Delhi District Court
J.M.Comercial And Comp. Ltd vs Twinkle Builders Promoter Pvt. Ltd on 28 August, 2023
DLND010013502014
IN THE COURT OF ADDITIONAL DISTRICT JUDGE- 01,
NEW DELHI DISTRICT, PATIALA HOUSE COURTS,
NEW DELHI
Presided over by :- MS. VIJETA SINGH RAWAT (DHJS)
CS No. 57680/2016
1. M/s J.M. Commercial & Company Ltd.
Through its Director Mr. Munir Nasa
Regd Address - 67, Bhagat Singh Market,
Near gole Market, New Delhi- 110001
2. Rajyashree Kumari Bikaner
D/o Late Sh. Karni Singh
Flat No. 9, 3rd Floor,
10-A, Prithviraj Road,
New Delhi.
......... Plaintiffs
Versus
1. Twinkle Builders & Promoter Pvt. Ltd.
3rd Floor, Hansalaya Building,
15, Barakhamba Road,
New Delhi
Also at :
C/o Mr. Ashish Saraf
R/o Flat no. 2, Plot no. 10A,
Prithvi Raj Road,
New Delhi
CS No. 57680/2016 Pages 1 of 26
J.M. Commercial & Company Ltd. Vs. Twinkle Builders & Promoter Pvtl Ltd.
2. Mr. Ashish Saraf
R/o Flat no. 2, Plot no. 10A,
Prithvi Raj Road,
New Delhi
3. New Delhi Municipal Council
Through its Chairman
Palika Kendra,
Parliament Street, New Delhi.
........ Defendants
Suit presented On : 20.01.2014
Arguments Concluded On : 17.08.2023
Judgment Pronounced On : 28.08.2023
JUDGMENT
1. This is a suit for permanent and mandatory injunction filed by the plaintiff claiming to be the owner of Flat no. 6 (FF) 10A, Pritiviraj Road, New Delhi against the defendants averring that
(i) Property no. 10A, Pritiviraj Road was taken on registered perpetual lease by Late Maharaja Karni Singh from the President of India and subsequently, a group housing society was developed on the same by Bhayana Builders on the basis of a collaboration agreement dated 12.11.1981. (ii) That Bhayana Builders constructed a multi storied building as per the scheme sanctioned by defendant no.3 and the property as on date consists of ground floor having Flats no. 1, 2 and 3, first floor consisting of Flats no. 4, 5 and 6 and second floor having Flats no. 7, 8 and
9. (iii) That the group housing flats have been constructed as one unit with a common foundation, common linter through which all CS No. 57680/2016 Pages 2 of 26 J.M. Commercial & Company Ltd. Vs. Twinkle Builders & Promoter Pvtl Ltd. flats are connected, common front, rear and side setbacks and common sanitation and drainage facilities. (iv) That none of the flat owner can raise any construction without getting the entire building plan revised / approved by defendant no.3. (v) Yet, defendant no. 1 and its tenant defendant no.2 without having taken permission from defendant no.3 have been carrying out construction in the front, side and rear set back of flat no.2 during which they damaged / broke the projection / balcony of the plaintiff. (vi) That due to the unauthorized construction being raised by defendants no. 1 and 2, the rights of the plaintiff in its premises is directly affected therefore, two written complaints dated 23.12.2013 and 02.01.2004 were sent to defendant no.3 informing them that the building is being rendered unsafe and unauthorized construction in violation of the allotment letter was being carried out but no action was being taken. Hence, the present suit has been filed seeking permanent injunction to restrain the defendants from raising any additional constructions or structures in violation of sanctioned building plan for premises no. 10A, Prithvi Raj Road, New Delhi and mandatory injunction for removing unauthorized construction already raised.
