Delhi District Court
Gaurav Sethi vs Aar Pee Apartments Pvt Ltd on 9 July, 2026
IN THE COURT OF SH. HARJYOT SINGH BHALLA
DISTRICT JUDGE-03, SOUTH-WEST DISTRICT,
DWARKA COURTS, NEW DELHI
Appeal No. : RCA DJ/17/2026
CNR No. : DLSW01-001844-2026
Date of Institution : 04.02.2026
Date of concluding arguments : 02.07.2026
Date of judgment : 09.07.2026
IN THE MATTER OF:
Gaurav Sethi
S/o Sh. Subhash Chander Sethi
R/o L-51C, Second Floor, Gali No.22,
New Mahavir Nagar, New Delhi-110018
......Appellant
Versus
M/s Aar Pee Apartments Pvt. Ltd.
Registered Office at:
M-132, Adinath Shree House,
Connaught Circus,
New Delhi-110001
........Respondent
JUDGMENT
1. This is a Regular Civil Appeal filed by the
Appellant/Defendant against the ex-parte judgment and decree
dated 27.09.2025, passed by the Ld. SCJ-cum-RC, South-West,
Dwarka, New Delhi against the defendant/appellant.
Plaint RCA DJ 17/2026 Page no. 1 of 29
2. Briefly stated, case of the plaintiff is that plaintiff is a
Private Limited Company incorporated under the Companies Act
1956 and is the Builder and Promoter and is engaged in the
building activities The plaintiff company, had, acquired leasehold
rights in the Plot no.6, District Centre Janak Puri New
Delhi-110058 from Delhi Development Authority in the open
auction on which a building “T.C. Jaina Tower-II was constructed.
3. That the plaintiff allotted various spaces in the said
building to persons on a license Basis. license agreements which
contained detailed terms and conditions were executed. That the
mother of the defendant was also a licensee and was allotted
space no. 315, 3rd Floor, T.C. Jaina Tower-II, Plot No.6,
Jankapuri District Centre New Delhi-110058 by virtue of license
agreement dated 08.07.2002. Under the said license agreement
she was given specific right to use the said space for the period of
5 years. That the said license agreement has since expired.
4. That the license rights of the above said space was in
the name of the mother of the defendant namely Mrs. Sudesh
Sethi, however after demise of the mother of the defendant, the
defendant was similarly bound by the said terms and conditions
being legal heirs of the licensee Late. Mrs. Sudesh Sethi.
5. That as per the terms of the perpetual lease between
plaintiff and DDA, the plaintiff is bound to pay the ground rent
and e- Ground Rent every six months in advance to DDA,
without any demand being raised by the DDA and it is clearly
provided in the said lease that in case of default, the plaintiff is
liable to pay the interest/penalty.
6. That the DDA has the right to cancel the lease and
resume the possession of the entire building, as the DDA has
RCA DJ 17/2026 Page no. 2 of 29
done in most of the cases in the Janakpuri District Center and
recently on 20.01.2021 in Pitampura complex. That abovesaid
payment of the ground rent, e-ground rent and licensee fee by the
plaintiff company is a mandatory obligation on part of the
plaintiff company which has to be complied with, even without
any demand being received from the DDA and the defendant is
bound to pay the proportionate amount of Ground Rent &
enhance ground rent and licensee fee every year in advance.
7. That DDA in its Press Note has extensively
advertised in the daily Newspaper Hindustan Times dated
15.02.2020 about the mandatory payment of the ground rent and
e-ground Rent as well as about the consequences of non-payment
of the ground rent and e-ground Rent. That the said
advertisement/ press note is being filed herewith for the kind
perusal of this court.
8. That the plaintiff company is regularly making
payment of the said charges to the DDA in advance every year.
That as per the clause 16(a) & 17(a) of the license Agreement
signed between the parties, the defendant is in use and
occupation of the said space, However, the defendant is bound by
the terms and conditions of the terms of auction/perpetual lease
of the plot on which the building is constructed and as per the
terms and conditions of the lease, by DDA, it has been clearly
provided in Clause Ill and Clause IV (vi) (vii) that the DDA has
the right to cancel the allotment in case the ground rent is not
paid in time, and therefore the defendant are in clear breach of
the terms and conditions of the license agreement.
9. That as per Clause 16(a) and 37 of the terms of the
said license agreement the defendant was liable to make the
RCA DJ 17/2026 Page no. 3 of 29
payment of ground rent, e-ground rent and license fee in advance
every year to the plaintiff company in respect of the above said
space time to time. That the plaintiff was under no obligation to
raise any bill or reminder, but still the plaintiff on its part sent the
bills to the defendant.
10. That the plaintiff company sent the various bills/
demand letters time to time and lastly dated 25.08.2023 towards,
the ground rent, e-ground rent and license fee charges for the
period up to 31.03.2024 to the defendant in respect of the space
no. 315, 3rd Floor, T.C. Jaina, Tower-II, Plot No. 6, Janakpuri,
District Centre, New Delhi-110058, amounting to Rs. 10,73,163/-
however the defendant failed to pay the said outstanding ground
rent, e-ground rent and license fee amount, to the plaintiff
company.
11. That the defendant is a regular defaulter in making
payment of the ground rent, e-ground rent and license fee of his
proportionate share of the suit space alongwith license fee and
interest thereof by deliberately avoiding to make payment of the
Government dues since for which the Plaintiff company on
several occasions raised various demands and reminders letters to
the said Defendant.
