Delhi High Court
Balbir Singh Mayal And Others vs Municipal Corporation Of Delhi And ... on 30 March, 2009
Author: Manmohan Singh
Bench: Manmohan Singh
* HIGH COURT OF DELHI : NEW DELHI
+ IA No.3583/2009 in CS(OS) No.509/2009
% Judgment reserved on : 27th March, 2009
Pronounced on : 30th March, 2009
BALBIR SINGH MAYAL AND OTHERS ......Plaintiffs
Through : Mr. Arun Kumar Verma Adv.
with Mr. Aman Anand, Adv.
VERSUS
MUNICIPAL COPORATION OF DELHI
AND OTHERS .......Defendants
Through : Ms. Anuradha Dutta with Ms. Ekta
Kapil, Advs. for defendant Nos. 2
to 7
Mr. Shail Kumar for Mr. Ravi
Bassi, Advocate for defendant
No.9
Coram:
HON'BLE MR.JUSTICE MANMOHAN SINGH
1. Whether the Reporters of local papers may
be allowed to see the judgment? Yes
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be reported Yes
in the Digest?
MANMOHAN SINGH, J.
1. The four Plaintiffs who are the members of South Delhi Club Ltd, Defendant No.8 herein (for short referred to as "Club") filed the present suit for permanent injunction seeking stay of operation of judgment and decree dated 20th October, 2002 passed in Suit No.518/99 till the final disposal and also sought the injunction against defendants 2 to 7 from in any manner interfering with the peaceful use, possession and enjoyment of the plaintiffs and all other members of the Club at M Block, Greater CS (OS) No.509/2009 Page 1 of 12 Kailash, Part-I, New Delhi.
2. The main contention of the plaintiffs is that the members of the Club were informed about the outcome of the Appeal and decree passed in Suit No.518/99 only on 24th February, 2009 by Sh. Navin Pal Singh Bhandari, Defendant No. 9 (hereinafter referred to as " Mr. Bhandari") another member of the Club. The plaintiffs after having came to know about the legal proceedings made further enquiries and it transpired that Mr. Bhandari had been wrongfully representing himself as the General Secretary of the Club and taking actions on his own on behalf of the Club unauthorisedly in an illegal manner. It is contended that Mr. Bhandari was never elected as General Secretary of the Club in 1995. In 1995, when the elections to the Managing Committee of the Club were held, another member Mr. Arvinder Singh was elected as General Secretary of the Club. Thereafter no elections to the Managing Committee of the Club took place till the year 2005. Even in the year 2005, the results of the elections held for Managing Committee of the Club were stayed by orders passed by this court and as such there is no duly elected Managing Committee of the Club since the year 1996. It is further contended that taking undue advantage of this situation, Mr. Bhandari unauthorisedly represented himself as General Secretary of the Club in most illegal and unjustifiable manner.
3. It is averred in the plaint that there are 1700 members of the said Club and the Club has been functioning since its establishment and providing facilities to its members on regular basis. A total number of 125 members have been employed to run the Club. It is alleged that the CS (OS) No.509/2009 Page 2 of 12 judgment and decree passed in Suit No.518/99 was obtained fraudulently by defendants 2 to 7 (hereinafter referred to as "Trust") with active collusion and connivance of Mr. Bhandari who has acted without any authority and has played in the hands of the Club and its members, and without any reason have acted completely against the rights and interests of the members of the Club. The Trust has obtained the decree fraudulently in connivance with Mr. Bhandari and as such the said decree is a nullity in the eyes of the law.
4. The brief facts of the case are that the Club is a Company registered under the Companies Act and by virtue of sub lease dated 4 th November, 1965 the properties in question i.e. M Block, Greater Kailash, Part-I, New Delhi was leased to the Club for a period of 25 years (hereinafter referred to as the "said property"). The period of lease as provided in the original and supplementary deed expired on 3rd November, 1990. After negotiations, the parties executed a fresh sub lease deed dated 23rd September, 1992 for a further period of 25 years with effect from 4th November, 1990 on the terms and conditions as stipulated in the prescribed manner in the agreement and the said lease deed was duly registered in the office of the Sub Registrar, Delhi. One of the terms of the said sub lease deed was that the Club shall pay quarterly to the Trust on account of monthly lease money by the 10th day of each quarter a sum equivalent to 14% of the monthly subscription paid or payable by the members of the Club and the Club on account of its monthly subscription collected a sum of Rs.81,778/- on the said date of execution of the sub lease.
