Delhi High Court
Janak Datwani vs Jamna Datwani & Ors on 17 November, 2020
Author: V. Kameswar Rao
Bench: V. Kameswar Rao, Anu Malhotra
IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment delivered on: 17th November, 2020
+ FAO(OS) 592/2013, CM APPLs. 3851/2020 & 5061/2020
JANAK DATWANI ..... Petitioner
Through: Mr. Abhimanyu Mahajan, Ms. Anubha
Goel, Mr. Sarthak Mehrotra and Mr.
Mayank Joshi, Advs.
versus
JAMNA DATWANI & ORS ..... Respondents
Through: Mr. Deepak Khosla, Adv. for R-1 to
R-3 Mr. Pulkit Deora, Adv. for R-4
Mr. Ricky Chopra and Mr. Siddhant
Jain, Advs. for R-12 Mr. Vivek
Sharma and Mr. Mamta Gautam,
Advs. for R-6
CORAM:
HON'BLE MR. JUSTICE V. KAMESWAR RAO
HON'BLE MS. JUSTICE ANU MALHOTRA
JUDGMENT
V. KAMESWAR RAO, J CM APPLs. 3851/2020 & 5061/2020 By this order, we shall decide two applications filed by the Respondent No.1. The reliefs prayed and the submissions made in the applications shall be narrated separately.
CM. No. 3851/20201. This application has been filed by the Respondent No. 1/applicant (hereinafter Jamna Datwani) with the following prayers:
"a) Vary para 10 of the order dated 02-05-2014 passed by this Hon'ble Court, and allow a family attendant in addition to a maid.
b) Vary para 31 of the judgement dated 16-05-2014, and, consequently, allow CC No. 604 of 2010 then pending before the Ld. Magistrate presiding over the Mahila Court (Saket) under The Protection of Women from Domestic FAO (OS) 592/2013 Page 1/40 Violence Act to be proceeded with, to be adjudicated on a time-bound basis.
c) Issue standing directions to the Station House Officer, PS New Friends Colony to ensure proper compliance of the orders of this Hon'ble Court, as well as to render prompt assistance to the applicant in future in the event of breach of any of the orders passed by this Hon'ble Court
d) And pass such other order or further order or orders as this Hon'ble Court may deem fit and proper under the circumstances of the case."
2. Mr. Deepak Khosla learned counsel appearing for Jamna Datwani stated she is the mother of Respondents 3, 6, 7 and the Appellant, namely Janak Datwani. She is residing in a one room accommodation in Punjab, after she had been reduced to penury due to the violation of orders of this court by the Appellant (Janak Datwani hereinafter) as his business faces bankruptcy proceedings in France.
3. The application seeks variation of Para 10 of order dated May 02, 2014 (order of May 02, 2014 for short) wherein this court had held as under:
"10. While a maid shall be permitted to reside with Mrs. Jamna Datwani in the room exclusive to her, the cook to be employed by her will reside in the garage portion of the servant quarters. The cook will share the bathroom and toilet with other residents of the servant quarter block which is nearest to the garage. "
4. It is his submission that this paragraph may be modified to include a family attendant in addition to a maid.
5. It is stated in the application that even after six years of the passing of order of May 02, 2014 due to the obstructions caused by Janak Datwani, Jamna Datwani has not been able to reside in the property which had been earmarked for her vide order dated May 02, FAO (OS) 592/2013 Page 2/40 2014. She, instead has been living in a Senior Citizens' home in Jalandhar. Mr. Khosla has stated that since March 2019 her health has deteriorated and she has been compelled to move to Delhi in order to be close to the Fortis Escorts Hospital where she is undergoing treatment. He stated the requirement of a family member is essential so as to meet any requirement, which may arise due to a medical emergency.
6. Another modification, prayed for in this application is in the order of May 16, 2014, specifically paragraph 31 which reads as under:
"31. In view of the fact that with consent of Jamna Datwani and Janak Datwani we have resolved the issue pertaining to possessory rights by way of interim measures in the property at 6, Friends Colony West. We stay the proceedings under the Domestic Violence Act, 2005 initiated by Jamna Datwani against Janak Datwani."
7. It is the plea of Mr. Khosla that this paragraph too may be modified and the proceedings under the Domestic Violence Act, 2005 initiated by Jamna Datwani against Janak Datwani be resumed. The primary reason for seeking such an order is that Janak Datwani has resiled from his consent which was the basis for the Court to pass order dated May 16, 2014.
8. Whereas Mr. Abhimanyu Mahajan learned counsel appearing for Janak Datwani stated that Jamna Datwani is always welcome to visit and reside in the room, earmarked for her; however, he objected to the ingress of his brother Anand Datwani and/or his employees/lawyers/friends/associates in the said property. He placed reliance on the order dated February 04, 2011 in FAO (OS) 152/2008 wherein this court had restrained Anand Datwani or his employees from visiting Jamna Datwani in the said premises.
FAO (OS) 592/2013 Page 3/409. It is the submission of Mr. Mahajan that a suit for partition bearing number CS (OS) 698/2003 of property bearing No. 6 Friends Colony (West) New Delhi was filed earlier and the said property has been partitioned by metes and bounds in the following manner:
a) Mrs. Jaskirat Datwani (38%)
b) IN Exports Private Limited (24%) and
c) M/S. CNA Exports Private Limited (38%).
10. According to Mr. Mahajan, Janak Datwani is a major shareholder of M/s. IN Exports Pvt. Ltd. and therefore entitled to reside, use and occupy 24% portion of the said property belonging to M/s. IN Exports Pvt. Ltd. He stated that this position is clarified by the order of this Court dated July 26, 2010 passed in FAO (OS) 152/2008.
11. He placed reliance on paragraphs 2, 3, 10, 17, 19 and 20 of the order of May 2, 2014 wherein it is agreed between Janak Datwani and Jamna Datwani that she would have a right of residence in a room and a pantry in the M/s. IN Exports portion of the said premises. He has also submitted that between January, 2014 and January, 2020 Jamna Datwani had spent 126 nights in the said property and was taken care of by the employees of Janak Datwani. She was even allowed to access the kitchen instead of just the pantry for her requirements. He further stated that Jamna Datwani always had unhindered access to her room and the pantry in the M/s. IN Exports Portion of the said Property.
12. Mr. Mahajan stated that Janak Datwani does not have any objection with, any of the family members of Jamna Datwani residing with her including Mrs. Hari Bhojwani, Mr. Hiroo Alwani and Mrs. Nitya Bharaney but strongly objected to Anand Datwani and/or his employees/lawyers/friends/associates, entering the M/s. IN Exports FAO (OS) 592/2013 Page 4/40 portion of the Friends Colony property. He submitted that Janak Datwani was also willing to bear the expenses involved in employing a nurse as Jamna Datwani's attendant in order to meet the requirements of medical emergencies.
13. It is his submission that, the present application is just another example of Anand Datwani using Jamna Datwani to file proxy litigation against Janak Datwani in order to pressurize him into accepting Anand Datwani's demands. He stated that even the proceedings under the Domestic Violence Act, 2005 which were stayed vide order of May 02, 2014 had also been initiated by Jamna Datwani at the behest of Anand Datwani.