WRITTEN STATEMENT OF DEFENDANT NO.1
2. Defendant no.1 filed a written statement stating that being the owner of flat no.2, it had vide registered lease deed dated 3.6.2013, let out its flat to Vakrangee Press Limited for use of CS No. 57680/2016 Pages 3 of 26 J.M. Commercial & Company Ltd. Vs. Twinkle Builders & Promoter Pvtl Ltd. Sh. Ashish Saraf (defendant No. 2) and his family as their residence for 53 months, commencing from 03.06.2013. It is also stated that Sh. Ashish Saraf is Hony. Consul of Commonwealth of Bahamas. Further, it is stated that on receiving legal notice dated 31.03.2014 along with order dated 20.01.2014 on IA no. 997 of 2014 and on receipt of showcause notice date 10.02.2014, by defendant no.3 against illegal construction and demolition of the same, the answering defendant vide letter dated 15.02.2014 called upon defendant no.2 to demolish the illegal construction. However, vide reply dated 22.02.2014, the answering defendant was informed by defendant no.2 that he was not raising any permanent structure or carrying out structural changes in the demised premises except and limited to some barricading that had been initiated for security reasons only after informing Ministry of External Affairs, (vide letter dated 10.01.2014), L&DO and NDMC (vide letters dated 27.11.2013 and 17.01.2014).
2.1 Preliminary objection have been taken which are as under :
(a) that the suit has not been properly valued for pecuniary jurisdiction and court fees,
(b) that the suit does not disclose any cause of action as to how the alleged construction is illegal and unauthorized and
(c) that Sh. Munir Nasa is not authorized by the Board of Directors of the plaintiff to institute the suit .
CS No. 57680/2016 Pages 4 of 26 J.M. Commercial & Company Ltd. Vs. Twinkle Builders & Promoter Pvtl Ltd.
2.2 On merits it is denied that the plaintiff is owner of Flat no. 6 and also that for raising construction the entire building plan has to be revised. It is also denied that any permanent structure was being constructed during which any damage was caused to the property of the plaintiff or that it's property was jeopardized.
WRITTEN STATEMENT OF DEFENDANT NO.2
3. Vide order dated 22.07.2014 defendant no.2 adopted the written statement of defendant no.1.
WRITTEN STATEMENT OF DEFENDANT NO.3
4. NDMC as defendant no.3 raised preliminary objections which are as under :
a) that defendant no.3 is neither a necessary nor a property party to the present controversy and
(b) that no cause of action survived in favour of the plaintiff.
4.1 On merits, it is stated that the Administrator, NDMC had vide Committee Resolution no. 43 dated 14.09.1984 sanctioned the proposed housing flats and the plans were released on 24.05.1985 as per Zonal Plan and Master Plan. It is stated that completion certificate was approved by the competent authority of NDMC vide Resolution no. 24 dated 17.05.1990. It is conceded that none of the flat owners can raise any construction CS No. 57680/2016 Pages 5 of 26 J.M. Commercial & Company Ltd. Vs. Twinkle Builders & Promoter Pvtl Ltd. without getting group housing scheme without approval of defendant no.3. Further, even under the revised norms, no additional area is permissible for construction in properties falling under Lutyens Bungalow Zone. It is averred that complaint dated 22.12.2013 of the plaintiff had been received and inspection of the property was sought to be made on 23.12.2013 but since the Consulate of Commonwealth of Bahamas is located in the property, the officers of defendant no.3 were not allowed inside. Hence, a report was forwarded to the legal department for further advice. Thereafter, the Consulate's representative met with Chairman, NDMC and issued letter dated 06.01.2014, allowing the officials of defendant no.2 to carry out inspection in the property. Hence, on 08.01.2014, an inspection was carried out and unauthorized construction was found, therein. Therefore, on 10.01.2014 showcause notice u/s 284 of The New Delhi Municipal Council Act (hereinafter, referred as 'The NDMC Act') and on 16.01.2014, "stop work order" was issued with respect to unauthorized construction in the building. Hence, it is denied that defendant no.3 has not acted to perform it's statutory duty. It is further stated that hence, no cause of action survives against defendant no.2 as further action would be taken as per procedure established REPLICATION
5. Plaintiff filed replication to the written statements wherein, CS No. 57680/2016 Pages 6 of 26 J.M. Commercial & Company Ltd. Vs. Twinkle Builders & Promoter Pvtl Ltd. the contents of the written statements are denied and averments made in the plaint are reiterated and affirmed.
ISSUES
6. Vide order dated 29.11.2018 following issues were framed :
i) Whether the present suit is instituted by the authorized persons of plaintiff-company? OPP
ii) Whether the plaintiff has properly valued the suit for the purpose of decree for damages and injunction and paid appropriate court fees on the same? OPP
iii) Whether the defendants no. 1 and 2 carried out unauthorized construction at the suit premises 10-A, Prithvi Raj Road, New Delhi including structural changes made in the subject premises? OPP
iv) Whether unauthorized construction raised by the defendant no.1 and 2 carried after taking requisite permission from the authorities concerned? OPD1 & OPD2
v) Whether the plaintiff is entitled to damages/ compensation jointly or severally from defendant no.1 and 2? OPP
vi) Relief.
