Delhi High Court
Two Guys (P) Ltd. vs Shri Motilal Bhatia on 7 March, 2003
Equivalent citations: 2003 IIIAD Delhi 29, 104 (2003) DLT 91, 2003 (68) DRJ 97
Author: S Mukerjee
Bench: S Mukerjee
JUDGMENT
S. Mukerjee, J.
IA No. 805/2003 & IA No. 11838/02
1. By this order I am disposing of two separate applications. The first is an application under Order 7 Rule 11 CPC filed by the defendant being IA No. 805/2003. The application is under Order 39 Rule 1-2 CPC, being IA No. 11838/2002, where the matter of confirmation or otherwise of ad-interim injunction granted ex-parte, is pending consideration.
2. The matter has been argued at considerable length. Since there are certain proceedings pending under Section 145 Cr.P.C. which have culminated in an order passed by the SDM dated 29.2.2002, which is presently under consideration by the Revision Court, I would like to confine/limit my observations appropriately, so that the same may not operate to the prejudice the either party in the other proceedings.
3. The subject matter of the proceedings is a commercial property bearing No. 18-B, Basant Lok Community Centre, Vasant Vihar, New Delhi measuring 120.52 Sq.Yds. Having three storey structure built on it.
4. The case of the plaintiff is that there are certain disputes between one of the Directors of the plaintiff company Sh. P.L. Bhatia and his brother Mr. Moti Lal Bhatia with regard to partition. It is alleged that on account of the said disputes the defendant allegedly tried to take possession of the suit premises by force on 14.1.2002, leading to proceedings under Section 145 Cr.P.C. being initiated, and the shop being sealed by the police. Presently the SHO is the Receiver of the suit premises which is lying sealed under the orders passed in those proceedings.
5. The SDM while deciding the matter on 29.2.2002 held that although the premises are owned by the plaintiff company, but all the directors are deemed to have a right in the property. This order is stated to have been stayed by the Sessions Court on 21.9.2002.
6. It is submitted that the defendant is neither a director or shareholder of the plaintiff company, and that plaintiff company apprehends that the defendant will again try to take possession, and therefore this suit has been filed.
7. On behalf of the defendant the contentions are two-fold. Firstly, the plaintiff is not in possession of the suit premises which is "custodia legis" and as such no cause of action has arisen. Therefore on this ground it is further submitted that the suit for permanent injunction, is not maintainable.
8. Defendant's contention on merits, is that the defendant is a major shareholder of the plaintiff company, and rather the plaintiff company was set up only to by-pass the bar under DDA Regulations against transfer of ownership. It is submitted that it was for the said reason of by passing the DDA restrictions, that Sh. B.P. Rao and Mr. B. Kishore who are DDA's allottess, originally took the premises in the name of the company, which was incorporated specifically for this purpose. Thereafter, defendant and his brother were inducted as shareholders and Directors, with the entire shareholding vesting in them, and only token shareholding of 1800 shares was left with Mr. B.P. Rao, while nothing at all was left with the other brother Mr. B. Kishore.
9. It is the further defense of the defendant, that Mr. P.L. Bhatia defendant's brother entered into a deal with some third parties, and pursuant thereto tried to take illegal possession. Thereafter regarding proceedings having been taken under Section 145 Cr.P.C. and all else, the version is common.
10. Learned counsel for the defendant has drawn my attention to the various returns and records filed with the office of ROC, year by year by the defendant, and highlighted the conduct of the persons acting as Directors of the plaintiff company who have filed all the records for so many years abruptly and at once only in the year 2001. It is also highlighted by learned counsel for defendant that the entire original records filed in the office of ROC, regarding this plaintiff company happen to be "missing".
11. Having given my anxious consideration to the matter, and so as not to occasion any overlapping consideration vis-a-vis the proceedings pending before the other Court, I find as on date three yardsticks for grant of ad-interim injunction, are in favor of the plaintiff and against the defendant for the following reasons :
(i) Admittedly the plaintiff is the owner of suit property. The defendant is yet to establish his status as a shareholder and director, and then to establish a case for tearing the corporate veil before any relief can be granted to the defendant;
(ii) In case either by way of Court orders in the proceedings going on before the Additional Sessions Judge or any proceedings arising there from or for that matter any independent proceedings, the defendant is able to obtain an order for either enter upon the property or using the same, then that will change the very basis of grant of injunction being directed under the present orders.
(iii) The balance of convenience and irreparable loss aspects also warrant the awaiting of the decision of the Revision Court.
12. In view of the above, I restrain the defendant from entering into the suit premises or interfering with the legitimate user of the suit premises by the company unless and until the defendant obtains an order from a competent Court holding that the defendant is entitled to either enter upon, or to avail the possession of the premises, or to enjoy or avail the user thereof.
13. The above order, has been passed by me also after considering the fact that when I put it to both parties, as who amongst them can establish actual possession of the suit premises for all these years and whether there any identifiable yardsticks such as record of day to day user, consumption of electricity etc, thereupon both parties mentioned that the premises has got no electricity connection at all. Whereas learned counsel for plaintiff submitted that they have used it as a registered office, the defendant contended that he is using the premises as a storage for his own dry fruit business.
14. Basically both parties have no evidence worth the name, at this stage, to show who was in actual possession or user, except for the matter regarding whose locks or belongings were there, which is a matter already subjudice before the Court dealing with the revision petition arising out of Section 145 Cr.P.C. proceedings.
15. In view of the above, the application being IA No. 805/2003 under Order 7 Rule 11 CPC is dismissed since simply the aspect of property being "custodia legis" will not be a ground for rejection of the plaint.
16. The application being IA No. 11838/2002 under Order XXXIX Rule 1-2 CPC is disposed of by confirming the injunction already granted with the modification that the defendant will now be restrained only from entering upon the premises or engaging any user except to the extent authorised or permitted under an order of the Court.
17. This order will continue till the disposal of the suit however subject to further variation in the event of any Court verdict of the nature referred to above, for which parties are granted leave to mention.
18. The observations made in this order only are confined to the interim aspects. No observation made herein shall operate to the benefit or prejudice of either of the two brothers viz P.L. Bhatia and Moti Lal Bhatia.
19. Both applications (IA No. 805/2003 & IA No. 11838/2002) stand disposed of but with no order as to costs.
