Delhi District Court
Future Metals Pvt Ltd. \ vs Sembcorp Green Infra Limited on 28 March, 2022
IN THE COURT OF DISTRICT JUDGE
(COMMERCIAL-02),
SOUTH, SAKET COURT, NEW DELHI
CS (Comm) 196/2019
Future Metals Pvt ltd. \ .........Plaintiff
O/A No. 10/1, 1 Cross Nehru Nagar,
Seshadripuram, Bangalore-5600020
versus
Sembcorp Green Infra Limited .........Defendant no. 1
(Formerly known as Green Infra Limited)
5th Floor, Tower C, Building, 8 DLF Cybercity
Gurgaon 122002 Haryana, India
BML Munjal University .........Defendant no. 2
National Highway 8, 67 KM Milestone,
Gurgaon, Haryana 122413
presently at no. 2nd Floor, NBCC Plaza,
Pushp Vihar, Sector-V, New Delhi
NBCC (India) Limited .........Defendant no. 3
through its Directors
NBCC Plaza, 1st Floor, Centrak Atrium
Pushp Vihar, Sector-5, Saket,
New Delhi-110017
Aadhev Impex Pvt ltd. .........Defendant no. 4
B-1267, Ground Floor, RS Tower,
Near Metro Pillar No. 158,
New Ashok Nagar, New Delhi -110096
Sh. Prasada Rao Obulla Setty .........Defendant no. 5
s/o Obula Setty Venkata Rangaiah
B-1267, Ground Floor, RS Tower
Near Metro Pilar No. 158,
New Ashok Nagar, New Delhi-110096
Future Metals Pvt Ltd vs Semcorp Green Infra Limited & ors. Page 1 of 83
Mrs. Obula Setty Vishnudevi .........Defendant no. 6
w/o Prasada Rao Obulla Setty
B-1267, Ground Floor, RS Tower
Near Metro Pilar No. 158,
New Ashok Nagar, New Delhi-110096
Sh. Dayashankar Mishra .........Defendant no. 7
s/o Chhedi Prasad Mishra
B-1267, Ground Floor, RS Tower
Near Metro Pilar No. 158,
New Ashok Nagar, New Delhi-110096
Sh. Ritesh Mishra .........Defendant no. 8
s/o Dayashankar Mishra
B-1267, Ground Floor, RS Tower
Near Metro Pilar No. 158,
New Ashok Nagar, New Delhi-110096
Sh. Mojid Ali s/o Ali Kaisar .........Defendant no. 9
T-661, T Block Main Road,
Gautam Puri, Delhi-110053
Sh. Girijashankar DN .........Defendant no. 10
s/o DM Nagaraj, 229, 5th Cross,
5th main ITI layout, Mallathalli
Bangalore 560056
Mrs. Ashwini Nagral .........Defendant no. 11
w/o Sh. Sudheer Sriram
204, 2nd Floor, Deepika Residency
Next to Gopalan Mall, KR Puram
Bangalore 560093
State Bank of India .........Defendant no. 12
through its Chief Manager IB & Gold Banking)
Overseas Branch (6861) No. 65
ST Marks Road, Bangalore 560001
The Federal Bank Limited .........Defendant no. 13
through its Manager
No. 9, Hallyon Complex
ST Marks Road, Bangalore 560001
Future Metals Pvt Ltd vs Semcorp Green Infra Limited & ors. Page 2 of 83
Al Mustaqbal Metals FZC .........Defendant no. 14
through its Directors or AR
228, 5th Main ,
5th Cross, Kasinagar, Yelchanahalli
Kanakapura Road, Bangalore 560078
Date of Institution : 30.10.2018
Date of conclusion of arguments : 10.03.2022
Date of Judgment : 28.03.2022
JUDGMENT
1. This is suit for declaration, permanent injunction and recovery of licence fee of Rs. 15,00,000/- per month. Case of the plaintiff is that plaintiff company is registered under Company's Act 1956 having registered address suit no. 913, Barton Center, level 9, Bangalore 560001 and present at O/A No. 10/1, 1 Cross, Nehru Nagar, Seshadripuram, Bangalore 560020 and dealing with overseas secondary metal scrap trading, having valid licence for import and export and registered with all regulatory statutory bodies until October 2008 having a gross turnover of over 3000 crores. It is stated that Sh. Sathynarayan Sriram - father of chairman of plaintiff company recognized the need for environmental balancing and the scope for recycling of wastes to reuse resources in an efficient and profitable manner and entered in the scrap metals business in 2004 dealing with ferrous and non-ferrous metals like Aluminum, copper, lead , brass and stainless steel. It is stated that during the financial crises, the valuation of plaintiff group of companies was valued at $ one billion (USD) and the plaintiff company were having 100's of employees.
Future Metals Pvt Ltd vs Semcorp Green Infra Limited & ors. Page 3 of 832. In the year 2010, upon much deliberation within the family and considering the fact that plaintiff company became handicapped since 2008 due to false cases, which made the employees of plaintiff company to suggest the business by forming new companies and taking responsibilities in running the business. On 05.09.2011, M/s Aadhev Impex Pvt ltd D-4 was formed as group company and D-5 to D-11 were the Directors of D-4.
3. During the year 2007, D-3 issued a public notice inviting tender vide NIT no. NBCC/RE/2007/27 for sale of built up space to private/government agencies at second, third & fourth floor at Pushp Vihar, New Delhi. Plaintiff company placed its bid and was selected as the successful bidder for the property bearing Tower No. 2, 2nd Floor, NBCC Plaza, Pushp Vihar, Sector -V, New Delhi (hereinafter referred to as suit property). Plaintiff was granted allotment letter bearing no. Ref NBCC/RE/Pushp Vihar/2007/1498 dated 10.09.2007 from D-3 and this was followed by an unregistered agreement to sell on a stamp paper of Rs. 100/- was executed on 01.12.2007 wherein it was acknowledged that the entire payment of bid amount against the property mentioned above was made and physical possession of the property was handed over by D-3 to plaintiff company on 20.12.2007 . After taking possession, plaintiff company set up its office for running business which continued until 2008. On 29.04.2011, D-3 issued the occupancy certificate.
4. Plaintiff company entered into a registered leave and licence agreement with D-1/M/s Semcorp Green Infra Limited for a period of 60 months w.e.f 02.06.2010 to 01.06.2015 for Future Metals Pvt Ltd vs Semcorp Green Infra Limited & ors. Page 4 of 83 leasing the suit property for a monthly licence fee as mentioned below:
Period of time Licence fee per
month
From 02.06.2010 to 31.05.2011 Rs. 12,81,420/-
From 01.06.2011 to 31.05.2012 Rs. 13,32,677/-
From 01.06.2012 to 31.05.2013 Rs. 13,85,984/-
From 01.06.2013 to 31.05.2014 Rs. 14,41,414/-
From 01.06.2014 o 31.05.2015 Rs. 14,99,078/-
5. In addition to licence fee, D-1 had deposited a sum of Rs. 76,88,520/- with the plaintiff company which was equivalent to six months of licence fee as interest free refundable security deposit. Thereafter, a separate maintenance tripartite agreement between plaintiff company, D-1 & D-3 was executed on 12.11.2010 which was duly signed by plaintiff, D-1 & D-3. D-2 was occupying the suit property in place of D-1 as a tenant. It is further the case of plaintiff is that it had opened an Exchange Earners' Foreign currency (EEFC) account bearing no. 30260464428 with Sate Bank of India (D-12) and account bearing no. 11041300000305 with the Federal Bank Limited (D-
13) .
6. The plaintiff company was factoring agent in Tripartite Agreement dated 07.05.2005 for the secondary metal trade under which plaint company was to tact as a commission agent. M/s Al Mustaqbal Metal FAC (D-14) was the principal client while Spices Trading Corporation Limited (STCL) was a facilitator in the aforesaid Tripartite Agreement and D-14 was liable to pay 5- Future Metals Pvt Ltd vs Semcorp Green Infra Limited & ors. Page 5 of 83 10% of the import value of the goods. Plaintiff company was known to company STCL, which had an evil eye on the properties of plaintiff company including suit property and filed a bogus case against the plaintiff company and obtained exparte stay on 07.01.2009 against all the properties including the suit property of plaintiff company. On receipt of copy of exparte order dated 07.01.2009, plaintiff informed D-3 through fax regarding the operation of stay on 21.09.2009 at 03:17pm. STCL also sent representation by attaching the copy of exparte order dated 07.01.2009 to D-3.
7. Sh. Prasad Rao Obulla Setty (D-5) was employed with Chairman of plaintiff company, however, in the year 2006, he cited personal reasons and left the plaintiff company to start his own business. In the year 2011, D-5 again approached the plaintiff company for rejoining and plaintiff company accepted his proposal. D-5 was appointed as Finance Manager and Administrator of plaintiff company and thereafter, as consultant nominee director and nominee shareholder of some of the companies of plaintiff company. After joining, D-5 influenced the Chairman's family of plaintiff company to move its operations from Bangalore to Delhi. D-5 raised funds for the plaintiff company by mortgaging properties in Bangalore which belonged to the parents of Chairman of plaintiff's company. Thereafter, D-5 formed M/s Aadhev Impex Pvt ltd. (D-4) in which D-5 to D-11 were the Directors.
8. D-5 was the key member of the plaintiff company seeing all the financial aspects of plaintiff company. D-5 introduced his associates to the Chairman of the plaintiff company and inducted Future Metals Pvt Ltd vs Semcorp Green Infra Limited & ors. Page 6 of 83 them into the business. During the course of his employment, D- 5 held confidential documents such as companies letter pads, seals, cheque books etc., apart from handling entire banking transactions including net banking fund transfer, approving authority for passing the bills raised against the group of plaintiff company. D-5 and D-14 were close associates handling all transactions with M/s STCL. D-5 was also the authorized signatory for all finance clearance for the group of plaintiff company while the Chairman and Managing Director of the plaintiff company. It is stated that D-14 was involved with D-5 to grab the suit property.
9. During the year 2015, plaintiff company's management personal learnt that D-5 was arrested on 05.07.2015 in the fake passport case in case FIR no. 328/2014 & 528/2014 at PS Sector 49, Phase II, Noida UP alongwith one Sh. Sadasiva. Plaintiff company set up an internal enquiry and came to know that D-5 was not an honest person but he was master of forgery, cheating and manipulation. It was revealed that D-5 was involved in fake passport case and was arrested by the Hyderabad police. It was learnt that D-5 was nabbed by Commissioners Task force in Hyderabad and the case against him was that D-5 and his associates posted as police personnel to threaten the owners of a sugar factory using dummy pistols, fake judicial stamp or bond papers and four cells. It was also revealed that D-5 was involved in case Crime No. 568/2015 u/s 2/3 of U. P. Gangsters and Anti Social Activities (Prevention) Act 1986 (Goonda Act). D-5 was also involved in a property scam of forgery and cheating under the jurisdiction of Chamarajpet, Bangaluru vide FIR No. CR Future Metals Pvt Ltd vs Semcorp Green Infra Limited & ors. Page 7 of 83 428/2017 and a criminal case was also registered against D-5 before 6th Additional Chief Metropolitan Magistrate Court at Bangalore vide PCR No. 8278/2017. The charge against D-5 was that he prepared multiple documents of one particular apartment and sold it to several persons including a software engineer , who reported this crime to Chamarajpet police station in Bengaluru.
10. Case of plaintiff further is that one of the advisers of the family had entrusted D-5 to make payment from rental income received from suit property for conversion of the plaintiff company's property in Punjab. It was revealed that Sh. Daya Shankar Mishra D-7 who filed a complaint dated 01.08.2015 filed against D-5 stating that paid money for conversion of land in Punjab , which belong to plaintiff company from licence fee received from D-1, was routed through D-4 without the knowledge of the plaintiff company .
11. Case of the plaintiff is that in the enquiry report dated 14.02.2017, it was revealed that D-5 had misused the power delegated by the plaintiff company and breached the trust vested in him. D-5 misappropriated the funds especially licence fee earned from suit property, created forged, fabricated and manipulated document i.e. two letters dated 12.10.2011 issued by plaintiff company to D-3 and letter dated 05.01.2012 issued by plaintiff company to D-1.
12. D-1 came into possession of the suit premises on 12.11.2010 and started paying rent to plaintiff. Partial occupancy certificate dated 29.04.2011 was also issued by D-3/NBCC in favour of the plaintiff. Vide two letters dated 12.10.2011, plaintiff purported to have submitted a request for grant of NOC for Future Metals Pvt Ltd vs Semcorp Green Infra Limited & ors. Page 8 of 83 transferring the property in question in favour of D-4. In pursuant to letter of D-3/NBCC dated 02.01.2012, asking plaintiff to submit supporting documents, vide letter dated 05.01.2012, the plaintiff purported to have submitted an agreement to sell dated 10.12.2008 (between plaintiff and D-5) and another agreement to sell dated 29.02.2012 (between D-4 and D-5) (These are also unregistered and unstamped documents and notarized on a tamp paper of Rs.50/-) in favour of Mr. O.Prasada Rao/D-5 for transferring the property in favour of D-4/Aadhav Impex Pvt. Ltd., as well as undated GPA.
13. It is further the case of plaintiff that on the basis of the aforesaid forged documents submitted alongwith the letters dated 5th January, 2012 on behalf of plaintiff with the office of D-3, the allotment was wrongfully transferred in favour of D-4 which was communicated to plaintiff vide letter dated 12.09.2012. As per the tripartite agreement executed between the plaintiff, NBCC/D- 3 as well as D-1/tenant, plaintiff remained in the partial occupation of the premises. No further document in the nature of any agreement to sell or any tripartite agreement was executed between D-3 , D-4 and D-1as was executed earlier between D-3, plaintiff and D-1. Perusal of plaint shows that D-1 had earlier filed a Suit No. 8222/2016 before the Court of Ld. ADJ against plaintiff and D-4 for deposit of rent in the court and for declaration as regards the owner/landlord of the property etc., occupied by D-1 as tenant. On 28.12.2016, plaintiff company sent a legal notice to D-2 but D-2 did not reply to the notice.
14. Plaintiff has prayed that two letters dated 12.10.2011 issued by plaintiff company to D-3; letter dated 05.01.2012 Future Metals Pvt Ltd vs Semcorp Green Infra Limited & ors. Page 9 of 83 issued by plaintiff company to D-3 ; letter dated 12.09.2012 issued by D-3 to D-4 and letter dated 20.12.2012 issued by plaintiff company to D-1 be declared as null and void and not binding on plaintiff company.
15. Plaintiff also claimed rent/licence fee/damages from D-2 and recovery of Rs. 15,00,000/- as tentative licence fee from D-2 for the month of November 2018 and onwards. Suit was contested by defendants by filing separate written statements. Written statements was filed on behalf of defendant no. 2 on 14.12.2018; by defendant no. 4 & 5 on 05.01.2019; by defendant no. 12 on 19.01.2019; by defendant no. 3 on 24.01.2019; by defendant no. 6 to 9 on 30.01.2019 and by defendant no. 1 on 08.03.2019.
16. It may be noted that on 07.05.2019 D-10, D-11 & D-14 were proceeded exparte by Ld. Predecessor of this Court. On 25.01.2020, this case was received by way of transfer from the Court of Ld. ADJ-02, South Saket and it was directed that all the parties would file statement of truth as per the amended CPC/Sector 16 Commercial Court Act alongwith affidavits of admission-denial of documents. On 16.03.2020, other matter filed by D-1 herein against plaintiff and D-4 titled as " Sembcorp Green Infra Ld. Vs Future Meals Pvt ltd. CS DJ 8222/16 " was also transferred to this Court by the order of Ld. District & Sessions Judge, South Saket. Vide separate order 03.02.2021, an application u/o VII rule 11 CPC filed by D-4 & D-5 was dismissed. On 15.09.2020, other suit bearing no. 8222/2016 filed by D-1 herein was dismissed as withdrawn.
