Full Judgment
S.K. Agarwal, J.
1. By this application the plaintiff is seeking direction to the defendant, to deposit/return Rs. 35 lacs in terms of the order dated 6th May, 1997 and to sign plans etc. to enable the plaintiff to secure permission from the Municipal Corporation of Delhi for raising additional construction on the second floor in premises No. B-25, Gulmohar Park, New Delhi (for short suit property). The defendant has filed a reply opposing the application.
2. Facts necessary for disposal of the above application briefly are: that the plaintiffs filed the suit against the applicant/defendant for perpetual and mandatory injunction, restraining the defendant, her employees, agents, servants etc. from in any manner interfering or causing obstruction in the ingress to and egress from the first floor of the suit premises, as well as for mandatory injunction, for directing the defendant to remove iron gates from the area, leading from the ground floor to the first floor of the suit premises; the applicant/defendant, filed written statement pleading therein that in the garb of perpetual injunction the plaintiffs are seeking relief of possession; that plaintiff No.1 is a sham legal entity and a front to violate and defeat fiscal law and that this company was a proprietary concern of one Mr. R.C. Puri. Reply to the plaintiffs' applications under Order 39 Rules 1 and 2, CPC was also filed. The suit was also filed by the applicant/defendant, against the plaintiff No. 1 herein (Suit No. 2953/95) for recession of contract dated 13th April, 1992, in respect of the suit property and for damages and for permanent injunction. Both these suits are being tried together.
3. Applications for grant of interim relief were filed by both the parties in the said suit. This Court by a detailed order dated 6th May, 1997, allowed the plaintiff No. 1 to take possession of the first floor of the suit premises subject to his depositing Rs. 35 lacs in the Court, and they were permitted to carry out repairs and furnishing of the first floor of the suit premises. The sum of Rs. 35 lacs deposited by the plaintiffs were ordered to be released to the defendant against security. It was further ordered that the amount of Rs. 35 lacs would liable to be refunded by the applicant/defendant to the plaintiffs only in the eventuality of the suit being dismissed and plaintiff No.2 vacating the first floor of the suit premises.
4. Relevant portion of the order reads as under:-
'Having regard to the above discussion I am of the prima facie opinion that the plaintiffs are entitled to ad interim mandatory relief subject to payment of Rs. 35 lacs to the defendant as compensation. Accordingly, it is directed that the plaintiffs should deposit a sum of Rs. 35 lacs in this Court as compensation for being paid to the defendant, the plaintiffs have agreed to share the compensation and to deposit the same in Court. The compensation should be deposited within two weeks. It will be open to the defendant to withdraw the compensation on furnishing security to the satisfaction of the Registrar of this Court. It is made clear that this order will be without prejudice to the rights and contentions of the parties and in case the suit of the plaintiffs is dismissed and the plaintiff No. 2 is asked to vacate the premises, then in that event alone the said sum of Rs. 35 lacs will be refunded to the plaintiffs by the defendant. In case the defendant is directed to refund the said sum of Rs. 35 lacs or such lesser sum, the plaintiffs will do so without demur. In case the defendant fails to withdraw the said of Rs. 35 lacs, the same will be put in an FDR for a period of one year in the first instance subject to further renewal, if necessary.
On deposit of Rs. 35 lacs, the plaintiffs will be entitled to an ad interim mandatory injunction against the defendant directing the defendant to remove the iron gate installed in the stair case leading from the ground floor to the first floor of the suit premises, namely, B-25, Gulmohar Park, New Delhi and an order restraining the defendant from interfering with their ingress and egress to the first floor for carrying out additions, alternations and renovations of the same. I order accordingly.
It is further directed that the plaintiffs after deposit of Rs. 35 lacs in the Court will give a notice to the defendant informing her about the factum of the deposit. Learned counsel for the defendant states that once the notice regarding deposit is received by his client, the order will be complied with.
With the above observations, IAS 7369/95, 6295/96, 4372/95 and 12751/95 are disposed of.'
5. Admittedly as per the above noted orders the plaintiffs had deposited the amount of Rs. 35 lacs in the Court, and had obtained possession of the first floor of the suit premises, and the defendant was permitted to withdraw the same on furnishing security. thereforee, this amount can be restored to the plaintiff only in the eventuality of the suit being dismissed and plaintiff No. 2 vacating first floor of the suit premises and not otherwise. These conditions are not fulfillled, there is no question of refund of Rs. 35 lacs to the plaintiff at this stage.
6. In view of the above, there is no merit in the application, the same is dismissed. No order as to the costs.