World Trade Centre vs Bharat Hotel Ltd. And Ors.
1993 Latest Caselaw 646 Del

JUDGMENT

V.B. Bansal, J.

(1) World Trade Centre Welfare Society, appellant/plaintiff filed this appeal, thereby challenging the order dated 26.6.1991 of Satpal, J. vide which the interim stay granted on 18.3.1991 in IA.2538/91 in Suit No. 900/91 wasvacated.

(2) World Trade Centre Welfare Society is a Society registered under the Societies Registration Act and was formed by most of the occupants of the building known as World Trade Centre, situated at Barakhamba Lane, New Delhi. There are62 members of the plaintiff who have been allotted different spaces/portions in the aforesaid premises as per the details mentioned in Schedule 'A' to the plaint. The plaintiff had filed a suit for declaration, mandatory injunction, permanent injunction and rendition of account against M/s.Bharat Hotels Limited, a Company incorporated under the Indian Companies Act, defendant/respondent No. 1(hereinafter referred to as defendant No. 1), M/s Jagjit Cotton Textiles Limited, a company incorporated under the Indian Companies Act, defendant/respondent No. 2 (hereinafter referred to as defendant No. 2) and New Delhi Municipal Committee defendant/respondent No. 3 (hereinafter referred to as defendant No.3). A number of prayers were made in the suit, but suffice it to refer to the clauses(d), (e), (g) and (i) of Para 18 of the plaint, which reads as under:- "D.Permanent Injunction thereby restraining the defendant No. 1 and defendant No. 2 through its agents, employees, representatives etc.etc. from making any unauthorised additions and alterations in the premises and thereby changing the basic plan of the premises and not to encroach upon the common areas.E. Mandatory Injunction, thereby directing the defendant No. 3 to demolish the unauthorised construction already raised by defendant No.I and 2 and restore the premises in their original position and to keep a check upon the construction activities of the defendant No. 1 and 2in future and not to allow them to construct in contravention to the sanctioned and approved plans.G. Mandatory Injunction, thereby directing the Defendant No. 1 to restore the fire escape facility to the occupants and members of theplaintiff society on the ground floor plan which has been closed bythem.1. Mandatory Injunction, thereby directing the defendant No. 3 to demolish the unauthorised construction already raised by defendant No. 1 and to restore the premises in their original position as per the basic sanctioned plan."

(3) Briefly stated, the averments made in the suit have been that the defendantNo. 1 was allotted a plot of land measuring about 6.0485 acres approximately at commercial complex, Barakhamba Lane, New Delhi, on lease for a period of 99years with effect from 11.3.1981 by the defendant No. 3. the Deed of license in this regard was, however, executed on 22.4.1982. A Commercial Complex known as World Trade Centre was constructed by defendant No. 1, who, by virtue of Clause29 of the license Deed was empowered to create a Sub-License with regard to theoffices, shops and show rooms constructed in the said building. The defendant No.I had issued a brochure highlighting the various salient features of the p.eject and giving details of the facilities which were to be made available to its occupants. A number of advertisements had also been issued in the newspapers in this regard.Different persons approached the defendant No. 1 and took offices, show-rooms and shops as per their requirements from the defendant No. 1 regarding which Sub-license Agreements were executed. Further averments made in the plaint have been that the defendant No. 1 assured the members of the plaintiff society that they would be providing various services and conveniences and that Clause No. (4)under the head 'Main Features of the Project in the brochure mentioned that a two-level parking garage with a total capacity of 700 cars with a direct drop-off entry to the enclosed shopping/office atrium would be provided. There was a grievance even with regard to the action of the defendant No. 1 in stopping the parking of the vehicles of the members of the plaintiff.

(4) Further averments made in the plaint have been that in order to achieve its illegal desire of mining money, without considering and appreciating the welfare and benefit of the occupants of the complex, the defendant No. 1 has effected major structural changes and converted various shops into one hall specifically shown in red colour in the plan marked as Annexure P/1, which has been sold to defendantNo. 2 at a much higher premium. It has also been claimed that the defendant No.I has even allotted the common corridors to the defendant No. 2 which have beencovered.

