Delhi Tourism & Transportation ... vs D.R. Mehra & Sons
1995 Latest Caselaw 883 Del

JUDGMENT

K. Ramamoorthy, J.

(1) Ia 7540/95 is for injunction directing the defendant to restore the electric, water and telephone facilities in the premises bearing No. 4-A, Khan Market, New Delhi, and restraining the defendant from dispossessing the plaintiff-corporation from the premises.

(2) In the plaint the plaintiff prays for permanent injunction restraining the defendant from dispossessing the plaintiff from the premises. The case of the plaintiff in the plaint is that the plaintiff-corporation wanted a Commercial premises for running its Indian manufacturing foreign liquor shop. "Die defendant offered a shop 4-A, Khan Market, New Delhi. There was a license agreement but in fact it is a lease agreement creating a tenancy in favor of the plaintiff. It was agreed that the plaintiff would pay a monthly rent compensation at 9.90% of the gross profit from the sale of the liquor up to 31.3.1983. The license granted according to the plaintiff was 5.5.1982 and after sometime the plaintiff (Corporation) agreed to pay 12.5% as rent with a minimum guarantee of Rs. 6000.00 per month. The plaintiff has been carrying on its business. The defendant wanted a steep increase in the rent as evidenced by letters dated 2.7.1993, 8.11.1993, 6.1.1994, 10.3.1994, 2.4.1994 and 24.5.1994. As the plaintiff did not agree to any increase the defendant disconnected the electricity to the premises on 8.10.1993. Similarly, water supply and telephone connections were also disconnected by the defendant, the tenancy was not terminated in accordance with law. The possession of the plaintiff is lawful.

(3) On 12.8.1994, a notice was sent by the plaintiff to the defendant that the plaintiff would claim damages on account of illegal disconnection of electric, water and telephone facilities. In the month of May 1995, the plaintiff requested the defendant to restore the connection and that was not done. On 12.5.1995, Mr. Rajiv Mehra, a partner of the defendant threatened the officials and employees of the plaintiff (Corporation) with dire consequences and threw away the generator set installed in the premises.

(4) The cause of action stated as follows : "THAT the cause of action arose in favor of the plaintiff against the defendant when the plaintiffs were inducted in the premises as Tenants. It further arose in favor of the plaintiff when the plaintiff disconnected the electric, water supply and telephone facility on 8.10.1993, despite the agreement. The breach of the Agreement and infraction of public law rights of the plaintiff are continuing till date as the electricity, water and telephone connections have not been restored. Therefore, the cause of action is continuing one."

(5) The defendant filed Ia No. 7930/95 under Order 39 Rule 4 Civil Procedure Code to vacate the injunction granted.

(6) The case of the defendant briefly stated as follows : The plaintiff was granted a license to sell Indian made foreign liquor from the said premises. The license continued up to 14.1.1992 when it was revoked. But the plaintiff was given time to remove the stocks within a month and the plaintiff did not do it. The defendant had pointed out as to how the plaintiff came to do business in the premises and the defendant wanted to show the legal character of the possession of the premises by the plaintiff. On 16.4.1982, a tender notice was issued in Times of India calling for offer of a shop premises for opening Indian made foreign liquor shop in various localities in Delhi. One of the localities is Khan Market, New Delhi. In the tender notice what was stated is as follows : "THE premises will be hired by the Corporation on rent compensation as percentage of gross profit from the sale of liquor from the said premises."

