Delhi District Court
M/S Mahajan Wollens Pvt. Ltd vs Sh. Satinder Pal Jaggi on 15 January, 2013
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IN THE COURT OF SH. DIG VINAY SINGH
ADDL. DISTRICT JUDGE-04 : CENTRAL : DELHI
Date of institution : 23.08.1989
Arguments heard on : 15.01.2013
Announced on : 15.01.2013
In re :
Suit no. 273/08
M/s Mahajan Wollens Pvt. Ltd.
through its Director,
Sh.Rakesh Mahajan
E-1 & 2, New Delhi South Extension,
Mahajan House, New Delhi. ... Plaintiff
Versus
1. Sh. Satinder Pal Jaggi,
S/o Late Sh. Ram Lal Jaggi
B-429, New Friends Colony,
New Delhi.
2. Sh. Maqsoodan Lal Jaggi,
S/o Late Sh. Ram Lal Jaggi
R/o A-283, New Friends Colony,
New Delhi.
3. Smt. Viran Bai Jaggi
W/o Late Sh. Ram Lal Jaggi
R/o A-283, New Friends Colony,
New Delhi.
4. Smt. Indra Rani
W/o Late Sh. Sat Pal Jaggi
R/o 31, Ring Road,
Suit no. 273/08 Pg... 1 of 13 r
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Lajpat Nagar, New Delhi.
5. Sh. Ashok Kumar Jaggi
S/o Sh. Maqsoodan Lal Jaggi,
R/o A-283, New Friends Colony,
New Delhi.
6. Sh. Anil Kumar Jaggi
S/o Sh. Maqsoodan Lal Jaggi,
R/o A-283, New Friends Colony,
New Delhi.
7. Sh. Romal Kumar Jaggi
S/o Sh. Maqsoodan Lal Jaggi,
R/o A-283, New Friends Colony,
New Delhi.
8. Sh. Vijay Kumar Jaggi
S/o Sh. Maqsoodan Lal Jaggi,
R/o A-283, New Friends Colony,
New Delhi.
9. Hongkong & Shanghai Banking Corporation
having its branch office at
28, Kasturba Gandhi Marg,
New Delhi
through its Manager/Director. ... Defendants
JUDGMENT
1. This is a suit for perpetual injunction. The suit was filed against nine defendants. All the defendants remained ex-parte in the suit. Defendant no.1 to 8 remained ex-parte vide order dated 18.2.1994, whereas defendant no.9 became ex-parte on 1.11.1989. The defendant no. 9 is the Suit no. 273/08 Pg... 2 of 13 r -3- bank of the plaintiff, whereas the defendant no.1 to 8 are individual persons.
2. The case of the plaintiff is that, the plaintiff company purchased Premises no. 27, Kasturba Gandhi Marg, New Delhi from certain persons through registered sale deed dated 30.10.1987. At the time, when the property was purchased by the plaintiff, the defendant no.1 to 8 were in possession of the premises as tenants. It is claimed by the plaintiff that after the property was purchased by the plaintiff, the defendant no.1 to 8 wanted to vacate the premises but since they were there in the property for more than 20 years, they put a condition to the plaintiff that the plaintiff will have to pay consideration for relinquishment/assignment/transfer of portions in their respective possession. Plaintiff claims that the plaintiff company had no option but to surrender and submit to the coercive attitude of the tenants, otherwise they would not have vacated the premises. As a result, the defendant no.1 to 8 executed various assignment deeds in favour of the plaintiff company on 7.11.1987 whereby, the plaintiff had to pay a total consideration of Rs.2,29,80,000/- for surrender of possession of the property by the defendants. Out of that amount, the defendant no.1 to 8 released a sum of Rs.1,31,50,000/-.
3. Certain cheques were issued by the plaintiff company which were postdated cheques for a total consideration of Rs.98,30,000/-. Those cheques remained unreleased at the time when the suit was filed and some of those cheques were to mature on 31.08.1989 and some of those Suit no. 273/08 Pg... 3 of 13 r -4- cheques were maturing on 1.1.1990. The details of assignment deeds and the cheques which were released and which were not released, is mentioned by the plaintiff in Para 7 to 9 of the plaint, which are not produced herein for the sake of brevity as those details are running into many pages.