(5) Further averments made are that there were corridors on all the four sides of the complex and a person could take complete round of the various shops there in but because of the aforesaid construction and closure of the corridors it has become impossible to do so and this action of the defendants 1 & 2 was illegal and malafide.It was also in contravention of the building bye-laws and the rules. It has further been claimed that the defendant No. 1 had provided a fire escape gate in a corner meant for the use of the occupants of the complex which has now been closed. It has also been claimed that the members of the plaintiff have paid the prices for common corridors which price was received by defendant No. 1 and by way of illustration it has been mentioned that shop No. 41 at lower ground floor was allotted to Shri V.P. Gupta, Secretary of the plaintiff society, who has paid for a total area of 202 sq.ft. while the area in his occupation was only 135.6 sq.ft. It is also claimed that consent of the plaintiff and its members was necessary before closing the corridor and the defendant No. 3 is bound to demolish the unauthorisedconstruction.

(6) IA.2538 /91 was moved by the plaintiff under Order Xxxix Rules 1 & 2 read with Section 151 of the Code of Civil Procedure, which came up for hearing on18.3.1991, when the following order was passed: "IA.2538/91.OFFICEto register this application and number it. Notice returnable on 1 7/05/1991. Meanwhile, defendants 1 and 2 their officers, agents, employees,representatives, workers and any one acting on their behalf are restrained from making any structural changes on the ground floor of the buildingknown as World Trade Centre, Barakhamba Lane, New Delhi in the area as demarcated in red pencil as shown in Annexure P-1 to the Plaint at Page 30,The fire escape near the service elevators as well as the corridors in the area demarcated in the red pencil shall not be blocked by the aforesaid persons.dusty.Plaintiff shall comply with the provisions of Order 39 Rule 3, within threedays."

(7) Defendant No. 1 moved an application, viz. IA.3855/91, under Order XXXIX Rule 4 read with Section 151 of the Code of Civil Procedure while anotherapplication, viz.lA.6786/91 under Order Xxxix Rule 4 read with Section 151 of the Code of Civil Procedure was moved by defendant No. 2. Both the defendants had prayed for vacating the ex-parte interim injunction granted on 18.3.1991.It has been pleaded by the defendant No. 1 that the ex-parte ad interim injunction order was obtained by the plaintiff on the basis of misleading and falsestatements, thereby causing grave prejudice and irreparable loss and injury to the defendants. It has also been pleaded that the plaintiff did not come to the Court with clean hands and distorted the correct facts. It has also been pleaded that the premises at ground level were being used as offices but since many shops were unreserved an area of 8340 sq.ft. in one block was available and the same was sub-licensed to defendant No. 2 on 12.11.1990. It has also been pleaded that before signing of the Agreement with the defendant No. 2 the premises in question had already been converted into a hall and there was no deviation from the sanctioned building plans and, thus, there was no breach of any municipal bye-laws orregulations. It was also claimed that all fire safety requirements prescribed were being adhered to by the defendant No. 1 and that the plaintiff had never been charged for the common area which is alleged to have been taken away from them.A prayer has, therefore, been made that the ad-interim injunction may be vacated.

(8) In the application for vacating the injunction moved by the defendant No.2 it has been pleaded that the defendant No. 2 agreed to take office space measuring8340 sq.ft. in the nature of a large hall, as shown in the plan annexed to the Agreement dated 12.11.1990, and the aforesaid space was given to the defendantNo. 2 for a period of 99 years for which a sum of Rs. 3,24,56,500.00 was paid to defendant No. 1. It is also claimed that defendant No. 2 agreed to pay a sum of Rs.16,345.00 per month towards maintenance and other charges and that the grant of the space in question was in conformity with the sanctioned building plans and there was no deviation or breach in this regard. It was also pleaded that all work/change, structural or otherwise, were carried out by defendant No. 1 prior to the handing over of the space to defendant No. 2 and it had never acted in any manner in contravention of the municipal bye-laws or any sanctioned plan. It has also been pleaded that the plaintiff had not suffered any loss and that the defendant No. 2 had made a substantial investment in getting the premises from the defendant No. 1and that all the changed had been effected and completed in September/October1990. A prayer has, therefore, been made for vacating the injunction order.