PLAINTIFF EVIDENCE
7. In order to prove its case, Sh. Munir Nasa, authorized representative of the plaintiff tendered evidence by way of affidavit Ex. PW1/A. He relied upon the following documents:
CS No. 57680/2016 Pages 7 of 26 J.M. Commercial & Company Ltd. Vs. Twinkle Builders & Promoter Pvtl Ltd.
Sr. Documents Exhibited as
No.
1 Copy of certificate for commencement of Ex. PW1/1
business of the plaintiff company (OSR)
2 Resolution dated 02.01.2014 Ex. PW1/2
(objected to
on the
ground of
correctness
of contents of
documents
by counsel
for
defendants
no. 2 and 3)
3. Copy of supplemental agreement dated Ex. PW1/3
10.06.1985, completion certificate, (colly)
possession letter of Flat no. 6 at 10A, (objected to Prithvi Raj Road, New Delhi, allotment for want of and agreement letter dated 15.11.1985 and original and undertaking February, 1996 mode of proof by the counsel for defendants no. 1,2 and
3)
4. Photograph showing illegal construction Ex. PW1/4 at rear set back
5. Photograph showing front set back and Ex. PW1/5 wooden frame
6. Photograph showing raising of balcony Ex. PW1/6 wall front set back and wooden frame
7. Photograph showing construction on rear Ex. PW1/7 side for covering rear set back CS No. 57680/2016 Pages 8 of 26 J.M. Commercial & Company Ltd. Vs. Twinkle Builders & Promoter Pvtl Ltd.
8. Photograph showing construction towards Ex. PW1/8 rear side of premises
9. Copy of letter dated 02.01.2004 written Ex. PW1/9 by plaintiff to defendant no.3 (OSR)
10. Copy of showcause notice dated Ex. PW1/10 10.02.2014
11. Reply dated 28.01.2014 and 31.01.2014 Ex. PW1/11 received by plaintiff company from office (colly) of PIO, NDMC and Department of (only letters Architecture, action taken report dated dated 10.07.2014 from PS Tughlaq Road, and 28.01.2014 reply dated 25.07.2014 to the RTI and application from the office of Additional 31.01.2014 DCP, Delhi Police are on record and exhibited.
Rest of the documents are not on record.)
12. Minutes of meeting dated 01.01.2014 Mark A
13. Copy of completion certificate dated Mark B 31.12.1990 The witness was extensively cross-examined by Ld. Counsel for the defendants. Thereafter, plaintiff evidence was closed.
DEFENDANT EVIDENCE
8. In defence, Sh. N.N. Pandey, authorized representative of defendant no.1 examined himself as DW1. He tendered his evidence by way of affidavit as Ex. D1W1/A and relied upon the CS No. 57680/2016 Pages 9 of 26 J.M. Commercial & Company Ltd. Vs. Twinkle Builders & Promoter Pvtl Ltd. following documents :
Sr. Documents Exhibit No. 1. Board resolution dated 03.01.2019 Ex. DW1/A
2. Copy of lease deed dated 03.06.2013 Ex. D1W1/2 executed between defendant no.1 and (OSR) M/s Vakrangee Press Limited Company
3. Copy of letter dated 15.02.2014 written Ex. D1W1/3 by defendant no. 1 to defendant no. 3
4. Copy of letter dated 15.02.2015 written Ex. D1W1/4 by defendant no.1 to M/s Vakrangee Press Ltd.
5. Copy of letter dated 22.02.2014 written Ex. D1W1/5 by Ashish Saraf to defendant no.1
6. Copy of letter dated 27.11.2013 written Ex. D1W1/6 by defendant no. 2 to defendant no.3
7. Copy of letter dated 10.01.2014 written Ex. D1W1/7 by defendant no. 2 to Ministry of External Affairs
8. Copy of letter dated 17.01.2014 written Ex. D1W1/8 by defendant no. 2 to defendant no.3
9. Copy of letter no. D/262-65/EE(E- Ex. D1W1/9 BR)/14 dated 21.02.2014 issued by defendant no.3
10. Copy of letter dated 24.02.2014 written Ex. D1W1/10 by defendant no.1 to defendant no.3
11. Copy of letter dated 26.02.2014 issued Ex. D1W1/11 on behalf of defendant no. 2 to defendant no.3
12. Copy of Deed of Guarantee dated Ex. D2W1/D1A CS No. 57680/2016 Pages 10 of 26 J.M. Commercial & Company Ltd. Vs. Twinkle Builders & Promoter Pvtl Ltd.
