Judgment:
K. Ramamoorthy, J.
(1) There is suit No. 885/94 filed by Liberty Sales Service under Section 20 of the Arbitration Act,1940. The Liberty Sales Service filed a suit 264/94 in the lower court. That is withdrawn to this Court .and that is renumbered as suit No. 997/96. There was interim order passed by the lower court and against that order there was an appeal to the Senior Sub Judge in MCA.1129/94 and that appeal was also withdrawn to this Court and that is renumbered as FAO.231/96.
(2) I shall follow the rank of the parties in suit No. 885/94 in this Court. Liberty Sales Service shall be hereinafter called the plaintiff and Jakki Mull & Sons shall be hereinafter referred to as the defendant.
(3) With reference to a shop No. E-27, Connaught Place, New Delhi there was an agreement between the plaintiff and the defendant on 5.1.1991 in and by which the parties agreed to have share in the business carried on therein by selling of shoes. What is the nature of the agreement and what are the rights that flow from the agreement are the points to be decided in this case.
(4) According to the defendant, the goods belonging to the plaintiff shall be sold by the defendant on commission basis. The staff employed by the defendant shall be there in the premises. Everyday the defendant after deducting the amount of commission and also for expenses was to transfer 85% of the sales amount to the plaintiff. The agreement was for a period of 3 years. The period expired on 31.3.1994. The plaintiff filed the suit in the lower court for an injunction. Thereafter, the plaintiff filed suit No. 885/94 under Section 20 of the Arbitration Act, 1940 for the appointment of an arbitrator. In this suit also the plaintiff prayed for an ad-interim injunction order. Hon'ble Mr. Justice R.C. Lahoti passed the following order on 1.3.1995 :-
'AS the petitioners are in possession, the same deserves to be protected. The interim order made by this Court on 23.5.94 takes care of the interest of the respondents. It is, thereforee, directed that the petitioners shall remain in possession of the premises during the hearing of the petition. If the arrangement devised by the Court on 23.5.94 does not work and poses practical difficulties then the petitioner may either tender the amount of Rs. 30,000.00 per month by means of a crossed cheque or bank draft or pay order to the respondents through their counsel or may deposit the amount in the Court which shall be available to be withdrawn by the respondents. This shall be done for the period commencing from the date with which the arrangement between the parties under the agreement dated 5th January, 1991 has failed.'
Ultimately, the learned Judge said that the petitioners shall within a week file a written undertaking on affidavit signed and sworn in through an authorised representative of theirs undertaking to compensate the respondents with such amount as the Court may assess in the event of their petition being dismissed or decided against them.
(5) The defendant took -up the matter to the Supreme Court and the Supreme Court vacated the order passed by the learned Judge and the Supreme Court said in the following terms :-
'LEAVEgranted. Having heard both sides, we are satisfied that in the facts and circumstances of the case, the interim order dated 1.3.1995 made by the High Court which has the effect of recognising the prima facie possession of the property with the respondent and permitting its continuance subject to payment of Rs. 30,000.00 per month as rent to the appellant is not justified. Even the tentative finding on the question of possession of the disputed property may have an impact on the merits' of the other points involved or decision between the parties in this and other litigations between them. The facts do not justify grant of the equitable relief of temporary injunction in this case. We refrain from mentioning or commenting upon the detailed submissions made by both sides since those matters have to be decided on merits in the first instance by the court below. For the above reasons the appeal is allowed and the impugned order in so far as it relates to making an interim order in the nature of injunction is set aside.'
(6) Later on, the suit came up for hearing for considering the question of appointment of arbitrator.
