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Delhi District Court

M/S Raj Polymers Pvt. Ltd vs Delhi State Industrial Development on 18 November, 2011

                                    -1-

 IN THE COURT OF SH. ASHUTOSH KUMAR, SENIOR CIVIL 
  JUDGE CUM RENT CONTROLLER (NORTH WEST): DELHI


M.C.A. No. 03/08

In Re:  

M/s Raj Polymers Pvt. Ltd.
Through its Director 
Sh. Tilak Raj Gupta, 
At A­121, Wazir Pur Industrial Area, 
Delhi­110052.                                         ......Appellant

Vs.

1.    Delhi State Industrial Development
      Corporation
      Through its Chairman,
      N­Block, New Bombay Life Building,
      Connaught Circus, New Delhi

      Administrative Office At:
      Technical Centre Building, 
      Wazir Pur Industrial Area,
      Delhi­110052.

2.    Smt. Renu Gupta
      WD/o Late Raj Kumar Gupta,
      R/o 231, Vivekanand Puri,
      Delhi.                                     ....... Respondents

18.11.2011 Order

1. Vide this order I shall disposed of the MCA filed by the appellant/plaintiff against the impugned order dated 30.09.08 of Sh. Deepak Dabas, Ld. Civil Judge, Delhi, vide ....Cont.

which the injunction application of the plaintiff U/o 39 Rule 1 & 2 r/w Section 151 CPC, for grant of ad­interim injunction, was dismissed.

2. The appellant/plaintiff had originally filed a suit for declaration and mandatory injunction against the respondent no.1/defendant no.1 DSIDC seeking relief of declaration that it is the plaintiff company, which had applied for allotment of the plot through Sh. Raj Kumar Gupta, for and on behalf of plaintiff company and not by Sh. Raj Kumar Gupta, in his individual capacity. On 26.05.99 an application U/o 1 Rule 10 CPC was moved before Ld. Trial Court by the applicants namely 1. Renu Gupta, WD/o Sh. Raj Kumar Gupta, 2. Shilpa Gupta, 3. Neha Gupta, both minor daughters of late Sh. Raj Kumar Gupta, for being impleaded as defendants in the original suit. The said application was partly allowed qua applicant Ms. Renu Gupta on 14.10.00 and Ms. Renu Gupta was impleaded as defendant no.2 in the original suit and W/s was filed by her. The appellant/plaintiff had filed the replication to W/s of both the respondents/defendants and on completion of pleadings, the issues were framed on 17.02.04 and thereafter 02 witnesses were examined on behalf of plaintiff, by the Ld. Trial Court.

....Cont.

However, on 14.11.07 i.e. after about 14 years of filing of the original suit, the aforesaid injunction application was moved on behalf of the plaintiff, praying therein that the defendant no.1 be restrained from handing over the possession of plot No. 847, Narela Industrial Complex, Delhi­40 (herein after referred to as a suit property) to defendant no.2 and for restraining the defendant no.2 from creating any third party interest in the suit property by way of sale, transfer, mortgage etc., till the disposal of the original suit, which was dismissed by the Ld. Trial Court and the said order is impugned in this MCA.

3. It is claimed by the appellant/plaintiff that it is a company duly incorporated and registered under the Indian Companies Act and pursuant to advertisement issued by respondent no.1/defendant no.1 in the year 1987, the appellant/plaintiff company applied for allotment for an industrial plot by moving an appropriate application through one of its directors Sh. Raj Kumar Gupta. It is further averred that in the year 1990, the respondent/defendant no.1 alloted the suit property to the appellant/plaintiff but the allotment was erroneously made in the name of Sh. Raj Kumar Gupta, instead of appellant/plaintiff company and thereafter ....Cont.

