Delhi District Court
Shri Satya Prakash Gupta vs The Municipal Corporation Of Delhi on 4 September, 2013
IN THE COURT OF SHRI RAJ KUMAR: SENIOR CIVIL JUDGE : RENT
CONTROLLER: KARKARDOOMA COURTS (EAST)
Suit No. 18/09
Old Suit Nos. 350/2002 & 731/2002
Unique Case ID No. 02402C0091932002
Shri Satya Prakash Gupta
Proprietor of
M/s Bhartiya Cooling Plant
situated at 29A, Samaspur,
Patparganj Road, Delhi.
........... Plaintiff.
VERSUS
1. The Municipal Corporation of Delhi
Through its Commissioner,
Town Hall, Chandni Chowk, Delhi.
2. Zonal Health Officer (Health Department),
Shahdara South, MCD, Karkardooma,
Shahdara, Delhi.
......... Defendants.
Date of institution of the suit : 12.08.2002
Date on which order was reserved: 13.08.2013
Date of decision : 04.09.2013
SUIT FOR PERMANENT AND MANDATORY INJUNCTIONS.
JUDGMENT
The facts in brief, necessary for the disposal of the present suit filed by the plaintiff as disclosed in the plaint are that the plaintiff has been holding a valid licence for selling refrigerated water through water trolleys under the name and style of M/s Bhartiya Water Cooling Plant, situated at 29A, village Samaspur, Patparganj Road, Delhi, at site no. 1/21 to 21/21 in East Zone validly issued by the defendant no.2 since the year 1985. It has been further stated that various sites were allotted to the plaintiff under the said licence. It has been further stated that initially the plaintiff was carrying on the said business in partnership which was dissolved on 15.12.1995. It has been further stated that the other partner retired from the partnership business and from 15.12.1995 onwards, the other partner or his legal heirs has no concern of any nature with the partnership firm. It has been further stated that the plaintiff has become the sole proprietor of the firm M/s Bhartiya Water Cooling Plant since the year 1996. It has been further stated that the plaintiff has been paying the licence fee to the defendants and the defendants have been accepting the same and issuing the valid receipts in lieu thereof. It has been further stated that the defendants issued the receipts upto 31.03.2002 and renewed the aforesaid licence from time to time after checking the premises where the water cooling plant is situated. The grievance of the plaintiff is that since April 2002, the defendants were not ready to renew the abovesaid licence of the plaintiff. The plaintiff has alleged that on account of the business rivalry with Mr. Ajaib Singh s/o Shri Jai Ram Singh of M/s New Bhartiya Water Cooling Plant situated at 90, Samaspur, Delhi and under his influence, the defendants are not renewing the licence of the plaintiff. The plaintiff has further alleged that the said Shri Ajaib Singh has started keeping his water trolleys just near the water trolleys of the plaintiff in violation of the terms and conditions of the licence. It has been further stated that as per the terms and conditions of the licence, no other person can be permitted to keep the water trolleys upto a distance of 100 meter. It has been further stated that the plaintiff has filed a civil suit titled as Satya Prakash Gupta Vs. MCD and others which is pending in the court of Shri Sanjay Kumar, the then Ld. Civil Judge Delhi. It has been further stated that the plaintiff has given various representations dated 02.04.2002, 17.04.2002 and 03.06.2002 and he has met with the officials of the defendants namely Mr. Verma (Inspector), Mr. Arun Kumar (DHO) and other dealing clerks of the defendants for renewal of the licence but neither the oral request nor the representation of the plaintiff were considered by the defendants. It has been further stated that the defendants have failed to disclose any shortcoming in the water cooling plant of the plaintiff and as such, the conduct of the defendants is arbitrary, unreasonable and illegal. The plaintiff has alleged that the defendants are threatening to seal the water cooling plant of the plaintiff and seize the water trolleys of the plaintiff. It has been further stated that the plaintiff has visited several times for payment of the licence fees to the office of the defendants and the plaintiff is still ready to pay the licence fee but the defendants are adamant to cause loss to the plaintiff without any fault on his part. It has been further stated that the plaintiff has been running from pillar to post to deposit the licence fees with the MCD and lastly on 06.08.2002, the plaintiff went to deposit the licence fees with the office of the defendants at South Shahdara Zone but the defendants refused to pass the orders for depositing of the licence fees. It has been further stated that the defendants have threatened that the Health department of the defendants will not allow the plaintiff to run his business. It has been further stated that the abovesaid business is the only source of income for the plaintiff and his family members. It has been further stated that the plaintiff has no other efficacious remedy for the redressal of his grievances and hence the present suit.
