claim to the
alternative relief for refund of amount of 7.50 crore.
2.10. It is stated that the learned Sole Arbitrator, by award dated
22.04.2024, has directed the appellant to refund the sum of Rs. 7.50 crores
received as sale consideration along with pendente lite and future interest at
the rate of 10% per annum till the date of actual payment.
2.11. It is stated that the appellant assailed the said award by filing the
OMP (COMM) 348/2024 under Section 34 of the Act of 1996 on the ground
that the claim of refund is barred by limitation; however, the learned Single
Judge, by judgment dated 11.02.2026, dismissed the objection petition and,
and simultaneously in execution petition being OMP (ENF)(COMM)
223/2024 filed by the respondent, directed the appellant to deposit the entire
awarded amount along with up-to-date interest with the registry.
3. Mr. Manish Vashisht, learned senior counsel on behalf of the
Signature Not Verified
FAO(OS) (COMM) 58/2026 Page 4 of 21
Signed By:MAHIMA
SHARMA
Signing Date:02.05.2026
13:29

appellant states that the respondent’s claim was ex-facie barred by limitation
and that limitation period has been wrongly opined to be extended on the
basis of unsigned and undated balance sheets, which finding is contrary to
Section 18 of the Limitation Act, 1963.
3.1. He states that the appellant vide email dated 13.05.2013 called upon
the respondent to refund the money, so even if the limitation period is to be
considered from the date of email, the period of limitation ends on
13.05.2016, however the respondent only invoked the arbitration on
30.07.2018 and raised the claim of refund on 21.05.2019, therefore the claim
of refund is barred by the limitation.
3.2. He states that the only signed balance sheet relied upon pertains to FY
2016-17. The said balance sheet was signed on 30.09.2017, i.e. after expiry
of the limitation period, and therefore could not revive a time-barred claim.
He further states that there was no valid acknowledgment of any subsisting
liability towards the respondent during 2013 to 2016.
3.3. He states that no charge was ever created on the subject plot against
the appellant to the extent of its interest, for an amount paid by the
respondent. He states that the respondent, having committed breach of its
obligations under the ATS is not entitled to claim any refund or claim a
charge under Section 55(6)(b) of the Transfer of Property Act, 1882.
3.4. He states that the liability of Rs.7.50 crores could not have been
proved de-hors the unregistered ATS and therefore, that the impugned
award, as upheld by the learned Single Judge, suffers from patent illegality
and is contrary to the public policy.
Signature Not Verified
FAO(OS) (COMM) 58/2026 Page 5 of 21
Signed By:MAHIMA
SHARMA
Signing Date:02.05.2026
13:29

Court’s analysis
4. We have heard the counsels for the parties and perused the record.
5. The subject matter of the present appeal is a challenge to the award
directing the respondent to refund the sum of Rs. 7.50 crores admittedly
received by the appellant as sale consideration in pursuance to the ATS
dated 04.04.2011 for part transfer of the subject plot.
5.1. The ATS admittedly could not be performed as the statutory authority
declined to grant the mandatory permission for partition of the subject plot.
The appellant itself acknowledging the futility of the ATS vide e-mail dated
13.05.2013 and fairly offered to refund the said amount to the respondent.
The respondent however, did not act on the offer of refund, in the year 2013.
5.2. The respondent initiated the arbitration proceedings on 30.07.2018
seeking specific performance of the ATS and raised an alternative relief for
refund of Rs. 7.50 crores in its Statement of Claim dated 21.05.2019. At the
stage of final arguments, the respondent gave up the claim for specific
performance of the ATS and limited its claim to the alternate relief for
refund of Rs. 7.50 crores along with interest.
5.3. However, the appellant opposed the claim of refund of Rs. 7.50 crores
on the ground of limitation by contending that since it had offered to refund
the amount on 13.05.2013, the claim for refund in arbitration proceedings
ought to have been initiated within three (3) years from the said date and are
not maintainable thereafter.
5.4. The appellant also raised an issue with respect to admissibility of the
claim of refund on the ground that since, the amount was paid in pursuance
Signature Not Verified
FAO(OS) (COMM) 58/2026 Page 6 of 21
Signed By:MAHIMA
SHARMA
Signing Date:02.05.2026
13:29

