Delhi District Court
Shri Inderpal Kalra vs Shri Vijay Kumar Chadha & Ors on 5 May, 2015
In the Court of Ms. Shivali Sharma : Additional Senior Civil Judge of
Central District at Tis Hazari Courts, Delhi
CS No. 140/2014
In the matter of:
Shri Inderpal Kalra
......Plaintiff
V E R S U S
Shri Vijay Kumar Chadha & Ors.
........Defendants
ORDER
1. Vide this order, I shall dispose of an application under Order 39 Rules 1 & 2 CPC filed by the plaintiff along with their plaint seeking a restraint against the defendants no. 1 to 4 restraining from dispossessing the plaintiff from the first floor of the property bearing no. 3236, Ram Bazar, Mori Gate, Delhi without following due process of law, till the final disposal of the suit.
2. Defendants no. 3 & 4 are wives of defendants no. 1 & 2 respectively and are stated to be owners of properties bearing no. 3233, 3234/1, 3234/2 (all ground floor) and 3236 (first floor), Ram Bazar, Mori Gate, Delhi110006. It is alleged that defendants no. 1 & 2 entered into an agreement dated 11.06.2011 with the plaintiff for reconstruction/repair/alterations in the above stated properties for a total consideration of Rs.15,51,000/.
CS No. 140/14 Inderpal Kalra v. Vijay Kumar Chadha & Ors. Page 1 of 103. Pursuant to the agreement, plaintiff started the work at the suit property at his own expenses. The plaintiff had reconstructed three shops in the properties bearing no. 3233, 3234/1 and 3234/2 and had also started construction for the first and second floor. In the meanwhile, defendant no. 5/North DMC passed a sealing order dated 05.12.2011 in the name of the plaintiff in respect of the said properties. Due to the said order, the construction was stopped and the properties were sealed.
4. Defendants no. 1 to 4 approached the plaintiff to handle all litigation in this regard at his own cost. Authorization letter/power of attorney in favour of the plaintiff was also issued by defendants no. 1 to 4 to handle all the litigations qua the aforesaid properties (However no such document has been placed on record). Plaintiff at his expense challenged the sealing order before the ld. Appellate Tribunal, MCD. He also engaged lawyer to handle the petition bearing no.835/2011 before Hon'ble High Court of Delhi and also filed an appeal before ld. District Judge, Tis Hazari on behalf of defendants no. 3 & 4. All the expenses including litigation charges and fees of the counsels were born by the plaintiff.
5. Defendants no. 3 & 4 executed sale deeds of their three shops bearing no. 3232, 3235 and 3237 in favour of mother of the plaintiff for a consideration of Rs. 11 lacs. Plaintiff requested the defendants to adjust the payment which was to be made to him under the agreement dated 11.06.2011 against the sale consideration of the CS No. 140/14 Inderpal Kalra v. Vijay Kumar Chadha & Ors. Page 2 of 10 said shops. However defendants no. 1 & 2 did not agree to the same and plaintiff was assured that he shall be made the payment in the month of February, 2013. As per the order of ld. Appellate Tribunal, MCD dated 22.06.2012 in appeal no. 644/2011, the three shops bearing no. 3233, 3234/1 and 3234/2 were desealed. However, the first floor of the property no. 3236 is still under seal. As per the orders of North DMC, a demolition order in this regard has also been passed.
6. The plaintiff had spent a sum of Rs.9,65,000/ on the construction which was already made by him on the aforesaid properties as well on the litigation. He approached defendants no. 1 to 4 in the month of February, 2013 to pay the said sum of Rs. 9,65,000/ Defendants no. 1 to 4 requested the plaintiff to handover the possession of two shops bearing no. 3234/1 and 3234/2 as well as keys of the first floor bearing no. 3236 after getting the same de sealed and thereafter the payment shall be released in his favour within three months. On 21.02.2013, plaintiff handed over the keys of both the shops to the defendant no. 1 & 2 and it was agreed the shop bearing no. 3233 shall remain in possession of the plaintiff till realization of amount of Rs.9,65,000/. It was also agreed that the possession of the first floor of property bearing no. 3236 shall also be retained by the plaintiff till the payment was cleared. The keys of the first floor were already in possession of the plaintiff ever since the date of execution of agreement dated 11.06.2011. The building material and other belongings of the plaintiff are also lying at the first floor of property no. 3236 even prior to its sealing.