17.11.2017 between defendant no. 2 and defendant no.1
13. Copy of lease deed dated 21.11.2017 Ex. D2W1/D1 between defendant no. 1 and Toplight Corporate Management Pvt. Ltd.
8.1 Exhibition of the documents were objected to by counsel of the plaintiff on the ground of mode and manner of proof, admissibility and relevance. So far as the affidavit of witness is concerned it is objected on the ground that the contents thereof were beyond pleadings. The witness was cross-examined by Ld. Counsel for the plaintiff. Thereafter, defendant no.1 evidence was closed.
9. Defendant no. 2 examined himself as D2/W1. He tendered his evidence by way of affidavit as Ex. D2/W1A and relied upon the following documents :
Sr. Documents Exhibit
No.
1. Copy of letter bearing no. Ex. D2W1/1
DIII/464/03/14(H) dated 21.04.2014
2. Copy of letter bearing no. L-1-9/2(3- Ex. D2W1/2 A)/2014 dated 27.03.2014 from L&DO
3. Copy of letter bearing no. 765/EE/(E- Ex. D2W1/3 BR)/14 dated 12.05.2014 from NDMC
4. Inspection report dated 25.08.2014 Ex. D2W1/4 CS No. 57680/2016 Pages 11 of 26 J.M. Commercial & Company Ltd. Vs. Twinkle Builders & Promoter Pvtl Ltd. FINAL ARGUMENTS
10. Final arguments have been advanced by Sh. Chander Maini, Ld. Counsel on behalf of the plaintiff, Sh. Shiv Chopra, Ld. Counsel on behalf of defendant no.1 and Sh. Joy Bajaj, Ld. Counsel on behalf of defendant no. 2.
REASONING AND APPRECIATION OF MATERIAL ON RECORD
11. The Court has gone through the entire record of the case including pleadings of the parties, evidence led by the parties and documents proved by the parties during trial.
ISSUEWISE FINDINGS A) Whether the present suit is instituted by the authorized persons of plaintiff-company? OPP (Issue no.i)
12. The onus to prove this issue is upon the plaintiff.
12.1 However, before proceeding to appreciate the submissions made. It becomes imperative, to also take note of application under Section 151 CPC read with Order VII rule 11 CPC which was filed on 16.02.2023 on behalf of defendant no.2 averring that while preparing written submissions, it was discovered that the CS No. 57680/2016 Pages 12 of 26 J.M. Commercial & Company Ltd. Vs. Twinkle Builders & Promoter Pvtl Ltd. plaintiff company had seized to exist. It is further averred that Sh. Munir Nasa, AR of the plaintiff inspite of being aware of the same continued to represent himself as the director and authorized representative of the plaintiff company and even tendered his evidence in that capacity on 11.12.2018 vide an affidavit affirming the same. It is stated that the plaintiff company seized to exist on 11.04.2016, itself. Reliance is placed upon Master Data (Annexure A) of the plaintiff company as downloaded from Ministry of Corporate Affairs as per which the last annual general meeting of the plaintiff company was held on 30.09.2015 and the status of the company was converted to L.L.P. Also, relying upon Form 18 (annexure B) and certificate of registration post conversion of the plaintiff company to L.L.P. (annexure C), it is urged that the plaintiff company seized to exist and lost its juristic entity.
12.2 On behalf of defendant no.1, it has been urged on issue no.
(i) that Sh. Munir Nasa has failed to give any specific details of Board Resolution which empowered him to institute the suit. Thereafter, a reference has been made to the resolution dated 02.1.2014 (Ex. PW-1/2) to state that the same is a photocopy and original was not produced. Therefore, it has not been duly proved. Thereafter, leading the Court through cross-examination dated 17.01.2019 on the Board Resolution as well as 22.01.2019, it has been argued that the witness failed to prove he had any authority to institute the suit. Reliance has been placed upon M/s.