of an ATS, which has to be compulsorily registered as per the amendment to
Section 17 (2)(v) of the Registration Act, 1908 (‘Act of 1908’), as applicable
for the State of Uttar Pradesh, and since the ATS was unregistered, the said
ATS cannot be read in evidence as per proviso to Section 49 of the Act of
1908, as amended for the State of Uttar Pradesh, in the arbitral proceedings
for establishing the claim of refund.
6. By the impugned award, the learned Arbitrator has directed the
appellant to refund the sum of Rs. 7.50 crores to the respondent along with
pendente lite and future interest at the rate of 10% p.a. till the date of actual
payment.
7. The impugned award is premised on the finding that the receipt of
sum of Rs. 7.50 crores by the appellant from the respondent is admitted in
the appellant’s pleadings in the arbitration proceedings and the offer of the
appellant to refund the said amount is documented in the appellant’s e-mail
dated 13.05.2013. Learned Arbitrator held that therefore, the liability of the
appellant is evinced from the arbitral record without any reference to the
ATS. Learned Arbitrator also accepted the submission of the respondent that
the unregistered ATS can be looked into for the collateral purpose of
ascertaining the proof of payment and receipt of sum of Rs. 7.50 crores. The
appellant’s plea that refund of claim of refund of Rs. 7.50 crores is barred by
limitation was also rejected in view of the acknowledgments recorded in the
balance sheets of the appellant for the financial years 2013-14 to 2016-17.
Learned Arbitrator held that the acknowledgements in the balance sheets
had the effect of extending the period of limitation and therefore, the claim
Signature Not Verified
FAO(OS) (COMM) 58/2026 Page 7 of 21
Signed By:MAHIMA
SHARMA
Signing Date:02.05.2026
13:29

of refund made in Statement of Claim dated 21.05.2019 was within
limitation.
8. The relevant findings of the learned Arbitrator on the issue of the
admitted liability of payment of Rs. 7.50 crores and the findings on
limitation are as under:
“ Discussion & finding regarding refund
18. The plea of the Respondent is that on merits the Claimant cannot
sustain a claim for refund of the amount of Rs. 7.50 crores. The
foundation of this argument is that since the Agreement, which was
compulsorily registrable, cannot, in view of the U.P. amendment to the
proviso to section 49 of the Registration Act, 1908, cannot be received
as evidence of a contract of specific performance and because the sale
consideration is part and parcel of the Agreement to sell, the Agreement
cannot be received as evidence of the sum of Rs. 7.50 crore having
been paid by the Claimant to the Respondent and the Respondent
having received the same. Hence, according to the Respondent, the
Claimant cannot rely upon the Agreement for claiming the alternative
relief of refund of the said sum of Rs. 7.50 crores.
19. This plea of the Respondent is untenable. One answer has been
provided by the Claimant by stating that it is making the claim de hors
the Agreement and solely based on the admissions of the Respondent in
the pleadings and the documents filed by the Respondent. These
admissions have already been referred to and set out above. For the
sake of convenience, the same are reproduced below:
In paragraph 3-5 of the SOD (Reply on Merits) it is stated as
under:
" ... However, the said agreement to sell dated 05.04.2010 was
also superseded by the Agreement to sell dated 04.04.2011
(Agreement in question) wherein it was agreed to the sell the
2.929 acres out of the 5 acres of the land to the claimant on
the consideration of Rupees 7.50 Crores."
Signature Not Verified
FAO(OS) (COMM) 58/2026 Page 8 of 21
Signed By:MAHIMA
SHARMA
Signing Date:02.05.2026
13:29

