Delhi District Court
M/S. Jmk E-Services Pvt. Ltd vs Sh. Hemant Kumar Taneja Huf on 23 July, 2007
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IN THE COURT OF SH. SATISH KUMAR ARORA, CIVIL JUDGE, DELHI
SUIT NO : 1485/06
M/s. JMK e-Services Pvt. Ltd.
..........Plaintiff
Versus
Sh. Hemant Kumar Taneja HUF
..........Defendant
ORDER
1. M/s. JMK e-Services Pvt. Ltd. has filed the present suit for mandatory and permanent injunction through its Director Sh. Alphi Chugh against the defendant. Along with the plaint, the plaintiff has also filed an application under Order 39 Rule 1 & 2 CPC for interim injunction. By this order, I propose to dispose of the said application.
2. Before discussing the rival contentions of the parties, it would be important to give a brief summary of facts. Plaintiff company is a private limited company having its registered office at B-10, Second Floor, LSC, Gujrawalan Town, Delhi (hereinafter called the suit property). Sh. Alphi Chugh is the Director/Authorized representative of the plaintiff company. It is Page 1 of 13 -:2:- the case of the plaintiff company that it had taken on rent from the defendant the suit property at a monthly rent of Rs. 2,500/- for carrying on its business. It is further stated that the defendant had taken Rs. 5 Lacs as refundable security from the plaintiff company, the details of the same have been given in the plaint. It is the case of the plaintiff that no formal lease deed has been executed between the parties for the reason that renovation work was still to be done by the plaintiff for the proper use of the suit property as an office of the plaintiff company. It was agreed between the parties that the defendant would install a meter with 11 KVA load connection and thereafter, the lease deed would be executed between the parties. It is the case of the plaintiff that pursuant to the above said understanding and agreement between the parties, the plaintiff started the work of renovation in the suit property. It is the case of the plaintiff that the electricity meter with 11 KVA load connection was not immediately installed by the defendant, the same was done after repeated requests were made by the plaintiff. However, the meter that was installed by the defendant was of 16 KVA load connection. The plaintiff tendered the rent w.e.f. November, 2006 to the defendant, the same was accepted by the defendant. However, no rent receipt of the same has been filed.
3. It is the case of the plaintiff that when the rent for the month of December, 2006 was tendered by the plaintiff to the defendant, the defendant refused to accept the same and demanded that the plaintiff should increase the rent to the tune of Rs. 50,000/- per month. This came as a shock to the plaintiff. The plaintiff reminded the defendant that the lease deed is still to be Page 2 of 13 -:3:- executed and that too on the terms and conditions agreed upon between the parties. It is the case of the plaintiff that the intention of the defendant has become bad for the reason that the rates of rent in the locality have gone up. The defendant had started harassing and humiliating the plaintiff on one pretext or the other and also threatened the plaintiff either to vacate the premises or to enhance the rate of rent as demanded. It is the case of the plaintiff that on the morning of 19.12.2006, the defendant along with some persons entered into the premises of the plaintiff and to fulfill his illegal and unlawful design of forcibly dispossessing the plaintiff, started throwing the goods and articles of the plaintiff out of the suit premises. It was only when the plaintiff raised hue and cry and respectable persons of the locality gathered at the spot, that the defendant left the suit premises. However, the defendant while leaving the suit premises threatened the plaintiff to vacate the suit premises, otherwise he will forcibly dispossess the plaintiff from the suit premises. The plaintiff approached the local police with respect to the above said incident, however no action has been taken by the police. The plaintiff, by way of present suit, has approached this court as the plaintiff fears that it will otherwise be forcibly dispossessed from the suit premises.