Future Metals Pvt Ltd vs Semcorp Green Infra Limited & ors. Page 10 of 8317. On 30.10.2021, case management hearing held. From the pleadings of the parties, issues were framed and on 11.02.2022 issue no. 1 was modified. The issues framed are as under:
1.Whether plaintiff is entitled to a decree of declaration to the effect that letters dated 12.10.2011 (two letters), 05.01.2012 and 20.12.2012 issued by the plaintiff to D-1 are null and void and not binding on the plaintiff company? OPP
2.Whether plaintiff is entitled to a decree of declaration to the effect that letters dated 12.09.2012 issued by D-3 to D-4 is null and void and not binding on the plaintiff company? OPP
3. Whether plaintiff is the landlord of D-2 being the successor of D-1? OPP
4. Whether plaintiff is entitled to a decree of permanent injunction, as prayed? OPP
5.Whether plaintiff is entitled to licence fee @ Rs.15,00,000/-
per month from D-2 w.e.f. filing of the suit i.e. 29.10.2018? OPP
6.Whether Shri Naveen Sriram has no authority to sign, file and verify the suit? OPD (D-4 & D-5)
7. Whether the suit has not been properly valued for the purpose of court fees? OPD (D-4 & D-5)
8. Whether the suit is barred by limitation? OPD (D-4 & D-5)
9.Relief
18. This Court has heard Sh. Keshav V. Hegde Learned counsel for plaintiff. Shri Chandra Shekhar, Learned counsel for D-1; Shri J.L. Joel, Learned counsel for D-2; Shri Narender Bhandari, Learned counsel for D-3 Shri Mohit Arura, Learned counsel for D-4 to D-7; Ms. Jaya Tomar, Learned counsel for D- 12; Shri Pramod Kumar, Learned counsel for D-13 appeared and Future Metals Pvt Ltd vs Semcorp Green Infra Limited & ors. Page 11 of 83 perused the material on record.
19. To prove its case, on behalf of plaintiff, Sh. Navin Sriram was examined as PW-1 whereas on behalf of D-4 and D-5, Sh. O. Prasada Rao appeared in the witness as DW-1 and D-3 examined Sh. Ashok Kumar Gupta , Deputy General Manager (Engg. )as D3W2.
20. Issue-wise findings of this Court are as under:-
Issue no. 6
21. Whether Shri Naveen Sriram has no authority to sign, file and verify the suit? OPD. This issue no. 6 is taken first of all as it pertains to the authority to file the suit.
22. Sh. Chander Shekhar Ld. Counsel appearing for D-1 submitted hat plaintiff was not authorized to file the present suit as plaintiff had not filed any authority letter or board resolution with the present which authorized him to file the present suit. It is submitted that during cross-examination, PW-1 admitted that he was not authorized to file the present suit with respect to the suit property. It is further submitted that as per the Board resolution dated 28.09.2010 Ex. PW1/1, plaintiff was not authorized to file the present suit and that plaintiff was not authorized to give evidence in the present suit. It is further submitted that prior to filing of the evidence affidavit, plaintiff had not pleaded the said facts that he had filed the suit in the capacity of director or shareholder of the company. It is submitted that it is a settled proposition of law that to file any judicial proceedings on behalf of the company,authorization is necessary to be filed.
23. Shri J.L. Joel, Learned counsel for D-2 submitted that Sh. Navin Sreeram was not authorized to sign the petition even if he Future Metals Pvt Ltd vs Semcorp Green Infra Limited & ors. Page 12 of 83 was the director or the shareholder of plaintiff. He submitted that vide Board Resolution only Mr. Amit Kaushik was authorized to sign the petition filed by the Plaintiff. Ld. Counsel further submitted that Sh. Naveen did not have an authority to sign the same even if he was the Director and Shareholder of the Plaintiff company.
24. Ld. Counsel for D-2 submitted that the PW-1, Sh. Naveen Sriram was never authorized to appear on behalf of Plaintiff or depose before this Court and therefore testimony given by the plaintiff witness was not admissible in the present proceedings. There is no Board Resolution or any intimation on record to show that the other Director has authorized PW to appear and depose. Deposition of the PW is illegal and cannot be read in evidence. It is further submitted that Plaintiff had not been able to prove its case and the suit is liable to be dismissed.
25. Sh. Mohit Arura counsel for D-4 to D-7 submitted the present suit was not maintainable and is liable to be dismissed as the same is not filed by the authorized official of the company. The suit has been signed by one Sh. Naveen Sriram claiming to be the Authorized Representative of the Company. It is submitted that at the time of filing of the suit, no board resolution in favor of Sh. Naveen Sriram has been annexed and one Board Resolution has been annexed with the Suit which specifically authorizes Sh. Sriram Sathyanaran Naveen Badri to execute a Board Resolution thereby issuing a power of Attorney in favor of one Sh. Amit Kaushik. It is submitted that while perusing the second Board resolution , it was transpired that Sh. Amit Kaushik Future Metals Pvt Ltd vs Semcorp Green Infra Limited & ors. Page 13 of 83 was only authorized to file the present suit against the Defendant no. 1 i.e. M/s Sembcorp Green Infra Limited and not against any other defendant. However, eventually the suit was signed and filed by Sh. Naveen Sriram and not Amit Kaushik.
26. It is pertinent to mention here that as per Order 29 Rule 1 of CPC, the suit can only be instituted by an authorized official of the company and admittedly, by perusal of the aforesaid documents, it is apparent that Sh. Naveen Sriram was not authorized by the company to file the present suit. Order 29 Rule 1 Subscription and verification of pleading - In suits by or against a corporation, any pleading may be signed and verified on behalf of the corporation by the security or by any director or other principal officer of the corporation who is able to depose to the facts of the case.
27. Ld. counsel for D-4 to D-7 submitted that it articulates about only signing and verification of the proceedings which can be signed by the Director or other principal officer, however, the suit needs to be instituted/filed by an Authorized official who has been specifically authorised on behalf of the company. In other words, Order XXIX, rule 1 of the Code of Civil Procedure does not authorize persons mentioned therein to institute suits on behalf of the corporation. It only authorises them to sign and verify the pleadings on behalf of the corporation. It is submitted that if a party is a company or a corporation, the recognized agent or a pleader has to be authorised by law to file such a plaint. Such an authority can be given to a pleader or an agent in the case of a company by a person specifically authorised in this behalf. It is submitted that a pleader or an agent can be authorised to file a Future Metals Pvt Ltd vs Semcorp Green Infra Limited & ors. Page 14 of 83 suit on behalf of a company only by an authorized representative of the company and if a director or a secretary is authorised by law, then he can certainly give the authority to another person as provided under Order III rule 1. Therefore, since the suit on behalf of the Corporation/ company is not filed/ instituted by the authorised official of the company the same is liable to be dismissed on this ground alone.
28. Ld. counsel for D-4 to D-7 submitted that PW1 admitted that he was not authorised to file/ institute the present suit on behalf of the plaintiff company and above all as per the Board resolutions Sh. Amit Kaushik was authorised to file the suit only against M/s Sembcorp Green Infra. The relevant portion of the cross examination is reproduced below:
"The document Ex. PW1/1 (Colly) is shown to the witness. Upon seeing the document, the witness state that the plaintiff company authorised Mr. Kaushik to file the present suit. It is correct to say that Ex. PW1/1(colly) only speaks about to file a civil suit against D-1. It is correct to say that Ex PW1/1(colly) at Page 49, speaks about my authorization to file the suit against D-1 and the suit property. Vol. that on the date of taking the oath before the Notary on the main suit, I was physically present in New Delhi and have signed all the documents relating to the plaint myself. It is correct to say that as per the Board Resolution dated 28.09.2018 (Ex.PW1/1(colly) at Page 49, I was not authorised to file a suit with respect to the suit property. Vol. that as a Founder/Director/Shareholder/Chairman off the plaintiff company, I have inherit legal power to represent the plaintiff company to protect the interest of the plaintiff company. It is correct to say that the contents of para 6 of my affidavit in evidence. Ex. PW1/A are not part of my plaint and I have never pleaded the same prior to filing of this affidavit in evidence."
29. It is submitted that from the bare perusal of the cross examination of PW1 it is apparent that he was not authorised to Future Metals Pvt Ltd vs Semcorp Green Infra Limited & ors. Page 15 of 83 institute or file the present suit against the Defendant no. 1. It is submitted that the Plaintiff company has authorised Sh. Amit Kaushik for signing the same but, he was only authorised to file the suit against the Sembcorp Green Infra Limited and not against the other defendants. It is submitted that the Board Resolutions which was annexed with the suit is not valid as per law. It is submitted that on the date of filing of the suit as well as signing of the Board Resolution, both the Directors of the plaintiff company were disqualified to act as Directors of the Plaintiff Company by the Ministry of Corporate Affairs. It is submitted that the relevant extract from the website of the Ministry of External affairs is exhibited as Exhibited as D-1 and D-2. Since both the Directors were disqualified on the date of execution of the Board Resolutions the said resolutions cannot be read into the evidence lead by the plaintiff company and has to be rejected. It is submitted that at the time of arguments advanced by the plaintiff, it was averred that a new board resolution has been filed but copy of the same has never been served to the defendants and further, without permission of this Court and without following due procedure, no document can be filed at a belated stage like this. It is submitted that since no application was filed and no opportunity was given to the defendants to examine the plaintiff on an additional document, the same cannot be read into evidence.
30. Ld. Counsel for D-4 to D-7 submitted that for the first time, the plaintiff a the time of filing its evidence has raised a ground of "Derivative suit" which was never pleaded in the suit itself. It is submitted that the same arguments has to be rejected Future Metals Pvt Ltd vs Semcorp Green Infra Limited & ors. Page 16 of 83 in the preliminary as the present suit does not meet the parameters of a Derivative Suit. It is further submitted that the concept and idea of the plaintiff that what is a derivative suit is completely misconceived and is liable to be rejected. It is submitted that literature with respect to a derivative suit is very limited in India and under no imagination, the present suit can fall under the definition of a "Derivative Suit" which is apparently an after-thought of the plaintiff.
31. Ld. Counsel for D-4 to D-7 relied upon State Bank of Travancore Vs Kingston Computers India Pvt Ltd (2011) 11 SCC 524 Serial No. 16 Page 144-148 Relevant Paras 13, 14 and 15; Nibro Limited Vs. National Insurance Co Ltd 1990 SCC Online Del 65 Serial No. 13 Page no. 106-124; Relevant Para 9,10,15,16,17, 25 and 26; Schmenger GMBH Vs. Sadler Shoes Pvt Ltd 2010 SCC Online Mad 6539 .
32. Ld. Counsel for plaintiff submitted that plaint is signed by Sh. Amit Kaushik and Sh. Naveen Sriram which is passed by Board Resolution. It is submitted that Order XXIX CPC empowers the directors to file suit by signing and verifying the plaint and Order VI rule 15 of CPC provides that by any law for the time being in force, every pleading shall be verified at the foot by the party or by one of the parties pleading or by some other person proved to the satisfaction of the court to be acquainted with the facts of the case.
33. He further submitted that the Board resolution is for filing of the suit Ex. PW1/1 and it is too technical to look into such typographical error in the board resolution. The amended Board Resolution is dated 30.11.2021. The next question whether un- Future Metals Pvt Ltd vs Semcorp Green Infra Limited & ors. Page 17 of 83 disqualified director can pass Board Resolution? Ld. Counsel for plaintiff submitted that plaintiff could not file Income Tax returns for three years and Karnataka High Court passed the order in the year 2021 (Ex.PW1/D-1).
34. To sum up, the Points raised by defendants are that no Board Resolution filed in favour of Naveen Sriram who had signed and verified the present suit. Amit Kaushik has not signed the suit nor verified the suit. Affidavit of Amit Kaushik is not there as only Amit Kaushik was authorised to file the present suit on behalf of company. It is submitted that even if we assume that Board resolution is there in favour of Amit Kaushik, the said Board resolution only authorizes Amit Kaushik to file the suit against D-1 only and not the other defendants.
35. Order XXIX CPC empowers the directors to file suit by signing and verifying the plaint. As per Order VI rule 15 of CPC
- Verification of pleadings. - (1) Save as otherwise provided by any law for the time being in force, every pleading shall be verified at the foot by the party or by one of the parties pleading or by some other person proved to the satisfaction of the court to be acquainted with the facts of the case.
36. PW1 is Director/chairman/share holder of the plaintiff company. Sh. Amit Kaushik was authorized to file present suit through Board resolution. PW1 himself was available at Delhi and both Amit Kaushik as well as PW1 signed and verified the plaint. It is admitted that there are typographical errors in Board resolution Ex.PW1/1 and amended board resolution has been passed by the plaintiff company. Even otherwise PW1 being Director cum share holder of the plaintiff company could sign Future Metals Pvt Ltd vs Semcorp Green Infra Limited & ors. Page 18 of 83 and verify the plaint. Admittedly, disqualification of director had been quashed vide Ex. PW1/D1.
37. Counsel for D-4 to D-7 has not been able to show any provision in the CPC which requires authority for filing and/or institution of the suit. How suit is to be instituted is mentioned in u/s 26 and order IV CPC. Every suit shall be instituted by the presentation of a plaint on in such other manner as may be prescribed. In every plaint, facts shall be proved by the affidavit. It is not provided that who will actually present the plaint.
38. It may be noted that Sh. Naveen Sriram had signed and verified the plaint as Director and he is authorised to do so u/O XXIX rule 1 CPC and u/O VI rule 15 in the present matter. The suit can also be filed to the satisfaction of the Court by a person who is acquainted with the case, can also file verify. So there is no defect as far as filing, signing and verifying the suit in question. Accordingly, this issue no. 6 is decided in favour of the plaintiff and against the defendants.
Issue no. 1 & Issue no. 2 -
39. Whether plaintiff is entitled to a decree of declaration to the effect that letters dated 12.10.2011 (two letters), 05.01.2012 issued by the plaintiff to D-3 and 20.12.2012 issued by the plaintiff to D-1 are null and void and not binding on the plaintiff company and Whether plaintiff is entitled to a decree of declaration to the effect that letters dated 12.09.2012 issued by D-3 to D-4 is null and void and not binding on the plaintiff company? OPP
40. Ld. Counsel for plaintiff submitted that plaintiff essentially challenged the letter dated 12.09.2012 . Plaintiff company has not Future Metals Pvt Ltd vs Semcorp Green Infra Limited & ors. Page 19 of 83 issued letter dated 12.10.2011 as same is not supported by Board Resolution and letter dated 20.12.2012 also does not supported by Board Resolution. It is submitted that the letter dated 20.12.2012 lost its importance when D-1 himself filed a suit 8222/16. The plaintiff company neither transferred its right nor received sale consideration as mentioned in the agreement to sell dated 08.12.2008. It is submitted that it can be seen from the admission/denial affidavit filed on 20.01.2021 and stated about the transaction between Plaintiff and D-14 for the tune of about Rs 11 Crore (in USD) against export of materials.
41. It is submitted that D-13 filed reply to the application of the plaintiff under order XI rule 14 of CPC and took a stand that amount worth Rs 5 Crore in (USD) received by the plaintiff during 2008 from ATWATANI Limited against trade related commissions and D-12 and D-13 admitted the documents of the plaintiff which are Ex. PW1/5. It is submitted that the payment of Rs 16,56,13,110/- in USD received by plaintiff company at EEFC Accounts of the plaintiff company from D-14 and ATWATANI Limited but not from D-5. It is submitted that the payment of Rs 16,56,13,110/- in USD was received by plaintiff company from D-14 and ATWATANI Limited but not from D-5 and that payment so received by plaintiff company against export but not as sale consideration mentioned in agreement to sell dated10.12.2008 which is Ex. D-11.
42. Ld. Counsel for plaintiff submitted that Sh. O. Prasad Rao (DW-1) deposed that he paid the sale consideration amount of Rs 16 crore to the plaintiff company but failed to show the source of income to purchase the suit property. It is submitted that Sh. O. Future Metals Pvt Ltd vs Semcorp Green Infra Limited & ors. Page 20 of 83 Prasad Rao (DW-1) in contrary admitted the stand taken by the D12 and 13. It is submitted that Sh. Ashok Kumar Gupta D 3W2 relied provisional attachment order 14-10-2021 mark A whereas DW-1 deposed that he has not paid the consideration and Plaintiff company is owner of suit property.
43. It is submitted that no sale consideration was ever been paid by the D-5 to the plaintiff company to the tune of Rs.16,56,13,110/- against suit property as mentioned in agreement to sell dated 10.12.2008. It is submitted that the agreement to sell dated 10.12.2008 is a sham document and stand taken by D-5 that he had purchased the suit property from plaintiff company vide agreement to sell dated 10-12-2008 Ex. D-11 after depositing Rs.16,56,13,110/- in USD at EEFC Accounts of the plaintiff company as sale consideration. It is submitted that consequently, impugned two letters dated 12.10.2011 and letter dated 05.01.2012 were issued by plaintiff company to D3/NBCC. It is submitted that after verification of the documents, D3/NBCC issued letter dated 12.09.2012 whereby transferred the allotment of suit property from plaintiff company to D-4/Aadhev Impex lost its importance. It is submitted that said agreement to sell dated 10-12-2008 is unregistered, unstamped and cannot be read in evidence.