In paragraph E of Preliminary Objections in the SOD it is stated as
under:
" ... The Claimant made the payment of the sale consideration
on 20.05.2011. "
In the Respondent's email dated 13.05.2013 (Ex. RW-1/4), the
Respondent's liability to refund the said amount is also admitted as
under:
"We are already in touch on this subject towards refund of the
amount and as such, we request you to conclude the matter at
the earliest possible."
20. In view of these admissions no further proof is required to establish
that the Claimant paid a sum of Rs. 7.50 on 20.05.2011 and that the
Respondent was to refund the same to the Claimant. As held in
Nagindas Ramdas (supra), a decision relied upon in Sangramsinh
(supra), " admissions if true and clear, are by far the best proof of the
facts admitted" and further, "admissions in pleadings " (which is the
case here) " are fully binding on the party that makes them and
constitute a waiver of proof” and more importantly "they by themselves
can be made the foundation of the rights of the parties ." The admission
of receipt of the sum of Rs 7.50 crore and the admission of the liability
to refund the same in the email dated 13.05.2013 can by themselves be
made the foundation of the claim of refund by the Claimant. Hence, the
Claimant without attempting to seek refund on the basis of the
Agreement as evidence, is entitled to claim refund on the basis of the
aforesaid admissions.
21. Apart from this, the Claimant has given up its prayer for specific
performance. Hence, the U.P. amendment to the proviso to section 49
of the Registration Act, 1908, does not in any way come in the way of
the Claimant seeking refund of the amount of Rs. 7.50 crores. The
Proviso as applicable to U.P. still provides that an unregistered
document affecting immovable property which is required to be
registered by the Registration Act or the Transfer of Property Act, 1882
(4 of 1882), may be received as evidence of any 'collateral transaction'
not required to be effected by registered instrument.
Signature Not Verified
FAO(OS) (COMM) 58/2026 Page 9 of 21
Signed By:MAHIMA
SHARMA
Signing Date:02.05.2026
13:29

22. In other words, as noted in Korukonda (supra), the prohibition is to
prevent a person from establishing, by the use of the document in
evidence a "transaction, affecting immovable property". The Claim for
refund does not affect immovable property, the claim to specific
performance of the Agreement to sell dated 04.04.2011 having been
given up. The giving of money and the seeking of its return is not a
transaction which the law requires to be registered. It is a transaction,
paraphrasing the language used in NIT Trust (supra) , "divisible from
the transaction" to effect which the law requires registration".
Considered in this light also, the Claimant is entitled to claim refund
from the Respondent of the said amount of Rs. 7.50 crore paid by it to
the Respondent.
… …
… …
Discussion & Finding on Limitation
27. After considering the arguments made on behalf of the parties, the
Tribunal is of the view that the Claim for refund of Rs. 7.50 crores is
not bar by limitation. First of all, it is an accepted position that the
Respondent by its email dated 13.05.2013 had offered to refund the
said amount of Rs. 7.50 crores. So, the starting point of limitation, even
as per the Respondent would be 13.05.2013.
28. Secondly, the Claimant has been able to establish that as per the
extracts from the balance sheets/ financial statements of the Respondent
the amount of Rs 7.50 crores has been admitted as an "ADVANCE
AGAINST SALE OF SCHOOL PLOT". This appears in the statements
for the financial year 2013-14 right up to the financial year 2016-17.
Clearly, the acknowledgments were made prior to the expiration of the
original period of limitation that within three years w.e.f. 14.05.2013.
These documents filed by the Claimant as Additional List of
Documents on 30.07.2019 have been 'denied' by the Respondent in its
affidavit of admission/denial of document for the reason - "As the same
has no relevance in the facts and circumstances of the case". It is
pertinent to point out that in the order dated 09.05.2019 the Tribunal
had made clear in paragraph 7.8 thereof that in the Affidavits of
Admission/Denial, the parties were to list and describe such of the
documents the existence / genuineness of which are in dispute, setting
Signature Not Verified
FAO(OS) (COMM) 58/2026 Page 10 of 21
Signed By:MAHIMA
SHARMA
Signing Date:02.05.2026
13:29

