Delhi High Court
Shri Madan Lal vs Smt. Sneh Gupta on 18 May, 2001
Equivalent citations: 2001VAD(DELHI)35, AIR2001DELHI433, 92(2001)DLT307, AIR 2001 DELHI 433, (2001) 92 DLT 307
Author: Mukul Mudgal
Bench: Mukul Mudgal
ORDER Devinder Gupta, J.
1. The defendant has filed this appeal against the order passed on 28.11.2000 by learned Single Judge disposing of two applications (IAS.No.10254/98 and 874/99) filed by the plaintiff respondent. By the impugned order the plaintiff/respondent has been appointed as a receiver of the suit property and has been permitted to transact her business from the premises. Thus I.A.874/99 filed under Order XLI Rule 1 stood allowed and I.A.10254/98 filed under Order 39 Rules 1 and 2 C.P.C. was dismissed as infructuous.
2. On 10.11.1998 suit was filed by the plaintiff/respondent against the defendant/appellant seeking decree for declaration that she was the owner of the shop having bought the same from the defendant on the basis of documents executed on 9.7.1997 for valuable consideration and, that the defendant had no right, title or interest in the shop or the goods lying therein. Decree for permanent injunction was also sought restraining the defendant from interfering with her peaceful possession and a decree for mandatory, injunction directing the Station House Officer, Police Station, Janak Puri to remove locks of defendant No.1, which he was alleged to have put on the shutter of the suit property.
3. The aforementioned reliefs the plaintiff has claimed alleging that the suit premises, which is a shop measuring 10' 4-1/2" x 12' was owned by Lakhan Lal Chaurasia, the father of the defendant on the basis of allotment made by Delhi Development Authority. A portion of the shop measuring 5' x 6' had been let out to the plaintiff on a monthly rent of Rs.1300/- wherein the plaintiff had been carrying on the business of Jewellery under the name and style of Durga Jewellery House, Lakhan Lal Chaurasia transferred his rights, title and interest to his son (defendant/appellant) on the basis of documents dated 21.12.1995 for a consideration of Rs.40,000/-. Thereafter, the defendant started retail business of kitchen-ware and steel utensils from make shift counter on the left side of the shop and also using the rear portion of the shop for storing his goods after the shop hours. The plaintiff continued to run her jewellery counter from the portion, which had been let out to her, even after the shop had been transferred to the defendant.
4. The plaintiff further alleged in her plaint that defendant in the year 1996 expressed his desire to enter into a partnership with the plaintiff and jointly run the jewellery business. Partnership agreement was entered into on 15.2.1996 but the partnership was never acted upon. The defendant suffered huge losses in wagering and betting and expressed his desire to sell the shop to the plaintiff since he was in dire need of money. Accordingly, the entire shop was sold to the plaintiff for a consideration of Rs.1,25,000/-. The stock of kitchen-ware and steel utensils lying in the shop were sold by the defendant to the plaintiff separately for a consideration of Rs.25,000/-. In order to give effect to these transactions, an agreement to sell dated 9.7.1997 was executed though in the receipt, which was prepared at the time of entering into sale, consideration of Rs.1,25,000/- was said to have been made on the basis of cheques bearing No.357872 and 357873 dated 9.7.1997 for Rs.75,000/- and Rs.50,000/- respectively, the cheques were returned to the plaintiff and amount was paid in cash to the defendant, which was duly acknowledged by the defendant. Upon receipt of the entire sale consideration the defendant got general power of attorney and special power of attorney duly registered with the Sub Registrar, Delhi. Will was also executed by the defendant and was also got registered before the Sub Registrar, Delhi.
5. Thus the plaintiff claimed that she has been carrying on her business of jewellery from the shop as sole proprietor. The defendant was left with no right, title or interest in the shop. On 24.10.1998 the plaintiff opened the shop in the morning and was there till about 12.30 p.m. when she left for her house to have lunch. After the plaintiff came back, she found that the locks of her shop had been changed by the defendant No.1, who was present on the spot. Despite requests the defendant did not remove her locks. Thus the plaintiff was prevented by defendant from entering into the shop. Finding no other alternative she contacted the local police. Her complaint was not registered and the police kept on assuring the plaintiff that the locks would be opened after hearing both the parties. Nothing was done and finally on 25.10.1998 the plaintiff addressed a complaint to the Police Station, Janak Puri. The local police instead of helping the plaintiff and restoring possession to the plaintiff, connived with defendant No.1. Since the rights of the plaintiff were jeoparadised, she had no option except to file suit. Along with the suit an application under Order 39 Rules 1 and 2 C.P.C. was filed along with other miscellaneous applications. A application for appointment of receiver under Order 40 Rule 1 of the Code was also filed.
6. On 20.11.1998 status quo was directed to be maintained as regards the possession. On the same day with consent of the parties Local Commissioner was appointed to prepare an inventory of the goods lying in the shop, who submitted his report.
