{"id":209768,"date":"2010-01-11T00:00:00","date_gmt":"2010-01-10T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/shri-subhash-seth-ors-vs-ms-new-delhi-hotels-limited-on-11-january-2010"},"modified":"2016-04-07T13:47:16","modified_gmt":"2016-04-07T08:17:16","slug":"shri-subhash-seth-ors-vs-ms-new-delhi-hotels-limited-on-11-january-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/shri-subhash-seth-ors-vs-ms-new-delhi-hotels-limited-on-11-january-2010","title":{"rendered":"Shri Subhash Seth & Ors. vs M\/S New Delhi Hotels Limited on 11 January, 2010"},"content":{"rendered":"
Delhi High Court<\/div>\n
Shri Subhash Seth & Ors. vs M\/S New Delhi Hotels Limited on 11 January, 2010<\/div>\n
Author: V.B.Gupta<\/div>\n
4*     HIGH COURT OF DELHI : NEW DELHI\n\n       FAO No. 214\/2008 & CM No. 9528\/2008\n\n%      Judgment reserved on:        08th December, 2009\n\n       Judgment delivered on:        11th January, 2010\n\n\n       1. Shri Subhash Seth\n          S\/o Late Dr. D. D. Seth,\n          R\/o 617, Begum Bagh, Meerut (U.P)\n\n       2. Shri Chand Grover,\n          S\/o Nishchint Grover,\n          R\/o 178\/79, Pate Nagar, Meerut (U.P)\n\n       3. Smt. Sangeeta Malik,\n          W\/o Shri Ravinder Malik,\n          R\/o 617, Begum Bagh, Meerut (U.P)\n\n          All through their General Attorney\n          Shri Ashok Goel\n          S\/o Late Shri Hari Ram Goel,\n          R\/o 28\/42, West Punjabi Bagh,\n          New Delhi.\n\n                                                          ....Appellants.\n\n                              Through:     Ms. Geeta Luthra, Sr. Adv. with\n                                           Mr. A. C. Bhasin, Mr. Amit Bhasin\n                                           and Mr. Abhishek Agarwal, Adv.\n\n                     Versus\n\n          M\/s New Delhi Hotels Limited,\n          Hotel Ambassador, Sujan Singh Park,\n          New Delhi (Service to be effected through its Managing\n          Director\/Authorised Signator\/Manager)\n                                                          ....Respondent.\n\n                              Through:     Mr. Mohit Gupta.\n\nCoram:\nHON'BLE MR. JUSTICE V.B. GUPTA\n\n1. Whether the Reporters of local papers may\n\n\n\n\nF AO No. 214\/2008                                             Page 1 of 10\n      be allowed to see the judgment?                  Yes\n\n2. To be referred to Reporter or not?                 Yes\n\n3. Whether the judgment should be reported\n   in the Digest?                                     Yes\n\nV.B.Gupta, J.\n<\/pre>\n
         Present appeal has been filed against order dated 3rd June, 2008, passed by<\/p>\n
Additional District Judge, Delhi, vide which appellants application under Order<\/p>\n
39 Rules 1 and 2 of Section 151 of Code of Civil Procedure (for short as ‘Code’)<\/p>\n
was dismissed.\n<\/p>\n
2.       Appellants case is that one Smt. Kailash Rani, wife of Sh. Amarnath<\/p>\n
Gupta, booked a flat bearing no. 803, 8th Floor, Mercantile House, 15 Kasturba<\/p>\n
Gandhi Marg, New Delhi and deposited the required amount for the same with<\/p>\n
respondent company. Smt. Kailash Rani, nominated Sh. D. D. Grover, son of Sh.<\/p>\n
I. D. Grover and accordingly, the said flat was transferred in the name of Sh. D.<\/p>\n
D. Grover, vide letter dt. NDHL\/CR-105\/Dated 22.09.1985.<\/p>\n
3.       During his lifetime, Sh. D. D. Grover paid to the respondent a sum of<\/p>\n
Rs.4,56,865\/- with respect to the said flat, which was under construction at the<\/p>\n
relevant time. Sh. D. D. Grover was murdered on 15.5.1988. During his lifetime,<\/p>\n
he had executed a Will dt. 9.11.1986 in respect of his properties, including the flat<\/p>\n
in question, in favour of his sister Smt. Satya Wati Seth, as Sh. D. D. Grover was<\/p>\n
bachelor.\n<\/p>\n
4.       Thereafter, Smt. Satya Wati Seth applied for grant of Probate for the<\/p>\n