4. Suffice it to say, that the postdated cheques which were yet to be encashed by the defendants are mentioned on para no. 16 & 17 of the plaint. These postdated cheques were in favour of defendant no.1 to 4 only and the total of these postdated cheques which were yet to be encashed was Rs.98,30,000/-.
5. It is an admitted case of the plaintiff that after execution of the assignment deeds, the defendant no.1 to 8 actually and physically handed over the peaceful and vacant possession of their respective tenanted premises to the plaintiff company on 7.11.1987 and the defendant no.1 to 8 had also given a declaration whereby they admitted the factum of relinquishment/transfer and assignment of their tenancy in favour of the plaintiff. Plaintiff claims that for the purposes of securing the aforesaid payments, the plaintiff also transferred the entire shareholding of their associate company M/s Sanghi Brothers Pvt. Ltd. in favour of defendant no.1 to 4.
6. The present suit for perpetual injunction was filed by the plaintiff claiming that entire transaction of Rs.2,29,80,000/- was opposed to public policy, Suit no. 273/08 Pg... 4 of 13 r -5- which the plaintiff came to know subsequently and therefore, the remaining cheques be not presented by the defendant no.1 to 4 and the same be not encashed by the bankers of the defendant i.e. defendant no.
9. Plaintiff claims that plaintiff subsequently came to know about Section 5 of the Delhi Rent Control Act, 1958 under which demand of such consideration for getting the premises vacated is void and unenforceable. It is claimed that however, the defendants/tenants extorted this amount from the plaintiff under duress and pressure. The plaintiff company also subsequently came to know about a judgment passed by the Hon'ble Supreme Court under which also, consideration paid and payable to the defendants by the plaintiff was void. The consideration was void U/s 23 of the Indian Contract Act also.
7. It is also claimed by the plaintiff that already a request was sent by it to its bankers i.e. defendant no. 9 to stop payment of cheques dated 31.08.1989 and 1.1.1990 as detailed in Para 9 of the plaint, vide a letter dated 19.08.1989.
8. Plaintiff also claimed that the defendant no.1 to 4 were personally requested not to present the cheques but they refused. Thus, plaintiff prays that the defendant no.1 to 4 be restrained from presenting those cheques and the defendant no. 9 be restrained from encashing those cheques.
9. Apprehending taking over of possession of property by the defendants Suit no. 273/08 Pg... 5 of 13 r -6- forcibly, the plaintiff also prayed a decree of perpetual injunction restraining the defendants from interfering in peaceful possession of the property by the plaintiff company.
10.The defendant no.1, 2, 4 to 8 filed their joint written statement claiming that the suit is bad for misjoinder of causes of action as there were eight separate agreements entered into by plaintiff and the defendant no.1 to 8 and the cheques were issued in individual names of the defendants, therefore, each cause of action was a separate cause of action and the plaintiff could not have joined them. It is also averred by the defendants that the suit is not properly valued for the purposes of court fee and jurisdiction and an arbitrary valuation has been done for the relief of perpetual injunction to be Rs.10 Lakhs. It is also claimed that the plaintiff was required to value relief of each of the nine defendants separately which has not been done. Defendants also claimed that simplicitor suit for injunction is not maintainable without seeking a decree of declaration regarding the agreements in question. The defendants also claimed that plaintiff cannot be allowed to derive benefits under the same agreements on the one hand and deny the payment portions of the said agreement on the other hand, and in case the plaintiff wishes to obtain a decree as prayed, the plaintiff was under legal obligation to first offer possession of the property back to the defendants. Defendant no.3 was reportedly expired in March 1995 and it was claimed that in such circumstances, the suit against defendant no.3 stood abated. Defendants also claim that Delhi Rent Control Act came into force after December, 1988 and it was Suit no. 273/08 Pg... 6 of 13 r -7- not applicable at the time when the agreements were entered into, therefore, the agreements are not void.
11. It is claimed by these defendants that in fact they were tenants in this property for last more than fifty years and the property was in a very dilapidated condition. They had to maintain the property out of their own funds. With the approval and consent of previous land lord, they made improvements and additional construction was also raised by them and in lieu thereof the plaintiff agreed to compensate them.
12.These defendants also claim that the property has been sold by the plaintiff further. The fact of sale of property by the plaintiff is admitted even by the counsel for the plaintiff during final arguments.
