4* HIGH COURT OF DELHI : NEW DELHI
FAO No. 214/2008 & CM No. 9528/2008
% Judgment reserved on: 08th December, 2009
Judgment delivered on: 11th January, 2010
1. Shri Subhash Seth
S/o Late Dr. D. D. Seth,
R/o 617, Begum Bagh, Meerut (U.P)
2. Shri Chand Grover,
S/o Nishchint Grover,
R/o 178/79, Pate Nagar, Meerut (U.P)
3. Smt. Sangeeta Malik,
W/o Shri Ravinder Malik,
R/o 617, Begum Bagh, Meerut (U.P)
All through their General Attorney
Shri Ashok Goel
S/o Late Shri Hari Ram Goel,
R/o 28/42, West Punjabi Bagh,
New Delhi.
....Appellants.
Through: Ms. Geeta Luthra, Sr. Adv. with
Mr. A. C. Bhasin, Mr. Amit Bhasin
and Mr. Abhishek Agarwal, Adv.
Versus
M/s New Delhi Hotels Limited,
Hotel Ambassador, Sujan Singh Park,
New Delhi (Service to be effected through its Managing
Director/Authorised Signator/Manager)
....Respondent.
Through: Mr. Mohit Gupta.
Coram:
HON'BLE MR. JUSTICE V.B. GUPTA
1. Whether the Reporters of local papers may
F AO No. 214/2008 Page 1 of 10
be allowed to see the judgment? Yes
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be reported
in the Digest? Yes
V.B.Gupta, J.
Present appeal has been filed against order dated 3rd June, 2008, passed by
Additional District Judge, Delhi, vide which appellants application under Order
39 Rules 1 and 2 of Section 151 of Code of Civil Procedure (for short as ‘Code’)
was dismissed.
2. Appellants case is that one Smt. Kailash Rani, wife of Sh. Amarnath
Gupta, booked a flat bearing no. 803, 8th Floor, Mercantile House, 15 Kasturba
Gandhi Marg, New Delhi and deposited the required amount for the same with
respondent company. Smt. Kailash Rani, nominated Sh. D. D. Grover, son of Sh.
I. D. Grover and accordingly, the said flat was transferred in the name of Sh. D.
D. Grover, vide letter dt. NDHL/CR-105/Dated 22.09.1985.
3. During his lifetime, Sh. D. D. Grover paid to the respondent a sum of
Rs.4,56,865/- with respect to the said flat, which was under construction at the
relevant time. Sh. D. D. Grover was murdered on 15.5.1988. During his lifetime,
he had executed a Will dt. 9.11.1986 in respect of his properties, including the flat
in question, in favour of his sister Smt. Satya Wati Seth, as Sh. D. D. Grover was
bachelor.
4. Thereafter, Smt. Satya Wati Seth applied for grant of Probate for the
properties left by Late Sh. D. D. Grover, including the flat in question. During
pendency of the probate proceedings, Smt. Satya Wati Seth also expired on
F AO No. 214/2008 Page 2 of 10
23.01.2003 intestate, leaving behind appellants herein, as her two sons and one
daughter, as the only legal heirs.
5. Appellants obtained Probate of the will of the deceased Sh. D. D. Grover
who was admittedly accepted as nominee of Smt. Kailash Rani, for
Reservation/Allotment of flat in question and applied for the transfer/mutation of
the said flat to the respondent and for handing over the possession thereof.
Respondent vide its letter dt. 20.8.2007, admitted the nomination of Sh. D. D.
Grover, in place of Smt. Kailash Rani, the original allottee. It was stated that Sh.
D. D. Grover simply paid Rs.2,20,000/- only and before his death he was to
deposit a sum of Rs. 1,58,828.95 due as on 5.4.1988, which amount he failed to
deposit and consequently on failure of the payment, the aforesaid flat was
cancelled by respondent and appellants have no right to lay any claim in respect
thereof.
6. Appellants further case is that neither any demand of Rs.1,58,828.95 was
ever made from Sh. D. D. Grover nor any intimation dated 22.5.1990 was ever
made nor the cancellation ever took place. The alleged cancellation is liable to be
declared as null and void and respondent is under obligation to hand over the
possession of the said flat to the appellants. Had there been any cancellation, the
respondent must have brought this fact to the knowledge of SDM, when he
inspected the premises and gave his valuation report, after investigation at the site
on 9.2.2007 and there would not have been any demand of the house-tax from the
authorities concerned. The respondent failed to hand over the possession of the
said flat and is using the said flat continuously illegally.
F AO No. 214/2008 Page 3 of 10
7. Since there is apprehension that respondent shall create third party
interest in the said flat, appellants filed application under Order 39 rules 1 & 2 of
the Code.
8. On the other hand, respondent’s case is that appellants have no legal right
to file the present suit and have no locus sandi as well as the cause of action for
filing the present suit. The present suit is barred by the Limitation Act.