44. Sh. Keshav Hegde Ld. Counsel for plaintiff submitted that leave and license agreement dated 02-06-2010 (Ex-PW1/3) does not speaks about agreement to sell dated 10.12.2008 (Ex-D11) in contrary the clause 13.1 of leave and license agreement dated 02- 06-2010 (Ex-PW1/3) says that plaintiff company will inform the D1 in case of any third-party interest in suit property. It is Future Metals Pvt Ltd vs Semcorp Green Infra Limited & ors. Page 21 of 83 submitted that according to D-5, he entered into agreement to sell dated 10.12.2008 with plaintiff company for purchasing the suit property and he admitted that the plaintiff company entered in to registered leave and license agreement in suit property with D1 on 02.06.2010 which are contradictory to each other.
45. Ld. Counsel for plaintiff contended that case of plaintiff company is that D-5 being trusted ex-employee of the plaintiff company holding good position in the plaintiff company misused the power by fabricating the documents such as agreement to sell dated 10.12.2008, two letters dated 12.10.2011 and 05.01.2012 and D-5 in connivance with officials of D-3 got the allotment of suit property transferred in the name of D-4 in which D-5 and D- 6 (wife of D5) were shareholders. It is submitted that D-5 in connivance officials of D-1 got the new lease agreement in suit property in the name of D-4 with the help of manipulated letter dated 20-12-2012. It is submitted that impugned letters dated 12.10.2011 (two letters); letter dated 05.01.2012 ; and letter dated 20.12.2012 are not supported by board resolution of plaintiff company. It is submitted that it is not in dispute that D-3/NBCC allotted the suit property to the plaintiff company after receiving sale consideration of Rs 17,20,94,706/-.
46. It is submitted that it is not in dispute that plaintiff company inducted D-1 as its tenant in suit property vide leave and license agreement dated 02.06.2010. It is submitted that as per certified copy of stay order dated 09.01.2009 Ex. PW-1/6 from city Civil Court Bangalore whereby plaintiff company was restrained from alienating the suit property. It is submitted that the letter dated 12.09.2012 Ex-PW1/D1-B is based on two letters Future Metals Pvt Ltd vs Semcorp Green Infra Limited & ors. Page 22 of 83 dated 12.10.2011 and 05.01.2012.
47. Ld. Counsel for plaintiff submitted that D-3/NBCC took a stand that D-3 had acted in bonafide manner while issuing letter dated 12.09.2012 Ex-PW1/D1-B which is based on two letters dated 12.10.2011 and 05.01.2012. It is submitted that the bye laws of D-3 permit D-3 to transfer the allotment of suit property in the name of any third party only after entering in to tripartite agreement as per clause XIII of allotment letter dated 13.08.2001 Ex-PW1/2.
48. Ld. Counsel for plaintiff further urged that D-3 has acted as sub-registrar while issuing letter dated 12.09.2012 without even following the bye-laws of D-3 and transferring of allotment of suit property to D-4 without paying stamp duty is loss of revenue to the Government, as such D-3 is legally not allowed to act as sub-registrar.
49. It is submitted that D-1 has relied on letter dated 20.12.2012 Ex-PW1/D1-A but D-1 has not led the evidence to rebute the evidence led by PW1 with respect to letter dated 20.12.2012. PW1 in his cross-examination was put a suggestive question by D1 that the said letter dated 20.12.2012 might have been fabricated and issued by employees of plaintiff company to which PW 1 answered as "Possible". It is submitted that D-1 failed to file the original letter dated 20.12.2012 which was claimed to be received by D-1 from plaintiff company and it was revealed that D-1 had no such documents. It is submitted that plaintiff sought declaration against D-1 whereby declaring letter dated 20.12.2012 to be null and void and not binding on the plaintiff and therefore, it is a clear case of sham letters as Future Metals Pvt Ltd vs Semcorp Green Infra Limited & ors. Page 23 of 83 genuine. It is submitted that both the letters dated 17.12.2012 and 20/12/2012 bears no reference numbers. It is submitted that D-1 would have sent letter dated 17.12.2012 to the plaintiff company by registered AD/speed post/courier and D-1 would have maintained the record of acknowledgement of such an important letter. It is submitted that inter-pleader suit bearing number 8222/2016 filed by D1 nullifies the contents of Ex-PW1/D1-A.
50. Ld. Counsel for plaintiff submitted that bone of contention of the plaintiff in present suit is that letter dated 12 th September 2012 illegally issued by D-3 to D-4 during operation of stay order. It is submitted that the letter dated 12th September 2012 is based on sham documents and no such sale consideration was ever received by the plaintiff company and the agreement to sell dated 08.12.2008 is a sham document.
51. In support, Ld. counsel for plaintiff has relied upon a judgment reported as Smt. Savitri Devi vs Civil Judge (Senior Division), Gorakhpur AIR 2003 Allahabad 321. Ld. Counsel submitted that there was a stay dated 09.01.2009 from Bengaluru City Civil Court and same was exhibited as Ex. PW1/6.
52. Sh. Chander Shekhar Ld. Counsel appearing for D-1 submitted that D-1 took the suit property on leave and licence basis from plaintiff vide leave and licence agreement dated 02.06.2010 duly singed by the representative of the parties. It is submitted that subsequently, there were some internal developments within the management of the plaintiff and plaintiff intimated D-1 vide letter dated 20.12.2012 that the said property was transferred to D-4 and plaintiff was disentitlted to receive any future rentals. It is further submitted that D-1 had no Future Metals Pvt Ltd vs Semcorp Green Infra Limited & ors. Page 24 of 83 occasion to know about the forgery or any such attempt by D-4. It is submitted that after enquiries from D-3/NBCC, D-1 in pursuance of the letter dated 20.12.2012 started paying the rent regularly to D-4. It is submitted that D-1 had done all due diligence from D-3/NBCC and entered into the new leave and licence agreement D-4 and continued paying the lease rent to D-4 and lastly, deposited the entire remaining lease rent in Court. It is submitted hat due to the disputes and the claims raised by D-4 and plaintiff, D-1 approached Court and filed suit bearing no. OS No. 8222/16 for declaration declaring that plaintiff or D-4 in the present suit, were entitled as the lawful entity to receive rent from D-1.
53. Ld. Counsel for D-1 further submitted that after 2011 till 2015 , plaintiff did not raise any dispute or claim towards rentals from D-1 and after 2015 various correspondences received by D- 1 from both plaintiff and D-4 demanding rent from D-1. It is submitted that D-1 received summons from PS Gautam Nagar and asked D-1 for the dispute between the plaintiff and Sh. Prasada Rao Obulla Setty/D-5. Ld. Counsel for D-1 further submitted that D-1 had deposited the due lease rent in the Court in CS No. 8222/2016. It is submitted that M/s Aadhev Impex/D-4 took forcible possession of the suit property and aggrieved by the same D-1 filed a contempt petition.
54. Sh. Chander Shekhar Ld. Counsel for D-1 further submitted that the suit bearing no. 8222/2016 filed by D-1 was withdrawn on 15.09.2020 by D-1 as D-1 wanted to come out of the controversy. It is submitted that none of the issues framed against D-1 and plaintiff failed to discharge its burden. It is Future Metals Pvt Ltd vs Semcorp Green Infra Limited & ors. Page 25 of 83 submitted that present suit is not maintainable as barred by law of limitation and it has not been signed by authorized person. It is submitted that plaintiff has failed to prove his case or claim and discharge burden as required under law. It is submitted that NBCC transferred the property in the name of D-4 and neither the said suit property and nothing was pending against the lease rent. It is submitted that present suit is liable to be dismissed against D-1 as D-1, due to such disputes between the plaintiff and D-4 approached this Court bonafidely and filed suit being OS No. 8222/16 for declaration declaring that which defendants i.e. plaintiff or D-4 in the present suit , was entitled as the lawful entity to receive rent from D-1. It is submitted that the present suit is nothing but an attempt to unnecessary harass the D-1 due to on going disputes between the plaintiff and other defendants.
55. Sh. Shekhar Ld. Counsel for D-1 submitted that D-1 had paid rent in respect of the suit premises regular and the rent that was outstanding in connection with the occupation of D-1 in the suit property till D-1 was forcibly dispossessed by men and agents of D-4 in October 2016 was deposited with this Court in suit no. OS 8222/2016 and the said amount was also released in favour of D-4 after D-4 had given statement before this Court for indemnifying the D-1 in case dispute arose in future with such release of rental in favour D-4. It is submitted that the present suit is liable to be dismissed against D-1 as there is no specific prayer against D-1. Admittedly, the plaintiff stated that the directors were not functioning and Sh. O. P. Rao misused authority and cheated them and forged the documents when they themselves cheated , D-1 could not have been blamed for Future Metals Pvt Ltd vs Semcorp Green Infra Limited & ors. Page 26 of 83 entering into the New leave and licence agreement when NBCC also transferred the said suit property in the name of D-4/5. It is submitted that the plaintiff has failed to come out of hte latches. It is submitted that present suit is hit by law of limitation. The plaintiff is trying to claim the possession of the said suit property by dragging D-1 and raising false accusations. It is further submitted that plaintiff has failed to adhere to the CPC and has to every point of time brought one or other documents to fill the lacunae, the suit is liable to be dismissed.
56. Ld. Counsel for D-1 submitted that D-1 is not in possession of the suit property and D-1 has done proper due diligence by seeking the documents from NBCC and then only have entered into the new leave and licence agreement with Aadhev Impex and have started paying he lease rent to D-4. It is submitted that plaintiff had never approached the D-1 for lease rent or renewal of the leave and licence agreement which as per record would have expired in the year 2015.
57. Sh. J. L. Joel Learned counsel appearing for D-2 submitted that there was no privity of contract between plaintiff and the D-2. It is submitted Defendant No.2 was having Registered Leave and License Agreement with Defendant No.4, M/s Aadhev Impex Ltd which is the admitted document by the parties and the peaceful possession of the property was returned to Defendant No.4 at the time of vacation of the suit premises in October, 2020. It is submitted that said premises was taken on rent upon proper due diligence wherein letter written by D-3 was shown wherein possession and ownership of the premises was given to Defendant No.4. Ld. Counsel for D-2 submitted that on Future Metals Pvt Ltd vs Semcorp Green Infra Limited & ors. Page 27 of 83 the date of taking over the suit premises, there was no stay or any order from the Court which mentions that the suit property belonged to the Plaintiff. It is submitted that for the sake of arguments, the stay order granted by the Hon'ble Bengaluru Court is an illegal order since that Court did not had territorial jurisdiction to pass any order against the suit property. Ld. Counsel for D-2 further submitted that during the cross examination of PW-1, it has come on record and admitted by the said witness that the Plaintiff had no privity of contract with Defendant No.2 at any point of time and that Defendant No.2 was a bona fide tenant of Defendant No.4.
58. Sh. Narender Bhandari Ld. Counsel for appearing for D- 3/NBCC submitted that the onus to prove the issues were on the plaintiff as well as defendants except D-3. In cross-examination, PW-1 admitted that in Ex. PW1/5A, there was no manual acknowledgement of D-3 of the receving of the aforemtnioned letter, PW-1 admitted that the beneficiary of stay order M/s STCL had communicated about the stay to D-3, however the same was not on court record. PW-1 failed to give any satisfactory reply as to why the plaintiff had not sent any response to the letter dated 12.09.2012 sent by D-3 to the plaintiff and only stated that since the said letter was not received at the office of the plaintiff, the response was not given with respect to letter dated 12.09.2012, however, PW-1 failed to file any documentary evidence to substantiate his version.
59. It is submitted that D-3 led his evidence by way of filing of affidavit of Sh. Ashok Kumar Gupta D(3)W3 , who exhibited Future Metals Pvt Ltd vs Semcorp Green Infra Limited & ors. Page 28 of 83 general power of attroney as D-22 and copy of provisional attachment order no. 12/21 dated 14.10.2021 as marked A. It is submitted that there is nothing in the cross examination of D(3)W3 and denied the suggestion of plaintiff that their officials colluded with the D-5 while transferring the lease right in favour of D-4.
60. Sh. Bhandari further submitted that letter dated 21.09.2009 claimed to be sent through fax was not available on record of D-3 and it is the plaintiff's own admission that the said order dated 07.01.2009 of Civil Court, Bangalore was not communicated to the D-3 by the plaintiff vide any other mode of communication.
61. Sh. Mohit Arura Ld. Counsel for D-4 to D-7 submitted that the plaintiff company has not proved that the defendant no. 4 is a group company. He argued that the plaintiff's directors were themselves embroiled in ED and CBI cases and have been arrested in the past by the CBI on several occasions. It is submitted that the conduct of the plaintiff can be seen from the fact that the Enforcement Directorate had recently attached properties worth 1000 crore of the plaintiff company. Ld. Counsel for defendant submitted that the shareholding of the defendant no. 4 was always in the name of Defendant no. 5 and 6 therefore, plaintiff cannot claim that it was plaintiff's group of company.
62. Ld. Counsel submitted that the plaintiff's director had filed an anticipatory bail application before the Hon'ble Allahabad High Court which was rejected by the Hon'ble High Court. It was the plaintiff's director who tried to flea away by making Future Metals Pvt Ltd vs Semcorp Green Infra Limited & ors. Page 29 of 83 fresh passports in fake name because of CBI and ED Cases against them and later on implicated defendant no. 5 due to personal enmity. Their roles in the passport cases were absolved and investigation is still going on against them.
63. Ld. counsel for D-4 to D-7 submitted that it is a settled law that the onus of proving that the signatures were not executed by the plaintiff or were obtained by fraud was upon the one who was challenging the signatures i.e. in the present case is plaintiff. It is submitted that plaintiff company is challenging the letters by stating that the signatures must have been obtained by fraud and is not the case that the signatures are not executed by Sh. Naveen Sriram himself. It is submitted that without any allegation of such fraud, the suit is not maintainable and is liable to be dismissed. It is submitted that the plaintiff has not been able to prove anything with respect to the letters being not issued by Sh. Naveen Sriram himself or to the effect that the letters were executed or signed by the defendant no. 5 or someone else. It is submitted that at one point the plaintiff alleged that the fraud was committed and the documents were allegedly created fraudulently and in the same suit, plaintiff alleged that there is a strong likelihood that signatures of the Chairman of the company must have been taken on the disputed letters by hoodwinking the chairman of the plaintiff company. Ld. Counsel reproduced both contradictory allegations below:
"The responses prepared by Defendant no. 5 were signed by the Chairman of the plaintiff companies to be dispatched to the aforesaid agencies, M/s STCL The Singapore investigating agencies, the agencies has given clearances in the ongoing investigation. Since Defendant no. 5 was closely associated with the plaintiff company during the period of these transactions, there is a strong likelihood of Future Metals Pvt Ltd vs Semcorp Green Infra Limited & ors. Page 30 of 83 the defendant no. 5 having taken signatures on the disputed letters by hoodwinking the chairman of the plaintiff company."
64. It is submitted that from the perusal of the above- mentioned averment of the suit, it is clear that even the Plaintiff is not clear whether he has signed the documents or not. It is submitted that there is no evidence produced or adduced to the effect that the defendant no. 5 has signed the disputed letters. Ld. Counsel further submitted that the plaintiff has not denied signing of the disputed letters and alleged that the same were signed by the defendant no. 5. It is submitted that the plaintiff cannot take dual stand to prove beyond reasonable doubt that he has not signed the letters.
65. Ld. Counsel for D-4 to D-7 submitted that the plaintiff has to prove its case on the basis of the evidence produced and not on the basis of the weakness of defense. It is submitted that the burden of proof is upon the plaintiff to prove that the signatures are not his or were obtained by fraud. It is submitted that it is not the case of the plaintiff to refer the alleged fraud signatures to any handwriting experts. Ld. Counsel for D-4 to D-7 submitted that the burden of proving the documents to be forged or fabricated is upon the plaintiff who is alleging the same, and the plaintiff has miserably failed to prove that the documents were not signed by him and therefore, the onus did not shift upon the defendant no. 5 to prove that the documents were not signed by him.
66. It is further submitted by Ld. Counsel D-4 to D-7 that despite knowledge of the agreement to sell dated 10.12.2008 and Future Metals Pvt Ltd vs Semcorp Green Infra Limited & ors. Page 31 of 83 GPA issued in favor of the defendant no. 5 by the plaintiff company chose not to challenge the same by giving reasons that they do not have the originals of the same but disputed the letters, which admittedly they do not have the originals. Ld. Counsel for D-4 to D-7 submitted that the plaintiff do not have the original and that is why the agreement to sell was not challenged is without any basis whatsoever.
