Delhi High Court
Shri Ram Grocery vs Mitra Hospital Private Limited on 30 July, 2018
$~CA-35
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 30.07.2018
+ CO.PET. 685/2016
SHRI RAM GROCERY ..... Petitioner
Through
versus
MITRA HOSPITAL PRIVATE LIMITED ..... Respondent
Through Mr.Ramji Srinivasan, Sr.Adv. with
Mr.Mahesh Kumar, Mr.Debashis
Mukherjee, Ms.Simran Soni, Mr.Naveen
Hegde and Ms.Aishwarya, Advs. for
respondent.
Mr.Sangram Patnaik and Ms.Rukmani
Mukherjee, Advs. for applicant in CA
1582/2017.
Ms.Isha Khanna, Adv. for the OL.
Mr.A.K.Singh, Adv. for Bank of Baroda.
CORAM:
HON'BLE MR. JUSTICE JAYANT NATH
JAYANT NATH, J.(ORAL)
CA 1582/2017 & CA No.348/2018
1. CA 1582/2017 is filed on behalf of the Ex.Directors of the respondent
seeking de-sealing of the premises at Khasra No.306-M, 307-M and 312
situated at Village Morna, Near Metro Pillar No. 199, Main Road Morna,
Near Sector-35, Noida, U.P.
2. CA 348/2018 is filed on behalf of the applicant Kamal Sports Pvt.
Ltd. for directions to the respondent company in liquidation or Triage
Healthcare (India) Private Limited to pay the outstanding amount/rent of
Rs.3,08,99,119/- for the said premises to the applicant Kamal Sports Private
Co.Pet.685/2016 Page 1
Limited.
3. This court appointed the OL as the Provisional Liquidator on
16.8.2017. A team from the office of the OL visited the said premises on
6.9.2017 for the purpose of taking over possession. There the representative
of the OL was informed that the owner of the building is Kamal Sports
Private Limited. Two patients were said to be admitted at that time. Except
the second and third floor, all other rooms were sealed by the team. In the
meantime, the respondent company has settled its disputes with the
petitioner. None is appearing for the petitioner.
4. Controversy now centres around as to whether the possession of the
premises noted above should be handed over to the owner of the premises
Kamal Sports Private Limited or to Triage Healthcare (India) Private
Limited or to the respondent company.
5. The case of the owner/Kamal Sports Private Limited is that they are
the owners of the property and have entered into a registered lease deed with
Triage Healthcare (India) Private Limited for 18 years on 30.1.2014. It is
also the case of the said Kamal Sports Private Limited that Triage
Healthcare (India) Private Limited is in default of payment of rents and
hence the respondent company/said company sought to hand over the
possession of the premises back to Kamal Sports Private Limited on
20.7.2017. Kamal Sports Private Limited has relied upon two documents
dated 20.7.2017 and 30.11.2016 to show their possession prior to the sealing
of the building by the OL. Hence learned counsel for Kamal Sports Pvt. Ltd.
submits that possession should be released to them.
6. Learned counsel appearing for Triage Healthcare (India) Private
Limited and the respondent company, however, submits that the company
Co.Pet.685/2016 Page 2
Triage Healthcare (India) Private Limited was running the hospital using the
brand Mitra Hospital. It is pleaded that when the OL went to take possession
on 6.9.2017 it was the staff and doctors of Triage Healthcare (India) Private
Limited who were in possession and two patients were also found there.
Subsequently, it is Triage Healthcare (India) Private Limited which has
handed over possession to the OL. Hence, it is pleaded that possession of the
property has to come back to Triage Healthcare (India) Private Limited. It is
also further pleaded that the winding up proceedings are against the
respondent company. The said respondent company has nothing to do with
the property in question. OL has wrongly sealed the property presuming it to
be occupied by the respondent company. Learned senior counsel has also
vehemently argued that the documents dated 30.11.2016 and 20.07.2017
relied upon by the Kamal Sports Pvt. Ltd. were never signed by Triage
Healthcare (India) Private Limited. He has also relied upon judgments of
this court in Scholastic India Private Limited vs. Gurgaon Packaging
Private Limited, MANU/DE/3321/2014 and of the Supreme Court in Raju
Jhurani vs. M/s.Germinda Pvt.Ltd., AIR 2012 SC 3191 to contend that
where there are disputed questions of fact the issue would have to be
adjudicated upon by a Civil Court and not by this court.