The persons whose premises are finally accepted shall have to execute an agreement of license with.the D.T.D.C. for agreeing to give the said premises on rent compensation as a percentage of gross profit from the sale of liquor from the said premises up to 31.3.83. The period of agreement may be extended beyond this period subject to the approval of the Excise Department". The defendant submitted its tender and it was accepted by the plaintiff on 3.5.1982. On 5.5.1982 a license agreement was entered between the plaintiff and defendant. Clauses 5 and 14 of the license agreement would clearly show the nature of payment to be made by the plaintiff to the defendant. The possession of the property always remained with the defendant and there was no lease granted to the plaintiff. Under Section 63 of the Indian Easement Act, 1892, the licensee shall be entitled to a reasonable tune and that was granted till 15.9.1992 by the defendant and the plaintiff failed to remove the materials/stocks in the premises and after the revocation of the license the plaintiff became a trespasser. About the telephone, the defendant has stated that the plaintiff did not make the payment on presentation of bills and therefore, that facility was withdrawn by the defendant. It is stated in the plaint that the telephone was disconnected on 8.10.1993 whereas the telephone facility was withdrawn in June 1994. The claim that the disconnection was in October 1993 was made to get over the plea of limitation. Regarding the disconnection of water supply the defendant states that in the letter dated 31.7.1995 to the Income Tax Officer, the plaintiff itself has stated that there was no disconnection of water supply. It is asserted by the defendant that the plaintiff has no right to be in possession of the property and is not entitled to protection. The learned Counsel for the defendant contended that the plaintiff cannot be said to be in law, in settled possession of the property.

(7) The defendant filed Annexure-A, a tender notice issued by the plaintiff. Annexure his a letter from the plaintiff dated 3.5.1982 to the defendant showing that the defendant's premises had been approved for opening of a liquor shop. Annexure-C is a statement given by the plaintiff showing the rent/compensation as a percentage of gross profit paid by the plaintiff to the defendant for the following period: Month Amount May 1982 3,988.00 June 1982 4,207.00 July 1982 4,449.00 August 1982 4,523.00 Sept. 1982 4,434.00 840 Oct. 1982 4,948.00 November 1982 5,496.00 December 1982 5,712.00 January 1983 5,005.00 February 1983 4,276.00 March 1983 5,347.00 Total = 52,385.00

In Annexure-C the payment made up to 1987 are shown. In Annexure-D a letter dated 1.6.1984 the plaintiff wrote to the defendant in the following terms : "THED.T.D.C. is running the liquor shop in your premises No. 4-B, Khan Market, New Delhi. The present license agreement with your for the possession of the shop has expired on 31.3.1984. You are requested to intimate immediately when you are agreeable to allow us to continue the liquor shop in the aforesaid premises for the year 1984-85. Your reply should reach this office within seven days from the date of receipt of this letter."

By a letter dated 22.11.1984, the plaintiff wrote to the defendant that the plaintiff had agreed to increase the commission at 10% of the gross profit with a minimum of Rs. 4000.00 per month with effect for 1.4.1984.

(8) On 13.6.1986, the plaintiff wrote to the defendant says the defendant had terminated a rent compensation of 15% with a minimum guarantee of Rs. 6000.00 per month and the Corporation would pay at 12.5% from the year 1986-87.

(9) By a letter dated 18.8.1987 the plaintiff wrote to the defendant Staling that with effect from 1.4.1987 compensation at 12.5% of gross profit subject to a minimum of Rs. 6000.00 would be paid. By a letter dated 19.9.1991 the plaintiff wrote to the defendant stating that he sales are effected very much for various reasons and the Government declared many days as dry days and therefore, whatever paid should be accepted and the defendant should cooperate with the plaintiff.

(10) By a letter dated 13.1.1992 the plaintiff wrote to the defendant declining to enhance the compensation from twelve and half percent to 15% with a minimum guarantee of Rs. 16000.00 per month and the plaintiff wanted to pay only 12.5% and requested the defendant to renew the agreement.

(11) On 14.1.1992, the defendant wrote to the plaintiff on the following terms: "WE are in receipt of your letter No. 1MFL/5503/87/DTTDC/112 dated 13th January, 1992 in reply to our letters dated 26th August, 1991,19th September, 1991,7th November, 1991 and 19th November, 1991 demanding the increase in our share of commission to 15% of the profit earned by you with a minimum guarantee of Rs. 16,000.00 per month. In your above mentioned letter you have been inconsiderate and have shown your inability to accept revision of share of our commission. Since you are not agreeable to our request and have delayed the matter from 841 August 1991 to January 1992 in communicating your decision, we are sorry to note your delay tactics, and refusal to accept our reasonable demand has compelled us to request you to remove your stocks from our premises 4-B, Khan Market, New Delhi, by the 15th February, 1992 without any further delay and settle all arrears of our account up to that date. This letter may be treated as notice for removal of your stocks. We are not interested in having any commission agreement with you any more."