12. That defendant has also made additions & alteration
by breaking columns/beems which has resulted developing
cracks in the other parts of the building and which is very
dangerous for other occupants of the building and deviations in
the space in sheer violation of the sanction plan as well as to the
public at large visiting the said building. That all above
mentioned acts of demolition and destruction are strictly in
contravention of the building by laws, rules and regulations of
RCA DJ 17/2026 Page no. 4 of 29
Govt. Authorities like MCD & DDA etc., various local bodies /
authorities; as well as in violation of Clause 21 (a) of the
Agreement.
13. That the damages caused is much more but the
plaintiff is entitled to claim Rs. 1,00,000/- from the defendant on
account of damages caused to the structure and elevation of the
building. That the plaintiff sent the show cause notice dated
12.09.2023 to the defendant through Speed post whereby the
Plaintiff asked the defendant to show cause as to why the
cancellation of the above said space should not made by the
plaintiff for non-payment of arrears of said ground rent, e Ground
Rent and license fee of the space and violation of terms of license
agreement and also demanded Rs. 100000/- towards the amount
of damages caused to the building of the plaintiff. However the
defendant have failed to complied with the said notice.
14. That since the defendant has failed to perform his
part of obligation as per the license agreement. That a
termination notice dated 23.12.2023 was sent on behalf of the
plaintiff company to the defendant thereby the plaintiff
terminated the license agreement and the plaintiff company asked
the defendant to vacate the suit premises by removing himself
and his belongings lying therein within a period of 15 days of the
receipt of the termination notice of said space and also enclosed
cheque bearing number 000490 dated 22.12.2023 drawn on
ICICI Bank, C.P Branch New Delhi amounting Rs. 1,30,000.00/-
towards refund security of deposited at the time of execution of
license Agreement and also pay the due ground rent and e-
ground rent and license fee amount alongwith interest and
RCA DJ 17/2026 Page no. 5 of 29
penalty of Rs. 10,73,163/- failing which the plaintiff company
shall take appropriate legal action.
15. That the plaintiff is not claiming arrears of ground
rent, license fees, etc. from the defendant and relinquishes the
part of claiming recovery of the said amount as provided in Order
II Rule 2 of CPC an claiming the relied of removing the
defendant from the suit space in the present suit.
16. The defendant is liable to pay the damages for the
unauthorized use and occupation of the suit spaces @ Rs. 1,000/-
per day as such the plaintiff is entitled for the damages @ Rs.
1,000/- per day from the defendant on account of unauthorized
use and occupation of the suit space which amount comes to
Rs.23,000/- from the date of termination of license till the date of
filing of the suit. That the plaintiff is also entitle for the future
damages at the same rate of Rs.1,000/- per day from the date
filing of the present suit till the removal of the defendant himself:
and his belongings from the suit space. Hence, the suit.
17. The Ld. Trial Court issued summons to the
defendant.
18. The summons, attempted to be served on the
defendant, were returned with remarks “refused”. None appeared
on behalf of the defendant and accordingly, Ld. Trial Court
proceeded against the defendant ex-parte and ultimately, passed a
judgment and decree dated 27.09.2025.
19. The defendant herein, thereafter, filed an application
under Order 9 Rule 13 of CPC before the Ld. Trial Court and
also filed the present appeal under Section 96 of CPC.
20. In the memorandum of appeal, the appellant has
raised the following grounds:
RCA DJ 17/2026 Page no. 6 of 29
i. That the decree has been obtained by fraud i.e., by
forging the agreement between the parties by scoring off Clause
41, which is an Arbitration clause;
ii. That the court had no jurisdiction in view of the
Commercial Courts Act;
iii. All the LRs of deceased Smt. Sudesh Sethi were
not impleaded as defendants and that too, fraudulently;
iv. That the agreement dated 08.07.2002 was
actually a builder-buyer agreement and not a license agreement
as projected by the plaintiff and that the words “total agreed
deposit” used in the said agreement was the “total agreed sale
consideration”;
v. That the suit for possession was falsely/wrongly
filed in the garb of suit for mandatory injunction;
vi. That the agreement was a colorable device
employed by the plaintiff company to circumvent the provisions
of Delhi Apartment Ownership Act, 1986, to evade the execution
of a Deed of Apartment;
vii. That the suit for recovery was time barred and
therefore, the plaintiff company gave up the claim of recovery of
arrears and the Ld. Trial Court failed to appreciate the said
conduct;
viii. That the Ld. Trial Court wrongly relied upon the
report of the Process Server regarding refusal of summons by
defendant and the Process Server was neither examined, nor
proof of affixation furnished;
ix. That the plaintiff has concealed the factum of
receiving payment of Rs.1,50,000/- from the defendants during
the pendency of the suit; and
RCA DJ 17/2026 Page no. 7 of 29
x. That the judgment has been passed on the basis
of no evidence, because the award of damages @ Rs.1,000/- per
day is arbitrary, excessive and contrary. That the Ld. Trial Court
was bound to consider the bar under Arbitration and Conciliation
Act, 1996.
21. No other grounds have been raised.
22. After the arguments were concluded on the appeal,
an application was filed under Order 7 Rule 14 of CPC to place
additional documents on record before the date when the matter
was reserved for orders.
23. The appellant has, by way of the said application,
tried to place on record the affidavit of Sh. Rakesh Jaina,
Director of the respondent/plaintiff company submitted with the
MCD, where the said Director has claimed that all units and
spaces in the building have been sold and the flat buyers are
liable to pay the property tax.
