Delhi District Court
Sh. Raj Kumar Dhingra & Sons Huf vs Delhi Development Authority on 30 July, 2008
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IN THE COURT OF S.S.HANDA ADDL. DISTRICT JUDGE
DELHI
IN THE MATTER OF
Suit No.12/2008
Sh. Raj Kumar Dhingra & Sons Huf
Proprietor
M/s Power House Health Club,
30,Hauz Khas Village,
31,New Delhi-16
...Plaintiff
Vs.
Delhi Development Authority
Through its Vice Chairman
Vikas Sadan, INA, New Delhi
...Defendant
Date of institution : 08.07.2008
Date of arguments : 29.07.2008
Date of Decision : 30.07.2008
Present:Mr. Ved Prakash Sharma, Ld.
Counsel for the plaintiff.
Mr. Rohit Jain, Ld. Counsel
for the defendant.
Order on application of the plaintiff
u/o 39 rule 1 & 2 CPC dated 07.07.2008.
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The plaintiff instituted the
civil suit on 07.07.2008 for a decree
of permanent injunction "to restrain
the defendant/its officials from taking
the forcible possession etc. of the
Gym/fitness centre, at Siri Fort,
Sports Complex, DDA (New Delhi); as
duly mentioned in the licence deed
dated 30.07.2005, without due process
of law and creating third party
interest in respect to the said
Gym/fitness centre." During the
pendency of the trial the plaintiff has
sought ad-interim relief "to restrain
the defendant/its officials, from
dispossessing etc. the plaintiff from
the said Gym/fitness centre as duly
mentioned in the licence deed dated
30.07.2005without due process of law".
2. As borne from the record; sealed tenders were invited for running of Gym/fitness centre at Siri Fort, Sports Centre, DDA, New Delhi (in short the said Gym/fitness centre) according to the defendant for period of one year with effect from 01.08.2005 to 31.07.2006. And the plaintiff was :3: awarded the licence for a period of one year. Whereas the case of the plaintiff is that he was awarded the licence for a period of 60 months as per principle/basic agreement dated 30.07.2005. For plaintiff referring to
(i) Classic Motors Ltd Vs. Maruti Udyog Ltd & Ors, 57(1995) Delhi Law times 677 and (ii) State of UP and others and Lucknow Dev. Authority and other, AIR 1989 Supreme Court 997; it was submitted that as per agreement of licence dated 30.07.2005 since licence was awarded for a period of 60 months and the plaintiff has made huge investments and generated goodwill; requisite ingredients for grant of interim relief till disposal of the suit are made out.
Whereas Ld. Counsel for the defendant referring to a plethora of documents on record refuted the submission of Ld. Counsel for the plaintiff of having entered into contract for 60 months. He emphasised that words 'sixty' in the deed were forged. The agreement initially for :4: 01.08.2005 to 31.07.2006; thereafter for 01.08.2006 to 31.07.2008; each time was entered into for a period of one year. He referred to Delhi Tourism & Transportation Development Corporation Ltd Vs. M/s D.R.Mehra & Sons, 1996 I AD (Delhi) 229 and submitted that the licence as per last agreement is to expire by lapse of time on 31.07.2008 and thereafter unless he entered into afresh agreement by 29.07.2008 as per bid awarded in his favour; he shall be a ranked tresspasser liable to dispossession without even a notice. And consequently for commission of forgery and having accepted his status as licencee uptil 31.07.2008; no case for grant of interim relief prayed for is made out.
3. As per admissions and pleadings on record, being the highest bidder M/s Power House Health Club allegedly of the plaintiff was awarded licence vide office letter No.F5(33) SFSC/DDA/2005-06/Pt./1122 dated 25.07.2005. An agreement containing all the terms and conditions of the :5: license was executed between DDA and M/s. Power House Health Club on 30.07.2005 for a period of 12 months. Before the expiry of the licence agreement the licence was extended further for the period of one year w.e.f.01.08.2006 to 31.07.2007 with an increase in license fee by 30% of the existing fee of Rs.1,01,100/- per month. This was accepted by the Competent authority under the provisions of para 9 of meeting No.28 dated 19th July, 1996 of Sports Management Board, DDA.
4. Lastly for the period 01.08.2007 to 31.07.2008; the highest quoted rate of Rs.3,51,000/- per month was of plaintiff and sh. Vipin, representative of the agency who was present there noted the same and signed in the tender register alongwith other representatives. the Finance Member, DDA who is the Competent Authority for approving the rates was informed all the quoted bids and the highest rate of Rs.3,51,000/- per month quoted by plaintiff was approved on 04.07.2008.
:6: Accordingly, plaintiff was informed about the approval of his quoted rates for running of Gym/fitness Centre at SFSC vide letter no.F5(33) SFSC/DDA/2005-06/Pt./1517 dated 10.07.2008. the formal letter has been issued on 21.07.2008. the supplementary contract dated 16.07.2007 is due to expire on 31.07.2008. Meanwhile present suit was filed on 07.07.2008.
5. As per the terms and conditions of tender, which formed part of agreement dated 30.07.2005, categorically and explicitly stated that licence will be granted for a period of one year. The said terms and conditions have also been signed by the plaintiff and in fact he has also executed and signed certificate dated 04.07.2005 explicitly stating therein that he has read and understood the terms and conditions of tender form, as well as, he has also stated that suit property will be taken by him on licence basis for a period of 12 months.