CS No. 57680/2016 Pages 13 of 26 J.M. Commercial & Company Ltd. Vs. Twinkle Builders & Promoter Pvtl Ltd. Nibro Ltd. vs. National Insurance Co. Ltd. in Suit no.933/83, decided on 06.03.1990.
12.3 Additionally, relying upon the conversion of the plaintiff company to a LLP, it is further submitted that the plaintiff company is guilty of concealment of true facts and as the factum of the plaintiff having become non-existent, the suit deserves to be dismissed.
12.4 On behalf of the plaintiff, it has been sought to be explained that the objection taken by way of application under Section 151 C PC read with Order VII Rule 11 CPC is frivolous, it is stated relying upon Clause 8 of Schedule III of the Act, LLP Act, that all proceedings by or against the company pending before any Court on the date of registration may be continued, completed and enforced against the LLP. Further, it is also stated that the name of the plaintiff company has been kept intact despite conversion into LLP. Also, it is denied that the plaintiff company has suppressed this information of conversion because it is stated that the counsel for the plaintiff by way of written communication had informed his counsel of the same and it is only a bonafide mistake that in the affidavit of evidence of Sh. Munir Nasa (Ex. PW1/A), he was shown to be a Managing Director of the plaintiff company.
12.5 The suit as it was filed was by a private limited company CS No. 57680/2016 Pages 14 of 26 J.M. Commercial & Company Ltd. Vs. Twinkle Builders & Promoter Pvtl Ltd. and institution of the suit would be governed by Order XXIX of CPC. For the sake of convenience, Order XXIX Rule 1 CPC is reproduced as under:
"Order XXIX Rule of CPC :
Suits by or against corporations
1. Subscription and verification of pleading - In suits by or against a corporation, any pleading may be signed and verified on behalf of the corporation by the secretary or by any director or other principal officer of the corporation who is able to depose to the facts of the case."
12.6 In M/s. Nibro Ltd. (Supra), it has been held as under:
'....22. On the analysis of the judgments, it is clear that Order 29 Rule I of the Code of Civil Procedure does not authorise person mentioned therein to institute suits on behalf of the Corporation. It only authorise them to sign and verify the pleadings on behalf of the Corporation.
23. In my view, the provision of Companies Act, 1956 and particularly Sections 14, 26, 28 Schedule I, Table A and Section 291 are very clear.
24. It is well-settled that under Section 291 of the Companies Act except where express provisions is made that the power of a company in respect of a particular matter are to be exercised by the company in general meeting- in all other cases of Board of Directors are entitled to exercise all its powers. Individual directors have such powers only as are vested in them by the Memorandum and Articles. It is true that ordinarily the Court will not unsuit a person on account of technicalities. However, the question of authority to institute a suit on behalf of a company is not a technical matter. It has far-reaching effects. It often affects policy and finances of the company. Thus, unless a power to institute a suit is specifically conferred on a particular director, he has no authority to institute a suit on behalf of the company. Needless to say that such a power can be conferred by the Board of Directors only by passing a resolution in that regard.
25. Chapter IV of the Delhi High Court (Original Side) Rule deal with the question of presentation of suits. Under the Rule, suit can be presented by duly CS No. 57680/2016 Pages 15 of 26 J.M. Commercial & Company Ltd. Vs. Twinkle Builders & Promoter Pvtl Ltd.
authorised agent or by an advocate duly appointed by him for the purpose. This authorization in my view, in the case of a company can be given only after a decision to institute a suit is taken by the Board of Directors of the company. The Board of Directors may in turn authorise a particular director, principal officer or the secretary to institute a suit.' ( Emphasis supplied) 12.7 Reverting to the present case, Ex. PW-1/2 is the resolution sought to be relied upon. In this regard, the following cross- examination of PW-1 would be relevant to consider:
'....Q6. Can you produce minutes of meeting dated 01.01.2014?
Ans. I do not remember whether the minutes of meetings were recorded or not but I can check and let you know and if available, will produce the same. Q7. I put it to you that no meeting was held on 01.01.2014 and you have given false answers above and you are not authorized to institute the present suit. What do you have to say?
Ans. It is incorrect to my knowledge.
Q8. With respect to your answer to question No. 7. What do you have to say?
Ans. Like, I mentioned in the earlier answer that it is incorrect of you to presume so.
Q9. In answer to question No. 6 you have stated that you will tell about the minutes dated 01.01.2014. Can you say by which date you will be able to do so and produce the same?
