Calcutta High Court
Goutam Kumar Agrahari vs Stock Holding Corporation Of India Ltd. ... on 17 May, 2016
Author: I.P. Mukerji
Bench: I.P. Mukerji
IN THE HIGH COURT AT CALCUTTA
Ordinary original Civil Jurisdiction
Original Side
G.A. No. 3915 of 2015
CS No. 118 of 2001
Goutam Kumar Agrahari
Vs.
Stock Holding Corporation of India Ltd. & Ors.
For the plaintiff:- Mr. Rupak Ghosh
Mr. P.K. Jhunjhunwala
Ms. S. Rudra...Advocates
For the Defendant
No. 6 and 7: - Mr. U.S. Menon...Advocate
Judgement On: - 17th May, 2016
I.P. MUKERJI, J
The plaintiff took out this application wanting an order of this court
for his examination on commission.
Only the sixth and seventh defendants were represented in court.
Their learned counsel took serious objection to any order being passed
in this behalf.
Before entertaining this application, I thought that it would be prudent
if a report was obtained from the Registry with regard to the service of
the writ of summons. On 2nd May, 2016 I made an order asking for a
report from them. Very diligently, on 9th May, 2016, the Registrar
Original Side reported that the Writ of summons was duly served on
third and fourth defendants on 30th August, 2007 and on the first and
seventh defendant on 6th September 2007. There was no evidence of
service upon the second, fifth and sixth defendants.
Mr. Rupak Ghosh, learned advocate for the plaintiff submitted and
this is not contradicted by Mr. Menon learned counsel for the sixth
and seventh defendants that the second , fifth and sixth defendants
were notified of the proceeding by publication of newspaper
advertisements (substituted service) further to an order passed by this
court.
Only the sixth and seventh defendants have filed their written
statement.
Discovery and inspection is complete.
I also thought that it was proper that before considering the
application for issuance of commission the issues should be framed.
They were duly suggested by the parties.
The following issues are framed by this court.
Issues
1.Has this Hon'ble Court jurisdiction to receive entertain and try the suit?
2. Is the suit hit by the provisions of Order 2 Rule 2 of the Code of Civil procedure in view of the earlier suit, T.S. 3064 of 1997 filed by the plaintiff before the Learned City Civil Court?
3. Did the plaintiff purchase any share of Reliance Industries Limited from the Calcutta Stock Exchange as alleged by him in the plaint? If so, to what effect?
4. Were the shares of Reliance Industries Limited stolen or missing from the custody of the plaintiff as alleged in the plaint? If so, to what effect?
5. Is the plaintiff entitled to have his name entered in the Register of Members of Reliance Industries Limited in respect of 5,000 shares of the said company or any part thereof?
6. Did the defendant no. 6 and 7 have any obligation towards the plaintiff to register the 5000 shares in his name by cancelling or deleting the names of the defendant no 1 to 5 from the share register?
7. Are the defendant nos. 6 and 7 obliged to issue duplicate share certificates of the shares of Reliance Industries Limited in favour of the plaintiff? If so, for how many shares?
8. If issue nos. 5, 6 and 7 are answered in the affirmative, is the plaintiff entitled to bonus and other shares, by virtue of such entitlement? Is so to what effect?
9. Is the claim of the plaintiff barred by limitation?
10. Is the suit bad for non-joinder of necessary parties?
11. What are the reliefs to which the plaintiff is entitled to? The case of the plaintiff is plain and simple. He is a stock broker and a member of the Kolkata Stock Exchange. His office is 4, Netaji Subhas Road, Kolkata-1. He has stopped trading from April 2013. His parents live in Sahaganj in the state of U.P. His ancestral property is situated there. The petitioner wants to stay permanently in Sahaganj. The suit is of 2001. The plaintiff wants him to be examined on commission and thereafter proceed to Sahaganj.
In my opinion, there is nothing wrong in his prayer. The suit has been pending for 14 long years. The plaintiff cannot be told to continue staying in Kolkata till the outcome of the suit. Once he has gone to Sahaganj it may not be very convenient for him to come to Kolkata, again and again to depose in the suit. As we are all aware, suits are listed serially in the list of the Judge taking suits and normally taken up serially. More often than not witnesses to have to come to court, wait and go back awaiting their turn to be called to depose. This might continue for days and months.
The legislature has taken note of this hardship. Rule 1 of Order XXVI of the Code of Civil procedure is a very old provision which provides that a person resident within the local limits of the jurisdiction of a court may be examined on commission only if he is exempted by law or is sick or infirm and for this reason is unable to attend court. We do not know the residential address of the plaintiff but he has averred that he carries on business at 4 Netaji Subhas Road, Kolkata- 700 001 within the jurisdiction of this court.
Rule 4 provides for issue of a commission to a person resident outside its jurisdiction. In such a case there are no conditions mentioned, only on fulfillment of which a commission may issue.
Rule 4A was inserted by Act 46 of 1999 with effect from 1st July, 2002. It has made a sea change in the law relating to the issuance of commission. It has vested a large amount of discretion in the court while issuing a commission order. It may do so in the interest of justice or for expeditious disposal of the suit or for any other reason.
"Any other reason" has to be read ejusdem generis with the other part of the section. Hence, the grounds on which the court may make an order for commission relate to the cause of speedy justice. A commission may also issue to see that no injustice is done to a party who is inconvenienced in the hands of an inconsiderate opponent, by being forced to attend court for long hours indefinitely. The convenience and inconvenience of a witness, in my opinion is a very relevant factor to be considered by the court in issuing a commission order. If you consider the changes in Order XXVI with other changes made by the legislature in the Code of Civil Procedure, you will form an impression that the legislature is now conscious of the convenience of the parties and leans in favour of issuance of commission orders for expeditious trial of suits. In the amended Order 18 rule 4, also carried out in 1999 and again in 2002, even cross-examination may be taken by the Commissioner. [see order 18 Rule 4(2)].
The above circumstances disclosed in the petition make this a fit case for appointment of a Commissioner to take the evidence of the plaintiff, both examination-in-chief and cross-examination. In those circumstances I appoint Mr. Nilanjan Sen, advocate, a member of the bar as Commissioner to record the evidence of the plaintiff. A space will be provided to the Commissioner by the advocate on record for the plaintiff, within the jurisdiction of this court. The commission will be held on a day to day basis, as far as practicable, after the ensuing summer vacation, after court hours or on holidays for at least one and half hours daily. The Registrar Original Side will make all arrangements so that the commission can be held according to the rules and practice of the Original Side. The Commissioner will not disallow any question or refuse to admit any documents. If there is any dispute with regard to any question or document, he will simply note the same, while the evidence is being recorded.
He will be entitled to fees @ 250 gms. per sitting to be borne by the plaintiff. All other costs and charges for holding the commission will be met by the plaintiff.
The Commissioner will file his report in court within eight weeks of the date of service of a copy of the order on him.
This application is allowed to the above extent.
Certified photocopy of this Judgment and order, if applied for, be supplied to the parties upon compliance with all requisite formalities.
(I.P. MUKERJI, J.)