Rajeev Metals vs D.S.I.D.C. Ltd. & Ors.
2011 Latest Caselaw 2700 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                             Judgment reserved on: 16.05.2011
                              Judgment delivered on: 19.05.2011

+                 R.S.A.No. 210/2007

RAJEEV METALS                                  ...........Appellant
                         Through:   Mr. Fanish K. Jain, Advocate.

                  Versus

D.S.I.D.C. LTD. & ORS.                        ..........Respondents
                         Through:   Mr.Ruchir Mishra, Advocate.

CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

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

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

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

INDERMEET KAUR, J.

1 This appeal has impugned the judgment and decree dated

18.04.2007 which had reversed the findings of the trial Judge

dated 31.07.2006. Vide judgment and decree dated 31.07.2006,

the suit filed by the plaintiff Rajiv Metals seeking possession of a

plot allotted to him under the relocation scheme had been

decreed; decree of mandatory injunction had been passed in

favour of the plaintiff and against the defendant to hand over the

plot bearing No. 120 pocket C, Sector 1, Bawana Industrial Estate

to the plaintiff within 30 days. This judgment was reversed by the

first appellate court. The suit of the plaintiff stood dismissed.

2 The case of the plaintiff as is evident from the pleadings is

that he is a businessman carrying on his business under the name

and style of M/s Rajiv Metals; he had applied for allotment of the

plot under the scheme of relocation of industries from non

confirming residential areas to industrial areas in terms of orders

of the Supreme Court in the case of M.C. Mehta Vs. Union of India

& Ors. The plaintiff was allotted the aforenoted plot; earnest

money was paid; 50% of the total price after adjusting the earnest

money was to be deposited by 31.03.2001. There was a delay in

depositing the same amount on account of delay in the release of

loan by defendant No. 3 in favour of the plaintiff. It is contended

that the plaintiff had deposited 50% of the total amount on

12.11.2001 i.e. after a delay of about seven months; remaining

50% was to be deposited by 20.04.2002 in terms of the letter

dated 08.04.2002 issued by defendant No. 2; the said amount was

also deposited; the possession of the plot was not handed over for

the reason that the first installment of 50% was deposited late.

Present suit was accordingly filed.

3 Written statement was filed contesting the suit. It was

stated that apart from the objection of pecuniary jurisdiction the

delay in releasing the loan was on account of the fault of the

plaintiff and not because of fault of defendant No. 3. First

installment of 50% was admittedly a delayed payment.

4 On the pleadings of the parties, the following seven issues

were framed:-

1. Whether Plaintiff is entitled to get a decree of Mandatory injunction as prayed? OPP

2. Whether Plaintiff has not come with clean hands before this court and suppressed material and true facts from this court? OPD

3. Whether plaintiff has locus standi to file and maintain the present suit? OPD

4. Whether suit is not signed/ verified in accordance with the provision of Order 6 rule 15 CPC? OPD

5. Whether there is no privity of contract between the plaintiff and defendant no.2? OPD

6. Whether this court has no jurisdiction to try and to undertake the present suit? OPD

7. Relief.

5 One witness was examined on behalf of the plaintiff; no

evidence was led on behalf of the defendant. All the issues were

decided in favour of the plaintiff and against the defendant. He

was entitled to the relief as prayed for.

6 This judgment was reversed in first appeal. The first

appellate court was of the view that the suit is not maintainable in

the present form; the plaintiff had not sought any declaration that

his cancellation of allotment was illegal; the question of granting a

decree of mandatory injunction did not arise. Further on merits

also, the court was of the view that the plaintiff is not entitled to

the relief which had been granted in his favour; testimony of PW-1

was not reliable. Suit was accordingly dismissed.

7 This is a second appeal. It had been admitted and on

01.12.2010, the following substantial questions of law were

formulated:-

"1. Whether the present suit seeking mandatory injunction without seeking relief of declaration was maintainable?

