Delhi District Court
Ranbir vs . Salokaya College Of Nursing on 5 March, 2015
Ranbir Vs. Salokaya College of Nursing
CS No.748/12
1
IN THE COURT OF SH. MANISH KHURANA: JSCCCUMASCJCUM
GDN. JUDGE: ROHINI COURTS: DELHI
Suit No. 748/12
Sh. Ranbir
S/o Sh. Surajmal,
R/o C1/280, Sector11, Rohini,
Delhi110085 ............... Plaintiff
Versus
Salokaya College of Nursing
Unit of Ascent Education Foundation
Through its Chairman/President/
Managing Director/Director,
Plot No.1147, Rithala,
Near Rithala Metro Station
Car Parking,
Rohini, Delhi85 .............Defendant
DATE OF INSTITUTION: 07.12.2012
DATE OF DECISION: 05.03.2015
SUIT FOR MANDATORY AND PERMANENT INJUNCTION
JUDGMENT :
1. Vide this judgment, I proceed to decide the suit for mandatory and permanent injunction filed by the plaintiff vide which the plaintiff has prayed for directions to the defendant not to desist the plaintiff from Ranbir Vs. Salokaya College of Nursing CS No.748/12 2 entering the premises of the defendant and to take the articles and cash amount of the plaintiff kept in the premises. The plaintiff has also prayed for restraining the defendant from dispossessing the plaintiff from the premises and from extending threats to the plaintiff.
2. As per the case of the plaintiff, the plaintiff was earlier appointed as Care Taker by the defendant and he was initially appointed to run the mess of the defendant w.e.f. 10.10.2006 till 10.10.2008 and it was agreed between the parties that the defendant would pay the amount of Rs.1200/ towards the meal charges for each student. It is alleged that there was no written contract between the parties and the said oral agreement continued till the year 2010 and the payment to be made by the defendant was raised to Rs.1300/ per student. It is further alleged that in the year 2010 the defendant asked the plaintiff to enter into a contract for running the mess and to deposit the sum of Rs.4 lacs as security deposit but the plaintiff was not in a position to deposit the said amount and it was agreed that the defendant would deduct Ranbir Vs. Salokaya College of Nursing CS No.748/12 3 Rs.25,000/ after every two months from the payment to be made to the plaintiff and it was also decided to deduct 10% amount as the commission/profit of the defendant for awarding the contract. It is alleged that from October 2010 the defendant in order to cancel the contract, started deducting the sum of Rs.25,000/ and 10% commission per month instead of after every two months as assured by the defendant. It is also alleged that the security deduction of Rs. 25,000/ per month which was done by the defendant from October 2010 till May 2011 total amounting Rs.2 lacs remained with the defendant and the defendant assured to refund the same to the plaintiff at a time of final payment. It is further alleged that the defendant raised his profit margin to 15% and plaintiff having no other option agreed to the same and the defendant also carried out the deduction of security amount of Rs.25,000/ per month from August 2011 till December 2011 which was also assured to be returned by the defendant at a time of final payment. It is alleged that in the first week of November 2012, the Ranbir Vs. Salokaya College of Nursing CS No.748/12 4 Chairman of the defendant organisation alongwith some local goons came at the mess where the plaintiff was working and they extended threats to the plaintiff to vacate the premises of the defendant. It is alleged that plaintiff has kept certain articles like utensils and the cash amount of Rs.1.5 lacs in his room in the said mess. It is also alleged that the defendant stopped the ingress of the plaintiff in the premises and extended threats not to come to the premises of the defendant ever again. Hence, the present suit has been filed.
3. The defendant was summoned by ld. predecessor of this court vide order dated 10.12.2012. Ld. counsel for the defendant appeared and filed WS in which allegations leveled in the plaint were denied and it is alleged that the services provided by the plaintiff were poor and the contract of the plaintiff to run the mess was terminated in November, 2012 and the plaintiff was asked to vacate the premises and that the plaintiff is liable to pay the sum of Rs.13,86,922/ to the defendant. The defendant specifically denied that any articles or cash amount of the Ranbir Vs. Salokaya College of Nursing CS No.748/12 5 plaintiff as alleged are lying in the premises of the defendant. It is alleged that the contract between the parties has expired and plaintiff has no locus standi to seek the reliefs claim.
