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TMI Blog2003 (9) TMI 541X X X X Extracts X X X X X X X X Extracts X X X X ..... tanjali Hospital". The defendants herein are medical practitioners/Doctors who were permitted by the plaintiff to practice their medical profession from the said hospital. Defendant No. 1 is surgeon, Defendant No. 2 is Pediatrician, Defendant No. 3 Orthopaediatrition. Defendants were allowed space/work chambers in the hospital purely on leave basis to carry on their medical profession. The defendants are also shareholders of the plaintiff company and they together hold approximately 18% of the total paid up capital of the company. Earlier defendants were also Directors of the plaintiff company but vide resolution dated 21-6-2003 they were voted out from Directorship in extraordinary general meeting of the company. Then by subsequent decision taken by the company on 23-6-2003, the defendants were removed from the hospital and the permission granted to them to carry on their professional work from the premises of the hospital and the facility to use the space/chambers allowed to them was also withdrawn. It is alleged that with the removal from the Directorship of the company and withdrawal of facility of the space/working chambers to carry on their profession from hospital premises ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... traordinary general meeting held on 21-6-2003, the defendants were removed from the Directorship. Then in a subsequent meeting of Board of Directorship held on 21-6-2003 there was discussion regarding fresh terms and conditions for all the Doctors including defendants, for working in the hospital. Accordingly, a circular was issued to all the Doctors requesting them to attend office of the Chairman- cum -Managing Director by 10 A.M. on 23-6-2003 to discuss and finalize fresh terms and conditions of the working in the hospital. Defendants, however, did not attend office of the Chairman- cum -Managing Director. Thereafter a meeting of the Board of Directors was held on 25-6-2003 and necessary resolution was passed for removal of the defendants from the hospital premises and withdrawing permission given to them for carrying on their professional work from the hospital. Details of various acts of misappropriation, misconduct are given in para No. 13 ( i ), ( ii ) and ( iv ) of the plaint. It is alleged that despite removal of the defendants from the hospital and withdrawal of the permission given to them for carrying on their professional work from the hospital premises they illegally ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld between the parties and Sh. Arun Mittal, now one of the Directors and majority shareholder of the plaintiff company, volunteered to join the said Doctors in building the hospital. 7. After discussions, the parties conceived of a basic scheme and structure for building the said hospital. The structure was that the venture of hospital shall be undertaken in partnership. The partnership shall have 3 groups. The answering defendants formed one group, Shri Arun Mittal formed the second group, and Dr. Chander Vir and his wife formed the third group. The terms of partnership were that the 3 groups shall hold equal shareholding in the company i.e., 33% each. The partnership would purchase the said plot and after purchase, the 3 groups shall jointly erect on the plot a hospital. A few pillars had already been erected by the original promoters which was as good as no construction on a plot. The partnership was to operate the said hospital. The answering Defendants and Dr. Chander Vir were to have permanent chambers in the hospital, each of them having right in perpetuity to practice from the said nursing home for which the separate working chambers were provided in the hospital. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 3-8-1995 was signed between defendants Doctors on one side and Arun Mittal and his wife Rosy Mittal on the other side whereby the defendants were conferred rights in perpetuity to carry on their medical profession from chamber allotted to them in the hospital. It is contention of defendants that later on Arun Mittal allotted some more shares to some of his relations and appointed them as Directors. With the passage of time difference crept up between the two groups, namely Arun Mittal group who is majority shareholder and the defendant Doctors who were in minority, holding only about 18% of the share capital. Sh. Arun Mittal issued a notice dated 22-1-2003 to convene a meeting of Board of Directors for considering to increase the share capital and for calling AGM to take steps against defendants. The defendants protested against the said agenda. Later on defendants also came to know that Arun Mittal had fabricated record of the plaintiff company which were in his custody and appointed some of his relations as Directors of the Company and also allotted shares to them at the back of the defendants. In these circumstances the answering defendants had filed suit No. 383/2003 in this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... can be put on the rights of the shareholders conferred upon them by various provisions of the Company Act to remove or elect Directors in the manner prescribed under the Act. Ultimately, the appeal as well as defendants C.M. No. 631/2003 containing the prayer to restrain the company from in any manner disturbing, obstructing, interfering with their professional work being done from the cabins/chambers in the said hospital was rejected. 