24. First of all, the application could not have been filed
by the appellant under Order 7 Rule 14 of CPC. In appeal, the
only provision which should have been invoked was for
leading/recording of additional evidence under Order 41 Rule 27
of CPC.
25. Secondly, mere production of a photocopy of a
document would not ipso facto imply that the same has been
proved in accordance with law for the court to act on it.
Interestingly, there are only prayers in the said application. One
is to take the affidavit on record and second to permit the
appellant to re-argue the appeal.
26. In the present case, the defendant never appeared
and the plaintiff’s witness was never cross examined. Therefore,
RCA DJ 17/2026 Page no. 8 of 29
how, merely on filing of a copy of an affidavit, which is not part
of the Trial Court record, the decision can be modified? Even if
the said document is taken on record, it cannot be a valid proof of
sale of suit property by the respondent to the appellant. A sale can
only be by way of sale deed. There cannot be any estoppel
against the statute. The provisions of Transfer of Property Act
and Stamp Act cannot be bypassed even by the plaintiff and the
defendant admitting transfer in the absence of a duly stamped
and registered sale deed. There is no suggestion given to the
plaintiff’s witness in the absence of cross examination that the
real transaction between the parties was not license, but sale. If
indeed the intent was to sell, even then, at the most, the document
would have been an agreement to sell (which I do not agree with)
in which case, the appellant was bound to file a counter claim or
may file a separate suit, if permissible in law, seeking specific
performance of contract. In fact, during the course of arguments,
the Ld. Counsel for the appellant was relying upon the decision
in Raka Singhal Vs. Pushpa Builder, AIR 2007 Del 222, which is
a decision arising out of suit for specific performance, based on a
similar plea. Needless to say that the appellant has never invoked
the provisions of Specific Relief Act, whereby an instrument or a
contract can be rectified under Section 26 of Specific Relief Act.
Such relief, at this stage, may be barred by limitation.
27. The application is accordingly, without any merits
and is accordingly required to be dismissed.
28. That takes me to the grounds urged.
29. It is settled law that in a civil appeal, except with the
permission of the court, a party cannot go beyond the grounds
raised.
RCA DJ 17/2026 Page no. 9 of 29
30. That as far as civil appeal is concerned, it is different
from a criminal appeal and the relevant provisions reads as
follows:
Cr.P.C for Criminal Appeal:
382. Petition of appeal. Every appeal shall be made in
the form of a petition in writing presented by the
appeallant or his pleader, and every such petition shall
(unless the Court to which it is presented otherwise
directs) be accompanied by a copy of the judgment or
order appealed against.
Order XLI Rule 1 & Rule 2 of CPC:
Rule 1 Order XLI of Code of Civil Procedure 1908
“Form of appeal, What to accompany memorandum”
(1) Every appeal shall be preferred in the form of a
memorandum signed by the appellant or his pleader and
presented to the Court or to such officer as it appoints in
this behalf. the memorandum shall be accompanied. by a
copy of the decree appealed from and (unless the
Appellate Court dispenses therewith) of the Judgment on
which it is founded:
Provided that where two or more suits have been tried
together and a common Judgment has been delivered
therefor and two or more appeals are filed against any
decree covered by that Judgment, whether by the same
appellant or by different appellants, the Appellate Court
may dispense with the filing of more than one copy of
the Judgment.
(2) Contents of memorandum- The memorandum shall
set forth, concisely and under distinct heads, the grounds
of objection to the decree appealed from without any
argument or narrative; and such grounds shall be
numbered consecutively.
(3) Where the appeal is against a decree for payment of
money, the appellant shall, within such time as the
Appellate Court may allow, deposit the amount disputed
in the appeal or furnish such security in respect thereof
as the Court may think fit.
RCA DJ 17/2026 Page no. 10 of 29
Rule 2 Order XLI of Code of Civil Procedure 1908
“Grounds which may be taken in appeal”
The appellant shall not, except by leave of the
Court, urge or be heard in support of any ground of
objection set forth in the memorandum of appeal, but the
Appellate Court, in deciding the appeal, shall not be
confined to the grounds of objections set forth in the
memorandum of appeal or taken by leave of the Court
under this rule:
Provided that the Court shall not rest its decision
on any other ground unless the party who may be
affected thereby has had a sufficient opportunity of
contesting the case on that ground.
31. Since civil cases proceed on pleadings of both
plaintiff and defendant, the appeals are also subjected to stricter
rules of pleadings. In criminal law, the accused is neither called
upon nor required to file any written statement and the rules of
pleadings cannot be made applicable to the appeal filed by an
accused or a convict. Therefore, the language of Section 382 is
quite different from the language of Order XLI Rule 1 & Rule 2.
32. Further, a criminal appeal by its nature enjoins a
duty upon the court to rehear and re-evaluate the evidence and
appellant is entitled to agitate all questions of facts and law
before the court of criminal appeal. It is virtually a complete
rehearing of the matter.
33. The appellant in a civil appeal, on the other hand,
cannot be, without the leave of the court, be heard on any ground
or objection not said forth in the memorandum of appeal. The
appellant cannot, therefore, urge a ground not set forth in the
memorandum of appeal.
RCA DJ 17/2026 Page no. 11 of 29
34. I would first deal with the ground (viii) hereinabove
indicated i.e., that the service report was manipulated or the
defendant was not properly served.
