M/S. Karam Chand Thapar & Bros. ... vs Ganesh Prasad Seth & Ors.
2009 Latest Caselaw 3113 Del

.*          HIGH COURT OF DELHI : NEW DELHI

+           I.A. No.10303 /2007 in C.S. [OS] No.1373 /1991

                                  Reserved on: 9th April, 2009

%                                 Decided on:       11th August, 2009

M/s. Karam Chand Thapar & Bros. (CS) Ltd.         ...Plaintiff
                   Through : Mr. Jayant Bhushan, Sr. Adv. with
                             Mr. Ravi Sikri and Mr. M.K. Shah,
                             Advs.

                       Versus

Ganesh Prasad Seth & Ors.                          ....Defendants
                    Through : Mr. D.S. Narula, Adv. with Ms. Vandana M.
                              Bebarta and Mr. Angad S. Narula, Advs.

Coram:

HON'BLE MR. JUSTICE MANMOHAN SINGH

1. Whether the Reporters of local papers may
   be allowed to see the judgment?                                  No

2. To be referred to Reporter or not?                               No

3. Whether the judgment should be reported                          No
   in the Digest?

MANMOHAN SINGH, J.

1. This order shall dispose of the application being IA

No.10303/2007filed by the plaintiff under Section 151 CPC for

removal of the Administrator and for appointment of new Administrator

in his place.

2. The plaintiff filed the present suit against the defendants for

specific performance of agreement of sale of the suit premises known as

„Rishimookh‟, 85-A, Panchkuiyan Road, New Delhi vide agreement

dated 27th July 1987 and 11th January, 1988, and for possession and

damages.

3. Summons were issued in the present suit on 30 th April, 1991

for 7th August, 1991. Mr. R.D. Verma, (Retd.) Deputy Registrar of this

Court was appointed as Administrator by this court vide order dated 30 th

March, 1993 for the maintenance of lift and common areas in the suit

property.

4. In the application, the plaintiff stated that the plaintiff is in

possession and occupation of more than 80% of the suit property and

only a small portion is with the defendant at the ground floor and at the

basement. It is averred in the plaint that the generating set provided in

the building is of 44 kv which caters to only the common areas such as

stair case, lift and basement. There is no electricity supply to the portion

of the plaintiff in the building which is more than 80% of the total area.

The plaintiff, therefore, wants to install a new generating set in the

building. However, the defendant No.1 objected to installation of a

new generating set by the plaintiff. The plaintiff therefore filed an

application being IA No.12881/2006 for direction to the defendants not

to obstruct the plaintiff in installation of the generating set. This court

vide order dated 16th January, 2007 passed the following order :

"In view of the above disputes and submissions on behalf of the parties, without prejudice to the respective rights and contentions, the plaintiff is given liberty to approach Mr. R.D. Verma, Joint Registrar, Retd. for installation of the generator who shall ensure that the generator, if any, which is to be installed by the plaintiff, is installed within the area which is the subject matter of the agreements dated 26th July, 1988 and 11th January, 1989 and complies with the parameters statutorily set for the purpose including those dealing with air and noise pollution."

5. It is alleged in the present application that the plaintiff has

not been able to install the generating set since the Administrator is

biased towards the plaintiff. The following acts and omissions on the

part of the Administrator has been alleged by the plaintiff :

i. There is a jet pump installed at the scheduled premises

which was repaired for Rs.12000/-, however, the

Administrator got it checked by some mechanic who

quoted Rs.30000/-. Thus the Administrator acted

without due care and caution.

ii. The Administrator has appointed the security guard as

well as a part time clerk without even taking consent of

the plaintiff.

iii. The Administrator unauthorizedly allowed families of

two electricians to reside in the premises with ulterior

motive.

iv. Despite the objections raised by the plaintiff, the

Administrator insisted and appointed Mr. Prem Narain

as security guard who is the brother of one of the two

electricians.

v. Families of the electricians are allowed by the

Administrator to misuse the common area and facilities

such as lift, toilet etc.

vi. No action has been taken with regard to written

complaint from the plaintiff about parking of trucks by

the defendant No.1 in the parking area.

vii. No proper maintenance is being done about toilet in the

ground floor.

viii. The Administrator is taking no action against defendant

No.1 for illegally taking electric supply in his area from

the gen-set.