(7) On 11.3.1996 the defendant had filed an application IA.2417/96 for the following reliefs:-
'WITHOUT prejudice to the above it is submitted that clause 21 of the Agreement dated 5.1.1991 stipulates that in the event of expiry of the period of agreement of agency the agent shall surrender to the principals the furniture or other decorative material which has been provided for by the principals and the principal shall remove the same from the showroom at their own cost and risk together with the unsold stock which may be lying in the said show room within 15 days. The applicants/respondents respectfully submit that in view of the glaring facts of the present case and the proven attempt o the part of the petitioner herein to abuse the process of law, the applicants are likely to succeed in the present proceedings. In the event of the applicants/respondents succeeding in the present case, in the respectful submission of the respondents, it would be most appropriate and necessary and in the interest of justice that the petitioner herein is directed to remove the unsold stock and other furniture and decorative materials from the show room in question within 15 days or within such time as may be granted by this Hon'ble Court and further the petitioner be directed not to interfere in any manner whatsoever in the peaceful enjoyment of the premises in question by the applicants/respondents.'
(8) The defendant also filed I.A.4180/96 on 4.5.96 for the following reliefs :-
'IT is respectfully submitted that in these circumstances it would be most appropriate, necessary and in the interest of justice that the plaintiff herein is directed to remove the unsold stock and other furniture and decorative material from the premises in question within 15 days or within such time as may be granted by this Hon'ble Court and further the plaintiff, his servants, agents etc. be directed not to interfere in any manner whatsoever in the peaceful enjoyment of the premises in question by the aplicants/defendants.'
(9) All these matters came up before me and in the interests of justice I withdrew the appeal as I have stated above and also the suit pending in the file of the Senior Sub Judge.
(10) The learned senior counsel Mr. Mukul Rohtagi submitted that the plaintiff is in possession of the premises. In appeal which was pending before the lower appellate court a local commissioner was appointed and the local commissioner had reported that the plaintiff was in possession of the premises and carrying on business and the lower appellate court maintained the status-quo and/therefore, the possession of the premises by the plaintiff has to be maintained till the matters are finally disposed of. The learned senior counsel submitted that the order of the Supreme Court has to be considered in the light of the order of status-quo passed by the appellate authority and the Supreme Court was pleased to vacate only the order passed by this Court because the order of injunction passed by this Court in the arbitration suit was only a duplicate order, as it were, as the plaintiff's possession is already protected by order of status-quo passed by the appellate authority. The learned senior counsel also submitted that the plaintiff has been paying whatever that is payable to the defendant and, thereforee, the defendant would be prejudiced in any way.
(11) The learned senior counsel read the agreement dated 5.1.1991 and submitted that the agreement does not represent the real factual position on ground. Even according to the plaintiff it is only a sham document and/therefore, the defendant cannot rely upon the agreement and say that the defendant is in possession of the property.
(12) The learned senior counsel for the plaintiff relied upon the judgment of this Court reported in Intercraft Limited vs Capital but House & Ors., : 59(1995)DLT774 , an order passed by a Single Judge of this Court deciding an interlocutory application.
(13) The learned counsel for the defendant Mr.A.S. Chandhiok submitted that the parties had reduced their bargain into writing and they are bound by the terms thereof and the plaintiff cannot blow hot and cold, approbate and reprobate. The plaintiff had acted as per the terms of the agreement and after the expiration of the time fixed by the parties it is open to the plaintiff to contend that what was agreed was not a commission agreement but a tenancy agreement. In the suit filed by the plaintif in the subordinate court, his plea was that the agreement is a sham and, thereforee, his possession of the premises as tenant should not be disturbed. In the suit here filed by the plaintiff, the plaintiff had treated the agreement as valid in view of the arbitration clause. The order passed by the Supreme Court is binding on the plaintiff and the plaintiff cannot claim to be in possession of the property.
(14) The plaintiff is bound to pay compensation to the defendant, as claimed by the defendant. The plaintiff should also remove all the articles from the premises.