35. A perusal of record reveals that the Trial Court had
attempted to serve the appellant at the residential address and the
Process Server, as well as, the Postman, both have indicated that
the process was refused. It was argued that it is not indicated as
to who refused the process.
36. First of all, the provisions dealing with delivery of
summons by post and by Process Server have been dealt with
separately in the Code. Order 5 Rule 9 of CPC deals with service
by post and its refusal, whereas Order 5 Rule 17 of CPC deals
with refusal made to a official of the court trying to serve
process. They are quoted for ease of reference:
9. Delivery of summons by Court.
(1) Where the defendant resides within the jurisdiction of
the Court in which the suit is instituted, or has an agent
resident within that jurisdiction who is empowered to
accept the service of the summons, the summons shall,
unless the Court otherwise directs, be delivered or sent
either to the proper officer to be served by him or one of
his subordinates or to such courier services as are
approved by the Court.
(2) The proper officer may be an officer of a Court other
than that in which the suit is instituted, and, where he is
such an officer, the summons may be sent to him in such
manner as the Court may direct.
(3) The services of summons may be made by delivering
or transmitting a copy thereof by registered post
acknowledgment due, addressed to the defendant or his
agent empowered to accept the service or by speed post
or by such courier services as are approved by the HighRCA DJ 17/2026 Page no. 12 of 29
Court or by the Court referred to in sub-rule (1) or by
any other means of transmission of documents (including
fax message or electronic mail service) provided by the
rules made by the High Court:
Provided that the service of summons under this
sub-rule shall be made at the expenses of the plaintiff.
(4) Notwithstanding anything contained in sub-rule (1),
where a defendant resides outside the jurisdiction of the
Court in which the suit is instituted, and the Court directs
that the service of summons on that defendant may be
made by such mode of service of summons as is referred
to in sub-rule (3) (except by registered post
acknowledgment due), the provisions of rule 21 shall not
apply.
(5) When an acknowledgment or any other receipt
purporting to be signed by the defendant or his agent is
received by the Court or postal article containing the
summons is received back by the Court with an
endorsement purporting to have been made by a postal
employee or by any person authorised by the courier
service to the effect that the defendant or his agent had
refused to take delivery of the postal article containing
the summons or had refused to accept the summons by
any other means specified in sub-rule (3) when tendered
or transmitted to him, the Court issuing the summons
shall declare that the summons had been duly served on
the defendant:
Provided that where the summons was properly
addressed, pre-paid and duly sent by registered post
acknowledgment due, the declaration referred to in this
sub-rule shall be made notwithstanding the fact that the
acknowledgment having been lost or mislaid, or for any
other reason, has not been received by the Court within
thirty days from the date of issue of summons.
(6) The High Court or the District Judge, as the case may
be, shall prepare a panel of courier agencies for the
purposes of sub-rule (1).
RCA DJ 17/2026 Page no. 13 of 29
17. Procedure when defendant refuses to accept service,
or cannot be found.
Where the defendant or his agent or such other person as
aforesaid refuses to sign the acknowledgement, or where
the serving officer, after using all due and reasonable
diligence, cannot find the defendant, who is absent from
his residence at the time when service is sought to be
effected on him at his residence and there is no
likelihood of his being found at the residence within a
reasonable time and there is no agent empowered to
accept service of the summons on his behalf, nor any
other person on whom service can be made, the serving
officer shall affix a copy of the summons on the outer
door or some other conspicuous part of the house in
which the defendant ordinarily resides or carries on
business or personally works for gain, and shall then
return the original to the Court from which it was issued,
with a report endorsed thereon or annexed thereto stating
that he has so affixed the copy, the circumstances under
which he did do, and the name and address of the person
(if any) by whom the house was identified and in whose
presence the copy was affixed.
37. There is no challenge to the address given by the
plaintiff where the summons were attempted to be served. In the
memorandum of appeal the challenge seems to be limited to the
attempt made by the Process Server and failure of the Ld. Trial
Court to examine the Process Server and non affixation. There is
no challenge to the report of the Postman on the registered/Speed
Post. In my view, in law, there is no further requirement if the
Postman returns the summons sent by post with the remark
refused. There is no error in the Trial Court record and the
procedure adopted in this regard. In my view, the appellant chose
to sit on the fence to see what the Trial Court would do by
refusing to accept the summons sent. He chose not to participate
and now must bear the brunt of what has transpired. Therefore,
RCA DJ 17/2026 Page no. 14 of 29
the ground that defendant was not served properly has no basis
and is hereby rejected.
38. That takes me to the next ground i.e., ground (i) as
hereinabove indicated i.e., of manipulation in the license
agreement and alleged existence of an arbitration clause, which
the plaintiff deleted fraudulently.
39. First of all, such a plea was required to be taken in
the written statement, which was never filed before the Trial
Court. The agreement was also required to be filed alongwith an
application under Section 8 of Arbitration & Conciliation Act.
Merely producing a photocopy, claiming the same to be the real
agreement between the parties without invoking provisions for
leading additional evidence under Order 41 Rule 27 of CPC is of
no avail. Mere production of a photocopy of a document would
not ipso facto imply that the same has been proved in accordance
with law for the court to act on it.