appellant/plaintiff company approached the concerned officers of respondent no.1/defendant no.1 and requested them to rectify the error in the allotment and vide letter bearing no. DSIDC/NAC/847/91/136 dated 07.06.91 respondent no.1/defendant no.1, acceded to the request of appellant/plaintiff for rectification of mistake, but certain formalities were to be completed as detailed in the said letter and appellant/plaintiff completed all those formalities but the respondent no.1/defendant no.1 has failed to do the needful. It is further claimed by the appellant/plaintiff that the officers of the respondent no.1/defendant no.1 become dishonest and have not handed over the possession of the suit property to the appellant/plaintiff, although, the appellant/plaintiff had deposited a sum of 1,01,750/­ as required by respondent no. 1/defendant no.1 on 08.08.90 and now the respondent no. 1/defendant no.1 is seriously disputing legal status of appellant/plaintiff company, as allotee of the suit property. The respondent no.1/defendant no.1 DSIDC in its written statement as well as reply to injunction application has averred that the original suit is not maintainable and that the suit property was rightly alloted by it to Sh. Raj Kumar Gupta, who ....Cont.

had applied in his individual capacity and there was no question of the said allotment having been made erroneously. It further claimed that none of its officer ever assured plaintiff for rectification of any error and rather the defendant no.1 received letters, by which request was made to transfer the suit plot in the name of plaintiff but later on it was revealed that the signatures of Sh. Raj Kumar Gupta, in the said letters were forged, as on the date of the said letters, Sh. Raj Kumar Gupta, was not alive. It is further claimed by respondent no.1 that after the death of Sh. Raj Kumar Gupta, his legal heirs are entitled for transfer of plot in their names, subject to fulfillment of terms and conditions of defendant no.1. It is further claimed by defendant no.1 that the plaintiff has no legal right or title in the suit property and after the death of Sh. Raj Kumar Gupta, even the records of the defendant no.1, have been tempered with by putting a rubber stamps at 2­3 places in the original documents, to show as if the application for allotment was submitted by Sh. Raj Kumar Gupta, for and on behalf of plaintiff company.

4. The defendant no.2 in her written statement as well as reply to injunction application has averred that money for ....Cont.

allotment of suit property was deposited by her late husband Sh. Raj Kumar Gupta and the suit plot has already been mutated in her name, subject to filing of succession certificate/letter of administration. It is further claimed that the defendant no.2 and her daughters namely Neha Gupta and Shilpa Gupta, have already applied for grant of letter of administration before District Judge, Delhi. Defendant no.2 has further claimed that her husband Sh. Raj Kumar Gupta, has expired on 23.05.88 and after his death plaintiff started making the dispute and the original suit was filed in the year 1993, which is barred by limitation. It is further claimed that the plaintiff company had not applied for industrial plot and in fact late Sh. Raj Kumar Gupta applied for plot in question in his individual capacity and even money was deposited by late Sh. Raj Kumar Gupta, from his own funds. Defendant no.2 has further claimed that the plaintiff has no right and title to the suit property and therefore the question of rectification of any error as alleged by the plaintiff, does not arise.

5. The appellant has claimed that the Ld. Trial Court while deciding the application under challenge, has committed the following illegalities:­ ....Cont.

"(i) In the application form, just below the name of Sh.

Raj Kumar Gupta, on front page, Annexure 'A', sl. No. 1.4, constitution of firm is written as 'Company'. On the 2 nd page, column No. 8, item proposed to be manufactured is written as 'multi layer film' ; on the 3rd page, column No. 15, it is written that project report alongwith proforma duly signed by applicant are attached. Last page which is signed by Sh. Raj Kumar Gupta bears the stamp of M/s Rajpolymers Pvt. Ltd. alongwith the application, project report is also attached. Even in the project report, name of the company is written as M/s Rajpolymers Pvt. Ltd. and Sh. Raj Kumar Gupta has been shown as Director. There is an affidavit in support of the project report, which is also signed by Sh. Raj Kumar Gupta which also bears stamp of M/s Rajpolymers Pvt. Ltd. All these aspects which are part of lower court's record have been ignored by the Ld. Trial Court while deciding the application under order 39 Rule 1 & 2 CPC.

(ii) It is an admitted fact that Sh. Raj Kumar Gupta expired on 23.05.1988 whereas payment of Rs. 1,01,750/­ was made on 08.08.1990. It is also admitted fact that said amount was never claimed to have been deposited by respondent no.2.