4. The defendant has strongly opposed the injunction application by filing the reply along with his written statement. It is the case of the defendant that the plaintiff company through its Director Sh. Alphi Chugh had approached the defendant and other co-owners of the suit property sometime in the month of June, 2006 through local property liaison agents Sh. Pankaj Page 3 of 13 -:4:- Seth and Sh. Sunil Piplani, for taking on rent the suit premises for the purpose of setting up a call center. It is the case of the defendant that the rent agreed between the parties was Rs. 30,000/- per month and not Rs. 2,500/- per month as alleged by the plaintiff in its plaint. The averment of the plaintiff that it has paid Rs. 5 Lac to the defendant is also denied. In fact, it is averred by the defendant that only Rs. 1,25,000/- by way of crossed cheques has been received from the plaintiff towards the security amount of Rs. 1,80,000/- (equivalent to 6 months rent). It is the case of the defendant that since the demised premises/suit premises was in need of repairs, the defendant employed labour to carry out the said repairs in the mid of June, 2006 before letting out the suit premises to the plaintiff. During the pendency of the said repair works, Sh. Alphi Chugh approached the defendant and requested that he be allowed to carry out work of interiors in the suit premises so that he may start his business in right earnest w.e.f. July, 2006. The defendant allowed the plaintiff to carry out the said interior works along with the repair work that was already being done on behalf of the defendant.
5. It is further the case of the defendant that when the repair work was done, somewhere in the last week of June, 2006, the plaintiff requested the defendant that the keys of the suit premises be handed over to the plaintiff for the reason that the interior work was yet to be completed and the plaintiff does not want unnecessarily to bother the defendant time and again for handing over the key. The defendant, at first, declined the request of the plaintiff citing the reason that the lease deed, as agreed during negotiations, is yet to be Page 4 of 13 -:5:- executed in writing. But on the persistent request of plaintiff to the effect that it would suffer great loss if the center did not become functional shortly, the defendant handed over the keys of the suit premises to the plaintiff with a clear and unequivocal understanding that the handing over the keys did not amount to handing over the possession of the suit premises. It was further made clear to the plaintiff that the possession of the suit premises would be handed over only after the execution of the lease deed. It is the case of the defendant that the plaintiff with mala fide and dishonest intention took over the keys of the suit premises under the garb of carrying out the work of interiors. It is the case of the defendant that in fact, the possession of the suit premises has never been legally handed over to the plaintiff and the status of the plaintiff qua the suit property is that of a rank trespasser or that of an unauthorized occupant. It is further the case of the defendant that despite numerous requests, the plaintiff for one reason or the other, had failed to execute the lease deed as agreed. In fact, the defendant and the other co- owners were shocked to see that the plaintiff had installed computers and was in the process of starting the work from the suit premises without executing the lease deed. It is the case of the defendant that the plaintiff had failed to execute the lease deed qua the suit property and had also not tendered the agreed rent of Rs. 30,000/- per month, the plaintiff in view of the said facts is not entitled to any relief from this court. The plaintiff can not be given any benefit or any relief for the reason that plaintiff is a rank trespasser and has, in a fraudulent manner and with ill motives, taken over the possession of the suit premises.
Page 5 of 13 -:6:-6. I have heard the respective submissions made by the ld. counsel for the parties and gone through the record. Ld. counsel for the plaintiff had in a nut shell contended that the plaintiff is having a prima-facie case in its favour for the reason that the plaintiff company is in peaceful possession of the suit premises. Ld. counsel for the defendant has vehemently opposed the plaintiff's application. The first contention raised by the ld. counsel for the defendant is that the plaintiff is guilty of suppression and concealment of material facts and as such, the suit itself is liable to be dismissed, what to talk of giving the discretionary relief of injunction. Ld. counsel for the defendant points out that the averment of the plaintiff to the effect that the agreed rate of rent is Rs. 2,500/- per month can not be believed for the reason that the defendant in the present suit had given on rent other portions of the said property to other tenants at a much higher rate of rent per month. Further, the rate of rent as fixed by the MCD for a commercial property in the given locality is also much above the rate of rent as alleged by the plaintiff. Ld. counsel for the defendant contends that the application of the plaintiff merits dismissal on this ground alone as the plaintiff is guilty of concealing material facts. Ld. counsel for the plaintiff contends that any dispute as to the rate of rent is not to be seen while deciding the present application. What is the rate of rent, is a matter of trial and it can not form the basis of adjudicating the present application. Ld. counsel for the defendant contends that the averment of the plaintiff as to the rate of rent is a concealment of material fact and the same can not be overlooked while adjudicating upon the present application.
Page 6 of 13 -:7:-Ld. counsel for the defendant further submits that this court is having the power to take judicial notice of the fact of rate of rent prevalent in the locality where the suit property is situated as per Section 114 of the Evidence Act. This contention is strongly objected to by the ld. counsel for the plaintiff who submits that at this stage of deciding the application under Order 39 Rule 1 & 2 CPC, the court has only to see the fact that the plaintiff is having a prima- facie case in its favour. Any inquiry into the fact of rate of rent is a matter of trial and can not be taken into consideration at this stage.