9. Respondent admits that Smt. Kailash Rani got booked a flat in question
and deposited the required amount with them. As per terms and conditions, it was
agreed by Smt. Kailash Rani that in case of default in payment of installment for
any reason, the reservation of space/flat shall stand cancelled and she will not be
having any claim whatsoever, thereof due to non-payment of installments. The
booking has been cancelled long back and same cannot be enforced by the
appellants.
10. Respondent admits that Smt. Kailash Rani had nominated Sh. D. D.
Grover. However, it was denied that any flat was transferred in his name. Sh. D.
D. Grover was bound by all the terms and conditions of booking of flat which
were binding on said Smt. Kailash Rani. Sh. D. D. Grover made certain payments
to the respondent in the booking account of the said flat but it is absolutely false
that he deposited a sum of Rs. 4,56,865/- with respondent. Smt. Kailash Rani
deposited Rs. 68,500/- with respondent and when she nominated Sh. D. D. Grover
as her nominee, the said amount was also treated in the name of the nominee. Sh.
D. D. Grover also made deposits making a total deposit to be Rs.2,60,435.81 and
thereafter, no further amount was deposited. On the date, when the reservation
F AO No. 214/2008 Page 4 of 10
was cancelled, a sum of Rs. 2,87,354.39 was due. Respondent was not under any
obligation to give any notice in writing. However, respondent had been
communicating the allottee from time to time for the payments. The payments
were to be made in time, which has been the essence of the booking of the flat and
in case of non compliance of the same, the booking was deemed to have been
cancelled. There has been default in the deposit of the amounts by Sh. D.D.
Grover and, therefore the booking was cancelled and consequently allotment of
the flat also stood cancelled. It is only after the payment of the entire cost of the
flat that Flat Buyers Agreement was to be executed and admittedly, no such
agreement has been executed between the respondent either with Sh. D. D.
Grover or with Smt. Kailash Rani or with any person claiming through the said
persons. Therefore, there has not been any legal right vested with the appellants
for filling the present suit.
11. Since Sh. D. D. Grover was the nominee of Smt. Kailash Rani, therefore,
the legal heirs were not going to inherit any right in the flat until and unless Smt.
Kailash Rani who then was alive, could not have nominated the legal heirs of Sh.
D. D. Grover as her nominee. In fact not only Sh. D.D. Grover but also Smt.
Kailash Rani failed to deposit the amount due, in spite of demands by the
respondent. Consequently, vide letter dt. 22.6.1990 the intimation of cancellation
was given along with the cheque of the amount of Rs. 2,60,435.81 and the same
was sent by Regd. AD Post. Smt. Satyawati Seth never intimated to the
respondent company about the death of Sh. D. D. Grover or his Will.
F AO No. 214/2008 Page 5 of 10
12. Flat in question was not the property of deceased Sh. D. D. Grover who
never paid the entire cost of the flat and committed breach of the terms of
reservation/booking of the flat. Hence, the reservation/booking was cancelled.
Sh. D. D. Grover even during his life time itself committed disqualification by
defaulting in the payment of dues resulting in cancellation of the flat which
cancellation cannot and could not be challenged by the appellants. Moreover,
appellants are even otherwise barred from disputing the same after about 18 years
of the cancellation.
13. It is contended by learned counsel for appellants that initially Smt. Kailash
Rani deposited a sum of Rs.68,500/- which was adjusted in the account of the
transferee Sh. D. D. Grover. The total deposit was of Rs. 4,56,865/- in respect of
the flat in question, which is evident from the Wealth Tax Return of Sh. D. D.
Grover for the year up to 31.3.1986. Whereas case of respondent is that, only a
sum of Rs. 2,60,435.81p. was deposited by Sh. D. D. Grover with them. The
aforesaid controversy between the parties, clearly shows that a triable issue is
raised which requires adjudication on merits.
14. Further, during the life time of Sh. D. D. Grover, no demand for any
outstanding dues were ever made from him in any manner nor any intimation was
given regarding thereto to him or about the alleged cancellation of the flat in
question. Had there been any intimation of cancellation of the flat in the year
1990 or demand of outstanding due was made to Sh. D. D. Grover, certainly the
cheque for the alleged deposit of amount by Sh. D. D. Grover must have been sent
during his life time but the respondent failed to do so.
F AO No. 214/2008 Page 6 of 10
15. Other contention is that the occasion for filing the present suit arose only
when letter dated 3.7.2007 was sent submitting the certified copy of the Probate
orders and judgment as required by the respondent along with other documents.
Instead of complying with the said notice, respondent sent a notice giving vague
reply. Thus, it is crystal clear that cause of action to file the present suit arose
only in the year 2008 and not in the year 1990. Hence, the suit is not barred by
limitation.