(12) On 13.2.1992, in response to the notice given by the defendant, the plaintiff wrote in the following terms : "KINDLY refer to the telephonic discussions the undersigned is having with your goodself and the earlier communications sent. I have to request that the Corporation may be allowed to operate its L-2 vend till 31st March, 1992 as the license for running this L-2, vend has been obtained from the Excise Department during April 1991 up to the above said period. It is not out of place to mention both the Corporation and your good self are having association since more than 10 years as such you are requested to cooperate in this regard and oblige."

By this letter the plaintiff agreed to vacate the premises after doing business up to 31.3.1992.

(13) On 14.2.1992, the defendant wrote to the plaintiff calling upon the plaintiff to vacate the premise and remove the stocks.

(14) By a letter dated 16.3.1992, the defendant reiterated the demand and called upon the plaintiff to remove the stocks. On 24.5.1992, the defendant again called upon the plaintiff to remove the stocks and clear the dues.

(15) On 13.4.1992, the plaintiff wrote to the defendant staling that there was some electricity fault in the supply and there was no electricity supply for four days. The plaintiff requested for changing the lock. This clearly shows that there was no disconnection of electricity by the defendant. On 18.5.1992, the defendant wrote to the plaintiff that a sum of Rs. 16255.18 was due from the plaintiff and requested the plaintiff to remove the stocks and the defendant also made a claim for damages for use and occupation of the premises. The defendant also made a claim for reimbursement of Rs. 913 towards the payment made to the telephone bill.

(16) On 9.6.1992, again the defendant made a demand on the plaintiff to remove the stocks. On 21.7.1992, again the defendant wrote to the plaintiff calling upon the plaintiff to vacate and clear the stocks.

(17) Learned Senior Counsel for the plaintiff Mr. Ashwani Kumar submitted that the plaintiff is a tenant in the premises and there was a tenancy agreement between the plaintiff and the defendant and the nomenclature, the license agreement , was employed for the purpose of deciding the payment to be made every month to the defendant and this is not decisive on the question of jural relationship between the plaintiff and the defendant.

(18) Learned Senior Counsel for the plaintiff relied upon the decision reported in East India Hotel Ltd. v. Syndicate Bank, 1991 (45) Delhi Law Times 488 and contended that the plaintiff cannot be dispossessed otherwise than in due course of law. The judgment found at page 488 is by only in a Single Judge of the Supreme Court. The Bench of the Supreme Court consisted of their Lordship Justice Kashliwal and Hon'ble Mr. Justice K. Ramaswamy there was a difference of opinion between the two learned Judges of the Supreme Court and the matter was referred to a larger Bench for decision. The judgment of Hon'ble Mr. Justice K. Ramaswamy is reported in 1991 Delhi Law Times page 476. Therefore, the judgment cannot be relied upon as a precedent.

(19) Learned Counsel for the defendant relying upon the judgment of Full Bench of this Court reported in Chandu Lal, Bal Kishan, Madan MohanLal v. Mcd, 1978 Rajdhan Law Report 278 contended that the plaintiff was never in settled possession entitling any protection. It was purely a license and the license was revoked. And therefore, the plaintiff cannot seek an injunction in this Court. Learned Counsel for the defendant relied upon the decision of the House of Lords Reported in Shell-Mex and B.P. Ltd. v. Man Chester Garages Ltd., All England Reports 1971(1) 841 page 844 wherein the Court observed "BUT Counsel for the defendant says that the defendants have exclusive possession and that carries with it a tenancy, that is old law which is now gone. As I have said many times, exclusive possession in no longer decisive. We have to look at the nature of the transaction to see whether it is privilege or not."

Learned Counsel for the defendant also relied upon the decision reported in G. Carriappa v. Mrs. Leila Sinha Roy, Air 1984 Cal. 104.