out the reasons therefor in brief. It was also made clear that in the
absence of the same, the document shall be available for being read in
evidence, dispensing with the need of formal proof thereof. However,
the question of evidentiary value to be attached to the document was to
remain open for consideration at the final hearing. It is therefore clear
that Respondent has made an evasive denial on the purported reason of
relevance. The denial was to be with regard to the existence /
genuineness of the documents. There is no such denial. Hence, the
existence / genuineness of said extracts from the balance sheets/
financial statements have not been disputed by the Respondent and will
be deemed to be in existence and genuine. The Respondent cannot be
permitted to detract from this position. For the same reason the
Respondent cannot now take the stand the papers alleged and purported
to be balance sheets are mere incomplete papers and sheets and not
balance sheets. The Respondent has not produced any contrary
evidence to establish that its financial statements/ balance sheets were
otherwise.
29. The law is well settled, as demonstrated by the Claimant with
reference to the decisions in Larsen & Tubro (supra), N.S. Atwal
(supra) and Asset Reconstruction (supra), that an entry in a balance
sheet/financial statement would amount to an acknowledgement of
liability under section 18 of the Limitation Act, 1963. The amount of
Rs 7.50 crores has been clearly reflected in the said statements as an
"ADVANCE AGAINST SALE OF SCHOOL PLOT". This amounts to
an acknowledgement of liability under section 18 of the Limitation Act,
1963. This has been done consistently in the Statements of financial
years 2013-14 to 2016-17 and not just in the financial statement for the
financial year 2016-17 (as was wrongly sought to suggested by the
Respondent). Each such acknowledgment was made within the
prescribed period of limitation and resulted in a fresh period of
limitation computed from the time when the acknowledgment was
made. It is not the case of the Respondent that the financial statements
were not prepared and signed as per law. It is also not the case of the
Respondent that the Respondent did not file the Annual Returns as is
the requirement in law. The Respondent has also not produced any
evidence to controvert the position that the expression ADVANCE
AGAINST SALE OF SCHOOL PLOT was in respect of some other
transaction with someone else. The suggestion to the contrary by the
Signature Not Verified
FAO(OS) (COMM) 58/2026 Page 11 of 21
Signed By:MAHIMA
SHARMA
Signing Date:02.05.2026
13:29

Respondent is bereft of any evidence. When the Claimant categorically
submitted that the sum of Rs 7.50 crores mentioned in the financial
statements as "advance against sale of school plot" specifically related
to the amount of Rs. 7.50 crores advanced to the Respondent and
acknowledged by the Respondent in, inter alia, the email dated
13.05.2013, as a constituent of its jural relationship with the
Respondent, the burden was on the Respondent to show that the said
reference in the financial statements was with reference to some other
transaction with some other entity. The Respondent has not produced
any such evidence or even any pleading to this effect.
30. For all these reasons, the Respondent's plea of the bar of limitation
in respect of the Claimant's claim for refund of the amount of Rs. 7.50
crores is not tenable. The claim is within time.
31. Hence, Issue 1, in respect of the alternative claim of refund of
Rs. 7.50 crores is decided against the Respondent by holding that
said claim is within time and is not barred by limitation. Issue 7,
for the reasons already indicated above, is decided by holding that
the Claimant is entitled to the refund of the sum of Rs.7.5 crores
from the Respondent which the Respondent shall refund to the
Claimant.”
9. The appellant filed Section 34 petition being OMP (COMM)
348/2024 challenging the award on identical pleas, as raised in the
arbitration. The learned Single Judge by its impugned judgment dated
11.02.2026, after examining the evidence on record and the findings of the
learned Arbitrator, opined that the reliance placed by the learned Arbitrator
on the balance sheets for the years 2013-14 to 2016-17 for concluding that
appellant had acknowledged its liability of Rs. 7.50 crores and limitation
stood validly extended, was logical and a legally sustainable inference.
Learned Single Judge also concluded that though the unregistered ATS
cannot form basis for the relief of specific performance, however, the same
Signature Not Verified
FAO(OS) (COMM) 58/2026 Page 12 of 21
Signed By:MAHIMA
SHARMA
Signing Date:02.05.2026
13:29

can be looked into for a collateral purpose and to this extent the learned
Arbitrator was correct in relying upon the ATS for determining the
underlying transaction between the parties, which form the basis of the
payment of Rs. 7.50 crores. Learned Single Judge also held that in view of
Section 19 of the Act of 1996, the procedural discretion vested in the
Arbitral Tribunal for determining the admissibility, relevance, materiality
and weight of the evidence and the same would not be governed by the strict
provisions of the Code of Civil Procedure, 1908 or the Evidence Act, 1872.
In view of the aforesaid findings, Section 34 petition was dismissed and the
present appeal has been filed assailing the judgment dated 11.02.2026.
10. In the present proceedings, before us, during the arguments, the plea
of limitation was primarily pressed. Mr. Manish Vashisht, learned senior
counsel for the appellant stated that the ATS was dated 04.04.2011, the
amount of Rs. 7.50 crores was paid on 20.05.2011, the statutory approvals
for partition of the subject plot and the execution of the sale deed had to be
completed by 20.09.2011. He states that the statutory approvals were not
granted by the statutory authority and thereafter, the appellant by its e-mail
dated 13.05.2013 had communicated to the respondent that in view of the
non-grant of the statutory approvals the ATS has become null and void and
called upon the respondent to accept the return of Rs. 7.50 crores. He states
that the period of limitation has thus, to be reckoned from 13.05.2013 and it
expired after three (3) years, i.e., on 13.05.2016 and therefore, the Statement
of Claim filed on 21.05.2019 seeking refund, for the first time was barred by
limitation.
Signature Not Verified
FAO(OS) (COMM) 58/2026 Page 13 of 21
Signed By:MAHIMA
SHARMA
Signing Date:02.05.2026
13:29