properties left by Late Sh. D. D. Grover, including the flat in question. During<\/p>\n
pendency of the probate proceedings, Smt. Satya Wati Seth also expired on<\/p>\n
F AO No. 214\/2008                                                 Page 2 of 10<\/span>
\n 23.01.2003 intestate, leaving behind appellants herein, as her two sons and one<\/p>\n
daughter, as the only legal heirs.\n<\/p>\n
5.      Appellants obtained Probate of the will of the deceased Sh. D. D. Grover<\/p>\n
who was admittedly accepted as nominee of Smt. Kailash Rani, for<\/p>\n
Reservation\/Allotment of flat in question and applied for the transfer\/mutation of<\/p>\n
the said flat to the respondent and for handing over the possession thereof.<\/p>\n
Respondent vide its letter dt. 20.8.2007, admitted the nomination of Sh. D. D.<\/p>\n
Grover, in place of Smt. Kailash Rani, the original allottee. It was stated that Sh.<\/p>\n
D. D. Grover simply paid Rs.2,20,000\/- only and before his death he was to<\/p>\n
deposit a sum of Rs. 1,58,828.95 due as on 5.4.1988, which amount he failed to<\/p>\n
deposit and consequently on failure of the payment, the aforesaid flat was<\/p>\n
cancelled by respondent and appellants have no right to lay any claim in respect<\/p>\n
thereof.\n<\/p>\n
6.      Appellants further case is that neither any demand of Rs.1,58,828.95 was<\/p>\n
ever made from Sh. D. D. Grover nor any intimation dated 22.5.1990 was ever<\/p>\n
made nor the cancellation ever took place. The alleged cancellation is liable to be<\/p>\n
declared as null and void and respondent is under obligation to hand over the<\/p>\n
possession of the said flat to the appellants. Had there been any cancellation, the<\/p>\n
respondent must have brought this fact to the knowledge of SDM, when he<\/p>\n
inspected the premises and gave his valuation report, after investigation at the site<\/p>\n
on 9.2.2007 and there would not have been any demand of the house-tax from the<\/p>\n
authorities concerned. The respondent failed to hand over the possession of the<\/p>\n
said flat and is using the said flat continuously illegally.<\/p>\n
F AO No. 214\/2008                                                 Page 3 of 10<\/span>\n<\/p>\n
 7.     Since there is apprehension that respondent shall create third             party<\/p>\n
interest in the said flat, appellants filed application under Order 39 rules 1 & 2 of<\/p>\n
the Code.\n<\/p>\n
8.     On the other hand, respondent’s case is that appellants have no legal right<\/p>\n
to file the present suit and have no locus sandi as well as the cause of action for<\/p>\n
filing the present suit. The present suit is barred by the Limitation Act.<\/p>\n
9.     Respondent admits that Smt. Kailash Rani got booked a flat in question<\/p>\n
and deposited the required amount with them. As per terms and conditions, it was<\/p>\n
agreed by Smt. Kailash Rani that in case of default in payment of installment for<\/p>\n
any reason, the reservation of space\/flat shall stand cancelled and she will not be<\/p>\n
having any claim whatsoever, thereof due to non-payment of installments. The<\/p>\n
booking has been cancelled long back and same cannot be enforced by the<\/p>\n
appellants.\n<\/p>\n
10.    Respondent admits that Smt. Kailash Rani had nominated Sh. D. D.<\/p>\n
Grover. However, it was denied that any flat was transferred in his name. Sh. D.<\/p>\n
D. Grover was bound by all the terms and conditions of booking of flat which<\/p>\n
were binding on said Smt. Kailash Rani. Sh. D. D. Grover made certain payments<\/p>\n
to the respondent in the booking account of the said flat but it is absolutely false<\/p>\n
that he deposited a sum of Rs. 4,56,865\/- with respondent. Smt. Kailash Rani<\/p>\n
deposited Rs. 68,500\/- with respondent and when she nominated Sh. D. D. Grover<\/p>\n
as her nominee, the said amount was also treated in the name of the nominee. Sh.<\/p>\n