....Cont.

So, merely because the receipt is in the name of Sh. Raj Kumar Gupta, it cannot be said that a different person had deposited the payment after his death. Payment in the name of Sh. Raj Kumar Gupta was deposited because Provisional Letter of Allotment was issued in the name of Sh. Raj Kumar Gupta and there was a threat of cancellation of plot in the absence of deposit of payment by the plaintiff company in time.

(iii) With regard to the earlier payment of Rs. 12,000/­, it is submitted that since Sh. Raj Kumar Gupta had applied for allotment of the plot in the name of the appellant company being a Director of the appellant company, so it bears his name. It is not the case of respondent no.2 that there was any other company which is mentioned in the application form. The case of the respondent no.2 is that she came to know about the allotment of the said plot only when Provisional Letter of Allotment was issued after the death of her husband Sh. Raj Kumar Gupta.

(iv) Sh. J.P. Tyagi, PW­2 in the Probate Case, in his cross­ examination has admitted that on record there is an application alongwith project report running into 18 pages and affidavit dated 13.05.1987. Even he had admitted that ....Cont.

alongwith the application, Memorandum of Article of Association of M/s Rajpolymers Pvt. Ltd. was also attached. It is also admitted in the said cross­examination that the representation for allotment of the plot by respondent no.2 was made only after the death of Sh. Raj Kumar Gupta (statement is at pages 42 to 43 of the paper book of the appeal). The order dated 14.12.2006 on the application under Order 1 Rule 10 CPC (pages 33 to 35) also contained that the documents prima facie show that late Sh. Raj Kumar Gupta had applied for allotment of the plot as Director of M/s Rajpolymers Pvt. Ltd. So, all these important aspects were completely ignored by the Ld. Trial Court, which had it been considered, would have resulted into allowing of the interim application."

6. I have heard Sh. V.P. Rana, Ld. Counsel for appellant and Sh. S.C. Singhal, Ld. Counsel for respondent no.2 and have perused the record carefully including the TCR and written arguments filed by the appellant and respondent no.2 and judgments relied upon. No arguments were addressed on behalf of respondent no.1 DSIDC, inspite of grant of opportunity and accordingly the right for the same was closed.

7. Appellant has relied upon the following judgments.

....Cont.

(i) AIR 1996 SC, Page 1946 in case titled as "Smt. Rajni Bai @ Banu Bai Vs. Smt. Kamla Devi".

(ii) 2001 (3) A.D. Page 506 in case titled as "Ashok Kumar Batra Vs. Simmi Katyar " of Hon'ble High Court.

(iii) 2003 (3) R.C.R., Page 292 in case titled as "Dinender Kumar Bose Vs. Tapan Kumar Bose" of Hon'ble Calcutta High Court.

8. Perusal of the copy of application form for the allotment of suit property which is on trial court records, reveals that the name of the applicant is Sh. Raj Kumar Gupta and not the appellant/plaintiff company. Even the challan vide which the initial payment of Rs. 12000/­ was made to defendant no.1/respondent no.1 for allotment of suit property, bears the name of Sh. Raj Kumar Gupta and not that the appellant/plaintiff company. Thus from the same it appears that the suit property was alloted in the name of Sh. Raj Kumar Gupta, in his individual capacity. Further, it is pertinent to mention that the receipt for subsequent payment of Rs. 1,01,750/­ to the defendant no.1/respondent no.1 regarding the suit property, which has been filed on trial court record, was executed in the name of Sh. Raj Kumar Gupta and not in ....Cont.

