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2015 Supreme(Del) 3400
IN THE HIGH COURT OF DELHI AT NEW DELHI
VALMIKI J. MEHTA, J.
Keventer Agro Limited – Plaintiff
Versus
Kalyan Vyapar Private Limited & Another – Defendants
C.S. (OS) No. 2697 of 2011
Decided On : 30.11.2015
For Plaintiff:Mr. Ravi Gupta, Senior Advocate, Mr. P. Choudhary and Mr. Manmohan Gupta, Advocates.
For Defendant:Mr. Deepak Kumar Jewa, Mr. Jaladhar Das, Ms. Puja Barik, Mr. Rajat Aneja, Ms. Aarohi Holani, Advocates.
Headnote:
Civil Procedure Code, 1908 - Section 2(2) - Order 7 Rule 11, Order 14 Rules 1, 2 - Order 12 Rule 6 - Indian Easements Act, 1882 - Section 59, 60(b) - Evidence Act, 1872 - Sections 91, 92 - Agreement to Sell - Pre-emption right - Possession - Money decree - Maintainability of suit - Agreement to Sell was entered into by Sh. M.K. Jalan having a right of pre-emption of the suit property - Suit is filed by the plaintiff is not maintainable - Rights under the Agreement to Sell are only and only of Sh. M.K. Jalan and not the plaintiff/Company - Plaintiff has no locus standi to seek the benefit of the Agreement to Sell - Money decree on account of damages of Rs. 60,29,254/- is maintainable - Defendant no.2 has possession of the suit property being not bound by the licence created in favour of the plaintiff cannot be directed to restore possession of the suit property to the plaintiff - A licensee never gets legal possession of a property - A right of a licensee is only to enter and exit the licenced premises - No relief for restoration of 'possession' on account of plaintiff being dispossessed without due process of law is pleaded - Change of flooring cannot be said to be a work of permanent character - Suit is dismissed with respect to all the prayers except the relief of money decree.
VALMIKI J. MEHTA, J.
1. This suit is today listed for framing of issues and disposal of I.A. No. 17568 of 2014 filed by the defendant No. 2 under Order VII Rule 11 of the Code of Civil Procedure, 1908 (CPC).
2. When a court has to frame issues, it has to be seen also as to whether issues at all arise because only when material propositions of facts and law are affirmed by one party and denied by the other party issues would arise. Putting it in other words, if from reading of the pleadings and documents which exist on record, at this stage of framing of issues, it is found that really no issue arises or certain issues do not arise, this Court need not frame some or all issues. In fact, at the stage of framing of issues, courts besides looking into Order VII Rule 11 CPC can also look into Order XII Rule 6 alongwith Section 2(2) CPC which defines a decree that by a decree even part of the claim in a suit can be decided.
3. The subject suit is a suit for permanent injunction and mandatory injunction, seeking reliefs of cancellation of the Sale Deed dated 4.8.2011 executed by the defendant No. 1 in favour of the defendant No. 2 with respect to the suit property being 9, Masjid Moth, Commercial Complex, GK-II, New Delhi-110048, specific performance of an earlier Agreement to Sell dated 3.8.2010 of the suit property (i.e. prior to the Sale Deed dated 4.8.2011) and to put the plaintiff in possession of the suit property, and finally for damages of Rs. 60,29,254/- on the basis of the averments made in para 28 of the plaint pertaining to damages to office equipments, loss of cash and loss of business etc. Following are the relief clauses as per the suit plaint:-
“It is, therefore, most respectfully prayed that this Hon’ble Court may be pleased to pass the following order/orders:-
(a) Decree of permanent injunction restraining and prohibiting the defendants, their security guards, representatives employees, agents, servants, anyone else acting on their behalf or instruction, from creating any impediment or blocking the ingress and egress of the plaintiff and its employees entering the suit property being First Floor 9, Masjid Moth, Commercial Complex, Greater Kailash, Part-II, New Delhi-110048 or creating any hindrance or hurdle in their peaceful possession of the suit property and conduct of business by the plaintiff from suit property.
(b) Decree of mandatory injunction directing and ordering the defendants, their representatives, assigns, employees, servants, anyone acting on their behalf etc to comply with their obligations as are cast upon them.
(c) Decree declaring the sale deed dated 4.8.2011 registered in favour of defendant No. 2 vide registration No. 12535, additional book No. 1, volume 11375, pages 98 to 106 dated 9.8.2011 with respect to property being 9, Masjid Moth, Commercial Complex, Greater Kailash, Part-II, New Delhi-110048 as per Schedule-I is null and void.
(d) Decree cancelling the sale deed dated 4.8.2011 registered in favour of defendant No. 2, registration No. 12535, additional book No. 1, volume 11375, pages 96 to 106 dated 09.08.2011 with respect to property being 9, Masjid Moth, Commercial Complex, Greater Kailash-Part-II, New Delhi 110048 as per Schedule-I.
(e) Pass an order directing the defendants to deliver up all the documents, assets/valuable etc. pertaining to the property as detailed in schedule-I and schedule-II of the plaint.
(f) Decree for specific performance of oral and written agreement dated 3.10.2010 of property being 9, Masjid Moth, Commercial Complex, Greater Kailash-II, New Delhi-110048 and directing the defendant No. 1 to register sale deed in favour of the plaintiff to the suit property and to put the plaintiff in possession therein and the decree may further direct in case of refusal and non execution of registration of sale deed by the defendant within such time as may be directed by the decree, needful to be done by the official of this Hon’ble Court to do all acts necessary fo