4. Vide order dated 06.08.2013 following issues were settled by ld. predecessor of this court:
1. Whether the plaintiff is entitled for the relief of permanent injunction as prayed for ? OPP.
2. Whether the plaintiff is entitled for the relief of mandatory injunction as prayed for? OPP.
3. Relief.
5. To prove the case, the plaintiff examined himself as PW1 and the defendant examined Sh. Naresh Kumar AR of the defendant as DW1.
6. I have heard the arguments and perused the material available on record.
7. Issuewise findings are as under: Ranbir Vs. Salokaya College of Nursing CS No.748/12 6 ISSUE NO. 1 Whether the plaintiff is entitled for the relief of permanent injunction as prayed for ? OPP
8. The plaintiff has prayed for decree of permanent injunction for restraining the defendant from dispossessing the plaintiff from his premises. The plaintiff has claimed that he has a legal right to run the mess in the college premises and the defendant has dispossessed him from his premises of the mess. The plaintiff has pleaded in the pleadings that in the first week of November 2012 the defendant Mr. Pradeep, who is the Chairman of the defendant organisation along with some local goons came at the mess where the plaintiff was working and extended threats to vacate the premises. It is also alleged that the defendant has stopped the ingress of the plaintiff in the premises of the defendant.
9. In prayer clause, the plaintiff has prayed that the defendant be restrained from dispossessing the plaintiff from the premises of the Ranbir Vs. Salokaya College of Nursing CS No.748/12 7 mess. Admittedly the mess is situated in the premises of defendant college and the premises of the college belongs to the defendant and not to the plaintiff. As per the case of the plaintiff himself, initially there was an oral yearly agreement for running the mess in the premises of the defendant and the plaintiff has not produced any written agreement between the parties. DW1 has relied upon the affidavits signed by the plaintiff Ex.DW1/2 and Ex.DW1/3 which show that the permission to run the mess was accepted by the plaintiff on yearly basis and the last permission is shown to have been accepted w.e.f. 01.08.2011 till 01.08.2012 and all the terms and conditions have been accepted by the plaintiff vide said affidavit. It is also mentioned in the said affidavits that in case of any discrepancy or dispute in the terms explained, the decision of management i.e. defendant shall be final and the management/defendant had the right to cancel the agreement. As per affidavits of plaintiff relied upon by defendant as Ex.DW1/2 and Ex.DW1/3, the term of agreement between the parties to run the mess Ranbir Vs. Salokaya College of Nursing CS No.748/12 8 has already expired.
10. In the instant case, the plaintiff is claiming his right to enter the premises of the defendant to run the mess and he has not shown any agreement or contract subsisting between the parties with regard to running the mess. In the absence of an agreement or contract between the parties to run the mess, the plaintiff cannot be allowed to enter the premises and the defendant is well within his right to restrain the plaintiff from entering the premises of the defendant. In the pleadings, the plaintiff has stated that he has already been dispossessed by the defendant from the mess premises, however, the plaintiff has prayed for the decree of permanent injunction for restraining the defendant from dispossessing him from the premises. The plaintiff has failed to prove his right to run the mess in the premises of the defendant and consequently the plaintiff is not entitled to the decree of permanent injunction as prayed for. So far as the alleged receipt of security amount by the defendant is concerned, plaintiff may institute separate Ranbir Vs. Salokaya College of Nursing CS No.748/12 9 proceedings for recovery thereof as per terms of agreement between the parties but the plaintiff cannot claim his exclusive right to run the mess of the defendant's college in the absence of a contract between the parties to that effect. The plaintiff has failed to show any obligation of the defendant to allow the plaintiff to run the mess and without proof of agreement/contract between the parties, court cannot force the defendant by way of an injunction order to get the mess of the college run only by the plaintiff. Accordingly, this issue is decided against the plaintiff and in favour of the defendant.