2. Whether the findings in the impugned judgment dated 18.4.2007 qua issue no.5 are perverse? If so its effect? "

8 On behalf of the appellant, it has been urged that the

judgment of the trial Court suffers from a perversity; the suit of

the plaintiff was illegally dismissed; the plaintiff had made the

initial payment of `30,000/- in time; there is no dispute to this

fact; the delayed payment of the first installment was for the

reason that the DFC had failed to release the loan amount in

favour of the plaintiff; this payment which was made by the

plaintiff on 12.11.2001 although late by seven months yet it had

been accepted by the defendant without any demur or protest; in

fact on 08.04.2002 a letter had been issued to the plaintiff seeking

payment of the balance amount; in these circumstances, it does

not now lie in the mouth of the department to state that this

payment was made belatedly; the letter cancelling the allotment

of the plaintiff was never received by him; he learnt about this for

the first time only when the written statement was filed; even at

that time this cancellation notice dated 24.07.2001 was not placed

on record. The impugned judgment calls for an interference on

the aforenoted scores.

9 Arguments have been rebutted. It is pointed out that the

case of the defendant all along has been that the plaintiff has

made payment of the first installment belatedly; this delay cannot

be waived; letter dated 08.04.2002 was a letter which has been

sent to all the allottees; attention has been drawn to clause 3 of

the said document. It is pointed out that it had been specifically

stipulated therein that a person who has made his payment

belatedly will not be eligible for consideration for allotment. This

has rightly been noted in the impugned judgment which calls for

no interference.

10 There are certain facts which are not in dispute. It is not in

dispute that on 10.01.2001 payment of the initial earnest money of

`30,000/- was made and the allotment of plot bearing No. 120

pocket C, Sector 1, Bawana Industrial Estate had been made in

favour of the plaintiff. As per the terms and conditions of

allotment, the next 50% amount i.e. a sum of `1,80,000/- had to be

paid by 31.03.2001. This amount was paid belatedly i.e. after a

delay of seven months on 12.11.2001. Contention of the plaintiff

was that this was for the reason that he was suffering from

financial constraints; his father and mother were suffering from

serious medical problems and this has been detailed in his letter

dated 18.06.2003 which he had addressed to the department.

11 It is also not in dispute that a total consideration of the

aforenoted plot was `4,20,000/- and the amount of `1,80,000/-

which added to the initial payment of `30,000/- would be

`2,10,000/- i.e. 50% of the total amount of the plot. The letter

dated 18.06.2003 was the only communication addressed by the

plaintiff to the department wherein he had described his serious

financial constraints to the department; this representation of the

plaintiff had been rejected by the department on 18.07.2003.

Thereafter legal notice dated 31.07.2003 had been sent by the

plaintiff before filing the present suit.

12 Vehement submission of the appellant that the cancellation

notice dated 24.07.2001 purported to have been sent by the

defendant to the plaintiff found mention for the first time in his

written statement is a false statement. This contention is patently

incorrect; he has made a wrong submission before this Court. Ex.

PW-1/H is the reply sent by the DSIDC to the legal notice of the

plaintiff. In this reply in para 5, it has clearly been stated that the

allotment of the plot of the plaintiff had been cancelled vide notice

dated 24.07.2001; thus this submission before this Court that this

fact of cancellation surfaced for the first time in the written

statement of the defendant is false. The plaintiff has not come to

court with clean hands. Once this cancellation notice had been

specifically known to the plaintiff nothing prevented him from

seeking a declaration that this cancellation notice dated

24.07.2001 be declared null and void. No such prayer was asked

for; only prayer was a prayer for mandatory injunction directing

the defendant to allot the aforenoted plot to him. This prayer

without the relief of declaration could not have been granted to

the plaintiff and this has rightly been noted in the impugned

judgment.

13 The Supreme Court in 1973 SC 2384 Shamsher Singh Vs.

Rajinder Prasad & Ors. had noted that the question whether the

relief of injunction prayed for by a plaintiff should be considered

as a consequential to the main relief or not has to be decided on

the basis of the allegations and the prayers contained in the

plaint; mere astuteness in drafting the plaint will not be allowed to

impede the court from looking at the substance of the relief asked

for.