14. It may be pointed out here that in the meantime the defendants had filed another suit being suit No. 726/2003 with the following prayers : ( a )Pass a decree of permanent prohibitory injunction restraining the defendants from in any manner directly or indirectly dispossessing, removing or otherwise obstructing or interfering with the peaceful conduct of profession of the Plaintiffs from the Defendant-6 hospital located at 3, MMTC/STC Colony, New Delhi in perpetuity, and from in any manner engaging at the said hospital any doctors or medical professionals in disciplines/fields of the Plaintiffs i.e., Surgery, Pediatrics and Orthopaedics; ( b )Any other decree(s) or order(s) or direction(s) in favour of the plaintiffs and against the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or perpetual injunction filed by the plaintiff will meet the requirements of "due process of law" and whether in the circumstances of the present case the grant of perpetual injunction will be adequate relief for the plaintiffs or the plaintiff must necessarily seek the relief of possession. 16. In this connection, it is necessary to examine the nature of possession which the defendants claim over chambers alloted to them in the hospital under MOU dated 22-9-1992 and 3-8-1995. Defendants claim that they are in settled possession of working space/chamber in the hospital since 1992 on the basis of the said MOUs and after withdrawal of permission by the plaintiff on 23-6-2003 they can at worst be treated as trespasser. Therefore, in view of the decision of the Supreme Court in the case of Puran Singh v. State of Punjab [1975] 4 SCC 518 the defendants cannot be dispossessed except in due course of law. In that case, Supreme Court was dealing with the case of trespasser who had forcibly taken possession of the land and had sown crops thereon. The Apex Court was dealing with the question of right of private defence of property in a criminal case. Referring to an earlier decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etermine the quality of settled possession, in the case of culturable land, would be whether or not the trespasser, after having taken possession, had grown any crop. If the crop had been grown by the trespasser, then even the true owner has no right to destroy the crop grown by the trespasser and take forcible possession, in which case the trespasser will have a right of private defence and the true owner will have no right of private defence." (P. 527) 17. In the present case, defendants came to occupy the chambers on the basis of MOUs dated 22-9-1992 and 3-8-1995 as they were Directors of the Company at that time. Besides, they have rendered services to the hospital and in consideration thereof they were allowed the facility to carry on their profession from the chambers in the hospital. It is nobody s case that the defendants occupied chambers by force. So the question of their claiming settled possession as trespasser as referred to in the case of Puran Singh ( supra ) does not arise. The word settled possession in the case of Puran Singh ( supra ) and in the case of Munshi Ram s ( supra ) has been used in the sense of adverse possession . Where a trespasser occu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case of Smt. Chandrakantaben v. Vadilal Bapalal Modi [1989] 2 SCC 630, observed that possession of the agent is the possession of the principle and in view of fiduciary relationship, the defendants cannot be allowed to claim his own possession. The agents holds the principle s property only on behalf of the principle. He acquires no interest for himself in such properties. His possession is the possession of the principal for all purposes. The defendants claim for right to carry on their medical profession in perpetuity from the space/chamber allotted by the company has been given up by themselves by withdrawing suit No. 726/2003 and has been expressly declined by the Division Bench vide order dated 20-6-2003 in FAO (OS) 244/2003. Therefore, at this stage, nature of their possession can be held to be no better of that an agent or ex-employee who were allowed to use the premises because of their fudiciary relationship with the company, being ex-Directors. They cannot claim settled possession / adverse possession in the sense in which the word is used in the case of Puran Singh ( supra ). Rather they are under obligation to hand over the possession back to the company. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (p. 45) 19. In nut shell due course of law appears to mean something done in pursuance of an order passed by competent authority/court after giving adequate opportunity of being heard in accordance with the procedures established by law. Obviously, it would mean that if in the present case the court after considering the rival contentions of the parties comes to the conclusion that prohibitory injunction as prayed can be issued, it will meet the requirement of "due course of law". Due course of law does not necessarily mean that the plaintiff has to file a suit for possession. If relief of prohibitory injunction suffices, there is no need for plaintiff to file suit for recovery of possession. In the case of East India Hotels Ltd. ( supra ) Hon ble Supreme Court held that even a trespasser or licensee