(9) After hearing arguments by learned Counsel for the parties the stay was vacated vide the impugned order, as referred to above.

(10) This appeal came up before D.P. Wadhwa and R.L. Gupta, JJ. After the arguments were concluded R.L. Gupta, J. came to the conclusion that taking into consideration the totality of the circumstances, the appeal had no merit and that it deserves to be dismissed. D.P. Wadhwa, J" however, did not agree with the conclusion arrived at by R.L. Gupta, J. and was of the opinion that the appeal deserved to be allowed to the extent that the defendants should be restrained from closing the passage/corridors in the portion marked red in the Key Plan, Annexure P/1 with the plaint and should also be restrained from blocking the free access tothe fire escape existing in the disputed portion. He was also of the opinion that thedefendants should be restrained from using the corridor/passage for any other purpose except as passage for the user of all other persons on the ground floor. It was also observed by D.P. Wadhwa, J. that the learned Single Judge was right in not restraining the defendant No. 2 from using the space shown as shops in the Key Plan for office purposes.

(11) Since different opinions have been given by D.P. Wadhwa and R.L. Gupta,JJ. the appeal has been referred to me for decision.

(12) I have heard Shri Mukul Rohtagi, Sr.Advocate, for the appellants, Shri Ravinder Sethi, Sr.Advocate, for defendant No. 1; Shri L.K. Bhushan for defendantNo. 2 and Shri B.J. Nayyar for defendant No. 3. I have also gone through therecords.

(13) Learned Counsel for the appellant has submitted that before the different shops were let out to the members of the plaintiff/appellant, a brochure was issued showing the existence of corridors which could not be disturbed by defendant No.1. He has also submitted that the members of the appellant had taken the space as Sub-lessee on the basis of the promises contained in the brochure and that the different individuals had paid for the common space, as is evident from the Sublease executed between the defendant No. 1 and individual members of theappdlant. He has also submitted that it was not open to the defendant No. 1 to takeaway the rights of the appellants which have been in use by them since its inception.It has also been submitted that corridors have been provided in the complex so asto make the same accessible to all and by converting a number of shops into a big hall the defendant No. 1 has, in fact, destroyed the very nature of the complex which was developed as a shopping complex. He has further submitted that even if there was an objection by even one person having a sub-lease in the shoppingcomplex, it was not open to the defendant No. 1 to give the corridor and a number of shops to the defendant No. 2, converting it into a big hall. He has also submitted that by doing so an irreparable loss has been caused to the members of the appellant and that the balance of convenience lies in favor of the appellants. It has also been submitted that the defendants are estopped from changing the use of the corridorsand, thus, prayer has been made that the appeal may be accepted and thedefendants I &. 2 may be restrained from conversing the corridor into a portion ofthe hall so as to deprive the persons the use of this corridor. It has also been submitted that the building bye-laws have been violated by the defendant No. 1,who has closed the corridors by violating the sanction plan.

(14) Shri Ravinder Sethi, Senior Advocate appearing for defendant No. 1, has on the other hand submitted that the defendant No. 1 has not violated the terms ofthe license granted in favor of the individuals in respect of the shops given tothem. It has also been submitted that the respondent No. 1 was within its right to give to defendant No. 2 a number of shops after converting them into a big hall andthe area in front of the same. He has further submitted that initially the construction was made to have this area as a shopping complex but most of the members of the appellant have themselves started using the shops as offices and the other shops were lying vacant and so the defendant No. 1 was fully justified in converting them into a big hall and in giving the same to defendant No. 2 for use as an office. It has also been submitted that the shops had already been converted into a big hall andthe open space in front of the shops had already been included in the hall and, thus,there was no case for the issue of a mandatory injunction so as to direct thedefendant No. 1 to remove the construction already made. It has also been submitted that there was no question of the breach of any terms and, thus,principles of promissory estoppel were not applicable in the instant case. A prayerhas, therefore, been made that the appeal be dismissed having no force.

