M/S. Connoisseur Catering ... vs Sports Authority Of India
2000 Latest Caselaw 941 Del

ORDER

Mukul Mudgal, J.

1. This is an appeal by the original plaintiff against the order of the learned Single Judge dated 11th August, 2000, vacating the ex parted interim order of injunction dated 23rd March, 1999 by which the respondent, the original defendant was restrained from interfering in running of the restaurant by the plaintiff/appellant under the aegis of the respondent in awahar Lal Nehru Stadium, New Delhi and from forcibly dispossessing the plaintiff and undertaking any demolition proceedings.

2. In the suit filed by the plaintiff/appellant it was averred as follows:

Pursuant to the Notice published by the respondent, the appellant's offer of Rs. 62,500/- per month for running the open-air Cafeteria at Jawahar Lal Nehru Stadium was accepted by the letter dated 29th September, 1996 sent by the respondent. That as per the notice inviting tenders' (NIT) Contract was to be awarded upto 31st March, 1999 but an assurance was given in the Meeting by the functionaries of the respondent that the successful bidder would be entitled for renewal of the contract subject to 20% per cent increase in rent. This averment is based on a reliance on Clause-43 of the draft Deed of License which was signed by the appellant but not by the respondent. The appellant came into possession by virtue of a Letter dated 22nd October, 1996, issued by the respondent and thereafter found that the premises required an expenditure of about Rs.18 to 20 lacs for levelling the ground and other beautification of the area for running the Cafeteria and the Banquet which took a period of about 6 months. It is further stated that initially 14 months out of the 29 months of the contract was lost as electricity was provided to the premises by the respondent only in the month of December 1997. That due to a dispute about the excess area occupied by the appellant the rent was unilaterally enhanced by the respondent from Rs. 62,500/- to Rs. 1,28,100/- and the appellant was forced to pay the enhanced rent of Rs. 1,28,100/- with effect from 1.7.1998. The demand of arrears at Rs. 1,28,100/- per month by the respondent with retrospective effect from October, 1996 was disputed. The disputes between the appellant and the respondent were referred to a Committee appointed by the Director General (SAI) omprising of Lt. Col. B.S. Ahluwalia, Executive Director (SA), Shri K.N. Sharma, Administrator (JNS), Shri V.V.S.N. Rao, Deputy Director (SA) and Shri Ramesh, DDO. on 2.2.99 the Members of the said Committee met with representatives of the appellant and in the Meeting it was decided that the lease agreement would be extended for a further period of three years without any renewal clause upon the appellant agreeing to pay rent enhanced by 20% per cent. On the next day, on 3.2.1999, it was agreed that the enhanced rent would be payable with effect from March 1997 and not from 1st of October, 1996. Certain other conditions were also agreed in the meetings dated 2.2.1999 and 3.2.1999, and by its letter dated 8.2.1999 the appellant sent its acceptance to the terms agreed in the Meetings held on 2.2.1999 and 3.2.1999. On 8.3.1999, the Executive Director of the Sports Authority of India sent a letter of termination of the appellant's running of the open-air Cafetaria with effect from 31.3.1999 and sought the vacation of the premises. The appellant had paid an increased rent of 20% per cent at Rs.1,53,720/- per month from 1st of April, 1999, and thus the Agreement arrived on the 2nd and 3rd February, 1999 was acted upon and the respondent was not entitled to back out from the said agreement by seeking to dispossess the appellant from the suit premises. That owing to the said Agreement about renewal of the lease for a further period of 3 years the appellant had taken bookings for marriages for various parties from ifferent persons from September, 2000 to May, 2001 and advance amounts had been accepted from the parties due to the commitments so under taken and heavy damages would be liable to be paid by the appellant if such bookings were not honoured.

3. Consequently suit No. 642/99 was filed in this Court with inter-alia the following prayers:-

(a) a decree for specific performance of the Agreement dated 3rd February, 1999 and consequent renewal of the lease for a period of three years from 1.4.1999 to 31.3.2002;

(b) staying of the tender notice calling for tenders in respect of premises in question and awarding of tender to any third party.