(15) Mr. Arun Jaitley, learned senior counsel appearing for defendant No. 2 submitted that the plaintiff cannot seek any relief in this Court in view of his conduct. He relied upon a judgment of the High Court of Jammu & Kashmir reported in Pran Nath Panjan vs State o f jamma and Kashmir, Air 1972 ] & K 11 and the judgment of the Calcutta High Court reported in M/s. Kalipada Das vs M/s. North Bihar Sugar Mills Ltd, : AIR1982Cal48 and the judgment of the Supreme Court reported in D.T.T.D.C vs M/s D.R. Mehra & Sons, 1996 Ii A.D. 304 and according to the learned senior counsel the balance of convenience is not in favor of the plaintiff and the application for injunction should be dismissed. It has to be noticed that the execution of the agreement is admitted. thereforee, the terms of the agreement have to be considered to arrive at a decision on the issues raised by the parties. In the preamble portion, it is stated that the plaintiff will be the Liberty and the defendant would be the Agent. It is stated lower down the preamble portion as under:-
'ANDWHEREAS the Agents intend to continue the said business of sale of goods like footwear, belts, gloves, purses, etc. at E-27, Connaught Place, New Delhi-110 001 on Commission basis and Principals (M/s. Liberty Sales Service) have agreed to grant to the Agent the selling agency of their said goods from 21.2.1991 and both the parties have agreed to the following terms and conditions for continuance of the business from 21.2.1991.'
In Clause 3 it is stated as under :-
'THAT the Agents shall carry on the said Agency business in the said premises under the name and style of 'LIBERTY'. Provided that the name 'LIBERTY' shall be used by the Agents in conjunction with its trading name 'Jakki Mull & Sons' and the name 'Liberty' shall not be used independently. The Agents shall continue to display at the showroom the trade name of the Principals by the name of 'Liberty' showing itself as Agents of the Principals.'
It is also stated in clause 5 that the Principals had provided to the Agents the necessary furniture and renovation material for the use of the agents at the show room. The show room with all stocks should be insured by the Principal (plaintiff). Clause 12 refers mandatory aspect of the transaction, which reads as follows :-
'THAT the Agents shall be entitled to receive a commission of 10 (ten) percent of the gross sales effected at the Showroom excluding sales tax levied at the time of sale in the said show-room only and not anywhere else, subject to a minimum commission of Rs. 3.60 lacs (Rupees Three lacs sixty thousand only) per annum. The said rate of commission of 10 percent on the sale proceeds shall, however, be not applicable on the sales effected during the period of clearance sales which may be organized at the said showroom at any time. Provided further that the rate of commission payable to the Agents on the sales during the period of show room clearance sales shall be payable at the rate of 2.1/2% (two and a half) percent instead of 10% (ten) percent on the gross clearance sales made during the said period. Provided further that such clearance sales shall not beheld more than twice a year and the period of each such clearance sale shall not exceed two weeks. The Agents shall be entitled to withhold/deduct from the sale proceeds a sum of Rs. 30,000.00 (Rupees Thirty thousand only) or such round amount every month, on account, as may be tentatively due towards its sale commission which withdrawals or deductions shall be accountable at the close of each year.'
The rights of the parties after the termination of the agreement are mentioned in Clause 21, which reads as under:
'THAT in the event of termination of this Agreement after the expiry of stipulated date of 31.3.1994 the agents shall surrender to the Principals, furniture or other decoration material which has been provided for by the Principals to the Agents at the said show room and the Principals shall remove the same from the show room at their own cost and risk together with the unsold stocks which may be lying in the said show room within fifteen days. Provided further that in the event of the Agents deciding to terminate the Agreement before its expiry date without assigning any reason, the Agents shall be liable to pay to the Principals the amount of sum advanced and spent by the Principals in the furnishing, etc. of the show room. 'Provided further that in the went of the Principals revoking this Agreement before its expiry date without the default of the Agents the Principals shall be liable to pay to the Agents the consolidated commission in lumpsum for the unexpired period of the Agreement calculated on the average rate of commission paid to the Agents by the Principals during the period preceding to the revocation of this Agreement and till such time as the said dues are not paid by the Principals to the Agents, the Principals shall not be entitled to demand from the Agents the fittings and fixtures and stocks that may be lying in the show-room. The Principals shall submit a statement to the Agents by 31.3.1991 detailing expenditure incurred on fittings etc. before 21.2.91 date wise (which shall be as per their audited books of accounts) and will submit similar detail for expenditure incurred subsequently by the end of succeeding month in which expenditure is incurred by them. Only such expenditure which has been intimated as per this clause shall be considered jointly by both the parties. A minimum advance notice of at least three months shall be given by either party before the termination of the Agreement.'
