Devinder Kumar Narula vs Virender Kumar
2013 Latest Caselaw 1063 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI

+    CS(OS) 2663/2012 and I.A. No.20372/2012, 16070/2012

                                          Date of Decision: 4th March, 2013

IN THE MATTER OF
DEVINDER KUMAR NARULA                                          ..... Plaintiff
                               Through: Mr. Rajiv Kataria, Advocate with
                               Ms. Debjani Das P., Advocate

                         versus

VIRENDER KUMAR                                              ..... Defendant
                               Through : Mr. Rajat Aneja, Advocate with
                               Ms. Sumati Jurmani, Advocate
CORAM
HON'BLE MS.JUSTICE HIMA KOHLI

HIMA KOHLI, J. (Oral)

1. The present suit is listed in Court pursuant to the order dated

03.09.2012.

2. The plaintiff has instituted the present suit against his brother, the

defendant, seeking the following reliefs:-

(a) Pass a decree of permanent injunction against the defendant or his servant or agent from entering into the business premises of the plaintiff and the business itself which is being run in the name and style of M/s Narula Bakery in the premises No.3/38-A, Nehru Bazar, Paharganj, New Delhi.

(b) Restrain the defendant from dispossessing the plaintiff from his business of M/s Narula Bakery being run in the above said premise or any other appropriate order/orders which this Hon‟ble Court may deem fit in the wake of the facts and circumstances of the case.

(c) That the cost of the litigation be also decreed and awarded in favour of the plaintiff.

3. Alongwith the aforesaid suit, the plaintiff had filed an application for

stay under Order XXXIX Rules 1 and 2 CPC, registered as I.A.

No.16070/2012. The relief prayed for in the aforesaid application is as

below:-

"In the above said facts and circumstances it is, therefore, most respectfully prayed that this Hon‟ble Court may please grant the temporary injunction to the plaintiff during the pendency of this suit restraining the defendant from interfering in the business of Narula Bakery and from dispossessing the plaintiff from the premises as described Narula Bakery 3/38-A, Nehru Bazar, Paharganj, New Delhi- 110055."

4. When the suit was listed in Court on 03.09.2012, the same was

registered and summons were issued to the defendant, returnable before

the Joint Registrar on 20.11.2012, for completion of service and

pleadings. Further, the suit was directed to be placed before the Court on

04.03.2013, i.e., today, for purposes of framing of issues.

Contemporaneously, while issuing notice on the interim application for

stay filed by the plaintiff, directions were issued to the parties to maintain

status quo with regard to the title and possession of the suit premises and

the plaintiff was called upon to comply with the provisions of Order XXXIX

Rule 3 CPC within one week.

5. It is relevant to note that the case set up by the plaintiff in the

present suit is that the premises bearing No.3/38-A, Nehru Bazar,

Paharganj, New Delhi, was given by MCD on license to the father of the

parties, who had expired in the year 1985 and thereafter, the plaintiff had

been running a bakery business in the said premises. In para 4 of the

plaint, the plaintiff refers to another property opposite the aforesaid

premises, being shop No.25, Nehru Bazar, Paharganj, New Delhi, which is

a three storeyed building, in the joint names of the wives of the plaintiff

and the defendant. It is averred in the aforesaid para that the defendant

is running his business from the said shop, in the name and style of

„Virender Confectionery‟ and both, the plaintiff and the defendant have

been running their respective businesses separately in separate premises

and that there has not been any dispute between the parties in that

regard. In para 5 of the plaint, the plaintiff has averred that he has been

exclusively running his business of bakery in the name of „Narula Bakery‟

from the suit premises and has been paying the fees for the health trade

license and trade license to the MCD.

6. In para 8 of the plaint, the plaintiff reiterates the fact that he is

running the aforesaid business from the suit premises, whereas the

defendant has his own separate premises, i.e., shop No.25, Nehru Bazar,

Paharganj, New Delhi, from where he is running his business in the name

of „Virender Confectionery‟. Thereafter, a passing reference is made to a

settlement in the family regarding ownership of the properties being in

the offing and the plaintiff goes on to state that the same has no bearing

insofar as the businesses being run by the parties in their two separate

premises are concerned. In the cause of action para, the plaintiff has

averred that the defendant had tried to take over the actual physical

possession of the business of the plaintiff and oust him from the suit

premises and since his shop is situated opposite the shop of the

defendant, he was under a constant threat of dispossession by the

defendant, thus compelling him to institute the present suit.

