Hindustan Vegetable Oil ... vs Ganesh Scientific Research ...
2012 Latest Caselaw 5495 Del

       *          IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                              Date of Decision: 13.09.2012

+      CS(OS) 985/2007

       HINDUSTAN VEGETABLE OIL

       CORPORATION LTD.                              ..... Plaintiff

                               Through:   Ms. Sonia Arora, Advocate

                      versus

       GANESH SCIENTIFIC RESEARCH

       FOUNDATION                                    ..... Defendant

                               Through:   Ms. Karuna Nundy, Adv.

CORAM:
HON'BLE MR. JUSTICE V.K.JAIN

                               JUDGMENT

V.K.JAIN, J. (ORAL)

IA No.6352/2007 (under Order 39 Rule 10 CPC)

This is a suit for possession of the part of the property bearing number 64- 65, Satguru Ram Singh Marg, Kirti Nagar, New Delhi. This property belonged to M/s Ganesh Flour Mills Company Limited (hereinafter referred to as the company), which stands acquired by the government in the year 1972. The assets of the said company were transferred to the plaintiff company vide notification dated 30.3.1984. The company had created a public charitable trust under the name and style of M/s Ganesh Scientific Research Foundation in the year 1978. The said centre was meant for carrying out research and development with regard to the

activities of the company and was duly registered under the Indian Trust Act, 1882. The defendant trust was allowed, by the company, to run its office in a part of the premises bearing number 64-65, Satguru Ram Singh Marg, Kirti Nagar, New Delhi. In its meeting held on 7.2.1979, the Board of Directors of the company resolved to build a proper building and to allow the defendant trust to use the same. However, no lease deed, license deed or documents of title was executed in favour of the defendant trust. The case of the plaintiff is that the defendant has not vacated the portion occupied by it in the aforesaid premises despite having been asked to do so. The plaintiff put its lock on three rooms and two big halls which the defendant trust continues to occupy in the aforesaid building. Now, the plaintiff, in the present has suit, sought possession of the portion as shown in red colour in the site plan annexed to the plaint besides recovery of Rs.36 lac as damages for the period from 1.3.2004 to 31.3.2007. IA No.6352/2007 has been filed by the plaintiff.

2. The contention of the learned counsel for the defendant is that the status of the defendant in the suit premises is that of a tenant. In this regard, she has placed reliance on the minutes of the meeting of Board of Directors of plaintiff company held on 7.2.1979. This document has been referred to in the plaint itself and the resolution passed in the said meeting reads as under:

"Lease of land to Ganesh Scientific Research Foundation

In view of the policy adopted in the past regarding the leasing of property and taking into account the importance of Ganesh Scientific Research Foundation research activity, it was decided that Ganesh Flour Mills will build an appropriate building for Ganesh Scientific Reserach on its land at Nazafgarh Road and permit Ganesh Scientific Research Foundation to use it. The

property will be owned by GFM and GSRF will be permitted users. Appropriate letters clearly stating position may be exchanged after obtaining competent legal advice."

This document is not a lease deed and in fact no decision has been taken vide the abovereferred resolution even to grant lease to the defendant trust. The use of the expression "...Ganesh Flour Mills will build an appropriate building for Ganesh Scientific Research on its land at Nazafgarh and permit Ganesh Scientific Research Foundation to use it" coupled with the fact that no charges are sought to be recovered from the trust clearly indicates that only a permission amounting to license was sought to be given to the defendant trust, to use the building, which the Board of Management of Ganesh Flour Mills had decided to construct. Therefore, this resolution does not give any legal right to the defendant to continue to occupy the suit premises without consent of the plaintiff.

