Gautam Kapoor & Anr. v. Tanya Kapoor & Anr.

1. This is a suit for permanent injunction and declaration filed by the plaintiffs. The case of the plaintiffs is that they are the son and daughter of Late Major N.P.Kapoor who is alleged to have died in 1971 war. The defendant No.1 is the mother of the plaintiffs and the widow of Late Major N.P.Kapoor. It has been alleged in the plaint that at the time when the father of the plaintiffs died, they were minor and their mother/defendant No.1 was allotted a petrol pump by defendant No.2 under the ‘Army War Widow Quota’ so as to provide them succor on account of the unfortunate death of 2014:DHC:1292 their father. The petrol pump was allotted to defendant No.1 at S-19, Green Park Extension, Opposite Yusuf Sarai Market, Aurbindo Marg, New Delhi – 110016. It is averred that a letter of intent dated 23.04.2001 was issued by the defendant No.2 specifying the conditions on which the petrol pump was allotted to defendant No.1. The condition No.6 of the said letter of intent laid down that the defendant No.1 shall not make any changes in the constitution of the partners or the applicants at the time when the petrol pump was allotted to her. Pursuant to this, another Memorandum of Agreement dated 10.10.2010 was also signed between the defendant No.2 and defendant No.1. Some of the conditions which are important in the said Memorandum of Agreement are that the licensee shall not change the constitution of the licence nor dissolve the partnership nor admit new member as a partner nor allow any partner to withdraw from the partnership without obtaining the previous consent in writing from the defendant No.2/Company. As per clause 12 of the licence agreement, the licence could be terminated without assigning any reason whatsoever by either of the parties. Similarly, in case there were any breaches of the licence agreement, the licence could be terminated. It has been stated that on 19.07.2013, a show cause notice has been issued to the defendant No.1, which she is alleged to have received on 08.08.2013. The case which has now been set up by the plaintiffs is that the defendant No.1 is presently in judicial custody on account of certain FIRs having been registered against her. She is alleged to have taken some finances from one Mr.Naresh Tyagi for the purchase of motor spirit and the high speed diesel which are sold at the dispensing unit. It has been alleged Mr.Naresh Tyagi was introduced to the defendant No.1 by way of Ms.Veena Sharma, ACP of Police as a financier and businessman. Under these circumstances, the following reliefs are claimed by the plaintiff. a) pass a decree of permanent injunction restraining the defendant No.2 to allot and/or issue licence to anyone allotted to the Defendant No.1 including revoking/canceling/allotment of the M/s Bharat Petroleum Corporation Ltd, Petrol Pump, at S-19, Green Park Extension, Opposite Yusuf Sarai Market, Aurbindo Marg, New Delhi – 110016 allotted in favour of the Defendant No.1/ M/s. T.K.Oil Company (Prop. Defendant No.1); b) Pass a decree of declaration in favour of the plaintiffs and against the defendants that plaintiffs are the co-allottees/co-licencees/cosharers of the Petrol Pump of BPCL at S-19, Green Park Extension, Opp.Yusuf Sarai Market, New Delhi – 110016; c) Pass a decree of declaration in favour of the Plaintiffs and against the Defendant No.1 declaring that all the papers, deeds, agreements, documents signed by the Defendant No.1 voluntarily or under duress, undue influence, coercion in favour of the third party against the interest and rights of the plaintiffs are null and void not binding upon the Plaintiffs in respect of the Petrol Pump S-19, Green Park Extension, Opp. Yusuf Sarai Market, New Delhi 110016 allotted in favour of the Defendant No.1.”

2. The court had asked a question to the learned counsel for the plaintiffs as to how the suit was maintainable as there was complete lack of cause of action so far as the plaintiffs are concerned. The learned counsel has not been able to show as to how the plaintiffs have the locus to seek a declaration that they are the co-licencees in respect of the petrol pump in question despite the fact that it is their own case that the letter of intent dated 23.04.2001 was issued to the defendant No.1 in her individual capacity and she has signed the Memorandum of Agreement dated 10.10.2010 with the defendant No.2/Company in individual capacity as a proprietor of one M/s T.K.Oil Company. The injunction which has been sought is that the licence may not be revoked/cancelled/allotted to somebody else. Since no declaration can be issued as the plaintiffs do not have any right to the petrol pump, therefore, there is no question of granting any injunction also. Under these circumstances, I feel that apart from the locus of the plaintiffs, there is hardly any cause of action in favour of the plaintiffs to file a suit against the defendant No.2. It seems to be a surrogate suit filed on behalf of the defendant No.1, the mother of the plaintiffs, who is presently in custody. I am of the view that the plaint is liable to be rejected under Order 7 Rule 11(a) CPC. Ordered accordingly. V.K. SHALI, J. MARCH 07, 2014 dm