Ans/ Like, I mentioned in my previous answer No. 6 I am not aware as of know whether the minutes were recorded or not as this is an old meeting, I will definitely find out by the next date.' Further on 22.01.2019, during cross-examination he further stated:
'....Today I have brought the minutes of meeting dated 01.01.2014 and the copy of completion certificate CS No. 57680/2016 Pages 16 of 26 J.M. Commercial & Company Ltd. Vs. Twinkle Builders & Promoter Pvtl Ltd.
dated 31.12.1990 as called upon to produce on the previous date. The copy of the same are marked as Mark -A and Mark-B. It is incorrect to suggest that document Mark-A is a fabricated/antedated document and only photocopy has been produced to cover up your case.' Again on 05.03.2019 when Sh. Munir Nasa (PW1) was cross- examined, he stated as under:
'...Q.12 Kindly see Board Resolution Ex. PW-1/2. I put it to you that it is a forged and fabricated document. What do you have to say?
Ans. It is incorrect.
Q.13 Can you identify the signatures under the heading of managing director on Ex.PW-1/2?
Ans. Yes. It is my signatures.
Q.14 I put it to you that Ex.PW-1/2 is not the copy of the minutes dated 01.01.2014. What do you have to say?
Ans. It is incorrect.
Q.15 Kindly see document Mark-A. What is this documents?
Ans. It is minutes of meeting of Board of Directors of the plaintiff company dated 02.01.2014. (Since a question has been asked regarding mark A, mark A is now executed as Ex.PW-1/D2-1).
Q.16 Is Ex.Pw-1/2 copy of Mark-A which is now Exhibit PW-1/D2-1?
Ans. It is not.
Q.17 I put it to you that Ex.PW-1/2 and Ex.PW-1/D2-1 are forged documents and therefore you have not produced the originals of same. What do you have to say?
Ans. It is incorrect and originals of Ex.PW-1/2 was produced.
Q.18 Can you produce the original minute book of plaintiff company for the year 2013 and 2014? Ans. At this stage I do not have in my possession the said minutes book. These documents with the plaintiff company chartered accountant.
Q.19 Can you obtain the same from your chartered accountant and produce the same on the next date?
CS No. 57680/2016 Pages 17 of 26 J.M. Commercial & Company Ltd. Vs. Twinkle Builders & Promoter Pvtl Ltd.
Ans. I cannot confirm the same as these are old records lying with C.A. Q.20 Are you in a position to get the same confirmed from your Chartered accountant whether they are available with him or not as a company is to maintain record for 10 years at Дeast?
Ans I cannot confirm the same as it is an old record. Q21 Is it correct that the records such as minutes books and annual accounts are to be maintained by the company at its registered office?
Ans. It is correct.
Q.22 Can you show in Ex.PW-1/D2-1 where it is mentioned, quorum, confirmation of last meeting? (Objected to being a question regarding contents of the document which has already been exhibited) Ans. The minutes of the meeting are self explanatory. Q.23 Is it correct that no time, place of the board meeting have been mentioned in Ex.PW-1/2? (Objected to being a question regarding contents of the document which has already been exhibited) Ans. It is a matter of record.
Q.24 Was any notice for convening of board meeting dated 01.01.2014 of plaintiff company was sent to the Board of directors of the company?
Ans. All statutory requirements of calling a board meeting were followed.
Q.25 Can you produce the dispatch receipt of notices for calling board meeting dated 01.01.2014 of plaintiff company?
Ans. These are matter of record and I do not remember whether the board members were informed about the meeting on telephone or by post. To my knowledge it was by phone.' 12.8 Thus, it is apparent that the board resolution sought to be relied upon could not be duly proved as credible doubts on the minutes of meeting were raised and the orignal minutes of meeting was not produced.
12.9 Even though, personal knowledge of the events is claimed, CS No. 57680/2016 Pages 18 of 26 J.M. Commercial & Company Ltd. Vs. Twinkle Builders & Promoter Pvtl Ltd.
in response to cross-examination on the same, it is also stated as under:
'...Q10. I draw you attention to para 4- line 2 of your affidavit. Where do you draw "information/knowledge"
from?
