Delhi District Court
United Sports Traders (Delhi) Pvt. Ltd vs Sachdeva Sons Enterprises Pvt. Ltd on 3 January, 2013
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IN THE COURT OF SH. DIG VINAY SINGH
ADDL. DISTRICT JUDGE-04 : CENTRAL : DELHI
In the matter of :
Suit No. 276/12
United Sports Traders (Delhi) Pvt. Ltd. .... Plaintiff
Versus
Sachdeva Sons Enterprises Pvt. Ltd. .... Defendant
3.1.2013
ORDER
1. An application Under Order 26 read with Section 151 of CPC, filed by the plaintiff, is subject matter of this order.
2. The plaintiff in this application prays :-
a. appointment of a Local Commissioner to inspect the suit premises and to report as to the structural changes and damages caused by the defendant while vacating it;
b. Restrain the defendant Parminder Sachdeva and his wife or Alpine Modular Interiors Pvt. Ltd. from creating any third party interest in the suit property;
c. to restore the possession of the property to the plaintiff; d. Send a criminal contempt reference against Parminder Sachdeva, his wife and Alpine Modular Interiors Pvt. Ltd.
2. Briefly stated, the facts of this case are that the plaintiff has filed present Suit no. 276/12 Pg... 1 of 8 -2- suit for permanent and mandatory injunction claiming to be owner in possession of suit property i.e. Property no. 107-C, Okhla Industrial Area, Phase-3, New Delhi. Plaintiff claims that the defendant through Parminder Sachdeva approached the plaintiff in 1980 for appointing the plaintiff as its manufacturing/servicing Agent. The defendant was carrying on the business of manufacture of furniture and allied products. A deed of agency was entered into between the plaintiff and the defendant through Mr. Mohinder Mohan Kohli as CMD of the plaintiff and Parminder Sachdeva as Director of the defendant. The deed of agency was renewed lastly on 1.11.1984 for a period of 24 months. Plaintiff claims that under the said deed of agency, the occupation and possession of the suit premises remained exclusively with the plaintiff and it was also provided in the deed that defendant shall not claim to be a tenant or licensee of the plaintiff in respect of the suit premises. Subsequently, some inter se dispute arose between the directors of the plaintiff company and taking advantage of the dispute, the defendant failed to meet its obligations under the deed of renewal. The defendant subsequently filed an inter-pleader suit requiring the plaintiff and Mohinder Mohan Kohli on the one hand to inter plead with Sh.Vijay Mohan Kohli and his wife on the other hand, in respect of the claim to recover supervision and processing charges from the defendant. In the said suit, the defendant falsely claimed to be a tenant in the suit property. In the plaint, it is also averred that the defendant abandoned the suit property but is not permitting the plaintiff to use, occupy or possess the suit property and is threatening to put up its lock at the suit premises. Plaintiff also apprehended third party alienation of the suit property and thus filed the present suit with a prayer for permanent injunction restraining the Suit no. 276/12 Pg... 2 of 8 -3- defendants from entering the suit property; a prayer of mandatory injunction directing the defendant to remove the security put up at the premises; a decree of permanent injunction restraining the defendant from interfering with the peaceful use, occupation and possession of the plaintiff qua the suit property and; a decree of permanent injunction restraining the defendant from creating third party interest in the suit property.
3. The defendant contested the suit claiming that the plaintiff is not in possession of the suit property and it is defendant who is in settled lawful possession of the suit property. Defendant claims that at no point of time the possession of the suit property was handed over to the plaintiff or anybody else by the defendant and the suit was thus not maintainable. We need not go into other details of the written statement being unnecessary for decision of the present application.
4. In the present application, the plaintiff claims that in February 2012, the plaintiff accidentally came to know that in fact the property is used and occupied by Alpine Modular Interior Pvt. Ltd. and not by the defendant Sachdeva Sons Enterprises Pvt. Ltd. Plaintiff claims that Sh. Parminder Sachdeva and his wife are the only directors of Alpine Modular Interior Pvt. Ltd. and in fact Sachdeva Sons Enterprises Pvt. Ltd. ceased to carry on operation since 1990 when the only second director besides Parminder Sachdeva, namely, Sh.K.C.Sachdeva expired. Even name of the defendant company was struck off from the rolls of Registrar of Companies on 12.2.2007 on an application filed by Parminder Sachdeva in 2005. The premises is used by Alpine Modular Interior Pvt. Ltd. as a godown without Suit no. 276/12 Pg... 3 of 8 -4- intimation to the plaintiff. Defendant did not intimate this court about it and a huge property of 2150 Sq. Feet was being used by the defendant at a meager cost of Rs. 3630/- per month which is being deposited in the name of defendant despite it having ceased to exist. The plaintiff claims that when the plaintiff learnt about it and gave information about it to the court in another inter pleader suit, on 1.6.2012, Parminder Sachdeva sought time for clarification but meanwhile removed all the material from the suit property and also the structure was damaged. Plaintiff claims that the defendant is contemplating creation of third party interest in the suit property and in case defendant surrenders the possession of the suit property in the inter pleader suit, it would amount to creating third party interest in the suit property and it would also amount to decreeing of inter pleader suit against Mohinder Mohan Kohli without trial.
5. The present application is opposed by the defendant on the ground that the plaintiff has not sought relief of possession in the main suit and in the present application, neither possession can be sought by the plaintiff nor any other prayer is made out in favour of the plaintiff.