6. It is further urged that despite various requests and reminders

both in writing and verbal from the plaintiff, the Administrator has not

taken any effective steps to set right deficiencies pointed out by him.

The inaction on the part of the Administrator for proper

maintenance/services is causing tremendous inconvenience in day to

day operation of the business. It is further urged that the

Administrator is working against the interest of the plaintiff, taking

unilateral decisions and is exceeding the authority granted to him by

this Court vide order dated 30th March, 1993. The plaintiff, thus, prayed

for appointment of a new Administrator in place of the appointed

Administrator.

7. The defendant No.1 objected to the appointment of new

Administrator contending that the plaintiff had given to the

Administrator a forged letter purported to have been issued by the

NDMC granting permission to the plaintiff to install a generator set in

the suit property. An FIR under Section 420/468/471 IPC has also been

lodged by the NDMC with the Mandir Marg Police Station against the

plaintiff and the said case is under investigation.

8. The defendant admitted that he gave a no objection to the

installation of generator set by the plaintiff as recorded in the order

dated 16th January, 2007.

9. It is submitted that regular meetings are called by the

Administrator with the nominee of the plaintiff and defendant No.2

wherein the issues with respect to the maintenance, security, upkeep etc.

of the building and its facilities are discussed and decided. Minutes of

the meetings/decisions are recorded in writing and are duly signed by

the Administrator and the nominee of the plaintiff. Therefore, the

contention of the plaintiff that the Administrator had been taking

unilateral decisions is factually incorrect. The defendant denied the

biasness on the part of the Administrator against the plaintiff or that

the Administrator has ever exceeded his jurisdiction and/or created

hurdles for the plaintiff.

10. In the rejoinder, the plaintiffs alleged that the defendant has

put pressure upon the NDMC officials and the executive engineer, Mr.

V. K. Pandey who granted the permission and even requested Mr.

Sanjeev Mishra, the Assistant Manager of the plaintiff company to

withdraw the permission letter. When the plaintiff refused to give back

the permission letter, the false story of forgery has been made in the FIR

by the NDMC and defendant. It is stated that the plaintiff applied for

installation of the generating set by due procedures.

11. I have heard the learned counsel for the parties and it appears

from the pleadings of IA No.10303/2007 as well as the submissions of

the learned counsel for the plaintiff that the plaintiff has made

allegations against the Administrator and on the other hand the

defendant has completely denied the allegations made by the plaintiff

against the Administrator. There are two totally different versions

against each other by the parties, hence, in the absence of evidence of

the parties in respect of the allegations made against the Administrator,

it is not possible to assess on the basis of the pleadings, who is wrong

and which party is making correct statement.

12. Considering the overall circumstances of the matter that the

present suit was filed in 1991, the issues were framed on 25th January,

1994 and the plaintiff has already completed its evidence and at this

stage cross examination of DW-2 is to be conducted. Under these

circumstances, it appears that the suit is almost at the final stage and,

therefore, it will be appropriate that at this stage without going to the

merits of the application made by the plaintiff for removal of

Administrator, the suit proceedings are expedited, which is almost at

the final stage.

13. It is, therefore, directed that the matter be listed before the

Joint Registrar on 17th August, 2009 with the direction to complete the

evidence of the defendant within a period of four months and thereafter

the matter shall be listed before the Court for final hearing on 21 st

December, 2009.

14. As regards the Administrator is concerned, the present

Administrator shall continue his work till 31 st December, 2009 and in

case the matter is not finally disposed of by that time, the plaintiff shall

be at liberty to file fresh application for appointment of a new

Administrator.

With these directions, the application stands disposed of.

MANMOHAN SINGH, J AUGUST 11, 2009 SD