CS (OS) No.509/2009 Page 3 of 12
5. It was agreed by the parties that in case the lease money remained unpaid for two consecutive quarters and also on account of breach of any terms of the sub lease, the Trust would be entitled to terminate the said sub lease. The trust addressed various letters dated 25th December, 1996, 14th January, 1997 and 18th June, 1997 requesting the Club to remit the lease money as payable. Not only that the Trust served a legal notice dated 25th July, 1997 on the Club calling upon it to pay the entire arrears of lease money failing which the Trust shall be left with no other option but to terminate the sub lease. Inspite of the said notice, no steps were taken by the Club and accordingly a notice was issued by the Trust on 28th October, 1997 terminating the sub lease between the parties by the end of the month i.e. on the midnight of 30th November, 1997 and further called upon the Club to handover the vacant possession of the entire properties on or before 30th November, 1997. Another notice dated 2nd December, 1997 was issued by the Trust intimating that its possession in the premises after 30th November, 1997 is that of an unauthorized occupant as the Club had failed to vacate the premises inspite of having issued the notice.
6. Since the Club failed to accede to the request made in the legal notice sent by the Trust, a suit bearing No.518/99 was filed in this court by the Trust against the Club praying for a decree of recovery of possession in respect of the suit property and also for passing a decree for recovery of Rs.11,60,000/- towards the mesne profits and for damages.
7. The Club in the written statement had alleged that the suit filed by CS (OS) No.509/2009 Page 4 of 12 the Trust is not maintainable as the Trust has no right of ownership and locus standi to file the suit. The club also challenged the said rights by filing of another suit bearing Suit No.1605/97 before this court.
8. After filing the written statement by the Club, the Trust filed an application bearing No.7085/2000 praying for passing of a decree in favour of the Trust in view of the admission made by the Club in its written statement. An interim application was also filed by the Club being I.A. No.4681/2001 under Section 114 of the Transfer of Property Act praying for an order of relief to the Club against the forfeiture arising out of nonpayment of lease money and also for declaration that the Trust should not be allowed to hold the leased property.
9. The learned single Judge while deciding the applications passed a decree in favour of the Trust and against the Club for possession in respect of the suit property. In the said judgment and decree passed on 22nd October, 2002 the learned single Judge had, interalia, held as follows:-
a) the dispute between the Club with regard to ownership and title of the Trust stood resolved and the Club accepted that:-
i) The respondent was the rightful owner and title holder of the land.
ii) That the Club was obliged to pay rent to the Trust and to no other person.
iii) That the entire rent payable by the Club to the Trust in terms of sub lease dated 23rd November, 1992 was not paid and a part of the rent payable for the CS (OS) No.509/2009 Page 5 of 12 aforesaid sub lease due and payable by the Club was still outstanding.
b) The fresh suit filed by the Club against the Trust being Suit No.1605/97 praying for a decree of declaration was also dismissed in default on 8th April, 2002.
c) That after filing the application under section 114 of the Transfer of Property Act in the present case, in view of the nature of the statement made therein not much remains to be determined in the said suit.
d) The contention required to be proved by the Trust under Order 12 Rule 6 stood proved as there was an unequivocal admission on the part of the Club.
e) In view of the applicability of the provisions of Section 114 of the Transfer of Property Act, it held that the provision is discretionary and equitable provision and the said discretion could be allowed in favour of the Club only when its conduct was not vexatious. In this regard, the learned Single Judge after considering the merits of the case has given the specific finding in para 10 of the judgment which reads as under:-
"Therefore, in the backdrop of the aforesaid position and within the parameter of the same, I may now proceed to consider the applicability of the said provisions to the facts and circumstances of the present case without forgetting for moment that there is also an application filed by the defendant under Section 114 of the Transfer of Property Act. That the parties have entered into a sub-lease which is dated 23rd September, 1992, is CS (OS) No.509/2009 Page 6 of 12 also an admitted position. The said deed is a registered document and one of the conditions of the said sub-lease is that in case the lease money remains unpaid for two consecutive quarters and on account of the breach of any terms of the lease deed, the plaintiff would be entitled to terminate the said sub-lease. One of the relevant aspects which needs consideration at this stage is the plea of the defendant that the plaintiff is divested of the right and title of the suit property. The original perpetual lease for the suit property in favour of the plaintiff was executed by the DLF Universal Ltd. Supplementary sub-lease deed was also executed between the same parties. On 03.05.1989 a resolution was taken by the Standing Committee of MCD regarding settlement arrived at regarding open space and sites in the 16 colonies developed by DLF. As per the said resolution MCD became lessor in place of DLF and committed to honour the terms and conditions of existing perpetual lease deed. It is thus proved and established that the suit property remained with the plaintiff on perpetual lease as per the lease deed dated 31.08.1963. The aforesaid position is reiterated under the deed of Settlement dated 24.07.1989 between MCD and DLF."
