M/S FREEMANS MEASURES PVT LTD VS SUSHIL KUMAR LOHIA & ORS

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*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                   CS(OS) 1902/2012

M/S FREEMANS MEASURES PVT LTD

..... Plaintiff

Through:       Ms. Diva Arora, Adv.

versus

SUSHIL KUMAR LOHIA & ORS

..... Defendant

Through:       Mr. Ajay Amitabh Suman, Adv.

CORAM:

SH. AMIT KUMAR (DHJS), JOINT REGISTRAR (JUDICIAL)

O R D E R

%                                         24.01.2017

Counsel for defendant has objected to filing of fresh document along with affidavit of witness and it is stated that in view of the judgment of our

High Court titled as “FATS Inc. Vs. Zen Technologies Ltd. 2008 (37) PTC 349 (Del).”, as per para no. 8 no fresh document can be placed on record at this stage, which was in the power and control of the party. It is further stated that name of this witness is mentioned in the list of witnesses filed for the plaintiff in 2015 yet till filing of the affidavit no effort was made to place this document on record and no application was filed for placing this document and as such it cannot be taken on record.

Counsel for the plaintiff on the other hand has stated that this is only an authority letter authorising the witness to appear in this court and cannot be refer as a document as mentioned in the judgment relied upon by counsel for defendant and further it came to existence on 30.06.2016 and therefore was filed along with affidavit at the earliest available opportunity.

Though it is correct that name of this witness is mentioned in the list of witnesses filed on behalf of plaintiff in 2015 but as per this Authority Letter, this witness was authorised to depose only on 30.06.2016. This authority came into existence only on 30.06.2016 and as such it cannot be said that it could have been placed on record prior to that date. The judgment relied upon by counsel for defendant talks about the document, which are already in existence and are in power and possession of the party, a document authorising a person to depose in strict sense, cannot be said to be a document and further at earliest can be filed only when came into existence, the objection therefore, is not sustainable. The authority letter filed with the affidavit can be taken on record without any application.

PW3 examined, cross-examined and discharged.

Vide separate statement, counsel for the plaintiff has closed plaintiff‟s evidence.

Put up for defendant‟s evidence on 25^th April, 2017.

Let the defendant file affidavit of evidence of its witness within 4 weeks with advance copy to the other side.

AMIT KUMAR (DHJS)

JOINT REGISTRAR (JUDICIAL)

JANUARY 24, 2017/nk