JUDGMENT
Mahesh Chandra, J.
(1) By this order I propose to dispose of I.A. No. 7180 of 1986 filed by the plaintiff for grant of ad-interim injunction to restrain the defendant-Municipal Corporation of Delhi from recovering any tax in pursuance of its demand notice 180 dated 16th December, 1986 for Rs. 3,09,23,454/. This application is opposed on behalf of the defendant.
(2) This order would also dispose of Application (I.A. No. 599 of 1987) filed by the defendant-Municipal Corporation of Delhi (for short ‘M.C.D.’) for vacation of ex-parte ad-interim injunction issued by M.K. Chawla, J. vide his order dated 29th December, 1986 whereby subject to a deposit of Rs. 35 lacs by the plaintiff the demand notice dated 16th December, 1986 (Annexure IX) was to remain stayed. Reply to this application has also been filed by the plaintiff.
(3) This order would also dispose of I.A. No. 3785 of 1987 filed by the defendant under Section 151 Civil Procedure Code . for early hearing of above mentioned two I.As. In consequence of this application, arguments were heard on 15th July, 1987 and the same are proposed to be disposed of by this order.
(4) These I.As. in Suit No. 2684 of 1986 have been filed by the plaintiff M/s. Asian Hotel Limited against M.C.D. and another for grant of a decree of perpetual injunction restraining the defendants from recovering the amount of tax in the sum of Rs. 3,09,23,454.00 from the plaintiff in pursuance of order dated 11th December, 1986 and demand notice dated 16th December, 1986 for the years 1983-84, 1984-85, 1985-86 and 1986-87 in respect of I Bhikaji Cama Place New Delhi under coercive measures or otherwise. The said suit is being contested by the defendants.
(5) I have heard the learned counsel for the parties and have gone through the file and after giving my considered thought to the matter before me I have come to the following findings.
(6) To entitle the ad-interim injunction prayed for it is incumbent upon the plaintiff to establish that the plaintiff has got a prima facie case and the balance of convenience is in the grant of ad-interim injunction prayed for otherwise irreparable injury would occur to the plaintiff. To prove its prima facie case learned counsel for the plaintiff has contended that the D.D.A. had issued the occupancy certificate on 11th September, 1986 only and as such it cannot be said that the building of the plaintiff was complete for occupation until that date and consequently there could be no revision of assessment prior to 11th September, 1986. He has in this behalf drawn my attention to occupancy certificate No. F. 13 (73)80/Bldg./977/80 dated 11th September, 1986, a photostat copy whereof has been placed on record. It has further been submitted by him that the earlier assessment orders by the defendant were assailed by the plaintiff in different courts either in writ petitions or by way of regular civil suits and the recovery on the basis thereof has been stayed by those courts on deposit of certain portion of the impugned demands and the defendant has revised the said demands further in an upward detection which was not open to it, the same being subject matter of stay orders of the court and in this behalf my attention has been drawn to Annexure Ii, Iii and Iv to the plaint. These annexures go to show that the recovery of the impugned demands of the tax for the years 1983-84. 1984-85 and 1985-86 has been stayed by the civil courts, by these orders on the plaintiff’s depositing part amount of the demands. Likewise he has drawn my attention to Annexures Iva and Ivb to the plaint which also go to show that similar stay orders have been passed by S.S. Chadha, J. of this court in respect of two other demands of the earlier period of 1981-82 and 1982-83. This fact is even otherwise admitted by defendant No. 1 in paras 6 and 7 of its written statement. It is further admitted in the written statement by the defendant that in accordance with different stay orders referred to above the plaintiff has in fact deposited the part of the demand money with the M.C.D. and roughly 40 per cent of the demand money has already thus been deposited by the plaintiff. A perusal of Annexure V to the plaint would show that this is the notice of demand dated 16th March. 