CS No. 140/14 Inderpal Kalra v. Vijay Kumar Chadha & Ors. Page 3 of 107. Despite repeated requests of the plaintiff, defendants no. 1 to 4 kept on delaying the payment and lastly on 08.05.2013, they flatly refused to make payment to the plaintiff and also threatened him. A legal notice dated 06.07.2013 was also issued by the plaintiff calling upon defendants no. 1 to 4 to make the payment of Rs.9,65,000/. However defendants no. 1 to 4 failed to comply with the said notice and gave an evasive reply dated 24.07.2013.
8. On 27.07.2013 in the absence of the plaintiff, defendants no. 1 & 2, forcibly broke open the locks of shop no. 3233 from where the plaintiff was already carrying on his business of wholesale goods of parishable items. The plaintiff reported the matter to the police, however possession was not restored back to him. A criminal complaint in this regard was also filed by the plaintiff.
9. Defendants no. 1 to 4 also withdrew the appeal pending before the Ld. District Judge (Headquarter) on 06.08.2013. Power of Attorney given to the plaintiff was also withdrawn by defendants no. 3 & 4. Defendants no. 1 to 4 also appeared before ld. Appellate Tribunal, MCD on 20.12.2013 and made a request for withdrawal of the appeal. The plaintiff also appeared before ld. Appellate Tribunal, MCD and apprised about his possession of the first floor to the Court. Thereafter the plaintiff was threatened with forcible dispossession from the first floor of property no. 3236. Ld. Appellate Tribunal, MCD also directed for compliance of demolition order by demolishing the walls of the first floor. Regarding the interse CS No. 140/14 Inderpal Kalra v. Vijay Kumar Chadha & Ors. Page 4 of 10 dispute between the plaintiff and defendants no. 1 to 4 qua the possession of first floor and payment, Ld. Appellate Tribunal, MCD advised the parties to sort out the matter amicably. However, the matter has not been sorted out between the parties.
10. The plaintiff has an apprehension that defendants no. 1 to 4 may take forcible possession of the first floor of property bearing no. 3236 at the time of desealing by North DMC and accordingly in order to protect his right, title and interest therein he filed a civil suit for injunction against the defendants restraining defendants no. 1 to 4 from taking forcible possession of the first floor of property bearing no. 3236 at the time of desealing of the same.
11. During the pendency of the suit, the first floor of property bearing no. 3236 was desealed as per orders of the Ld. Appellate Tribunal, MCD and a demolition action was taken on 14.03.2014. Thereafter, the same was resealed on the same day itself. Vide order dated 21.03.2014, Ld. Appellate Tribunal, MCD has directed North DMC to deseal the said property within a week from the date of the said order. Since in the civil suit the relief was sought only till the time of desealing, the said suit became infructuous and was withdrawn by the plaintiff on 25.03.2014 with liberty to file a fresh suit.
12. The threatening given by defendants no. 1 to 4 against forcible dispossession of the plaintiff are still continuing. Hence, the present CS No. 140/14 Inderpal Kalra v. Vijay Kumar Chadha & Ors. Page 5 of 10 suit has now been filed for restraining them from dispossessing the plaintiff from the first floor of property bearing no. 3236 without due process of law.
13. In the interim application, interim relief to this effect has been sought till the disposal of the suit.
14. A joint written statement was filed on behalf of defendants no. 1 to 4 wherein the suit has been objected to preliminarily on the ground of concealment of material fact. It is stated that as on date of filing of WS i.e. 01.04.2014, the seal of first floor of property no. 3236 has not been removed by North DMC. The possession of the plaintiff in the suit property has been vehemently denied and it is stated that the question of his forcible dispossession does not arise as he is not in possession thereof. The defendants have detailed various criminal cases in which the plaintiff is involved and it is stated that he is a person of notorious record and wants to grab the properties of the defendants no. 3 & 4 under the garb of the present suit.
15. On merits, it is stated that the plaintiff, claiming himself to be an architect and a manipulator to deal with all municipal authorities for seeking the permission for reconstruction, repair, alteration; approached the defendants for the job of reconstruction/repair of the suit property. The defendants agreed and an agreement dated 11.06.2011 was entered into between the parties. As a security qua the charges due to the plaintiff, on asking of plaintiff, defendants no.
CS No. 140/14 Inderpal Kalra v. Vijay Kumar Chadha & Ors. Page 6 of 103 & 4 had executed sale deed in respect of shops bearing no. 3232, 3235 and 3237 in favour of his mother Smt. Sudershan Kalra. No consideration in this regard was paid to defendants no. 3 & 4.
