M/S Alankar Slimming & Cosmetic ... vs Shri Sameer Bhatia
2009 Latest Caselaw 5040 Del

 *                      IN THE HIGH COURT OF DELHI AT NEW DELHI

+                           I.A. No.10232 of 2009 in C.S. (OS) No.622 of 2009

%
         M/S. ALANKAR SLIMMING & CONSMETIC CLINIC
         PRIVATE LIMITED                                       ......Plaintiff
                             Through: Mr. Hrishikesh Baruah and Mr. Balvir S.
                                      Dosanjh, Advocates.

                                              Versus

         SHRI SAMEER BHATIA                                              ......Defendant
                                         Through: Mr. Anil Kumar Gupta & Mr. Piyush
                                                  Gupta, Advocates.

                                                         Date of Reserve: 10th November, 2009
                                                            Date of Order: 7th December, 2009

         JUSTICE SHIV NARAYAN DHINGRA

1.       Whether reporters of local papers may be allowed to see the judgment?

2.       To be referred to the reporter or not?

3.       Whether judgment should be reported in Digest?

                                           ORDER

1. This application has been made the plaintiff under Order VI Rule 17 read with

Order I Rule 10 and Section 151 CPC seeking leave to amend the plaint.

2. It is submitted by the plaintiff that at the time of filing of the suit, the plaintiff was

not aware that the defendant was not a tenant in the suit property No.1, Shankar Vihar,

Vikas Marg, New Delhi-110092 but was the owner of the premises. However, the

plaintiff later on made inquiries about the ownership of the premises and learnt that the

premises was owned by the defendant's nears and dears. The ground floor of the

premises was owned by Mrs. Manisha Bhatia, wife of Mr. Sachin Bhatia and Mrs. Renu

Bhatia, wife of Mr. R.K. Bhatia. The first floor was owned by Mr. Satish Bhatia,

defendant himself, who holds Power of Attorney from the previous owner although the

Agreement to Sell was in favour of Mr. Aman Bhatia, son of Mr. D.L. Bhatia and

Mrs. Sunita Bhatia, wife of Mr. Satish Bhatia. The basement was owned by Mrs. Anila

Bhatia, wife of Mr. Naresh Bhatia (brother of the defendant) and second floor was owned

by Mrs. Anita Bhatia and wife of Mr. Bharat Bhushan Bhatia.

3. The plaintiff had entered into a Franchisee Agreement with the defendant,

Mr. Satish Bhatia for running a slimming and beauty centre. The Franchisee Agreement

in detail gives the rights of the parties. The Franchisee Agreement does not relate to the

premises except that the franchisee was to be run in the premises in question. The

Franchisee Agreement, in fact, relates to business of slimming and beauty using special

technique allegedly developed by the plaintiff. The Franchisee Agreement in detail

provided the grounds on which it could be terminated by the plaintiff and it also provided

the effect of termination. One of the effects of termination or expiration was that the

defendant could not run the same business in the same premises or anywhere within five

kilometers. It cannot make a difference whether the premises was under the tenancy of

the defendant or it was under ownership of the defendant. The defendant while entering

the Franchisee Agreement had given an impression that the premises was under his

tenancy, but it is well known that the tenancy can be created even by a relative in favour

of another relative. The plaintiff by way of this amendment wants to make all the

relatives of the defendant as parties to the suit only because they were either having

Agreement to Sell in respect of the premises or they were owners of the premises or they

have right in the premises, despite the fact that none of these relatives are privity to the

contract between plaintiff and defendant.

4. The plaintiff in the plaint has made prayers against the defendant, his successors

and representatives from opening and running a beauty salon in 1, Shankar Vihar, Vikas

Marg, New Delhi-110092 and has sought a declaration that termination of agreement by

the defendant was unlawful. He has also sought a decree for return of equipment,

machinery, furniture, etc., and for return of Confidential Operating Standard Manuals.

He has sought a decree for mandatory injunction directing the defendant to make changes

in the premises so that the same cannot be used for the purpose of slimming and beauty

clinic as it was only used under Franchisee Agreement. There is no relief sought by the

plaintiff in respect of the title, tenancy or ownership of the premises neither these issues

are relevant for the purpose of deciding the effect of termination of the Franchisee

Agreement between the plaintiff and the defendant.

5. I consider that the subject matter of the suit does not call for introduction of all the

persons related to the premises in the suit as defendants. The plaintiff did not have any

agreement with any of these persons and merely because each one of them has some

interest in the premises would not make them a party to the Franchisee Agreement nor

they are necessary party for adjudicating the dispute between the plaintiff and the

defendant. The amendment sought by the plaintiff to incorporate paragraphs regarding

ownership of the premises and to make all owners as defendants are totally unnecessary

and uncalled for.

6. I find no force in the application under Order VI Rule 17 CPC. The application

is hereby dismissed.

C.S. (OS) No.622 of 2009 & I.A. Nos.4382/2009, 10231/2009

List on 17th February, 2010.

SHIV NARAYAN DHINGRA J.

DECEMBER 07, 2009 'AA'