6. I have heard Ld. Counsels for both the sides and I have perused the record.
7. As mentioned above, the suit has been filed by the plaintiff seeking permanent and mandatory injunction only. In the suit, the plaintiff claimed that possession of the suit property is with the plaintiff and not with the defendant. On 6.3.2003, first Local Commissioner was appointed in the suit who submitted his report on 10.3.2003 stating that the defendant is in Suit no. 276/12 Pg... 4 of 8 -5- occupation of the suit property. On 20.5.2003, the same Local Commissioner was again appointed to inspect the suit property qua the structural changes and on that very day, status quo order qua the suit property was also passed.
8. Subsequently, seven issues were framed on 7.8.2006 including the issue no. 5 & 6 to the following effect :-
"5. Whether the plaintiff is entitled to the relief of possession of the suit property from the defendant? OPP.
6. Whether the plaintiff is entitled to any mesne profits and damages from the defendant? If so, for what period and at what rate? OPP."
9. My Ld. Predecessor Court vide its order dated 6.12.2010, on an application Under Order 14 Rule 5 CPC, deleted the issue no. 5 & 6 stating that both these issues framed in the present suit were beyond pleadings. In the said order, my Ld. Predecessor Court specifically mentioned that neither were these reliefs prayed by the plaintiff nor the Court Fees qua them was paid. My Ld. Predecessor Court observed that the present suit is a simplicitor suit for injunction in which the plaintiff claimed to be in possession of the suit property, and the above mentioned two issues cannot sustain without amendment of the plaint.
10. Subsequently, the plaintiff filed an application for amendment of the plaint which came to be dismissed on 28.3.2011, in which my Ld. Predecessor observed that the suit was filed eight years ago from that day and as many as two Local Commissioners were appointed and on both the occasions it Suit no. 276/12 Pg... 5 of 8 -6- was reported by the Local Commissioners that the suit property was in possession of the defendant and not the plaintiff but despite these repeated reports, plaintiff continued with the plea that the suit property is in its possession. No attempt was made to reconcile the factual position in the plaint. It is not the case of the plaintiff that it was dispossessed from the suit property after filing of this suit and, therefore, the amendment sought was hit by the proviso of Order 6 Rule 17 CPC. The application for amendment was thus, dismissed with a cost of Rs.2500/-. In the said amendment, the plaintiff had sought possession of the suit property claiming that it is not in the possession of the suit property whereas in the original plaint and throughout evidence, the stand of the plaintiff was that it is in possession of the suit property.
11. The order dated 28.3.2011 dismissing the amendment application of the plaintiff was not challenged by the plaintiff anywhere. That order has attained finality. On 9.9.2011 however, an application for review of the order dated 6.12.2010, deleting the two issues, was filed. That application is pending.
12. It would be also worth mentioning here that evidence of both the sides has already concluded and the present matter was at the stage of final arguments at the time when it was received in this court by transfer and when this application was filed.
13. The plaintiff has relied upon the following cases : -
1.S.P.Chengalvaraya Naidu Vs. Jagannath AIR 1994 Supreme Court 853;
Suit no. 276/12 Pg... 6 of 8 -7-
2. Liberty Sales Vs. Jakki Mal 1997 (66) DLT 506 = 1997 (41) DRJ 26;
3. Court on its own Motion Vs. Rajiv Dawar 136 (2007) Delhi Law Times 321 (DB);
4. In the matter of D.B.Vohra (FB) 1974 Cri.L.J. 899 (FB);
5. A.Shanmugam Vs. Ariya Kshatriya Rajkula Vamsathu Madalaya Nandhavana Paripalanai Sangam represented by its President etc.
6. Maria Margarida Sequeria Fernandes and others Vs. Erasmo Jack De Sequeria through LRs. 2012 (3) Scale 550.
All these cases are distinguishable on the facts and none of these cases are applicable in the facts & circumstances of the present case. Ld. counsel for the plaintiff also relied upon reinstatement of Indian Law Contempt of Court by Hon'ble Supreme Court Project Committee on Reinstatement of Indian Law, which again does not help the case of plaintiff at this stage.
14. As mentioned above, in this application the plaintiff seeks a prayer that possession of the property be restored to the plaintiff. This prayer in this application has to be outrightly rejected in view of the fact that in the plaint, possession of the property has not been prayed and the amendment application of the plaintiff has already been dismissed which has not been challenged by the plaintiff after the order dated 28.3.2011. The prayer in this application to appoint a Local Commissioner to report as to the structural changes and damages caused to the suit property can also not be allowed for the reason that it is not a suit for mesne profits or damages of the suit property. Court is not supposed to collect evidence for either of the sides. Admittedly, there is an inter pleader suit pending in which the management of the plaintiff company is in dispute. Even otherwise, when admittedly, Suit no. 276/12 Pg... 7 of 8 -8- defendant has already filed an application for depositing keys in the inter pleader suit, it does not reveal intention of the defendant to create third party interest. Rather, it goes contrary to the apprehension of the plaintiff. It appears that the relief in the present application is meant to defeat the inter pleader suit pending between Sh.Mohinder Mohan Kohli and Vijay Mohan Kohli and others. Status quo of the suit property has already been ordered to be maintained in the present suit. Thus, the prayer in this application from restraining the defendant, and others from creating third party right in the suit property can also not be allowed. When the defendant will deposit keys in the inter pleader suit, it will be for the concerned court to decide as to what is to be done with the possession of the property.
15. So far as prayer of sending a criminal contempt reference is concerned, no orders are required at this stage and let the parties advance final arguments in the matter and at the stage of judgment, the court can always look into the requirement of sending the reference, if at all required.
16. The present application is accordingly liable to be dismissed. Application is dismissed.
Dig Vinay Singh
ADJ-04 (Central)
Delhi / 3.1.2013
Suit no. 276/12 Pg... 8 of 8