14. He stated that the proceedings under the Domestic Violence Act, 2005 should not be permitted to continue as Janak Datwani is complying with the order of May 02, 2014 wherein it was ordered certain amounts of money be paid to Jamna Datwani by her children including Janak Datwani and it is unclear to Janak Datwani whether the said payment is being made by Anand Datwani.
15. Mr. Vivek Sharma learned Counsel who appears on behalf of Respondent No. 6 Kishin Datwani stated that M/s. CNA Exports Pvt. Ltd. owns 38% share in the Friends Colony property. He has original allotted shareholding of 13.33% in M/s. CNA Exports Pvt. Ltd. and that both Anand Datwani and Janak Datwani have laid a false claim on the shareholding of Kishin Datwani in their respective pleadings and the suits are pending adjudication for the last 13 years wherein the issues are yet to be framed.
16. He stated that Kishin Datwani is the eldest son of Jamna Datwani and brother of Janak and Anand Datwani and has been FAO (OS) 592/2013 Page 5/40 residing in the United States of America since 1982. Though Kishin Datwani, a stakeholder of 13.33% in M/s. CNA Exports Pvt. Ltd., has been physically removed from the said property, he is neither in a position to exercise any control over the physical assets of the company including the Friends Colony property in which right of residence is asserted which is sought to be varied, nor does he have any persuasion over his feuding siblings.
17. It is the submission of Mr. Sharma that insofar as the first prayer in the application is concerned, the same be allowed on the basis of consent between Janak and Anand Datwani. He further stated that if the Court was to find that this application is in fact driven by either Anand or Janak Datwani with an oblique purpose of enlarging their respective control over M/s. CNA Exports Pvt. Ltd.'s share in the property then the application should be dismissed with costs.
18. Mr. Sharma has firmly opposed the second prayer made in the application and stated that the stay on the proceedings under the Domestic Violence Act, 2005 vide order of May 16, 2014 was granted on the basis a clear consent between Jamna Datwani and Janak Datwani and neither of the parties may be permitted to resile from the same.
CM. No. 5061/202019. Another application bearing number CM No. 5061/2020 has been filed by Jamna Datwani seeking modification in paragraphs 27-29 of the order of May 16, 2014 which reads as under:
"27. From the above narratives it is clear that CS (OS) No. 118/2007, CS (OS) No. 1113/2007, CS (OS) No.556/2008, CS (OS) No. 1791/2011, CS (OS) No.244/2013 and CS (OS) No. 1461/2013 all relate to the shareholding in the company M/S. FAO (OS) 592/2013 Page 6/40 CNA Exports Pvt. Ltd. Whereas CS (OS) No.1461/2013 has been dismissed the others are pending.
28. We see no reason why the said five suit i.e. CS (OS) No. 118/2007, CS (OS) No.l 113/2007, CS (OS) No.556/2008, CS (OS) No. 1791/2011 and CS (OS) No.244/2013 be not consolidated and common evidence led. The necessity to consolidate the suits arises not only on account of the fact that common questions of law and fact arise for consideration, if not wholly, in substantial measure in the said five suits but also for the reason the parties have shown a litigious behavior evidenced by the fact that in the suits filed by them eighty three interim applications have been filed out of which twenty six are still pending and God knows how many more would be filed.
29. We therefore direct that CS (OS) No.118/2007, CS (OS) No. 113/2007, CS (OS) No.556/2008, CS (OS) No.1791/2011 and CS (OS) No.244/2013 shall stand consolidated. Evidence would be led in CS (OS) No. 118/2007. Since issues have yet to be settled in the said five suits, we would request the learned Single Judge to settle the issues on the next date of hearing.
We request the learned Judge Incharge of the Original Side to list all the suits before one Hon 'ble Judge on the Original Side. We direct that trial in the suits which are consolidated shall commence as expeditiously as possible and that decisions may be taken in interim applications as per the calendar of the Court, but pendency of the applications should not come in the way of the consolidated suits proceeding to trial."
20. The prayers as made out in this application are reproduced below:
(a) Modify the order dated 16-05-2014 Insofar as paras 27-29 of the same are concerned, and direct that in lieu of consolidation of the suits, the 6 suits in question be clubbed/tagged to be heard by the same Hon'ble Court on the same date.
(b) Direct that all applications under Order VII (Rule 11) of the Code of Civil Procedure, 1908 (or raising "preliminary issues") be adjudicated within 4 weeks hereof, or within such other short period of time this Hon'ble Court deems fit.FAO (OS) 592/2013 Page 7/40
(c) Direct that adjudication of the suits be completed within 6 months, or such other short period of time this Hon'ble Court deems fit.
(d) Direct that all the 5 matters listed in para 10 above be assigned to the same Hon'ble Court.
(e) And pass such other order or further order or orders as this Hon'ble Court may deem fit and proper under the circumstances of the case.
21. It is the submission of Mr. Khosla that the suits mentioned above should not be consolidated and should be heard separately. The objection taken by Mr. Khosla is that, there exists no statutory provision that defines what "consolidated suits" are and prays that the suits may be tagged or clubbed together to be heard by a single Court on the same dates. He stated that Janak Datwani had himself withdrawn his consent given to this court on May 16, 2014, when the suits were consolidated. He further submitted that his conduct shows that Janak Datwani doesn't want the suits to be consolidated; to that effect he has filed an application under Order VI Rule 17 under the Code of Civil Procedure, 1908 ('CPC' for short) before the learned trial court in CS(OS) 1113/2007 with a prayer to increase the value of the suit from Rs. 20 lacs to Rs. 2 Crores. He further stated that Janak Datwani has also filed a petition in 2019 seeking transfer of four other suits to this court. He relied on the proposal of the counsel on behalf Janak Datwani who had proposed that the issues in the suits should be framed independently; he stated that this proposal should suffice as proof enough, to not consolidate the suits together. He has also submitted that there is also another suit between Janak Datwani and Kishin Datwani numbered as CS 1292 of 2017 which as per Mr. FAO (OS) 592/2013 Page 8/40 Khosla involves the identical issue of which transfer has not been sought.
22. It is the submission of Mr. Khosla that the applicant wishes to withdraw CS (OS) 556/2008 which had been renumbered as CS 57827/2016 in order to enable her to pursue remedies available to her before the NCLT and that consolidation of the suits would hinder her application for withdrawal of the said suit.
23. Another submission put forth by Mr. Khosla is that as these suits are not identical; as the parties are different, therefore these suits cannot be consolidated. It is his submission that CS (OS) 1798/2011 is a suit in the nature of a commercial suit since it seeks execution of a joint development agreement and therefore the question of consolidating this suit with the other suits does not arise.
24. The reasons for which Mr. Khosla stated that the suits may not be consolidated can be summarized into six broad grounds: -
a) the parties to the suits are different;
b) the facts in the said suits are also different;
c) the issues involved are also different;
d) the prayers in the suits are different as well;
e) that some suits ought to fall in the category of commercial suits;
f) one of the said suits amongst the suits listed for consolidation is sought to be withdrawn.