ISSUE NO.2 Whether the plaintiff is entitled to the relief of mandatory injunction as prayed for? OPP.
11. The plaintiff has sought the decree of mandatory injunction against the defendant for stopping the defendant from extending threats to the plaintiff and for directions to the defendant not to desist the plaintiff from entering into the premises of the defendant and to take Ranbir Vs. Salokaya College of Nursing CS No.748/12 10 articles and the cash amount kept in the premises as mentioned in para 7 of the plaint.
12. Section 39 of the Specific Relief Act defines the cases in which mandatory injunction can be granted.
13. Section 39 of the said Act reads - when, to prevent the breach of an obligation, it is necessary to compel the performance of certain act which the court is capable of enforcing, the court may in its discretion grant an injunction to prevent the breach complained of, and also to compel performance of requisite acts.
14. Therefore, two elements have to be taken into consideration for granting in mandatory injunction i.e. (i) the court has to determine what acts are necessary in order to prevent a breach of obligation and
(ii) the requisite acts must be such as the court is capable of enforcing.
15. In see Kunhammad Vs. C.H. Ahamad Hazi AIR 2001 KER. 101 the court observed that the exercise of power to grant mandatory Ranbir Vs. Salokaya College of Nursing CS No.748/12 11 injunction must be attended with the greatest possible caution and is strictly confined to cases where the remedy of damage is inadequate for the purposes of justice and the restoring of things to their former condition is the only remedy which will meet the requirements of the case. The Court will not interfere except in cases where there are extreme serious damages caused which cannot be compensated.
16. The plaintiff has sought the directions to the defendant not to desist the plaintiff from entering into the premises of the defendant and to take the articles and amount lying therein. For seeking the relief of mandatory injunction plaintiff is required to prove that the acts sought to be done are necessary in order to prevent a breach of obligation and that the requisite acts are such as the court is capable of enforcing. In the present case, the premises belongs to the defendant and the plaintiff was earlier providing his services by running a mess therein and the term of agreement between the parties has already expired. Therefore, the license of the plaintiff to use the premises of the defendant for Ranbir Vs. Salokaya College of Nursing CS No.748/12 12 running the mess has expired and plaintiff is not having any right in premises so as to seek court's directions to enter into the premises of the defendant.
17. The plaintiff has sought directions against the defendant not to desist him from taking his articles and the amount lying in the premises as mentioned in para 7 of the plaint. In para 7 of the plaint, the plaintiff has alleged that he has kept certain utensils, fridge, gas store, mixture and other things and also the amount of Rs.1.5 lacs in the room of the mess.
18. It is the case of the defendant that the contract to run the mess has already been given to another person since the year 2012 and no goods of the plaintiff are lying in the premises as alleged. The plaintiff has claimed his article and the cash amount of Rs.1.5 lacs, however, he has not produced any proof regarding the fact that the articles belong to him or that the said articles were kept by the plaintiff. The plaintiff has not filed any bills, receipts or invoices regarding the Ranbir Vs. Salokaya College of Nursing CS No.748/12 13 articles as alleged by him and he has also not proved that the alleged goods and cash amount are lying in the mess in the premises of the defendant. The relief of injunction is a discretionary relief and I am of the opinion that the case putforth by the plaintiff is not of such a nature so as to exercise the discretion in favour of the plaintiff and against the defendant. Accordingly this issue is decided against the plaintiff and in favour of the defendant.
19. RELIEF: The suit filed by the plaintiff seeking mandatory and permanent injunction is hereby dismissed and disposed of. Decree sheet be drawn accordingly. File be consigned to record room after due compliance.
Announced in the open (Manish Khurana)
Court on 05.03.2015 JSCCcumASCJcumGudn. Judge
North, Rohini Courts, Delhi