Gurdeep Singh Sabharwal vs Narinder Singh Sabharwal
1995 Latest Caselaw 906 Del

JUDGMENT

Anil Dev Singh, J.

(1) This appeal is directed against the order of the learned single Judge dated September 15, 1995. By that order, ex-parte order of injunction granted against the appellant on July 25, 1995 has been confirmed and the appellant has been restrained from interfering in any manner whatsoever with the partnership business of M/s.Sabharwal's at 51, Punchkuin Road, New Delhi and "from holding out to the public that the appellant is related with the business of the partnership". Briefly stated, the facts of the case are as under:-

(2) On July 2, 1995 the respondents instituted a suit (Suit No-1712/95) against the appellant for permanent injunction. The parties are related to each other. The appellant is the son of Davinder Singh. The First respondent Narinder Singh Sabharwal is the father of Davinder Singh, but the latter is alleged to have been adopted by Harbans Singh,deceased brother of the First respondent. The second and third respondents are the sons of the first respondent '.Narinder Singh, while the fourth and fifth respondents are his grandsons. The five respondents and Davinder Singh are partners of M/s.Sabharwal's and are running a furniture shop at 51, Punchkuin Road under partnership deed dated April 1, 1988. The shop was acquired by late S.Meharban Singh father of Narinder Singh and late Hfcrbans Singh by virtue of sale-deed dated August 22, 1940. It is not disputed that the business was run in the ground floor of the premises and the first floor of the property was occupied by a tenant who vacated the same in the year 1978-79. The rent was being paid to the Huf consisting of Narinder Singh and Davinder Singh. The suit was brought by the respondents against the appellant on the ground that the latter was interfering with the business though he was not a partner. In the Suit, on the application I.A.7582/95 of the respondents under Order 39 Rules 1 & 2 Cpc, an ex-parte restraint order was passed against the appellant on July 25, 1995. Faced with the ex-parte order, the appellant moved an application, I.A.7841/95, under Order 39 Rule 4 Civil Procedure Code in which he took the stand that he was running his business under the name and style of M/s. Sabharwal International Furnitures from the first floor of the premises in question. It is significant to note that in that application the appellant failed to mention the capacity in which he was occupying the first floor of 51 Punchkuin Road. Later on in the written statement, and the rejoinder in I.A.7841/95 filed by the appellant it was pleaded that he was a tenant under his father Davinder Singh. In support of his stand the appellant Filed a sale-tax registration certificate favoring M/s. Sabharwal International Furniture, which mentions the business address as 195, Jor Bagh, New Delhi and the sale office at first floor of 51, Punchkuin Road, New Delhi. This certificate is dated September 9, 1994 and is effective from September 1, 1994. The appellant also relied upon a letter of understanding dated June 7, 1993 signed by the respondents and Davinder Singh. According to the letter of understanding, Davinder Singh was to get 51, Punchkuin Road, New Delhi as the sole owner thereof. The appellant also relied on a rent receipt dated September 1, 1994 according to which a sum of RS.IOOO.00 was paid by M/s.Sabharwal International Furniture to Davinder Singh as rent from September 1, 1994 to September 30, 1994. The appellant also, filed some bills of ' Sabharwal International Furniture' in regard to the sales of furniture. These bills mention that the head office of the firm Sabharwal International Furniture is located at 195, Jor Bagh, New Delhi while sales are conducted from 51, Punchkuin Road, New Delhi. All these bills are dated February 13, 1995. He also took the stand that Davinder Singh Sabharwal who was looking after the show-room of M/s.Sabharwal's in the ground floor had been undergoing prolonged medical treatment which necessitated his admissions in the Hospitals and ever since the year 1976 the appellant was supervising and running the show-room on behalf of his father.

(3) We have heard learned counsel for the parties and we are of the view that the learned single Judge was right in passing the impugned order confirming .the ex-parte order of injunction against the appellant. As already noticed, the plea that the appellant was the tenant of the first floor of 51, Punchkuin Road, New Delhi was for the first time taken in the written statement and the aforesaid rejoinder, which were filed on August 22, 1995. It is significant to note that on July 31, 1995 the appellant had filed an application under Order 39 Rule 4 (I.A.No-7841/95) but the plea that he was a tenant of the first floor was not taken. Prima facie, therefore, the plea appears to be an after thought. The support which the appellant wants to derive from the aforesaid bills dated February 13, 1995 which are on the letter head of Sabharwal International Furniture and which mention the 'Head Office and Sales Office at 195 Jor Bagh, New Delhi and 51, Punchkuin Road respectively is not available as they do not show that the appellant was a tenant of 51, Punchkuin Road. They also do not show that in fact sales have been effected from Punchkuin Road. The deposit of money in respect of these bills in the bank also does not advance the case of the appellant. Reliance was also placed by the learned counsel for the appellant on the letter of the Sales-Tax Officer bearing No.S.T.O/W- 98/232/ dated August 16, 1995 which permitted change of name of the business run by the appellant. Previously the appellant was running the business under the name and style of International Furniture and by virtue of this letter it appears that the amendment of the name from International Furniture to M/s.Sabharwal internal- ional Furniture was allowed on September 9, 1994. The relevant portion of the letter reads as under:- "Amendment application is not traceable in this office. However amendment has already been done on 9.9.94 in your presence."

