Delhi District Court
Harish Kumar Sharma vs Delhi State Industrial And ... on 24 January, 2014
IN THE COURT OF SH. APOORV SARVARIA, CIVIL JUDGEI,
NEW DELHI DISTRICT, NEW DELHI
C.S. No: 52/11
Unique Case ID No.0243C0028652011
Harish Kumar Sharma
Prop. Of M/s. Om Engg. Works
L2/41, Shastri Nagar
Sarai Rohilla, Delhi110052.
... Plaintiff
Versus
Delhi State Industrial and Infrastructure
Development Corpn. Ltd. (DSIIDC)
N36, Bombay Life Building,
Connaught Circus, New Delhi110001.
Through:
Managing Director/Chairman
...Defendants
Date of Institution:16.03.2011
Date of Reserving Judgment:11.09.2013
Date of Judgment: 24.01.2014
SUIT FOR DECLARATION AND MANDATORY INJUNCTION
JUDGMENT
1. By filing the present suit, the plaintiff Sh. Harish Kumar Sharma seeks declaratory relief that cancellation of Plot No.39, Sector3, PocketM, area 100 sq. Mtrs. in Bawana Industrial Complex is null and void. Plaintiff further seeks decree of mandatory injunction against the defendant to restore the Plot no. 39, Sector3, PocketM, area 100 sq. mts. in Bawana Industrial Complex, Delhi in CS No.52/11 Harish Kumar Sharma v. DSIIDC Page 1 of 10 favour of the plaintiff. Permanent injunction is sought to restrain defendant from allotting the abovesaid premises in favour of any other person.
Background facts
2. The background facts leading to filing the present suit are that the plaintiff Sh Harish Kumar Sharma was allotted the Plot no. 39, Sector3, PocketM, area 100 sq. mts. in Bawana Industrial Complex, Delhi against the application no. 30573 which was financed with Delhi Financial Corporation (DFC). The plaintiff deposited the first instalment of the aforesaid plot through his letter dated 07.08.2000 against the letter dated 28.03.1998. The plaintiff had deposited 50% costs of the allotted plot by taking loan from DFC and making payment regularly prior to 2000. It is stated that due to recession and unavoidable circumstances, the plaintiff could not repay the loan amount to DFC within stipulated period. DFC had withdrawn its loan without any intimation to banker. Thereafter, the defendant cancelled the allotment of the above plot without giving opportunity to plaintiff. Thereafter, plaintiff deposited Rs. 4,20,000/ as full cost with interest @15% p.a. and penalty vide pay order dated 23.08.2006 for Rs. 1,47,000/ and pay order dated 30.08.2006 for Rs. 2,73,000/ both drawn on PNB, Shastri Nagar, New Delhi and the same was acknowledged by defendant without any objection vide application dated 31.08.2006. On 09.05.2008, the defendant published in the newspaper that allotment of plots cancelled would be reregularised in case the allottee pays the costs of the plot with interest @ 18% p.a. with minimum penalty of Rs. 5,000/ till 30.06.2008. It is stated that the plaintiff had already deposited the costs of plot as well as interest and other charges before the abovesaid publication in newspaper. Therefore, he requested to regularise the plot. However, vide letter dated 13.07.2009, the defendant informed the plaintiff that CS No.52/11 Harish Kumar Sharma v. DSIIDC Page 2 of 10 the plot is not liable to be restored as cancelled earlier. It is stated that the pay order submitted by the plaintiff were not encashed by the defendant without any reason and they were sent back after they remained in custody of the defendant since 30.08.2006 to December, 2009. The plaintiff sent two further pay orders of Rs. 1,47,000/ and Rs. 2,73,000/ both dated 15.01.2010 but the same were again returned alongwith letter dated 05.06.2010 with refusal to restore the allotment of plot in favour of plaintiff. However, it is stated that the defendant has in similar circumstances restored other plots.