40. Next, the doctrine of waiver, stands duly recognized
by Section 4 of Arbitration & Conciliation Act, the doctrine of
limited judicial intervention stands recognized in Section 5 of
Arbitration & Conciliation Act. Section 8 of Arbitration &
Conciliation Act, is not absolute and does not take away
jurisdiction of a civil court to deal with the dispute for which
there may exist an arbitration agreement. It requires the
defendant before a civil court, to move appropriate application
conforming with the pre-conditions and within the time provided.
41. Section 8 prior to the amendment of 2015, reads as
follows:
8. Power to refer parties to arbitration where
there is an arbitration agreement.-
RCA DJ 17/2026 Page no. 15 of 29
(1) A judicial authority before which an
action is brought in a matter which is the
subject of an arbitration agreement shall, if a
party so applies not later than when
submitting his first statement on the
substance of the dispute, refer the parties to
arbitration.
(2) The application referred to in sub-section
(1) shall not be entertained unless it is
accompanied by the original arbitration
agreement or a duly certified copy thereof.
(3) Nothwithstanding that an application has
been made under sub-section (1) and that the
issued is pending before the judicial
authority, an arbitration may be commenced
or continued and an arbitral award made.
42. The amended Section 8 of Arbitration &
Conciliation Act is being reproduced for ease of reference:
“(1) A judicial authority, before which an
action is brought in a matter which is the
subject of an arbitration agreement shall, if a
party to the arbitration agreement or any
person claiming through or under him, so
applies not later than the date of submitting
his first statement on the substance of the
dispute, then, notwithstanding any judgment,
decree or order of the Supreme Court or any
Court, refer the parties to arbitration unless it
finds that prima facie no valid arbitration
agreement exists.
(2) The application referred to in sub-section
(1) shall not be entertained unless it is
accompanied by the original arbitration
agreement or a duly certified copy thereof.
Provided that where the original arbitration
agreement or a certified copy thereof is not
available with the party applying for
reference to arbitration under sub-section
(1), and the said agreement or certified copy
is retained by the other party to that
agreement, then, the party so applying shall
RCA DJ 17/2026 Page no. 16 of 29
file such application along with a copy of the
arbitration agreement and a petition praying
the Court to call upon the party to produce
the original arbitration agreement or its duly
certified copy before that court………..”.
43. In N. Radhakrishnan Vs. Maestro Engineers & Ors,
(2010) 1 SCC 72 and Atul Singh & Ors Vs. Sunil Kumar Singh
& Ors, AIR 2008 SC 1016 the Hon’ble Apex Court has held that
the requirement of filing the original as well as certified copy
under section 8 of the Arbitration and Conciliation Act 1996
(hereinafter referred to as the Act) is a mandatory requirement.
An application not supported by the original agreement or
certified copy thereof as required by the Section 8 is required to
be dismissed. In N. Radhakrishnan (supra), a copy of the
partnership deed containing the arbitration agreement had been
filed by the plaintiff and the defendant had, instead of filing a
copy, wished to rely on the copy filed by the plaintiff. The
Hon’ble Supreme Court held that:
“The court would not be empowered to
refer the matter to an Arbitrator due to the
non compliance of the provisions
mentioned under Section 8 (2) of the Act” .
44. The decision in an earlier case of Atul Singh (supra)
is also to same effect as is apparent from para 10 of the
judgment relevant portion of which reads as follows:
“There is no whisper in the petition dated
28.2.2005 that the original arbitration
agreement or a duly certified copy thereof is
being filed along with the application.
Therefore, there was a clear non-compliance
of sub-section (2) of Section 8 of 1996 Act
which is a mandatory provision and the
dispute could not have been referred toRCA DJ 17/2026 Page no. 17 of 29
arbitration. Learned counsel for the
respondent has submitted that a copy of the
partnership deed was on the record of the
case. However, in order to satisfy the
requirement of sub-section (2) of Section 8
of the Act, defendant No.3 should have filed
the original arbitration agreement or a duly
certified copy thereof along with the petition
filed by him on 28.2.2005, which he did not
do. Therefore, no order for referring the
dispute to arbitration could have been passed
in the suit.”
45. Two decisions of the Hon’ble Apex Court in N.
Radhakrishnan Vs. Maestro Engineers & Ors, (2010) 1 SCC 72
and Atul Singh & Ors Vs. Sunil Kumar Singh & Ors, AIR 2008
SC 1016, make it amply clear that if the mandatory requirement
has not been complied with application has to be dismissed.
46. The aforesaid view has also been relied upon by the
Hon’ble Delhi High Court in Ansal Housing Construction
Limited Vs. M/s Power House Health Club India, CS (OS)
2574/2013 order dated 11.10.2018.
47. The Delhi High Court in Punjab State Electricity
Board v. Vee Kay General Industries (“Vee Kay Industries”),
I(2008)BC36 has made a crucial distinction, holding that while
there is no bar on filing a civil suit even if there is an arbitration
clause, if the suit pertains to a contract requiring arbitration, the
defendant can seek appropriate orders under Section 8. The Court
emphasized that it is “altogether one thing to say that the dispute
as raised in the plaint, being arbitrable, should be stayed (position
under the Old Act) or referred to arbitration (position under the
New Act) vis-a-vis to state that the suit is not maintainable.”
RCA DJ 17/2026 Page no. 18 of 29
48. The defendant, who refused service of summons,
can be said to have waived his right to file application under
Section 8 of Arbitration & Conciliation Act and therefore, cannot
now claim that the civil court had no jurisdiction to deal with the
matter. This ground also, therefore, cannot help the appellant.