2. On the basis of the abovesaid allegations as contained in the plaint, the plaintiff has prayed that the defendant be directed to renew the licence in favour of the plaintiff and the defendants be also directed to accept the licence fee from the plaintiff from 01.04.2002 onwards. It has been further prayed that the defendants be restrained from interfering in the smooth running of the business of the plaintiff. The plaintiff has prayed for the costs of the suit as well.
3. Written statement has been filed on record by the defendants stating therein that the present suit is barred by the provisions of sections 477 and 478 of the DMC Act 1957 for want of statutory notice; the present suit is devoid of any cause of action; the present suit is barred by the provisions of the Specific Relief Act; the plaintiff is not entitled for any relief because the plaintiff is running a trade without renewal of the trade licence. On merits, the defendants have stated that the plaintiff has not come to the court with clean hands. The defendants have disclosed that the licence was applied by three persons namely Shri Ajaib Singh, Shri Hargian Singh, and Shri Satya Prakash Gupta, in the year 1985 as partners of the firm. It has been further stated that the licence was applied with the documents such as the Lal Dora certificate issued in the name of Shri Hargian Singh and the partnership deed. It has been further stated that the power and electricity connections were sanctioned in the name of Shri Hargian Singh. It has been further stated that the licence has been issued to the partnership firm namely M/s Bhartiya Water Cooling Plant at plot no. 29 A, village Samaspur, Patparganj, Delhi on the basis of the documents furnished by the three applicants. It has been further stated that Shri Hargian Singh, one of the partners of the said partnership firm expired on 15.12.1993. It has been further stated that none of the LRs of the deceased partner Shri Hargian Singh has become a partner in the said firm. It has been further stated that one more partner namely Shri Ajaib Singh has dissolved the partnership firm on 15.12.1995. It has been further stated that the application of the plaintiff for renewal of the licence has already been rejected on the ground that the firm has been dissolved in whose name the licence was issued by the MCD and as such, the question of renewal of the licence in the name of the plaintiff does not arise. It has been further stated that intimation about the rejection of the application of the plaintiff for renewal of the licence was sent to the plaintiff vide letter no. 585/DHO/SH/S/2002 dated 29.10.2002 and the plaintiff was also directed to close the unit immediately. Rest of the contents of the plaint have been denied and it has been prayed that the suit of the plaintiff be dismissed.
4. From the pleadings of the parties, the following issues were framed by my Ld. Predecessor vide orders dated 14.11.2002.
1) Whether plaintiff is entitled to the relief of permanent injunction as prayed for ? OPP
2) Whether plaintiff is entitled to the relief of mandatory injunction as prayed for ? OPP
3) Whether suit is barred u/s 477/478 of the DMC Act. ? OPD
4) Whether plaintiff has not approached the court with clean hands and suppressed the material facts ? OPD
5) Relief.
