Delhi High Court
Sanjay Kapoor vs M/S Kiryana Committee Delhi ... on 2 September, 2009
Author: V.B.Gupta
HIGH COURT OF DELHI : NEW DELHI
FAO No.24/2009 & CM No. 1671/2009
% Judgment reserved on: 3rd August, 2009
Judgment delivered on: 2nd September, 2009
Sanjay Kapoor,
S/o Late V. N. Kapoor,
R/o 1/98, Ashok Vihar,
Phase-II, Delhi.
....Appellant
Through: Mr. Nalin Tripathi, Adv.
Versus
(1) M/s Kiryana Committee Delhi(Regd.)
Through: Authorized Representative,
Sh. Rakesh Kumar Bhatia,
372 , Khari Baoli,
Delhi
(2) Mr. R. C. Kapoor,
E-6 , Lajpat Nagar,
New Delhi
....Respondents.
Through: Mr. Swastik Singh, Adv.
for respondent no.1.
None for respondent
no.2.
Coram:
HON'BLE MR. JUSTICE V.B. GUPTA
FAO No.24/2009 Page 1 of 7
1. Whether the Reporters of local papers may
be allowed to see the judgment? Yes
2. To be referred to Reporter or not? No
3. Whether the judgment should be reported
in the Digest? No
V.B.Gupta, J.
Appellant has filed this appeal against order dated
15th January, 2009, passed by Additional District Judge,
Delhi, vide which his application under Order 39 Rule 4 of
Code of Civil Procedure (for short as „Code‟) was
dismissed, whereas, application under Order 39 Rules 1 &
2 of the Code, filed by respondent no.1 was allowed.
2. Brief facts of this case are that appellant is having a
decree dated 31st August, 2004 on the basis of suit for
specific performance filed by him against Sh. Gagan Raj
Kapoor on the basis of an agreement to sell dated 10 th
November, 1999 executed by said Gagan Raj Kapoor. In
the suit, respondent no.1 has challenged the judgment and
decree dated 31st August, 2004 passed by the court of Sh.
D. S. Pawaria, the then Additional District Judge, Delhi, in
suit no. 207/04 on the ground that the same has been
obtained by fraud and collusion and as a consequence
thereof, sale deed dated 15th February, 2008 was also
challenged.
3. In first week of November, 1999, Sh. Gagan Raj
Kapoor approached various officials of the respondent no.1
and stated that he has gone into huge business losses and
is in great financial crunch. He requested them to help in
clearing the debts by mutual settlements with other
members/his creditors and also deposited original title
deeds of the suit shop with respondent no.1, so as to create
charge/mortgage against aforesaid debts to various
members of respondent no.1.
4. On 19th November, 1999, father of Sh. Gagan Raj
Kapoor, namely, Sh. R. C. Kapoor-respondent no.2, also
handed over physical possession to respondent no.1 and as
such, respondent no.1 came into possession of aforesaid
shop along with title deeds and said possession of
respondent no. 1, continues till date along with all the
right, title and interest in suit shop.
5. It is contended by learned counsel for appellant, that
perusal of plaint shows that no legal rights subsist in
favour of respondent no.1. The main purpose of respondent
no. 1, is to extort money from appellant. Since, appellant is
a lawful owner in possession of the suit premise and there
is not even an iota of evidence to show that respondent
no.1 has any right, title and interest and in the absence of
any right, question of having possession does not arise.
6. It is also contended that if property belonging to
respondent no.1, would have been sealed then he would
have contested the case after vacation of interim order and
asked for de-sealing of the property, but it did not do so.
Moreover, appellant was lawful owner in possession, that
is, why receiver handed over the keys to him and as such
no case for grant of injunction is made out in favour of
respondent no.1.
7. On the other hand, it has been argued by learned
counsel for respondent no. 1, that, as per finding of the
trial court, it is respondent no.1 who is in possession and
being in possession is entitled to relief.
8. It is also contended that as per bailiff‟s report dated
29th March, 2008, shop is in possession of Sh. Gagan Raj
Kapoor.
9. Principles for grant of injunction are well settled,
namely:
(i) There has to be a prima facie case;
(ii) Balance of Convenience should be in favour of the party
seeking injunction and;
(iii) Irreparable loss would be caused if injunction is not
granted.
10. Trial court in impugned order held that prima facie,
respondent no. 1 is in possession of the suit property, as
there is mortgage in his favour. Since, respondent no.1 is
in possession of the suit property, balance of convenience
also lies in its favour and if its possession is not protected
during trial, it will cause irreparable loss.
11. As per report of bailiff dated 29th March, 2008, copy
of which is same placed on record by appellant, prima
facie, it is clear that appellant was not in possession on
that date.
12. Relevant portion of this report states;
"I Bailiff along with Sh. Sanjay Kapoor-DH
reached on the disputed site as per the address
given in the warrant i.e. property no. 617, Katra
Ishwar Bhawan Khari Baoli, Delhi, in the
possession of Sh. Gagan Raj Kapoor J. D. The
D.H. identified the disputed property at the time
property was found closed and locked. There
was no written order to break lock and door in
the warrant, where by the Bailiff could informed
and get the possession delivered at this situation
D. H. also made his statement that the disputed
property was found locked and closed there was
no order to break open the lock. I shall move an
application through my counsel to the Court to
get the order for braking open the lock and door
and thereafter, I shall take possession. Written
report about the warrant is presented.
Sd/-
Bailiff"
13. Since, respondent no.1 is in possession, the trial
court, rightly protected its legal right and as such there is
no ambiguity or illegality in the impugned order. There is
no merit in the appeal and same is hereby dismissed.
CM NO. 1671/2009
14. Since, appeal has been dismissed, present application
is also not maintainable and same also stand dismissed.
15. Trial court record be sent back forthwith.
16. Parties are directed to appear before trial court on
14th September, 2009.
2nd September, 2009 V.B.GUPTA, J.
bhatti