7. Ld. counsel for the plaintiff relies upon the judgment of the Bombay High Court in Sarla Devi Vs. Shailesh AIR 1996 Bombay 98 wherein, it was observed that "A person in possession can be evicted only in due process of law. Even the rightful owner can not eject him with force. If he can not be evicted with force, he continues to be in possession and he can resist invasion of his possession by everyone including the rightful owner. If the rightful owner threatens his peaceful possession, he can approach Courts of law and pray the equitable relief of injunction to protect his possession. It was further observed that the ultimate position, therefore, reduces itself to this : Can a person in possession without title sustain a suit for possession against the rightful owner if he proves possession? Yes. A person in possession can be evicted only in due process of law." Ld. counsel further places reliance on the judgment delivered by the Hon'ble Supreme Court of India in Krishan Ram Mahale Vs. Shobha Venkat Rao (1989) 4 SCC 131 wherein, it was Page 7 of 13 -:8:- observed that "The law requires that the true owner should dispossess the trespasser by taking recourse to the remedies under the law. Ld. counsel for the plaintiff further cites the judgment of Hon'ble Karnataka High Court in M/s. Patil Exhibitors Pvt. Ltd. Vs. Corporation of the City of Bangalore AIR 1986 Karnataka 194 wherein, it was observed that "The protection that the court affords is not of the possession which in the circumstances is litigious possession and can not be equated with lawful possession - But a protection against forcible dispossession. The basis of relief is a corollary of the principal that even with the best of title there can be no forcible dispossession.
8. Ld. counsel for the defendant contends that when the plaintiff is not coming with clean hands and is suppressing material facts, he can not be given the relief of interim injunction. Ld. counsel for the defendant places reliance on the following judgments/authorities in his support :-
(i) Franz Zaver Huemer Vs. New Yesh Engineers 1996 PTC (16) : Wherein, it was observed by the Hon'ble High Court of Delhi "It is well settled that to be entitled to the grant of an ad-interim injunction, the plaintiff has to show existence of a prima-facie case, balance of convenience in his favour and an irreparable injury. Apart from these, the conduct of the parties has also to be kept in view."
(ii) Swaran Singh Vs. Sh. Naresh Kumar 2002 IV AD (Delhi) 786 : In this case, application of the plaintiff U/o 39 Rule 1 & 2 CPC was disallowed for the reason that neither the plaintiff was the exclusive owner of the suit Page 8 of 13 -:9:- property not was he in exclusive possession thereof. While dismissing the said application, it was observed by the Hon'ble High Court of Delhi that "It is well known that there are certain maxims which lies on the basis of equity jurisprudence. They govern the court in granting and withholding the relief of temporary injunction. Important amongst them is fair and good conduct of the party. The maxim that one who comes into the equity must come with clean hands is also confined to the conduct of the party. A party, who seeks equity must come stating correct facts. In case facts are suppressed in connection with the matters in litigation, the party indeed loose the right to seek the injunction."
(iii) Pepsico Restaurants International (I) (P) Ltd. Vs. MCD & Ors. 1995 (35) DRJ (DB) : It was observed by the Hon'ble High Court of Delhi that "A judge is supposed to know the facts and realities of life. Under Section 114 of the Evidence Act, the court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business in their relation to the facts of the particular case."
(iv) M. Gurudass & Ors. Vs. Rasaranjan & Ors. VI (2006) SLT 603 : It was observed by the Hon'ble Supreme Court of India that "While considering the question of granting an order of injunction one way or the other, evidently, the court, apart from finding out a prima-facie case, would consider the question in regard to the balance of convenience of the parties as also irreparable injury which might be suffered by the plaintiffs if the Page 9 of 13
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prayer for injunction is to be refused. The contentions of the plaintiffs must be bona fide. The question sought to be tried must be a serious question and not only a mere triable issue."
(v) M/s. Polymer Papers Ltd. Vs. Gurmeet Singh & Ors. AIR 2002 Delhi 530 : Wherein, it was held that "The plaintiffs having failed to show any exclusive right protected under any of the Intellectual Property Laws, plaintiffs can not even claim a restraint against the defendants from carrying any trade or business similar to that of the plaintiffs".
