Final Order 7

Order Details: COPY OF JUDGMENT
Pdf Text: IN THE COURT OF SH. RINKU JAIN, ADDITIONAL
SENIOR CIVIL JUDGE-01, CENTRAL DISTRICT, TIS
HAZARI COURTS, DELHI
MCA No. 23/2024
CNR No. DLCT03-008096-2024
In the matter of:-
Sh. Siddhant Bansal
S/o Sh. Rajiv Bansal
R/o 16/331B, Khajoor Road,
Karol Bagh, Delhi-110005 ...Appellant
V E R S U S
1. Sh. Lokendra Kothari
S/o Sh. Fateh Lal Kothari
R/o House No.879, Kharol Colony,
Fatehpura, Udaipur, Shastri Circle,
Rajasthan-313001
2. Sh. Subey Singh
S/o Sh. Jai Mal Ram,
R/o House No.245, Gali No.12,
Than Singh Nagar, Military Road,
Anand Parbat, Delhi-110005 ...Respondents
J U D G M E N T
1. The present appeal impugns the order dated
08.07.2024 passed by the Trial Court whereby the application
filed by respondent no.1/plaintiff under order 39 Rule 1 & 2 was
partly allowed. The appellant herein is defendant no.2 in the
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original suit and the respondent no.2 is defendant no.1 therein.
For the sake of convenience, parties shall be referred to by their
nomenclature in the main suit.
2. The case of the plaintiff is that the plaintiff is the
sole proprietor of M/s Rishabh Travels at Udaipur, Rajasthan and
is carrying on the business of stage carrier, tour organizer and
travel agent across India having its branch office at Shah
Bhawan-2, Ground Floor, Chamelian Road, Delhi-110006
(hereinafter referred to as ‘suit property’) for more than four
decades. The suit property was obtained on rent from its owner
namely Sh. D. R. Shah after paying a sum of Rs.2,00,000/- as
pagri.
3. It is further stated that defendant no.1 is an
employee of the plaintiff and looking after the Delhi Branch. As
per the understanding, defendant no.1 used to settle the account
with the plaintiff for the business run on behalf of the plaintiff. It
is stated that the accounts could not be settled between the
plaintiff and defendant no.1 owing to COVID-19. Plaintiff made
several requests to defendant no.1 to settle the accounts and even
visited Delhi for the same, but to no avail. Defendant no.1 started
representing himself as the sole proprietor of the Delhi business.
Thereafter, plaintiff was constrained to file a suit bearing CS SCJ
No.2586/2022 for permanent and mandatory injunction, which
was settled vide mediation settlement dated 14.12.2022 pursuant
to which, the accounts were settled up till December 2022 and a
compromise decree was passed.
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4. It is further stated that in the month of February
2023, plaintiff came to know about a dispute going on between
defendants no.1 and 2, who in collusion with each other were
trying to usurp the business of the plaintiff. Plaintiff apprehends
that defendants no.1 and 2 have created/manipulated some false
documents upon the basis of which, they have obtained certain
orders which are required to be declared null and void as plaintiff
is the sole proprietor of the business being run at Delhi Branch in
the suit property. Hence, the present suit for declaration to
declare the manipulated/forged documents w.r.t. business of the
plaintiff as well as the orders obtained by defendants no.1 and 2
as null and void. Plaintiff has further sought the relief of
permanent injunction to restrain the defendants from proclaiming
themselves to be the proprietor of Delhi Branch of M/s Rishabhh
Travels. To further restrain the defendants from creating any third
party interest in the suit property or from creating any obstruction
during the visit of the plaintiff to the Delhi Branch. Plaintiff has
further prayed to direct defendant no.1 to provide the account
details of the Delhi Branch.
5. Summons of the present suit were issued and
defendants entered appearance. WS was filed by both the
defendants. In the WS filed on behalf of defendant no.1, it has
categorically been admitted that defendant no.1 has been working
as a care taker of the business of the plaintiff and has no intention
to create any third party interest in the suit property/business of
the plaintiff. Defendant no.1 further stated that he has no concern
with the alleged collaboration agreement fabricated by defendant
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no.2. It is further stated that defendant no.2 obtained an arbitral
award passed by sole Arbitrator appointed by defendant no.2
unilaterally, with which, defendant no.1 has no concern.
