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Judgment
Jayant Nath, J.
IA No. 9956/2013
This is an application under Order 39 Rules 1 and 2 CPC seeking ad interim injunction and the following reliefs:-
(I) Allow the present application and pass an ex parte stay order thereby restraining the defendant from proceeding with their act in furtherance of their notice of June 2013 inviting tenders for allotment of the suit property on license fee basis to a third party during the pendency of the suit.
(II) Consequently stay the notice of June 2013 issued by the defendant inviting tenders for allotment of the suit property on licence fee basis.
(III) Defendant be further restrained from alienating, transferring and/or otherwise creating any kind of third party interest in the suit property, i.e., Cup & Saucer Restaurant, Minto Bridge, New Delhi, during the pendency of the suit.
(IV) Pass any other order or direction that the Hon''ble Court may deem proper, fit and expedient.
The plaintiffs have filed the accompanying suit seeking a decree of specific performance for directing the defendant to convert in favour of the plaintiff on free hold basis the suit property i.e. Open Air Restaurant, Minto Bridge, Minto Road, New Delhi. Other connected reliefs are also being sought. The dispute revolves around a tender invited by the defendant in the year 2001 for allotment on licence/lease basis of various properties including the Open Air Restaurant, Minto Bridge, Minto Road, New Delhi. Plaintiff was declared a successful bidder for the Minto Road property and the bid of the plaintiff was accepted by the defendant vide letter dated 11.10.2001. The period of licence was five years. The licence expired on 28.2.2007.
The contention of the plaintiff is that MCD adopted a policy resolution of Ministry of Urban Development and Poverty Alleviation to confer freehold rights of properties in the hands of allottees/lessees/occupiers. The plaintiff accordingly applied for conversion of the suit property from licence basis to leasehold basis vide application dated 16.3.2007. The defendant vide letter dated 22.3.2007 demanded a sum of Rs. 2,31,30,919/-. In response to the said request of the plaintiff the said amount was duly deposited by the plaintiff in May, 2007. However, the officials of the defendant informed the plaintiff that the suit property was intended to be auctioned afresh. Hence, the plaintiff has filed the present suit.
Alongwith the Suit an application for injunction being IA No. 10668/2007 was filed.
The said application I.A. No. 10668/2007 was dismissed by this Court vide Order dated 27.01.2010. In paragraphs 47 and 48 of the said order this Court observed as follows:-
The aforesaid, in my view, prima facie shows that the documents filed and relied upon by the plaintiff falsify the entire cause of the plaintiff. The suit filed by the plaintiff on the plaintiff''s own showing is premature to say the least. Apparently, for this reason, at the time of further submissions, the learned senior counsel for the plaintiff Mr. Chandhiok chose not to rely upon the said documents. The documents, however, have been referred to by me for the sole purpose of showing that the plaintiff is very well aware of the baseless nature of the averments made by it in the plaint and the injunction application.
In view of the aforesaid, in my view, the status quo order passed by this Court in respect of the suit property deserves to be vacated and is accordingly vacated.
The above order was taken up in appeal by the plaintiff and the appeal of the plaintiff being FAO(OS)140/2010 was dismissed vide order 8.10.2010. Paragraph 18 of the said order dated 8.10.2010 reads as follows:-
Accordingly, the appeals are dismissed. Needless to say that the observation made herein above are only prima facie and will have no bearing on the trial. The learned Additional Solicitor General has fairly stated that as and when the licenses of the suit properties are auctioned, the appellants will also be entitled to take part in the bid. We are sure that the Respondent will abide by the same. No order as to costs.
Now, the plaintiff has filed the present application claiming that the defendant has recently circulated an advertisement in the Newspapers and website inviting tenders for allotment of the said Cup & Saucer Restaurant on licence basis. On the basis of the said averment the plaintiffs now again seeks an order of stay restraining the defendant from proceeding with their act in furtherance of notice of June, 2013 and also directing that the defendants be restrained from alienating, transferring or otherwise creating any third party interest in the suit property.