(vi) Surender Kumar Singhal Vs. MCD 102 (2003) DLT 45 : It was observed that "Relief of injunction being discretionary in nature can not be granted to a person who comes to the court with uncleaned hands."
(vii) M/s. Glaxo Smithkline Consumer Healthcare GMBH and Co. KG Vs. M/s. Amigo Brushes Pvt. Ltd. & Anr. 109 (2004) DLT 41 : In this case plaintiffs application under Order 39 Rule 1 & 2 CPC for restraining the defendants from manufacturing, selling or offering sale of tooth brushes, was dismissed as no prima-facie case was made out.
(viii) S. Raminder Singh Vs. NCT of Delhi & Ors. 102 (2003) DLT 511 : In this case plaintiff's petition under Section 9 of the Arbitration & Conciliation Act, 1996 was dismissed on account of the fact that the plaintiff was found guilty of concealing material fact in view of the fact that prior to the filing of petition under Section 9 of the Act, plaintiff had also filed a civil suit as well as a writ petition with respect to the similar reliefs. While dismissing the petition under Section 9 of the Arbitration & Page 10 of 13
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Conciliation Act, 1996, it was observed that "Grant of interim relief is a discretionary remedy. The discretion has to be exercised in the light of well settled principles of law as to whether there is a prima-facie case, balance of convenience and probability of irreparable loss of injury. While seeking the discretionary relief, petitioner is bound to approach the court with clean hands and not to conceal the facts."
9. Having heard the respective submissions of the ld. counsel for the parties, taking note of the authorities relied upon by the parties and after perusal of the documents placed on record, I am of the considered opinion that the plaintiff company is having a prima-facie case in its favour. It is well settled that the courts while considering an application for injunction must have regard to (i) prima-facie case (ii) balance of convenience and (iii) irreparable injury. Furthermore, the court must take note of the fact that the contention of the plaintiff must be bona fide. In the present case, it is not in dispute that the plaintiff company is in possession of the suit premises. The same is also reflected in the order of my Ld. Predecessor dated 23.12.2006 wherein, the defendant Sh. Hemant Taneja admitted before this court that the plaintiff is in possession of the suit property. The main contention of the ld. counsel for the defendant in opposing the present application of the plaintiff is that the plaintiff is guilty of concealing material fact to the extent that the rate of rent agreed between the parties was not Rs. 2,500/- per month but it was Rs. 30,000/- per month. No doubt, it is well settled that the person who seeks equity must come with clean hands. This court has to see whether the Page 11 of 13
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averment of the plaintiff that the rate of rent is Rs. 2,500/- per month is a concealment of material fact or not? I am of the considered opinion that no doubt the averment of the plaintiff that rate of rent is Rs. 2,500/- per month can not be believed, but it is also to be taken note of that where the possession of the plaintiff is admitted in the suit premises, equity lies in favour of the plaintiff for not being forcibly dispossessed from the suit property by the defendants. As to whether the plaintiff is guilty of concealing material fact and not coming before this court with clean hands, it is to be seen that no formal lease deed has been executed between the parties neither any document has been placed on record by either of the parties in support of their contention as to the exact rate of rent with respect to the suit property. Hence, the question that whether plaintiff is guilty of concealment of material fact or not can not be determined at this stage.
10. From the above said discussion and in the light of the fact that when the defendant has not placed on record any document to show that he has proceeded against the plaintiff in the present suit as per law, I am of the considered opinion that the present application of the plaintiff under Order 39 Rule 1 & 2 CPC is to be allowed only on account of the fact that the plaintiff can not be dispossessed from the suit property without following the procedure recognized by law. Accordingly, defendant, his relatives, agents are hereby restrained from forcibly dispossessing the plaintiff from the suit premises till the disposal of the suit. Nothing said herein above shall tantamount to expression of opinion on the merits of the present case.
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However, the defendant will be entitled to take all such steps as may be open to it at law to resume possession. The injunction that is granted shall not come in the way of the defendant resuming possession in a manner known to or recognized by law.
Put up for further proceedings, for 04.10.07.
Announced in open court:
Dated : 23rd July, 2007 (SATISH KUMAR ARORA)
(Three copies attached) CIVIL JUDGE, DELHI
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