M/S. Saraswati Real Estate ... vs Yogi Pharmacy Ltd. & Anr.
2001 Latest Caselaw 378 Del

ORDER

A.K.Sikri, J.

1. Plaintiffs have filed the instant suit for permanent and mandatory injunction. The facts as disclosed in the plaint and supported by evidence by way of affidavit, run as follows. The plaintiff no. 1 company had advanced a sum of Rs. 25 lacs to defendant no. 1 by way of loan. This loan was to be repaid by the defendant no. 1 by 30th March, 1996 with interest. The defendant no. 1 issued various post dated cheques. However vide letters dated 27th March, 1996(Ex. P-1) and 19th March, 1996 (Ex. P-2) the defendant no. 1 requested plaintiff no. 1 not to present these cheques. Certain other cheques given by the defendant no. 1 when presented for payment were returned back due to insufficient funds. The plaintiff no. 1 has filed proceedings under Sections 138 and 142 of the Negotiable Instruments Act against the defendant no. 1 in respect of these cheques. These proceedings are pending before the Additional Chief Metropolitan Magistrate, New Delhi. The defendant no. 1 has not paid the amount in question with interest till date. Several reminders were issued to the defendants including letters dated 24th February, 1996 (Ex. P-3), 10th April, 1996 (Ex. P-4) and 20th May, 1996 (Ex.P-5). As the defendants could not repay the amount, a Memorandum of Understanding dated 21st December, 1996 was entered into between plaintiff no. 1 and defendant no. 1. As per this defendants delivered possession first floor of the premises bearing No. E-300, Greater Kailash-II, New Delhi to plaintiff No. 1 company. The said Memorandum of Understanding (Ex. P-6) further permitted the plaintiff no. 1 to sell the said property and recover the amount of principal due from the defendants with interest. A Power of Attorney dated 21st December, 1996 (Ex. P-7) was also executed by Dr. Avinash Magan, M.D. of the defendant no. 1 company and who is arrayed as defendant no. 2. The plaintiff no. 1 company appointed a guard to take care of the said property. However, the defendant no. 2. The plaintiff no. 1 company appointed a guard to take care of the said property. However, the defendants and their agents tried to forcibly take over possession of the suit property. Complaints dated 18th March, 1997 (Ex. P-8), 15th May, 1997 (Ex. P-9) and 25th September, 1997 (Ex. P-10) were filed with the Police Station, Greater Kailash to safeguard the property. Specifically on 25th September, 1997 the plaintiff no.1 received a notice dated 16th September, 1997 (Ex. P-11) stating therein that the Power of Attorney (Ex. 7) exhibited by the defendant no. 2 had been revoked. The plaintiff no. 1 was asked to return the original Power of Attorney. The revoked Power of Attorney is exhibited as P-12. The defendant no. 2 also threatened to dispose of the property. In these circumstances, the plaintiffs filed the suit with the following prayers:

a) issue a decree of mandatory injunction restraining the defendants, their servants, heirs, agents and assigns from dealing with property bearing No. E-300 (first floor), Greater Kailash-II, New Delhi in any matter;

b) issue a decree or mandatory injunction restraining the defendants, their servants, heirs, agents and assigns from dispossessing the plaintiffs from property No.E-300 (first floor, G.K.-II, New Delhi;

c) declare that the revocation of the Power of Attorney invalid.

2. Along with the suit, plaintiffs also filed IA No. 9634/97 under Order XXXIX Rules 1 and 2 of Code of Civil Procedure seeking ad interim injunction. While issuing summons in the suit on 1st October, 1997 in the said IA, ex-parte interim order was passed restraining the defendants from forcibly dispossessing the plaintiffs from first floor, E-300, Greater Kailash-II, New Delhi. Only defendant no. 1 could be served in the first instance who appeared through his counsel. Various opportunities were availed to file the written statement but written statement but written statement was not files. Last opportunity was given to defendant no. 1 to file the written statement subject to payment of Rs. 500/- as cost. However, no written statement was filed. On the contrary, the defendant no. 1 and his counsel stopped appearing thereafter and by order dated 1st September, 1999 the defendant no. 1 was proceeded ex-parte. The defendant no. 2 was served by publication in 'Statement' and 'Navbharat' as well as by affixation at his last address for 10th February, 2000. Inspite of this service of defendant no. 2 nobody appeared on behalf of the defendant no. 2 either and by order dated 10th May, 2000 the defendant no. 2 was also proceeded ex-parte.

3. The plaintiffs have led evidence by way of affidavit of Mr. Vishal Gulati, Director of plaintiff no.1 company. He has affirmed the averment made in the plaint on oath and filed the original documents which are exhibited as noticed above. There is no rebuttal to these facts. A reading of the Memorandum of Understanding would reveal that defendants acknowledge the liability of Rs. 25 lacs as on 30th March, 1996 with overdue interest and it was towards repayment of the said amount that defendant no. 1 had delivered the possession of first floor, E-300, Greater Kailash-II, New Delhi with permission to the plaintiffs to sell the said property and recover the overdue amount as of principal and interest. Simultaneously the Power of Attorney of even dated was executed appointing/nominating and constituting Mr. Vishal Gulati, Director of Plaintiff no. 1 company as Attorney in respect of first floor, E-300, Greater Kailash-II, New Delhi with 35 percent proportionate rights in the freehold land underneath admeasuring 250 sq. yards with common passages, common areas, common facilities. This Power of Attorney was widely worded giving all possible Powers to Mr. Vishal Gulati to deal with the said property including power to manage the property as well as sell the property. It is thus clear that this Power of Attorney was in the nature of irrevocable Power of Attorney coupled with interest. The main purpose behind executing the Power of Attorney was to empower the plaintiffs to sell the property and realise the outstanding amount. In view thereof it is not permissible for the defendants to revoke this Power of Attorney.

4. The suit is accordingly decreed. It is declared that the revocation of the Power of Attorney dated 21st December, 1996 is invalid. Mr. Vishal Gulati, shall be entitled to continue to act in terms of the Power of Attorney dated 21st December, 1996. Decree of permanent injunction is also passed restraining the defendants, their servants, agents etc. from either dispossessing the plaintiffs from property no. E-300 (first floor), Greater Kailash-II, New Delhior dealing with this property. The plaintiffs shall also be entitled to cost. Decree sheet be prepared accordingly.

5. Suit stands disposed of.