(16) Clause 23 is the arbitration clause. It is common ground that the parties were scrupulously acting in accordance with the terms of the contract and there was absolutely no grievance by the plaintiff against the defendant and the vice-versa. The defendant had filed type set of papers showing the nature of the entire transaction for the month of January 1994. The learned counsel for the defendant has submitted a statement of net commission and has submitted a statement called statement of compensation claimed in terms of orders of this Court dated 1.3.1995. The statement is as follows :-
Statement Of Compensation In Terms Of Orders Of HON'BLE Delhi High Court Dated 01.03.1995 In S.NO. 885 Of 1994. 1. Net Commission as per Agreement dated 05.01.1991 based on average sales in the 12 months period ending 31.03.1994 as increased by 10% per annum during Average Net commission in the 12 months period ending 31.03.1994 40854.38 per month. Average Net Commission for the year ending 31.03.1995 i.e. Rs-40854.38 plus 10% 4085.43 = 44939.81 __________________ 5,39,277.81 Average Net Commission for the year ending 31.03.1996 i.e. 44,939.81 plus 10% 4493.98 = 49,433.79 5,93,483.38 __________________ 11,32,483.38 Less amount received up to Sept.95 5,40,000.00 __________________ 5,92,483.38 2-Re-imbursement of expenses as during the period of currency of the agreement dated 5.1.1991 actually incurred by the respondents (from 1.4.94 to 31.3.96) @Rs.20,000.00 4,80,000.00 Taken compensation for delay harassment & other losses. 2,00,000.00 __________________ Total: 12,72,483.38
(17) Mr. Mukul, learned senior counsel in reply submitted that the rent payable by his client is only Rs. 30,000.00 and that amount is being paid up to date and the defendant is not entitled to any compensation. He also referred the affidavits filed on behalf of the defendant showing some employment of persons by the defendant in the premises after disputes had arisen between the parties. He stated that the affidavits filed by the concerned persons have been set up by the defendant and it is against normal course of human conduct that the plaintiff would employ persons who were working under the defendant when the relationship had become bitter and inimical.
(18) I do not think it is necessary to go into that question.
(19) The principal questions that arise for consideration are:
(1)whether the plaintiff is in possession of the property as a tenant? (2) whether the defendant would be entitled to the compensation claimed by it? (3) Whether the plaintiff is entitled to injunction
(20) The agreement once it is admitted has to govern the rights of parties. The parties can refer only to the terms of the agreements to work out their remedies. Having entered into an agreement for doing business and having acted upon it, it is not open to the plaintiff to contend what was being done and what is done is not what was agreed and, thereforee, its rights should be decided de-horse the agreement. It is well settled that once parties had reduced their terms to writing they can refer only that document for all purposes. Section 91 of the Evidence Act, 1872 clearly postulates this position. Section 91 is as follows :-
'91.Evidence of terms of contracts, grants and other dispositions of property reduced to form of document.- When the terms of contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, granat or other disposition of property, or of such matter, except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions hereinbefore contained. 92. Exclusion of evidence of oral agreement. When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to the last section, no evidene of any oral agreement or statement shall be amitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting, from, its terms: Proviso (1).- Any fact may be proved which would invalidate any document, or which would entitle any person to any decree or order relating thereto; such as fraud, intimiation, illegality, want of due execution, want of capacity in any contracting party, [want or failure] of consideration, or mistake in fact or law. Proviso (2).