11. We are unable to accept the submission of the appellant. In the facts
of this case, it is admitted that the sum of Rs. 7.50 crores was paid by the
respondent to the appellant as sale consideration for purchase of the part of
the subject plot forming subject matter of the ATS. It is the stand of the
appellant that the ATS could not be performed due to the non-grant of
approvals by the statutory authority. The appellant asserts that due to the
non-grant of the statutory approvals agreement became null and void and it
of its own volition offered to refund the sum vide e-mail dated 30.05.2013.
These undisputed facts show that as per the appellant’s own case, due to the
non-grant of the statutory approval, the ATS became impossible to perform
as contemplated under Section 56 of the Indian Contract Act, 1872.
12. At the hearing dated 17.03.2026 we had put to the appellant, the issue
of applicability of Section 55(6)(b) of the Transfer of Property Act, 1882
(‘TPA’) to the claim of the respondent for refund of the sale consideration as
a statutory charge on the subject plot, and sought appellant’s response. The
appellant had sought an adjournment to examine the said issue and address
arguments today on 22.04.2026. During arguments, learned senior counsel
for the appellant contended that it is the stand of the appellant that
respondent had committed a breach of the ATS by not obtaining the
statutory approvals and therefore, Section 55(6)(b) of the TPA would not be
attracted, in the facts of this case.
13. We are unable to accept this submission of the appellant as it is
contrary to its pleadings in the appeal and the Statement of Defence where it
has categorically pleaded that the agreement became null and void due to the
Signature Not Verified
FAO(OS) (COMM) 58/2026 Page 14 of 21
Signed By:MAHIMA
SHARMA
Signing Date:02.05.2026
13:29

non-grant of the statutory approvals by the statutory authority. It was not the
contention of the appellant that the statutory approvals were wrongly denied
by the statutory authority and could have been obtained by the respondent
with exercise of due diligence. In fact, the appellant accepts that decision of
non-grant of permission for partition of the subject plot by the statutory
authorities is legal and valid, and has relied upon the same in the arbitral
proceedings in its favour.
14. The admissions/pleadings of the appellant in this appeal with respect
to the agreement having become null and void due to the non-grant of
statutory permission by the statutory body are as under:
“f. The respondent tried to take approval from the Greater Noida
Authority for partition/bifurcation of the land in question, however, the
proposal of the respondent was rejected by the Greater Noida
Authority. Since, the respondent was unsuccessful in getting the
approvals for partition / bifurcation of the land in question; therefore,
the intention of the respondent become dishonest, and the respondent
started shifting onus to get the approvals on the respondent.
g. Therefore, the appellant vide its email dated 13.05.2013 informed the
respondent that it was the respondent's obligation to take approvals
from the Greater Noida Authority in a time bound manner and
eventually, the Greater Noida Authority rejected the proposal of the
respondent, therefore, essence of the agreement is finished and the
agreement is null and void. Vide the said e-mail communication dated
13.05.2013 the appellant refusing to perform the agreement
unequivocally notified the respondent that the agreement cannot be
performed as essence of the agreement is extinguished and the same is
null and void. It is further notified that since agreement is not being
performed, to take the refund. This was notice of refusal by the
appellant. A true copy of the email dated 13.05 .2013 issued by the
appellant to the respondent is annexed herewith and marked as
Annexure A-4.
Signature Not Verified
FAO(OS) (COMM) 58/2026 Page 15 of 21
Signed By:MAHIMA
SHARMA
Signing Date:02.05.2026
13:29