25. Mr. Khosla has also argued that the object of consolidation has been defeated by the opposing parties as even the framing of issues has been obstructed for the last six years. He has further stated that the process of consolidation of suits has been abused by Janak Datwani in order to financially exhaust the other parties. It is the submission of FAO (OS) 592/2013 Page 9/40 Mr. Khosla that the matters numbered as FAO (OS) 141/2018, FAO (OS) 142/2018, CM (Main) No 867/2018 CM (Main) 1376/2018 and RFA 545/2017 be listed before a single judge of this Court or alternatively the parties may be given liberty to file applications in order to have a hearing on the same date.
26. Whereas Mr. Mahajan has argued that the appeal in which the application has been filed relates to the orders passed in suits CS (OS) 1113/2007 and CS(OS) 556/2008 which relate to the disputes in the shareholdings of the family owned company, M/s. CNA Exports Pvt. Ltd. He further stated that Janak Datwani had filed CS(OS) 1113/2007 and Jamna Datwani filed CS (OS) 556/2008 wherein both have claimed that it was Defendant No.3 i.e. Anand Datwani who had forged and fabricated various documents including the disputed gift deeds and share transfer forms through which he claimed 99% of the shareholding of the said company with the intent of taking wrongful control of two properties of the said company being the Gurugram property and 38% share in the Friends Colony property i.e. the Delhi property, which mainly includes the lawn area. He has further submitted that in addition to the aforementioned suits there are also three other suits pending, wherein the shareholding of the said company has been contested / disputed. The order of May 16, 2014 had consolidated the aforementioned two suits along with the three other suits, details of which are reproduced as under:
a) CS(OS) No. 118 of 2007 titled as 'Dayal Shahdapuri Vs. M/S. CNA Exports Pvt. Ltd. & Ors.
b) CS(OS) No. 244 of 2013 titled as Janak Datwani Vs. M/S. CNA Exports Pvt. Ltd. & Ors.FAO (OS) 592/2013 Page 10/40
c) CS(OS) No. 1798 of 2011 titled as Janak Datwani Vs. Pacifica Infrastructure Company Pvt. Ltd. & Ors.
27. Mr. Mahajan stated that vide order of May 16, 2014 the aforementioned suits were consolidated and it was directed that common evidence be led as there is a common issue involved, which is the issue of claim of Anand Datwani over 99% of the shareholding of M/s. CNA Exports Pvt. Ltd. and that these five suits ought to remain consolidated and not clubbed or tagged. In this regard he placed reliance on the judgment of a coordinate bench of this Court in the case of S. C. Jain vs. Bindeshwari Devi 1997 (42) DRJ 239. Mr. Mahajan further submitted that by way of the present application, Jamna Datwani is in effect seeking review of the order of May 16, 2014 after almost six years since the passing of the order. This he stated became clearer as Janak Datwani was initially served with a copy of a Review Petition seeking review of the order of May 16, 2014 which he stated would not have been maintainable; therefore, Jamna Datwani filed the present application seeking modification of the said Order.
28. He stated that the sixth suit being CS 1292/2017 is a suit seeking specific performance of an agreement between Janak Datwani and his brother Kishin Datwani and the said suit has no connection with the said five suits and none of the other parties to the said five suits are parties in this suit. He placed reliance on the Review Application served upon Janak Datwani and the Plaint 1292/2017 which have been placed on record.
29. With regard to prayers (b) and (c) made in the application he stated, he has no objection if these prayers are granted and all the interlocutory applications pending in the five suits are decided in a FAO (OS) 592/2013 Page 11/40 time bound manner. He stated, he also has no objection if prayer (d) is also granted and the matters numbered as FAO 141/2018, FAO 142/2018, CM(M) 867/2018 and CM(M) 1376/2018 are heard by the same single judge of this Court, as these matters arise from the interlocutory Orders passed in the suits. He stated, however, RFA 545/2017 is an appeal challenging the final judgment and order in a recovery suit being CS 4061/1991 which is not connected to the said five suits which relate to the shareholding of M/s. CNA Exports Pvt. Ltd. He also stated that since the matter is a regular first appeal which would require re-appreciation of evidence and cannot be heard along with appeals arising out of interlocutory orders.
30. Mr. Vivek Sharma who appears on behalf of Kishin Datwani Respondent No.6, opposed the application on the ground that the objective of the application is only to delay the suits which have been consolidated by the order of May 16, 2014. It is his submission that out of the five suits referred to above, CS(OS) 556/2008 was filed by Jamna Datwani herself on the premise that Anand Datwani had forged the signatures of all the other family members including that of Jamna Datwani, Kishin Datwani, Janak Datwani and Nitya Bharaney to first transfer their shareholdings by gift deed in her name and then from her to him. Jamna Datwani has filed the suit against Anand Datwani in a representative capacity on behalf of all the other children including Kishin, Janak Datwani and Nitya Bharaney and that no separate suit was filed by Kishin Datwani up to September, 2013. He also submitted that since last many years Jamna Datwani had come under the influence of Anand Datwani and at his behest sought to resile from her position and even made multiple attempts to withdraw her suit, a FAO (OS) 592/2013 Page 12/40 prayer which he stated has been disallowed by this Court again and again. He stated that this application too was an attempt to withdraw CS(OS) 556/2008 and to jeopardize the consolidated litigation and the same ought to be rejected.
31. Mr. Sharma stated that the application draws an imaginary distinction between clubbing and consolidation and went on to argue that clubbing pertains to the domain of leisure than of law and that the legal parameters for consolidation are well established. He argued that the order of May 16, 2014 gave sufficient guidelines as to how the order has to be implemented and carried forward in the proceedings. He stated that it is an unfair statement to make that the Single Judge hearing the consolidated suits would face difficulty in putting the consolidation into actual practice. Any difficulty, if it arises would be looked into by the Single Judge alone and that this application is speculative in nature and merit dismissal.
32. The objective of the application according to Mr. Sharma is to review the order of May 16, 2014. He also stated that number of interim applications filed on behalf of the applicant/Jamna Datwani would show that the applicant or her sponsors were never under any paucity of funds to litigate. The order of May 16, 2014 is premised on the clear consent of Janak and Anand Datwani and neither of the parties should be allowed to resile from their consent.
33. Through a separate prayer Jamna Datwani has sought direction for adjudication of her applications under Order VII Rule 11 of the CPC within 4 weeks which Mr. Sharma stated, is premature since the other parties have sought transposition as plaintiffs instead of Jamna Datwani and that this issue itself awaits further adjudication before this FAO (OS) 592/2013 Page 13/40 Court. He further stated, three separate applications have been filed under Order VII Rule 11 of the CPC seeking dismissal of the suit on three different grounds in different applications that too by the same counsel. The grounds that have been taken, include dismissal of the suit on ground of limitation; lack of subject matter jurisdiction; to approach NCLT and dismissal on ground of undervaluation. Mr. Sharma submitted that if the applicant i.e. Jamna Datwani is not discouraged then more applications would be filed on different grounds, which shall be an abuse of process of law.
