w w w . L a w y e r S e r v i c e s . i n



Siemens Public Communication Networks Limited v/s Kanha Credit And Holding Private Limited

    Interim Application Appeal No. 4962 of 5157, Suit Appeal No. 1115 of 1998

    Decided On, 17 December 1998

    At, High Court of Delhi

    By, THE HONOURABLE MR. JUSTICE M. S. A. SIDDIQUI

    For the Appearing Parties: Arun Jaitley, D.K. Vijay, P.K. Bakshi, Rajiv Nair, Advocates.



Judgment Text

M. S. A. SIDDIQUI, J.


(1) BY this order I propose to dispose of IAs No. 4962/98 and 5157/98.


(2) I. A. No. 4962/98 has been filed by the plaintiff under Order 39, Rules I and 2 Civil Procedure Code for an ad interim injunction. I. A. 5157/98 is an application filed by the defendant seeking vacation of the ex parts injunction order dated 28. 5. 1998.


(3) THE plaintiff filed the present suit under Order 37, Civil Procedure Code for recovery of Rs. 1,68,77,403. 00 against the defendant No. 1. alongwith the plaint, the plaintiff also filed an application (I. A. No. 4962 /98) under Order 39, Rules I and 2, Civil Procedure Code for an ad interim injunction restraining the defendants from alienating, transferring, encumbering or parting with possession or in any manner creating third party interest in the following properties: (i) Plot No. 375, Sector 4, Gurgaon, Haryana. (ii) S-85 and S-87, Panchsheel Park, New Delhi. (iii) 16, Community Centre, East of Kailash, New Delhi. (iv) C-7, Greater Kailash-1 New Delhi. (v) 215/70/2/1, Sarai Shahji (P. F. Colony), Malviya Nagar, New Delhi.


(4) IT is stated in the application (I. A. No. 4962/98) that the defendants, with intent to frustrate and defeat the decree that may be passed against the defendant No. I, are about to dispose of the aforesaid properties. By the order dated 28. 5. 1998, an ex parte ad interim injunction was granted against the defendants.


(5) THE defendant No. 1 has filed the I. A. No. 5157/1998 under Order 39, Rule 4, Civil Procedure Code seeking vacation of the stay on the ground that the entire basis of the suit is misconceived and the ex parte ad interm injunction has been obtained by misrepresentation of material facts. According to the defendant No. l,the agreement in question was between M /s. Siemens Ltd. and the defendant No. 1 but the present suit has been filed by a different company. It is alleged that by the supplementary agreement dated 17. 4. 1997 entered into between the parties, a sum of Rs. 72,96,661. 00 only was due and payable by the defendant No. 1 to the plaintiff, out ot Which a sum of Rs. 10,00,000. 00 was paid to the plaintiff at the time of the execution of the said agreement. As per terms of the said agreement, the plaintiff was to pay a sum Of Rs. 6,05,000. 00 to the defendant No. 1 as charges for the facilities provided to it by the defendant No. 1 for a period of 4 months with effect from March, 1997 and after giving adjustment of the said amount, a sum of Rs. 38,76,661. 00 only was payable to the plaintiff. It is also alleged that the properties bearing Nos. S-85 and S-87, Panchsheel Park, New Delhi, C-7, Greater Kailash-l, New Delhi, 215/70/2/ I, Sarai Shahji (P. P. Colony), Malviya Nagar, New Delhi do not belong to the defendant No. 1. The property bearing No. 16,community Centre,eastofkailash, New Delhi is a rented accommodation of the defendant No. 1 and the plot No. 375, Sector-4, Gurgaon, Haryana belongs to the defendant No. 1 in respect of which an agreement to sell has already been executed in October, 1995.


(6) PRINCIPLES for grant of temporary. injunction are well settled. The party seeking the temporary injunction must make out a prima facie case for the grant of the said discretionary relief. Moreover, the Court must be satisfied that interference is necessary to prevent injury, which is irreparable, and that the mischief or inconvenience which is likely to arise in consequence of withholding the relief will be greater than that from granting it.