Ans. To the best of my knowledge I had seen a letter by NDMC the authorized department for buildings in Lutyen Zone whereby it was mentioned in it that this building was a housing society and the same was given completion by the competent authority which is NDMC. Q11. I put it to you that your answer to question No. 10 is false as there exist no such letter and it is a figment of your imagination. What do you have to say? Ans. To put the Ld. Counsel question and doubts about my statement being false, I state that I can produce the said document.' Therefore, doubts have also been raised qua the personal knowledge of the witness. Therefore, on the day when the suit had been instituted, the authority of Sh. Munir Nasa to institute the suit stands traversed.
12.10 Having said so, the subsequent development also needs to be considered. It is not disputed hat the plaintiff company converted to a LLP during the trial of the present suit in the year 2015. Yet, no substitution has been sought. Even though, reliance has been placed upon clause 8 of Schedule III to LLP Act, the same only is to the effect that cause of action would survive upon the LLP. Yet, in view of Section 14 of LLP Act read with clause 6 (c) of the LLP Act, it is apparent that the plaintiff company ceased to exist and on registration as a LLP, the LLP was required to sue in its name. Appropriately, it was incumbent CS No. 57680/2016 Pages 19 of 26 J.M. Commercial & Company Ltd. Vs. Twinkle Builders & Promoter Pvtl Ltd. upon the plaintiff to avail the remedy of substitution as a plaintiff which it failed to do, even despite being put to notice of the same.
12.11 Hence, the issue is decided against the plaintiff.
B) Whether the plaintiff has properly valued the suit for the purpose of decree for damages and injunction and paid appropriate court fees on the same? OPP (Issue no.ii)
13. The onus to prove the issue is upon the plaintiff.
13.1 No arguments have been advanced by the parties on this aspect. However, considering that the evidence on behalf of the plaintiff cannot be read in view of findings on issue no. i, this issue is also decided against the plaintiff.
C) Whether the defendants no. 1 and 2 carried out unauthorized construction at the suit premises 10-A, Prithvi Raj Road, New Delhi including structural changes made in the subject premises? OPP (Issue no. iii) D) Whether unauthorized construction raised by the defendant no.1 and 2 carried after taking requisite permission from the authorities concerned? OPD1 & OPD2 (Issue no. iv)
14. Onus to prove issue no. iii is upon the plaintiff and issue no. iv is upon defendants no. 1 and 2.
14.1 Both the issues are taken up for discussion together CS No. 57680/2016 Pages 20 of 26 J.M. Commercial & Company Ltd. Vs. Twinkle Builders & Promoter Pvtl Ltd. because one of the grounds to claim that the construction being raised by defendant no.1 & 2 is unauthorized is that defendants no.1 & 2 did not take the requisite permission from concerned authorities.
14.2 It has been argued on behalf of the plaintiff that the defendants have admitted that illegal construction has been carried out though, the nature illegal construction is disputed and in view of show-cause notice dated 10.02.2014 (Ex PW-1/10) and letter dated 15.02.2014 of defendant no.1 to defendant 2 (D1W1/3) and photographs (Ex. PW1/4, Ex. PW1/5, Ex. PW1/6, Ex. PW1/7 and Ex. PW1/8), it is proved that unauthorized construction was being raised by defendants no.1 & 2.
14.3 On behalf of defendant no.1, on these issue, it has been submitted that Sh. Munir Nasa did not have the authority to depose on behalf of the plaintiff, therefore, an evidence led by him is a nullity. Further, relying upon the evidence of Sh. N.N. Pandey (D1W1), it is submitted that defendant no.1 never authorized any construction to take place and was not aware of the same till 31.01.2014 when copy of order dated 20.01.2014 was served upon it. It is further argued that defendant no.1 issued letter dated 15.02.2014 (Ex. D1W1/3) informing defendant no.3 about the situation and stating that defendant no.3 was free to take any action against defendant no.2. Also, leading the Court through letter dated 15.02.2014 (Ex.D1W1/3) issued by CS No. 57680/2016 Pages 21 of 26 J.M. Commercial & Company Ltd. Vs. Twinkle Builders & Promoter Pvtl Ltd. defendant no.1 to defendant no.2 requiring compliance of the directions of the Court and NDMC, it has shown its bonafide. Thereafter, relying upon letter dated 27.03.2014 (Ex. D2W1/2), letter dated 21.04.2014 (Ex.D2W1/1), letter dated 12.05.2014 (Ex.D2W1/3) and inspection report dated 25.08.2014 Ex.D2W1/4), it is submitted that clean chit has been given to the construction raised by defendant no.2 as a guard room and staff room are temporary arrangements required by the Consulate of Bahamas and appeared to be reconstructed at the old existing location.