D. D. Grover also made deposits making a total deposit to be Rs.2,60,435.81 and<\/p>\n
thereafter, no further amount was deposited. On the date, when the reservation<\/p>\n
F AO No. 214\/2008                                                  Page 4 of 10<\/span>
\n was cancelled, a sum of Rs. 2,87,354.39 was due. Respondent was not under any<\/p>\n
obligation to give any notice in writing.         However, respondent had been<\/p>\n
communicating the allottee from time to time for the payments. The payments<\/p>\n
were to be made in time, which has been the essence of the booking of the flat and<\/p>\n
in case of non compliance of the same, the booking was deemed to have been<\/p>\n
cancelled. There has been default in the deposit of the amounts by Sh. D.D.<\/p>\n
Grover and, therefore the booking was cancelled and consequently allotment of<\/p>\n
the flat also stood cancelled. It is only after the payment of the entire cost of the<\/p>\n
flat that Flat Buyers Agreement was to be executed and admittedly, no such<\/p>\n
agreement has been executed between the respondent either with Sh. D. D.<\/p>\n
Grover or with Smt. Kailash Rani or with any person claiming through the said<\/p>\n
persons. Therefore, there has not been any legal right vested with the appellants<\/p>\n
for filling the present suit.\n<\/p>\n
11.     Since Sh. D. D. Grover was the nominee of Smt. Kailash Rani, therefore,<\/p>\n
the legal heirs were not going to inherit any right in the flat until and unless Smt.<\/p>\n
Kailash Rani who then was alive, could not have nominated the legal heirs of Sh.<\/p>\n
D. D. Grover as her nominee. In fact not only Sh. D.D. Grover but also Smt.<\/p>\n
Kailash Rani failed to deposit the amount due, in spite of demands by the<\/p>\n
respondent. Consequently, vide letter dt. 22.6.1990 the intimation of cancellation<\/p>\n
was given along with the cheque of the amount of Rs. 2,60,435.81 and the same<\/p>\n
was sent by Regd. AD Post.         Smt. Satyawati Seth never intimated to the<\/p>\n
respondent company about the death of Sh. D. D. Grover or his Will.<\/p>\n
F AO No. 214\/2008                                                 Page 5 of 10<\/span>\n<\/p>\n
 12.    Flat in question was not the property of deceased Sh. D. D. Grover who<\/p>\n
never paid the entire cost of the flat and committed breach of the terms of<\/p>\n
reservation\/booking of the flat. Hence, the reservation\/booking was cancelled.<\/p>\n
Sh. D. D. Grover even during his life time itself committed disqualification by<\/p>\n
defaulting in the payment of dues resulting in cancellation of the flat which<\/p>\n
cancellation cannot and could not be challenged by the appellants. Moreover,<\/p>\n
appellants are even otherwise barred from disputing the same after about 18 years<\/p>\n
of the cancellation.\n<\/p>\n
13.    It is contended by learned counsel for appellants that initially Smt. Kailash<\/p>\n
Rani deposited a sum of Rs.68,500\/- which was adjusted in the account of the<\/p>\n
transferee Sh. D. D. Grover. The total deposit was of Rs. 4,56,865\/- in respect of<\/p>\n
the flat in question, which is evident from the Wealth Tax Return of Sh. D. D.<\/p>\n
Grover for the year up to 31.3.1986. Whereas case of respondent is that, only a<\/p>\n
sum of Rs. 2,60,435.81p. was deposited by Sh. D. D. Grover with them. The<\/p>\n
aforesaid controversy between the parties, clearly shows that a triable issue is<\/p>\n
raised which requires adjudication on merits.\n<\/p>\n
14.    Further, during the life time of Sh. D. D. Grover, no demand for any<\/p>\n
outstanding dues were ever made from him in any manner nor any intimation was<\/p>\n
given regarding thereto to him or about the alleged cancellation of the flat in<\/p>\n
question. Had there been any intimation of cancellation of the flat in the year<\/p>\n
1990 or demand of outstanding due was made to Sh. D. D. Grover, certainly the<\/p>\n
cheque for the alleged deposit of amount by Sh. D. D. Grover must have been sent<\/p>\n