67. Ld. Counsel for D-4 to D-7 submitted that plaintiff has not executed the documents in question and although a contradictory stand was taken in the suit, the plaintiff's witness stated that he has not signed the documents in question. The relevant portion is reproduced below:
"XXX by Shri J.L. Joel, Counsel for D-2 ......
......
It is wrong to suggest that Chairman of the plaintiff company had signed the above agreement to sell.
68. Ld. Counsel for D-4 to D-7 submitted that the plaintiff has stated that he has not signed the documents in question and the defendant's case is that the documents were executed by the Director of plaintiff company, then the procedure has to be followed by the Court while comparing the signatures and adjudicating upon the same. Ld. Counsel for D-4 to D-7 placed reliance upon a judgment of the Hon'ble Supreme Court titled as Tarak Nath Aha vs Bhutoria Bros. Pvt. Ltd. & Ors. AIR 2002 SC 2063 wherein it was held as under:
"Once a document is properly admitted the contents of that document are also admitted in evidence though those contents may not be conclusive evidence. The Division Bench was also considering the power of the Court to compare signatures in exercise of power under Section 73 of the Evidence Act and Future Metals Pvt Ltd vs Semcorp Green Infra Limited & ors. Page 32 of 83 held that the Court is not an handwriting expert. The Court does it only through its visual experience. The comparison of signatures by expert is a piece of evidence. The opinion of the expert is not binding on the Court. Ordinarily, the Court should not take upon itself the responsibility of comparing signatures when disputed. Those are matters of intrinsic technicalities requiring some amount of technical expertise. A signature apparently may look alike but when examined by experts, various flaws may be detected. But without such expert examination, the Court cannot for sure accept the signature of the author denying it."
69. The Hon'ble Supreme Court in Thiruvengadam Pillai v. Navaneethammal & Ann 2008 (4) SCC 530 further held that:
"When there is a positive denial by the person who is said to have affixed his finger impression and where the finger impression in the disputed document is vague or smudgy or not clear, making it difficult for comparison, the Court should hesitate to venture a decision based on its own comparison of the disputed and admitted finger impression. Further, even in cases where the court is constrained to take up such comparison, it should make a thorough study, if necessary with the assistance of counsel, to ascertain the characteristics, similarities and dissimilarities. The Court should avoid reaching conclusions based on a mere casual or routine glance or perusal."
70. The Hon'ble Punjab & Haryana High Court while reiterating the above mentioned judgment, in Chamkaur Singh vs Mithu Singh 2014(1) Civil Court Cases 389 held as under:
"12. In view of Tarak Nath (supra), the Court is not an handwriting expert. The Court does it only through its visual experience. Ordinarily, the Court should not take upon itself the responsibility of comparing signatures when disputed, as in such matters technical expertise is necessary."
71. Ld. Counsel for D-4 to D-7 submitted that it was imperative upon the plaintiff to prove that the signatures are fraud or are not executed by him and in the absence of the same, the letters cannot be declared null and void as being prayed by Future Metals Pvt Ltd vs Semcorp Green Infra Limited & ors. Page 33 of 83 the plaintiff in the present case.
72. Ld. counsel for defendants submitted that the documents which are being challenged are executed way back in the year 2012 and the agreement to Sell and GPA are both executed in the year 2008 vide which the title was transferred in favor of Defendant no. 5 and there is a general presumption in favor of the defendant to the effect that the documents are genuine until proven otherwise. It is submitted that the agreement to sell dated 29.02.2012 vide which the title was transferred from Defendant no. 5 to defendant no. 4 is also not challenged and has attained validity and finality. It is submitted that there is no evidence to the effect or placed on record by the plaintiff which could prove that the documents were forged or fabricated, and the onus was upon the plaintiff which has not been shifted by the plaintiff in the present case upon the defendant. It is submitted that without any proof or evidence whatsoever, the letters which are under challenge cannot be set aside.
73. Ld. Counsel for D-4 to D-7 argued that failure of the plaintiff to challenge the agreement to sell and GPA in favor of Defendant no. 5 along with subsequent agreement to sell in favor of Defendant no. 4 is not understandable. It is submitted that it is not out of place to mention here that the property was transferred in the name of Defendant no. 4 interalia these documents, which despite being in knowledge of the plaintiff has not been challenged.
74. It is submitted that it is noteworthy that even having knowledge of the agreement to sell dated 10.12.2008 and GPA Future Metals Pvt Ltd vs Semcorp Green Infra Limited & ors. Page 34 of 83 which was executed in favor of defendant no. 5 by the plaintiff company, the plaintiff has chosen not to challenge the same before this Court with the reasons best known to them. It is submitted that without any specific challenge to the documents vide which the title was originally transferred to the defendant no. 5 and subsequent documents vide which the property was eventually transferred in favor of defendant no. 4, were never challenged, therefore, the same have attained finality.
75. The relevant portion of the suit is reproduced below "Since basic documents itself are declared null and void then all the consequential documents are deemed to be null and void and not binding on the plaintiff company ..." It is submitted that the averment that once the letter in which those documents were got declared null and void, the documents were declared null and void, is completely misconceived.
76. Ld. Counsel for D-4 to D-7 submitted that letters for which the declaration is sought are subsequent letters and Agreement to sell, Power of Attorney etc. are the documents vide which the property title was transferred in favor of Defendant no. 5 and Defendant no. 4. It is submitted that the plaintiff has chosen not to challenge these documents, and without challenging these documents the title of the suit property cannot be challenged. Ld. counsel referred the letter dated 5.01.2012 which enumerates seven documents issued by the plaintiff to initiate the transfer process in favor of Defendant No. 4/Aadhev Impex Private Limited. Ld. Counsel for D-4 to D-7 submitted that conveniently, the plaintiff has chosen not to challenge the documents which Future Metals Pvt Ltd vs Semcorp Green Infra Limited & ors. Page 35 of 83 were annexed with the letter dated 05.01.2012. It is further submitted that merely seeking declaration for cancellation of a letter without challenging the documents mentioned in the letter, will not automatically confer those documents as null and void. Counsel for defendant pointed out that the documents which are mentioned in the letter are:
a. Undertaking duly signed by Authorised Representative of M/s Aadhev Impex Private Limited.
b. Affidavit c. Photocopy of GPA favoring Shri O. P. Rao to deal with the people relating to M/s Future Metals Pvt. Ltd. at NBCC Plaza Pushp Vihar New Delhi d. Photocopy of Agreement to Sell between M/s Future Metals Pvt. Ltd. and Shri O. Prasada Rao dated 10.12.2008 e. Photocopy of Agreement to Sell between Shri O. Prasada Rao and M/s Aadhev Impex Private Limited dated 29.02.2012 f. NOC from maintenance unit regarding clearance of outstanding bills of maintenance and electricity. However, we assure that in case any outstanding liability arises over ever after, same shall be borne by our transferee or us.
g. A cheque amount to Rs. 2,32,363/- in favor of NBCC on account of Ground Rent for two half years along with interest of Rs.33,011/- for earlier deferred period.
77. It is submitted by Ld. Counsel for D-4 to D-7 that plaintiff has urged that there was existing stay order dated 09.01.2009 from the Bangalore Court, however it is pertinent to mention here that the aforesaid stay order even if passed was passed much later when the plaintiff originally transferred the property in favor of defendant no. 5 vide agreement to sell dated 10.12.2008. It is Future Metals Pvt Ltd vs Semcorp Green Infra Limited & ors. Page 36 of 83 submitted that even the witness of Defendant no. 3 in his cross examination stated that they came to know about the said stay order only when the present proceedings were initiated.
78. It is submitted that it is a matter of record that the property has been transferred in the name of the Defendant no. 4 and the ground rent was being paid by the Defendant no. 4 to the defendant no. 3. Ld. Counsel for Defendant no. 4 pointed out that he is adhereing to all the compliances with respect to the present property including the tax being paid to the SDMC, receipts of which are also filed on record.
79. In support of his submissions Ld. Counsel for D-4 to D-7 relied upon Tarak Nath Aha vs Bhutoria Bros. Pvt. Ltd. & Ors. AIR 2002 SC 2063; Thiruvengadam Pillai v. Navaneethammal & Anr 2008 (4) SCC 530; Chamkaur Singh vs Mithu Singh 2014(1) Civil Court Cases 389; Executive Officer, Arulmigu Chokkanatha Swamy Koil Trust Virudhunagar Vs. Chandran and Ors. AIR 2017 SC 1034; Venkataraja and Ors V. Vidyane Doureradjaperumal Through LR's and Ors. 2013 IV AD (SC) 596; Suhrid Singh Vs. Randhir Singh and Ors. AIR 2010 SC 2807; Anathula Sudhakar Vs P. Buchi Reddy by LR's and Ors AIR 2008 SC 2033.
80. It may be noted that at the time of dismissal of the application u/O VII rule 11 CPC filed by the defendant, Court had made observations by taking a prima-facie view on merely perusal of the plaint and not the defence of the defendants thereto after hearing the parties at a preliminary stage when parties had not adduce evidence whereas, the view which Court has taken Future Metals Pvt Ltd vs Semcorp Green Infra Limited & ors. Page 37 of 83 now at this stage is based on appreciation of the totality of material on record and the legal position placed before it and after both the parties have adduced evidence.
81. To appreciate the facts relevant portion of testimony of witnesses particularly, their cross-examination needs to be noted at the outset before embarking on the further discussion of the issues.
82. PW-1 Sh. Naveen Sriram in his evidence by way of affidavit Ex. PW1/A relied upon copy of board resolution and SPA executed in favour of Shri Amit Kaushik Ex.PW-1/1; Copy of MCA record Ex.PW-1/1-A; Tender documents and documents showing plaintiff company as sub-lease holder of D-3 with respect to suit property Ex.PW-1/2; Copy of registered leave and licence agreement dated 02.06.2010 Ex.PW-1/3; Copy of maintenance tripartite agreement dated 12.11.2010 Ex.PW-1/4; Account statements and letters issued by D-12 and D-13 Ex.PW- 1/5; copy of representation regarding exparte order dated 09.01.2009 to D-3 Ex.PW-1/5-A; Certified copy of order dated 09.01.2009 and subsequent orders Ex.PW-1/6; Arbitration application AA 28/09 Ex.PW-1/6-A; Copy of communications showing employment details of D-5 and D-7 Ex.PW-1/6-B; Copy of bail order dated 19.11.2015 Ex.PW-1/7; Copy of complaints and FIRs against D-5 Ex.PW-1/7-A; Copy of audit report Ex.PW- 1/8; Certified copy of order dated 29.11.2012 passed in WP(C) 5151/2012 Ex.PW-1/9; Copy of order dated 04.08.2017 WP(C) 6630/2017, copy of order dated 16.10.2015 and copy of order dated 21.05.2018 by CEIB COFEPOSA Ex.PW-1/9-A and Copy of complaint and IT returns of D-4 and D-5 Ex.PW-1/9-B. Future Metals Pvt Ltd vs Semcorp Green Infra Limited & ors. Page 38 of 83
83. In his cross-examination, PW-1 admitted that there was no contract between D-2 and plaintiff company. PW-1 admitted that he was claiming Rs.15,00,000/- per month only w.e.f November, 2018 from D-2. PW-1 had come to know from D-2s submissions before the court that they have vacated the suit property in the month of October, 2020. PW-1 admitted that there was no judicial order passed against D-2 to deposit the lease amount with the court or to pay to the plaintiff company as on date.
84. PW-1 admitted that M/s Fab India and M/s Ekdant were in the physical possession of the suit property. PW-1 admitted that M/s Fab India and M/s Ekdant had not been impleaded as party in the present suit. PW-1 admitted that M/s STCL had filed a case against the plaintiff company and there was a stay qua the suit property from January, 2009 and that stay was continuing till the certified copy of the stay order, ordered by the Sessions Court of Bangalore which is Ex.PW-1/6 was filed.
85. PW-1 deposed that there were almost like 70 cases filed against the plaintiff company by M/s STCL in 2008-09. PW-1 admitted that CBI had filed a case against him as well as plaintiff company at the instance of STCL wherein the MD of STCL was also arrayed as accused no. 1. He testified that Sh. Sudhir Shriram at that time was in Bangalore and no minutes of meeting was recorded while executing the present board resolution. PW-1 stated that he had no knowledge of his disqualification by the ROC in the year 2017-2018. On being asked, PW-1 admitted that he knew Mr. Maninder Kumar Jha, Chartered Accountant was Chartered Accountant of his company since 2014-2015 till date. PW-1 denied the suggestion that the transfer of sub-lease was within the Future Metals Pvt Ltd vs Semcorp Green Infra Limited & ors. Page 39 of 83 knowledge of Sh. Mahender Kumar Jha. PW-1 deposed that during the year 2014 to 2016, he was given an assignment to audit certain super market. PW-1 deposed that as per the audit report filed by one Maninder Kumar Jha, there were irregularities and certain illegal acts committed by D-4, D-5 & D-6. PW-1 denied that Sh. Maninder Kumar Jha , Chartered Accountant was aware of the transfer of the suit property in the year 2015.
86. On being asked about the letter dated 25.08.2015 issued by Sh. Maninder Kumar Jha on behalf of plaintiff company to D-1, PW-1 deposed that the letter addressed to D-1does not talk about any transfer of property but clearly explained about the FIR No.528/2014 and other criminal misdeeds by Sh. O.Prasad Rao, D-4, D-5 , D-6 and D-7. He deposed that no mentioning of transfer of property had been indicated in the letter Ex.PW1/D4-
1. PW-1 admitted the letter Ex.PW1/D4-1. PW-1 denied that that he had received the letter dated 04.09.2015 written by D-1. PW- 1 admitted that he personally and professionally knew Shri D.N. Girija Shankar (D-10) from two generations and he was one of the nominee director of several group company including D- 4/M/s Aadhev Impex Pvt Ltd. PW-1 deposed that During the year 2016 when D-1 filed a case against the plaintiff company and D- 4, he came to know that suit property was transferred in the name of D-4 and the purported agreement to sell was dated 10.12.2008. The agreement to sell dated 10.12.2008 before D-1 and D-5 was known to the plaintiff vide a case between Sembcorp Infra Vs. Future Metal, case bearing Case No. 8222/2016. PW-1 admitted that he had stated in his evidence affidavit that said agreement to Future Metals Pvt Ltd vs Semcorp Green Infra Limited & ors. Page 40 of 83 sell was falsely notarized.
87. PW-1 admitted that plaintiff had not challenged the agreement to sell and then added that all documents including the said agreement to sell have been challenged before this court to declare them null and void. On being asked, PW-1 deposed that physical possession of the suit property was with the plaintiff company through D-1 who had already challenged the forcible and illegal dispossession of the suit property by way of contempt petition. PW-1 denied that plaintiff was not claiming possession of the suit property. According to PW-1, legal possession of the suit property lies with the plaintiff company as per the understanding of law of the plaintiff company and hence plaintiff had not specifically asked for possession.
88. PW-1 stated that since 2016, he was not receiving rent of the suit property. PW-1 admitted that two letters dated 12.10.2011 were based upon agreement to sell dated 12.10.2008. On being asked as to why he had not challenged the agreement to sell dated 12.10.2008, PW-1 deposed that these documents were fabricated in detail as per para 31(i) to (v). PW-1 admitted that closure report was filed by the police authorities in the present FIR No.65/2016 as the complainant and the petitioner could not attend the case. PW-1 admitted that he was aware that at the time of filing of the suit he had filed an application Ex. PW1/D4-2 for condonation of delay for condoning the delay of 4 years in filing of the present suit. He stated that the said application was withdrawn as per the advise of their counsel.
Future Metals Pvt Ltd vs Semcorp Green Infra Limited & ors. Page 41 of 8389. PW-1 denied that he had signed the three disputed letters. PW-1 deposed that he was not aware about the registered Leave and licence Agreement dated 12.04.2013 executed between D-1 and D-4 or whether in the month of October 2020, the vacant and peaceful possession of the suit premises was handed over to D-4. PW-1 admitted that the contents of Ex.PW1/6 was known to him and he was aware about the stay order passed in 09.01.2009. PW- 1 admitted that the stay was not vacated till 2019. PW-1 admitted that as per order dated 09.01.2009, plaintiff was restrained from alienating or any other manner encumbering any and all other assets whether situated in India or outside which included suit property. PW-1 denied that he could not enter into leave and licence agreement with D-1 as he was not restrained to lease by the order dated 09.01.2009.
