Gautam Kapoor & Anr vs Tanya Kapoor & Anr
2014 Latest Caselaw 1247 Del

*          HIGH COURT OF DELHI AT NEW DELHI

+                      CS(OS) No.669/2014

                                             Decided on : 07.03.2014

    GAUTAM KAPOOR & ANR                               ..... Plaintiffs

               Through:        Mr. V. Shankara, Advocate.

                      versus

    TANYA KAPOOR & ANR                                ..... Defendants


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

    V.K. SHALI, J. (ORAL)

1. This is a suit for permanent injunction and declaration filed

by the plaintiffs. The case of the plaintiffs is that they are

the son and daughter of Late Major N.P.Kapoor who is

alleged to have died in 1971 war. The defendant No.1 is the

mother of the plaintiffs and the widow of Late Major

N.P.Kapoor. It has been alleged in the plaint that at the time

when the father of the plaintiffs died, they were minor and

their mother/defendant No.1 was allotted a petrol pump by

defendant No.2 under the 'Army War Widow Quota' so as to

provide them succor on account of the unfortunate death of their father. The petrol pump was allotted to defendant No.1

at S-19, Green Park Extension, Opposite Yusuf Sarai

Market, Aurbindo Marg, New Delhi - 110016. It is averred

that a letter of intent dated 23.04.2001 was issued by the

defendant No.2 specifying the conditions on which the petrol

pump was allotted to defendant No.1. The condition No.6 of

the said letter of intent laid down that the defendant No.1

shall not make any changes in the constitution of the partners

or the applicants at the time when the petrol pump was

allotted to her. Pursuant to this, another Memorandum of

Agreement dated 10.10.2010 was also signed between the

defendant No.2 and defendant No.1. Some of the conditions

which are important in the said Memorandum of Agreement

are that the licensee shall not change the constitution of the

licence nor dissolve the partnership nor admit new member

as a partner nor allow any partner to withdraw from the

partnership without obtaining the previous consent in writing

from the defendant No.2/Company. As per clause 12 of the

licence agreement, the licence could be terminated without

assigning any reason whatsoever by either of the parties. Similarly, in case there were any breaches of the licence

agreement, the licence could be terminated. It has been

stated that on 19.07.2013, a show cause notice has been

issued to the defendant No.1, which she is alleged to have

received on 08.08.2013. The case which has now been set

up by the plaintiffs is that the defendant No.1 is presently in

judicial custody on account of certain FIRs having been

registered against her. She is alleged to have taken some

finances from one Mr.Naresh Tyagi for the purchase of

motor spirit and the high speed diesel which are sold at the

dispensing unit. It has been alleged Mr.Naresh Tyagi was

introduced to the defendant No.1 by way of Ms.Veena

Sharma, ACP of Police as a financier and businessman.

Under these circumstances, the following reliefs are claimed

by the plaintiff.

a) pass a decree of permanent injunction restraining the defendant No.2 to allot and/or issue licence to anyone allotted to the Defendant No.1 including revoking/canceling/allotment of the M/s Bharat Petroleum Corporation Ltd, Petrol Pump, at S-19, Green Park Extension, Opposite Yusuf Sarai Market, Aurbindo Marg, New Delhi - 110016 allotted in favour of the Defendant No.1/ M/s. T.K.Oil Company (Prop. Defendant No.1);

b) Pass a decree of declaration in favour of the plaintiffs and against the defendants that plaintiffs are the co-allottees/co-licencees/co- sharers of the Petrol Pump of BPCL at S-19, Green Park Extension, Opp.Yusuf Sarai Market, New Delhi - 110016;

c) Pass a decree of declaration in favour of the Plaintiffs and against the Defendant No.1 declaring that all the papers, deeds, agreements, documents signed by the Defendant No.1 voluntarily or under duress, undue influence, coercion in favour of the third party against the interest and rights of the plaintiffs are null and void not binding upon the Plaintiffs in respect of the Petrol Pump S-19, Green Park Extension, Opp. Yusuf Sarai Market, New Delhi 110016 allotted in favour of the Defendant No.1."

2. The court had asked a question to the learned counsel for the

plaintiffs as to how the suit was maintainable as there was

complete lack of cause of action so far as the plaintiffs are

concerned. The learned counsel has not been able to show

as to how the plaintiffs have the locus to seek a declaration

that they are the co-licencees in respect of the petrol pump in

question despite the fact that it is their own case that the

letter of intent dated 23.04.2001 was issued to the defendant No.1 in her individual capacity and she has signed the

Memorandum of Agreement dated 10.10.2010 with the

defendant No.2/Company in individual capacity as a

proprietor of one M/s T.K.Oil Company. The injunction

which has been sought is that the licence may not be

revoked/cancelled/allotted to somebody else. Since no

declaration can be issued as the plaintiffs do not have any

right to the petrol pump, therefore, there is no question of

granting any injunction also. Under these circumstances, I

feel that apart from the locus of the plaintiffs, there is hardly

any cause of action in favour of the plaintiffs to file a suit

against the defendant No.2. It seems to be a surrogate suit

filed on behalf of the defendant No.1, the mother of the

plaintiffs, who is presently in custody. I am of the view that

the plaint is liable to be rejected under Order 7 Rule 11(a)

CPC. Ordered accordingly.

V.K. SHALI, J.

MARCH 07, 2014 dm