10. The learned single Judge also held that it was evident from the record that the Club had not paid the rentals in terms of the agreement entered between the parties and had violated the lease agreement by making unauthorized construction in the said property for which a notice was already issued by the MCD for removal of such unauthorized construction. It was further held that on the one hand, the arrears of rent were being paid/deposited under the orders of the court and on the other hand, the Club in fact went to the extent of challenging the title of the Trust to pre-empt dispossession by filing of Suit No.1605/97 and the said conduct of the Club clearly shows that the Club had been habitual defaulter and at different points of time taking conflicting stands to avoid CS (OS) No.509/2009 Page 7 of 12 liability of making payment of the dues.
11. The judgment and decree passed by the learned single Judge was challenged by the Club by filing of an Appeal being RFA(OS) No.34/2002 which was dismissed by a Division Bench of this court on merit by judgment dated 9th January, 2009 and the Club has been directed to handover the vacant possession in respect of the suit property to the Trust not later than 31st March, 2009.
12. It is not in dispute between the parties that there is a judgment and decree passed against the Club on merit and specific findings have been given by the court against the Club in Suit No.518/99. The said judgment and decree has also been confirmed by the Division Bench of this court. In view thereof, in my opinion, while dealing with the present suit, this court has no power to re-consider, re-examine and re- access the said findings already arrived at by the two courts.
13. The question left at this stage is as to whether the present plaintiffs who are members of the Club are entitled for any relief claimed in the injunction application on the basis of the allegations raised in the suit. Due to urgency of the matter, the present application is being decided even without calling for proper replies on behalf of the defendants.
14. Learned counsel for the plaintiffs has referred to the decisions reported in S.P. Chengalvaraya Naidu (dead) by LRs v. Jagannath (dead) by LRs and others, AIR 1994 SC 853 para 7 and 8 and Syed Shah Gulam Ghous Mohiuddin Khamesul Qadri and Ors. v. Syed Shah Abdul Har Khamisul Qadri and Ors., AIR 1959 Andhra Pradesh page 212 para 8.
CS (OS) No.509/2009 Page 8 of 12
15. The learned counsel for the Trust has strongly contested the interim application filed by the plaintiffs on the ground that the suit filed by the plaintiffs is an abuse of the process of the court as all the questions raised by the plaintiffs in the present suit as far as merit of the case is concerned have already been decided by the two courts in which the decree has already become final and binding between the parties. Learned counsel for the defendants has also argued that the plaintiffs have only made the allegations in the present suit that the decree has been obtained by playing a fraud upon the court and is nonest in the eyes of the law. No valid reasons have been given by the plaintiffs in order to prove the fraud as alleged. Learned counsel for the defendants has also filed a copy of the resolution dated 23rd October, 2002 passed by the Club in favour of Mr. Bhandari authorizing him to file an appeal against the judgment and decree passed by the Court on behalf of the Club. Learned counsel has also referred to the report of the bailiff dated 21 st November, 2005 regarding execution of the attachment warrants issued by the court in Ex. No.258/02 when 50 to 60 workers of the Club became adamant to comply with the orders of attachment. In the report, it is mentioned as under :
"They were informed about the attachment warrant and were asked to handover the possession. After acknowledging about the warrant, they refused to make a statement and objection on the warrant and also refused to handover the possession. And made phone to Secretary of the Club and their advocate Mr. Sumit Nagpal. After some time advocate Mr. Sumit Nagpal reached at the spot. They took the warrant of attachment from me (Bailiff) and after reading it they called 50-60 workers of the club and Mr. Yogesh Sharma Advocate pushed attorney D.H. out of the room and got locked all the rooms, workers of the J.D. club were adamant to quarrel on behalf of J.D. club, some one informed the P.C.R. No.100."CS (OS) No.509/2009 Page 9 of 12