13.It is pertinent to mention here that though the defendants were proceeded ex-parte and though the order sheets record that these defendants did not file the written statement, yet the written statements of these defendants is on record. The written statement does not bear any date of filing, therefore, it is not clear as to when the written statement was filed. The written statement is also not accompanied with any affidavit which could have shown the date of verification. Even on the verification on the last page of written statement, there is no date. Accordingly, it is not clear as to on which date, this written statement came to be filed before Hon'ble High Court when this matter was pending there and it came to be transferred to this court, subsequently, on enhancement of pecuniary jurisdiction.
Suit no. 273/08 Pg... 7 of 13 r -8-
14. It would also be pertinent to mention here that during pendency of the suit, the defendant no.3 died on 5.3.1995. An application Under Order 22 rule 2 CPC was filed under IA no. 8386 of 2002. However another application Under Order 22 rule 4 (4) CPC dated 3.07.2009 filed by the plaintiff was allowed on 1.12.2010 and vide the same order, another application Under Order 22 Rule 9 CPC filed by the defendants no. 1, 2 and 4 to 8 was dismissed. Thus, the plaintiff was given exemption from bringing the LRs of defendant no. 3 on record. The application under IA no. 8386 of 2002 which was filed for substitution of LRs was in fact not pressed by the plaintiff as reflected in order dated 3.7.2009 and on that day plaintiff sought time to move appropriate application Under Order 22 Rule 4 (4) of CPC, it came to be allowed on 1.12.2010.
15.In ex-parte evidence, the plaintiff examined Rakesh Mahajan, the Director of the plaintiff company who proved resolution in his favour as Ex.PW1/1. The testimony of this witness is in lines to the averments contained in the plaint. Even the plaint was signed, verified and filed by him. The original assignment deeds were collectively proved as Ex.PW1/2 by this witness.
16.The testimony of this witness has remained absolutely unchallenged and unrebutted on account of non-cross examination by the defendants.
17.Be that as it may, the court is still duty bond to consider whether the plaintiff is entitled to the reliefs claimed or not.
Suit no. 273/08 Pg... 8 of 13 r -9-
18.Ld. Counsel for the plaintiff has placed reliance upon following cases to stress the point that failure of the defendants to cross examine the plaintiff gives rise to a presumption that the evidence is accepted by the other side.
a. Babulall Choukhani Vs. Caltex (India) Ltd. AIR 1967 Cal 205; b. Aitha Dubba Rajam Vs. Aitha Pochaiah AIR 2007 AP 137; c. State Vs. Bhola AIR 1969 Raj 219;
d. Traders Syndicate Vs. Union of India AIR 1983 Cal 337; e. A.E.G. Carapiet Vs. A.Y.Derderian AIR 1961 Cal 359; f. Kishan Lal Kalra Vs. N.D.M.C. AIR 2001 Delhi 402; g. Bharat Kumar & anr. Vs. Union of India & anr. AIR 2005 Raj 124; h. Mrs. Annu.J.Thomas Vs. Thomas Koshy AIR 1997 Delhi 345 All these judgments are on the said point to which there is no dispute in law.
19.Ld. counsel for the plaintiff also relied upon following two cases to stress the point that Under Section of 5 of Delhi Rent Control Act, no consideration can be paid for relinquishing/transferring or assigning the tenancy.
a. Hans Raj Shiv Vs. Nirmaljit Arora 67 (1997) DLT 379; b. Globe Associates Vs. H.P.Sharma (Delhi) 1971 RCR (Delhi) 283. There is no dispute as to position of law stated therein.
20.Ld. Counsel for the plaintiff has also relied upon following four cases to stress the point that the agreements in question are void Under Section Suit no. 273/08 Pg... 9 of 13 r
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23 of the Indian Contract Act.
a. Nutan Kumar & Ors. Vs. Iind Additional District Judge, Banda & Ors. AIR 1994 ALL 298;
b. Silvestre Loiola Fernandes Vs. Victor Manuel Fernandes AIR 1981 Goa Daman & Diu;
c. M/s Anand Prakash Om Prakash Vs. M/s Oswal Trading Agency & anr. AIR 1976 Delhi 24;
d. Ramkripal Sheoprasad & ors vs. Municipal Committee AIR 1963 MP 240 Again there is no dispute as to the position of law as laid down in these authorities also.