34. With regard to the submission made for consolidation of CS No. 1292/2017 titled Janak Datwani vs. Kishin Datwani pending before the Patiala House Courts, Mr. Sharma submitted that plea of Mr. Mahajan is incorrect as the shares of Kishin Datwani, equivalent to his original shareholding of 13.33% (consisting of 1500 shares) in M/s. CNA Exports Pvt. Ltd. are the subject matter of CS No. 1292/2017, by which suit Janak Datwani seeks to lay a claim on Kishin Datwani's shareholding, which shareholding is also the subject matter of the consolidated suits and in particular to CS(OS) 556/2008 titled "Jamna Datwani Vs. Anand Datwani & Ors.". He stated, the position taken by Anand Datwani in the consolidated suits is that he had acquired 99% of the shareholding in M/s. CNA Exports Pvt. Ltd. and that this shareholding also includes the 13.33% shares of Kishin Datwani. In other words, both Janak and Anand Datwani have separately claimed entitlement to 13.33% shares originally allotted to and held by Kishin Datwani. He stated that there is a clear possibility of conflicting judgments and decrees passed in the five consolidated suits and the sixth suit.
FAO (OS) 592/2013 Page 14/4035. Mr. Sharma stated that Janak Datwani had made no mention of the order of May 16, 2014 through which consolidation was ordered, in CS 1292/2017 before the Patiala House Courts. He submitted that there is an urgent need to modify the order of May 16, 2014 or in the alternative to pass a fresh order in the present proceedings to consolidate CS 1292/2017 with the five suits that have already been consolidated.
36. Whereas Ms. Nilima Tripathi, learned counsel appearing for Sushma Ravidass, Respondent No.8 and Dayal Shahdadpuri who is the plaintiff in CS(OS) 118/2007 stated that the applicant Jamna Datwani had initially filed a Review Petition No. 3850/2020 around January 27, 2020 and another application CM 5061/2020 was filed seeking modification of the order of May 16, 2014, with same reliefs which she stated is not permissible. She stated that the CM 5061/2020 has been filed on the grounds of alleged discovery of the new matter and alleged resiling of consent by the Appellant i.e. Janak Datwani. She stated that the application does not show discovery of any new matter or resiling of Janak Datwani which would merit a review/modification of order of May 16, 2014. She submitted that the instant application is not only an application seeking review but also to unsettle the position so accepted by the parties since the last about six years from the date of order of May 16, 2014. She has submitted that the application also fails to meet the settled criteria or parameters for review or even modification and that the same should be dismissed. She has also stated that the said review is also barred by limitation.
37. She submitted that the applicant / Jamna Datwani has not shown any reason as to how if the suits are clubbed and heard together and not FAO (OS) 592/2013 Page 15/40 consolidated would benefit the matter in any manner. It was her submission that the suits numbered as CS(OS) 118/2007, CS(OS) 1113/2007, CS(OS) 556/2008, CS(OS) 1798/2011 and CS(OS) 244/2013, which were directed to be consolidated vide order of May 16, 2014 involve complicated questions of facts and law, as to the title of shares as well as allegations of fraud and forgery with regard to the Shareholding in M/s. CNA Exports Pvt. Ltd. She stated that the order for consolidation has been accepted by the parties for a period of about six years and that the parties have accordingly proceeded in the suits with the understanding that while the issues would've been framed separately in each suit but the evidence was directed to be common as per the order of May 16, 2014.
38. She submitted, the courts have inherent power under Section 151, CPC in appropriate cases to order consolidation in order to save costs, time and effort and to facilitate holding of proceedings by treating them as one action. She has submitted that most of the issues and most of the witnesses in the suits would be common and she has further submitted that if the evidence were to be recorded separately it would not only be a waste of judicial time but also raise expenses to the parties and a possibility of conflicting decision cannot be negated. In this regard she has relied on the following judgments: -
i. Chltivalasa Jute Mills vs. Jaypee Rewa Cement AIR 2004 SC 1687 ii. S.C. Jain vs. Bindeshwari Devi (supra) iii. Prem Lala Nahata and Ors vs. Chandi Prasad Sikaria AIR 2007 SC 1247 iv. Dharam Dass Vs. Daharam Dass AIR 1917 All 336 DB FAO (OS) 592/2013 Page 16/40 v. Dr.(Mrs.) Pramila Srivastava Vs. Asha Srivastava & Ors. ILR (2014) I Delhi 201
39. Ms. Tripathi has stated that the applicant, Jamna Datwani who is herself as of 82 years of age should not be subjected to unnecessary elongation of proceedings. In case the direction to consolidate is to be withdrawn and separate evidences were to be led, the process of trial would take much longer contrary to Jamna Datwani's own submissions.
40. It is her submission, that the plea on behalf of applicant that no statutory provision exists, which defines, what consolidated suits are, is misplaced, as the Courts (as per above Judgments) have directed consolidation of suits in appropriate cases and the same has been done in this case and that no review/modification of the order is merited.
41. Ms. Tripathi stated the plea that appellant has resiled from the consent given to this Court is also misplaced for the reason that Janak Datwani himself had filed the transfer petitions for consolidation of suits and that the change in valuation would not have a bearing on the consolidation of suits. According to her, the primary consideration for consolidation of suits, that there should be complete or substantial similarity of issues arising for decision in the suits, is met.
42. She submitted that the third reason as stated by Jamna Datwani / Mr. Khosla regarding the withdrawal of suit and approaching NCLT, is a contradictory plea as on one hand the Jamna Datwani seeks withdrawal of the suit and on the other hand, seeking enforcement of various interim orders including the interim order passed in the present proceedings with regard to her maintenance and residence.
FAO (OS) 592/2013 Page 17/4043. She submitted that the fourth reason as submitted by Mr. Khosla on behalf of Jamna Datwani that the suits are not wholly identical, is misconceived as the said issue has already been examined by this Court and only thereafter the direction to consolidate them was passed, which aspect is clear from order dated May 16, 2014, vide Paras 7, 17, 18, 19, 22, 27 and 32.
44. It is the submission of Ms. Tripathi that the reason given in the application that the Joint Development Agreement is in respect of the Gurugram property which is owned by the company M/s. CNA Exports Pvt. Ltd. and that there is a dispute with regard to the title of shares of the various shareholders in the said company and therefore these issues are interconnected and that the entire controversy revolves around the validity of the gift deeds dated January 10, 1998 and January 12, 1998 relating to the shareholding of M/s. CNA Exports Pvt. Ltd. and the consequent acts done on basis of aforesaid gift deeds, justifies the consolidation.
45. Ms. Tripathi, insofar as Prayer (b) in the application, wherein the applicant seeks adjudication of her applications under Order VII Rule 11 of the CPC, stated the CM (Main) 67/2018 which is pending before this Court should be adjudicated first since it would have implication on the maintainability of the aforesaid applications under Order VII Rule 11 the CPC, if the prayers made by respondent no.8 in the said CM (M) petition are allowed. With regard to the Prayer (c) of the present application, which seeks completion of adjudication within six months, it was contested by Ms. Tripathi, on the ground that the applicant herself in the past months has filed several applications which have greatly delayed the suits from being proceeded to trial.
