Turner Morrison Land Limited vs Smt. Parvati Devi & Anr.
2009 Latest Caselaw 3912 Del

     *IN THE HIGH COURT OF DELHI AT NEW DELHI

+                      OMP No.73/2007

%                      Date of decision: 23rd September, 2009

TURNER MORRISON LAND LIMITED                              ...Petitioner
                           Through: Mr. Sandeep Sethi, Sr. Advocate with
                                    Mr. Lalit Gupta, Mr. Sindhu Sinha &
                                    Mr. Nikhil Bhalla, Advocates.

                                  Versus

SMT. PARVATI DEVI & ANR.                              ... Respondents
                           Through: Dr. Shyamlha Pappu, Sr. Advocate with
                                    Mr. R. Krishnaamorthi & Mr. K.K.
                                    Singh, Advocates.

                                AND

                       OMP No.117/2007

TURNER MORRISON LIMITED                                  ....Petitioner
                           Through: Mr. Sandeep Sethi, Sr. Advocate with
                                    Mr. Lalit Gupta, Mr. Sindhu Sinha &
                                    Mr. Nikhil Bhalla, Advocates.

                                  Versus

SMT. PARVATI DEVI & ANR.                              ... Respondents
                           Through: Dr. Shyamlha Pappu, Sr. Advocate with
                                    Mr. R. Krishnaamorthi & Mr. K.K.
                                    Singh, Advocates.

CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

1.     Whether reporters of Local papers may
       be allowed to see the judgment?                  No

2.     To be referred to the reporter or not?           No

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


RAJIV SAHAI ENDLAW, J.

1. Both petitions under Section 9 of the Arbitration Act, 1996 for

interim measures are for consideration. The petitions though by

different petitioners against the same respondents have

inter-connected facts. The petitioner in OMP No.73/2007 claims

rights in immovable property situated at Plot of land bearing

No.B-25, Qutab Institutional Area, New Delhi allotted on leasehold

basis to the respondent No.2 Society. The respondent No.1 is the

President of the said Society. It is the case of the petitioner that the

respondent Society was unable to raise construction on the aforesaid

land, perpetual lease whereof was under threat of forfeiture; that the

respondent Society entered into an agreement with the petitioner in

OMP No.117/2007 whereunder the petitioner in OMP No.117/2007

was to at its own cost raise construction on the said land and in lieu

thereof entitled to certain rights in the said land; that the rights

under the said agreement were assigned with the consent of the

respondent Society in favour of the petitioner in OMP No.73/2007;

that on completion of the construction, the petitioner (in accordance

with the agreement) has been in possession/control/constructive

possession of the entire aforesaid built up property except an area of

about 13,500 sq. ft. located on the ground floor for self use of the

respondent Society and 2,188 sq. ft. in the basement for parking of

cars. It is the admitted position that the building is lying sealed on

account of misuse. OMP No.73/2007 is filed to restrain the

respondents therein from occupying or using any portion of the

aforesaid property except the area of 13,500 sq. ft. on the ground

floor and 2,188 sq. ft. in the basement for parking cars and for

restraining the respondents from transferring, leasing, licensing,

mortgaging, encumbering the portions of the property which were in

possession/control as aforesaid of the petitioner.

2. The petitioner in OMP No.117/2007 was carrying on

maintenance services in the entire property. The interim measure

claimed therein is of restraining the respondents from using the

assets of the petitioner in the said premises installed for the

purposes of carrying out the maintenance activity and from removing

or alienating the said maintenance assets/equipment and from

providing the maintenance services in the property.

3. The senior counsel for the respondents has contested the

petition inter-alia on the ground of locus of the petitioner in OMP

No.73/2007; the assignment in favour of the said petitioner is

controverted. It is further argued that neither is there any

arbitration agreement between the parties nor any disputes between

the parties and the disputes, if any, are long dead one and not live

one. Reliance is also placed on Premji Ratansey Shah Vs. Union

of India JT 1994 (6) SC 585 for canvassing the proposition that

injunction cannot be issued in favour of a trespasser and against a

true owner and on Union of India Vs. Momin Construction

Company (1997) 9 SCC 97 to contend that the disputes raised are

barred by time.