49. That takes me to Ground (ii) i.e., the jurisdiction of
the court was barred under Commercial Courts Act read with
Ground (v) the suit for possession was wrongly filed in the garb
of suit for mandatory injunction.
50. The suit was filed by the plaintiff seeking permanent
injunction and past, pendente lite and future damages valuing the
same at Rs.1,23,000/- for the relief of recovery of damages and
Rs.130/- each for the relief of permanent and mandatory
injunction. Suit was filed on a license deed duly executed
between the parties, all provisions whereof (except the clause 41
as hereinabove indicated) are admitted between the parties. As
already indicated, the oral testimony of plaintiff’s witness is
unrebutted in the absence of cross examination. Even otherwise,
the aspect of valuation has to be decided on the plaint as it is and
neither on the decision on merits nor on the pleas contained in
the written statement.
51. A suit for mandatory injunction is maintainable for
claiming possession against a licensee, and law on this aspect is
no longer res integra in view of a plethora of pronouncements
by various High Courts as well as by the Hon’ble Supreme
Court. Reference may be made to the decisions relied upon by
the Defendant in support of his application Renu Nagar (supra),
reference may also be made to Apex Court’s decision in Sant Lal
Jain vs Avtar Singh, AIR 1985 SC 857.
RCA DJ 17/2026 Page no. 19 of 29
52. It is well settled that a suit for permanent and
mandatory injunction can be valued by the plaintiff in his/her
discretion and the same is not required to be valued at the market
value of the property. In Padmavati Mahajan Vs. Yogender
Mahajan, 152 (2008) Delhi Law Times 363, the aforesaid
principle was reiterated and the court observed relied upon the
decision in Oriental Trading Corporation Vs. Punjab Spin
Trading Company, 1976 RLR 650 and quoted the following
paragraph:
“The law on the subject is well settled- Under
Section 7(iv)(d) of the Court Fees Act in a suit to
obtain injunction, discretion is given to the plaintiff
to value the relief and pay the Court fees
accordingly and a local amendment made in the law
has provided that the Court fees paid in such a suit
shall be not less than Rs. 13. on the other hand, in
suits for possession of land and houses, the Court
fee is to be paid on the market value as provided in
Sub-clause (c) of Clause (v) of Section 7 of the
Court Fees Act. In Sathapana Chettiar v.
Ramanathan, AIR 1958 SC 245, the Supreme Court
laid down that the question of Court fees must be
considered in the light of the allegations made in the
plaint and this decision cannot be influenced either
by the pleas in the written statement or by the final
decision of the suit on merits. A Full Bench of the
Circuit Bench of the Punjab High Court at Delhi in
Jai Krishna Dass v. Babu Ram, 1967 PLR 52,
observed that it was settled law that for deciding the
question relating to the amount of Court fee payable
on a plaint, not only have the averments in the plaint
alone to be taken into account but the said
allegations are to be assumed to be correct and the
decision can neither depend on the maintainability
of th suit as framed nor upon the assumption that the
Court must somehow spell out of the plaint such a
claim which is ultimately capable of being decreed
and he Court has to take the plaint as it is withoutRCA DJ 17/2026 Page no. 20 of 29
omitting anything material and without reading in it
by implication what is not stated therein “
53. The Ld. Single Judge, Hon’ble Justice Sanjeev
Khanna noted that in the case before his lordship plaintiff was
claiming to be in joint occupation of the property with the
defendant and had alleged revocation of license and therefore the
suit was not for recovery of possession but for grant of
mandatory injunction to vacate the same. In such a case, if the
plaintiff is content to have a decree of mandatory injunction, it is
open for the plaintiff to pay court fees on the suit as framed.
Therefore, the court was of the view that when the plaintiff
chooses to sue for injunction instead of possession and pays the
court fees as if it was a suit for injunction there is no defect in the
valuation.
54. In fact, in case of a licensee even if the word
possession is used in a prayer for mandatory injunction, court
fees need not be paid on value of the property. In any event, the
prayer in the present suit does not use the expression possession.
In another decision of the Delhi High Court in Sunil Sharma and
Anr Vs. Uma Sharma, RSA No. 166/2012 decided on 14.03.2014
by another Ld. Single Judge of the Delhi High Court wherein a
prayer for vacation and handing over of physical possession was
sought and the court upheld the orders of the trial court as well as
the first appellate court to treat the case as one seeking relief of
mandatory injunction and valued under the provisions Section 7
(iv) (d) of the Court Fees Act.
55. Therefore, there was no error in filing a suit for
mandatory injunction or its valuation. Further, in view of Order 2
RCA DJ 17/2026 Page no. 21 of 29
Rule 2 of CPC, the plaintiff can always give up any claim or
relief he may chose to. Therefore, if the plaintiff, chose to give
up the relief of recovery of arrears of ground rent etc. till the date
of legal notice, no fault can be found with it.
56. It is equally settled that Commercial Court Act has
no application to disputes below Rs.3,00,000/- in value.
57. The Commercial Courts Act was enacted to
expeditiously deal with the commercial disputes. The
Constitution of Commercial Courts is governed by Section 3 of
the said Act, which is quoted for ease of reference:
3. Constitution of Commercial Courts.–(1) The State
Government, may after consultation with the concerned
High Court, by notification, constitute such number of
Commercial Courts at District level, as it may deem
necessary for the purpose of exercising the jurisdiction
and powers conferred on those Courts under this Act:
[Provided that with respect to the High Courts
having ordinary original civil jurisdiction, the State
Government may, after consultation with the concerned
High Court, by notification, constitute Commercial
Courts at the District Judge level: Provided further that
with respect to a territory over which the High Courts
have ordinary original civil jurisdiction, the State
Government may, by notification, specify such pecuniary
value which shall not be less than three lakh rupees and
not more than the pecuniary jurisdiction exercisable by
the District Courts, as it may consider necessary.]
