$~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
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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since the suit is sought to be withdrawn; (vi) that the easiest thing for the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
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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
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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..
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