h. After receipt of email dated 13.05.2013, the respondent did not
demand either performance or refund.”
Similar pleadings were raised by the appellant in the Statement of
4
Defence .
15. The appellant’s pleadings and the e-mail dated 13.05.2013 show that
due to the non-grant of the statutory commission the appellant was unwilling
to execute the sale deed even though it had received the entire sale
consideration of Rs. 7.50 crores from the respondent in the year 2011 itself.
In the facts of this case, the respondent herein did not decline to perform the
ATS and accept the sale deed of the property. Therefore, the submission of
the appellant that respondent was in breach of the ATS is contrary to the
pleadings and hereby rejected. In these facts, in the considered opinion of
this Court, as the ATS had become incapable of performance, the respondent
(buyer) had a statutory charge as per Section 55(6)(b) of the TPA to receive
the refund of Rs. 7.50 crores, along with interest, paid as sale consideration
and to the extent of this amount has a ‘charge’ over the subject immovable
property. Section 55(6)(b) of TPA reads as under:
“ 55. Rights and liabilities of buyer and seller.— In the absence of a
contract to the contrary, the buyer and the seller of immoveable
property respectively are subject to the liabilities, and have the rights,
mentioned in the rules next following, or such of them as are applicable
to the property sold:
… …
(6) The buyer is entitled—
4
Paragraphs W, X, Y, Z at pages 225 of the appeal paper book
Signature Not Verified
FAO(OS) (COMM) 58/2026 Page 16 of 21
Signed By:MAHIMA
SHARMA
Signing Date:02.05.2026
13:29

(a) … …
(b) unless he has improperly declined to accept delivery of the property,
to a charge on the property, as against the seller and all persons
claiming under him to the extent of the seller's interest in the property,
for the amount of any purchase-money properly paid by the buyer in
anticipation of the delivery and for interest on such amount; and, when
he properly declines to accept the delivery, also for the earnest (if any)
and for the costs (if any) awarded to him of a suit to compel specific
performance of the contract or to obtain a decree for its rescission.
An omission to make such disclosures as are mentioned in this
section, paragraph (l), clause (a), and paragraph (5), clause (a), is
fraudulent.”
(Emphasis supplied)
16. A suit/claim for enforcement of payment of money secured by a
‘charge’ upon immovable property is governed by Article 62 of the
Schedule to the Limitation Act, 1963 which provides that the period of
limitation shall be twelve (12) years from the date when the money sued for
becomes due. In the facts of this case, since as per the appellant the
respondent’s right to receive the refund was acknowledged by it on
13.05.2013, the Statement of Claim filed on 21.05.2019 would be within
limitation. The submission of the appellant that the limitation period was
only three (3) years is incorrect, in the present facts and not sustainable.
Notwithstanding our findings above, we also hold that the findings
returned by the learned Arbitrator that the appellant had duly acknowledged
its liability to pay Rs. 7.50 crores to the respondent in its balance sheet for
the financial year 2016-17 and had also admitted the statements of the
financial year 2013-14 to 2015-16 filed on the arbitral record during
admission/denial of documents are unexceptionable. The Arbitrator has
Signature Not Verified
FAO(OS) (COMM) 58/2026 Page 17 of 21
Signed By:MAHIMA
SHARMA
Signing Date:02.05.2026
13:29

rightly observed that the appellant not only made vague denials but also
failed to produce contrary evidence by filing its financial statements as filed
before the statutory authorities for the financial year 2013-14 and onwards.
We concur with the learned Single Judge that the reliance placed and
inference drawn against the appellant, by the learned Arbitrator on the basis
of the statements of the financial year 2013-14 to 2015-16, as corroborated
by the statement of the financial year of the year 2016-17, in view of the
deliberately vague admission/denial of the said statements and in absence of
any credible rebuttal was correct and fell within the exclusive jurisdiction of
the learned Arbitrator who is indeed the master of the evidence.
17. We note that the appellant herein received the entire sale
consideration of Rs. 7.50 crores on 20.05.2011, the said amount on
appellant’s own showing was offered to be refunded on 13.05.2013. The
appellant admits that the possession of the subject plot was also returned to
it by the respondent. The appellant therefore, on its own showing had no
legal right thereafter, to retain the said amount of 7.50 crores. An honest
person would have of its own accord refunded the said amount by a bank
transfer, however, the appellant for reasons best known did not take the said
steps. Even during arbitration, it could have by itself offered to pay the said
amount after the respondent withdrew its claim for specific performance and
was only pursuing the claim for refund. We find it surprising that the
appellant is opposing the refund of the said amount on a plea of limitation,
knowing very well that it has otherwise, no legal right to withhold the said
amount. In these facts, it is apparent that the appellant is merely holding on
Signature Not Verified
FAO(OS) (COMM) 58/2026 Page 18 of 21
Signed By:MAHIMA
SHARMA
Signing Date:02.05.2026
13:29