EVIDENCE
5. The plaintiff has examined himself as PW1 and in his examinationinchief recorded in the court, he has reiterated and reaffirmed the stand as taken by him in the plaint. In his examinationinchief, PW1 states that in 1985, M/s Bhartiya Water cooling plant was a partnership concern consisting of three partners namely Shri Hargian Singh, Shri Ajaib Singh and he himself. PW1 further states that Mr. Hargian Singh expired in the year 1993. PW1 further states that the partnership in between himself and Shri Ajaib Singh was dissolved in December 1995. PW1 further states that the MCD issued the licence in favour of the said plant in 1985 and thereafter, upto 31.03.2002, the licence was renewed by the MCD regularly. PW1 has placed on record the copies of the licences as Ex. PW1/1 to Ex. PW1/53 and receipt of licence renewal as Ex. PW1/54 to Ex. PW1/57. PW1 further states that he gave the information to the MCD regarding the dissolution of the partnership firm and death of Shri Hargian Singh by way of letter to the ZHO Shahdara vide diary no. 3217 dated 29.03.1996. PW1 placed on record the copy thereof as Ex. PW1/58. PW1 further states that after service Ex. PW1/58 upon the MCD, MCD started to renew the licence after mentioning his name in the licence. PW1 has placed on record the copies of the water bills as Ex. PW1/59 to Ex. PW1/74. PW1 has placed on record photocopies of the electricity bills as mark A to K. PW1 further states that he is a tenant in the property in question under the tenancy of Smt. Promila Chauhan and he has been paying the rent to her. PW1 has placed on record the photocopy of the rent receipts as Ex. PW1/75 to Ex. PW1/126. PW1 further states that he has filed a civil suit no. 991/96 which is pending disposal. PW1 has placed on record the photocopy of plaint of that suit as Ex. PW1/127 and the written statement filed by the MCD as Ex. PW1/128. PW1 further states that he filed the application for renewal of the licence dated 02.04.2002 and he has filed on record copy of the said application as Ex. PW1/129. PW1 has placed on record one more copy of the application dated 17.04.2002 as Ex. PW1/130 and copy of one more application dated 03.06.2002 as Ex. PW1/131. PW1 further states that his licence was not renewed by the MCD. PW1 has placed on record copy of the letter dated 29.10.2002 received by him from the MCD with the direction to close down the trade as Ex. PW1/132. PW1 further states that he is still running the water cooling plant in accordance with the directions passed in his favour by the court of Ms. Asha Menon, the then Ld. ADJ, Delhi. PW1 further states that he always desired to deposit the licence fees but he was not allowed to do so by the MCD. PW1 has placed on record the copy of the application dated 22.04.2003 as Ex. PW1/133 and the letter dated 28.04.2003 as Ex. PW1/134.
6. In the cross examination PW1 states that he informed the MCD about the death of Hargian Singh, one of the partners on 29.03.1996, whereas Hargian died in the year 1993. PW1 has denied the suggestion that he concealed the death of Hargian Singh from the MDC. PW1 further states that the partnership was dissolved on 15.12.1995 and he informed the MCD about the dissolution of the partnership on 29.03.1996. PW1 further states that he cannot tell as to whether Ex. PW1/D1 bears his signatures at point A or not. However, PW1 further states that Ex. PW1/D2 bears his signatures at point B. PW1 further states that he gave the dissolution deed to the MCD which is Ex. PW1/D3 on record. PW1 further states that the affidavit Ex. PW1/D4 bears his signatures at point C. PW1 admits it to be correct that the electricity connection and the Lal dora certificate are in the name of Shri Hargian Singh who died in the year 1993. PW1 denies the suggestion that he is running the water cooling plant illegally without any valid licence. PW1 admits it to be correct that Hari Singh s/o late Hargian singh is alive. PW1 admits it to be correct that MCD has sent a letter demanding the documents. By way of volunteer, PW1 states that he has delivered the documents to the MCD. Copy of the letter dated 06.05.2000 has been placed on record as Ex. PW1/D5 during the cross examination of PW1. PW1 further states that he has also given reply to the letter which is Ex. PW1/D6 on record. PW1 further states that he has no rent receipt after December 2000. PW1 denied the suggestion that he is not entitled to obtain the licence from the MCD because he is not having the Lal Dora certificate, legal occupancy documents etc. PW1 denies the suggestion that the licence issued by the MCD was in the name of partnership firm and not in the name of proprietorship firm. PW1 denies the suggestion that he has concealed the material facts. PW1 admits it to be correct that he has not mentioned specifically the factum of the death of his partner Shri Hargian Singh in the plaint. PW1 further states that he has not given any legal notice before the filing of the present suit.
7. The plaintiff has further examined Shri Mahipal Sihgh, LDC from Zonal Revenue Office (Water) E block Preet Vihar, New Delhi as PW2 and this witness in his examinationinchief has stated that he has brought the meter diary pertaining to water connection no. 45147 installed at 29 A village Samaspur, Patparganj, Delhi in favour of M/s Bhartiya Cooling Plant. PW2 further states that the bills of the said water connection have been paid upto June 2003. However, PW2 states that he cannot tell as to who had applied for the said water connection. PW2 failed to produce the original record with regard to the installation of the said water connection.