(4) We fail to see how this letter helps the appellant to show that he is a tenant of the first floor of 51, Punchkuin Road.

(5) Learned counsel for the appellant submitted that the sales-tax department was apprised of the fact that the appellant had an additional show-room at first floor of 51, Punchkuin Road, New Delhi while seeking change of name. In this regard, he has invited our attention to a copy of the application dated August 9, 1995 filed by the appellant before the sales tax department. This letter also does not advance the stand of the appellant that he was a tenant in the' premises as it does not show the capacity in which he was using the premises at 51, Punchkuin Road, New Delhi. Similarly, for the same reason, neither the bills dated February 13, 1995 nor the sales tax registration certificate dated September 9,1994 help the case of the appellant. Though these documents as also the rent receipt dated September 1,1994 are anterior to the filing of the application, I.A. 7841/95, under Order 39 rule 4 Cpc, the appellant did not take the pica that he was a tenant of the first floor of 51,Punchkuin Road. Learned counsel for the respondents pointed out that his clients had taken out in a notice in Hindustan Times in which it was declared that the appellant was neither a partner nor an employee of M/s.Sabharwal's functioning at 51, Punchkuin Road and in reply a public notice was issued in Hindustan Times of March 14, 1995 by the father of the appellant wherein it was staled that the appellant regulates "Sabharwal Furnitures" as his authorised representative during his absence from shop at 51, Punchkuin Road, New Delhi. He submitted that in case there was any truth in the stand of the appellant that he was a tenant in the premises, the public notice issued by his father would have mentioned that fact. The learned single Judge has also noticed that the public notice issued by Davinder Singh, father of the appellant on March 14, 1995 does not refer to the appellant as the tenant of the premises. Learned single Judge has also taken note of the balance sheets, profit & loss account of S.Narinder Singh & Sons Huf New Delhi for the year ending March 31, 1978 which show Ganpat Rai, who was a tenant, was paying rent @ Rs.25.00 per month for the first floor of 51, Panchkuian Road. In that year total rent of Rs.300.00 is shown as income received from the tenant. Learned single Judge noted that the appellant accepted the position that Ganpat Rai was the tenant of the first floor till 1978. He also took note of the fact that M/s.Sabharwal's were paying a rent @ Rs.200.00 per month to Huf of S.Narinder Singh & Sons.

(6) Learned counsel for the appellant submitted that according to the letter of understanding between Davinder Singh, the father of the appellant and the respondents, 51-Punchkuin Road falls to the share of the former. On the other hand, it is pointed out by the learned counsel for the respondents that the letter of understanding has not been acted upon by the partics. He also submitted that while the respondents are ready to act on the letter of understanding, the appellant's father had reservations about it and therefore, the arrangement could not be carried into effect. He also submitted that even today the respondents are ready to abide by the terms of the letter of understanding. On the other hand, learned counsel for the appellant submitted that Davinder Singh was the adopted son of late Harbans Singh s/o Meharban Singh and 195 Jor Bagh belonged to Harbans Singh and his wife Smt.Kesar Kaur, both deceased. Therefore, he would naturally inherit that property left by the adoptive parents. According to the letter of understanding, the respondents will relinquish their share in the aforesaid property and in so far as other properties, namely, 1, Sunder Nagar and 196 Jor Bagh are concerned, it is stated that the appellant's father, Davinder Singh will relinquish his share in them. It is also staled therein that the appellant's father would not claim any share in 35, Punchkuin Road and rented premises at 21, 69 and 71 Punchkuin Road, which will go to respondents. It appears that the appellant feels that the terms of the letter of understanding were unreasonable. While the appellant's father will get 195 Jor Bagh, New Delhi which already belonged to him, no share is given to him either in I, Sunder Nagar or in 196 Jor Bagh and as against 51, Punchkuin Road, the respondents will have four shops under the letter of understanding. At this stage, we are not concerned with the reasonableness or otherwise of the terms of the letter of understanding. It may be that the father of the appellant is not getting as much share in the properties as the respondents under the letter of understanding but that may not be a ground to uphold the plea of tenancy advanced by the appellant in regard to the first floor of 51, Punchkuin Road.

(7) Having regard to the facts and circumstances, the learned single Judge was of the prima facie opinion that the appellant was not in occupation of the First floor as a tenant. We are in entire agreement with the learned single Judge.

(8) For the foregoing reasons, the appeal fails and the same is dismissed.