to the said amounts for its illegal enrichment and otherwise has no valid
ground for withholding this amount.
18. The other plea of the appellant that the unregistered ATS cannot be
referred to for discerning the payment of the sale consideration of Rs. 7.50
crores have been rightly rejected by the learned Arbitrator. The finding of
the Arbitrator that the unregistered ATS can be perused by the Arbitral
Tribunal for ascertaining the record of the payment of Rs. 7.50 crores, and
the proviso to Section 49 of the Act of 1908 as amended in the State of Uttar
Pradesh would not be a bar to admissibility of the ATS for this limited
purpose is correct and the challenge to the said finding is without any merit.
We note that the admission of the appellant with respect to the receipt of the
amount of Rs. 7.50 crores as sale consideration is clearly documented in its
pleadings, documents and balance sheets, and therefore, discernible from
documents other than the unregistered ATS. This plea of the appellant is
wholly untenable and a reflection of its dishonest intent to withhold the
amounts which are rightfully due and payable to the respondent.
19. Learned counsel for the appellant as a last resort had argued that the
rate of interest awarded by the Arbitrator be reduced.
20. We find no merit in this argument. The learned Arbitrator had
awarded pendente lite and future interest (simple interest) till actual payment
on the refund amount at the rate of 10% per annum for pendente lite period
w.e.f. 21.05.2019. In fact, no interest has been granted for the pre-reference
period, even though, the appellant itself acknowledged its liability to refund
the amount on 13.05.2013. The respondent would have been entitled to
Signature Not Verified
FAO(OS) (COMM) 58/2026 Page 19 of 21
Signed By:MAHIMA
SHARMA
Signing Date:02.05.2026
13:29

interest for pre-reference period also as per Section 55(6)(b) of the TPA,
however, since respondent is not aggrieved by the non-grant of interest for
the pre-reference period, the appellant has already gained substantially by
the interest free retention of the amount of Rs. 7.50 crores from 20.05.2011
(date of payment) until 21.05.2019. The interest awarded is thus, reasonable
and requires no interference.
21. It is a paradox that the appellant, who has actually succeeded in the
arbitration proceedings inasmuch as the respondent itself withdrew the claim
of specific performance and has also been declined the relief of interest for
pre-reference period by the learned Arbitrator, however, continues to
needlessly challenge an award, which is actually in accordance with the
pleadings of the appellant and the reliefs granted by the learned Arbitrator
are as per law.
22. In our considered opinion, the appeal is an abuse of process of Court.
The appellant continues to own the subject plot, which is bound to have
increased in value exponentially between 2013 to 2026 and therefore, there
has been no loss whatsoever to the appellant. The challenge to the relief of
refund is nothing but evidence of the appellant’s avarice to wrongfully
withhold the amounts liable for refund. The award was in accordance with
the facts and in law and there was no reasonable ground for the appellant to
file the Section 34 petition and the present appeal. No costs of arbitration
were awarded in favour of the respondent by the learned Arbitrator and none
have been awarded by the learned Single Judge, and this has further
emboldened the appellant to file this frivolous appeal.
Signature Not Verified
FAO(OS) (COMM) 58/2026 Page 20 of 21
Signed By:MAHIMA
SHARMA
Signing Date:02.05.2026
13:29

23. The appeal is accordingly, bereft of any merits and is hereby rejected.
The respondent is held entitled to costs for Rs. 1 lakh from the appellant
herein to be paid on or before the next date of hearing before the Executing
Court. In case the costs are not paid, the same shall be liable to be recovered
in the execution proceedings.
24. Pending applications, if any, stand disposed of.
MANMEET PRITAM SINGH ARORA, J
V. KAMESWAR RAO, J
APRIL 22, 2026/ AJ/msh
Signature Not Verified
FAO(OS) (COMM) 58/2026 Page 21 of 21
Signed By:MAHIMA
SHARMA
Signing Date:02.05.2026
13:29