4. The said suit came up for 1st hearing on 23rd March, 1999 when the learned Single Judge granted the following ex-parte interim injunction:-

"Meanwhile, the defendant, their servants and agents are hereby restrained from interfering in the running of the restaurant being run by the plaintiff under the name and style of "Pavilion" situated opposite Gate No. 30-31, Jawaharlal Nehru Stadium, New Delhi and from forcibly dispossessing the plaintiff and taking any demolition proceedings in regard to the same. They are further restrained from disconnecting electricity and water connections of the plaintiff.

The defendants are also restrained from acting upon the tender notice dated the 15th March, 1999."

5. The respondent moved an application, IA. 3640/99 under Order 39, Rule 4 CPC for vacating the interim order granted on 23rd March, 1999.

6. By the impugned Order dated 11th August, 2000 learned Single Judge dismissed the two applications of the appellant under Order XXXIX, Rule 1 & 2 CPC, i.e. IAs.3226 & 3227/99 for interim injunction and allowed the respondent's application, i.e., IA.3640/99 under Order 39 Rule 4 CPC for vacation of the interim injunction granted on 23.3.99. Learned Single Judge held that the plaintiffs' letter dated 8th February, 1998 was at the most in nature of an offer which was to be accepted by the Competent Authority on behalf of the defendant, which it did not accept, therefore, no concluded contract can be said to have come into existence between the parties. Reliance placed on behalf of the plaintiff on the decision in Punjab Communications Ltd. Vs. Union of India & Ors, 1999 IV AD (SC) 491 was held to be misconceived due to vagueness of the averments on the alleged plea of doctrine of legitimate expectation. On appreciation of the material on record learned Single Judge held that plaintiff had failed to make out any prima facie case for grant of interim injunction on any ground whatsoever. Considering the plea of learned counsel for the defendant that the plaintiff had not paid the arrears of licence fee for the additional area in its occupation from March 1997 to 30th June, 1998 amounting to Rs. 10,49,600=00 it was observed that the injunction being discretionary relief, it cannot be extended in favour of a person who is in arrears of such a huge licence fee and while dismissing the applications for interim injunction, filed by the appellant, the learned Single Judge passed the following operative order:-

"For the foregoing discussion, IAs. No. 3226 & 3227/99 are dis-

missed while IA No. 3640/99 is allowed. Order dated 23rd March, 1999 is hereby vacated. Plaintiff-company, is however, allowed 15 days time to hand over possession of the site after demolishing the structures raised thereon, to the Defendant-authority."

7. The appellant has challenged the aforesaid order of the learned Single Judge in this appeal before us.

8. While initially Mr. G.L. Sanghi, the learned Senior Counsel for the appellant challenged the order of the learned Single Judge on merits by submitting that the Agreement for renewal of the lease had come into being and the appellant had acted upon the Minutes of Meeting dated 3rd February, 1999 and consequently was entitled to renewal of the lease for three years. It did not find favour with us on having been taken through the impugned order and the other material on record and in view of the ratio of the decision in Wander Ltd. Vs. Antiox India (P) Ltd. 1990 Supp. SCC 727 since it was not shown that discretion had been exercised by the learned Single Judge arbitrarily or capriciously or perversely or by not taking into consideration the well settled principles of law relating to grant or refusal of interlocutory injunction. Later on Mr. Sanghi confined his arguments to the operative portion of the impugned Order dated 11th August, 2000.

9. The learned counsel for the appellant has submittd that while the learned Single Judge may not have agreed on merits with the plea of the learned counsel for the appellant/plaintiff, he could at best have dismissed the application for interim injunction and he ought not to have further directed in a suit filed by the appellant, the handing over of the possession of the site to the defendant/respondent, as possession has to be sought by the respondent only by resort to Public Premises (Eviction of Unauthorised Occupants) Act, 1971. In support of this plea, he has relied upon judgments of the Hon'ble Supreme Court reported in Samir Sobhan Sanyal Vs. Tracks Trade Private Ltd. & Ors., and Anamallai Club Vs. Government of T.N. & Ors., .