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6. Ld. Counsel for the plaintiff stuck up to the plea that the agreement dated 30.07.2005 was for a period of 60 months; and is to pervail being basic/fundamental road map; and subsequent agreements having been got signed from the plaintiff under duress. Because the defendant was in a dominant position and got signed unconscionable agreements that have no legal value vis-a-vis agreement dated 30.07.2005. Whereas Ld. counsel for the defendant submitted that purported licence agreement filed with the plaint dated 30.07.2005 was never executed between the parties and in fact original licence agreement is blank and all the blank spaces which are apparent from perusal of purported licence agreement have been filled subsequently by the plaintiff. The signatures on the licence deeds were obtained as a abundant precaution as licence deed was part of tender document, being part D of Delhi Development Act Nazul rules, 1981. The purported licence agreement never came into the existence and was to be never acted upon. the present :8: contractual relationship between plaintiff and defendant is in pursuance of agreement dated 30.07.2005 and subsequent supplementary agreement each one separate and distinct; for a period of one year only.
7. The plethora of documents placed on record shows that as recorded above the plaintiff was awarded licence to rune the Gym/health centre by separate agreements for the period 01.08.2005 to 31.07.2006; for the year 01.08.2006 to 31.07.2007 and for the year 01.08.2007 to 31.08.2008 each time for one year. Each time licence fee varied going upward. For the fourth year as well his bid has been accepted at a monthly licence fee of Rs. 3,51,000/- per month. The original file was placed before me supporting the averments of the defendant/DDA. The plaintiff has been offered to sign the agreement by 29.07.2008 or else after 31.07.2008 he shall have no licence to run the said Gym/health centre.
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8. With due regard to the case law referred by the Ld. Counsel for the plaintiff in the light of the above facts; is hardly of any help to the plaintiff. In D.H.Maniar & Ors Vs. Waman Laxman Kudav 1977 (1) SCR 403 it was laid down by the Hon'ble Supreme Court that "after the revocation of the licence the person in possession becomes a tresspasser and he has no semblance right to continue in occupation of the premises and such person cannot seek the protection from a court of law. Therefore, I am not able to exercise my discretion in favour of the plaintiff; and hold that the plaintiff has not made out a prima facie strong case for the issuance of injunction". In the aforesaid case the alleged licencee was denied ad-interim relief.
In Sopan Sukhdeo Sable & Ors Vs Assistant Charity Commissioner & Ors His lordships Mr. Justice Doraiswamy Raju & J. Arijlt Pasayat made reference to Dalpat Kumar Vs. Prahlad Singh, 1992 (1) SCC 719, in regard to the meaning :10: of the words 'prima facie case' and 'balance of convenience' and observed in Mahadeo's case (supra) that:
"It is settled law that no injunction could be granted against the owner at the instance of a person in unlawful possession".
9. As recorded above the fundamental contract dated 30.07.2005 and subsequent supplementary agreements each ex-facie specified the period of agreement to run the said Gym/health centre only for a limited periods given therein. For the present the agreement/contractual relationship as a licensee of the plaintiff is due to expire on 31.07.2008. The plaintiff exfacie had no cause for grievance; for grant of relief per ingredients of u/o 39 rule 1 & 2 CPC. The judicial pronouncements have settled the legal position that a licensee has no right, title or interest in the licensed immovable property for a specified period.
10. Herein agreement to licence is to :11: expire on 31.07.2008 whereas the plaintiff had bid and was successful in getting the letter of licence for 01.08.2008 to 31.07.2009. He is using the court-fora as a tool; signifying:
"The Heads I win, the tails you loose."
I am afraid in the facts and circumstances herein; he could not be helped as 'injunction is a relief founded on equity'. And the plaintiff has not come to the court with clean hands.
11. And lastly; in view of the factual matrix of the case; blanket injunction cannot be issued in perpetuity. On this premise; I am supported by (Erode Municipality Vs. N.Arumugham, 2003 AIHC 3334 (3335) (Mad). In the said case, it was laid, "directing the local bodies like Municipal Board to renew the lease of its shops, instead of holding fresh auction of lease, as the property cannot be allowed to the fettered by perpetuity".
12. In view of the above, this :12: court is of the opinion that the plaintiff has no prima facie case for grant of ad-interim injunction. For alike breach of contract, if any; at the best, he may seek damages.
The large amount of investment having been made by the defendant; the balance of convenience also does not tilt in favour of the plaintiff.
13. As a result as after 31.07.2008, the status of the plaintiff will be that of a tress passer, he is not entitled to the interim injunction prayed for.
The application of the plaintiff u/o 39 rule 1 & 2 CPC is
accordingly dismissed, however without prejudice to the merits of the case.
DICTATED & ANNOUNCED IN THE OPEN COURT (S.S.HANDA) on THIS 30th DAY OF JULY 2008 ADDL. DISTRICT JUDGE DELHI :13: Ld. Counsel for the plaintiff however refuted the contention of Ld. Counsel the defendant about the forgery of the agreement dated 30.07.2005. He emphasised that the year to year agreement were uncotionable inequitable and arbitrary and thus cannot be looked into.