8. The plaintiff has further examined Shri Vinod Gupta as PW2 (the number of 'PW2' has been given again on account of inadvertence as is apparent from the record). PW2 in his examinationinchief states that M/s Bhartiay water cooling plant was having two partners namely Shri Satya Prakash and Shri Ajaib Singh. PW2 further states that the partnership continued upto the year 1995 and thereafter, there was a settlement in between the two partners. PW2 further states that Shri Ajaib Singh retired from the partnership after taking Rs.25,000/ from Shri Satya Prakash Gupta and he handed over the business exclusively to him. PW2 further states that Ex. PW1/D3, is the document which was executed in his presence and the said document bears his signatures at point A as a witness. PW2 further states that an affidavit to this effect was also executed in his prensence and the same was exhibited as Ex. PW2/1. PW2 further states that the retirement letter issued by Shri Ajaib Singh in favour of Shri Satya Prakash was also prepared in his presence and the same was Ex. PW2/2. PW2 further states that Shri Satya Prakash Gupta is the absolute proprietor of M/s Bhartiya Water Cooling Plant, to his knowledge.
9. The plaintiff has further examined Shri S.P. Sharma, the Zonal Engineer with Delhi Jal Board as PW4 and this witness in his examinationinchief states that the file pertaining to water connection no. 45147 was not traceable because the same was burned in the fire on 25.04.2007. PW4 further states that the department reported the said matter to Preet Vihar P.S. and FIR No. 336/07 was recorded. PW4 has placed on record the copy of the FIR as Ex. PW4/1, the report prepared by Delhi Fire Service as Ex. PW4/2. However, PW4 states that the water connection o. 45147 is in the name of Bhartiya Water Cooling plant situated at 29 A village Samaspur, Delhi. PW4 has placed on record the meter diary of the meter reading relating to the connection no. 45147 as Ex. PW4/3.
PW4 has not been cross examined by Ld. Counsel for the defendants.
10. The plaintiff has further examined Smt. Promila Chauhan w/o Shri Hari Singh Chauhan as PW5. PW5 in her examinationinchief states that the plaintiff is not a tenant under her in respect to the property no. 29 A, village Samaspur, Patparganj road, Delhi. PW5 further states that the plaintiff is running the water cooling plant at the said property in her partnership. PW5 further states that earlier, there were three partners including his fatherinlaw Shri Hargian Singh. PW5 further states that the partnership is still in existence. PW5 further states that she had filed a suit for possession against the plaintiff herein. PW5 again says that she had earlier filed a suit for possession which was dismissed as withdrawn with the liberty to file the fresh suit and then again, the second suit was filed. PW5 further states that she never issued any rent receipt in favour of the plaintiff as the plaintiff is not her tenant.
11. In the cross examination done by the defendants, PW5 states that in the beginning of the partnership business, Mr. Ajaib Singh her fatherinlaw Hargian Singh and the plaintiff were the partners. PW5 further states that the property wherein the partnership business was being run, was owned by her fatherinlaw Shri Hargian Singh. PW5 further states that the electricity and water bills were being raised in the name of her fatherinlaw. PW5 admits it to be correct that all the abovesaid three partners had applied for licence from the MCD together and thereafter, the licence was issued by the MCD. PW5 further states that her fatherinlaw Shri Hargian Singh expired in the year 1993. PW5 admits it to be correct that after the death of her fatherinlaw the plaintiff has been running the cooling plant in his individual capacity. PW5 admits it to be correct that the plaintiff is neither the tenant nor he has any commercial right in the property where the cooling plant is being run by the plaintiff. PW5 admits it to be correct that the plaintiff did not take any NOC either from her or from Shri Ajaib Singh. PW5 admits it to be correct that on 15.12.1995, Shri Ajaib Singh had dissolved the partnership firm.
12. One more witness Shri Pradeep Kapoor PHI, Shahdara South Zone, MCD has been examined by the plaintiff and this witness states that the plaintiff has summoned the letter dated 08.04.1996 vide diary no. 3354 and another letter dated 29.03.1996 vide diary no. 3297 and 3217 from the CMD. This witness states that the summoned record is not traceable with the MCD.