90. PW-1 admitted that letter dated 12.09.2012 seeking declaration of the said letter to be treated as null and void was not exhibited. PW-1 admitted that that leave and licence agreement Ex. PW1/3 was executed for the period of five years i.e. 02.06.2010 to 01.06.2015. PW-1 admitted that the plaintiff company had not issued any letter to the D-1 for renewal or extension of leave and licence agreement dated 02.06.2010. PW- 1 stated that D-1 had not requested any further extension nor cancelled the agreement as per the procedure laid down by law. PW-1 admitted that the leave and licence agreement was having the lock in period of 36 months. PW-1 denied the suggestion that plaintiff had not sent any legal notice or letter for recovery of outstanding rent dues to D-1. PW-1 deposed that he was aware Future Metals Pvt Ltd vs Semcorp Green Infra Limited & ors. Page 42 of 83 of the documents filed by D-1 in his suit bearing no. 8222/2016. PW-1 deposed that it is possible that the letter dated 20.12.2012 Ex. PW1/D1-A might have been fabricated and issued by the employee of the plaintiff company.
91. DW-1 Sh. O. Prasada Rao/D-5 in his evidence by way of affidavit Ex. DW1/A placed on record copy of letter dated 20.12.2012, issued by plaintiff to Defendant No. 1 Ex.D-3; copy of letter dated 25.08.2015, issued by plaintiff to Defendant No. 1 Ex.D-4; copy of letter dated 27.11.2015, issued by plaintiff to Defendant No. 1 Ex.D-5; copy of letter dated 30.01.2016, issued by plaintiff to Defendant No. 1 Ex.D-6; Copy of letter dated 04.09.2015, issued by Defendant No. 1 to plaintiff Ex.D-7; copy of the printout of news articles Ex.D-8 ; copy of Master Data of plaintiff company alongwith annexures Ex.D-9 ; copy of receipts of tax paid to MCD by defendant no. 4 Ex.D-10; copy of agreement to sell dated 10.12.2008 executed between plaintiff and defendant no. 5 Ex.D-11; copy of leave and licence agreement dated 12.04.2013 executed between D-4 and D-1 Ex.D-12; copy of letter dated 22.02.2016, issued by defendant no. 3 to defendant no. 4 Ex.D-13; copy of letter dated 12.09.2012, issued by defendant no. 3 to plaintiff Ex.D-14; copy of letter dated 16.06.2016, issued by defendant no. 3 to SHO Crime Branch, Sector-14-A, Noida Ex.D-15; copy of leave and licence agreement dated 07.12.2016 executed between defendant no. 4 and defendant no. 2 Ex.D-16; copies of three orders, all dated 05.06.2014 passed by Hon'ble High Court of Allahabad Ex.D-17 to Ex.D-19 respectively and copy of two passports of Future Metals Pvt Ltd vs Semcorp Green Infra Limited & ors. Page 43 of 83 Shri Naveen Shree Ram, Director of plaintiff company Ex.D-20 and Ex.D-21.
92. DW-1 in his cross examination by Shri Keshav V. Hegde, counsel for plaintiff admitted that he never filed the income tax return, showing my income more than Rs. 16 Crores in any year. PW-1 admitted that he was the ex-employee of plaintiff company and was working as Vice President (Finance). His designation was changed several times as per the need of local laws of the country. DW-1 that plaintiff company was having presence as well as business abroad also. DW-1 deposed that as per his knowledge, plaintiff was dealing and doing its business with about 10 to 12 countries. His initial salary was Rs.50,000/- per month plus benefits.
93. DW-1 deposed that he was looking after the finance, audit and balance sheet of the plaintiff company. He was the employee of plaintiff company since 1998 till 2014. DW-1 deposed that in between, he was not an employee of the plaintiff for two years during the year 2008-09 or 2004-05. During 1998 to 2003, company's name was Aries Clothing Company. DW-1 deposed that his relationship with Shri Naveen Shree Ram, Director of plaintiff company, was cordial and like family members. His relationship with Sh. Naveen Shree Ram become adverse during the year 2014. DW-1 admitted that he received the notice from Enforcement Directorate, Bangalore. DW-1 admitted that he filed a detailed reply to the notice issued by ED Bangalore. DW- 1 denied the suggestion that he had made a submission before the ED Bangalore that the suit property belongs to Future Metal Future Metals Pvt Ltd vs Semcorp Green Infra Limited & ors. Page 44 of 83 (Plaintiff). Witness was shown Provisional Attachment Order No. 12/2021 dated 14.10.2021, at page 41, to which DW-1 stated that he made a statement with respect to para 13 (i) as there was no sale deed). DW-1 further stated that he had not made the statement recorded as Para No. 13(ii)&(iii) of said order.
94. DW-1 denied the suggestion that he had made the statement as Para No. 13(ii)&(iii). He did not know anything about the aforesaid provisional attachment order. DW-1 admitted that D-4s e-mail ID was correctly mentioned of the aforementioned provisional attachment order but the postal address of D-4 mentioned therein was incorrect. DW-1 admitted that Shri Naveen Shree Ram and Shri Sudhir Shree Ram were shareholders of plaintiff company. He did not know who were the shareholders of plaintiff company. There were lot of employees in plaintiff company. DW-1 further deposed that he was reporting to his higher officer about his duty during the course of his employment. He further deposed that sometimes to Shri Naveen Shree Ram or Shri Sudhir Shree Ram also during the course of his employment. DW-1 did not know who was taking signatures of Shri Naveen Shree Ram on letters/documents during the course of his employment.
95. DW-1 did not know that during 2011-12, several letters had been sent to ED Bangalore and other government agencies with respect to plaintiff company's defence against the case pending against them in voluminous. DW-1 denied the suggestion that he had taken signatures of Shri Naveen Shree Ram on several letters and documents during 2011-12 for giving Future Metals Pvt Ltd vs Semcorp Green Infra Limited & ors. Page 45 of 83 reply to government agencies such as CBI, ED, FEMA etc. DW-1 deposed that Filing of income tax returns of the plaintiff company was in the hand of the account team and he did not know about the same. DW-1 did not know the reasons why the directors of plaintiff company were disqualified. DW-1 deposed that original of Ex.D-11 was with him. He stated that he could file the same, if directed. He did not have any board resolution or extract thereof for executing any agreement to sell dated 10.12.2008. DW-1 stated that All the board resolutions were with plaintiff. DW-1 was not having any copy of board resolution in favour of Naveen Shree Ram, authorizing him to enter into an agreement to sell in his favour. DW-1 admitted that the amount shown in Ex.D-11 were in US Dollars which was received from defendant no. 14 to the plaintiff company, but he could not recollect as to some amount mentioned in Ex.D-11 was received from company named Alwatani.
96. DW-1 admitted that suit property was allotted to plaintiff company by defendant no. 3. DW-1 admitted that plaintiff company let out the suit property to defendant no. 1 somewhere in the year 2010. DW-1 was not employed during 2010 with the plaintiff company. During that period of 2010, he was doing auditing and accounting for some other company. DW-1 did not know whether there was any revocation of leave and licence agreement entered between defendant no. 1 and plaintiff company in the year 2010. DW-1 denied the suggestion that defendant no. 4 was sister concern of plaintiff company. DW-1 was shown Ex.PW-1/6 i.e. mail dated 28.10.2011 from New Future Metals Pvt Ltd vs Semcorp Green Infra Limited & ors. Page 46 of 83 Earth to CMSSNB and after seeing the same, he confirmed the contents of the said mail. DW-1 was shown Ex.PW-1/6B i.e. mail dated 13.02.2012 from [email protected] to [email protected] and after seeing the same, witness states that he was not aware about the said mail. DW-1 admitted that he was arrested during the year 2015. DW-1 denied the suggestion that Naveen Shree Ram had not sold his right in the suit property. DW-1 denied that the letters/documents showing transfer of rights are forged and fabricated. DW-1 was shown Ex.PW-1/3 i.e. leave and licence agreement dated 02.06.2010 and after seeing the same, he deposed that leave and licence agreement was for five years which ends by 01.06.2015.
97. DW-1 had not terminated the aforesaid agreement before entering a new agreement with defendant no. 1. DW-1 informed defendant no. 1 after transfer of rights in suit property was confirmed by the defendant no. 3 in favour of defendant no. 4 and thereafter entered into new leave and licence agreement. On asking, why D-5 reduced the leave and licence charges from Rs.14,00,000/- to Rs.9,00,000/-, DW-1 deposed that there was market slow down in the year 2012-13 and there was enhancement in maintenance charges. DW-1 did not know whether there was any stay by the Bangalore City Civil Court in suit property with respect to alienation of suit property since 09.01.2009 vide order Ex.PW-1/6. DW-1 deposed that as on date, no one was director of defendant no. 4/M/s Aadhev Impex Pvt. Ltd as arrayed in the memo of parties. DW-1 deposed that he was not the director but he was shareholder of defendant no. 4.
Future Metals Pvt Ltd vs Semcorp Green Infra Limited & ors. Page 47 of 83DW-1 stated that he appointed Naina Mahajan and Neelam Mahajan as directors of defendant no. 4. DW-1 admitted that Defendant no. 1 filed the aforesaid suit without knowing as to whom they have to pay the rent.
98. Section 34 of Special Relief Act reads as under:
"Any person entitled to any legal character or to any right as to any property, may institute a suit against any person denying or interested to deny his title to such character or right, and the Court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief:
Provided that no Court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so. Explanation. -- A trustee of property is a 'person interested to deny' a title adverse to the title of someone who is not in existence, and for whom, if in existence, he would be a trustee."
99. In Executive Officer, Arulmigu Chokkanatha Swamy Koil Trust Virudhunagar vs Chandran and ors. AIR 2017 SC 1034
34. Section 34 of the Specific Reliefs Act, 1963 provides as follows:"Section 34. Discretion of court as to declaration of status or right.-Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief:
Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so...... ..... ...."
35. In the present case, the plaintiff having been found not to be in possession and having only sought for declaratory reliefs, the suit was clearly not maintainable and has rightly been dismissed by the trial court. In this context the reference is made to the judgment of this Court reported in Ram Saran and Anr. versus Smt. Ganga Devi, AIR 72 SC 2685, wherein para 1 & 4 following was Future Metals Pvt Ltd vs Semcorp Green Infra Limited & ors. Page 48 of 83 stated:
"1. This is a plaintiffs' appeal by special leave. Ram Saran and Raghubir Saran, the plaintiffs are brothers. They jointly owned suit property with Chhabili Kuer widow of Lalita Prasad. After the death of Chhabili Kuer on February 8, 1971, Ganga Devi the defendant in the suit came forward as the legal representative of Chhabili Kuer and got the mutation effected in her name in the place of the deceased Chhabili Kuer. In 1958, the plaintiffs brought this suit for a declaration that they are the sole owners of the suit properties. They did not claim possession either of the entire or even any portion of the suit properties.
4. We are in agreement with the High Court that the suit is hit by Section 42 of the Specific Relief Act. As found by the fact-finding Courts, Ganga Devi is in possession of some of the suit properties. The plaintiffs have not sought possession of those properties. They merely claimed a declaration that they are the owners of the suit properties. Hence the suit is not maintainable."
36. The plaintiff, who was not in possession, had in the suit claimed only declaratory relief along with mandatory injunction. Plaintiff being out of possession, the relief of recovery of possession was a further relief which ought to have been claimed by the plaintiff. The suit filed by the plaintiff for a mere declaration without relief of recovery of possession was clearly not maintainable and the trial court has rightly dismissed the suit."
100. In Venkataraja and ors. Vs Vidyane Doureradjaperumal (D) Thr. L. Rs. and Ors. Civil Appeal Nos. 7605-7606 of 2004 Decided on 10.04.2013 wherein it has been held that :
13. Thus, the only relevant issue on which the judgment hinges upon is, whether the suit was maintainable without seeking any consequential relief.
14. In Deo Kuer & Anr. v. Sheo Prasad Singh & Ors.
AIR 1966 SC 359, this Court dealt with a similar issue, and considered the provisions of Section 42 of the Specific Relief Act 1877, (analogous to Section 34 of the Act 1963), and held, that where the defendant was not in physical possession, and not in a position to deliver possession to the plaintiff, it was not necessary for the Future Metals Pvt Ltd vs Semcorp Green Infra Limited & ors. Page 49 of 83 plaintiff in a suit for declaration of title to property, to claim the possession. While laying down such a proposition, this Court placed reliance upon the judgments of Privy Council in Sunder Singh Mallah Singh Sanatan Dharam High School Trust v. Managing Committee, Sunder Singh Mullah Singh Rajput High School, AIR 1938 PC 73; and Humayun Begam v. Shah Mohammad Khan, AIR 1943 PC 94.
14. In Vinay Krishna v. Keshav Chandra & Anr., AIR 1993 SC 957, this Court while dealing with a similar issue held:
'......It is also now evident that she was not in exclusive possession because admittedly Keshav Chandra and Jagdish Chandra were in possession. There were also other tenants in occupation. In such an event the relief of possession ought to have been asked for. The failure to do so undoubtedly bars the discretion of the Court in granting the decree for declaration.' (emphasis added)
15. The facts in the case of Deo Kuer (Supra) are quite distinguishable from the facts of this case, as in that case, the tenants were not before the court as parties. In the instant case, respondent nos. 3 to 10 are tenants, residing in the suit property. The said respondents were definitely in a position to deliver the possession. Therefore, to say that the appellants would be entitled to file an independent proceedings for their eviction under a different statute, would amount to defeating the provisions of Order II Rule 2 CPC as well as the proviso to Section 34 of the Act 1963. Thus, the First Appellate Court, as well as the High Court failed to consider this question of paramount importance.
16. The very purpose of the proviso to Section 34 of the Act 1963, is to avoid the multiplicity of the proceedings, and also the loss of revenue of court fees. When the Specific Relief Act, 1877 was in force, the 9th Report of the Law Commission of India, 1958, had suggested certain amendments in the proviso, according to which, the plaintiff could seek declaratory relief without seeking any consequential relief, if he sought permission of the court to make his subsequent claim in another suit/proceedings. However, such an amendment was not accepted. There is no provision analogous to such suggestion in the Act 1963.
17. A mere declaratory decree remains non-executable in most cases generally. However, there is no prohibition upon a party from seeking an amendment in the plaint to include the unsought relief, provided that it is saved by limitation. However, it is obligatory on the part of the Future Metals Pvt Ltd vs Semcorp Green Infra Limited & ors. Page 50 of 83 defendants to raise the issue at the earliest. (Vide: Parkash Chand Khurana etc. v. Harnam Singh & Ors., AIR 1973 SC 2065; and State of M.P. v. Mangilal Sharma, AIR 1998 SC 743).
In Muni Lal v. The Oriental Fire & General Insurance Co. Ltd. & Anr., AIR 1996 SC 642, this Court dealt with declaratory decree, and observed that "mere declaration without consequential relief does not provide the needed relief in the suit; it would be for the plaintiff to seek both reliefs. The omission thereof mandates the court to refuse the grant of declaratory relief." In Shakuntla Devi v. Kamla & Ors., (2005) 5 SCC 390, this Court while dealing with the issue held:
"......a declaratory decree simpliciter does not attain finality if it has to be used for obtaining any future decree like possession. In such cases, if suit for possession based on an earlier declaratory decree is filed, it is open to the defendant to establish that the declaratory decree on which the suit is based is not a lawful decree."
18. In view of the above, it is evident that the suit filed by the appellants/plaintiffs was not maintainable, as they did not claim consequential relief. The respondent nos. 3 and 10 being admittedly in possession of the suit property, the appellants/plaintiffs had to necessarily claim the consequential relief of possession of the property. Such a plea was taken by the respondents/defendants while filing the written statement. The appellants/plaintiffs did not make any attempt to amend the plaint at this stage, or even at a later stage. The declaration sought by the appellants/plaintiffs was not in the nature of a relief.
101. It will thus be seen that Section 34 of the Specific Relief Act, 1963 merely gives a statutory recognition to certain well- recognised types of declaratory reliefs and enacts a limitation on the grant of such relief in the shape of the proviso. In order to be able to seek a relief of declaration plaintiff must show that he has some legal character or some right to property and that his opponent is denying or interested to deny such legal character or right. Legal character is the same thing as Legal status, i.e., a Future Metals Pvt Ltd vs Semcorp Green Infra Limited & ors. Page 51 of 83 position recognised by law.
