Delhi District Court
Sh. Rajesh S/O Sh. Shiv Ram Dass vs Govt. Of Nct Delhi Through Its : on 30 November, 2018
IN THE COURT OF SH. SUSHANT CHANGOTRA,
JSCC/ASCJ/GJ (SHAHDARA),
KARKARDOOMA COURTS, DELHI.
Suit No.: 8953/16
Sh. Rajesh S/o Sh. Shiv Ram Dass, Proprietor
M/s Rachna Trading Company,
6/53, Gali No. 4, Vishwas Nagar,
Shahdara, Delhi110032 ......Plaintiff
versus
Govt. of NCT Delhi through its :
1.Commissioner of Industries Govt. of NCT Delhi, Udyog Sadan, Patparganj Industrial Area, Delhi110092
2. Managing Director D.S.I.I.D.C Ltd.
(Relocation Division)
Udyog Sadan, Patparganj Industrial Area,
Delhi110092
......Defendants
DATE OF INSTITUTION : 05.05.2009
DATE OF DECISION : 30.11.2018
SUIT FOR MANDATORYAND PERMANENT INJUNCTION
AND DAMAGES/ MESNE PROFITS
Suit No.: 8953/16 Rajesh Vs. Govt. of NCT of Delhi page no. 1 of 13
1. The brief facts of the case of the plaintiff as stated in the plaint are that plaintiff is proprietor of M/s Rachna Trading Company situated at 6/53, Gali no. 4, Vishwas Nagar, Shahdara, Delhi. He is engaged in manufacturing of PVC compound. The plaintiff had applied for allotment of alternative industrial plot in the name of M/s Rachna Trading Company under relocation scheme of industries sponsored by defendant no. 1 as per direction of Hon'ble Supreme Court of India in M. C. Mehta Vs. UOI & Ors.
2. The plaintiff submitted his application no. 18317 and deposited earnest money. The plaintiff received letter dated 01.11.1998 from defendant no. 1 asking him to submit proof of existence of his unit prior to cut off date and also visit the office on 04.12.1998. Accordingly, plaintiff visited the office of defendant no. 1 and submitted the required documents, but he was not given any information. He again submitted the documents in office of defendant no. 1 vide application dated 26.09.2000 for reconsideration. The plaintiff neither receive any reply to aforesaid letter nor got any information regarding the status of his application.
3. Upon inquiry, plaintiff came to know that his application had been rejected. He sent another letter dated 03.09.2007 to defendant no. 1 for reconsidering his case. In response thereto, he received letter dated 23.10.2007 that his application was rejected due Suit No.: 8953/16 Rajesh Vs. Govt. of NCT of Delhi page no. 2 of 13 to reason that "no documents/absent for hearing" and the file was sent to defendant no. 2 for refund of earnest money vide letter dated 30.10.2001. He was advised to apply for allotment of industrial plot under future relocation schemes, if launched by the government of India.
4. The plaintiff did not receive refund of earnest money nor received any information from defendant no. 2. The defendant no. 1 had declared almost all such units eligible for allotment of industrial plots, but plaintiff had been declared ineligible.
5. The plaintiff sent a notice dated 29.12.2018 to defendants with request to decide his case. It was duly served and in the reply to the said notice, it was informed that his application had not recommended and was rejected in the year 2001 and his file had been recommended to defendant no. 2. The earnest money was refunded in the year 2002.
6. The plaintiff fulfilled criteria for eligibility of allotment of alternative industrial plot, but the defendants failed to take action. Hence, the plaintiff has prayed for decree of declaration that unit of plaintiff company be declared eligible for allotment of plot under relocation scheme and relocate the unit of plaintiff from non confirming residential area to confirming user zone.
7. Defendant no. 1 and defendant no. 2 filed their separate Suit No.: 8953/16 Rajesh Vs. Govt. of NCT of Delhi page no. 3 of 13 written statements. Defendant no. 1 took preliminary objections that suit is not maintainable. There is no cause of action in favour of plaintiff. He has suppressed material facts. Plaintiff does not have locus standi and the suit is barred by limitation.
8. On merits, defendant no. 1 pleaded that application filed by plaintiff was rejected on the ground that MCL name of the firm/proprietor/trade, differ. Defendant no. 1 sent letter dated 01.11.1998 to the plaintiff for submitting proof of existence of his unit prior to 04.12.1998. Defendant no. 1 had informed the plaintiff regarding rejection of his application vide office letter dated 24.08.2000. Thereafter, plaintiff sent representation dated 03.09.2000. Vide letter dated 23.10.2007, plaintiff was intimated about the status of his application. The earnest money had been refunded by defendant no. 2 through cheque no. 49590 dated 14.01.2002 and the same was intimated by defendant no. 2 to the plaintiff vide letter dated 17.01.2002. The defendant no. 1 had also sent a letter dated 16.05.2001 to plaintiff through speed post for appearing before appellate committee on 12.06.2001, but no one turned up. The remaining averments of plaint were denied and it was prayed that suit may be dismissed.