(15) Shri L.K. Bhushan, learned Counsel for defendant No. 2, has submitted that a huge amount has been paid by the defendant No. 2 to defendant No. 1 having no knowledge about the existence of any terms to the members of the appellant about the availability of a corridor. It has also been submitted that the space in question had already been converted into a hall and that the plaintiff had no prima fade case and balance of convenience lies in favor of defendant No. 2 who would suffer irreparable loss if they are estopped from using the premises, which they have already taken from defendant No. 1. A prayer has, therefore, been made that the appeal may be dismissed.

(16) Shri B. J. Nayyar, learned Counsel for defendant No. 3 has submitted that there has not been any violation of the municipal bye laws and that there is no requirement of a fire escape for the shop keepers on the ground floor.

(17) As ready referred to, defendant No. 1 had constructed a Shopping Plaza and different shops had been given to the individuals for being used asshops. The learned Trial Judge had appointed a local Commissioner who gave a report which clearly indicates that most of the shops were being used as offices by members ofthe plaintiff society. There is no doubt that objections have been raised by theplaintiff about the correctness of the report of the local Commissioner but the fact remains that prima fade there was sufficient material on record before the learned Trial Judge for coming to a prima facie conclusion that most of the shops were being used by members of the plaintiff as offices. In these circumstances, there can possibly be no objection to the defendant No. 1 giving shops to the defendant No.3 after converting them into a hall. When the shopping complex was being used by the members of the plaintiff themselves as offices, I do not find any prima fade ground to stop similar use by the defendants 1 and 2. In fact, D.P. Wadhwa and R.L.Gupta, JJ. have expressed their opinion that prima fade there could not be any objection to the conversion of the shops into a hail by the defendant No. 1 to be used by the defendant No. 2 as an office.

(18) The only question which remains for consideration is as to whether thedefendants 1 & 2 could close the corridor in front of the shops which have been converted into a hall and can these defendants be asked to remove the construction which has already been raised. Submission of the learned Counsel for defendants I & 2 had been that this construction had been raised before filing of the suit and that passing of a mandatory injunction for the removal of the construction would cause irreparable loss to the defendant No. 1 & 2 and that balance of convenience also lies in their favor. It may be noted that in the license Deeds executed by thedefendant No. 1 in favor of the individual members of the appellant, there is no mention of the details of the common area. It is not the case of the appellants thatthe shops of the members of the appellant have become inaccessible. The only grievance has been that there is a closure of one corridor from one side or the other so as to prevent the persons from that side to have a free access to the shops of the Shopping Plaza. Had there been no violation of the terms by any one by using the shops as offices, there could be a prima fade grievance of the members of theappellant that they would be suffering an irreparable loss. In the instant case members of the appellant having themselves violated the salient features mentioned in the brochure, cannot be heard to say at this stage that they have suffered irreparable loss or they have a good prima fade case for the grant of mandatory injunction for the demolition of the construction already made by the defendantNos. 1 & 2.

(19) The interlocutory remedy is intended to preserve in status-quo the rights of the parties which may appear on a prima fade case. Grant of injunction is an equitable relief and the grant or refusal of an interlocutory mandatory injunction shall ultimately rest in the sound judicial discretion of the Court to be exercised in the light of the facts and circumstances in each case. Existence of a prima fade case must be shown by the plaintiff in the first instance, who has also to show that non grant of the injunction would result in an irreparable injury which cannot be compensated adequately. Mandatory injunction is granted on an interlocutory application only to restore the status quo and not to establish a new state of things,different from the state which existed at the date when the suit was instituted.

(20) It has clearly been stated by the learned Counsel for defendant No. 2 thatthe defendant No. 2 was not aware of the existence of a corridor for use by the persons to whom other shops had been given and that it is the defendant No. 2 who would suffer an irreparable loss if the construction already raised before the filing of the suit is demolished and it may not be possible to compensate it adequately if ultimately the plaintiff fails. Usually the prayer for the grant of interlocutory injunction is at a stage when the existence of a legal right asserted by the plaintiff and its alleged violation are both contested and uncertain and remain uncertain till they are established at the trial. The Court at this stage acts on certain well established principles of administration of this form of interlocutory remedy which is both temporary and discretionary. The Appellate Court would not interfere inthe exercise of discretion of the Court of the first instance and substitute its own discretion except where the discretion has been shown to have been exercisedarbitrarily, capriciously or perversely or where the Court has ignored the settled principles of law regarding grant or refusal of interlocutory injunction. The Appellate Court would not re-assess the material and seek to reach a conclusion different from the one arrived at by the Trial Court on the ground that if it was to be assessed by the Appellate Court it would reach a different conclusion. Reference in this regard can be made to the case Wander Ltd. and Another v. Antox India P.Ltd. (1990 (Supp.) S.C.C. 727.