3. The plaintiff issued legal notice dated 19.06.2010 to the defendant and thereafter filed the present suit.
4. In the written statement, the defendant has stated that the suit is time barred and the valuation of the suit is not correct. It is further stated that the defendant acts as per the policy of the Government of NCT of Delhi. It is also stated that as per tripartite agreement, the plot was financed from DFC and the plaintiff committed default towards payment of instalments and letter dated 09.07.2003 and 15.12.2003 and public notice 17.08.2003 were issued before refunding the amount to plaintiff. It is further stated that in draw of lots held on 18.03.2011, the plot has already been allotted. It is also stated that the publication dated 09.05.2008 and 30.06.2008 were not applicable to the plaintiff.
5. In the replication, the plaintiff has denied the averments made in the written statement.
Issues
6. After the pleadings of the parties were complete, this court framed the following issues on 20.10.2012 :
1. Whether this court has territorial jurisdiction to entertain the present suit?
OPP/OPD.
2. Whether the plaintiff has not properly valued the suit property for the CS No.52/11 Harish Kumar Sharma v. DSIIDC Page 3 of 10 purpose of filing court fees and jurisdiction ? OPD.
3. Whether the suit is barred by the law of limitation? OPD.
4. Whether the plaintiff suit is bad for nonjoinder of the Commissioner of Industries and the Government of NCT of Delhi? OPD.
5. Whether the allotment of Plot. No. 39, Sector3, PocketM in Bawana Industrial Complex, Delhi (suit premises) in favour of the plaintiff was cancelled by the defendant? OPD.
6. Whether the defendant had restored the cancellation of Plot No. 39, Sector 3, PocketM in Bawana Industrial Complex, Delhi (suit premises) in favour of the plaintiff? OPP.
7. Whether the plaintiff is entitled to the decree of declaration, as prayed for?
OPP.
8. Whether the plaintiff is entitled to the decree of mandatory injunction, as prayed for ? OPP.
9. Whether the plaintiff is entitled to the decree of permanent injunction, as prayed for ? OPP.
10. Relief.
7. On 21.12.2012, issue no.1 relating to challenge to territorial jurisdiction was struck off.
Evidence led by parties
8. In support of its case, the plaintiff produced himself as PW1 who tendered his evidence by way of affidavit Ex. PW1/A and relied upon documents Ex. PW1/1 to Ex. PW1/20. Thereafter PW1 Sh. Harish Kumar Sharma was cross examined. Plaintiff also produced PW2 Sh. Dwarka Prasad from PNB, Shashtri Nagar who brought the summoned record i.e. DD statement record in respect of pay order no. 292403 of Rs. 1,47,000/, pay order no. 292428 of Rs.
CS No.52/11 Harish Kumar Sharma v. DSIIDC Page 4 of 102,73,000/ and other two pay orders. He also produced the report Ex.PW2/A (colly) after which he was cross examined. Plaintiff also produced PW3 Sh. Roshan Lal, Deputy Manager, DFC who produced the sanction Ex.PW3/A, release order Ex.PW3/B and recall order Ex.PW3/C after which he was cross examined. Plaintiff also produced PW4 Sh. Praveen Rai, Divisional Manager, Relocation Division, DSIDC who produced the statement Ex.PW4/A and was examined in chief and thereafter cross examined after which the plaintiff closed his evidence. On 31.08.2013, Ld Advocate for the defendant closed the defendant's evidence.
9. This court has heard Ld. Advocates for the plaintiff as well as defendant and perused the record Findings
10. The issuewise findings of this court are as under:
Issue No. 2. Whether the plaintiff has not properly valued the suit property for the purpose of filing court fees and jurisdiction ? OPD.
11. The onus to prove this issue is on the defendant. No evidence has been led by the defendant to show how the plaintiff has not valued the suit properly for the purpose of court fee and pecuniary jurisdiction of this court and, therefore, the defendant has failed to discharge its onus to prove this issue. Therefore, issue no.2 is decided in favour of the plaintiff and against the defendant.
Issue No. 3Whether the suit is barred by the law of limitation? OPD.