-The existence of any separate oral agreement as to any matter on which a document is silent, and which is not inconsistent with its terms, may be proed. In considering whether or not this proviso applies, the Court shall have regard to the degree of ferlity of the doucment. Proviso (3) - The existence of any separate oral agreement, constituting a condition precedent to the attaching of any obligation under any such contract, grant or disposition of property, may be proved. Proviso (4). The existence of any distinct subsequent oral agreement to rescind or modify any such contract, grant or disposition of property, may be proved, except in cases in which such contract, grant or disposition of property is by law required to be in writing, or has been registered according to the law in force for the time being as to the registration of documents. Proviso (5). Any usage or custom by which incidents not expressly mentioned in any contract are usually annexed to contracts of that description, may be proved: Provided that the annexing of such incident would not be repugnant to, or inconsistent with, the express terms of the contract. Proviso (6)- Any fact may be proved which shows in what manner the language of a document is related to existing facts ' The provision does not allow any evidence to be given in proof of the terms of such contract except the document itself. Section 92 of the Evidence Act, 1872 excludes evidence of any oral agreement when contract had been executed between the parties. There are six provisos to the section. If any party who seeks to get out of the main section must bring his case within one of the proviso to Section 92, otherwise it is not permissible for any party to say anything about oral agreement when there is a document .in writing between the parties. The plaintiff has not made any attempt to show that it can bring its case within any of the provisos to Section 92 of the Evidence Act, 1872.
(21) It is a cardinal principle of construction of document that courts have to construe a contract and courts cannot make a contract for the parties. The intention of the parties has to be gathered from the words employed in the contract. In Western Power Co. Canada, Ltd. vs Corporation of the District of Matsqui, Air 1934 P.C. 254 the Privy Council laid down in the following terms ;-
'NO doubt words can be supplied to give effect to the obvious or apparent purpose of a contract. But this can only be if the language taken as a whole in connexion with the circumstances carries with it the meaning sought to be attached to it. Unexpressed intention is of no legal effect. Words of ordinary user must be construed in their natural sense in view of the circumstances of the case. The Privy Council in Joseph Darmanin for the firm C. Darmanin & Son vs Carmel Micallef for the firm G. Micallef & Son reiterated the same principles and held while construing a written contract, the Court will be erring in approaching the question of what formed the subject-matter of the negotiations which preceded the written contract between the parties, without first settling to what extent the contract was so ambiguous as to justify resort to evidence as-to the negotiations. In this case, there is no ambiguity.'
It is not anybody's case that there is any ambiguity in the terms of the contract. . In Markandelal Diryodhansao. Agarwal Bani vs Sitambhar nath Ramhardayal Sao Agarwal Bani Vivian Bose j., as he then was, asserted as under :-
'WHEN the words used are plain, no extraneous considerations are permissible; neither antecedent correspondence, nor surrounding circumstances nor subsequent conduct. When however the terms of an agreement are ambiguous, the surrounding and contemporaneous circumstances (not subsequent conduct) can be looked to. But oral evidence of intention is inadmissible for the purpose of construting the deeds or ascertaining the intention of the parties. Only such extrinsic evidence of surrounding circumstances as may be required to show in what manner the language of the document is related to existing facts is admissible. This rule is to be applied only in the rare cases and where the rule can be applied it has to be used with the greatest care. Contemporanea expositio as a guide to the interpretation of documents is often accompanied with danger and great care must be taken in its application. One party thought there was a completed contract while the other insisted that there was not and refused to perform it. The contemporaneous circumstances were that both dealt in the concerned commodities and that both were negotiating, one for the purchase, and the other for the sale, of the goods: Held that this was not one of those cases in which all the parties concerned (not merely one side) have for years acted along a given set of lines which can only fit one case and not the other. It is only in circumstances of that kind that it is legitimate to try and correlate the meaning of the words used to existing facts, that is to say, to facts existing as the time of the dispute.'