10. He has relied upon the decision in Anamallai Club (Supra) to contend that law makes a distinction between persons in juridical possession and rank trespassers and does not permit any person to take law into his own hands and to dispossess a person in actual possession without recourse to the procedure established by law. He accordingly submitted that as his client had continued in possession and the possession as of today of his client was juridical, the only remedy for the respondent would be to initiate proceedings under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 and the order of the learned Single Judge to the extent it directed the appellant to hand over possession of the site after a period of 15 days is unsustainable and ought to be set aside by this Court. He has also relied upon the judgment of the Hon'ble Supreme Court in Samir Sobhan Sanyal (Supra) to contend that the person in possession of the property cannot be dispossessed without due process of law. In the aforesaid judgment, the Court held, that a person in possession of a property cannot be unlawfully dispossessed until an application under Order 21, Rules 98 and 99 C.P.C. filed by him was adjudicated upon and an order made. The learned counsel states that in the foresaid judgment the Hon'ble Supreme Court even directed the unlawfully dispossessed person to be put back in possession and accordingly the present case wherein his client continues in possession is much stronger.

11. The learned Senior Counsel for the respondent, Mr. Rajiv Nayyar, submitted that the prayer in the plaint was only for specific performance and stay of tender notice and appellant has enjoyed a tenure of 17 months more after the term in its favour ended on 31.3.99, which is almost half of the period of extension of the three year sought by it by the present suit and the plea of appellant, if accepted would mean a further period of time would be expended to secure an order of eviction under Public Premises (Eviction of Unauthorised Occupants) Act, 1971. He submits that the appellant having enjoyed the discretionary relief of ex-parte ad-interim injunction for such a long time of seventeen months, cannot now contend that proceedings must begin de novo under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971. He has further pointed out that the learned Single Judge found that arrears of Rs.10,49,600/- has not been paid by the appellant/plaintiff and the appellant therefore was not entitled to any further or other discretionary relief.

12. In so far as the reliance upon the aforesaid judgments in Anamalli Club (Supra) & Samir Sobhan (Supra) by the appellant is concerned, the propositions advanced by the learned counsel for the appellant based upon the said judgments are unexceptionable and there is no doubt that a person in juridical possession cannot be dispossessed unilaterally without recourse to law. However, in our view, the aforesaid judgments would not apply to the facts of the present case because the appellant filed a suit, seeking a decree for specific performance and quashing of tender notice for fresh tenderers for running the Cafetaria in question. The licence origi- granted to the appellant came to an end by efflux of time on 31st of March, 1999. In the interim application for injunction, learned Single Judge of this Court on 23rd March, 1999 granted an ex parte- ad-interim order of injunction which order continued to remain in force till 11.8.2000 when it was vacated by the learned Single Judge by the impugned order. Thus the appellant has already enjoyed the benefit of more than seventeen months out of 36 months claimed by it in the suit as a result of the alleged agreements dated 2.2.99 & 3.2.99 relied upon by the appellant.

13. The petitioner's case of renewal of lease by virtue of the Agreement dated 2 and 3rd February, 1999 has rightly not been prima facie found sustainable by the learned Single Judge. Despite that the appellant has continued in possession after the end of the period of the lease on 31.3.99 by virtue of the ex partead interim orders granted by the learned Single Judge, therefore, the reliance by the appellant on the Hon'ble Supreme Court's judgment is not justified. Learned Single Judge in the exercise of its discretionary jurisdiction was thus perfectly justified in directing the appellant to hand over the site after a period of 15 days. Significantly in the judgment of Annamali Club(Supra) relied upon by the learned counsel for the appellant, the Supreme Court has in Paragraph No.10 observed:-

"There is no need for the State to file a suit for eviction. But notice in compliance of principles of natural justice should have been given giving reasonable time of 10 or 15 days to vacate the premises and to deliver vacant and peaceful possession; thereafter, the Government would be free to resume possession."

14. The learned Single Judge having thus granted 15 days time to vacate the site cannot be said to have acted beyond his jurisdiction but this exercise of discretion would be perfectly is in accordance with the afore said observations of Supreme Court.

15. Accordingly, the appeal which has no force is dismissed.