Lakhbir Singh vs Arun Kumar Khanna
2013 Latest Caselaw 4871 Del

       THE HIGH COURT OF DELHI AT NEW DELHI
%                                      Judgment delivered on: 23.10.2013

+       FAO(OS) No. 463/2013

LAKHBIR SINGH                                                   ... Appellant

                                        versus

ARUN KUMAR KHANNA                                               ... Respondent
Advocates who appeared in this case:
For the Appellant       : Mr I.S. Aiag, Ms Ishita Chakrabarti and Mr J.S. Bindra
For the Respondent      : Mr Sudhir K. Makkar, Ms Meenakshi Singh and Mr S. Nayak

CORAM:-
HON'BLE MR JUSTICE BADAR DURREZ AHMED
HON'BLE MR JUSTICE VIBHU BAKHRU

                                   JUDGMENT

BADAR DURREZ AHMED, J (ORAL)

CAV 919/2013 The learned counsel for the caveator is present.

The caveat stands discharged.

CM No. 16424/2013 The exemption is allowed subject to all just exceptions. FAO(OS) No. 463/2013 & CM No. 16423/2013

1. The present appeal is directed against the order dated 10.09.2013 passed by a learned Single Judge of this court in I.A No. 2822/2012 in CS(OS) No. 1030/2009. The said application had been moved by the appellant / plaintiff seeking an order directing the defence of the

defendant to struck off on account of failure on the part of the defendant to deposit an amount of Rs 52 lakhs in the court in terms of the order dated 26.04.2010 as also in terms of the undertaking furnished by the defendant / respondent as recorded in the order dated 04.06.2010 and the affidavit dated 10.06.2010 to the same effect.

2. The plaintiff had filed an application being I.A No. 7381/2009 under Order XXXIX Rules 1 and 2 CPC seeking an ex-parte injunction. That injunction was granted to the plaintiff by virtue of the order dated 27.05.2009. Subsequent thereto, the defendant filed an application under Order XXXIX Rule 4 CPC being IA No. 8004/2009 for vacation of the said ex-parte injunction order pertaining to the property bearing No. 3 (Ist Floor), Road No. 5, Punjabi Bagh Extension, New Delhi.

3. The said applications under Order XXXIX Rules 1 & 2 CPC and under Order XXXIX Rule 4 CPC were disposed of by an order dated 26.04.2010 passed by a learned Single Judge. The ex-parte injunction order which had been earlier granted in favour of the plaintiff / appellant was vacated. However, as a condition of vacating the said ex-parte injunction order, the learned Single Judge directed the defendant to deposit an amount of Rs 52 lakhs with the court within a period of six weeks. The said sum of money of Rs 52 lakhs was computed on the basis of the admitted position that the defendant / respondent had received a sum of Rs 45 lakhs as on July, 2007. The learned Single Judge felt that, since the injunction was being vacated, the defendant / respondent could not be permitted to retain the said sum of Rs 45 lakhs. Consequently, the learned Single Judge required the defendant / respondent to deposit the

said sum of Rs 45 lakhs along with requisite interest, which in total was computed at Rs 52 lakhs, within a period of six weeks. The order dated 26.04.2010 specifically records that the direction to the defendant to deposit the said sum of Rs 52 lakhs was a condition for the order.

4. However, the said deposit was not made within the period stipulated and the defendant / respondent moved an application seeking extension of time for depositing the said sum. That was extended by an order dated 04.06.2010 by a further four weeks. The said order also required the defendant / respondent to furnish an undertaking in the form of an affidavit that the said deposit would be made within a further period of four weeks. However, despite the undertaking being furnished on 10.06.2010, the defendant / respondent did not deposit the said sum of Rs 52 lakhs. This led the plaintiff / appellant to file an application (I.A No. 2822/2012 under Section 151 CPC) for striking off the defence of the defendant / respondent on the ground that the said sum of Rs 52 lakhs had not been deposited despite clear directions by the court and the solemn undertaking given by the defendant / respondent. This application was, however, rejected by the learned Single Judge and that is how the appellant / plaintiff is before us.

We are of the view that the requirement of depositing of Rs 52 lakhs was a condition of vacating the ex-parte injunction order which had been operating in favour of the plaintiff / appellant till the order dated 26.04.2010 vacating the same was passed. The consequence of not depositing the said sum of Rs 52 lakhs would, obviously, be that the injunction which had inured to the benefit of the plaintiff would continue.

It may be pointed out that in the meanwhile, the plaintiff / appellant had filed an appeal being FAO(OS) No. 552-53/2010 which was disposed of by a Division Bench of this court on 21.04.2011. In that order also it has been noted that the amount of Rs 52 lakhs had not been paid by the defendant / respondent and that its effect would be that the stay which operated in favour of the plaintiff would continue to operate.

5. In view of the foregoing circumstances, we are of the opinion that the learned Single Judge was correct in dismissing the appellant's / plaintiff's application for striking off the defence because the consequence of not depositing the sum of Rs 52 lakhs was clearly that the injunction order would continue to operate in favour of the appellant / plaintiff. The requirement of depositing the sum of Rs 52 lakhs was clearly a condition for vacating the stay order. Since that condition had not been complied with, the only consequence could be that the stay order would continue to operate. It could not mean that the defence of the defendant would be struck off.

6. As a result, we do not find any merit in the present appeal. The same is dismissed. There shall be no order as to costs.

BADAR DURREZ AHMED, J

VIBHU BAKHRU, J

OCTOBER 23, 2013 SU