7. It is relevant to note that the documents filed by the plaintiff

alongwith the suit include receipts of the license fees of premises

No.3/38-A, Nehru Bazar, Paharganj, New Delhi, copies of his income tax

returns and a copy of the order passed by the learned ACMM on

24.10.2010, in respect of an offence under Section 7/16 of the Prevention

of Food Adulteration Act. However, the plaintiff did not file any document

relating to the family settlement with the defendant.

8. After perusing the averments made in the plaint and the documents

placed on record and in the light of the submissions made by the counsel

for the plaintiff on 03.09.2012, the court deemed it appropriate to direct

the parties to maintain status quo with regard to the title and possession

of the suit premises, till the next date of hearing, i.e., 4.3.2013.

9. In the month of November 2012, the defendant approached this

Court by filing an application under Order XXXIX Rule 4 CPC, registered as

I.A. No.20372/2012 seeking vacation of the aforesaid ex-parte ad interim

injunction order on the ground that the plaintiff had approached the Court

with unclean hands and had withheld material information at the time of

instituting the suit. Counsel for the defendant submitted that contrary to

the averments made by the plaintiff in the plaint to the effect that he was

running his business in the name and style of „Narula Bakery‟ from the

suit premises and that the defendant was carrying on his bakery business

from shop No.25, Nehru Bazar, Paharganj, New Delhi, in the name and

style of „Virender Confectionery‟, on 27.06.2012, i.e., prior to the date of

institution of the present suit, an Exchange Agreement had been executed

by the plaintiff and the defendant, whereunder the defendant had

received exclusive possession of the properties bearing No.3/38-A and

3/38-B, Nehru Bazar, Paharganj, New Delhi, wherefrom he had been

carrying on his business in the name and style of „Narula Bakery‟ and it

was the plaintiff, who had in fact received the exclusive possession of the

shop bearing No.25, Nehru Bazar, Paharganj, New Delhi. Counsel for the

defendant pointed out that the plaintiff had failed to place on record a

copy of the Exchange Agreement dated 27.06.2012, much less mention

the same in the body of the plaint.

10. Learned counsel had further submitted that upon the defendant

paying a sum of `25 lacs to the plaintiff in terms of the Exchange

Agreement, the plaintiff had vacated the suit premises and premises

No.3/38-B, Nehru Bazar, Paharganj, New Delhi, and he had handed over

possession thereof to the defendant. Pursuant thereto, the parties had

proceeded to execute a Confirmation Deed dated 16.09.2012, whereunder

the plaintiff had demanded and received an additional sum of `15 lacs

from the defendant and both the parties confirmed having executed the

earlier Exchange Agreement. It was submitted on behalf of the defendant

that the plaintiff had deliberately concealed from the Court all the

aforesaid events and the documents executed by the parties and after the

ex-parte ad interim injunction order dated 03.09.2012 had been granted

in his favour, he had started to threaten the defendant with

dispossession, thus compelling him to file I.A. No.20372/2012.

11. Mr.Aneja points out that even after the ex-parte injunction order

dated 3.9.2012 was granted by this court, the plaintiff had deliberately

failed to apprise the defendant about the said order and served the

defendant on an incorrect address of Shop No.25, as mentioned in the

memo of parties, knowing very well that the said shop was not in the

possession of the defendant, but exclusively in his own possession.

12. It is pertinent to note that when the aforesaid application was listed

in Court on 07.11.2012, the plaintiff was duly represented through

counsel and an advance copy of the said application had been duly served

on him a day in advance on 06.11.2012. However, learned counsel for the

plaintiff had sought time to file a reply to the application, which was so

granted to her. At the same time, in view of the submission made by the

counsel for the defendant, a Local Commissioner was appointed to visit

premises No.3/38-A and 3/38-B, Nehru Bazar, Paharganj, New Delhi, and

shop No.25, Nehru Bazar, Paharganj, New Delhi and file a status report as

regards the possession/occupation of the said shops. The fees of the

Local Commissioner was fixed at `50,000/- apart from actual expenses

and it was made clear that in case the report of the Local Commissioner

would bear out the submissions made by the counsel for the defendant,

then the fees and expenses incurred by him, would be reimbursed by the

plaintiff.