FAO (OS) 592/2013 Page 18/4046. With regard to Prayer (d) set out in the application, Ms. Tripathi stated that the respondent no. 8 has no objections if this prayer is allowed and if the two CM(M) petitions and the appeals filed before this Court are heard together.
47. Whereas Mr. Pulkit Deora appearing on behalf of respondent no. 4 i.e. C.S. Batra, who is stated to be a shareholder having an interest of 200 shares in M/s. CNA Exports Pvt. Ltd, stated that clubbing was an inherent part of consolidation, in that clubbing allows for two cases to be tried by the same Judge but not consolidated. Clubbing is therefore different from consolidation and a flexible approach can be adopted suiting to the needs of a particular case rather than the straightjacket approach of substantive consolidation. Mr. Deora submitted that a flexible approach has been adopted by the Courts in cases where it would be appropriate to deal with two or more cases together without consolidating them. In this regard he has placed reliance on the following judgments:
i. Harjinder Singh v. State of Punjab, (1985) 1 SCC 422 ii. Balbir v. State of Haryana, (2000) 1 SCC 285 iii. Mangali Satukuri Anjaiah v. Nethi Rajaiah, 2002 SCC Online AP128
48. It is Mr. Deora's submission that the consent was provided by the parties for clubbing of the suits and not consolidation. He has placed reliance on Sections 25 and 151 read with Order IVA Rule 1 of CPC wherein according to him two objectives for consolidation of cases is provided i.e. expediency in delivery and interest of justice both the aspects he states must be served by a joint trial and combination of evidence.FAO (OS) 592/2013 Page 19/40
49. It is his submission that it is a matter of record that there has been considerable delay since consolidation in 2014. It is also submitted that the continued delay in progress in the matters was due to the consolidation. He submitted the following reasons which caused delay in the lead suit (OS) 118/2007:
I. In September, 2013 an amended Plaint was filed on behalf of Mangat Rai - employee of Janak Datwani.
II. On November 01, 2013 Order VII Rule 11 application filed by Defendants 1&2 being I.A. 17588/13 which was part heard before the Patiala house Courts in 2018. III. Between September, 2013 and December, 2013 the matters related to Jamna Datwani arrangements had been taken up and thereafter from January, 2014 to May 2, 2014, Janak Datwani filed FAO 592/2013 and FAO 593/2013. IV. Between the duration of January, 2014 and May, 2014 Janak Datwani filed FAO (OS) 592/2013 on the ground that the order dated December 16, 2013 which was an interim order was not acceptable to him.
V. On May 16, 2014 this Court passed the order wherein the suits were consolidated.
VI. Instead of taking advantage of the order of May 16, 2014 Janak Datwani delayed the proceedings by making further pleadings, filing written statement years beyond the period of limitation and seeking additional time to carry out Admission/Denial etc. VII. In the year 2016 all the suits were transferred to Patiala House Courts on account of pecuniary jurisdiction.FAO (OS) 592/2013 Page 20/40
VIII. From the period of 2016 to January 2018 the court had spent time mostly in issuing notice.
IX. From January 2018 till April 2019 many applications were disposed off by the trial court however no issues were framed.
X. During the period between October 2018 and February 2019 Jamna Datwani filed an application seeking summoning of Dayal Shahdadpuri and Sushma Ravidass; seeking speedy disposal of the pending litigation. According to him the delay in litigation was solely due to Janak Datwani who according to him made every effort to stall the proceedings. XI. On November 29, 2018 Jamna Datwani wrote a letter to the Hon'ble Chief Justice of India seeking early hearing of the pending SLP 844/2018 preferred by her son Janak Datwani with the intention to delay the perjury proceedings pending against him. According to him, a. The motive of Janak Datwani being merely to stall / delay the adjudication of a matter involving perjury which lies at the core of serious financial disputes related to Janak Datwani;
b. The modus operandi of Janak Datwani through false litigations / applications and claims is to financially defraud and humiliate the other parties;
c. Janak Datwani has deployed delay tactics in the pending SLP No. 844/2018, where he has played grievous mischief and mislead the trial court.FAO (OS) 592/2013 Page 21/40
XII. In April 2019, the consolidated issues were proposed by defendants 1 & 2,which included the preliminary issues as to the completion of the pleadings and compliances with Orders 2-4 of the Civil Procedures Code, 1908, including the issue of maintainability of the suit; whether the suit is barred by limitation, and whether it is barred under Section 34 of the Specific Relief Act, 1963. The issues also included, whether Janak Datwani is a shareholder of M/s. CNA Exports Pvt. Ltd. and his locus to prefer the Plaint, and whether the suit had been properly valued for court fee.
XIII. In the same month transfer of CS (OS) 1113/2007 alone was sought by Janak Datwani and allowed by the leaned trial court to be transferred to this Court due to the increase in the suit value.
XIV. In late 2019 Transfer Petition Nos. TP 110/113 were filed seeking transfer of the other suits to this Court. XV. Between the period of July, 2019 and January 2020 the Court of ADJ remained vacant.
XVI. During the period between January, 2020 and February, 2020, various applications were filed by Defendant Nos. 1 and 2 such as; applications for adjudication of suits before NCLT, applications for proper valuation of suits, applications seeking dismissal of suits for lack of authority, applications seeking replies by non-applicants and applications seeking vacation of interim stay reinstated on May 23, 2018 in FAO 141 & 142/2018.FAO (OS) 592/2013 Page 22/40
XVII. On January 30, 2020 transfer Petitions in four suits (including 118 of 2007) were allowed by this Court. XVIII. On February 26, 2020 all suits were listed before Joint Registrar.
XIX. Again, on March 12, 2020 suits were listed before the Court & the Joint Registrar.
XX. Shortly afterwards as on March 23, 2020 lockdown was declared on grounds of COVID-19.
50. Mr. Deora stated that there is opposition to the current application with ulterior motive of seeking transposition in order to defeat the motion of the plaintiff to withdraw the suit. He stated that transposition would not be a problem in case of the abandonment of proceedings by the plaintiff in terms of Order XXIII Rule 1A CPC which in turn is used to avoid multiplicity of proceedings in a case where non-transposition would result in the affected party filing another suit; which he states is not the case here since the other parties have preferred their own suits which are pending adjudication based on their own merits, therefore a need of transposition would not arise. In this regard he placed reliance on the judgment of State of Andhra Pradesh v. G. Surya Narayana (1964) 4 SCR 945.
51. He further submitted that it would be more likely that the present proceedings would move a lot faster if the consolidation of suits is undone, and the matters are tagged together so that the parties may have the benefit of the matters being heard together without the hindrances that come along with consolidation.
52. Mr. Deora suggested that the evidence may be recorded separately in all the cases, through separate commissioners appointed in FAO (OS) 592/2013 Page 23/40 each of the suits with clear mandate that the witnesses of the plaintiffs who are common to all cases be examined in one case and their evidence be read in all the other matters. He suggested that the Court may record the evidence in one case and withhold the judgment and finish recording the evidence in other case. Finally, he suggested that the Court may then simultaneously dispose of the cases by separate judgments, thereby allowing judgment in one case to place reliance on the evidence recorded in another case with the consent of the parties.