13. The defendants have examined Dr. G.R. Chaudhary, Deputy Health Officer of the MCD as DW1 and in his evidence by way of affidavit, he has reiterated and reaffirmed the stand as taken by the defendants in the written statement. He has filed on record his evidence by way of affidavit as Ex. DW1/X.
14. In the cross examination DW1 states that contents of para no. 4 of his evidence by way of affidavit are on the basis of the record maintained by the MCD with regard to the licencing of M/s Bhartiya Cooling Plant. DW1 further states that, however, he himself is an officer of the MCD who has never dealt with the case regarding licencing of M/s Bhartiya Cooling Plant. DW1 has denied the suggestion that the plaint is running the cooling plant legally. DW1 further states that as per the record, three partners of M/s Bhartiya water cooling plant namely S.P. Gupta, Ajaib Singh and Hargian Singh had applied for the licence to the MCD. DW1 further states that there is no condition as to the number of the partners in the partnership firm but there must be a valid partnership firm making an application for licence to the MCD. DW1 further states that he cannot produce the dissolution deed of M/s Bhartiya Water Cooling plant. DW1 further states that he remained DHO in Shahdara south zone from June 2010 to April 2012. DW1 further states that he does not remember the date when the licence in the name of M/s Bhartiya water cooling plant was issued. DW1 further states that he does not remember the date of the death of first partner of the said firm. DW1 further states that he does not remember the exact date of the dissolution of the said firm. By way of volunteer, DW1 states that he can tell the same from the record. DW1 further states that the plaintiff had made a submission with the MCD that Hargian Singh had expired but he cannot say as to whether the death certificate was filed or not. DW1 further states that he does not remember personally whether the plaintiff had moved an application with department regarding the resignation of Ajaib Singh from the partnership firm. By way of volunteer, DW1 states that he can say surely after seeing the office record. DW1 further states that he cannot tell exactly whether the plaintiff had moved an application for renewal of the licence in the year 2002 as he was not posted at that time in the concerned zone. DW1 further states that the licence was revoked as the partnership firm in whose name the licence was granted, was found to be non existing. DW1 further states that the licence was in the name of Bhartiya Water Cooling Plant. DW1 further states that he cannot tell whether the firm Bhartiya Water cooling plant is existing as on date. DW1 further states that the firm was not existing in the year 2003. DW1 further states that the licence of the firm was renewed upto 2003 due to the orders of the appellate court. DW1 further states that there were three partners at the time of iussance of the licence, Shri Ajaib Singh retired from the partnership firm and Shri Hargian Singh expired and as such, the partnership firm was not existed. DW1 further states that he does not know whether prior to the year 2003, the defendants were regularly renewing the licence in favour of Shri Satya Prakash. DW1 further states that he does not remember whether prior to the year 2003, the defendants were regularly renewing the licence in favour of the firm Bhartiya Water Cooling Plant. DW1 further states that he does not remember whether the plaintiff informed the defendants that he had become the proprietor of M/s Bhartiy water cooling plant after the demise of Shri Hargian Singh and retirement of Shri Ajaib Singh from the firm. DW1 admits it to be correct that Ex. PW1/37 to Ex. PW1/52 have been issued from his department. DW1 further states that he does not know whether the defendants were renewing / issuing the licence in favour of the plaintiff and the firm M/s Bhartiya water cooling plant since 1996 to 2002. DW1 further states that he was not the licencing authority during the period from 1996 to 2002 in Shahdara south zone. DW1 further states that there is no condition of the department to the effect that the firm should be a proprietorship/ partnership firm for renewal / issuance of licence. DW1 has denied the suggestion that M/s Bhartiya water cooling plant was in existence in the year 20022003 and thereafter, till date. By way of volunteer, DW1 states that the partnership concern namely M/s Bhartia cooling plant was not in existence. DW1 has denied the suggestion that the defendants were under the influence of Shri Ajaib Singh and for the said reason, the plaintiff was harassed by way of denying for renewal of the licence. DW1 further states that he cannot say whether the plaintiff is entitled for renewal of the licence or not.
15. I have carefully gone through the entire material on record and heard the rival submissions of Ld. counsels for both the parties. The plaintiff and the defendants as well have also filed on record their written final arguments. I have also carefully gone through the written final arguments filed on record by the parties.