12. The present suit has been filed on 15.03.2011. The plaintiff is seeking declaration of cancellation of letter dated 13.07.2009 alongwith other reliefs of injunction. Therefore, the suit has been filed within three years. The issue is decided in favour of plaintiff and against the defendant.
CS No.52/11 Harish Kumar Sharma v. DSIIDC Page 5 of 10Issue No.4 Whether the plaintiff suit is bad for nonjoinder of the Commissioner of Industries and the Government of NCT of Delhi? OPD.
13. The onus to prove this issue is on the defendant. Admittedly, the allotment of the plot in question is made by the defendant i.e. DSIIDC. The non joinder of Government of NCT of Delhi and Commissioner of Industries does not affect the decision of the suit as the main relief is claimed against DSIIDC which is a unit of Government of NCT of Delhi. Therefore, the suit is not bad for non joinder of Commissioner of Industries and Government of NCT of Delhi.
Issue No.5Whether the allotment of Plot. No. 39, Sector3, PocketM in Bawana Industrial Complex, Delhi (suit premises) in favour of the plaintiff was cancelled by the defendant? OPD.
14. The onus to prove this issue is on the defendant. As admitted by the plaintiff himself in the plaint in its Para 5, the defendant company had cancelled the plot of the plaintiff. Therefore, in view of the admission made by the plaintiff in Para 5 of the plaint, the defendant has discharged its onus to prove that the plot in question allotted in favour of plaintiff was cancelled by the defendant. Issue no.5 is decided in favour of plaintiff and against the defendant.
Issue No. 6 Whether the defendant had restored the cancellation of Plot No. 39, Sector3, PocketM in Bawana Industrial Complex, Delhi (suit premises) in favour of the plaintiff? OPP.
15. The onus to prove this issue is on the plaintiff. The plaintiff witness PW1 Harish Kumar Sharma in his evidence affidavit deposed that vide publication in the newspaper dated 09.05.2008 it was required that the allotment of plot already cancelled would be regularised in case allotted would pay the costs of CS No.52/11 Harish Kumar Sharma v. DSIIDC Page 6 of 10 plot with interest @ 18% p.a. alongwith penalty of Rs. 5,000/ till 30.06.2008. He further deposed that before publication of this scheme, the plaintiff had already deposited the costs of the plot as well as interest and other charges and made a request to regularise his plot. As deposed, the plaintiff had deposited Rs. 4,20,000/ with interest @ 15% p.a. vide pay order dated 23.08.2006 for Rs. 1,47,000/, pay order no. 672991 and no. 673097 dated 30.08.2008 for Rs. 2,73,000/. Alongwith his testimony he has filed the advertisement Ex.PW1/9 in Nav Bharat Times dated 09.05.2008 issued by DSIIDC.
16. From the perusal of the advertisement dated 09.05.2008, the defendant DSIIDC had given an opportunity to the defaulter allottees to deposit the costs of the plot alongwith 18% interest p.a. and Rs. 5,000/ penalty till 30.06.2008. As per advertisement, the said advertisement was applicable to cases where the initial payment of 50% of the amount had been deposited by the allottee by 31.03.2001. In para 3 of the plaint, the plaintiff has stated that he had deposited the amount in the year 2000 and the said averment hads not been specifically denied by the defendant. Therefore, the defendant is deemed to have accepted that the plaintiff had deposited 50% of the amount at least before 31.03.2001. The plaintiff has proved that the advertisement dated 09.05.2008 was applicable in his case. Thereafter, the plaintiff had already deposited the pay orders of Rs. 1,47,000/ and Rs. 2,73,000/. Therefore, the plaintiff had taken all steps in pursuance of the advertisement dated 09.05.2008. However, it is a fact that the defendant has not restored the cancellation of the plot in question in favour of the plaintiff. Though, the plaintiff was entitled to get the same restored upon compliance of the conditions mentioned in the advertisement dated 09.05.2008. The issue is decided accordingly.
Issue No. 7 Whether the plaintiff is entitled to the decree of declaration, CS No.52/11 Harish Kumar Sharma v. DSIIDC Page 7 of 10 as prayed for? OPP.
