Saturday, April 29, 2017

RAGHUVEER METAL INDUSTRIES LTD VS KAMDHENU LIMITED




$~16

*                    IN THE HIGH COURT OF DELHI AT NEW DELHI

+                   CS(COMM) NO.746/2016 & IAs No.7552/2016 (u/O 39 R-1&2 CPC) & 7554/2016 (u/S 149 CPC)

RAGHUVEER METAL INDUSTRIES LTD                            ..... Plaintiff
Through:       Dr. Harsh Surana, Adv.

Versus

KAMDHENU LIMITED                                                                        ..... Defendant
Through:       Mr. Ajay Amitabh Suman, Adv.

CORAM:

HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
O R D E R

%                                                                                   26.08.2016

1.                 This order is in continuation of the earlier order dated 23rd  August,

2016.

2.                 Inspite of the order, when the matter was called, neither was the counsel for the plaintiff present nor any of the directors present.

3.                 Now, Dr. Harsh Surana, Advocate for the plaintiff has appeared and states that though the directors have not appeared but Mr. Amit Kumar Arora authorised representative of the plaintiff through whom the suit is filed is present.

4.                 The presence of the authorised representative is not a substitute for the presence of the directors whose presence was directed before this Court.

5.                 The counsel for the plaintiff has argued (i) that this is his personal

matter; (ii) that the suit had come up first before this Court on 3rd June, 2016, when it was adjourned to 7th July, 2016; (iii) that before 7th July, 2016,


CS(COMM) NO.746/2016                                                                                                                      Page 1 of 4





the defendant filed a suit against the plaintiff in the Court of the District Judge, Delhi and in which certain orders were passed; (iv) that in view thereof, the plaintiff on 8th July, 2016 was desirous of adjournment in this suit awaiting the outcome of CM(M) No.644/2016 preferred against the order in the suit filed by the defendant; (v) that the plaintiff is not liable to pay the court fees, since the suit is sought to be withdrawn; (vi) that the easiest thing for the plaintiff to do was not to appear on 23rd August, 2016 and to have the suit dismissed in default and in which case, the question of recovery of costs imposed on 8th July, 2016 and court fees from the plaintiff would not have arisen.

6.                 The counsel for the plaintiff appears to be under some misconception that if the suit was dismissed in default, the court fees and costs would not have been recovered. Even in that eventuality, warrants for recovery of court fees and costs as arrears of land revenue would have been issued against the plaintiff.

7.                 The plaintiff had this suit listed before this Court without payment of court fees by filing an application under Section 149 of Code of Civil Procedure, 1908 in which the plaintiff undertook to pay the court fees. If the plaintiff had not filed such application and would not have given such an undertaking, the Registry would not have even put up and listed the suit before this Court.

8.                 On 3rd June, 2016, when the suit came up before this Court, the counsel for the defendant though not on caveat appeared on seeing the matter in the Cause List and accepted summons. However, since the Hon’ble

Judge before whom the suit was listed on that date recused, the suit was



CS(COMM) NO.746/2016                                                                                                                      Page 2 of 4





adjourned to 7th July, 2016 with liberty to the plaintiff to mention the matter

before the Vacation Bench for hearing.

9.                 It would thus be evident that the plaintiff took a chance before this Court on 3rd June, 2016 and finding that the defendant was aware, could not succeed in the said chance. The plaintiff cannot thereby avoid payment of court fees. Merely because the plaintiff, after having instituted this suit and having failed in its designs does not want to pursue the suit, does not entitle the plaintiff to then renege from the undertaking to pay the court fees and furnishing undertaking wherefor the suit was got listed. Similarly, for the costs imposed of Rs.5,000/- and which have also not been paid, there is no explanation.

10.            This Court cannot allow its process to be so abused. Litigants / counsels cannot be permitted to avail of hearing before this Court and / or orders obtained in such hearing, use the same to derive benefit and thereafter not pay the court fees.

11.            As far as the argument urged by the counsel for the plaintiff, of this being a personal matter of the counsel for the plaintiff, it is enquired, whether the counsel is carrying on business in the name of the plaintiff.

12.            The counsel replies in the negative.

13.            There is no explanation for non-appearance of the directors of the plaintiff inspite of direction.

14.            On enquiry, it is informed that Mr. Raj Kumar Pokharana, Mr. Anil Kumar Pokharana and Mr. Sunil Kumar Pokharana are three of the directors

of the plaintiff.

CS(COMM) NO.746/2016                                                                                                                      Page 3 of 4





15.            The counsel for the plaintiff states that though there are some other directors but he is not aware of their names.

16.            It has been enquired from the counsel for the plaintiff, whether he undertakes to produce the said directors in this Court or warrants for their production be issued.

17.            The counsel for the plaintiff undertakes to this Court to produce the aforesaid three directors of the plaintiff.

18.            The counsel for the plaintiff, at this stage, insists upon it being recorded that CM(M) No.644/2016 preferred against the order in the suit filed by the defendant was disposed of by this Court on 11th July, 2016.

19.            The aforesaid has no bearing on the aspect with which we are concerned.

20.            Accepting the undertaking of the counsel for the plaintiff to produce

the aforesaid three directors of the plaintiff before this Court on 29th August, 2016, list on 29th August, 2016.

Copy of this order be given dasti under the signatures of the Court Master.




RAJIV SAHAI ENDLAW, J.

AUGUST 26, 2016
bs..













CS(COMM) NO.746/2016                                                                                                                      Page 4 of 4

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