16. My issuewise findings on the abovesaid issues are as under:
Issues No. 1 and 2.
Both these issues are taken up together as the same are connected interse and overlap each other and relate to the prayer clause of the present suit.
17. The factual controversy and the evidence led by the parties, has already been narrated herein above.
18. In the written final arguments filed on record by the plaintiff, it has been argued that after the death of Shri Hargian Singh who was one of the partners, in the year 1993, his only son did not become the partner in the partnership firm. It has been further argued that on 15.12.1995, Shri Ajaib Singh also retired and dissolution deed was prepared. It has been further argued that dissolution deed was duly submitted with the defendants for information and necessary action. It has been further argued that M/s Bhartiya water Cooling Plant has become a proprietorship firm and the plaintiff has been proprietor of it since 1995. It has been further argued that the defendants had been regularly renewing the licence in favour of the plaintiff i.e. the proprietor of M/s Bhartiya Water cooling plant till 2002. It has been further argued that by the documents Ex. PW1/1 to Ex. PW1/134, the plaintiff has been able to prove that the licence of the plaintiff was renewed by the defendants regularly upto 31.03.2002. It has been further argued that the plaintiff has been fulfilling the entire terms and conditions of the licence and as such, the plaintiff is entitled for renewal of the same. It has been further argued that DW1 has admitted in the cross that licence has been regularly renewed in favour of the plaintiff w.e.f. 1996 to 2002 and as such, the defendants have no right to refuse to renew the licence on the ground that the firm has been dissolved in the name of which the licence was issued by the MCD. It has been further argued that it is the admitted case that plaintiff has made the representations dated 02.04.2002, 17.04.2002, 03.06.2002 Ex. PW1/129 to Ex. PW1/131. It has been further argued that in the cross DW1 has categorically admitted that there is no condition of the department to the effect that the firm should be a partnership / proprietorship firm for renewal and issuance of licence. Ld. Counsel for the plaintiff in the written final arguments has relied upon the cross examination of DW1 and has argued that the plaintiff has been able to prove his case.
19. Whereas on the other hand, in the written final arguments filed on record by the MCD, it has been argued that the licence was applied by the three persons in the year 1985 as a partnership firm M/s Bhartiya Water Cooling Plant on the basis of the documents i.e. Lal Dora certificate, electricity connection, indemnity bond, property paper and certificate from the Gram Panchayat, in the name of Shri Hargian Singh. It has been further argued that admittedly, Shri Hargian Singh died on 15.12.1993 and none of the legal heirs of the deceased has become the partner of the firm. It has been further argued that admittedly the other partner Shri Ajaib Singh retired from the partnership firm on 15.12.1995. The MCD has relied upon the cross examination of PW1 and the cross of other PWs and argued that PW1 has stated in his cross that he informed the MCD about the death of Shri Hargian Singh on 29.03.1996 vide Ex. PW1/58. It has been further argued that the Lal Dora certificate and electricity connection were in the name of Hargian Singh who died in the year 1993 as is admitted by PW1 in his cross examination. It has been further argued that PW2 Shri Vinod has also proved the dissolution of the partnership firm. It has been further argued that Ms. Promila Chauhan PW5 has denied that the plaintiff is a tenant in premises no. 29 A, village Samaspur, Patparganj road, Delhi. It has been further argued that the property where the cooling plant situated was owned by the fatherinlaw of PW5. It has been further argued that the dissolution deed shows that the name of Shri Hargian Singh has been mentioned alongwith Shri S.P. Gupta while he has already expired in the year 1993. It has been further argued that perusal of the Ex. PW1/58, shows that Shri Hargian Singh has expired and his son surrendered in his favour whereas, PW5 the daughterinlaw of the deceased Hargian Singh specifically denies the issuance of any NOC in favour of the plaintiff. It has been further argued that the abovesaid narration of the fact reveals that the plaintiff concealed the material facts and played a fraud upon the defendants as well as upon the court. It has been further argued that section 417 of the MCD Act clearly states that licence of any trade cannot be transferred to any other person. It has been further argued that in the case in hand, the licence was issued in the name of partnership firm which was dissolved in 1993 at the time of death of one of the partners but the said fact has not been brought in the notice of the defendants. It has been further argued that the licence which was issued in the name of the partnership firm cannot be renewed in the name of the proprietorship concern in view of Section 417 of the DMC Act. It has been further argued that the plaintiff herein filed a writ petition before the Hon'ble High Court of Delhi for getting transferred his licence from the present address to another address which was dismissed by the Hon'ble High Court in the light of Section 417 of the DMC Act.