[(1A) Notwithstanding anything contained in this
Act, the State Government may, after consultation with
the concerned High Court, by notification, specify such
pecuniary value which shall not be less than three lakh
rupees or such higher value, for whole or part of the
State, as it may consider necessary.]
(2) The State Government shall, after consultation
with the concerned High Court specify, by notification,
the local limits of the area to which the jurisdiction of aRCA DJ 17/2026 Page no. 22 of 29
Commercial Court shall extend and may, from time to
time, increase, reduce or alter such limits.
(3) The [State Government may], with the
concurrence of the Chief Justice of the High Court
appoint one or more persons having experience in
dealing with commercial disputes to be the Judge or
Judges, of a [Commercial Court either at the level of
District Judge or a court below the level of a District
Judge].
58. It is noteworthy that the words “specified value” is
defined in Section 2(1)(i) of the Act and is quoted for ease of
reference:
2. Definitions.–(1) In this Act, unless the context
otherwise requires,–
(i) “Specified Value”, in relation to a commercial
dispute, shall mean the value of the subject matter in
respect of a suit as determined in accordance with
Section 12 [which shall not be less than three lakh
rupees] or such higher value, as may be notified by the
Central Government.
59. I would next refer to Section 12 of the Commercial
Courts Act, which is also quoted for ease of reference:
12. Determination of Specified Value.–(1) The
Specified Value of the subject-matter of the commercial
dispute in a suit, appeal or application shall be
determined in the following manner:–
(a) where the relief sought in a suit or application
is for recovery of money, the money sought to be
recovered in the suit or application inclusive of interest,
if any, computed up to the date of filing of the suit or
application, as the case may be, shall be taken into
account for determining such Specified Value;
(b) where the relief sought in a suit, appeal or
application relates to movable property or to a right
therein, the market value of the movable property as on
the date of filing of the suit, appeal or application, as theRCA DJ 17/2026 Page no. 23 of 29
case may be, shall be taken into account for determining
such Specified Value;
(c) where the relief sought in a suit, appeal or
application relates to immovable property or to a right
therein, the market value of the immovable property, as
on the date of filing of the suit, appeal or application, as
the case may be, shall be taken into account for
determining Specified Value; 1 [and]
(d) where the relief sought in a suit, appeal or application
relates to any other intangible right, the market value of
the said rights as estimated by the plaintiff shall be taken
into account for determining Specified Value;
(2) The aggregate value of the claim and
counterclaim, if any as set out in the statement of claim
and the counterclaim, if any, in an arbitration of a
commercial dispute shall be the basis for determining
whether such arbitration is subject to the jurisdiction of a
Commercial Division, Commercial Appellate Division or
Commercial Court, as the case may be.
(3) No appeal or civil revision application under
section 115 of the Code of Civil Procedure, 1908 (5 of
1908), as the case may be, shall lie from an order of a
Commercial Division or Commercial Court finding that
it has jurisdiction to hear a commercial dispute under this
Act.
(emphasis supplied)
60. A conjoint reading of three provisions implies that
only a suit, the value whereof, is more than Rs.3 lacs, shall fall
within the purview of the Commercial Courts Act and will have
to be filed before a Commercial Court. This view is fortified by
the observations made by the Hon’ble Division Bench of Delhi
High Court in Pankaj Rajivbhai Patel Trading as Rakesh
Pharmaceuticals Vs. SSS Pharmachem Pvt. Ltd., 2023 SCC
OnLine Del 7013, which is quoted for ease of reference:
6. It becomes relevant to note that undisputedly the
pecuniary jurisdiction of commercial courts in DelhiRCA DJ 17/2026 Page no. 24 of 29
ranges from Rs. 3 lakhs to Rs. 2 crores. Suits which are
valued at above Rs. 2 crores are to be placed before the
Commercial Division of this Court. It is also the
admitted position that insofar as specified value under
the CCA is concerned, that too has been notified as Rs. 3
lakhs. Thus, the minimum pecuniary jurisdiction and
specified value of District Courts in Delhi is at par.
61. Therefore, the present plaint which seeks recovery
of Rs.1,23,000/-, plus permanent and mandatory injunction,
cannot be said to be a dispute of the specified value, which had to
be filed before the Commercial Courts. The present dispute is
also not an Intellectual Property Right dispute, which is required
to be originally brought before the Ld. District & Sessions Judge.
62. It is settled law that simple suits for recovery of
money of value less than Rs.3 lacs or simplicitor suit for
injunctions not being IPR disputes have to be filed before the Ld.
Senior Civil Judge, who may retain the same or assign the same
to any Civil Judge working in the District. Same has been done
in the present case. These grounds are also rejected.
63. Ground (iii) hereinabove indicated i.e., All the LRs
of deceased Smt. Sudesh Sethi were not impleaded as defendants
and that too, fraudulently.