during his life time but the respondent failed to do so.\n<\/p>\n
F AO No. 214\/2008                                                Page 6 of 10<\/span>\n<\/p>\n
 15.          Other contention is that the occasion for filing the present suit arose only<\/p>\n
when letter dated 3.7.2007 was sent submitting the certified copy of the Probate<\/p>\n
orders and judgment as required by the respondent along with other documents.<\/p>\n
Instead of complying with the said notice, respondent sent a notice giving vague<\/p>\n
reply. Thus, it is crystal clear that cause of action to file the present suit arose<\/p>\n
only in the year 2008 and not in the year 1990. Hence, the suit is not barred by<\/p>\n
limitation.\n<\/p>\n
16.          Lastly, when Smt. Kailash Rani during her life time transferred the suit<\/p>\n
property in the name of Sh. D. D. Grover and request regarding thereto, has been<\/p>\n
accepted by respondent, therefore, the respondent cannot arbitrarily cancel the<\/p>\n
allotment of the flat to Sh. D. D. Grover in any manner. Thus appellants have got<\/p>\n
a case for grant of injunction as there are triable issues.<\/p>\n
17.          In support of its contentions, learned counsel for appellants referred the following<\/p>\n
judgments;\n<\/p>\n
      (i)        Kiran Jogani & Anr Vs. George V. Records, Sarl;\n                  155 (2008) Delhi Law Times 739 (DB).\n      (ii)       Arooshi Enterprises Pvt. Ltd. Vs. Mr. Rahul Butalia & Ors;\n                  2006 VII AD (Delhi) 441.\n\n<\/pre>\n
18.          On the other hand, it is contended by learned counsel for respondent that deceased<\/p>\n
Sh. D. D. Grover was merely a nominee of Smt. Kailash Rani. Mere nomination does not<\/p>\n
have the effect of conferring on the nominee any beneficial interest on the death of<\/p>\n
holder. Late Sh. D. D. Grover was never the purchaser of the flat in question and as such<\/p>\n
he was not having any right, title or interest in the flat in question, so as to bequeath the<\/p>\n
same in favour of his sister Smt. Satya Wati Seth.\n<\/p>\n
F AO No. 214\/2008                                                      Page 7 of 10<\/span>\n<\/p>\n
 19.          It is further contended that as per letter dated 25.3.1981, relied upon and admitted<\/p>\n
by the appellants, demand of Rs. 41,115.07 was made and this amount was to be<\/p>\n
deposited. But even the said demand was never paid by Smt. Kailash Rani or Sh. D. D.<\/p>\n
Grover, which is reflected from the fact that in letter dated 22.9.1985 of Smt. Kailash<\/p>\n
Rani, she by her own admission did not mention any payment made to the responder after<\/p>\n
27.11.1980.\n<\/p>\n
20.          Further, wealth tax return also does not show that Sh. D. D. Grover ever deposited<\/p>\n
Rs. 4,56,865\/- with the respondent.\n<\/p>\n
21.          In support of its contentions, learned counsel respondent cited the following<\/p>\n
judgments;\n<\/p>\n
      (i)        Vishin N. Khanchandani and another Vs. Vidya Lachmandas
\n                 Khanchandani and another;<\/p>\n
                 AIR 2000 Supreme Court 2747.\n<\/p><\/blockquote>\n
      (ii)       Smt. Sarabati Devi & Anr. Vs. Smt. Usha Devi;\n                 1984 (1) S.C.R. Page 992.\n\n\n<\/pre>\n
22.          Principles for grant of temporary injunction are well settled namely;<\/p>\n<\/blockquote>\n
                    (i) There has to be prima facie case.<\/p>\n<\/blockquote>\n
                    (ii) Balance of convenience lies in favour of the party claiming<\/p>\n
                        injunction and;\n<\/p><\/blockquote>\n
                    (iii) There will be irreparable loss if injunction prayed for is not<\/p>\n
                        granted.\n<\/p><\/blockquote>\n<\/blockquote>\n
23.          It is an admitted fact that in the year 1980, Smt. Kailash Rani applied for<\/p>\n
reservation of a flat, which was to be constructed by the respondent. In 1981,<\/p>\n