13. Pursuant to the aforesaid order, the Local Commissioner executed

the commission and submitted a report dated 22.11.2012 stating inter

alia that the defendant was in possession of shops No. 3/38-A and 3/38-

B, Nehru Bazar, Paharganj, New Delhi, and the plaintiff was in possession

of shop No.25, Nehru Bazar, Paharganj, New Delhi, comprising of three

floors. The report mentions that the plaintiff was present at the spot when

the commission was executed and he had stated that he was in exclusive

possession of shop No.25, Nehru Bazar, Paharganj, New Delhi, on the

basis of some compromise arrived at with the defendant but claimed that

he did not remember the exact date when the compromise was arrived at,

except for stating that the same had taken place in the first week of July,

2012 as well as in September, 2012.

14. Today, learned counsel for the plaintiff starts by stating that he may

be permitted to withdraw the present suit in view of the settlement

arrived at with the defendant. The said request is, however, vehemently

opposed by the counsel for the defendant, who submits that the plaintiff

ought to be visited with heavy costs for having mislead the Court and for

withholding material information at the time of instituting the present

suit.

15. Counsel for the plaintiff denies the aforesaid submission and states

that the present suit instituted by the plaintiff is only in respect of the

business being run in the name and style of „Narula Bakery‟ and not in

respect of the premises that have been mentioned in the plaint. When

confronted with the documents filed by the defendant under index dated

31.10.2012, including the Exchange Agreement dated 27.06.2012 and the

Confirmation Deed dated 16.09.2012, learned counsel for the plaintiff

does not deny the execution of the aforesaid documents but seeks to

explain that the Exchange Agreement had not been acted upon at the

time of institution of the suit and therefore, the plaintiff did not deem it

necessary to advert to the said document or even file a copy thereof at

the time of instituting the suit. He further states that in terms of the

Exchange Agreement, the defendant was required to pay a sum of `25

lacs to the plaintiff, whereas till the date of institution of the suit, the

plaintiff had received only a sum of `23.5 lacs and as a balance sum of

`1.5 lacs had remained outstanding, it could not be presumed that the

Exchange Agreement had been acted upon.

16. It may be noted that under the aforesaid Exchange Agreement, the

plaintiff and the defendant had agreed to exchange their ownership in the

suit premises, i.e., premises No.3/38, Nehru Bazar, Paharganj, New Delhi

and shop No.25, Nehru Bazar, Paharganj, New Delhi, so that the plaintiff

would become the owner of shop No.25, Nehru Bazar, Paharganj, New

Delhi, and the defendant would become the owner of property No.3/38-A,

Nehru Bazar, Paharganj, New Delhi. On a query posed to learned counsel

as to why the plaintiff did not approach the Court immediately after

executing the Confirmation Deed dated 16.09.2012, which was only a

couple of weeks after summons had been issued in the suit, counsel for

the plaintiff replies that he thought it fit to await the actual date of

hearing fixed in the matter before the Court for making such a

submission.

17. The Court has heard the counsels for the parties and after

considering their submissions, is of the considered opinion that

undoubtedly, the plaintiff has tried to mislead the Court, withheld material

information and has tried to abuse the process of the Court. The aforesaid

observations have been made in view of the fact that the averments that

have been made by the plaintiff in para 8 of the plaint with regard to a

settlement that was arrived at with the defendant are found to be

extremely evasive, if not deliberately ambiguous. The said observation is

also made for the reason that at the time of institution of the present suit,

i.e., on 31.08.2012, the plaintiff was well aware of the fact that he had

executed an Exchange Agreement with the defendant on 27.06.2012 and

in terms thereof, he had admittedly received a sum of `5 lacs from the

defendant on 29.06.2012, a further sum of `5 lacs on 03.07.2012 and a

third installment of a sum of `5 lacs on 05.07.2012. Apart from the

aforesaid amounts, at the time of execution of the Exchange Agreement,

i.e., on 27.06.2012, out of the total sale consideration of `25 lacs, the

plaintiff had received a sum of `10 lacs from the defendant as earnest

money. Further thereto, a Confirmation Deed dated 16.09.2012 had been

executed where under the plaintiff had received an additional sum of `15

lacs taking the total sale consideration to a substantial amount of `40

lacs. Thus, it was incumbent on the plaintiff to have specifically

mentioned having received the aforesaid amounts from the defendant

under the Exchange Agreement dated 27.06.2012.