64. The plaintiff’s case is based on license and therefore,
the person enjoying the licensed premises only is required to be
impleaded in law. The appellant has not shown that the appellant
had, at any point of time, after the death of the original licensee,
all the LRs of the deceased licensee had sought attornment of the
license in their favour. Even otherwise, even in the present appeal
only one LR Gaurav Sethi has challenged the decree without
impleading the other LRs. Therefore, I am of the view that
RCA DJ 17/2026 Page no. 25 of 29
remaining LRs have not considered themselves as person
aggrieved by the decree. The averments in the plaint and the
evidence regarding the appellant having being treated as LR have
also not been probed or challenged by filing any pleadings or by
cross examination. The said ground is therefore, of no avail.
65. Ground (iv) hereinabove indicated i.e., That the
agreement dated 08.07.2002 was actually a builder-buyer
agreement and not a license agreement as projected by the
plaintiff and that the words “total agreed deposit” used in the
said agreement was the “total agreed sale consideration” &
Ground (vi) hereinabove indicated i.e., That the agreement was a
colorable device employed by the plaintiff company to
circumvent the provisions of Delhi Apartment Ownership Act,
1986, to evade the execution of a Deed of Apartment.
66. At the cost of repetition, a sale can only be by way
of sale deed. There cannot be any estoppel against the statute.
The provisions of Transfer of Property Act and Stamp Act cannot
be bypassed even by the plaintiff and the defendant admitting
transfer in the absence of a duly stamped and registered sale
deed. There is no suggestion given to the plaintiff’s witness in the
absence of cross examination that the real transaction between
the parties was not license, but sale. If indeed the intent was to
sell, even then, at the most, the document would have been an
agreement to sell (which I do not agree with) in which case, the
appellant was bound to file a counter claim or may file a separate
suit, if permissible in law, seeking specific performance of
contract. In fact, during the course of arguments, the Ld. Counsel
for the appellant was relying upon the decision in Raka Singhal
Vs. Pushpa Builder, AIR 2007 Del 222, which is a decision
RCA DJ 17/2026 Page no. 26 of 29
arising out of suit for specific performance, based on a similar
plea. Needless to say that the appellant has never invoked the
provisions of Specific Relief Act, whereby an instrument or a
contract can be rectified under Section 26 of Specific Relief Act.
Such relief, at this stage, may be barred by limitation.
67. The court cannot in the absence of any admissible
evidence, add to or subtract from the language of the license deed
so as to treat it as a sale deed. Further, provisions of Section 91 to
Section 97 of the Evidence Act cannot be ignored and it is
doubtful that even if led, such an evidence was permissible.
These grounds are therefore, without any substance and are
rejected.
68. Ground (vii) hereinabove indicated i.e., That the suit
for recovery was time barred and therefore, the plaintiff company
gave up the claim of recovery of arrears and the Ld. Trial Court
failed to appreciate the said conduct.
69. The giving up of any time barred relief, cannot have
any consequence on relief for which period of limitation has not
expired.
70. Secondly, even the relief of recovery of arrears for
the last 3 years, immediately, preceding the service of legal
notice and filing of the suit cannot be said to be time barred,
limitation being 3 years from the date such amount became due. I
have already, hereinabove, dealt with the aspect of plaintiff being
competent to give up any portion of his claim, even for the
purpose of bringing his suit to a court having lower pecuniary
jurisdiction. This ground is also therefore, rejected.
71. Ground (ix) hereinabove indicated i.e., That the
plaintiff has concealed the factum of receiving payment of
RCA DJ 17/2026 Page no. 27 of 29
Rs.1,50,000/- from the defendants during the pendency of the
suit.
72. There is no evidence before the court that plaintiff
had concealed any such payment. If such payment was made,
why it was made, if the property already stood purchased by the
appellant, as was being claimed. Further, the appellant can
always recover any payment made under mistake or fraud from
the defendant. This ground is also rejected.
73. Ground (x) hereinabove indicated i.e., That the
judgment has been passed on the basis of no evidence, because
the award of damages @ Rs.1,000/- per day is arbitrary,
excessive and contrary. That the Ld. Trial Court was bound to
consider the bar under Arbitration and Conciliation Act, 1996.
74. As far as finding on damages is concerned, I find
that indeed the Trial Court has granted the relief of Rs.23,000/-
on account of unauthorized use for past damages, as also, future
damages @ Rs.1,000/- per day. There is no evidence to indicate
the market value of rent, which could have been fetched by the
property. The amount is, accordingly, reduced to Rs.5,000/- for
the period before the filing of the suit, as also, to Rs.7,000/- per
month towards pendente lite damages and future damages till the
vacation of the property. This direction has been passed taking
judicial notice of the fact that a super area of 340 Square Feet of
the suit property would have fetched some rent. This aspect
cannot be a matter of mere oral evidence, but the plaintiff was
bound to produce and prove the rent being paid or received from
similar properties in the neighbourhood. To that extent, the order
passed by the Ld. Trial Court stands set aside and the decree
stands modified, and no more.
RCA DJ 17/2026 Page no. 28 of 29
75. Decree sheet be drawn accordingly. TCR be sent
back.
76. Appeal file be consigned to Record Room.
Digitally signed
HARJYOT by HARJYOT
SINGH BHALLA
SINGH Date:
BHALLA 16:31:22 +0530
2026.07.09Pronounced in the open court HARJYOT SINGH BHALLA
on 09.07.2026 DJ-03, SOUTH-WEST, DWARKA
NEW DELHIRCA DJ 17/2026 Page no. 29 of 29
