M/S Cosmos Infra Engineering (I) Ltd & Ors v. M/S Tirupati Buildings & Offices (P) Ltd

RAJIV SAHAI ENDLAW, J. DECEMBER 09, 2016 Bs.. (corrected & released on 22nd December, 2016)

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 9th December, 2016. + CS(COMM) 9/2016 & IAs No.14374/2016 (u/O 7 R-14 CPC) & 14376/2016 (u/O 16 R-1(2) CPC) M/S COSMOS INFRA ENGINEERING (I) LTD & ORS .....Plaintiffs Through: Ms. Nandita Abrol, Adv. Versus M/S TIRUPATI BUILDINGS & OFFICES (P) LTD & ORS ..... Defendants Through: None. CORAM: HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. The plaintiffs M/s Cosmos Infra Engineering (I) Ltd., Mrs. Kavita Mittal and Ms. Megha Mittal instituted this suit (i) for recovery of Rs.2,41,14,000/- with interest; (ii) for mandatory injunction directing the defendant No.1 M/s Tirupati Buildings & Offices (P) Ltd. (TBOPL) to not accept any license fee in respect of "suit property"; (iii) for mandatory injunction to direct defendants No.5&6 M/s Krishna Store and Mr. Saurabh Saini, partner M/s Krishna Store to pay license fee in respect of "suit property" to the plaintiffs; (iv) for permanent injunction to restrain the defendant No.1 TBOPL from accepting any license fee on behalf of the plaintiffs from the defendants No.5&6 Krishna Store and Mr. Saurabh Saini; (v) for permanent injunction to restrain the defendants No.5&6 Krishna Store and Mr. Saurabh Saini from paying any further license fee to defendant No.1 TBOPL; and, (vi) for recovery of mesne profits from defendants No.5&6 Krishna Store and Mr. Saurabh Saini for the period from 23rd November, 2015 till the premises are vacated by the said defendants No.5&6 Krishna Store and Mr. Saurabh Saini with interest. 2. Besides the defendants No.1,5&6 against whom reliefs are claimed, Mr. Subhash Dabas, Ms. Rosy Dabas and Mr. Ayush Dabas have been impleaded as defendants No.2 to 4 describing them as Directors of defendant No.1 TBOPL, and M/s Golden India Expotrade Pvt. Ltd. (GIEPL) and Mr. Vaibhav Singhal have been impleaded as defendants No.7&8. 3. The suit was entertained and summons thereof issued to the defendants, though interim order sought of restraining defendant No.1 TBOPL from accepting license fee from defendants No.5&6 and directing defendants No.5&6 to deposit license fee in this Court not granted. 4. None appeared for any of the eight defendants despite service and all the defendants were, vide order dated 4th April, 2016, proceeded against ex- parte. 5. The plaintiffs in their ex-parte evidence have filed affidavit by way of examination-in-chief of their power of attorney holder Mr. Jitender Jain and which was tendered in evidence and closed their evidence. 6. It is the case of the plaintiffs: (i) that the plaintiff No.1 M/s Cosmos Infra Engineering (I) Ltd. is the absolute owner of undivided commercial space measuring 5000 sq. ft., plaintiff No.2 Mrs. Kavita Mittal is the absolute owner of undivided commercial space measuring 2400 sq. ft. and the plaintiff No.3 Ms. Megha Mittal is the absolute owner of undivided commercial space measuring 2500 sq. ft., situated in Pinnacle Complex (Pinnacle Mall), Plot No.3, Dwarka City Centre, Sector-10, Dwarka, Delhi, vide separate registered Sale Deeds all dated 3rd September, 2012; (ii) that all the Sale Deeds aforesaid were executed in favour of the plaintiffs by the defendant No.1 TBOPL; (iii) that the aforesaid total 9900 sq. ft commercial space owned by the plaintiffs together is part of Welcome Hotel Compound being run and managed by the defendant No.1 TBOPL; (iv) that the defendant No.1 TBOPL at the time of execution of Sale Deeds had "agreed that in due course of time he will transfer all the existing license fees in favour of the plaintiffs of all the licensees present in the suit properties"; (v) that the defendants "also agreed to start paying the licensee fee immediately from 3rd September, 2012;" (vi) that as on 3rd September, 2012, defendant No.7 GIEPL was the licensee vide lease deed dated 30th March, 2012 at a monthly rent of Rs.5 lakhs besides other charges and the defendant No.1 TBOPL had also taken a sum of Rs.42 lakhs as interest free security from the defendant No.7 GI