(3) The learned counsel for the defendant also relies upon the minutes of the meeting of the Board of Trustees of the defendant held on 9.7.1982. The following extracts from the minutes of the meeting has been relied upon by the learned counsel for the defendant:

"...Shri Shetty was associated with GSRF from its very inception and he was instrumental in getting the building constructed for the GSRF in a record time. Because of his association with GFM/AOW, the trust is likely to have full support from these institutions as in the past.

xxxx

The Board was informed that GSRF has a total of 1.17 acres (5662.8 sq. Yd) land out of which an area of approx. 5000 sq ft. where earlier pilot plant had had been working is lying vacant as the pilot plant is not functioning and later on the same was occupied by HVOC for the time being after shifting its corporate office from Nehru Place. The Board was informed that after the closure of HVOC's office at Nehru Place, the corporate office was shifted to GSRF premises. HVOC instead of paying any rent to GSRF, had agreed for the payment of electricity charges. All the electricity bills are being received in the name of GSRF. It was requested to the Chairperson that the payment of electricity charges may continue to be paid by HVOC till they occupy the premises of GSRF. Now that HVOC's staff has taken VRS/ VSS and this area where pilot plant has been lying vacant, this are can be given on rent. The fund generated out of the rented space will be utilized towards up-to-date of GSRF.

xxxxx

It was opined ultimately that the present arrangement should continue without any further change. Chairman put forth that in case there is any proposal for disposal of the land by HVOC in which GSRF is situated, alternative accommodation and other facilities of GSRF shall be worked out and it will be considered as HVOC's obligation to provide for the alternate arrangement.

4. The learned counsel for the defendant also pointed out that Mr. Shetty, Chairperson-cum-Executive Officer of the plaintiff company was also the Chairman of the Board of Trustees of defendant trust and she submits that the decision taken in the meeting held on 9.7.1982 binds the plaintiff company.

5. In my view, the contentions are wholly misconceived. No decision taken by the Board of Trustees of the defendant trust would bind the plaintiff company merely because the Chairman-cum-CEO of the plaintiff company also happened to be the Chairman of the Board of Trustees of the defendant trust. The plaintiff being a separate legal entity, has to take its decision and the resolution passed by the defendant trust does not in any manner binds the plaintiff company. In any case, even this resolution does not indicate any lease deed already having been granted to the defendant trust in respect of the portion of the suit premises which are occupied by it. An assurance given by the Chairperson of plaintiff company to provide an alternate accommodation to the defendant, does not constitute a lawful agreement between the plaintiff and the defendant trust which are two separate legal entities. Therefore, prima facie, the defendant has no legal right to continue in possession of the portion occupied by it in the suit property, without consent of plaintiff company.

6 The learned counsel for defendant relies upon Section 53A of the Transfer of Properties Act, which, to the extent it is relevant, provides that where any person contracts to transfer, for consideration, any immoveable property by writing signed by him or on his behalf, from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract, has done some act in furtherance of the contract, and

has performed or is willing to perform his part of the contract, then, notwithstanding that the contract, though required to be registered, has not been registered, or, where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract:

7. Reliance upon the aforesaid provision in my view is wholly misplaced. There is absolutely no contract between the plaintiff and the defendant for transfer of any portion of the suit property either on leasehold or any other basis. In any case, no such contract between the parties has been pleaded in the written statement.

8. For the reasons stated hereinabove, prima facie, the defendant is liable to pay damages for use and occupation of the portion occupied by it in the suit property, to the plaintiff. The present suit was filed on 25.05.2007. In IA No.6352/2007, the plaintiff has demanded charges for use and occupation @ Rs.1 lac per month. This demand was in respect of the whole of the portion occupied by defendant in the suit property. The learned counsel for the plaintiff states that the total area occupied by the defendant in the suit property comes to about 8300 sq. ft. Out of this, the portion measuring 5800 sq ft. Has been locked by the plaintiff as well as by the defendant and the plant and machinery of the defendant is lying therein. Considering the fact that neither the plaintiff nor the defendant is able to use this portion, I refrain from passing order at this stage with respect to the damages for use and occupation of the aforesaid portions. The remaining portion, which admittedly is in possession of the defendant comes to 2500 sq. ft. On proportionate

basis, the plaintiff is entitled to recover damages @ Rs.30,120/- per month for this portion. The defendant is, therefore, directed to deposit charges for use and occupation @ Rs.30,120/- with effect from 1.8.2007 to 31.8.2012 within 8 weeks from today. The defendant would continue to deposit damages for use and occupation at the same rate during pendency of this suit by 10 th of each succeeding calendar month. The aforesaid amount, as and when deposited by the defendant, would be released to the plaintiff on its furnishing an undertaking to deposit the same with interest @ 12% per annum, if so directed by the Court. This interim arrangement is without prejudice to the rights and contentions of respective parties in this suit.