1986 which is assailed in this suit and it is effective from 1st April, 1983. Annexure Ii, Iii and Iv do go to show that the assessment of defendant No. 1 of 1, Bhikaji Cama Place, New Delhi already made by the defendant in respect of assessment years 1983- 84, 1984-85 and 1985-86 is the subject matter of dispute before the civil courts. It is also further contended on behalf of the plaintiff that even though the plaintiff has paid a sum of Rs. 2245,495.00 inaccordance with Annexure Xiii for the assessment years 1981-82 to 1985-86 to the defendant but no credit or rebate has been given for those payments as a perusal of Annexure Xiv would show and rather the entire demand of Rs. 3,12,49,551.00 is sought to be enforced illegally against the plaintiff by the defendant. Once it is admitted by the defendant that the amounts as directed by various courts have in fact been deposited by the plaintiff, it was incumbent upon the defendant to give rebate for those payments. It has also been submitted that in pursuance of orders dated 29th December, 1986 by this court another sum of Rs. 35 lacs has been paid by the plaintiff to the defendant which fact is also not disputed by the defendant and this makes a total of Rs. 57.50 lacs which has been paid by the plaintiff to the defendant and the plaintiff was entitled to rebate to that extent. Further contention of the learned counsel for the plaintiff is that the plaintiff has even been precluded by the Assessor and Collector, defendant No. 2 from filing an appeal against the order of assessment passed on 11th December, 1986 and in this behalf he has drawn my attention to para 86 of the order which is Annexure Viii to the plaint. It has similarly been urged by the learned counsel for the plaintiff that in arriving at the rateable value of Rs 1136,84,040.00 the defendant has wrongly included the cost of all the machinery for air-conditioning, electrical equipments, interior decorations and special furnishings of a Five Star Hotel in utter disregard of the law which requires that “no amount shall be taken of the value of any plant or machinery contained or stated in or upon any such land or building” and the defendant has ignored the valuation reports submitted to it by the plaintiff and the defendants have of their own and in an imaginary manner fixed the value of a room of the hotel at Rs.1,89,000.00 at a flat rate and has proceeded to assess the annual rateable value contrary to provisions of D.M.C. Act and the law laid down by the Supreme Court in this behalf. Lastly it has been submitted by the learned counsel for the plaintiff that the order of assessment is illegal, unjustifiable and against the mandatory provisions of B.M.C. Act.
(7) Learned counsel for the defendant on the other hand has submitted that the plaintiff has no prima facie case for grant of ad-interim injunction in as much as the original assessment at Rs. 25 lacs, which was later on revised to Rs. 28,99,400.00 , had been made in respect of the vacant plot of land as till then no construction had come up and it was only after substantial construction had come and was put to use and Was occupied with effect from 1st May, 1983 that the defendant was obliged to revise the assessment after necessary notice to Rs. ll,36,84,040.00 with effect from 1st May, 1983 in view of the communication received vide letter dated 16th August, 1983 from the plaintiff which indicated that .the hotel of the plaintiff had been partly opened on 1st May, 1983 and as such the plaintiff had got no prima facie case for grant of ad-interim injunction.
(8) These submissions of the learned counsel for the parties have to be considered in the light of admitted case of the parties. It is admitted case of both the parties that the plaintiff had purchased on perpetual lease basis in an open public auction conducted by the Delhi Development Authority (for short ‘D.D.A.’) one plot of land now known as 1, Bhikaji Cama Place, New Delhi on a payment of Rs. 4,36,00,000.00 for construction of a Five Star Hotel on the said plot as per plans sanctioned by the D.D.A. and the possession of the said plot was handed over to the plaintiff on 21st January, 1981 and the plaintiff started construction upon it in the same year and the perpetual lease deed was executed between the plaintiff and the D.D.A. on 22nd July, 1982. In pursuance of a notice issued under Section 126 of the Delhi Municipal Corporation Act (For short ‘D.M.C. Act’), defendant No. 1 assessed the plot with effect from 21st March, 1981 to land tax/property tax at an annual value of Rs. 25,00,000.00 which was later on raised to Rs. 28,99,400.00 with effect from 1st April, 1981 and this assessment was continued for the years 1981-82, 1982-83, 1983-84, 1984-85 and 1985-86 but on 16th March, 1984 the defendant M.C.D. sent a notice under Section 126 of the D.M.C. Act proposing to revise the said rateable value for purposes of property tax from Rs. 28,99,400.00 to Rs. 11,36,84,040.00 with effect from 1st April, 1983 on the ground of construction of hotel building and in spite of objections raised by the plaintiff the defendant passed an order on 11th December, 1986 and raise a demand on 13th December, 1986 of Rs.3,09,23,454.00 by way of property tax for the years 1983-84 to 1986-87 upon the plaintiff. The existence of prima facie case of the plaintiff has to be considered in the light of this admitted case of parties and various submission of counsel for the parties.