7. I may first look at the report that was filed by the OL, namely, report
No.314/2017. In the report OL has confirmed that when the OL visited the
building for taking over possession on 6.9.2017 the signboard of the hospital
was of "MITRA Hospital". The premises has a five story building. It was
Mr.Rakesh Kumar Jha, HRD Manager, who informed that the owner of the
building is Kamal Sports Private Limited. The report also notes that
Mr.Amarjeet Singh and Mr.Rakesh Gupta reached the site and informed the
Co.Pet.685/2016 Page 3
team that they are the owners of the premises and possession of the same
was handed over to M/s. Kamal Sports Pvt. Ltd. in July 2017. The hospital
was found in running condition. Two patients were there at the second floor
of the premises. The OL team discussed the matter with the doctors and
nurses available there at the time of inspection and were informed that the
patients had been operated upon two-three days back and were not in a
position to shift to another hospital. Hence, the second floor, the emergency
room and the third floor staff room was not sealed by the OL. Except the
above rooms all other rooms were sealed by the team. On 8.9.2017 the team
visited the hospital again but neither the patients nor the doctors or
employees were found. Hence, the entire building was sealed. The OL has
also in the report stated that Kamal Sports Private Limited has appeared and
shown its original title documents. It is also pleaded that the OL has incurred
liquidation expenses of Rs.6,55,302/-.
8. The applicant, namely, Kamal Sports Private Limited is relying upon
two documents to plead that possession of the property had been handed
over back to them and they were in possession when the OL sealed the
premises. These two documents are dated 20.7.2017 and 30.11.2016 by
which Triage Healthcare (India) Pvt. Ltd. appears to have handed over
physical possession to Kamal Sports Private Limited.
9. This court on 20.12.2017 noting the controversy had directed the
personal presence of Shri Deepak Natrajana and Shri Prashant Agarwal the
signatory of the two documents dated 20.7.2017 and 30.11.2016.
10. Today, I have in court recorded the statement of Shri Prashant
Aggarwal Director of Triage Healthcare (India) Pvt. Ltd. who has stated that
he has not signed the letter dated 30.11.2016 which is a document with the
Co.Pet.685/2016 Page 4
title „possession certificate‟. He has also stated that he is unable to identify
the signatures of Shri Deepak Natrajan Director of Triage Healthcare (India)
Pvt. Ltd. on the copy of the letter dated 20.7.2017.
11. I may first look at the communication dated 30.11.2016. The said
document reads as follows:-
"Date: 30.11.2016
POSSESSION CERTIFICATE
I, Prashant Agarwal s/o Sh.M.K.Agarwal R/o A-22, Sector-41, Noida
and One of the Director of M/s.Triage Healthcare (India) Private
Limited, at B-IV/97, Ashok Vihar Phase-II, New Delhi-110034 do
hereby declare that:
1.That I am handover the physical possession of the building of
MITR Hospital (A Unit of Triage Healthcare India pvt. Ltd.) at
A-1. Golf Course Road, Village Morna, Sector-35, Noida to
Landlord M/s.Kamal Sports Private Limited towards default
payment of rent of 12 months as committed on 5 th November
2016 vide letter No.16/11/01.
Thanking you,
Yours sincerely,
For Triage Healthcare (India) Pvt. Ltd.
(Dr.Prashant Agarwal)
Director"
12. Dr. Prashant Aggarwal has denied having executed this document.
Reference may also be had to a communication dated 20.7.2017 which is
said to be executed by Dr.Deepak Natrajan. The same reads as follows:-
" Date: 20-07-2017
Co.Pet.685/2016 Page 5
To,
M/s.Kamal Sports Pvt. Ltd.,
8, East Guru Angad Nagar,
Delhi-110092
"Sub: Surrender Possession of Mitra Hospital (A Unit of Triage
Healthcare (India) Pvt. Ltd.
I, Dr.Deepak Natarajan, s/o Late Sh.Kuppuswamy Natarajan Aiyer,
R/o G-164, Setor-41, Noida-201301 & Director of M/s. Triage
Healthcare (India) Pvt. Ltd. having its registered office at B-IV/97,
Ashok Vihar Phase-2, New Delhi-110052, submitted the following:
1) That I am the Director of the above referred company M/s.Triage
Healthcare (India) Pvt.Ltd.