16. Learned counsel for defendant No.9 herein has also made his submission that the Club had authorised Mr. Bhandari to contest the matters from time to time and even the Club has given the instructions to him to file a Special Leave Petition before the Hon'ble Supreme Court against the judgment dated 9th January, 2009 passed by a Division Bench of this court. The learned counsel has also shown a cheque of Rs.25,000/- paid by the Club in his name. Not only that he has also stated that one of the members who has filed the present suit is a member of the Managing Committee of the Club. Learned counsel has also referred Para 19 of the plaint wherein it is stated that the record reveals that from 6th August, 1997 till 8th November, 2002 the suit filed by the Club was being prosecuted diligently. It has also been pointed out that the application under Section 114 of the Transfer of Property Act was filed in 2001 under the instructions of Mr. Bhandari and on 23rd October, 2002 a resolution had been passed by the Club in favour of Mr. Bhandari to appeal against the judgment and decree dated 22nd October, 2002.
17. All the above mentioned circumstances clearly show that the Club and its members were fully aware about the pendency of the suits, passing of the judgment and decree as well as of the appeal filed against the judgment otherwise resolution would not to have been passed on 23rd October, 2002 in favour of Mr. Bhandari to file the appeal against the judgment and decree passed by the court. It further proves from the report of the bailiff that when the warrants of attachment were being CS (OS) No.509/2009 Page 10 of 12 executed, 50 to 60 workers obstructed the said proceedings. It does not lie in the mouth of the Club or the members at this stage to contend that the plaintiffs were not was aware about the litigation pending between the parties as well as the judgment and decree passed by the court. In A.L.N. Narayanan Chettiyar and Anr. vs. Official Assignee, High Court Rangoon, AIR 1941 Privy Council 1993 it is observed that a fraud must be established beyond reasonable doubt. It cannot be based upon suspicion and conjectures. In another case reported in Bishundeo Narain vs. Seogeni Rai, AIR 1951 SC 280 at page 283 Para 25, it is observed as under:-
"Now, there is one rule which is better established than any other, it is that in cases of fraud, undue influence or coercion the parties herein must set forth full particulars and the case can only be decided on the principles as laid. There can be no departure from them in evidence. The general allegations are insufficient............"
18. While coming to the present case, a mere reading of the plaint discloses that the allegations are general in nature and in the absence of any evidence of fraud, it is not possible for this court to arrive at conclusion different from decisions already passed earlier. Another important factor in the present case is that the present suit has been filed merely by four members of the Club out of 1700 members. The Club has not come forward by filing the suit about the allegations of fraud raised in the plaint against Mr. Bhandari.
19. As already argued that one of the plaintiffs is a member of Managing Committee, hence it appears that the Club has not filed the present suit. The circumstances establishes that the Managing CS (OS) No.509/2009 Page 11 of 12 committee of the Club as well as various members were fully aware about the litigation pending between the parties as well as about the passing of the judgment and decree against the Club and the dismissal of the Club's appeal by the Division Bench on 9 th January, 2009. Had the Club or its Managing Committee were not aware about the pending litigation between the parties, the cheque of Rs.25,000/- in favour of the counsel ought not to have been issued by the Club. Mere allegations of the four members that they came to know about the earlier proceedings only on 24th February, 2009 is unbelieveable and is just a figment of the imagination. In totality, it shows that the present litigation is another round of litigation which is unsustainable and not permissible in the eyes of the law. Therefore, I am of the considered view that no prima facie case has been made out by the plaintiffs in their favour for grant of interim injunction nor the balance of convenience lies in their favour. Prima facie, it appears that no ground of fraud is sustainable in order to interfere with the judgment and decree passed by the court. The application is wholly misconceived, not maintainable and the same is hereby dismissed. No costs.
MANMOHAN SINGH, J.
March 30, 2009 nn CS (OS) No.509/2009 Page 12 of 12