16. Lastly, when Smt. Kailash Rani during her life time transferred the suit
property in the name of Sh. D. D. Grover and request regarding thereto, has been
accepted by respondent, therefore, the respondent cannot arbitrarily cancel the
allotment of the flat to Sh. D. D. Grover in any manner. Thus appellants have got
a case for grant of injunction as there are triable issues.
17. In support of its contentions, learned counsel for appellants referred the following
judgments;
(i) Kiran Jogani & Anr Vs. George V. Records, Sarl;
155 (2008) Delhi Law Times 739 (DB).
(ii) Arooshi Enterprises Pvt. Ltd. Vs. Mr. Rahul Butalia & Ors;
2006 VII AD (Delhi) 441.
18. On the other hand, it is contended by learned counsel for respondent that deceased
Sh. D. D. Grover was merely a nominee of Smt. Kailash Rani. Mere nomination does not
have the effect of conferring on the nominee any beneficial interest on the death of
holder. Late Sh. D. D. Grover was never the purchaser of the flat in question and as such
he was not having any right, title or interest in the flat in question, so as to bequeath the
same in favour of his sister Smt. Satya Wati Seth.
F AO No. 214/2008 Page 7 of 10
19. It is further contended that as per letter dated 25.3.1981, relied upon and admitted
by the appellants, demand of Rs. 41,115.07 was made and this amount was to be
deposited. But even the said demand was never paid by Smt. Kailash Rani or Sh. D. D.
Grover, which is reflected from the fact that in letter dated 22.9.1985 of Smt. Kailash
Rani, she by her own admission did not mention any payment made to the responder after
27.11.1980.
20. Further, wealth tax return also does not show that Sh. D. D. Grover ever deposited
Rs. 4,56,865/- with the respondent.
21. In support of its contentions, learned counsel respondent cited the following
judgments;
(i) Vishin N. Khanchandani and another Vs. Vidya Lachmandas
Khanchandani and another;AIR 2000 Supreme Court 2747.
(ii) Smt. Sarabati Devi & Anr. Vs. Smt. Usha Devi; 1984 (1) S.C.R. Page 992.22. Principles for grant of temporary injunction are well settled namely;
(i) There has to be prima facie case.
(ii) Balance of convenience lies in favour of the party claiming
injunction and;
(iii) There will be irreparable loss if injunction prayed for is not
granted.
23. It is an admitted fact that in the year 1980, Smt. Kailash Rani applied for
reservation of a flat, which was to be constructed by the respondent. In 1981,
respondent informed her that she has been allotted a flat and the tentative cost of
the flat would be Rs.2, 32, 031.90 paisa. In 1985, Smt. Kailash Rani sent a letter
F AO No. 214/2008 Page 8 of 10
to the respondent informing them that she has transferred all her rights, title andinterest qua the said flat to Sh. D. D. Grover. Thereafter, Sh. D. D. Grover made
some deposits in respect of flat, as per demand of the respondent, from time to
time.
24. Sh. D. D. Grover, who was the nominee of Smt. Kailash Rani, had died on
15th May, 1988. With his death, the nomination stood cancelled automatically. At
the time of death of Sh. D. D. Grover, Smt. Kailash Rani who had made the
nomination in favour of Sh. D. D. Grover, was alive. Thus, the present appellants
could have approached Smt. Kailash Rani for fresh nomination, which they have
not done so. Thus, the legal heirs of Sh. D. D. Grover had no legal right in the
said flat.
25. There is also nothing on record to show that during his lifetime, Sh. D. D.
Grover ever paid a sum of Rs. 4,56,865/- as alleged by the appellants. On the
other hand, as per various documents placed on record by the respondent, a sum
of Rs. 2,87,353.39/- was due towards the cost of flat as on 17th May, 1990.
26. There is no dispute about the principles of law as enumerated in Kiran
Jogani and Arooshi Enterprises (Supra) but in the present case, apparently there is
no violation of the legal rights of the appellants and as such question of causing
any legal injury; loss or harm to them would not arise. Apprehension of the
appellants, prima facie seems to be misconceived and not tenable.
27. It is well settled that a party is not entitled to an order of injunction as a
matter of course. Grant of injunction is within the discretion of the Court and
such discretion is to be exercised in favour of the appellants only, if it is proved to
F AO No. 214/2008 Page 9 of 10
the satisfaction of the Court that unless the respondent is restrained by an order of
injunction, the irreparable loss or damaged will be caused to the appellants, during
the pendency of the suit.
28. Here, the appellants have no legal right to the flat in question and thus
there is no infirmity or ambiguity in the impugned order.
29. Present appeal is therefore not maintainable and same is hereby dismissed.
30. Parties shall bear their own costs.
CM No. 9528/2008
Dismissed being infructuous.
Trial court record be sent back.
11th January, 2010 V.B.Gupta, J.
ab
F AO No. 214/2008 Page 10 of 10