2) That I am the share holder of the said company.
3) That I possesses 50% share of the said company.
4) That I am competent to take decision on behalf of the company,
vide Memorandum of Understanding dated 1st day of April 2017
and signed on 5th day of April 2017 by both the parties and
witnessed by Sh.Rakesh Gupta and Sh.Amarjeet Singh.
5) That the decision taken by me is binding on the said company.
6) That the decision taken by me is with the consent of other director
and 2nd share holder of the company.
7) That as per Memorandum of Understanding dated 1 st of April 2017
I invested a huge sum in the said company and also undertaken to
run the Hospital and payment of rent.
8) That I am not able to meet the expenses so requested the Owner of
the building to take possession of the building on or before
31.07.2017.
9) That this decision to handover the possession of the building was
given by Dr.Prashant Agarwal, the 2nd Director of the company
earlier also.
10) That after 25th of July I have not admitted any patient in the
Hospital.
11) That I have surrendered the possession of the building to the
owner without any pressure upon me.
Co.Pet.685/2016 Page 6
Thanking you,
For Triage Healthcare (India) Pvt. Ltd.
-signed-
(Director)"
13. There are two things which emerge. Firstly, the company that is
sought to be wound up is MITR Hospital Private Limited. Admittedly,
MITR Hospital Private Limited has nothing to do with the said property in
question. No doubt, there is no clarity about the relationship between Triage
Healthcare (India) Private Limited and the respondent company except that
the hospital is run using the brand MITRA and there is commonality of
management of the two companies. However, the lease is between Kamal
Sports Private Limited and Triage Healthcare (India) Private Limited which
is a lease dated 30.1.2014. It is a registered lease for 18 years. To that extent
there is merit in the contention of the Triage Healthcare (India) Private
Limited that the OL has erroneously been misled by the respondent
company/its Directors to seal the building as MITR Hospital Private Limited
the company under liquidation has no rights in the said premises.
14. The next issue arises as to who was in possession of the building
when the OL sealed it. As per report of the OL in OLR No.314/2017 when
the OL visited the building a hospital was being run and doctor, nurses and
other HRD staff of Triage Healthcare (India) Private Limited were present
on the spot. When the team from the OL went again two days later the
patients had been discharged and there was nobody at the site. This report
appears to show that it was Triage Healthcare (India) Private Limited who
was in possession at that time when OL sealed the premises.
15. Reference may also be had to the communications which have been
Co.Pet.685/2016 Page 7
relied upon by the applicant Kamal Sports Private Limited, namely, the two
letters dated 30.11.2016 and 20.7.2017. Learned senior counsel for Triage
Healthcare (India) Private Limited submits that the said documents were
never executed by it. Dr.Prashant Aggarwal has stated on Oath in the court
that he has not signed the communication dated 30.11.2016. No doubt,
M.Deepak Natrajan has not appeared on account of some disputes between
the two Directors, but Triage Healthcare (India) Ltd. denies the letter dated
20.7.2017. Learned counsel appearing for Kamal Sports Private Limited had
strongly advocated that these documents may be sent to CFSL to obtain their
views on the signatures of the documents. I am of the view that the
execution/non-execution of these documents and their effect is something
which will have to be adjudicated upon in a civil court. It is not for this court
to go into this controversy and record a finding. In this context reference
may be had to judgment of the Supreme Court in Raju Jhurani vs.
M/s.Germinda Pvt. Ltd., AIR 2012 SC 3191. A winding up petition was
filed by the landlord for the arrears of rent against the tenant company. In
those facts the Supreme Court held as follows:-
"13. Viewed in the context of what has been stated
hereinabove, we are unable to accept the second limb of Ms.
Shobha's submissions. There are various stages involved in
deciding the amount of rents payable and the periods of default
and also the amount to be ultimately calculated on account of
such default and the same cannot be tried in a summary way,
without adducing proper evidence. It is, therefore, necessary
that such issues be heard and tried in a properly constituted
suit for recovery of such dues, in which the issue relating to
the actual dues payable by the Respondent-tenant to the
Appellant-landlord can be decided.