21. Lastly, Ld. Counsel for the plaintiff relied upon the case P.P.A. Impex Pvt. Ltd. Vs. Mangal Sain Mittal 166 (2010) DLT 84 (DB) in support of his contention Under Section 109 of the Transfer of Property Act. There is no dispute to this proposition of law also.
22. The question however in the present suit is, whether still the plaintiff is entitled for the reliefs claimed or not. As mentioned above, the possession of the property is not with the plaintiff, therefore, the second part of prayer of permanent injunction qua restraining the defendants from interfering in peaceful possession of the property of the plaintiff does not survive. Admittedly, the plaintiff has sold the suit property which is so claimed in the written statement of the defendants and which is not rebutted by the plaintiff by way of filing any replication. Instead, it is admitted by the Suit no. 273/08 Pg... 10 of 13 r
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counsel for the plaintiff that property has already been sold. Thus, prayer
(c) of the plaint does not survive.
23.Turning to the prayer (a) & (b) of the plaint in which the plaintiff prays that the defendants 1 to 4 be restrained from presenting the cheques for encashment and the defendant no. 9 be restrained from encashing those cheques.
24.Under Section 41(h) of the Specific Relief Act 1963, an injunction cannot be granted if the plaintiff has an efficacious remedy available in law. Clause (h) of Section 41 of the Specific Relief Act, 1963 provides that when equally efficacious relief can certainly be obtained by any other usual mode of proceedings, except in case of breach of trust, an injunction cannot be granted.
25. In the present case, the plaintiff had an equally efficacious remedy of requesting his bank in writing to stop the payment of the cheques in question which in fact indeed was also availed by the plaintiff by writing a letter to the bank defendant no. 9, which letter is dated 19.08.1989 and which fact is mentioned in Para 19 of the plaint. In the entire plaint, plaintiff nowhere claims that despite sending such letter to the bank, the bank was hell bent to encash those cheques or that the bank ever conveyed it to the plaintiff that it is not going to accede to the request of the plaintiff to stop payment of those cheques. At least nothing of that sort has been claimed in the present plaint or evidence. In the suit, it is also Suit no. 273/08 Pg... 11 of 13 r
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not mentioned as to whether the plaintiff reasonably apprehended that its request to the bank vide letter dated 19.08.1989 would not be honoured by the bank. The defendant no. 9 is admittedly bankers of the plaintiff. The banker is bound to stop payment of the cheque in case, its customer requests it to stop payment of cheques for any reason whatsoever. At the most, in such cases, the bank can deduct charges for stopping payment of the cheques. Thus, the plaintiff had an equally efficacious remedy available in law. It may be mentioned that this letter dated 19.08.1989 has not been proved by the plaintiff in its evidence.
26.In view of bar of Section 41 of the Specific Relief Act, the prayer a & b of the plaint cannot be allowed in its favour.
27.Even otherwise, injunction is an equitable relief. The plaintiff did not do equity by restoring possession of the property to the defendant no.1 to 8 before or at the time of approaching the court seeking injunction. No such intent was even expressed in the plaint or during trial of the suit, that when the plaintiff claims the assignment deeds to be void and unenforceable, the plaintiff was willing to restore the possession of the property to the defendants. When as per the case of the plaintiff, the agreements were void ab-initio, obtaining possession of the property by the plaintiff from the tenants was also unlawful. In such circumstances, before seeking equity, plaintiff ought to have done equity by putting the tenants back in possession of the property which was not done. It was not even offered before filing of suit, at the time of filing of suit or during pendency of suit.
Suit no. 273/08 Pg... 12 of 13 r
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Accordingly, even on this ground, this equitable relief cannot be granted in favour of the plaintiff.
28. Even otherwise also, the cheques in question pertain to August 1989 and January 1990. The life of a cheque is maximum six months. After expiry of six months, a cheque cannot be encashed by any bank. Even therefore the cheques in question have already expired and therefore cannot be presented and encashed. It is not the case of the plaintiff that he has issued any fresh cheques in favour of defendant no.1 to 4 in the interim period.
29.For the above mentioned reasons also, the decree of injunction cannot be granted in favour of the plaintiff.
30.The end result is suit of the plaintiff is dismissed. Decree sheet be prepared accordingly. No order as to cost. File be consigned to the record room.
Announced in the open court Dig Vinay Singh
on 15th day of January, 2013. ADJ-04 (Central)
Delhi
Suit no. 273/08 Pg... 13 of 13 r