14 In 110 (2004) DLT 633 Sarjiwan Singh Vs. Delhi Vidyut

Board a Bench of this Court had noted that in a suit filed by the

plaintiff against Delhi Vidyut Board praying for an injunction

simplicitor in the wake of the electricity bills received by him; the

court had noted that without seeking a relief of injunction holding

the electricity bills to be invalid, the suit for injunction by itself

was not maintainable; declaration should have been asked for

before the consequential relief of injunction could be granted.

15 Unless and until a declaration was obtained by the plaintiff

i.e. a declaration to the effect that the cancellation of his plot vide

notice letter dated 24.07.2001 is null, void and non-est,

subsequent injunction i.e. relief of mandatory injunction directing

the defendant to allot the aforenoted plot to the plaintiff could not

have been passed.

16 Letter dated 08.04.2002 addressed by the defendant to the

plaintiff has also been perused. The tenor of this letter is relevant

and the extract of it reads as follows:-

"You are, requested to make the balance 50% cost of the plot latest by

20.04.2002 and collect your possession letter after completing the requisite legal formalities immediately. The draft of the undertaking, identity slip, affidavit and N.O.C from the concerned bank, in case you have taken loan against E.M.D. from any bank, are required to be submitted before taking over the possession letter, may be collected from the Relocation Division free of cost on any working day between 10.00 a.m. to 1.00 pm on production of proof of payment of 100% cost of the plot. In case you have already deposited 100% cost of the plot, this letter may be ignored. However, other formalities for taking you possession of the plot should be completed.

Those allottees who have not deposited 50% cost of the plot by 31st March, 2001 (Including short fall of 5% of the cost of plot an adjustment towards interest payable on account of EMD) and further could not deposit the 5% short fall on account of difference of EMD with interest @ 18% w.e.f. 01.04.2001 upto 01.04.2002, are not eligible for making payment.

It may also please be noted that in the event of non-payment of the cost of the plot and non-completion of legal formalities as sated above, the allotment shall be liable for cancellation."

17 It clearly states that those allottees who have not deposited

50% of the cost of the plot by 31.03.2001 are not eligible for

making this payment. The case of the plaintiff fell in this category.

He had not deposited 50% of the cost of the plot by 31.03.2001;

this is admitted; he had deposited this amount only on 12.11.2001;

as such the condition contained in this letter of 08.04.2002

applied to the plaintiff; he was not eligible for consideration for

allotment on payment of the balance amount. This letter also

stipulated that in case of non-compliance, the allotment would be

liable to be cancelled.

18 Ex.PW-1/B is also a relevant document. This was a letter

dated 20.01.2001 written by the plaintiff to the DSIDC stating that

he had applied for a term loan with the DFC vide receipt dated

10.01.2001 with permission to pay the amount from his own

sources; extension of time for payment of the first installment of

50% had been sought. This letter was received by the DSIDC on

10.01.2001; contention of the appellant that the payment could

not be made of the first instalment for no fault of his and only

because the DFC had not sanctioned the loan is thus not borne

out. Even as per the case of the plaintiff, he had applied for loan

to the DFC only on 10.01.2001; installment had to be paid latest

by 31.03.2001.

19 The plaintiff has not come to the Court with clean hands. His

vehement contention that it was only in the written statement that

the letter of cancellation dated 24.07.2001 had been brought to

his notice has been negatived by Ex.PW-1/H. Relief of injunction is

a discretionary relief. The impugned judgment had also correctly

noted that in the letter dated 18.06.2003 written by the plaintiff to

the DSIDC/defendant he had stated that there is no time limit for

making the payment of installment from persons whose loan has

been passed by the DFC wherein Ex. PW-1/B he had sought time

to arrange for his funds. Discretion was thus rightly not exercised

in his favour. The impugned judgment calls for no interference.

20 The trial Judge had decided issue No. 5 in favour of the

plaintiff. This finding had not been upset in the impugned

judgment.

21 In view of the aforenoted discussion, both the substantial

questions of law are decided against the appellant and in favour of

the respondent. There is no merit in this appeal. Dismissed.

INDERMEET KAUR, J.

MAY 19, 2011 A/nandan