102. Where any person is entitled to institute a suit denying, or interested to deny, his title to a right, the Court, in its discretion, is empowered to make a declaration that he is so entitled although the plaintiff has not asked for any other relief. The plaintiff must be incompetent at the time of the institution of such declaratory suit to ask any further relief relating to the delivery of possession of property or recovery of any sum of money. If, at the time of the declaratory suit, the plaintiff could successfully seek for the other relief of delivery of possession or recovery of money, it is not permissible for him to seek only for a declaration without asking for the other requisite relief.
103. There is also no dispute that Section 34 does not exhaust the field of declaratory decrees and the Courts do have jurisdiction to grant declarations apart from the terms of that section but the Court's jurisdiction to grant declaratory decrees is not unfettered. The Court has to exercise the discretion vested in it judiciously and not arbitrarily. Declaration falling outside Section 34 of the Specific Relief Act will be governed by the general provisions of the Civil P. C like Section 9 or Order VII rule 7 and the circumstances in which a declaratory decree under Section 34 Specific Relief Act should be awarded is a matter of discretion depending upon the facts of each case.
104. Thus in the present case, relief sought cannot be granted in view of Section 34 of the Specific Relief Act and the aforenoted legal position. In the present case, the plaintiff has merely sought declaration for declaring certain letters as null and void. Despite knowledge of the registered leave and licence deed in favour of Future Metals Pvt Ltd vs Semcorp Green Infra Limited & ors. Page 52 of 83 defendant no.1 by defendant no..4 the plaintiff has deliberately sought no prayer in respect thereof. The proviso to Section 34 of the Specific Relief Act mandates that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so. The plaintiff has proceeded on the basis as if there was no valid licence deed dated 18.04.2013 by D-4 in favour of D-1 and as if the property still belongs to him. It is not in dispute that the none of the Defendants are currently in possession of the suit properties.
105. The plaintiff for the best reasons known to him confined himself to seeking a mere declaration of the few letters purported to be issued by it as null and void without seeking the further relief which he was entitled to. The alleged forgery of letters or the facts that letters were false has not been established during evidence. Such a suit, this Court feels is clearly barred by Section 34 of the Specific relief Act. The learned Counsel for the plaintiff has failed to show anything to the contrary. The Court has to appreciate evidence and material on record in its totality having regard to legal standard.
106. Obviously the declaration sought for does not fall within the purview of Section 34 of the Act. It is also not one to enable the appellants to seek further relief in some other forum. It cannot as well be termed to be a substantial relief in itself and does not have any immediate coercive effect. The appellants are thus not entitled to the declaration sought for either under Section 9 or Order VII rule 7 of the Civil P. C.
107. It is also noteworthy that plaintiff had filed a Writ Petition i.e. W. P. (C) 6630/2017 against D-3 and others praying quashing Future Metals Pvt Ltd vs Semcorp Green Infra Limited & ors. Page 53 of 83 of letter dated 12.09.2012 wherein while dismissing the Writ Petition , Hon'ble High Court had observed that the controversy involves disputed questions of facts. Firstly, the question whether there was any forgery required to be determined and the question of collusion between the officers of R-1 (D-3 herein) and one of the plaintiff's employee - Mr. O. Prasada Rao. This court finds that plaintiff has failed to establish these disputed question of facts.
108. As regards the stay order 09.01.2009 passed by Bengaluru Civil Court is concerned, admittedly, GPA and the agreement to sell were purported to have been executed in the year 2008 and material on record shows that the plaintiff himself entered into leave and licence agreement in the year 2010 with D-1 and D3W2, in his testimony has stated that the receipt of fax dated 21.09.2009 vide which plaintiff had allegedly forwarded the said stay order, was not within the knowledge of D-3 and the same had not been communicated by the plaintiff by any other mode of communication before transfer of sub-lease/allotment vide letter dated 12.09.2012 by D-3 in favour of D-4 and D-3 had taken all the bonafide steps while transferring allotment in favour of D-4 on the request of plaintiff. There are no specific suggestion given to D3W2 in his cross-examination in this regard to falsify the version of D-3.
109. In the present suit, Plaintiff has sought declaration for declaring the letters purported to have been issued by the plaintiff to D-3 and D-4 as null and void and also for declaring plaintiff as landlord of the erstwhile tenant i.e. D-4 herein and version of plaintiff was that it will have the constructive possession as a Future Metals Pvt Ltd vs Semcorp Green Infra Limited & ors. Page 54 of 83 natural consequence of declaration. This Court finds no substance in this submission advanced by counsel for plaintiff. Admittedly, there is no dispute that plaintiff has not prayed for relief of possession in the present suit as a consequential relief and has sought declaration and recovery of mesne profit and damages. Case of the D-4 to D-7 is that plaintiff is not in possession and this fact has been admitted by the plaintiff in his cross-examination. In the present case, it was incumbent upon to plaintiff to see consequential relief of possession as well which he has not done. Therefore, relief sought by the plaintiff cannot be granted.
110. Moreover, it has already been noted above that plaintiff also has not been able to establish the alleged forgery of documents by D-4 and D-5. In paras 4 , 5, 15 to 20 of the plaint, case pleaded by the plaintiff was that Sh. O. Prasada Rao-D-5 was employed with the Chairman of the plaintiff company since 1998 and became like a family member of the chairman of the plaintiff company. In the year 2006, he left the plaintiff company to start his own business. In August 2011, he again approached the plaintiff company for rejoining. Being a close friend of the management, his proposal was accepted and he was appointed as Finance Manager and Administrator of plaintiff group of companies and thereafter, appointed as consultant, nominee Director of some of the group companies of the plaintiff company. It is further the case of plaintiff since 2008 plaintiff company became handicapped due to false cases which made the employees of plaintiff company to suggest on the continuity of business by forming new companies. Neurth Group of companies Future Metals Pvt Ltd vs Semcorp Green Infra Limited & ors. Page 55 of 83 comprising of three companies i.e. Neurth India Pvt ltd. incorporated on 20.05.2010, Neurth Exim incorporated on 14.06.2011 and Neurth Consultant Pvt ltd. incorporated on 28.03.2011 were formed.
111. It was further pleaded by the plaintiff that M/s Aadhev Impex (D-4) was later formed as group company on 05.09.2011 in which D-5 to D-11 were the Directors. Therefore, D-4 is stated to be a group company of plaintiff. It is further the case of plaintiff that D-5 raised funds and assisted the plaintiff company and gained its trust of the plaintiff company. D-5 was asked to plan the corporate structure for the group of companies. Since management of plaintiff wanted to avoid day to day operation and functioning of the business operation in Delhi as plaintiff company was based in Bangalore, Karnataka and to that end, D-5 formed D-4 companies. Thus, perusal of pleading as a whole indicates that D-4 was a creature of the plaintiff company etc. To adjudicate the facts in issue, this court has not to go into the respective statement of parties before other agencies like ED and has not to investigate or adjudicate in the present proceedings, the details of source of money /consideration amount purported to have been paid by D-4 or D-5 to the plaintiff and whether it was received dollar or rupees or was a hawala transaction.
112. It has already been noted that plaintiff is not in possession of the premises in question and has not sought relief of possession. Admittedly, D-3/NBCC had transferred the allotment letter dated 10.09.2007 vide which a sub-lease was created in favour of plaintiff in favour of D-4 vide letter dated 12.09.2012. Plaintiff has not sought the relief of cancellation of alleged Future Metals Pvt Ltd vs Semcorp Green Infra Limited & ors. Page 56 of 83 agreement to sell dated 10.12.2018 purported to have been executed by the plaintiff in favour D-4/M/s Aadhev Impex. Plaintiff has sought licence fees from D-2 (successor tenant of D-
1) @ Rs. 15,00,000/- only and not since the time D-1 as well as D-2 (successor of D-1) had not paid rent to the plaintiff. Admittedly, registered leave and licence agreement between plaintiff and D-1 was for a period of five years w.e.f 02.06.2010 till 01.06.2015. Fresh Leave and licence agreement dated 18.04.2013 was executed between D-1 and D-4 had come to the knowledge of plaintiff but plaintiff has not sought any consequential relief of cancellation of the said agreement dated 18.04.2013. No steps had been taken by the plaintiff for necessary amendment in the plaint for seeking consequential relief despite the knowledge of aforementioned agreement at least during the pendency of the suit.
113. This court finds that plaintiff is not entitled to decree of declaration as sought for declaring merely the letters dated 12.10.2011; 05.01.2012 issued by plaintiff to D-3 and letter dated 20.12.2012 issued by plaintiff to D-1 and letter dated 12.09.2012 issued by D-3 to D-4 as null and void. This court finds no merit in the contention raised by Ld. Counsel for plaintiff. Even if , as argued by Sh. Hegde Ld. counsel for plaintiff , PW1 in his cross- examination was put a suggestive question by D1 that the said letter dated 20.12.2012 might have been fabricated and issued by employees of plaintiff company to which PW-1 answered as "Possible", no inference of forgery against D-4, D-5 and D-11 can be drawn. There is nothing in the cross-examination of Sh. Ashok Kumar D3W-2 to establish any collusion of forgery to Future Metals Pvt Ltd vs Semcorp Green Infra Limited & ors. Page 57 of 83 transfer the lease rights in favour of D-4. He denied the suggestion that the official had colluded with D-5 while transferring the lease right in favour D-4. It was incumbent upon the plaintiff to establish any collusion between D-1 or D-3 with D-4 and D-5 or creation of any false document/letters by the specific person/employee of plaintiff. This court finds that plaintiff has neither sought consequential reliefs nor has been able to establish alleged forgery of letters by its employee or by D-4 and D-5. To sum up, this Court finds that plaintiff has failed to discharge its onus and therefore, the issue no. 1 and issue no 2 are decided in favour of defendants and against the plaintiff company.
Issue no. 7
114. Whether the suit has not been properly valued for the pur- pose of court fees? OPD (D-4 & D-5). The onus to prove this issue is on the defendants. Sh. Mohit Arura Ld. Counsel appear- ing for D-4 to D-5&6 submitted that plaintiff had to value the suit with respect to valuation of the property in question which is more than Rs. 16 crore. As per Section 12 (1) (c) (d) Commercial Court Act , specific value of the subject matter of commercial dispute in the suit shall be determined in the following manner:
"(c) where the relief sought in a suit, appeal or application relates to immovable property or to a right therein, the market value of the immovable property , as on the date of filing of the suit, appeal or application, as the case may be, shall be taken into account for determining Specified Value;
(d) Where the relief sought in a suit, appeal or application relates to any other intangible right, the market value of the said rights as estimated by the plaintiff shall be taken into account for determining Specified Value."Future Metals Pvt Ltd vs Semcorp Green Infra Limited & ors. Page 58 of 83
115. Ld. Counsel for defendants submitted that relief sought by the plaintiff in the suit relates to immovable property and right therein, therefore, the market value of the immovable as on the date of filing of suit would be taken into account for determining the value of the suit. Ld. Counsel for plaintiff submitted that suit would be filed u/s 12 (1) (d) of Commercial Courts Act as it related to other intangible right as estimated by the plaintiff would be taken into account.
116. Ld. counsel for defendants submitted that it was required on the part of plaintiff to seek consequential possession and then ad-valorem court fees as per section 7 (iv) (c) of the court fee Act. It is further submitted that had the plaintiff valued the property, then this court would not have pecuniary jurisdiction to try and entertain this suit. Ld. counsel for plaintiff submitted that it is settled law that Court fee depends upon relief claimed but not on value of the suit property. It is matter of record that present suit is declaratory suit. Plaintiff undertakes to pay court fee as per directions of this court. Section 12 of commercial court Act is applicable in present suit. It is submitted that issue of valuation of suit has been dealt by this court while dismissing the application of defendant No 4 under order 7 rule 11 of CPC vide order dated 03.02.2021. Order dated 03.02.2021 passed by this Court attains finality as appeal filed against the said order was also dismissed by the Hon'ble High Court of Delhi on 10.01.2022. It is submitted that the application filed by D2 regarding valuation of the suit was also dismissed by this court vide order dated 16-12-2021.
Future Metals Pvt Ltd vs Semcorp Green Infra Limited & ors. Page 59 of 83117. The stand of the plaintiff is that he is the landlord of D-1 vide registered leave and licence agreement dated 02.06.2010. D- 1 had filed a suit no. 8222/16 to prove his tenancy as well as to declare the landlord in suit property between the present plaintiff as well as D-4 in which the stay was granted vide order date 26.04.2016 and that D-4 can be called as contumacious possession which can be restored by this Court in contempt application Misc. (DJ) 47/2019 filed in other case. It is submitted that it is settled law that Court fee is determined upon the relief claimed but not on value of the property. Counsel for plaintiff argued that the present suit is declaratory suit which comes u/s 17 , Part-3, Schedule-II of Commercial Courts Act. It is the case of the defendants that plaintiff has claimed licence fee @ Rs.15 Lacs per month from D-4 but has only restricted to recover Rs. 15 Lacs for one month i.e. November 2018 only and neither any urgency nor any licence fee prior to November 2018 has been claimed. It is further submitted that plaintiff was forced to seek the recovery of licence fees since April 2013 (when the lease deed was executed between D-1 and D-4)
118. Para 35 of the plaint has stated that he had reserved the right to recovery the said licence fee. U/O II rule 2 Commercial Courts Act says that every suit shall include the whole of the plaint which plaintiff is entitled to pay in respect of the cause of action. It is further the case of plaintiff that D-1 had deposited Rs. 66,86,286/- in the Court in the case filed by him,which had been released to D-4 vide order dated 26.08.2016 subject to filing of indemnity bond by D-4 regarding review application had been Future Metals Pvt Ltd vs Semcorp Green Infra Limited & ors. Page 60 of 83 filed by the plaintiff. The said review application stands dis- missed.
119. This issue is a mixed question of law and fact and there- fore, has to be decided in accordance with law, according to the nature of property and reliefs claimed. The Section 8 of The Suits Valuation Act, 1887 provides as under : -
"8. Court-fee value and jurisdictional value to be the same in certain suits.- Where in suits other than those referred to in the Court-fees Act, 1870 (7 of 1870), section 7, para- graphs v, vi and ix, and paragraph x, clause (d) Court-fees are payable ad-valorem under the Court-fees Act, 1870 (7 of 1870), the value as determinable for the computation of Court-fees and the value for purposes of jurisdiction shall be the same."
120. The relevant portion of Section 7 of The Court Fees Act, 1870 provides as under : -
"7. Computation of fees payable in certain suits. - The amount of fee payable under this Act in the suits next hereinafter mentioned shall be computed as follows : -
for money. - (i)...................
(iv) in suits - ...................
for a declaratory decree and consequential relief. - (c) to obtain a declaratory decree or order, where consequential relief is prayed, ...................
according to the amount at which the relief sought is val- ued in the plaint or memorandum of appeal;
In all such suits the plaintiff shall state the amount at which he values the relief sought;.........."
121. Court was informed that the Central Government being empowered by Section 2 of The Union Territories (Laws) Act 1950 (30 of 1950) vide its notification no. G.S.R.1842 dated Future Metals Pvt Ltd vs Semcorp Green Infra Limited & ors. Page 61 of 83 21.07.1959 extended the amendments of The Court Fees (Punjab Amendment) Act, 1953 (Punjab Act XXXI of 1953), The Court Fees (Punjab Amendment) Act, 1957 (Punjab Act no.19 of 1957) and The Court Fees (Punjab Amendment) Act, 1958 (Punjab Act 14 of 1958) to the Union Territory of Delhi w.e.f. 01.08.1959. The Annexure-I of said notification pertaining to The Court Fees (Punjab Amendment) Act, 1953 (Punjab Act XXXI of 1953) provided as under : -
ANNEXURE I THE COURT FEES (PUNJAB AMEND-
MENT) ACT, 1953, AS MODIFIED BY THIS NOTIFI-
CATION Punjab Act XXXI of 1953 THE COURT FEES (PUNJAB AMENDMENT) ACT, 1953 AN ACT to amend the Court Fees Act, 1870 (Act VII of 1870) . It is hereby enacted as follows : -
1. Short title. - The Act may be called the Court Fees (Punjab Amendment) Act, 1953.
2. Amendment of section 7 of Act VII of 1870. - To clause
(iv) of section 7 of The Court Fees Act, 1870 (Act VII of 1870), in its application to the Union territory of Delhi the following proviso shall be added, namely : -
"Provided further that in suits coming under sub-clause
(c), in cases where the relief sought is with reference to any property such valuation shall not be less than the value of the property calculated in the manner provided for by clause (v) of this section."