The application stands disposed of.

IA No.8972/2011 (under Order XIII Rule 1 CPC)

Heard. The additional documents mentioned in the application are taken on record, subject to payment of Rs.10,000/- as costs.

The application stands disposed of.

IA No.13286/2010 (under Section 151 CPC)

The learned counsel for the defendant wants an issue to be framed with respect to applicability of Section 53A of Transfer of Properties Act.

No such plea has been taken by the defendant in the written statement. Hence, no such issue arises from the pleading of the parties.

No other additional issue arises from the pleadings of the parties. The application is devoid of any merit and is hereby dismissed.

IA No.18528/2011 (under Order XXVI Rule 4 CPC)

The prayer made in this application is for appointment of a Local Commissioner to determine the violation of the order dated 25.5.2007 and non- compliance of the order dated 21.12.2010. Yet another prayer made in this application is to direct the locks to the premises be broken and status quo ante as on 25.5.2007 to be restored.

While deciding IA No.6352/2007, I have taken a view that prima facie defendant has no right to continue to occupy the suit premises. The learned counsel for the defendant states that the grievance of the defendant is that its vehicles are not be allowed to enter the suit premises.

An interim order has already been passed by this Court on 29.11.2011 making the following arrangement:

a. That the plaintiff will allow one car belonging to the official of the defendant's trust to be parked in the HVOC Compound. b. The plaintiff will also allow the vehicles to be taken inside the compound for loading and off loading the goods.

c. The plaintiff will see that during 24 hours, his security guard will remain present to open the gate for the purpose of entry and exit as agreed in para 6 of the affidavit.

d. The goods of the defendant's trust are also to be allowed to enter and the plaintiff shall see that no such trouble is caused to the defendant's trust.

Since not only one car of the defendant trust has been allowed to be parked, even the vehicles carrying goods have been allowed to enter into the suit premises for the purpose of loading and off-loading the goods, and the security guards have also been directed to remain present at the gate to open the same for the purpose of

entry and exit, no further order is required to be passed on this application. The interim order dated 29.11.2011 shall continue during pendency of this suit.

The application stands disposed of.

IA No.13195/2009 (under Section 151 CPC)

The prayer made in this application is that the parties may be directed to open the lock of the pilot plant and the defendant may be permitted to execute the project in the pilot plant as mentioned in para 10 of the application.

The defendant has been awarded a project by Department of Bio Technology and claims to have a sum of Rs.8.73 lac to the defendant to purchase the extruder for this purpose. That extruder is to be installed in the shed where the pilot plant is located.

The learned counsel for the plaintiff wants some time to take instructions as to whether the plaintiff is willing to allow the defendant to use the aforesaid portion on payment/ damages for use and occupation of the portion by the defendant. The learned counsel for defendant also wants to take instructions as to whether the defendant is ready and willing to pay the charges on account of use and occupation as condition precedent for use of the aforesaid portion occupied by pilot plant.

The defendant also wants permission to remove its machinery from the pilot plant installed in the portion occupied by it. The plaintiff is directed not to obstruct the defendant in removing the aforesaid machinery from the portion occupied by it.

Renotify on 18.09.2012.

CS(OS) 985/2007

Affidavits by way of evidence be filed by the parties within four weeks.

The parties are directed to appear before the Joint Registrar on 8.11.2012 for fixing dates of recording of evidence.

V.K. JAIN, J SEPTEMBER 13, 2012/rd//