16. Sealing of the properties occurred on account of failure of the plaintiff to obtain necessary permission from the competent authority, which as per the terms and conditions of agreement dated 11.06.2011, the plaintiff was under an obligation to obtain. Other allegations have been denied. It is also denied that all the litigation expenses were borne by the plaintiff. It is stated that neither the plaintiff is in possession of the first floor of property bearing no. 3236 nor he has any right, title or interest to remain in possession thereof. With these contentions the suit of the plaintiff has been controverted.
17. As per the written statement of North DMC (defendants no. 56), the suit property is lying in desealed/tampered condition. Action against seal tempering is under contemplation.
18. As per the status report filed on behalf of SHO, PS Kashmere Gate also, AE (B) of City Zone vide letter dated 30.04.2014 had filed a complaint regarding seal breaking of property no. 323237, Ram Bazar, Mori Gate, Delhi which is under investigation.
CS No. 140/14 Inderpal Kalra v. Vijay Kumar Chadha & Ors. Page 7 of 1019. Arguments on interim application have been heard and record has been carefully perused. The rival citations relied upon by the parties have also been carefully perused.
20. Before granting an interim injunction in favour of the plaintiff, the Court has to satisfy itself that a prima facie case is made out in his favour, balance of convenience lies in his favour and he is likely to suffer irreparable loss which cannot be compensated in terms of money in case interim injunction is not granted to him.
21. In the present case, as per his own pleadings, the properties in question were handed over to the plaintiff under agreement dated 11.06.2011 for the purposes of reconstruction/ renovation/modification/repair. As per Clause 9 of the said agreement, the plaintiff was entirely responsible for the reconstruction/renovation/modification/repair of the first and second floors and also the three shops on the ground floor of the said properties. There is no clause in the said agreement which provides that plaintiff is entitled to retain the possession of any portion of the properties concerned till the time his payment is released by the defendants.
22. Admittedly, construction was being raised in the said properties without obtaining appropriate sanction and in an illegal manner because of which the said properties were sealed by North DMC. Since as per agreement dated 11.06.2011, plaintiff was entirely CS No. 140/14 Inderpal Kalra v. Vijay Kumar Chadha & Ors. Page 8 of 10 responsible for reconstruction etc., it was due to his fault that the properties concerned were sealed by North DMC.
23. Plaintiff is alleging that after the sealing of the properties in question the defendants had entered into an oral agreement with the plaintiff entitling him to retain the possession of one shop bearing no. 3233 and first floor of property bearing no. 3236 after getting the same desealed till the time his payment was cleared. This contention of the plaintiff is not supported by any document and is not believable on the face of it. Even otherwise, the possession of any portion of the property under construction cannot be said to be with the labour or architect or builder who is constructing the same. Unless there is contract to the contrary, the possession of the property remains with the owners thereof even during the period of construction. Since the plaintiff has failed to show any contract to the contrary or to plead any such circumstances under which such a contract can be impliedly gathered, in my opinion, no prima facie case is made out in favour of the plaintiff.
24. For the same reason, even the balance of convenience is tilted against him. The mischief which is likely to occur to defendants no. 1 to 4 in case the injunction is granted in favour of the plaintiff is much higher as compared to the mischief likely to be caused to the plaintiff in case the injunction is declined. This is because granting the injunction would amount to depriving defendants no. 3 & 4 from CS No. 140/14 Inderpal Kalra v. Vijay Kumar Chadha & Ors. Page 9 of 10 enjoying a property owned by them. On the other hand, in case the injunction is not granted in favour of the plaintiff he still has a civil remedy for recovering his legal dues, if any against the defendants no. 1 to 4 under agreement dated 11.06.2011.
25. As regards the loss which can be suffered by the plaintiff in case the injunction is not granted in his favour, the same can be compensated in terms of money as per the own case of the plaintiff as he is claiming retention of possession of the first floor of property no. 3236 till the time his payment of Rs.9,65,000/ is not cleared.
26. In these circumstances, no ground is made out for granting any interim injunction in favour of the plaintiff as prayed for. The interim injunction application under Order 39 Rule 1 & 2 CPC is accordingly dismissed.
27. Nothing expressed herein shall tantamount to an expression of opinion on the merits of the case.
Announced in the Open Court on 05.05.2015 (Shivali Sharma) Additional Senior Civil Judge Central District: Tis Hazari Courts: Delhi CS No. 140/14 Inderpal Kalra v. Vijay Kumar Chadha & Ors. Page 10 of 10