(7) THE first point, which arises for consideration; whether the plaintiff has made out a primafacie case for grant of the temporary injunction. According to the plaintiff, the defendant No. 2 had let out its property bearing No. 215/70/2/1, Sarai Shahji (P. P. Colony), Malviya Nagar, New Delhi to the plaintiff vide lease deed dated 25. 5. 1995. On that date plaintiff had also entered into an agreement with the defendant No. 1 for use of facilities to be provided by the defendant No. 1. Another agreement was entered into between the plaintiff and M/s. Aditya Developers, a sister concern of the defendants, where under, the plaintiff's predecessor-in-interest M/s. Siemens paid to the defendant No. 1 a sum of Rs. 2,16,00,000. 00 as interest free security deposit, which was to be refunded alongwith unadjusted advance charges, on the expiry of the agreement dated 25. 5. 1995. As per terms of the said agreement, M/s. Siemens were to pay to the defendant no. I a sum of Rs. 5,50,000. 00 per month as charges for use of the facilities provided by the defendant No. 1 and the same were to be increased by 10% over the last payable charges at the expiry of each one year period. M/s. Siemens were to pay 12 months charges in advance to be adjusted in 36 equal monthly instalments. On account of the objections raised by the DDA in respect of the user of the aforesaid leased premises, the parties rescinded the abovementioned agreements by executing the supplementary agreement dated 17. 4. 1997. By the supplementary agreement dated 17. 4. 1997, the defendant No. 1 agreed to pay the plaintiff a sum of Rs. 57,28,592. 00 only.


(8) IT is worth mentioning that initially the present suit was filed for recovery of Rs. 1,68,77,403. 00 and on 28. 5. 1998 an ex parte ad interim injunction was obtained by the plaintiff on the basis of the said claim. However, on 13. 7. 1998, the plaintiff filed an application under , Civil Procedure Code, 1908 Or. 6r. 17 (I. A. No. 5541/98) proposing amendment in the plaint for reducing the claim from Rs. l,68,77,403. 00 to Rs. 57,28,592. 00. The application was allowed vide order dated 10. 12. 1998. This circumstance has a bearing on the conduct of the plaintiff in obtaining ex parte ad interim injunction against the defendants.


(9) THAT apart, it is stated in the application filed by the defendant No. 1 (I. A. No. 5157/98) that except the property bearing No. 375, Sector -4, Gurgaon (Haryana) none of the properties mentioned in the injunction order dated 28. 5. 1998 belonged to the defendant No. 1. The defendant No. 1 has filed his affidavit in support of the said application and I have no reason to disbelieve the said affidavit. It is also pertinent to mention that it is stated in the application filed under Order 39, Rules I and 2, Civil Procedure Code (I. A. No. 4962/98) that the defendants, with intent to frustrate and defeat the decree that may be passed against the defendant No. 1, are about to dispose of the properties mentioned therein. Except the aforesaid bald statement of the plaintiff, there is nothing on record to show that the defendants ever had any intention of obstructing or delaying the execution of any decree that may be passed against the defendant No. 1 or with such intention, were about to dispose of their property. Mere vague allegations are not sufficient. It needs to be highlighted that the supplementary agreement dated 17. 4. 1997 is the foundation of the suit and the plaintiff has not asked any relief against the defendant No. 2. It has to be borne in mind that neither temporary injunction nor attachment ought to be lightly granted. It would be a serious thing if persons in possession were restrained from making use of the property because a suit has been instituted against them. It is only where it is essential that property should be kept in existing condition pending suit, the Court should interfere.


(10) IT is stated in the application (I. A. No. 5157/98) that as per supplementary agreement dated 17. 4. 1997, a sum of Rs. 38,76,661. 00 only stands due from the defendant No. 1 to the plaintiff. On 10. 12. 1998, the defendant No. 1 paid the said amountt of he plaintiff vide cheque No. 788136, dated 10. 12. 1998drawnon the Bank of Rajasthan. Viewing the

Please Login To View The Full Judgment!

aforesaid circumstances, I am not prepared to believe the bald statement of the plaintiff that the defendants are trying to, and are about to dispose of their properties with intent to obstruct and delay the execution of the decree that may be passed against the defendant No. 1. 1, therefore, find and hold that the plaintiff has failed to make out a prima facie case for grant of temporary injunction. On the facts and circumstances of the case, the balance of convenience also does not lie in favour of granting the injunction sought by the plaintiff. For the foregoing reasons, the application (I. A. No. 4962/98) filed by the plaintiff under 0rder39. Rules I and 2, Civil Procedure Code is rejected. The application (I. A. 5157/ 98) filed by defendant No. 1 under0rder39 Rule4c. P. C. is allowed and the ex parte ad interim injunction order dated 28. 5. 1998 is hereby vacated.
O R