53. Mr. Khosla in his rebuttal submissions stated that as per the written submissions dated June 27, 2020 some objections were raised with regard to proposition no. 2 therein which related to the issue, whether CS(OS) 556/2008 is a representative suit or not. He argued that even if the suits stand consolidated instead of being clubbed, such consolidation could not come in the way of the plaintiff i.e. Jamna Datwani choosing to withdraw the suit even if the other parties are seeking transposition in the said suit. In other words, consolidation could not stand in the way of the plaintiff choosing to withdraw the suit.
It is his argument that this proposition is germane to the current proceedings since this issue has not only been argued in CM (Main) 867/2018 but also before this bench adjudicating the present appeal.
54. Mr. Khosla had argued that on July 20, 2020 it was argued by the counsel for Respondent No 8 i.e. Sushma Ravidass that the withdrawal of suit being CS(OS) 556/2008 would also mean withdrawal of the concession with respect to the right of residence of Jamna Datwani in the order of May 16, 2014. According to him the present appeal is not against an order passed in CS (OS) 556/2008 alone but rather impugns the common order dated December 16, 2013 both in CS FAO (OS) 592/2013 Page 24/40 (OS) 556/2008 and in CS (OS) 1113/2007 and he has submitted that it would not be necessary that the order of May 16, 2014 would also be rendered otiose. Therefore, there should be no disturbance to the right of residence even if CS (OS) 556/2008 is permitted to be withdrawn.
55. He stated the reason why Janak Datwani and others are opposed to the withdrawal of CS (OS) 556/2008 is due to the reason that the contents of the said plaint were drafted by Janak Datwani in his favour and were signed by Jamna Datwani on the threat of being thrown out of the house.
56. He contested the submission made on July 20, 2020 that a 'long- settled' position is now being sought to be unsettled by seeking that the suits be 'clubbed' and not 'consolidated'. Mr. Khosla had argued that since Sushma Ravidass had herself claimed that she is not a necessary party / proper party to the suit, therefore any decision on this issue would not affect her. Since the suits stand in the same position as they did in May, 2014 and that this surely cannot be the long-settled position. It was his submission that only Jamna Datwani the plaintiff therein had sought an early adjudication by filing an application.
57. Mr. Khosla reiterated his submission that it was Janak Datwani who had resiled from his stance on consolidation, first by filing the issues in the suits separately. Additionally, Janak Datwani filed CS No. 1292/2017 before the Patiala House Courts which is being heard by a different judge; it was Mr. Khosla's submission that Jamna Datwani did not seek an order to get the suits consolidated up to April 2019.
58. He further stated that the order of May 02, 2014 was a consent order and that the consent was only given to the limited extent that the suits be clubbed together and not consolidated. Mr. Khosla highlighted FAO (OS) 592/2013 Page 25/40 his apprehensions with regard to the consolidation of suits; (i) if the lead suit was rejected under Order VII Rule 11 of the CPC, the parties then would be required to approach the division bench for nomination of another lead suit; (ii) if the parties were to challenge the order wherein the issues were framed, the proceedings in all the suits shall remain needlessly stayed.
59. It is submitted by Mr. Khosla that the parties in CM (Main) petition must be heard before the applications under Order VII Rule 11 of the CPC are heard, as Sushma Ravidass on one hand has claimed that she is neither a proper nor a necessary party and on the other hand insists that she be transposed from defendant to plaintiff. In any case, if the application under Order VII Rule 11 is allowed, then suit is withdrawn and filed before NCLT then Sushma Ravidass would be at a liberty to seek a similar relief before the NCLT.
60. Mr. Khosla has argued that the veracity of the power of Attorney dated December 12, 2010 is doubtful since it was notarized six days before the date of its execution i.e. on December 06, 2010 and stated that Sushma Ravidass has abused the process of law. He alleges that Sushma Ravidass is litigating in collusion and on instructions of Janak Datwani.
61. Mr. Khosla has also argued that even CS (OS) 118/2007 is being litigated by Janak Datwani through proxies based on power of attorneys, the veracity of which also remains doubtful. Mr. Khosla has prayed
(i)that the consolidation of suits may not limit withdrawal of suit; (ii) that the evidence in the suits be led separately on the ground that the parties and the prayers are different; (iii) the evidence may be recorded by separate court commissioners in each individual suit in a time bound FAO (OS) 592/2013 Page 26/40 manner; (iv) judgments in each suit be delivered in each suit individually. He states the prayer as made in the applications be granted.
62. Having heard the learned counsel for the parties on the two applications, we shall first proceed to decide CM no. 3851/2020 filed by Jamna Datwani for varying para 10 of the order dated May 02, 2014; para 31 of the order dated May 16, 2014 and; direction to SHO to ensure proper compliance of orders of the Court and render all assistance to her.
63. Vide para 10 of the order dated May 02, 2014, this Court had allowed Jamna Datwani to reside in the room earmarked for her with maid. Now it is contended that the paragraph be modified to include a family attendant in addition to a maid. The primary reason for such a variation is the health of the applicant Jamna Datwani, who is undergoing treatment at Fortis Hospital, and the presence of the family member is essential so as to meet any emergency.
64. On the other hand, Mr. Mahajan appearing for Janak Datwani has stated that Jamna Datwani had spent 126 nights between January 2014 and January 2020 in the property and was taken care of by his employees. Further, Janak Datwani does not have any objection with any of the family members of Jamna Datwani residing with her like Mrs. Hari Bhojwani, Mr. Hiroo Alwani and Mrs. Nitya Bharaney but objected to Anand Datwani and / or his employees / lawyers / friends / associates entering the portion of M/s. IN Exports of the property. Suffice would it be to state, the order of which variation is sought has been passed by a Court on an understanding arrived at between Janak Datwani and Jamna Datwani. It has been six years since the order has FAO (OS) 592/2013 Page 27/40 been passed. No doubt, Jamna Datwani is of advance age and the reason given for seeking variation of the order has already been noted above.
65. Mr. Mahajan has named certain persons who can stay with Jamna Datwani. If that be so, we do not see any reason to modify the order, which is in operation for the last six years, except stating discretion shall be with Jamna Datwani to call either Mrs. Hari Bhojwani or Mr. Hiroo Alwani or Mrs. Nitya Bharaney to stay with her as and when she requires the individual's presence.
66. On the prayer for modifying para 31 of order dated May 16, 2014, this Court has stayed the proceedings primarily because Janak Datwani and Jamna Datwani have resolved the issue pertaining to possessory rights by way of interim measure. The position remains the same i.e. there is no change in the fact situation as she continues to enjoy such rights. The litigations as referred to by this Court in para 32 of the order are still pending adjudication. We do not see any reason / justification to vacate the stay on the domestic violence proceedings. The prayer in that regard is rejected.
67. Insofar as the third prayer is concerned, the same does not flow from the orders dated May 02, 2014 and May 16, 2014. Further, if the applicant has any grievance with regard to non-compliance of orders passed by this Court, appropriate for the applicant is to approach this Court and not to approach an authority like the SHO for compliance. In fact, we note that the applicant had earlier filed a contempt petition for non-compliance of order dated May 02, 2014 which we decided on September 2, 2020. This prayer in the application is rejected.