The Supreme Court had laid down all those principles in State of Orissa and others vs Titagur Paper Mills Company Limited and another, : [1985]3SCR26 and Provash Chandra Dalai and another vs Biswanath Banerjee and another, : [1989]2SCR401 . In the later case, the Supreme Court has said:-
'THE best interpretation of a contact is made from the context. Every contract is to be construed with reference to its object and the whole of its terms. The whole context must be considered to ascertain the intention of the parties. It is an accepted principle of construction that the sense and meaning of the parties in any particular part of instrument may be collected 'exantecedentibus et consequentibus'; every part of it may be brought into action in order to collect from the whole one uniform and consistent sense, if it is possible. In construing a contract the Court must look at the words used in the contract unless they are such that one may suspect that they do not convey the intention correctly. If the words are clear, there is very little the Court can do about it. In the construction of a written instrument it is legitimate in order to ascertain the true meaning of the words used and if that be doubtful it is legitimate to have regard to the circumstances surrounding their creation and the subject matter to which it was designed and intended they should apply.'
The reliance by Mr. Mukul Rohtagi', learned senior counsel, on : 59(1995)DLT774 (supra) is Wholly misconceived for two reasons. First is the order passed by the learned Single Judge of this Court in an interlocutory petition for a prima facie consideration of the matter cannot be used as a precedent for any purpose. Secondly the learned Judge, with great respect, has not been pleased to appreciate the ratio laid down in Smt. Krishnabai Bhritar Ganpatrao Deshmukh vs Appasaheb Tuljaramcirao Nimbalkar and others, : [1980]1SCR161 , Abdulla Ahmed vs Animendra Kissen Mitter, : [1950]1SCR30 and The Godhra Electricity Co. Ltd. and another vs The State of Gujarat and another, : [1975]2SCR42 . The learned Judge has been pleased to refer to Sections 91 and 92 of the Evidence Act, 1872, having in mind the facts of the cases decided by the Supreme Court, referred to by him which arose totally under different circumstances. If the learned Judge intended to lay down a proposition of law, I have to say that the learned Judge had gone far beyond the ratio laid down by the Supreme Court and the proposition laid down by the learned Judge is too wide for acceptance. The parties cannot under law avoid their obligations under the contract by trying to travel beyond the terms of the contract. I am very clear in my mind that in the light of the terms of the contract, which are not in dispute, the parties intended that only the defendant did carry on the business, being in possession of the premises and the plaintiff was only to receive the money from the defendant after the defendant appropriating his commission.
(22) Mr. Mukul Rohtagi, learned senior counsel, on instructions, submitted that he had been instructed to withdraw the suit under Section 20 of the Arbitration Act, 1940. The consequence is the plaintiff becomes liable to pay compensation to the defendant as per the undertaking given by the plaintiff. Mr. Chandhiok argued that the compensation has to be determined by this Court and the compensation is what is claimed in the statement. Mr. Mukul Rohtagi, learned senior counsel, submitted that no doubt the plaintiff is bound by the undertaking but what this court made by directing the plaintiff to give an undertaking by its order dated 1.3.95 is that the defendant should be paid what was being paid right from 1991 up to 31.4.1994 and the defendant cannot claim anything more than that what it was receiving from the plaintiff.
(23) Mr. Mukul Rohtagi, learned senior counsel maintained that the order passed by the Supreme Court reversing the order passed by this Court on 1.3.1995 would not affect the right of the plaintiff to seek an injunction in the suit filed earlier. The Supreme Court was aware of the order of status-quo passed by the appellate court and of the Supreme Court main consideration was that the plaintiff cannot have a second order of injunction when the plaintiff's possession was protected by the order passed by the appellate court. In other words, the contention of Mr. Mukul Rohtagi is that independent of the order passed by the Supreme Court, the claim of the plaintiff that it is in possession of the plaintiff should be considered on the materials placed before the court and in the light of what is being done by the parties he submitted that the plaintiff was selling the shoes manufactured by another Company bearing the same name Liberty and the entire things of procuring the shoes and other articles keeping the premises intact, paying electricity charges, paying telephone charges, was done by the plaintiff and the only part played by the defendant is to receive the commission every month on the basis of the sales effected and, thereforee, the fact that the plaintiff is in possession of the property cannot be disputed by the defendant.