7. The defendant resisted the suit setting up a defense that his father was running business of selling steel, brass and plastic utensils and the defendant used to assist his father in the business. In one of the corners of the premises, the plaintiff was given a license in respect of a small counter to run silver jewellery business. Rather the plea taken is that the plaintiff was given a license to function from one of the small corners of the shop. The defendant allege that the husband of the plaintiff wanted him to join hands with the defendant in jointly running business from the entire shop and assuring that he would arrange for finance. Partnership deed was executed, copy of which was not supplied to him. The defendant denied that partnership was not acted upon. But denied that he ever expressed his desire to sell or transfer the shop to the plaintiff. He pleaded that blank documents were got signed from him by the plaintiff and her husband by representing that they require those documents in connection with the partnership business and the firm had to apply for sales tax, income tax and other formalities had to be completed. In the garb of that some documents were got prepared and signed from the defendant. The defendant never transferred his right, title or interest in favor of the plaintiff. He claimed to be the owner and in possession of the property and alleged that the plaintiff has no right, title or interest. He pleaded that the shop was actually in his possession and the plaintiff was only a licensee having only a right of user. Goods lying in the shop are of partnership business.
8. Learned Single Judge on the basis of the material on record and considering the report of the Local Commissioner, which was not objected to by any of the parties, concluded that there was a prima facie case in favor of the plaintiff. She appears to have given a truthful and consistent account of the facts and it was the plaintiff who carried on business in the premises since the report of the local commissioner also supports this position. The plaintiff had the keys of the entire premises. The defendant had the keys only in respect of the locks placed on the portion which was used for the business of jewellery. Since it appears that the plaintiff was in possession and was carrying on business at the time when suits were filed. Learned Single Judge observed that it was just and proper that receiver be appointed to the premises. Since the plaintiff had given an undertaking that she will diligently, faithfully and regularly submit accounts of the business transacted from the premises, if she is appointed as receiver, she was appointed as the Receiver.
9. The order is under challenge at the behest of the defendant and during course of arguments learned counsel for the defendant/appellants submitted that in case learned Single Judge was inclined to direct delivery of possession to the plaintiff or direct her to carry on business, she could have been permitted to do so only in that portion of the shop, which according to her was in her possession as a tenant or as a licensee and not of the entire portion of the shop in question. Admittedly, by the alleged agreement to sell, the defendant was in possession and control of the remaining portion of the property and now when the dispute had arisen, therefore, directing the possession to be delivered to the plaintiff of the entire ship is contrary to the case set up by the plaintiff.
10. Learned counsel for the plaintiff on the other hand tried to support the impugned order.
11. Our attention was drawn to the suit filed on 6.11.1998 by the defendant/appellant against the plaintiff/respondent. The said suit was filed prior in point of time to the suit filed by plaintiff. In the said suit Madan Lal claimed a decree for possession against Smt.Sneh Gupta, the plaintiff. The prayer made in the said suit No.2434/84, inter alia, reads:-
"The defendant be directed to deliver/hand over the vacant possession of the premises to the plaintiff by removing the locks put up by the petitioner on the shutter of shop bearing No.1, C-4E Market, Janakpuri, New Delhi".
12. The other defendant in the suit is the husband of Sneh Gupta. Needless to add that in the said suit filed by Madan Lal against Sneh Gupta and her husband it has been alleged by him that though he has been in possession of the shop but the actual possession was that of Sneh Gupta and her husband Ajit Nath as a licensee only. In the said suit no where Madan Lal has stated that only in a portion Sneh Gupta was in possession as licensee. Decree claimed by Madan Lal in the said suit is for declaration that agreement executed by him on 9.7.1997 is without consideration, null and void.
13. No doubt at one point of time only a portion was in occupation of Sneh Gupta, which according to the appellant was as a licensee but according to the plaintiff it was in the capacity of as a tenant. There is a dispute amongst parties that whether or not the alleged partnership business was or was not carried out. According to Sneh Gupta, partnership was not given effect to and no business was carried on in partnership. Though in the written the plea is taken by Madan Lal is that the partnership business was being carried on, but this plea taken in the written statement is not in consonance with what has been alleged by Madan Lal in the suit filed by him against Sneh Gupta and her husband. Execution of documents in favor of Sneh Gupta is admitted by Madan Lal in the suit filed by him, namely, agreement to sell, general power of attorney and special power of attorney. Receipt of the amount is also admitted by Madan Lal, as per the receipt filed along with plaint by the plaintiff.
14. In the aforementioned circumstances when even as per the report of the local commissioner Smt.Sneh Gupta was in possession of the shop, we are of the view that learned Single Judge rightly exercised discretion on sound principles, which is not liable to be interfered in this appeal. View taken is the possible view on the facts as placed on record. The appellant has taken somewhat contradictory stand in the written statement filed in the suit filed by Sneh Gupta from the stand taken by him in his suit filed against Sneh Gupta. Considering the material on record that Smt.Sneh Gupta was in possession of the property on the date when dispute arose by the impugned order she was rightly permitted to carry on business. Her possession is that of a Receiver. Thus no interference is called for in the impugned order. The appeal is accordingly dismissed leaving the parties to bear their own costs.