Learned senior counsel appearing for the plaintiff submits that request of the plaintiff is limited to the fact that the defendant though having attempted to dispose of the suit property after the order of the Division Bench dated 8.10.2010, have been unable to complete the auction process or identify any other person willing to take the property on license. It is submitted that the plaintiff is ready and willing to take on lease the suit property on the minimum terms as stipulated by the defendant in its fresh tender. The learned senior counsel further submits that any such possession, if given to the plaintiff, the plaintiff would abide by any orders of this Court regarding the tenure of the possession. He submits that the present act of defendant is only ensuring waste of the property inasmuch as it is lying unutilised and fetching no revenue to the defendant. The defendant being a public authority would earn money and an order to this effect would be in the interest of the public. Appropriate directions in this behalf are sought.
Learned senior counsel appearing for the defendant, however, submits that the present application is barred on principle, akin to res judicata. She submits that the present relief being claimed by the plaintiff is exactly identical to the reliefs earlier claimed by the plaintiff which were declined by this Court and by the Division Bench vide Order dated 8.10.2010. She further submits that there are serious allegations of fraud and manipulation against the plaintiff perpetuated against the defendant in connivance with some officials of the defendant with the aim of occupying the suit property. The plaintiff manipulated and got issued a demand letter dated 22.3.2007 from an officer who was not authorised to issue the demand letter.
It is, hence, submitted that it is for the defendant to utilise the property in public interest and the plaintiff has no vested right to claim any right in it. In the reply filed by the MCD it is further submitted that the plaintiff had filed a Writ Petition bearing No. 2220.2011 titled Anuradha Sharma versus-MCD where the plaintiff had challenged the NIT issued by the defendant for the allotment of Banquet Hall-cum-Restaurant known as Shehnai. The eligibility criteria in the NIT was challenged. However, the Writ Petition was dismissed.
In my view I see no merit in the present application filed by the plaintiff. The present application seeks relief akin to the earlier application IA No. 10668/2007. A perusal may be had to the prayer in the earlier application filed by the plaintiff, namely, IA No. 10668/2007 which reads as follows:-
a. Pass an ad-interim ex-parte injunction in favour of the plaintiff and against the defendant thereby restraining the defendant, its employees and representatives from transferring/auctioning/re-tendering and/or alienating and/or creating third party''s interest in the property being "Cup-n-Saucer Open Air Restaurant" Minto Bridge, Minto Road, New Delhi till disposal of the case.
The prayer in IA No. 10668/2007 is exactly identical to prayer (iii) of the present application. Prayers (i) and (ii) of the present application are interconnected and ancillary to the prayers sought in prayer (iii), namely, to restrain the defendant from alienating or transferring or otherwise creating any kind of third party interest in the suit property. The process of alienation or transferring can only be gone into by the defendant pursuant to their notice inviting tenders. Staying the tendering process would tantamount granting relief to the plaintiff which was declined while disposing of IA No. 10668/2007. In view of the earlier orders of this Court passed on 27.1.2010 and of Division Bench on 8.10.2010 the present relief sought by the plaintiff is barred on the principles akin to res judicata. Reference in this context may be had to the judgment of the Supreme Court in the case of Arjun Singh Vs. Mohindra Kumar and Others, and Ajay Mohan and Others Vs. H.N. Rai and Others, . No new facts or circumstances have arisen since order dated 27.1.2010 which would warrant this Court changing or modifying its earlier order dated 27.1.2010.
Similarly, there is no merit in the contention of the learned senior counsel for the plaintiff that directions may be issued to the defendant to permit the plaintiff to use the suit premises till the period the defendant is able to locate an alternate licence at the same rate which are stipulated by the defendant as minimum rates in the notice inviting tender. Firstly, there is no such relief sought by the plaintiff in the present application. Even otherwise, in view of the earlier orders dated 27.1.2010 there is no prima facie case in favour of the plaintiff. No irreparable loss is likely to be suffered by the plaintiff. Further the defendant cannot be compelled to accept the plaintiff as licensee on the basis of submissions sought to be advanced by the learned counsel for the plaintiff. In view of the above, the present application is dismissed.
CS(OS) 1713/2007
List before the Joint Registrar on 29th July, 2013 the date already fixed, for admission/denial of documents.