whose license has been terminated is entitled to protection of due process of law. This order was passed by Hon ble Mr. Justice K. Ramaswamy on an action brought by the licensee whose license had been terminated and the possession was taken from him on the assurance that it will be handed over to him after repairs. In the present case, the defendants have already availed their re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se are distinguishable from that of the present case. In the case of R.V. Bhupal Prasad v. State of A.P. [1995] 5 SCC 698, the Apex Court had considered the nature of possession of lessee after termination of the lease. Needless to say that there cannot be any analogy between the possession of tenant whose tenancy has been terminated and the possession of the agent/ex-employee whose employment has been terminated. 20. Learned counsel for the defendants contended that order dated 20-6-2003 of the Division Bench in FAO (OS) 244/2003 in suit No. 383/2003 is based on the decision of Supreme Court in the case of V.B. Rangaraj v. V.B. Gopalakrishnan [1992] 73 Comp. Cas. 201 but in subsequent decision in the case of Dr. Renuka Dalta v. Solvay Pharmaceutical B.V. SLP C No. 18035/2000 the Apex Court has observed that the said judgment requires reconsideration. Further contention of the learned counsel for the defendants is that in the case of M.S. Madhusoodanan v. Kerala Kaumudi (P.) Ltd. 2003 (6) SCALE 191 the decision in the case of V.B. Rangaraj ( supra ) has been distinguished by the Supreme Court with the observation that in V.B. Rangaraj ( supra ) the Apex C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efficacious remedy of possession can be obtained. This is clear mandate of section 41 of the Specific Relief Act. But in a case where because of some jural relationship between the parties, the possession in the eye of law has to be deemed to be that of the plaintiff, the requirement of first obtaining decree of possession will not apply. In the case of Hashmat Hussain v. Inayatullah AIR 1958 All. 706 while analysing section 56 of the Specific Relief Act (Old), the Division Bench of Allahabad High Court held that the Court will not interfere by way of injunction when the plaintiff is out of possession, unless there is some privity between the parties. In the present case there is privity between the parties as the defendants came to occupy the chambers/cabins in their capacity as Directors of the plaintiff-company and in the eye of law their possession is now that of an ex-employee who were allowed the facility because of fiduciary relationship. Therefore, possession will be deemed to be of the company which can file suit for injunction simplicitor without seeking the relief of possession. 22. The next contention of the learned counsel for the defendants was that an injunct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l avail services of Doctors while they carry on medical profession from the cabins in question. Reliance was placed on the decision of this court in the case of Ram Narayan Aggarwal v. Kerala Kaumudi (P.) Ltd. 84 (2000) DLT 530 wherein in para 6 learned Single Judge of this court has observed that ouster from possession of an immovable property has been recognized as causing irreparable loss and injury to the party concerned. The injury or loss referred to in Order 39 rule 2 CPC means any invasion or infraction of a legal right giving rise to the right of action at the instance of the party claiming that right. Balance of convenience means comparative mischief or inconvenience that may be caused to the either party in the event of refusal or grant of injunction. In the case of G.M. Modi Hospital Research Centre Medical Science v. Sankar Singh Bhandari AIR 1996 Delhi 1. Learned Single Judge of this court restored the order of learned Civil Judge refusing injunction to hutment dwellers who were engaged as labourers by the contractor while executing work in the hospital premises. While dealing with the question of balance of convenience, in para 21 of the judgment it was obs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ehemently contended by learned counsel for the defendants that it is dedication of the doctors which brought laurels to the plaintiff. Arun Mittal Co. who are now majority shareholders and directors of company are basically builders. A builder can build a magnificent edifice, he cannot build an institution. An institution is a dream fructified by people devoted to some academic excellence and social service yielding job satisfaction as well as moral satisfaction at the same time. The defendants in this case permitted Arun Mittal to purchase the shares of Dr. Chander Vir and his wife, thereby allowing him to become the majority shareholder, little realizing that in the process they are going to be subjected to the game of numbers. Perhaps their knowledge/understanding of the provision of Company Act and the manipulative potential of the concept of corporate democracy did not measure up to that of Arun Mittal. The agony of the parent being disowned by a foster child is thus understandable. 26. Therefore, while granting the interim injunction as prayed, I direct this order to be effective after one week so as to enable the defendants to approach the Apex Court to seek appropri ..... X X X X Extracts X X X X X X X X Extracts X X X X
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