6. In the WS filed by defendant no.2, defendant no.2
claims himself to be the owner of the suit property, along with
other family members. Defendant no.2 has objected to on the
ground of locus standi and suit valuation. Defendant no.2 has
claimed that defendant no.1 is the co-owner of the suit property
having purchased the same for a sum of Rs. 2.5 crores. Present
suit is stated to have been filed by the plaintiff in connivance
with defendant no.1 deprive defendant no.2 of his lawful right in
the suit property.
7. Vide the impugned order dated 08.07.2024, Ld. Trial
Court has partly allowed the application of the plaintiff u/o 39
Rule 1 & 2 CPC whereby defendant no.1 has been restrained
from proclaiming himself to be the owner/proprietor of the Delhi
Branch business and from creating any third party interest or
obstacle/interference during the visits of the plaintiff to the Delhi
Branch office at the suit property. Further, defendant no.2 has
been restrained from creating any third party in the suit property
till the final disposal of the case.
8. Order dated 08.07.2024 passed by the Ld. Trial
Court has been assailed on the ground that plaintiff did not come
to the Court with clean hands and the impugned order is contrary
to law. The ownership documents of the defendant no.2 have not
been challenged. By way of the impugned order, Ld. Trial Court
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has deprived defendant no.2 from the benefit of the award dated
14.02.2023 passed in arbitration proceedings. Ld. Trial Court
failed to appreciate that defendant no.1 deliberately conceded to
the case of the plaintiff, the suit being collusive, which is amply
evident from the WS of defendant no.1. Ld. Trial Court wrongly
relied upon letter of MCD dated 17.11.2023. The order of Ld.
Trial Court is without cogent reasons. Ld. Trial Court failed to
appreciate that defendant no.2 was not a party to the earlier
suit/proceedings which was settled between plaintiff and
defendant no.1 herein. Ld. Trial Court has failed to appreciate the
plaintiff did not bring any document whatsoever to substantiate
his claim that he has paid Rs.2,00,000/- as pagri for the suit
property. Ld. Trial Court failed to appreciate that there is no
averment that plaintiff is the owner of the suit property whereas,
defendant no.2 has an award in his favour as well as defendant
no.2 has a registered sale deed in his favour, among other
grounds.
9. I have heard the arguments and also perused the
record.
10. At the very threshold, it is pertinent to mention that
plaintiff has admitted himself to be a tenant in the suit property
having obtained the same on rent from its erstwhile owner Sh. D.
R. Shah. In the WS filed by defendant no.1, he has mostly
conceded to the averments of the plaint and at the same time, he
has admitted himself to be a supervisor/care taker of the plaintiff.
Neither plaintiff nor defendant no.1 have claimed the title of the
suit property. On the other hand, defendant no.2 has placed on
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record copy of registered sale deed of the suit property dated
13.10.2020. Defendant no.2 has also placed on record the above
mentioned arbitral award and a copy of judgment of Ld. DJ,
Commercial Court-09 to lay his claim of title over the suit
property.
11. From the discussion above, defendant no.2 prima
facie appears to have better title over the suit property as
compared to plaintiff and defendant no.1, who have not laid any
claim over the title of the suit property. Plaintiff has claimed only
ownership in the business being run from the suit property. The
dispute in the present suit is pertaining to the business of the
plaintiff. There is no averment whatsoever as to when and how
plaintiff acquired the title in the suit property.
12. It is a settled position of law that no injunction can
be granted against the true owner of the property specifically
when in the case in hand, the ownership of the suit property is
not in question.
13. In view of the above discussion, it is held that Ld.
Trial Court has committed an error in passing the impugned order
qua defendant no.2 and restraining defendant no.2 from creating
any third party right, title and interest in the suit property till the
disposal of the suit. Hence, the impugned order needs to be partly
modified to the effect that defendant no.2 is restrained from
altering/changing the nature of the suit property to the detriment
of the plaintiff and his business till the final disposal of the suit.
The impugned order dated 08.07.2024 shall remain unchanged
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qua the restraint imposed upon defendant no.1.
14. Nothing expressed herein shall have any bearing on
the final merits of the case and nothing shall be construed as an
expression regarding the title of defendant no.2 over the suit
property. The present appeal is accordingly partly allowed.
Impugned order is modified in above terms.
The appeal file be consigned to Record Room after
due compliance. TCR be sent back to the Ld. Trial Court along
with the copy of judgment.
Announced in open Court
on this 05th Day of July, 2025
(RINKU JAIN)
JSCC/ASCJ/GJ-01 (CENTRAL)
TIS HAZARI COURTS/DELHI
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