Shri Hira Prasad Mishra vs M/S Logical Estate Pvt. Ltd & Anr
2010 Latest Caselaw 2076 Del

$~15
*      IN THE HIGH COURT OF DELHI AT NEW DELHI
                                                                       Date of decision: 20.04.2010
+      CS(OS) 719/2009

       SHRI HIRA PRASAD MISHRA                                   ..... Plaintiff
                          Through : Mr. K.R. Gupta and Ms. Kiran Dharam, Advocates.
                   versus
       M/S LOGICAL ESTATE PVT. LTD & ANR                ..... Defendants
                          Through : Mr. Amitabh Chaturvedi and Mr. Jeevesh Nagrath, Advocates.

       CORAM:
       MR. JUSTICE S. RAVINDRA BHAT

1.

     Whether the Reporters of local papers                Yes.
       may be allowed to see the judgment?

2.     To be referred to Reporter or not?                   Yes.

3.     Whether the judgment should be                       Yes.
       reported in the Digest?

S.RAVINDRA BHAT, J. (OPEN COURT)


I.A. No. 5349/2009

1.     Heard counsel for the parties.

2.     This Court had, by an order dated 24.04.2009 directed as follows:

       "XXXXXX                          XXXXXX                      XXXXXX

               Notice returnable on May 25, 2009.

In the meanwhile, defendants shall not create any third party interest in the suit property.

XXXXXX XXXXXX XXXXXX"

3. Briefly, the plaintiff seeks a decree for a sum of Rs.15,03,28,084/- against the defendants.

The claim is premised upon an agreement said to have been arrived at pursuant to a meeting

dated 02.01.2006 with the defendants and their sister companies. The suit sets-out the land that

was agreed to be purchased with the assistance of the plaintiff and also the terms of purchase, in

I.A. 5349/2009 IN CS(OS) 719/2009 Page 1 para 4. The plaintiff submits that in furtherance of the agreement, the properties which had been

agreed upon, further to the understanding were in fact purchased and registered on various dates,

and discloses the same in a chart set-out in para 6. It is urged that the plaintiff paid the sum of

Rs.7,14,30,000/- as consideration to the land owners, which was treated to be paid on behalf of

the defendants in the agreement originally entered into. It is urged that the plaintiff was entitled

to a share of profits (tax-free), to the tune of Rs.7,45,19,596/-. On these averments, the plaintiff

claims that he is entitled to Rs.14,59,49,596/-. The plaintiff claims that since the defendants did

not comply with the terms of the understanding, he is entitled to 18% interest with effect from

09.02.2009, when a legal notice was issued. On the strength of these averments, the Court, by an

ex-parte order (as is apparent, without recording any reasons), directed the defendants not to

create third-party rights.

4. The defendants, in their written statement, deny the transaction, as alleged, and urge that

the money paid for the acquisition of the property was, in fact given by them. The defendants

point-out that the plaintiff had filed two previous suits, CS(OS) 2356/2008 and CS(OS)

260/2008, where the amounts were claimed. It is further urged that in those suits, the plaintiff

clearly admitted that the amounts paid as consideration were given by the present defendants.

5. The plaintiff relies upon certain documents, such as his account statements issued by the

Oriental Bank of Commerce, IndusInd Bank and the State Bank of India, which evidence that

certain amounts existed at the relevant dates and were utilized for the acquisition of the lands.

The plaintiff, therefore, submits that the ex-parte interim injunction granted earlier should be

confirmed.

6. During the pendency of the proceeding on a previous date of hearing, the Court had

directed the plaintiff to file copies of his income returns. In response, the plaintiff filed an

I.A. 5349/2009 IN CS(OS) 719/2009 Page 2 affidavit, which inter alia states as follows:

"XXXXXX XXXXXX XXXXXX

9. That the agreements between the seven landowners and the plaintiff, the receipts of payments made to the said land owners and the certified copies of the sale deeds executed by the said landowners are at pages 14 to 293 of the plaintiff's list dated 13.04.2009 in part III. The plaintiff's five bank accounts from which the payments through cheques were made to the said landowners are at pages 294 to 326 of the said list in part III.

10. That during the assessment years 2003-2004, 2004-2005 and 2005-2006 (financial years 2002-2003, 2003-2004 and 2004-0200), the deponent's income was below taxable limit and therefore he did not file any income tax return for the said assessment years. Obviously, no balance sheets and other financial statements were required to be filed for the said years with the Income Tax Department and, as such, not prepared.

XXXXXX XXXXXX XXXXXX"

7. Apart from reiterating the submissions made in the written statement, the defendants

further rely upon the copies of the account statements filed by them along with their list of

documents. It is submitted that these clearly show that the amounts said to have been utilized by

the plaintiff in fact were given over by the defendants. The defendants also rely upon certificate

issued by the Bank of India, which is at page 63 of the list of documents.

8. The Court has considered the submissions of the parties and the materials on record,

carefully. It is evident that the suit is premised on a simple money claim.

9. The plaintiff has not shown that he is entitled to the security of the property or proceeds

arising on account of the profit (after sales), all of which would constitute his prior claim or that

he has any lien over the same. In these circumstances, the plaintiff is under a duty to prima facie

prove that he is entitled to the amounts. No doubt, the plaintiff has placed on record copies of

bank statement which disclose that at the relevant time, he had substantial amounts. At the same

time, the defendants' documents disclose that the said amount had been credited from their

I.A. 5349/2009 IN CS(OS) 719/2009 Page 3 accounts. The purport of the bank's certificate - copy of which is part of the record, is also the

same. Coupled with these is the circumstance that the plaintiff admits in the affidavit filed

pursuant to this Court's direction that he did not possess adequate income even to file Tax

Returns for the years 2003-04 and 2004-05, as his income was below the taxable limit.

10. The Court is mindful of the requirement in Order 39 Rule 1 that while making an ex-

parte ad interim order, the brief reasons for so doing are to be recorded. This is to indicate the

rationale for the order, and assure that there was due application of mind. Further, Courts are to

be alive to the obligation cast on them that their powers are used appropriately, and interim

orders made only in deserving cases, or else the anxiety to do justice would in fact result in

oppression. Here, no reasons for the order were recorded, and the interim order has subsisted for

over a year.

11. In the circumstances of this case, the Court is satisfied that there are not special

circumstance or equities warranting the kind of interim order sought for, which has subsisted all

this while. Accordingly, the interim order made on 24.04.2009 is hereby vacated. I.A. No.

5349/2009 is, therefore, dismissed.

CS(OS) 719/2009

12. The parties may file additional documents, if any, within four weeks. Thereafter they

shall exchange affidavits, clearly admitting each others' documents, within eight weeks.

13. List before the Joint Registrar on 21.07.2010, for scrutiny. List before the Court on

24.09.2010, for framing issues.

                                                                         S. RAVINDRA BHAT
                                                                                   (JUDGE)
       APRIL      20, 2010
       'ajk'



I.A. 5349/2009 IN CS(OS) 719/2009                                                          Page 4