the name of appellant/plaintiff company. Further Ld. Trial Court has rightly observed that even if for arguments sake it is believed that the said amount of Rs. 1,01,750/­ was paid by the plaintiff company, the plaintiff company had not become the owner of the suit property by doing do, as the same was alloted in the name of Sh. Raj Kumar Gupta in his individual capacity and not in the name of appellant/plaintiff company. Further the Ld. Trial Court has rightly observed that the DSIDC Company is a neutral agency and it is its duty to allot the plots in the name of applicants as per rules. DSIDC is a agency of Govt. of NCT of Delhi and functions as per its rules and regulations. Nothing has been brought on record by the appellant/plaintiff to show bias or malafide on the part of respondent no.1/defendant no.1 DSIDC in the allotment of suit property to Sh. Raj Kumar Gupta in his individual capacity. Further, it has been a categorical claim of respondent no. 1/defendant no.1 that the said plot had been applied by Sh. Raj Kumar Gupta in his individual capacity and the same was alloted in his individual name as per rules and there is no error in the same. I find no force in the arguments of Ld. Counsel for appellant regarding the alleged illegalities committed by Ld. ....Cont.

Trial Court as mentioned in the previous paragraph, as it has been claimed by the respondent no.1/defendant no.1 DSIDC that its record were tempered by putting a rubber stamps (of plaintiff company) at 2­3 places in the original documents to show that the application for allotment was submitted by Sh. Raj Kumar Gupta for and on behalf of appellant/plaintiff company, and allegations of appellant and counter allegations of respondent no.1, are a matter of evidence and trial. Further, the other claims of the appellant as mentioned in the previous para, are disputed questions of facts, which cannot be decided by this court at this stage as the same is a matter of evidence and can be decided only after the culmination of the trial. Further the respondent no.1/defendant no.1 has disputed the claim of the appellant/plaintiff and has claimed that none of its officer had ever assured the appellant/plaintiff for rectification of any error in the allotment as alleged by the appellant/plaintiff. Further the Ld. Trial Court, relying upon the judgment of Hon'ble Delhi High Court in case titled as 'Phoolwati and Ors Vs. Ram Dei & Ors reported as 150 (2008) DLT 105', has rightly applied the principal of law, that court has to presume that all officials Acts have been performed in due ....Cont.

course and in accordance with procedure. Accordingly, it can be presumed that the said plot was alloted by Govt. Agency DSIDC in due course and in accordance with procedure laid down, although, the said presumption is rebuttable but the same can be rebutted only after leading cogent and reliable evidence to the said effect. The judgment cited by appellant/plaintiff are distinguishable on facts and are not applicable in the present case at this stage and do not help the case of the plaintiff/appellant, in any manner. The appellant/plaintiff has failed to show prima facie that the said plot was alloted in its name or that it has any right or title to the same. Thus, the Ld. Trial Court was rightly of the considered view that the plaintiff has failed to show any prima facie case in its favour. Further, it would cause more inconvenience to the rightful allottee's (prima facie), successor in interest, the respondent no.2/defendant no.2, then to the appellant/plaintiff and further the appellant/plaintiff has failed to show that irreparable injury would be caused to it in case the interim injunction is not granted, in its favour. Consequently, all the 03 parameters for grant of interim injunction are against the appellant/plaintiff. Accordingly, I ....Cont.

do not find any illegality or irregularity in the order of the Ld. Trial Court. No interference in the said order is called for. Consequently, this miscellaneous civil appeal fails and is accordingly, dismissed and the impugned order of Ld. Trial Court is upheld.

No order as to costs.

Announced in the open court (Ashutosh Kumar) today i.e. 18.11.2011 SCJ­cum­RC:NW:Rohini Courts:Delhi ....Cont.

MCA­ 03/08 M/s Raj Polymers Pvt. Ltd. Vs. DSIDC Ltd. & Anr. 18.11.2011 Present: None for appellant or respondent no.1.

Ld. Proxy Counsel for respondent no.2.

Arguments on MCA have already been addressed on behalf of appellant and respondent no.1 and written submissions have also been already filed on their behalf.

Vide separate order of even date, dictated to the Stenographer and announced in the open court, the MCA of the appellant is dismissed and the impugned order of the Ld. Trial Court is upheld.

This MCA file be consigned to record room and the TCR be sent back to Ld. Trial Court alongwith copy of this order, for further proceedings as per law, for 22.11.2011.

(Ashutosh Kumar) SCJ cum RC:NW:Rohini Delhi.

....Cont.