CS(COMM) No.962/2016

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IN THE HIGH COURT OF DELHI AT NEW DELHI

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Date of decision: 21^st January, 2019.

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CS(COMM) 962/2016, CCP No.128/2013, IA No.20451/2013 (u/O

XXXIX R-1&2 CPC), IA No.2160/2014 (u/O XXXIX R-1&2

CPC), IA No.13912/2018 (u/O VII R-11 CPC) & IA

No.13913/2018 (u/S 151 CPC)

BHASIN TOBACCOS LTD. & ORS.

..... Plaintiffs

Through:

Mr. B.B. Gupta, Sr. Adv. with Mr.

S.K. Gandhi, Ms. Manjula Gandhi,

Mr. Aditya Kapoor, Mr. Nawit Suri,

Ms. Soumya Sarin & Mr. Himanshu

Dubey, Advs.

Versus

GAMBRO NEXIM (INDIA) MEDICAL

LTD. & ORS.

....Defendants

Through:

Mr. Chetan Sharma, Sr. Adv. with

Ms. Ananya Bhattacharya, Adv. for

D-1 to 3.

Mr. Sunil Magon, Adv. for D-4&5.

Mr. Ayush Chaudhary, Adv. for Mr.

Gautam Awasthi, Adv. for D-

6/Indian Bank.

CORAM:

HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

1. IA No.13912/2018 of the defendants no.1 to 3 under Order VII Rule

11 of the CPC read with Sections 18 and 34 of the Recovery of Debts Due

to Banks & Financial Institutions Act, 1993 (DRT Act) is for consideration.

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CS(COMM) No.962/2016

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2. The counsel for the plaintiffs was heard at length on the said

application on 5^th December, 2018 when, after recording the submissions

made and the queries of the Court, further opportunity was given to the

plaintiffs to make submissions. The senior counsel for the plaintiffs

appearing today, the senior counsel for the defendants no.1 to 3 and the

counsel for the defendant no.6 Indian Bank have been heard. The counsel

for the defendants no.4 and 5 has made only one submission, that it is the

choice of the plaintiffs, whether to proceed before the Debt Recovery

Tribunal (DRT) / its Recovery Officer or before this Court.

3. The plaintiffs instituted this suit, initially for the reliefs of, (i)

declaration that the plaintiffs are the owners of property no.47, Ring Road,

Lajpat Nagar-III, New Delhi-110 024 and that the defendants no.1 to 3 have

no right, title and interest in the said property; (ii) mandatory injunction

directing the defendant no.5 to refund the amount of Rs.5,20,000/- entrusted

by the plaintiffs to the defendant no.5 for conversion of leasehold rights in

the land underneath the said property into freehold; (iii) mandatory

injunction directing the defendant no.5 to get the property converted from

leasehold to freehold and execute the sale deed of the property in favour of

the plaintiffs; and, (iv) permanent injunction restraining the defendants no.1

to 3 from representing themselves to be the owners of the property.

4. In the suit as initially filed, the defendant no.6 Indian Bank was not a

party.

5. The suit, in which issues had already been framed, was listed before

the undersigned on 7^th December, 2016 when on being informed that the

lease of the land underneath the property and the property is in the name of

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the defendant no.1, of which defendants no.2 and 3 are the Directors and

that the plaintiffs were only claiming an Agreement to Sell by the

defendants no.4 and 5 coupled with registered General Power of Attorney

with respect to the property in their favour, it was enquired as to how the

plaintiffs, without having any title to the property could seek a declaration

of being the owners of the property. The said question arose in the light of

the dicta of the Supreme Court in Suraj Lamp & Industries Pvt. Ltd. Vs.

State of Haryana (2009) 7 SCC 363 and (2012) 1 SCC 656.

6. Thereafter the application of the defendants no.1 to 3 under Order

VII Rule 11 of the CPC for rejection of the plaint in the suit as originally

filed came up for consideration before the undersigned on 1^st March, 2017

when again after recording detailed submissions and drawing attention of

the counsel for the plaintiffs to the dicta of the Courts holding that

Agreemen