4. As far as objection by the senior counsel for the respondents to

the arbitrability is concerned, the senior counsel for the petitioner

during the hearing has urged that the respondent Society had

instituted a suit against the petitioners in these petitions; the

petitioners herein applied under Section 8 of the Arbitration Act,

1996. The said application of the petitioners was allowed. Similarly,

it is contended that a petition under Section 11 of the Act was also

preferred and which was also taken up for consideration along with

the application under Section 8 in the suit. The said application was

also allowed and Justice A.B. Saharia (Retd.) has been appointed as

the arbitrator, arbitration before whom is stated to be underway. It

is the contention of the senior counsel for the petitioner that all the

objections taken by the senior counsel for the respondents before

this court as to arbitrability were taken by the respondents in the

aforesaid two proceedings also; notwithstanding that the application

under Section 8 and the petition under Section 11 were allowed and

the arbitrator appointed.

5. It is not controverted by the senior counsel for the respondents

that the pleas raised before this court as to the arbitrability were

also raised in the proceedings aforesaid and were not accepted. The

only argument is that review has been applied for of the order

allowing the applications under Section 8 and Section 11 of the Act

and arguments whereon have been heard and order reserved.

6. Till the review is allowed, the order on the application under

Section 8 and Section 11 is final. The question as to arbitrability

having been gone in those proceedings, need not be gone into again

in these proceedings. The contentions of the respondents opposing

the petition on these grounds are therefore negatived.

7. As far as the merits of granting the interim measures are

concerned, the senior counsel for the respondents does not dispute

that since the completion of the construction of the building and till

sealing, the portions of the property with respect whereto interim

measures are claimed were in the control and possession of the

petitioners. It is also admitted that the maintenance services were

being carried out by the petitioner and the petitioner had installed

their plant & equipment for the said purposes. The plea in this

regard is that pursuant to sealing, the petitioner had vacated the

premises. It is contended that the petitioners having vacated are now

not entitled to any interim relief.

8. Per contra, the senior counsel for the petitioner has urged that

as per the scheme now brought by the Government/Land Owning

Agency, sub-letting has been permitted to a large extent and the

property is capable of being used.

9. In my view, once it is admitted that the petitioners were in

control and possession of the portions with respect whereto interim

measures are claimed, till sealing, the factum of sealing by the

Government Agency cannot interfere with the rights, if any, of the

petitioner. Such action of a third party cannot vest any advantage in

the respondent. At this stage, it is not deemed appropriate to go into

the merits of the respective case. All that can be said is that the

courts have taken notice of such transactions in Delhi and at least in

Ansal Property & Industries Private Limited Vs. Anand Nath

MANU/DE/0824/1991 the true nature of such transactions was also

gone into. I thus find the petitioners to have made out a prima-facie

case. The rights sought to be protected being with respect to

immovable property, cannot be compensated in money. The balance

of convenience is also found to be in granting the interim relief

claimed.

10. The petitions are accordingly allowed. The respondents are

restrained from occupying or using and/or from alienating,

encumbering or parting with possession of property No.B-25, Qutab

Institutional Area, New Delhi save the portion of 13,500 sq. ft. on the

ground floor of the said property and 2,188 sq. ft. in the basement of

the said property. The respondents are also restrained from using or

removing the equipment, plaint & machinery of the petitioner for the

purposes of carrying out maintenance services in the said property

and from carrying out the said services themselves.

11. It is sad that such valuable commercial property is being

wasted for the last so many years. Though no claims in that respect

have been made but I clarify that upon an application in this regard

being made, the Arbitral Tribunal stated to have been already

constituted shall attempt to make provision for allowing

use/commercial exploitation of the said property so that pending the

resolution of disputes between the parties the property can be put to

optimum use.

The petitions are accordingly disposed of.

No order as to costs.

RAJIV SAHAI ENDLAW (JUDGE)

September 23, 2009 PP