14.4 No arguments have been led by defendant no.2 in this aspect.
14.5 The Court is in agreement that for want of proper authority, evidence of Sh. Munir Nasa cannot be read. Be that as it may, the court cannot lose site of the admissions in written statement of defendant no.1 and defendant no.3 qua the unauthorized construction. It is observed that pursuant to the filling of the present suit and interim orders having been issued on 20.01.2014, defendant no.3 carried out an inspection in the suit property and show cause notice Ex. PW-1/10 dated 10.02.2014 under Section 247 of New Delhi Municipal Act (hereinafter referred to as the NDMC Act) had been issued to defendant no.1. For the sake of convenience, it is reproduced as under :
CS No. 57680/2016 Pages 22 of 26 J.M. Commercial & Company Ltd. Vs. Twinkle Builders & Promoter Pvtl Ltd.
CS No. 57680/2016 Pages 23 of 26 J.M. Commercial & Company Ltd. Vs. Twinkle Builders & Promoter Pvtl Ltd. 14.6 Therefore, on inspection unauthorized construction of nature described above is apparent. By way of response dated 22.02.2014 (Ex. D1W1/5), defendant no.1 stated that only temporary structure was being created and no permanent construction or structural change was being introduced in the demised premises. However, the document was objected to on the mode of proof and its author when examined as D2/W1 was not examined. Be that as it may, it is apparent from the cross examination of D2/W1 that he had made necessary temporary constructions after obtaining compliance. However, during cross examination he also stated as under :
"Q.19 Is it correct that you have constructed a platform 4 ft. in height from ground level with the red sand stone, in an area of 24 x 7 ft. and 26 X 8 in the back of Flat No.2? Ans. It is correct.
Q.20 Apart from that 18 X 7 ft. and 13 X 8 ft. area also enclosed with the help of bricks wall 9 ft. in height to make the same as room in the side set back on the platform? Ans. I am not aware of the measurement. I can only say whatever was constructed was so constructed after obtaining permission and the construction was temporary in nature."
He maintained that he had only done repair work.
14.7 Hence, at least it has been admitted that some construction activity was going on though temporary in nature and limited to some barricading that had been initiated for security reason and for which, request for approval had been sent to L&DO and NDMC. Subsequently, permissions had been obtained.
14.8 In order to appreciate whether the nature of construction CS No. 57680/2016 Pages 24 of 26 J.M. Commercial & Company Ltd. Vs. Twinkle Builders & Promoter Pvtl Ltd. activity was only by way of repair, the testimony of PW-1 and photographs Ex. PW-1/4 to Ex. PW-1/8 would have been of relevance. However, in view of finding on issue no.1, the same cannot be read and therefore, there is not enough material to arrive at a finding whether the construction carried out was in compliance of subsequent permission granted. Hence, the issue no. iii is decided against the plaintiff and no conclusive finding can be given on issue no. iv, in view of written statement of defendant no. 3, alongwith showcause notice dated 10.02.2014 (Ex. PW1/10) and its subsequent report dated 25.08.2014 (Ex.D2W1/4) which appear to be contradictory.
E) Whether the plaintiff is entitled to damages/ compensation jointly or severally from defendant no.1 and 2? OPP
15. Onus to prove this issue was upon the plaintiff.
15.1 However, in view of findings on issue no. i, iii and iv , the plaintiff has not been able to prove the damage claimed by it and therefore, this issue is decided against the plaintiff.
RELIEF
16. In view of the findings and observations herein above, the suit of the plaintiff stands dismissed. No order as to cost.
CS No. 57680/2016 Pages 25 of 26 J.M. Commercial & Company Ltd. Vs. Twinkle Builders & Promoter Pvtl Ltd.
17. Decree Sheet be prepared accordingly.
18. However, this judgment does not preclude defendant no.3 or other concerned authorities from taking steps as per law against any unauthorized construction found at spot.
19. File be consigned to records.
Pronounced in open Court (Vijeta Singh Rawat) on 28.08.2023 Additional District Judge-01, New Delhi District, Patiala House Courts, New Delhi CS No. 57680/2016 Pages 26 of 26 J.M. Commercial & Company Ltd. Vs. Twinkle Builders & Promoter Pvtl Ltd.