9. Defendant no. 2 in its written statement took objections that the suit is not maintainable against managing director because he Suit No.: 8953/16 Rajesh Vs. Govt. of NCT of Delhi page no. 4 of 13 has no legal entity. The suit is barred by limitation and plaintiff does not have locus standi to file present suit. The persons who were found eligible and had deposited the amount have been handed over the possession of the plots. The plaintiff was not found eligible. The amount of earnest money was refunded to plaintiff on 17.01.2002 vide cheque no. 490590 dated 14.01.2002 drawn on Punjab & Sindh Bank, Connaught Place. The case of plaintiff was financed through Delhi State Cooperative Bank. The amount of earnest money was refunded through the said bank and plaintiff was intimated vide letter dated 17.01.2002. The said defendant also pleaded that plaintiff has not come to the court with clean hands.
10. On merits, the defendant no. 2 also pleaded that plaintiff was found ineligible. He was aware of refund of security vide aforementioned cheque. There was no reason for plaintiff to have applied for reconsideration in the year 2007. Remaining averments of plaint were denied and it was prayed that suit may be dismissed.
11. The plaintiff filed replication to the written statements of defendants and denied the averments of written statements and reiterated the averments of his plaint.
12. From the pleadings, following issues are framed :
(i) Whether the suit is not maintainable in the name of Managing Director of defendant no. 2? (OPD no. 2) Suit No.: 8953/16 Rajesh Vs. Govt. of NCT of Delhi page no. 5 of 13
(ii) Whether suit of the plaintiff is barred by limitation? (OPD)
(iii) Whether suit is not maintainable in its present form in view of preliminary objection no. 5 & 7 taken by defendant no. 1? (OPD No. 2)
(iv) Whether there was a privity of contract between plaintiff and defendant no. 2? (OPP)
(v) Whether plaintiff has concealed material facts from the court? (OPD)
(vi) Whether suit is not correctly valued for the purpose of court fees and jurisdiction? (OPD) (viA) Whether this court has no jurisdiction to try and entertain the present suit? OPD
(vii) Whether the plaintiff is entitled for relief of relocation of the unit as prayed by him? (OPP)
(vii) Relief.
Vide order dated 09.02.2017 passed by Ld. Predecessor of this court, issues no. 3, 4, 5 & 6A were deleted.
13. In order to prove his case, plaintiff stepped into the witness box and examined himself as PW1. He tendered his affidavit Ex. PW1/1 and relied upon documents Ex. PW1/A to PW1/L. He was Suit No.: 8953/16 Rajesh Vs. Govt. of NCT of Delhi page no. 6 of 13 crossexamined. Then plaintiff closed PE on 22.02.2018.
14. Defendants examined DW1 Sh. Pawan Kumar, Asst. Manager in Delhi State Cooperative Bank. He proved record Ex. PW1/1 vide which aplication dated 11.02.2002 was moved by Rachna Trading Company for refund of earnest money of Rs. 60,000/.
15. Defendants also examined DW2 Sh. Surender Singh Meena, Divisional Manager and authorized signatory of defendant no.
2. He tendered his affidavit Ex. DW2/A. After his crossexamination, DE was closed on 10.07.2018.
16. Several opportunities were given to the plaintiff for advancing arguments. However, none appeared for plaintiff. Arguments of ld. counsel for defendants were heard. I have also gone through the evidence on record carefully. The issue wise findings are as follows : ISSUE NO. 1
17. Onus to prove this issue was on defendant no. 2. Neither evidence has been led nor any argument was advanced in this regard. Ld. Counsel for defendants had argued that both defendant no. 1 and defendant 2 had merged. Hence, defendant no. 2 has failed to prove this issue. It is decided against defendants.
ISSUE NO. 2Suit No.: 8953/16 Rajesh Vs. Govt. of NCT of Delhi page no. 7 of 13
18. Onus to prove this issue was placed on defendants. Section 3 of Limitation Act provides that every suit instituted after the prescribed period shall be dismissed, although limitation has not been set up as defence. It is reproduced as below: Section 3 of the Limitation Act is as follows:
(1) Subject to the provisions contained in sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed, although limitation has not been set up as a defence.
(2) For the purposes of this Act......
(b) any claim by way of a set off or a counter claim, shall be treated as a separate suit and shall be deemed to have been instituted
i) in the case of a set off, on the same date as the suit in which the set off is pleaded;
ii) in the case of a counter claim, on the date on which the counter claim is made in court."
19. Plaintiff has pleaded that he had applied for allotment of alternative industrial plot in the year 1998. As per averments of para no. 4 of the plaint, plaintiff did not receive any intimation, therefore, he once again applied for reconsideration vide application dated Suit No.: 8953/16 Rajesh Vs. Govt. of NCT of Delhi page no. 8 of 13 26.09.2000. The plaintiff has filed the copy of the same i.e. Ex. PW1/B. The perusal of the said application shows that plaintiff has specifically mentioned therein, that his application bearing no. 18317 may be reconsidered. The word of 'reconsidered' in the said application shows that plaintiff was aware that his application had been considered and had been declined, otherwise the plaintiff would have use the expression 'consideration' instead of 'reconsideration'.