17. In view of the findings in Issue No. 6, this court finds that the plaintiff had taken all steps in pursuance of advertisement dated 09.05.2008 to get restoration of the cancellation of his allotment of the plot in question in Bawna Industrial Area. The plaintiff has filed the demand drafts (pay orders) no. 292428 dated 15.01.2010 for Rs. 2,73,000/ and no. 292430 dated 15.01.2010 for Rs. 1,47,000/ total amounting to Rs. 4,20,000/. The plaintiff witness PW1 has deposed that before these two demand drafts, he had deposited the two demand drafts of the same value one dated 23.08.2006 and the other 30.08.2006 with the defendant. PW2 Sh. Dwarka Prasad from PNB Bank, Shashtri Nagar has also deposed that pay order no. 292430 of Rs. 1,47,000 and no. 292428 of Rs. 2,73,000/ and pay order no. 672991 and pay order no. 673097 were all in the name of DSIDC Ltd. as per the report Ex.PW2/A. Considering these facts, this court finds that the plaintiff's case is not different from the cases covered by the advertisement dated 09.05.2008 and since the plaintiff has taken steps to fulfill the conditions of the advertisement dated 09.05.2008, the plaintiff is entitled to the decree of declaration that the cancellation of plot in question i.e. Plot No. 39, Sector3, PocketM, area 100 sq., Bawana Industrial Complex is null and void. The issue is decided in favour of plaintiff and against the defendants.
Issue No. 8Whether the plaintiff is entitled to the decree of mandatory injunction, as prayed for ? OPP.
18. The onus to prove this issue is on the plaintiff. In view of the findings of this court in Issue No. 6 and 7, this court finds that the plaintiff is entitled to the decree of mandatory injunction and entitled to direction to be given to the defendant to restore the allotment of plot in question in favour of plaintiff. Issue CS No.52/11 Harish Kumar Sharma v. DSIIDC Page 8 of 10 is decided in favour of plaintiff and against the defendant.
Issue No. 9 Whether the plaintiff is entitled to the decree of permanent injunction, as prayed for ? OPP.
19. In view of the findings of this court in Issues No. 6 and 7 above, this court finds that the plaintiff is also entitled to the decree of permanent injunction restraining the defendant from allotting the above said plot in favour of any other person except the plaintiff.
Issue No. 10 Relief.
20. In view of the findings on all the above issues, this court finds that the plaintiff is entitled to the decree of declaration that the cancellation of plot i.e Plot No. 39, Sector 3 Pocket M, area 100 sq., Bawana Industrial Area is null and void and the letter dated 13.07.2009 stating that allotment of the aforesaid plot cannot be restored is null and void.
21. The plaintiff is also entitled to mandatory injunction in favour of the plaintiff and against the defendant with directions to restore the allotment of Plot No. 39, Sector 3 Pocket M, area 100 sq., Bhawana Industrial Area in favour of plaintiff. The plaintiff is also entitled to relief of permanent injunction against the defendant restraining it to allot the aforesaid plot in favour of any other person except the plaintiff. All these reliefs are granted subject to the plaintiff renewing the demand draft dated 15.01.2010 of Rs. 2,73,000/ bearing no. 292428 and DD No. 292430 dated 15.01.2010 of Rs. 1,47,000/ within three months from the date of judgment. PW4 Sh.Praveen Rai from DSIIDC has deposed in his crossexamination that he has no knowledge if the plot in question is transferred in the name of other person by defendant and there is no provision to restore the disputed plot. From his testimony, it appears that the CS No.52/11 Harish Kumar Sharma v. DSIIDC Page 9 of 10 plot in question is not yet been allotted in favour of any one else. Suit is decreed in above terms alongwith costs. Decree sheet be prepared. File be consigned to record room. Judgment be uploaded to www.delhidistrictcourts.nic.in.
Announced in the Open Court (Apoorv Sarvaria) on 24th January, 2014 Civil JudgeI, New Delhi District/New Delhi CS No.52/11 Harish Kumar Sharma v. DSIIDC Page 10 of 10