(24) Mr. Mukul Rohtagi, learned senior counsel strongly relied upon the report of the local commissioner who was appointed by the appellate authority to show that the plaintiff is in possession of the premises. The local commissioner has only noticed as to who opened the lock and who had the keys etc. A local commissioner appointed by a court pending the proceedings cannot decide about the possession of the property. The Court has to decide the question of possession with reference to the date of suit. thereforee, the reliance on the local commissioner's report is not at all tenable.
(25) The question whether the plaintiff is in possession of the premises has to be considered only in the light of the terms of the contract. If from a reading of the contract, it cannot be said that plaintiff is in possession then the plaintiff will not be entitled to an injunction. A clear reading of the agreement shows that the plaintiff never intended to be in physical possession of the property. The plaintiff was only interested in selling the shoes through the agency of the defendant. Whatever may be the camouflage, as is contended by the plaintiff, the parties are bound by the contract. thereforee, the plaintiff having been a party to the contract cannot turn around and say 'it is only a sham document', we wanted a document for a particular purpose and what we arc doing is something different from what is stated in the contract'.
(26) The learned subordinate judge while dismissing the application for injunction has applied the correct principle of law and I have no difficulty in confirming the view taken by the trial judge.
(27) In the light of the position of law, the appeal filed by the plaintiff against the order of the learned subordinate judge dismissing the application for injunction is dismissed.
(28) The suit filed by the plaintiff in the lower court is now numbered as suit No. 997/96. The pleadings are complete and, thereforee, issues have to be framed and dates of trial have to be fixed.
(29) The defendant as I had said earlier has filed LA.2417/96 for a direction to the plaintiff to remove the articles. Once the plaintiff is not in possession of the property, it has no right to retain any articles in the premises. Those articles were provided by the plaintiff as per terms of the contract. thereforee, I accept the application filed by the defendant and direct the plaintiff to remove the unsold stock and other furniture and decorative materials from the show room in question within two months.
(30) The defendant has filed IA. 4180/96 for the same relief. As I have passed the order in the other IA.2417/96, no orders are necessary in this application.
(31) With regard to the compensation claimed by the defendant, I feel that the defendant is trying to take advantage of the situation and claiming a very large amount without any justification whatsoever. The plaintiff has been paying a sum of Rs. 30,000.00 every month and it has been paid up to date. thereforee, I do not find any merit in the claim of the defendant for compensation higher than Rs. 30,000.00 per month. The claim of the defendant for compensation more than Rs. 30,000.00 per month is rejected.
(32) Mr. Nandrajog had filed I.A.4442/96 to implead Sanjay Gupta as a party to the proceedings. According to Mr. Nandrajog his client is the owner of the premises and has filed a petition for eviction against the defendant. In view of the orders passed by me, it is not necessary to implead the landlord as a party to the proceedings. However, a direction has to be issued to the court where the proceedings are pending to expedite the trial of the case. Accordingly Mr. C.K. Chaturvedi, Addl. Rent Controller is directed to dispose of the eviction petition No. E-1159/94, titled as Sanjay Gupta vs Jakkimal & Sons and fixed for 8th of October 1996, on or before 31st January 1997 and report the matter to this Court about the disposal.
(33) IA.4442/96 filed by Sanjay Gupta is dismissed. No order as to costs.
(34) Suit No. 885/94 is dismissed as withdrawn. FA0.231/96 is dismissed. IA.2417/96 filed by the defendant is accepted and plaintiff is directed to remove 'the unsold stock and other furniture and decorative materials from the show room in question within two months. IA.4186/96 filed by the defendant is for the same relief as in LA.2417/96, no orders are necessary in this application. S.No. 997/96 Post the matter for further proceedings on 5th of February 1997.