FAO (OS) 592/2013 Page 28/4068. Insofar as the application being CM No. 5061/2020 is concerned, the substantive prayer is for modifying paragraphs 27-29 of order dated May 16, 2014 to the extent, the five suits, which have been consolidated, be only clubbed / tagged together to be heard by the same Court. In other words, the suit be de-consolidated. Even though, the modification of the order has been sought, in effect the prayer is for seeking review of the order dated May 16, 2014, that too, after six years of the passing of the order with no justification for such a delay. The same is clearly unsustainable. Having said that, the Court had directed consolidation of the five suits on the reasoning; (i) all relate to the shareholding in the company CNA Exports Pvt. Ltd; (ii) that common question of law and facts arise for consideration; (iii) the parties have shown a litigious behaviour, evidenced by the fact that in the suits filed by them, 83 interim applications have been filed and out of which 26 are still pending. The issue of consolidation is well recognized by way of various judgments passed by the Supreme Court and this Court. The Ld. Counsel for the parties have relied upon some Judgments in support of their submissions.
69. To sum up, the ratio of the Judgments for consolidation are primarily the following:
1. Consolidation is a process by which two or more causes or matters by order of the Court are combined or united and treated as one cause or matter.
2. The consolidation can be ordered where there are two or more matters or causes pending in the Court and it appears to the Court that some common question(s) of law or fact arises in both or all the suits or that the rights to relief FAO (OS) 592/2013 Page 29/40 claimed in the suits are in respect of or arise out of the same transaction or series of transaction.
3. The order of consolidation of suits is discretionary, in exercise of power under Section 151 CPC, to secure the ends of Justice and abuse of process of law and to save the parties from delay and multiplicity of proceedings.
4. By consolidation the parties can be relieved of the need to adduce same or similar oral or documentary evidence multiple times.
70. In so far as the Judgments relied upon by Mr. Deora appearing for respondent No.4 are concerned, in Harjinder Singh (supra), the Supreme Court was concerned with the order of the Additional Sessions Judge directing the clubbing of the cases together with evidence to be recorded separately in both the cases one after the other except to the extent that the witnesses of the prosecution, who are common to both the cases, be examined in one case and their evidence be read as evidence in the other. The Supreme Court further held that the Additional Sessions Judge should after recording the evidence of the prosecution witness in one case withhold his Judgment and then proceed to record the evidence of the prosecution in the other and thereafter shall proceed to simultaneously dispose of the cases by two separate Judgments taking care the Judgment in one case is not based on the evidence recorded in the other case. Similarly, in Balbir Singh (supra), the Supreme Court held, where common factor in two cases being with the murdered person, appropriate procedure to be followed by the Additional Sessions Judge should be two trials to be separately conducted one after the other by the same Court before the same Judge FAO (OS) 592/2013 Page 30/40 and Judgments in both the cases to be separately pronounced on the same day, no doubt, with the Additional Sessions Judge, taking care of the fact that he would confine his Judgments in one case only to the evidence adduced in that particular case. Suffice to state that the discretion has been exercised by the Court in the manner depicted in the Judgments. Every case has to be seen in the facts as arises for consideration. The Judgments so relied upon are clearly distinguishable on facts and the discretion was not exercised. In so far as the Judgment in the case of Mangoli Satkuri Anjaiah (supra), the High Court of Andhra Pradesh refused to consolidate the suits only on the ground that one suit was already heard and ripe for disposal and the other suit was at the stage of recording of evidence. Suffice to state the Judgment is distinguishable on facts.
71. In the case in hand, the following table shall clearly demonstrate that the suits have been filed with regard to the shareholding in M/s. CNA Exports Pvt. Ltd. / Gift deeds / act done pursuant to the gift deeds / the properties connected with the said company and as such they are inter-connected:
S. Suits Number Suit Title Prayer in the Suit Date of No. before the Order for District transfer of Courts the Suit to this Court vide Transfer Petition No. FAO (OS) 592/2013 Page 31/40
1. CS (OS) CS No. Janak Datwani vs. Seeking Mandatory 02.04.2019 1113/2007 57826/2016 Injunction and D1- M/s. CNA Exports Pvt. Ltd. permanent injunction against D1-4 Transferred D2- Anand declaring the to this Court Datwani enhancement of share after D3- C.S. Batra of Defendants as null application D4- Kishore and void and restrain for Datwani D1-4 from carrying increasing out any acts on the the suit D5- Jamna Datwani basis of such value filed enhancement. under Order D6 - Kishin Datwani (D1- M/s. CNA VI Rule 17 Exports Pvt. Ltd.) CPC was D7- Nitya allowed Bharaney
2. CS (OS) CS No. P1- Jamna Datwani Seeking declaration 30.01.2020 556/2008 57827/2016 that Jamna Datwani P2- M/s. CNA Exports Pvt. Ltd. and D2-6 have been vs. and continue to be TR. P. (C) owners of more than 110/2019 D1 - Ananad Datwani 85% shareholding of M/s. CNA Exports D2 - Kishin Pvt. Ltd. and restrain Datwani Anand Datwani from D3 - Janak representing that he is Datwani the owner of 99% D4 - Nitya shares of M/s. CNA Bharaney Exports Pvt. Ltd. and D5- Sushma creating third party Ravidass rights in Gurugram property and Friends D6- Mrs. Asha Devi Colony property.
Moolchandani D7- J.B. Overseas Pvt. Ltd.
D8- Kishore Datwani D9- C.S. Batra FAO (OS) 592/2013 Page 32/40 D10- Hira Datwani D11- Pacifica Companies LLC
3. CS (OS) CS No. Dayal Shahdadpuri Seeking declaration 30.01.2020 118/2008 57829/2016 vs. D1- M/s. CNA with respect to his Exports shares in M/s. CNA D2- Anand Exports Pvt. Ltd. and TR. P. (C) Datwani nullifying the acts of 112/2019 D3- C.S. Batra the defendants attempting to D4- Kishore extinguish the Datwani shareholding of D5- Jamna plaintiff in M/s. CNA Datwani Exports Pvt. Ltd. and D6 -Janak Datwani restrain the defendants from creating third D7- Kishin Datwani party rights in Gurugram and Friends D8 - Nitya Colony property.
Bharaney
4. CS (OS) CS No. Janak Datwani Seeking a declaration 30.01.2020 244/2008 57828/2016 that Plaintiff is the Through Rakesh Gupta vs. owner of 1500 shares numbered as 1-11 to TR. P. (C) D1- M/s. CNA 5-1505 in M/s. CNA 113/2019 Exports Pvt.
Exports Pvt. Ltd.
Ltd.
D2 Anand Datwani D3 Registrar of Companies D4 Sushma Ravidass
5. CS (OS) CS No. Janak Datwani Seeking declaration 30.01.2020 1798/2008 58734/2016 that Joint Through Rakesh Gupta vs. Development Agreement dt TR. P. (C) D1-Pacifica 23.10.2007 executed 114/2019 Infrastructure Pvt.
by Pacifica
FAO (OS) 592/2013 Page 33/40
Ltd. Infrastructure and M/s.
D2- Anand
CNA Exports Pvt.