The Rule 7, Part A, Chapter 3, Vol-I of Delhi High Court Rules & Orders provides that the plaintiff has to value the suit for a mere declaration (even without consequential re- lief) in respect of immovable property other than assessed to land revenue as per market value of the said immovable property. The said rule is reproduced below : -
"7. Suits in which the plaintiff in the plaint asks for a mere declaration without any consequential relief in re- spect of property other than land assessed to land revenue. Value - (a) For the purposes of the Court-fees Act, 1887, as determined by that Act.
(b) For the purposes of the Suits Valuation Act, 1887, and Future Metals Pvt Ltd vs Semcorp Green Infra Limited & ors. Page 62 of 83 the Punjab Courts Act, 1918 - the market value of the property in dispute, at the date of institution of the suit, subject to the provisions of Part I of The Suits Valuation Act, 1887, and the rules in force under the said Part, so far as those provisions are applicable."
122. In view of above reproduced sections, amendments to The Suits Valuation Act as were made applicable to Delhi and in view of above reproduced High Court Rule, it is clear that even in a case of a mere declaration sought regarding an immovable prop- erty other than assessed to land revenue, the suit has to be valued according to the market value of the property and Court fees also needs to be affixed accordingly. The plaintiff was liable to value his suit for purpose of jurisdiction according to market value of the property and was also liable to fix Court-fee accordingly. Hence, it is clear that the suit has been under valued by the plain- tiff for the purpose of pecuniary jurisdiction as well as for pur- pose of Court-fees.
123. In Suhrid Singh vs Randhir Singh anr ors.
MAN/SC0210/2010, it was observed as under:
"6. Where the executant of a deed wants it to be an- nulled, he has to seek cancellation of the deed. But if a non-executant seeks annulment of a deed, he has to seek a declaration that the deed is invalid, or non-est, or ille- gal or that it is not binding on him. The difference be- tween a prayer for cancellation and declaration in regard to a deed of transfer/conveyance, can be brought out by the following illustration relating to `A' and `B' -- two brothers. `A' executes a sale deed in favour of `C'. Sub- sequently `A' wants to avoid the sale. `A' has to sue for cancellation of the deed. On the other hand, if `B', who is not the executant of the deed, wants to avoid it, he has to sue for a declaration that the deed executed by `A' is invalid/void and non- est/ illegal and he is not bound by it. In essence both may be suing to have the deed set Future Metals Pvt Ltd vs Semcorp Green Infra Limited & ors. Page 63 of 83 aside or declared as non-binding. But the form is differ- ent and court fee is also different. If `A', the executant of the deed, seeks cancellation of the deed, he has to pay ad-valorem court fee on the consideration stated in the sale deed. If `B', who is a non-executant, is in posses- sion and sues for a declaration that the deed is null or void and does not bind him or his share, he has to merely pay a fixed court fee of Rs. 19.50 under Article 17(iii) of Second Schedule of the Act. But if `B', a non- executant, is not in possession, and he seeks not only a declaration that the sale deed is invalid, but also the consequential relief of possession, he has to pay an ad- valorem court fee as provided under Section 7(iv)(c) of the Act. Section 7(iv)(c) provides that in suits for a declaratory decree with consequential relief, the court fee shall be computed according to the amount at which the relief sought is valued in the plaint. The proviso thereto makes it clear that where the suit for declaratory decree with consequential relief is with reference to any property, such valuation shall not be less than the value of the property calculated in the manner provided for by clause (v) of Section 7."
124. Another question which may arise is whether the relief for injunction as claimed by the plaintiffs is a consequential relief. The Court has to see what is the nature of the suit , the reliefs claimed having regard to the provisions of Section 7 of the Court-fees Act. If a substantive relief is claimed, though clothed in the garb of a declaratory decree with a consequential relief, the Court is entitled to see what is the real nature of the relief, and if satisfied that it is not a mere consequential relief but a substantive relief , then plaintiff has to value it properly for the the purposes of suit valuation and Court fee irrespective of the arbitrary valuation put by the plaintiff in the plaint on the ostensible consequential relief.
Future Metals Pvt Ltd vs Semcorp Green Infra Limited & ors. Page 64 of 83125. The maintainability or otherwise of a suit for a bare declaration is not conclusive of the nature of the suit for the purposes of court-fees. If the suit as framed is not maintainable under the law, the proper course is to dismiss the suit and not to treat it as something different from what it really is. The expression "consequential relief" in Section 7(iv)(c) means some relief which would flow directly from the declaration given; the valuation of which is not specifically provided for anywhere in the Act and cannot be claimed independently of the declaration as a substantive relief. Analysing the above definition the following elements are essential to constitute a consequential relief :
(i) The relief must flow directly from the declaration given.
(ii) The valuation of the relief must not be capable of being definitely ascertained.
(iii) The relief must not be specifically provided for anywhere in the Act.
(v) The relief must be one which cannot be claimed independently of the declaration as a substantive relief.
126. It has already been noted above while discussing issue no. 2 and 3 that the plaintiff's suit without claiming possession is infructuous as the relief claimed in the present suit does not entitle, the plaintiff to any rights whatsoever. It appears that the plaintiff has not claimed possession for the reason that once possession is claimed, or the relief seeking cancellation of the agreement to sell is claimed, then they have to pay the ad-volrem court fees. PW-1 admitted that plaintiff is not in possession of the suit property. Admittedly, after D-1 , D-2 was in possession of Future Metals Pvt Ltd vs Semcorp Green Infra Limited & ors. Page 65 of 83 the suit premises as its succession and in his deposition, PW-1 further admitted that at present M/s Fab India and M/s Ekdant were in the physical possession of the suit property. PW-1 admitted that M/s Fab India and M/s Ekdant had not been impleaded as party in the present suit.
127. Therefore, it is apparent that plaintiff has admitted that he is not in physical possession of the suit property. Admittedly, some other entities were having the physical possession of the suit premises under the aegis of D-4. Without claiming physical possession, the plaintiff cannot be put into physical possession of the suit premises and therefore, even if relief claimed is granted, it will not result into plaintiff getting possession. In para 1 of the plaint, plaintiff has pleaded that "Since basic documents itself are declared null and void then all the consequential documents are deemed to be null and void and not binding on the plaintiff company ...". Thus, the version of the Plaintiff is that the previous documents would be declared null and void automatically once the documents challenged were declared null and void. However, the previous documents to be declared null and void by this Court, proper court fees needs to be filed by the plaintiff.
128. Plaintiff has claimed Rs. 15,00,000/- as rent for the month of November 2018 only. As per para 42 of the plaint, plaintiff has valued the suit for the purpose of course fee for relief of declara- tion as Rs. 200/- and relief of recovery of licence fee as Rs. 15,00,000/- and relief is permanent injunction as Rs. 130/- each. In para 35, plaintiff has pleaded that presently, he is seeking re- covery of Rs. 15,00,000/- as tentative licence fee from D-2 for Future Metals Pvt Ltd vs Semcorp Green Infra Limited & ors. Page 66 of 83 the month of November 2018 onwards. This Court is in agree- ment with the submissions advanced by ld counsel for defendants that the court fees has to be calculated on the basis of considera- tion amount mentioned in the document and in that case, this Court will also cease to have the jurisdiction. Accordingly, this issue no.07 is decided in favour of defendants and against the plaintiff.
Issue no. 8
129. Whether the suit is barred by limitation? OPD (D-4 & D-
5). Sh. Chander Shekhar Ld. Counsel for D-1 submitted that during cross-examination of the plaintiff by the counsel for D-4, it was admitted by the plaintiff that plaintiff issued a letter dated 25.08.2015 to D-1 and stated about the illegal acts of D-4 but, despite having the knowledge of the act and deeds of D-4 to D-7, plaintiff had not filed the suit and slept over the issue and after th expiry of period of three years, plaintiff filed the suit. It is submitted that the conduct of the plaintiff was suspicious when the leave and licence agreement dated 02.06.2010 was expired on 01.06.2015 but despite having the knowledge of the expiry of the said agreement, plaintiff never approached D-1 for renewal or extension of the leave and licence agreement and this was admitted by the plaintiff' during his cross-examination dated 25.11.2021. It is submitted that since 2012, D-1 had not paid the rent to the plaintiff but the plaintiff had not approached D-1 for the payment of rent.
130. Ld. Counsel appearing for defendants no.4 & 5 also submitted that suit is barred by limitation. It is submitted that period of limitation for declaratory suit is three years. Article 56- Future Metals Pvt Ltd vs Semcorp Green Infra Limited & ors. Page 67 of 83 58 of the Limitation Act which deals with declaratory suits read as under:
PART III.--SUITS RELATING TO DECLARATIONS S.No Description of Suit Period of Time from which Limitation period begins to run
56. To declare the forgery of an Three When the issue or instrument issued or registered.
Years registration becomes
known to the plaintiff.
57. To obtain a declaration that an Three When the alleged
alleged adoption is invalid, or years. adoption becomes
never, in fact, took place. known to the plaintiff.
58. To obtain any other declaration Three When the right to sue
Years first accrues.
131. Sh. Mohit Arura Ld. counsel for D-4 to D-7 submitted that the limitation is for the period of three years which admittedly expired in the month of 24.08.2018 even as per the case of Plaintiff itself. The present case was filed on 29.10.2018 which is way beyond the period of 3 years. It is submitted that even the plaintiff company at the time of filing the suit was aware of such delay committed in filing the suit and in view thereof had filed an application seeking condonation of delay along with suit but the same was later dismissed as withdrawn by the plaintiff. It is submitted that the conduct of the plaintiff clearly indicates that it was clearly aware of such delay being committed by them in filing the present suit. On behalf of defendants, it was submitted that the auditor of the plaintiff company was having specific knowledge of the said transfer of the property in favour of D-4 and present suit was filed on 30.10.2018, which is much beyond three years of limitation.Future Metals Pvt Ltd vs Semcorp Green Infra Limited & ors. Page 68 of 83
132. He further submitted that with respect to extension of the limitation by alleging fraud, the plaintiff has to satisfy two ingredients envisaged under section 17 of the Limitation Act, 1963 out of which one is existence of fraud, and the other is knowledge of fraud. It is submitted that the plaintiff miserably failed to establish fraud and further even admitted the knowledge of the fraud back in August, 2015. Therefore, no benefit can be extended to the plaintiff of section 17 of the Limitation Act, 1963 and the suit is liable to be dismissed on the threshold.
133. Ld. Counsel for plaintiff submitted that letter dated 25.08.2015 was written by independent auditor of the plaintiff company to pay the rent in a different amount than the amount which they are paying the rent. Hence, the plaintiff cannot claim the licence fee/rent for the period of August 2015 after three years, however in the present suit licence fee as mentioned in para 35 in the plaint, plaintiff has not sought the licence fee beyond the period of three years. Ld. Counsel for plaintiff submitted that para 4 of the letter dated 25.08.2015 says "it seems that certain documents are forged, however auditor came to know that the amount of licence fee has been received by the plaintiff in some other account, therefore, they wrote a letter to D-1 to deposit the leave and licence fee/rent to a designated account to be provided by plaintiff company." Hence, limitation for recovery of the licence fee is to be taken in to consideration qua letter dated 25.08.2015.
134. It is settled position that the issue of limitation is a mixed question of law and fact. In the present case, the plaintiff has Future Metals Pvt Ltd vs Semcorp Green Infra Limited & ors. Page 69 of 83 challenged the letters which are stated to have attained finality and the suit is time barred. To discuss question of limitation , it is relevant to discuss section 17 of the Limitation Act, 1963 which is reproduced below:
(1) Where, in the case of any suit or application for which a period of limitation is prescribed by this Act:
(a) the suit or application is based upon the fraud of the defendant or respondent or his agent; or
(b) the knowledge of the right or title on which a suit or application is founded is concealed by the fraud of any such person as aforesaid; or
(c) the suit or application is for relief from the consequences of a mistake; or
(d) where any document necessary to establish the right of the plaintiff or applicant has been fraudulently concealed from him, the period of limitation shall not begin to run until plaintiff or applicant has discovered the fraud or the mistake or could, with reasonable diligence, have discovered it;
135. From the perusal of the aforesaid section, it is apparent that the limitation to file a declaratory suit i.e. 3 years starts running from the date of knowledge of the fraud. It has to be ascertained from the fact and surrounding circumstances as to when and how the plaintiff came to know about the alleged fraud being committed and they have to prove beyond reasonable doubt that the fraud came to knowledge at a much later date as compared to the original date of execution of the documents which is being alleged to be forged or obtained by fraud.
136. In the present case, the property was allegedly transferred in the name of Defendant no. 4 back in the year 2008 vide execution of Agreement to sell dated 10.12.2008 and GPA in favor of Defendant no. 5 and then in the name of Defendant no.
4. The transfer was reflected in the records of Defendant no. 3.
Future Metals Pvt Ltd vs Semcorp Green Infra Limited & ors. Page 70 of 83i.e. NBCC India Ltd. Admittedly, the lease rent of the premises was being transferred from Defendant no. 1 in the account of Defendant no. 4 back in the year December 2011. It is difficult to accept that the plaintiff didn't know about such a big amount being transferred in the account of Defendant no. 4 and the onus was upon the plaintiff to prove which the plaintiff has failed to do so. Even from the records it appears that the plaintiff company was aware of such transfer being made in the account of the defendant no. 4 company. It was submitted that even the plaintiff company's witness i.e. PW1 has admitted in his cross examination that letter dated 25.08.2015 exhibited as PW1/D4-1 written by the representative of the company who was appointed by the plaintiff company. The relevant portion of the cross examination is reproduced below:
Qns. What do you have to say about the letter dated 25.08.2015 issued by Sh. Maninder Kumar Jha on behalf of plaintiff company to D-1 on page no. 90-91 of the documents filed by the D-1 and on page no. 32-33 of documents filed by D-4?
Ans. the letter addressed to D1 does not talk about any transfer of property what clearly explains about the FIR no. 528/2014 and other criminal misdeeds by Sh. O. Prasada Rao, D-4, D-5, D-6 and D-7. as it's a matter of record that Mr. O. Prasada Rao add his criminal syndicate and involved criminally and no mentioning of transfer of property has been indicated in the letter. The letter is now exhibited as Ex. PW1/D4-1.
Qns. Are you admitting the letter Ex. PW1/D4-1? Ans. Yes.
137. The relevant portion of the letter dated 25.08.2015 Ex. PW1/D4-1 is reproduced below:
"4. It seems that as a part of the above crime, the said Prasada Rao has tried to misappropriate the Future Metals Pvt Ltd vs Semcorp Green Infra Limited & ors. Page 71 of 83 property where you are a licensee. It seems that many documents were forged and several external hands have assisted the same. It seems that even some NBCC officials were in his net. The deep routed conspiracy is being looked in to and appropriate legal course of action is being initiated to prosecute the culprits.
5. Under these circumstances it is brought to your knowledge that the documents which formed the basis for the transaction between your good offices and the Prasada Rao were without the consent or knowledge of the company and are not binding on the company.
6. No third party interest has been created by the company, as there is an injunction order operating against the Future Metals Private Limited. Restraining from alienating the property passed by the civil court at Bangalore in AA 28/2009 which is pending for consideration as on the date"
138. On perusal of the above-mentioned contents of the letter it is obvious that the Plaintiff Company was very well aware of the transfer of property in favor of Defendant no. 4 and 5 from the letter dated 25.08.2015 which specifically indicated that the plaintiff company was aware and the period of limitation started from 25.08.2015 and expired after period of three years i.e. in 24.08.2018. The present case was filed on 29.10.2018 that is way it is beyond the limitation period. This Court is in agreement with the submissions advanced by learned counsels for defendants that the suit is liable to be dismissed on this ground only.
139. In Jhang Biradari Housing Residents Society vs Bharat Bhushan Sachdeva 2015 SCC OnLine Del 7350 it was observed as under:-
"Once the plaintiff knew that the suit property was transferred to the predecessor in interest of defendants in the year 1962, suit is barred by limitation. The cause of action not being a re- occurring event and right to sue Future Metals Pvt Ltd vs Semcorp Green Infra Limited & ors. Page 72 of 83 having occurred immediately at that time, suit is liable to be dismissed having been filed beyond a period of three years under Article58/59 limitation act.
140. In the case of J.D. Jain & Ors vs. Sharma Associates & Ors., 167 (2010) DLT 766 it was held as under:
"17. It is evident from the above materials that the plaintiffs were aware and in any event deemed to have been aware of the defendants' possession regarding the suit property and the basis of their claim for possession, i.e., the partnership deed dated 18.11.1987 some time during that year or at best sometime in 1988--at the latest on 30.6.1988 when they filed the suit i.e. CS (OS) 194/1988. Articles 58 & 59, of the Schedule, to the Limitation Act prescribe the period of limitation in respect of the relief of declaration; it is three years from the date of accrual of the cause of action.