Co.Pet.685/2016 Page 8
14. We, therefore, set aside the findings of the learned Single
Judge, as also the Division Bench, in regard to the application
of the provisions of Order 2 Rule 2 Code of Civil Procedure to
a winding-up proceeding under the Companies Act that may
be filed for recovery of the dues payable by the Respondent-
tenant to the Appellant-landlord. We are, however, ad idem
with the Division Bench that the relief of the Appellant-
landlord, if any, in this case, will not lie in a winding-up
petition, but in a suit filed for the said purpose, particularly
when the said relief is not available under the rent laws which
only deal with protection of tenants from eviction and the right
of the landlords to recover the tenanted premises on the
grounds specified therein."
16. There is another aspect which needs my consideration, namely, the
unpaid rental dues which as per Kamal Sports Private Limited is to the tune
of Rs.1.56 crores. In the course of arguments, learned counsel for Kamal
Sports Private Limited has submitted that rent has not been paid for nearly
two years by Triage Healthcare (India) Private Limited. As per the lease
between the parties dated 30.1.2014 the agreed monthly rent is currently
about Rs.13 lacs per month. Learned senior counsel appearing for Triage
Healthcare (India) Private Limited has, however, submitted that there are
serious issues about liability to pay the rent in view of the fact that Kamal
Sports Private Limited was obliged to get an appropriate certificate from the
concerned statutory authority certifying that the building is a commercial
building. The said Kamal Sports Private Limited has failed to produce the
said certificate. The contention of Triage Healthcare (India) Private Limited
regarding non-availability of a commercial certificate is again, in my
opinion, also a disputed question that will have to be adjudicated upon by
appropriate civil court.
Co.Pet.685/2016 Page 9
17. However I cannot help noticing that Triage Healthcare (India) Private
Limited has converted an area of 33,000 sq. Feet into a Multi Speciality
Hospital but yet claims now four years or thereabout after execution of the
lease that there was no commercial certificate. It also claims that it has been
running a hospital from the premises without a commercial certificate. Prima
facie, it appears that Triage Healthcare (India) Ltd. is at default in payment
of rent.
18. The legal position is quite clear. "He who seeks equity must do
equity." Keeping in view the above facts i.e. the registered lease deed in
favour of Triage Healthcare (India) Pvt. Ltd. and the prima facie finding
recorded above that the building was in possession of the Triage Healthcare
(India) Pvt. Ltd. when it was sealed, I direct the OL to hand over the
possession of the aforesaid properties to Triage Healthcare (India) Pvt. Ltd.
subject to the following conditions:-
(i) Triage Healthcare (India) Pvt. Ltd. shall pay to the Kamal Sports
India Private Limited advance rent at the rate as stated in the registered lease
deed dated 30.01.2014 for five months being rent to be adjusted against dues
for future five months of rent from the date Triage Healthcare (India) Private
Limited receives possession. This advance rent will be paid within four
months from today.
(ii) Triage Healthcare (India) Pvt. Ltd. shall also pay the security
expenses incurred by the OL for the property for the period after possession
was taken over by OL.
(iii) On fulfilment of the above conditions possession will be handed over
to Triage Healthcare (India) Pvt. Ltd. In case Triage Healthcare (India) Pvt.
Ltd. is unable to comply with the above directions within four months the
Co.Pet.685/2016 Page 10
OL may hand over possession to Kamal Sports Private Limited of the
premises. In the eventuality that the possession is handed over to Kamal
Sports Private Limited the same shall only be done subject to Kamal Sports
Private Limited paying all the expenses incurred by the OL in this regard.
19. Any observations made by this court above will not bind any of the
parties in any civil proceedings. All issues are kept open in the eventuality,
any of the parties chose to initiate any civil proceedings. The rent if paid as
above would be adjusted against future rentals payable by Triage Healthcare
(India) Pvt. Ltd. in terms of the lease deed dated 30.01.2014 and will be
subject to any orders that the civil court may pass in this regard. The
applications and the report of the OL stand disposed of.
20. The security will be deployed by the OL on the premises till
possession is handed over to either of the parties.
Co.Pet.685/2016
21. There is no impediment now in making an order revoking the
appointment of the OL. In view of the fact that there is a Settlement between
the respondent company and the petitioner subject to the above obligations
by the OL the order appointing the OL as the provisional Liquidator dated
16.8.2017 would stand revoked.
22. Petition stands disposed of.
JAYANT NATH, J.
JULY 30, 2018/n
Co.Pet.685/2016 Page 11