(9) At this stage it would be appropriate to consider as to what is implied by a ‘prima facie case’. The term ‘prima facie case’ does not imply that the plaintiff petitioner should have foolproof case and the court for that matter would not consider the ultimate merits of the case of the plaintiff. Rather to establish a prima facie case, the plaintiff would be required to show that he has raised certain friable issues and the claim of the plaintiff is neither frivolous nor untenable nor mala fide. There should be bona fide contentions between the parties which raise serious and substantial questions to be tried at the hearing. A prima facie case would exist where substantial questions are raised bona fide which need investigation and decision. In the light of this requirement it cannot be said that the plaintiff has not established the prima facie case for grant of injunction prayed for. Keeping in view the admissions of the defendant which have been brought out in foregoing para 8, it would be necessary to determine as to whether it was open to the defendant to revise the property tax and the rateable value for the years for which the same had already become final. It 187 would further be necessary to determine whether the plaintiff had played a fraud on the defendant by withholding any information regarding part occupation of the building while it was still under construction. Similarly it would also have to be determined if the defendant can assess the plot as a building while the building was still under construction and had not yet been completed Likewise other question which would have to be considered is as to what extent the defendant was entitled to club the cost of machinery, air-conditioning plant, land scaping, lifts etc. for assessing the rateable value of the property. Further question which would call for determination in this suit would be the effect of occupation of incomplete building in violation of D.D.A. bye-laws by the plaintiff and whether that violation would enable the defendant to revise the assessment. Yet another question which would have to be considered is the mode of calculating the cost of a room and then multiplying the cost of one room to the entire area of the hotel. All these questions go to suggest that there are bona fide contentions between the parties which raise serious and substantial questions to be tried and decided. In the face of such a situation it can be concluded that the plaintiff has established a Prima facie case existing in his favor for grant of ad-interim injunction prayed for.
(10) Coming to the question of balance of convenience it need be observed that once a prima facie case established to exist in favor of the plaintiff the balance of convenience would ordinarily lie in grant of ad-interim injunction rather than in refusal thereof, otherwise the chances are that the substantial michief, damage and injury that are likely to be done to the plaintiff if the injunction is refused would be much more than it is likely to be caused if the injunction is granted, more so when a sufficient part of the demand of the defendants have already been got paid under various orders of the courts to the defendants by the plaintiff. Where the plaintiff has established a prima facie case and the balance of convenience is in favor of grant of ad-interim injunction, it would follow that non-grant of ad-interim injunction would cause irreparable injury to the plaintiff. Irreparable injury would not mean an injury which cannot possibly be repaired but an injury which would be material by itself. Here is a case in which a demand of more than three crores rupees has been raised against the plaintiff and the plaintiff is obliged to pay the entire sum which incidentally includes the demands for not only the current years but previous years also for which the assessment had already been finalised and part whereof has even been paid under orders of the courts, it would certainly cause unnecessary hardship upon the plaintiff which by itself would be sufficient injury. My attention in this behalf has been drawn by the learned counsel for the defendant to Assistant Collector of Central Excise, Chandan Nagar, West Bengal vs. Dunlop India Ltd. and others, . There could be no dispute on the principle enunciated by the Hon’ble Supreme Court of India therein but the said observations were made in Civil Appeal arising out of the writ petition. Even otherwise each case has to be considered on its own peculiar facts. Somewhat similar was the position in Siliguri Municipality and others vs. Amalendu Das and others, . Keeping in view the admissions made by the defendant and the past conduct of the plaintiff coupled with the payments already made by the plaintiff it is appropriate that the injunction already granted is extended. Furthermore, the interest of the defendant would be looked after squarely in as much as I propose to direct the plaintiff to deposit a further sum of Rs. 35 lacs keeping in view the fact that a sum of Rs. 91,21.108.00 has been assessed to be the total tax for the year 1986-87 by the defendant in the impugned order, which would raise the total deposit to Rs. 70 lacs. 188
(11) From whichever angle I may consider the matter before me I find it is a fit case in which the ad-interim injunction already granted is extended till the decision of the suit and accordingly it is extended till the decision of the suit provided the plaintiff deposits another sum of Rs. 35 lacs within four weeks hereof and on failure of the plaintiff to deposit the said amount of Rs 35 lacs the injunction would stand vacated.
(12) Nothing observed above would effect the merits of the case which will be considered after the evidence has been led. This disposes of these I.As. Order accordingly.