20. The case of defendants as set out in their written statements is that the plaintiff was duly informed about the rejection of his application vide letter dated 03.09.2000. In his crossexamination, plaintiff admitted that his application was rejected near about the year 2000.
21. In the plaint, plaintiff has pleaded that he did not receive the refund of earnest money. Whereas, defendants categorically pleaded that the said amount was refunded in the year 2002 through Delhi State Cooperative Bank through which the application had been processed. The same was also intimated to the plaintiff vide letter dated 30.10.2001. In this regard, DW1 proved application dated 11.02.2002 written by the plaintiff to the Manager, Delhi Cooperative Bank. As per said letter, the plaintiff had requested the manager concerned that the cheque/ pay order received from defendant no. 2 be returned to him. This witness was crossexamined by the ld. Counsel Suit No.: 8953/16 Rajesh Vs. Govt. of NCT of Delhi page no. 9 of 13 for plaintiff. However, the aforesaid fact was not denied.
22. Therefore, it has to be said that it has been proved (also admitted in the evidence by plaintiff) that the plaintiff had moved the said application dated 11.02.2002 and the amount was released. This fact clearly shows that the plaintiff was well aware about the rejection of his application and yet he concealed the said fact in his plaint and rather made false averments that he was not aware about the factum of rejection of his application as well as about refund of earnest money.
23. Since the application for allotment of alternative industrial plot had been dismissed in the year 2000, therefore, the plaintiff had to file the suit for declaration and mandatory injunction within period of 3 years from the date of said rejection. However, the present suit was filed on 05.05.2009 i.e. after the gap of almost 8/9 years.
24. The mere giving of representation or filing appeal in the year 2007 as well as service of notice u/s 80 of CPC does not extend the period of limitation which had already lapsed.
25. Hence, it can be safely concluded that it has been proved to the preponderance of the probability that the suit of plaintiff is barred by limitation. Thus, this issue is decided against the plaintiff and in favour of defendants.
ISSUE NO. 6Suit No.: 8953/16 Rajesh Vs. Govt. of NCT of Delhi page no. 10 of 13
26. Onus to prove this issue was on defendants. Defendants took a plea that the suit has not been valued properly for the purpose of court fees and jurisdiction. Defendants also stated to the extent that plaintiff is seeking possession of plot. However, it is clear from the pleadings and evidence that the plot was to be allotted by defendants and therefore, the suit for mandatory injunction for directing the government departments to perform their duty as per law is maintainable. The plaintiff could not seek possession of specific plot as allotment of plot was the prerogative of the defendants. Thus, this issue is decided against the defendants and in favour of plaintiff.
ISSUE NO. 727. Onus to prove this issue was on plaintiff. The case of plaintiff is that he had applied for allotment of alternative industrial plot because he was eligible. On the contrary, the defendants have pleaded that plaintiff was found ineligible on the ground that MLC name of firm/proprietor/trade was different.
28. Plaintiff was under obligation to prove to the preponderance of probability that the actions of defendants were cryptic/malafide/patently illegal. The plaintiff has not led any evidence to show that the aforesaid ground taken by defendants was fallacious. Rather in his crossexamination, plaintiff admitted that he was having two firms i.e. Rachna Trading Company and Krats Suit No.: 8953/16 Rajesh Vs. Govt. of NCT of Delhi page no. 11 of 13 International. Thereafter, in his crossexamination, he stated that previously the name of his firm was Krats International and in the year 1992 it was changed to Rachna Trading Company. Electricity connection was also in the name of Krats International. The said facts show that the decision of defendants was not cryptic or illegal on the face of it.
29. Plaintiff has not produced any document on record to show that he was proprietor of Krats International or the documents filed by him did not show the aforementioned contradiction.
30. Hence, the plaintiff has failed to prove that he fulfilled the eligibility criteria of defendants and had furnished documents in proof thereof within the time limit specified.
31. It is further necessary to mention that in discussion of issue no. 2, it has already been held that plaintiff had withdrawn the earnest money deposited by him vide letter dated 11.02.2002. Therefore, after having withdrawn the earnest money, plaintiff was estopped from claiming the allotment of alternative industrial plot in his favour.
32. Hence, from all the perspectives, it has to be concluded that the plaintiff has failed to prove to the preponderance of probability that he is entitled to allotment of alternative plot as per scheme floated by the defendants. Accordingly, this issue is also Suit No.: 8953/16 Rajesh Vs. Govt. of NCT of Delhi page no. 12 of 13 decided against the plaintiff.
RELIEF
33. In view of the findings given on issues no. 2 & 7, the suit of plaintiff is dismissed with cost. Decree sheet be prepared. File be consigned to record room after due compliance.
Digitally signed by SUSHANT CHANGOTRA SUSHANT Announced in open Court CHANGOTRA Date: 2018.12.01 16:06:30 on 30.11.2018 +0530 SUSHANT CHANGOTRA JSCC/ASCJ/GJ (SHAHDARA) KKD Courts/Delhi/30.11.2018 Suit No.: 8953/16 Rajesh Vs. Govt. of NCT of Delhi page no. 13 of 13