respondent informed her that she has been allotted a flat and the tentative cost of<\/p>\n
the flat would be Rs.2, 32, 031.90 paisa. In 1985, Smt. Kailash Rani sent a letter<\/p>\n
F AO No. 214\/2008                                                     Page 8 of 10<\/span>
\n to the respondent informing them that she has transferred all her rights, title and<\/p>\n
interest qua the said flat to Sh. D. D. Grover. Thereafter, Sh. D. D. Grover made<\/p>\n
some deposits in respect of flat, as per demand of the respondent, from time to<\/p>\n
time.\n<\/p><\/blockquote>\n
24.     Sh. D. D. Grover, who was the nominee of Smt. Kailash Rani, had died on<\/p>\n
15th May, 1988. With his death, the nomination stood cancelled automatically. At<\/p>\n
the time of death of Sh. D. D. Grover, Smt. Kailash Rani who had made the<\/p>\n
nomination in favour of Sh. D. D. Grover, was alive. Thus, the present appellants<\/p>\n
could have approached Smt. Kailash Rani for fresh nomination, which they have<\/p>\n
not done so. Thus, the legal heirs of Sh. D. D. Grover had no legal right in the<\/p>\n
said flat.\n<\/p>\n
25.     There is also nothing on record to show that during his lifetime, Sh. D. D.<\/p>\n
Grover ever paid a sum of Rs. 4,56,865\/- as alleged by the appellants. On the<\/p>\n
other hand, as per various documents placed on record by the respondent, a sum<\/p>\n
of Rs. 2,87,353.39\/- was due towards the cost of flat as on 17th May, 1990.<\/p>\n
26.     There is no dispute about the principles of law as enumerated in Kiran<\/p>\n
Jogani and Arooshi Enterprises (Supra) but in the present case, apparently there is<\/p>\n
no violation of the legal rights of the appellants and as such question of causing<\/p>\n
any legal injury; loss or harm to them would not arise. Apprehension of the<\/p>\n
appellants, prima facie seems to be misconceived and not tenable.<\/p>\n
27.     It is well settled that a party is not entitled to an order of injunction as a<\/p>\n
matter of course. Grant of injunction is within the discretion of the Court and<\/p>\n
such discretion is to be exercised in favour of the appellants only, if it is proved to<\/p>\n
F AO No. 214\/2008                                                  Page 9 of 10<\/span>
\n the satisfaction of the Court that unless the respondent is restrained by an order of<\/p>\n
injunction, the irreparable loss or damaged will be caused to the appellants, during<\/p>\n
the pendency of the suit.\n<\/p>\n
28.    Here, the appellants have no legal right to the flat in question and thus<\/p>\n
there is no infirmity or ambiguity in the impugned order.<\/p>\n
29.    Present appeal is therefore not maintainable and same is hereby dismissed.<\/p>\n
30.    Parties shall bear their own costs.\n<\/p>\n
CM No. 9528\/2008<\/p>\n
       Dismissed being infructuous.\n<\/p>\n
       Trial court record be sent back.\n<\/p>\n<\/p>\n
11th January, 2010                                           V.B.Gupta, J.\nab\n\n\n\n\nF AO No. 214\/2008                                                Page 10 of 10<\/span>\n <\/pre>\n","protected":false},"excerpt":{"rendered":"
Delhi High Court Shri Subhash Seth & Ors. vs M\/S New Delhi Hotels Limited on 11 January, 2010 Author: V.B.Gupta 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. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[14,8],"tags":[],"class_list":["post-209768","post","type-post","status-publish","format-standard","hentry","category-delhi-high-court","category-high-court"],"yoast_head":"\nShri Subhash Seth & Ors. vs M\/S New Delhi Hotels Limited on 11 January, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/shri-subhash-seth-ors-vs-ms-new-delhi-hotels-limited-on-11-january-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Shri Subhash Seth & Ors. vs M\/S New Delhi Hotels Limited on 11 January, 2010 - 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