(21) The question as to whether there is any promissory estoppel against thedefendants 1 & 2 would have to be gone into after evidence is led by the parties.Apart from the issuing of the brochure there is no mention about the corridors in front of the disputed shops, as being included in the common area of the individual members of the plaintiff/appellant in the documents executed in their favor. It is apparent at this stage that in violation of the conditions contained in the brochure members of the plaintiff have started using the shops as offices. Can they, in thesecircumstances, object to the inclusion of the place in front of the shops in the shops by the defendant No. 1 at this stage? My answer is that this aspect will have to be gone into during trial and the defendants 1 & 2 cannot be asked to demolish the construction already made and the space included in the hall. Learned Counsel for the appellant when asked to point out as to how the common area was calculated mentioning the areas in the documents executed in favor of the individualmembers of the appellant, he was not able to give any answer and, in fact,submitted that it was very difficult to state at this stage as to how the area wascalculated. It is, thus, clear that this is a matter which has to be gone into duringTrial.

(22) Learned Counsel for the appellant has also submitted that there were two fire exits in the shopping complex and out of them one has been closed by thedefendant No. 1, which was not permissible. He has submitted that on this account alone the appellant was entitled to the relief of mandatory injunction, directing the respondents 1 & 2 to remove the construction blocking the corridors. Learned Counsel for the respondent No. 1, on the other hand, has submitted that theappellant had made false averments in the plaint to the effect that the fire escape has been closed, meaning thereby that there was no fire escape and that this, perhaps,was one of the main considerations on account of which the ex-parte stay wasgranted. He has submitted that, in fact, there were two fire escape routes and thedefendant No. 1 has made provision for one more fire escape at the spot. LearnedCounsel for the appellant has submitted that the provision of another fire escape will have to be proved during trial, but it has been submitted that the fire escape could not be closed by the defendants. It has been stated by the learned Counsel forthe respondent No. 3 on getting instructions from the concerned authorities that no fire escape was required for the shop-keepers on the ground floor. Even otherwise,as per the case of the appellant, there were two fire escape routes and the defendantNo. 1 by making provision of another fire escape has now made two fire escapes available for the public at large. Therefore, it cannot be said that no fire escape exists at the spot.

(23) The main grievance of the appellant has been that by converting the passage corridor, access to various shops has been curtailed and on this account the members of the appellant are bound to suffer. There is no denial of the fact that other corridors are available for the public to move around in the shops in theShopping Plaza.

(24) It is pertinent to mention that the defendant No. 1 has filed a copy of the Completion Plan in which there are no corridors. Learned Counsel for thedefendant No. 3 appears to be right in his submission that there is no violation ofthe rules or bye-laws of the respondent No. 3 in closing the corridors in suchcircumstances.

(25) It is clear from the records that the shops and the area in front of them have been included in a hall prior to the institution of the present suit by the plaintiff. Thedefendant No. 2 has claimed ignorance about any agreement with the members ofthe Plaintiff to have corridors all around and claimed having paid huge amount ofRs. 3,24,56,500.00 besides agreeing to pay Rs. 16,345.00 per month to the defendantNo. 1. Plaintiffs have not been able to prove a prima facie good case and the balance of convenience is in favor of defendant No. 2 who would suffer irreparable loss if the construction is ordered to be demolished at this stage. It is, however, made clear that observations made in this order are only for the purpose of deciding this appeal and the suit would be decided on the basis of evidence which may be produced by the parties during trial.

(26) After giving my thoughtful consideration to all the facts, I have no hesitation in coming to the conclusion that the application for ad interim injunction has rightly been dismissed and stay vacated by the learned Single Judge. I agree with the view of R.L. Gupta, J.

(27) As a result, the appeal is dismissed. In the circumstances of the case,parties are left to bear their own costs.