Delhi High Court - Orders
Delhi State Industrial & ... vs Harish Kumar Sharma on 3 December, 2021
Author: Prathiba M. Singh
Bench: Prathiba M. Singh
Digitally Signed By:DEVANSHU
JOSHI
Signing Date:06.12.2021 18:19:45
$~9
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RSA 225/2019 & CM APPL. 49496/2019
DELHI STATE INDUSTRIAL & INFRASTRUCTURE
DEVEOPMENT CORPORATION LTD ..... Appellant
Through: Ms. Firdouse Qutb Wani, ASC (M-
9718043116)
versus
HARISH KUMAR SHARMA ..... Respondent
Through: None.
CORAM:
JUSTICE PRATHIBA M. SINGH
ORDER
% 03.12.2021
1. This hearing has been done in physical Court. Hybrid mode is permitted in cases where permission is being sought from the Court.
2. Notice was issued in this matter vide order dated 18th November 2019. Despite service having been completed and repeated opportunities having been given to the Respondent to tender appearance and even to file a reply in the present RSA, none appears for the Respondent.
3. Ld. Counsel for the Appellant/Defendant has placed on record the order dated 5th March, 2021 passed by the Executing Court which reads as under:
"On the last date of hearing, the order of Hon'ble High Court was placed on record whereby the present proceedings were stayed by the Hon'ble High Court. In that order, Ld. Counsel for appellant (JD herein) was allowed to serve the respondent (DH herein) through the counsel appearing in the present matter. Ld. Counsel for DH submits that DH is on the way to Court.
Be awaited.RSA 225/2019 Page 1 of 5
Digitally Signed By:DEVANSHU JOSHI Signing Date:06.12.2021 18:19:45 xxx.......xxx........xxx At 11.15 am At this stage, Ld. Counsel for JD informs the Court that Ld. Counsel for DH left the Court without informing. He further told Ld. Counsel for JD that DH is not answering his call. Ld. Counsel for DH was directed to remain present in the Court. However, he left the Court without informing. He was also apprised about the fact that notice of appeal was to be served on DH through him. Ld. Counsel for JD submits that he has supplied contact number of counsel appearing for DH in the Hon'ble High Court. Put up the matter for further proceedings on 16.07.2021"
4. From the above order, it is clear that the Respondent/Plaintiff is evading appearance before this Court. Accordingly, this Court proceeds to hear the matter on as to whether there is any substantial question of law that arises in the present appeal.
5. The brief background of this case is that the Plaintiff was an allottee in the DSIDC plot in Bawana when industries moved from non-confirming areas to confirming areas. He was allotted a plot. A tripartite agreement was entered into between the Plaintiff and the Defendant, as well as the Delhi Financial Corporation, which had deposited 50% on behalf of the Plaintiff on 7th August 2000. The Plaintiff had taken a loan in respect of the said amount from the Delhi Financial Corporation. However, when the loan was not repaid by the Plaintiff to the Delhi Financial Corporation within the stipulated time, it withdrew the loan that was given. Accordingly, upon a request from the Delhi Financial Corporation, the Defendant returned the deposited money and the allotment to the Plaintiff was itself cancelled on RSA 225/2019 Page 2 of 5 Digitally Signed By:DEVANSHU JOSHI Signing Date:06.12.2021 18:19:45 15th December 2003. Thereafter the Plaintiff applied for regularisation of the cancelled plot under a notification published by the Defendant on 9th May 2008. However, the Defendant rejected the said regularisation vide letter dated 13th July 2009, as according to the Defendant, the Plaintiff was not covered by the scope of the notification which did not include those who had failed to pay 50% when the plot was allotted.
6. This refusal/cancellation was then challenged by the Plaintiff vide a suit bearing No. 52/2011 titled Harish Kumar Sharma v. DSIDC. In the said suit, written statement was filed by the DSIDC taking a stand that after the cancellation fresh draw of lots was held and the plot has already been allotted to a third party. Thus, the suit is not maintainable. The relevant portion of the written statement is set out below:
"...Further there is no reason for the plaintiff to file any mercy appeal or any legal notice on account of the fact that the defendant has to act in accordance with the policy as well as contractual obligations and if plaintiff has committed reach of the same in such eventuality the plaintiff is not entitled to take the benefit of his own wrong acts. The defendant has to act in accordance with the policy as such the defendant has to allot the cancelled plots and in fact in draw of lots held on 18-03-2011 the plot has already been allotted as such there is no reason for the plaintiff to file the present suit. The plaintiff seems to be aware of the fact of allotment of the plot to other person in said draw of lot and fled the present suit with malafide intention."
7. The suit, however, proceeded further and judgment/decree dated 24th January, 2014 was passed by the Trial Court, wherein the Trial Court held that DSIDC's witness has stated that he has no knowledge as to whether the RSA 225/2019 Page 3 of 5 Digitally Signed By:DEVANSHU JOSHI Signing Date:06.12.2021 18:19:45 plot has been allotted to a third party. This order was contrary to the written statement of DSIDC. DSIDC then sought a review of the said order which was also dismissed on 6th June, 2017. Both the orders i.e., the original judgment/decree and the orders in review were challenged by way of a first appeal by DSIDC. However, by the impugned order dated 16th August, 2019, passed by the ld. ADJ-02, New Delhi District, Patiala House Courts, Delhi, the said first appeal has been dismissed by holding that no appeal is maintainable against the order rejecting a review application. The ld. Counsel for the Defendant submits that the Appellate Court did not consider the matter on merits at all in respect of the judgment/decree dated 24th January, 2014.
8. Heard ld. Counsel for the Defendant/Appellant.
9. In the opinion of the Court, the following substantial questions of law arise in the present appeal:
i) Whether the DSIDC's appeal challenging the judgment/decree dated 24th January, 2014 was maintainable and ought to have been heard on merits?;
ii) Whether the dismissal of the appeal in respect of the order passed by the Trial Court in the Review application is in accordance with law?;
iii) Whether the DSIDC's stand having not been considered properly by the Trial Court, the Appellate Court ought to have heard the entire matter on merits?
10. Parties to be ready for hearing on the next date. If they wish to file any written synopsis or judgments which they wish to rely upon, they are permitted to do so.
11. Let notice of this order shall be served upon the Respondent/Plaintiff through the Executing Court. Copy of this order be accordingly RSA 225/2019 Page 4 of 5 Digitally Signed By:DEVANSHU JOSHI Signing Date:06.12.2021 18:19:45 communicated to the ld. CJ-1/MM, New Delhi District, Patiala High Courts. In the meantime, the stay granted on the execution proceedings vide order dated 18th November 2019, shall continue during the pendency of the present appeal. CM APPL. 49496/2019 is disposed of.
12. List for hearing on 12th April, 2022.
PRATHIBA M. SINGH, J.
DECEMBER 3, 2021 Rahul/Ak RSA 225/2019 Page 5 of 5