(20) Having regarding to the facts and circumstances of the case, I have to accept the case of the defendant that the plaintiff was only a I licensee and the license was revoked and the plaintiff had no right to remain in possession of the premises. It is not the case of the plaintiff that the license is coupled with interest and therefore, it cannot be revoked. The arguments on behalf of the plaintiff that in such transactions the nomenclature normally employed is a license agreement but in effect and substance it is only a lease, cannot at all be accepted. For, the plaintiff called for tenders from people for locating shops and in the tender notice it was not stated that the plaintiff wanted to have lease of the premises. Therefore, the intention was only to have a license so that the plaintiff could leave the premises at any time it desired.

(21) Learned Counsel for the defendant contended that She case of the plaintiff that the defendant resorted to force to dispossess the plaintiff as stated in the plaint on 12th May 1995 is false. Learned Counsel for the defendant stated that on 05.04.1995 the defendant wrote to the plaintiff in the following terms : "THIShas reference to our personal discussion when I had called upon you last month. During the discussion you had requested me to locate, if possible, another shop in lieu of my shop No.4-B, Khan Market, New Delhi. The owner of shop No. 72 Mehar Chand Market, Lodhi Colony has agreed to give his shop to the Corporation on a license Agreement. The total area of the said shop is approx 450 sq. ft. Many people have approached him for the same. You are requested to get the shop inspected at the earliest say within a day or two and finalise the license Agreement. I am prepared for any assistance/ negotiations, if required."

Learned Counsel for defendant contended that if there was any act as alleged by the plaintiff in May 1995 the defendant would not have had any discussion in April 1995 and there was no misunderstanding in April 1995. Why I am referring to April 1995 letter at this stage after referring to 12.4.1995 inasmuch as alleged by the plaintiff, is that even in April 1995 there was no attempt on the part of the defendant to dispossess the plaintiff.

(22) On 9.6.1995, the defendant wrote to the plaintiff in the following terms : "THIShas reference to our letters dated 13.3.95, 28.3.95, 1.5.95, 5.4.95 and 24.5.95. Reply for which is still awaited. We hope you must have finalised a shop for shifting the wine shop from our premises 4-B, Khan Market, New Delhi. Without prejudice to our claim and in order to assist you, we are, yet again, giving below another address of an. owner who is willing to give his shop to D.,T.T.D.C. Please let us know the final date by which you will remove your stocks from our premises 4-B, Khan Market, New Delhi. You are also requested to clear our dues till 31st May, 1995 immediately as per our letter dated 24.5.1995".

The defendant in very cordial terms had written to the plaintiff about its cooperation in finding out another suitable premises for the plaintiff. Therefore, the story, the learned Counsel for the defendant argued, projected by the plaintiff that on 12.5.1995 the defendant sought to dispossess the plaintiff cannot, at all be countenanced. This shows as to how the plaintiff has come forward with the case as if that the defendant sought to dispossess the plaintiff. Whatever is the position, on facts the question I have to consider is whether the plaintiff has made out a prima facie strong case for the grant of injunction. The plaintiff is only a licensee and the license was revoked by the defendant.

(23) In D.H. Maniar & Ors v. Waman Laxman Kudav, it ws laid down by the Supreme Court that after the revocation of the license the person in possession becomes a trespasser and he has no semblance right to continue in occupation of the premises and such person cannot seek the protection from a Court of law, Therefore, I am not able to exercise my discretion in favor of the plaintiff and hold that the plain tiff has not made out a prima facie strong case for the issuance of injunction.

(24) Next question is the balance of convenience. The plaintiff was allowed to do business by the defendant in a property which is situated in a commercial place. The property is capable and fetching very good income to the defendant. And inspite of repeated requests by the defendant the plaintiff has not been willing to revise the rates and pay compensation as demanded by the defendant. It is quite ununderstandable as to how the plaintiff can claim any right to continue in possession of the property on the ground that it is only a lessee and it will pay whatever it suits to them. That cannot be permitted at all. The plaintiff cannot try to take undue advantage of the situation and cannot have a right to enrich itself at the cost of the defendant. Therefore, the balance of convenience in my view is in favor of the defendant. Accordingly, the petition for injunction i.e. Ia No-7540/95 is dismissed. Ia No. 7930/95 for vacating the injunction is allowed. "There shall be no order as to costs.