Even if the Courts have to take a liberal and charitable view about the plaintiffs' knowledge having been acquired after the Suit filed by the defendants, their best case would be awareness sometime in the year 1988. If that were the4 starting point of the period of limitation, clearly the three year period ends sometime in 1991. That the plaintiffs were pursuing concurrent remedies in respect of the same suit property with this awareness is also evident from the copies of the complaint under Section 145 filed by them. Therefore, the Suit is clearly time barred as far as the relief of declaration claimed is concerned.
As far as the relief of possession is concerned, here too, the plaintiffs could have either sought that relief in any of the pending proceedings or even sought to counter claim for that relief in the suits pending before the Civil Court and the District Judge. They chose not to do so at any point of time. If the starting point of limitation were to be reckoned from 1988 onwards, clearly the relief of possession also stood barred in view of the Limitation Act--Article 65 sometime in 1999-2000."
141. In Abdul Rahim & Ors vs. Abdul Zabar & Ors., (2009) 6 SCC 160 it was held as under:
Future Metals Pvt Ltd vs Semcorp Green Infra Limited & ors. Page 73 of 83"28. A suit for cancellation of transaction whether on the ground of being void or voidable would be governed by Article 59 of the Limitation Act. The suit, therefore, should have been filed within a period of three years from the date of knowledge of the fact that the transaction which according to the plaintiff was void or voidable had taken place. The suit having not been filed within a period of three years, the suit has rightly been held to be barred by limitation.
142. In Mohd. Noorul Hoda v. Bibi Raifunnisa [(1996) 7 SCC 767] this Court held: (SCC p. 771, para 6) "6. ... There is no dispute that Article 59 would apply to set aside the instrument, decree or contract between the inter se parties. The question is whether in case of person claiming title through the party to the decree or instrument or having knowledge of the instrument or decree or contract and seeking to avoid the decree by a specific declaration, whether Article 59 gets attracted? As stated earlier, Article 59 is a general provision. In a suit to set aside or cancel an instrument, a contract or a decree on the ground of fraud, Article 59 is attracted. The starting point of limitation is the date of knowledge of the alleged fraud. When the plaintiff seeks to establish his title to the property which cannot be established without avoiding the decree or an instrument that stands as an insurmountable obstacle in his way which otherwise binds him, though not a party, the plaintiff necessarily has to seek a declaration and have that decree, instrument or contract cancelled or set aside or rescinded. Section 31 of the Specific Relief Act, 1963 regulates suits for cancellation of an instrument which lays down that any person against whom a written instrument is void or voidable and who has a reasonable apprehension that such instrument, if left outstanding, may cause him serious injury, can sue to have it adjudged void or voidable and the court may in its discretion so adjudge it and order it to be delivered or cancelled. It would thus be clear that the word 'person' in Section 31 of the Specific Relief Act is wide enough to encompass a person seeking derivative title from his seller. It would, therefore, be clear that if he seeks avoidance of the instrument, decree or contract and seeks a declaration to have the decrees set aside or cancelled he is necessarily bound to lay the suit within three years from the date when the facts entitling the plaintiff to have the decree set aside, first became known to him."
Future Metals Pvt Ltd vs Semcorp Green Infra Limited & ors. Page 74 of 83143. The limitation will begin to run from the date of knowledge of the alleged forgery/issue or when the right to sue first accrues. In Para 39 of the plaint, it is pleaded that limitation for the purpose of this suit begin to run form 19.08.2016 when counsel for plaintiff had taken the paper book of connected matter from civil suit no. 8222/2016.
144. In Para 39 of the written statement by D-4, it is stated that even in the suit filed by D-1 bearing no. CS No. 8222/2016 titled Sembcorp Green Infra Pvt Ltd. vs Future Metals Pvt Ltd. & ors. pending before this Court, the letter dated 25.08.2015, 04.09.2015 and 30.01.2016 finds mention that the relevant paras of the suit are reproduced wherein D-1 connotes "Future Metals Pvt Ltd. and D-2 connotes Aadhev Impex Pvt Ltd. and plaintiff connotes "Sembcorp Green Infra Pvt Ltd"as under:
"22. The plaintiff has been regularly paying rent/fees in the company's account of defendant no. 2 in view of the leave and licence agreement dated 18.04.2013 executed between plaintiff and defendant no. 2 till September 2015 and stopped payment since October 2015 due to the present controversy. The defendant no.1 never objected to the payment/lease rent made to the defendant no. 2 by the plaintiff. The leave and licence agreement dated 18.04.2013 mentions all of adjustments under the previous leave and licence agreement dated 02.06.2010 which was always in the knowledge of the defendant no.
1.
23. The plaintiff states that for almost 3 years since 2012 defendant no. 1, never approached plaintiff and claimed rent and in terms leave and licence agreement dated 18.04.2013 the plaintiff had been paying licence frees regularly in the name of defendant no 2. The plaintiff has received no communication since 2012 till the undated letter received on 25.08.2015 and letter dated 31.01.2016 where the defendant no. 1 had claimed the ownership of the said premises and demanded the licence fees to be paid to them and further threatened vide letter 27.11.2015 and 31.01.2016 indirectly."Future Metals Pvt Ltd vs Semcorp Green Infra Limited & ors. Page 75 of 83
145. The plaintiff (defendant no. 1 in CS no. 8222/2016) in its reply to the above mentioned paras no. 22 and 23 admitted in is written statement that they have been written the above mentioned letters to the defendant no. 1. The relevant portion of written statement filed by the plaintiff (defendant no. 1 in CS no. 8222/2016) is reproduced below:
"23. .........
It is submitted that the answering defendant had written letter to the plaintiff and requested not to pay rent to the defendant no. 2 or to Mr. O. Prasada Rao immediately when it came to know about the illegal act done by Mr. O. Prasada Rao."
146. Letter dated 25.08.2015 Ex.PW1/D-4 (D-11) is admitted by PW-1 (written by auditor Sh. Maninder Kumar Jha of plaintiff to D-1) and from the perusal of above mentioned reply of plaintiff, it is apparent that they were aware of the transfer of the suit property in the name of defendant which falsifies their submissions before this Court that they came to know about such transfer of the suit property when the CS No. 8222/2016 was filed against them and then the documents of the case were received by him. When it is apparent that they were very well aware of such transfer when the letter dated 25.08.2015 was sent to defendant no. 1 by the plaintiff company.
147. Not only the defendants have denied the facts pleaded by the plaintiff regarding his knowledge about the alleged letters and documents on 19.08.2016 but also D-1 (Sembcorp/erstwhile tenant of plaintiff) ,who had filed the said suit no. CS 8222/2016, it was pleaded by D-1 stating that leave and licence agreement dated 18.04.2013 mentions all the adjustments in the previous agreement dated 02.06.2010. It is clear that the limitation for Future Metals Pvt Ltd vs Semcorp Green Infra Limited & ors. Page 76 of 83 filing the present suit is three years i.e. from the date of knowledge as per article 56. It can be reasonably inferred from the material on record that the plaintiff had the knowledge about the alleged forgery from the letter dated 25.08.2015 (Ex. PW1/D4-1). Para 4 and 5 of the letter dated 25.08.2015 are be read together , which specifically stated that on the said date , the auditor was having specific knowledge of the said transfer of property in favour of D-4. The knowledge of the plaintiff can also be attributed from the fact that the plaintiff at the time of filing of the suit filed a condonation of delay application, which was later dismissed as withdrawn and in the present case, admittedly the delay for this declaratory suit, under Specific Relief Act has not been condoned by the Court.
148. Therefore, in the result this Court finds that this suit is barred by limitation. This issue no. 8 is decided in favour of defendants and against the plaintiff.
Issue no. 3 & Issue no. 5
149. Whether plaintiff is the landlord of D-2 being the successor of D-1 and Whether plaintiff is entitled to licence fee @ Rs. 15,00,000/- per month from D-2 w.e.f filing of the suit i.e. 29.10.2008? Ld. counsel for plaintiff submitted that it is undisputed fact that plaintiff company inducted D1 as its tenant in suit property vide leave and license agreement dated 02-06- 2010 and tripartite agreement 12-11-2010. It is submitted that para 8 of the plaint as well as leave and license agreement Ex.PW1/3 and maintenance tripartite agreement Ex.PW1/4 were admitted by the defendants. It is submitted that an interpleader suit bearing number 8222/2016 was filed by D1 against the Future Metals Pvt Ltd vs Semcorp Green Infra Limited & ors. Page 77 of 83 present plaintiff and D4 seeking declaration as to who is the actual land lord in suit property and during the pendency of said suit plaintiff company filed present suit declaring plaintiff company as land lord. It is submitted that on the basis of present suit said interpleader suit was dismissed as withdrawn on 15th September 2020. It is submitted that it is an admitted case that Aadhev Impex is one of the group companies of the plaintiff company
150. Ld. counsel for plaintiff submitted that it is also not in dispute that after the allotment of suit property by D3 plaintiff taken the possession of suit property and further handed over the possession of said suit property to D1 on 2/06/2010 against the license fee/rent after executing registered leave and license agreement which was not cancelled till today. It is submitted that the suit property is in contumacious possession of D4. It is submitted by Ld. Counsel for plaintiff that interpleader suit bearing number 8222/2016 by D1 nullifies the contents of the letter dated 20-12-2012. It is urged that plaintiff is landlord in suit property and that that issue No 1 and 2 are in favor of plaintiff and against the defendants. It is submitted that plaintiff is ready and willing to take the admitted rent amount and there is no need to appoint local commissioner to ascertain the mesne profit. It is submitted that D2 has taken a stand that they have acted in a bonafide manner and they became tenant of D4 vide registered leave and license agreement. It is urged that the order dated 10.12.2018 shows that D-2 was already served and if the D2 acted in a bonafide manner then D2 would have deposited the admitted rent/license fee before this Court from December 2018 Future Metals Pvt Ltd vs Semcorp Green Infra Limited & ors. Page 78 of 83 to November 2020. It is submitted that plaintiff is ready and willing to take the admitted license fee/ rent amount of Rs. 9,15,300/- . It is submitted that the D2 even after knowing the dispute failed to deposit the licence fee/rent before this Courtand D2 and D4 are jointly liable to pay the admitted licence fee/rent to the plaintiff from the date of service of notice of the present suit (December 2018) till vacating the said property i.e. November 2020. It is submitted that the D5 in his cross examination dated 16-12-2021 admitted that he is in possession of suit property on behalf of D4 as on date.
151. Ld. Counsel for plaintiff relied upon Delhi Development Authority vs Skipper Construction Company Pvt ltd. AIR 1996 Supreme Court 205 wherein it was held that contemnor should not be allowed to enjoy or retain the fruits of his contempt. Since, D-4 is enjoying the rent amount in collusion with D-2 and both are jointly and severally liable to pay the rent amount/mesne profit.
152. Ld. counsel for plaintiff has further relied upon judgment in the matter of Smt. Savitri Devi vs Civil Judge (Senior Division), Gorakhpur AIR 2003 Allahabad 321 (para 27 and 28) . It is submitted that there is a stay with respect to possession of suit property by Ld. Predecessor of this Court vide order dated 26.04.2016 and action done in violation of said interim order to be treated as nullity. Hence, all the documents , leave and licence agreement etc., are to be treated as null and void and not binding on plaintiff company.
Future Metals Pvt Ltd vs Semcorp Green Infra Limited & ors. Page 79 of 83153. On the other hand, Ld counsel for D4 to D-7 submitted that there existed duly registered leave and license agreement between Defendant no. 1 and Defendant no. 4 which was registered before the Sub-registrar and is a registered document and one leave and license agreement between defendant no. 2 and defendant no. 4 which was duly registered also duly registered before the sub-registrar. It is submitted that once Defendant no. 4 has entered into two registered documents subsequently, the onus was on the plaintiff to prove these documents as fraudulent which the plaintiff has miserably failed to do so. It is submitted that the plaintiff has even failed to challenge these documents, despite of having knowledge of the same. Due to presence of two Registered Leave and License Agreements in favor of Defendant no. 4, under no iota of imagination, the plaintiff company can sought declaration to the effect that it be declared landlord of the Defendant no. 2. It is submitted that this Court cannot ignore the present of two registered documents and is bound to give preference to the registered documents issued subsequent to the first registered document.
154. It is submitted that the plea of the plaintiff company has been adjudged to be infructuous since the defendant no. 2 vacated the premises in October, 2020 and handed over the peaceful possession of the premises to Defendant no. 4 herein and now Defendant no. 2 is not the tenant of the Defendant no. 4 and neither in the possession of the premises. In Prem Singh & Ors. Vs Birbal & Ors. wherein it has been held as follows:
Future Metals Pvt Ltd vs Semcorp Green Infra Limited & ors. Page 80 of 83"There is a presumption that a registered document is validly executed. A registered document, therefore, prima facie would be valid in law. The onus of proof, thus, would be on a person who leads evidence to rebut the presumption. In the instant case, Respondent No.1 has not been able to rebut the said presumption."
155. Ld. Counsel for D-4 to D-7 submitted that the defendant no. 4 entered into a registered leave and license agreement with Defendant no. 2 which was duly registered before the sub- registrar. It is submitted that due to the aforesaid lease deed, the Defendant no. 2 started paying rent to the defendant no. 4, who received rent since the inception of the said deed amongst the parties. It is submitted that due to the sudden onslaught of covid, the defendant no. 2, exhibited its inability to pay the license fees and in view of the same, Defendant no. 2 vacated the premises in October 2020 and handed over the vacant and peaceful possession of the premises to the defendant no. 4. Ld. Counsel for D-4 to D-7 relied upon Tarak Nath Thiruvengadam Pillai vs Navaneethammal& Anr. 2008 (4) SCC 530 and Chamkaur Singh vs Mithu Singh 2014 (1) Civil court Cases 389.
156. It has already been noted that plaintiff had sought licence fees from D-2 (successor tenant of D-1) @ Rs. 15,00,000/- only and not since the time D-1 as well as D-2 (successor of D-1) had not paid rent to the plaintiff. Admittedly, registered leave and licence agreement between plaintiff and D-1 was for a period of five years w.e.f 02.06.2010 till 01.06.2015. Fresh Leave and licence agreement dated 18.04.2013 executed between D-1 and D-4 had come to the knowledge of plaintiff but plaintiff has not sought any consequential relief of cancellation of the said Future Metals Pvt Ltd vs Semcorp Green Infra Limited & ors. Page 81 of 83 agreement dated 18.04.2013 and admittedly, at present neither Defendant no. 2 nor defendant no. 1 are in possession of the suit premises. Without there being any registered document or contract between the Plaintiff and Defendant no. 2, the plaintiff is not entitled for any lease rent and licence fees as being claimed in the present suit.
157. In view of the foregoing, plaintiff who has not challenged these registered documents and having failed to establish its version that these documents were executed by fraud, the plaintiff cannot be declared as the landlord of the Defendant no. 2 and is not entitled to recovery of licence fees @ Rs. 15,00,000/- from Defendant no. 2 from the date of filing of the suit as claimed. In the result, in view of the findings on the issue no. 1 and 2 as well as aforenoted discussion, this court finds that plaintiff has failed to discharge its onus. Issue no. 3 and issue no. 5 are accordingly decided against the plaintiff and in favour of defendants.
Issue no. 4
158. Whether plaintiff is entitled to a decree of permanent injunction, as prayed? Plaintiff has prayed for passing of decree of permanent injunction for restraining the D-4 to D-11 and their associates not to create third party interest in the suit property and also for restraining them from collecting any rent, licence fees of the profit. Since the plaintiff has failed to prove the other issues, therefore, plaintiff is not entitled to decree of permanent injunction as prayed for. This issue no. 4 is accordingly decided in favour of defendants and against the plaintiff.
Future Metals Pvt Ltd vs Semcorp Green Infra Limited & ors. Page 82 of 83Issue no. 9 : Relief.
159. In the result, in view of the aforementioned findings on the issues, this suit is dismissed. Parties shall bear their own costs. Decree sheet be drawn up. File be consigned to record room.
(Dictated and announced
in the open Court
on 28th March 2022)
AR (VINAY KUMAR KHANNA)
District Judge
(Commercial Court-02)
South Disttt., Saket, New Delhi
Future Metals Pvt Ltd vs Semcorp Green Infra Limited & ors. Page 83 of 83