18. Assuming that the plaintiff did not make any averment with regard

to the aforesaid sequence of events in the body of the plaint, the least

that was expected of him was to have placed on record the Exchange

Agreement that had been executed between the parties. While filing a

series of documents, which are as many as seventeen in number, the

plaintiff has deliberately withheld the aforesaid material documents from

the Court. Further, if the plaintiff claims to be bonafide, then he should

have demonstrated his bonafides by approaching his counsel immediately

upon execution of the Confirmation Deed dated 16.09.2012 and ought to

have requested him to withdraw the suit. However, no such steps were

taken by him till as late as today.

19. In the meantime, the defendant had approached the Court on

07.11.2012 by filing an application for vacation of the ex-parte interim

order and it was only then that notice was issued to the plaintiff. On the

said date, instead of admitting as true, the averments made by the

defendant in the said application and the documents filed by him including

the Exchange Agreement and the Confirmation Deed, and accepting the

aforesaid sequence of events, counsel for the plaintiff, who had appeared

on advance copy, sought time to file a reply to the application.

Incidentally, the said reply has yet to see the light of the day.

20. Even if the counsel for the plaintiff was unaware of the sequence of

events that had transpired between 03.09.2012 and 07.11.2012, nothing

precluded him from calling upon his client to give a clarification in respect

of the events mentioned by the defendant in his application. If the

intention of the plaintiff was truly bonafide, he ought to have approached

the Court in the first instance and apprised it of the aforesaid events and

sought leave to withdraw the suit. Instead, the plaintiff found it

convenient to remain silent and resultantly, the interim order continued to

operate to the detriment of the defendant. Later on, when the Local

Commissioner proceeded to execute the commission, the correct status as

to the possession of the suit premises and the shop No.25, Nehru Bazar,

Paharganj, New Delhi emerged. Pertinently, even after the commission

was executed at the end of November, 2011, the plaintiff did not make

any effort to approach the Court for withdrawal of the present suit. In

such circumstances, the Court is simply unconvinced by the submissions

made by the counsel for the plaintiff today that he had thought it would

be appropriate to seek withdrawal of the suit on the date fixed, as nothing

precluded the plaintiff from filing an application for seeking withdrawal of

the suit much earlier, particularly after the parties had acted upon the

Exchange Agreement dated 27.06.2012 and thereafter, the plaintiff had

received a substantial amount from the defendant and then the parties

had executed the Confirmation Deed within two weeks from the date of

issuance of summons in the suit.

21. In view of the aforesaid facts and circumstances and the conduct of

the plaintiff, his request for withdrawal of the suit is allowed subject to

payment of costs of `1 lac to the defendant within four weeks. Besides

the above, the plaintiff shall also reimburse the defendant for the fees

paid to the Local Commissioner and the out of pocket expenses incurred

by him, which are to the tune of `55,000/-. The said amount shall also be

paid within the same timeline. The suit is dismissed alongwith the

pending applications.

22. At this stage, counsel for the defendant points out that the court

fees paid by the plaintiff is deficient for the reason that the amendment to

the Court Fees Act had been given effect to w.e.f. 01.08.2012 and the

present suit had been instituted by the plaintiff on 31.08.2012 and on the

said date, he was required to pay ad valorem court fee calculated @ 4%

on the sum of `21 lacs, as mentioned in para 13 of the plaint. However,

the plaintiff has paid court fees of `22,850/- as against the court fees of

`84,000/- actually payable by him post amendment to the Act.

23. In view of the aforesaid position, the plaintiff is further directed to

make good the deficiency in the court fees as pointed out above within

two weeks. In case the plaintiff fails to make good the deficiency in the

court fees, then the same shall be treated as arrears of the land revenue

and recovered from him in accordance with law.

24. List before the Joint Registrar on 9th April, 2013 for compliance of

this order.

25. The date fixed before the Joint Registrar, i.e., 9 th September, 2013

stands cancelled.

                                                            (HIMA KOHLI)
MARCH 4, 2013                                                   JUDGE
rkb/mk