20. The factual matrix involved in the present suit to a maximum extent is not in dispute. It is the admitted case that initially three partners namely Ajaib Singh, Shri Hargian Singh and Shri Satya Prakash (plaintiff herein) constituted a partnership firm M/s Bhartiya Water cooling plant applied for the licence with the MCD for selling refrigerated water and the licence was granted in the name of the partnership firm, copy of which is there on record as Ex. PW1/1. It is also not in dispute that Shri Hargian singh expired in the year 1993 and Shri Ajaib Singh also retired from the partnership firm on 15.12.1995. It is also not in dispute that none of the LRs of the deceased Hargian Singh became a partner in the partnership firm after his death. There are admissions on the part of PW1 to the abovesaid extent in his cross examination. As per the own case of the plaintiff, information with respect to the death of Shri Hargian Singh was given by him to the MCD for the first time on 29.03.1996. The MCD in the written final arguments has vehemently argued that the plaintiff has concealed certain material facts from the court. It has to be seen that PW1 in the cross has admitted his signatures on Ex. PW1/D1 which is a letter written to the ZHO of the MCD by the plaintiff. The plaintiff has also admitted his signatures on the document Ex. PW1/D2. The abovesaid letter is written by the plaintiff again to the ZHO of the MCD regarding the dissolution of the partnership. PW1 in clearcut and unequivocal terms, has admitted the submission of the dissolution deed Ex. PW1/D3. Perusal of the said dissolution deed mentions the name of Shri Hargian Singh. The said dissolution deed is of the year 1995. Shri Hargian Singh expired already in the year 1993. As such, I have no hesitation to hold that it has been rightly pointed by Counsel for the MCD that the plaintiff concealed the abovesaid material fact from the MCD. For the first time, as per the own case of the plaintiff, he informed to the MCD about the death of Shri Hagian Singh on 29.03.1996, but it has to be seen that in the dissolution deed Ex. PW1/D3, the name of Hargian Singh has been mentioned in clear cut and unequivocal terms.
21. It is true that DW1 who is the sole witness examined by the MCD has stated in his cross examination that there is no condition precedent on the part of the department to the effect that the firm should be partnership or proprietorship firm for renewal of issuance of licence. But in the case in hand, the licence was granted in the name of the partnership firm. The abovesaid partnership firm is not in existence. The plaintiff claims himself to be the sole proprietor of the said firm. As has been discussed by me herein above, the plaintiff concealed the material facts from the MCD and as such, I am of the opinion that the cross examination of DW1 is not going to help the case of the plaintiff at all.
22. In the light of the abovesaid discussion, I have no hesitation to hold that the plaintiff has utterly failed to prove both the abovesaid issues and accordingly, both the abovesaid issues are hereby decided against the plaintiff.
Issue No.3
23. Issue no.3 pertains to the issuance of the notice u/s 477/478 of the DMC Act. It has to be seen that the present suit is a suit for permanent and mandatory injunction. As such, I am of the opinion that the present suit is not barred by sections 477 / 478 of the DMC Act. Issue no.3 thus, is decided against the defendants.
Issue No.4
24. Issue no.4 stand already discussed in the issues no.1 and 2. It has already been held in the issues no.1 and 2 that the plaintiff has suppressed he material facts. Accordingly, I am of the opinion that the defendants have been able to prove this issue. Issue no.4 thus, is decide in favour of the defendants and against the plaintiff. Relief.
In the light of my findings upon the foregoing issues, the suit of the plaintiff is hereby dismissed but with no orders as to costs. Interim orders passed earlier, if any, stand vacated. Decree sheet be prepared accordingly. File be consigned to record room.
Announced in the open court ( RAJ KUMAR)
on this 04th day of September 2013. SCJ/RC (East)
Karkardooma Courts, Delhi.