Datwani Ltd. through Anand
Datwani and Rakesh
D3- M/s. CNA
Israni with respect to
Exports Pvt. Ltd.
Gurugram property
D4- Rakesh Israni belonging to M/s.
D5- J. Sagar CNA Exports Pvt.
Associates Ltd. as null and void.
D6- DAD
Enterprises P. Ltd.
D7- Metfoils India
Ltd
D8- Dev Bhumi
Homes Pvt. Ltd.
D9- Bhagat
Alexander Pvt. Ltd.
D10- Sharper
Image
D11- Cool Projects
Pvt. Ltd.
D12- Cool
Developers Pvt.
Ltd.
D13- Sidhwani
Metal &
Engineering Pvt.
Ltd.
72. We may at this stage state, that after the order was passed by this Court, because of the increase in the pecuniary jurisdiction the suits were transferred to the District Court. They have since been transferred back to this Court on the applications filed by Janak Datwani vide orders dated July 25, 2019 and January 30, 2020.
73. Having said that, now coming to the submissions of Mr. Khosla on the modification of order dated May 16, 2014 are concerned, the first FAO (OS) 592/2013 Page 34/40 submission is that there is no statutory provision, which defines what consolidated suits are and if labelled as such, may lead to necessary appeals delaying the litigation and hence the suits be clubbed / tagged. The submission is without merit. It is clearly held by this Court in S.C. Jain (supra) that a Court while exercising its inherent jurisdiction under Section 151 CPC may direct consolidation. So, it follows, the order dated May 16, 2014 has been passed in exercise of power vested in the Court.
74. One of the plea of Mr. Khosla against consolidation is that one of the suit, shall be a commercial suit, needs to be separated from the ordinary suit. This submission does not appeal to us, as the Court hearing a normal suit, having been designated as a Commercial Court in terms of notification issued by this Court, the Ld. Judge hearing other suits shall be competent to hear a commercial suit as well.
75. In view of the above position, we are of the view that this Court had rightly exercised the jurisdiction by consolidating the suits. Such an order should not be interfered with.
76. Mr. Khosla during his submissions had raised a plea which even though not connected with the order dated May 16, 2014, but based on a fact which has arisen subsequent to the aforesaid order inasmuch as Janak Datwani has filed a further suit being CS 1292/2017 before the Patiala House Courts, New Delhi of which transfer / consolidation has not been sought for by Janak Datwani, which shows that he has resiled from his consent given to the Court prior to the passing of the order dated May 16, 2020. The aforesaid submission of Mr. Khosla was opposed by Mr. Mahajan by stating, that suit has no connection with the five consolidated suits. Ms. Tripathi had stated that, filing of the suit FAO (OS) 592/2013 Page 35/40 CS(OS) 1292/2017, does not amount to resiling from his consent, by Janak Datwani, more so, he had filed applications for transfer of five suits to this Court, and which have since been transferred. Mr. Sharma on the other hand opposed the plea of Mr. Mahajan, and stated, the suit having been filed with regard to shares of M/s. CNA Exports Pvt. Ltd., the same needs to be transferred and consolidated with the five suits.
77. We are in agreement with the submission made by Mr. Sharma. CS(OS) 1292/2017 has been filed by Mr. Janak Datwani with the following prayers:-
"In the facts and circumstances as aforesaid, the Plaintiff prays that this Hon'ble Court may be graciously pleased to:
(i) Pass a decree of specific performance of the agreement dated 29.01.1992 bearing no. KD/019/92 in favor of the Plaintiff and against the Respondent and direct the Defendant to sign the share transfer form and complete other share transfer formalities with CNA Exports Private Limited.
(ii) Pass a decree of declaration against the Defendant that the Agreement dated 29.01.1992 is a valid, binding and legally enforceable contract which the parties entered into for mutual consideration, that the Plaintiff has fulfilled all of his obligations to Defendant under Agreement and that Defendant has failed to fulfill his obligations under the Agreement.
(iii) Award costs"
78. From the perusal of the prayers, it is clear that the suit filed by Janak Datwani is for seeking specific performance of the Agreement dated January 29, 1992 against Kishin Datwani with regard to certain shares of M/s. CNA Exports Pvt. Ltd.. When the issue is related to the shares of M/s. CNA Exports Pvt. Ltd., it has to be held that the said issue is also related / connected with the five suits consolidated by this Court and accordingly, we direct that the suit being CS 1292/2017 FAO (OS) 592/2013 Page 36/40 pending before the Patiala House Courts be transferred to this Court and consolidated with the aforesaid fives suits. This order we are passing in exercise of inherent power which a Court of justice must possess and to do justice to the parties herein, and to avoid contradictory Judgments / decrees. This order of ours negates the plea of Mr. Khosla that, Janak Datwani, by filing CS 1292/2017, has resiled from his consent for consolidation of suits.
79. One of the submissions of Mr. Khosla is that Jamna Datwani, who is the plaintiff in CS(OS) 556/2008 has sought to withdraw the suit to approach NCLT and there is an apprehension that the consolidation of the suits might come in the way of Jamna Datwani to the said withdrawal. We say nothing on this aspect except that it is for the Court concerned where the suits are listed to decide the application for withdrawal (if any) in accordance with law as we note, Janak Datwani and Sushma Ravidass had filed applications in the said suit for their transposition as plaintiffs which were dismissed vide order dated June 1, 2018 against which CM(M) 876/2018 and CM(M) 1376/2018 have been filed. Further, some of the respondents are opposing the withdrawal of the suit on different grounds.
80. In so far as the submission of Mr. Khosla that the purpose of consolidation has been defeated by the opposing parties as even the framing of issues has been obstructed in the last six years is concerned, the said submission does not indicate that the consolidation of suits has resulted in the delay. Having said that we have given our anxious consideration on the plea made, that despite the observation made by this Court in its order dated May 16, 2014 and after a lapse of six years, the issues have not been settled. There appears to be many FAO (OS) 592/2013 Page 37/40 factors which contributed in the delay of framing of issues including filing of many applications by the parties. Having said that, we note in the earlier order, this Court had expressed itself that that the Single Judge shall settle the issues for the commencement of the trial as expeditiously as possible. We again reiterate the said observation.
81. Mr. Khosla during his submissions has also drawn our attention to the following matters pending before different jurisdictions of this Court to contend that the same be listed before one Single Judge to obviate any delay / multiplicity of proceedings:
S. Appeals Title Date of Summary of Arising Suit No. No. Impugned impugned orders from Suit before orders No. the District (before the Court Delhi HC)
1. FAO Sushma 31.03.2018 ADJ Patiala House CS (OS) CS No. 141/2018 Ravidass vs. Courts vacated the 556/2008 57827/2 Pacifica status quo order dated 016 Infrastructure 20.05.2009 in respect Pvt. Ltd. & of the suit property Ors. Plot No. 4 Sector 18 Gurugram Haryana
2. FAO Janak Datwani 31.03.2018 ADJ Patiala House CS (OS) CS No. 142/2018 vs. Pacifica Courts vacated the 556/2008 57827/2 Infrastructure status quo order dated 016 Pvt. Ltd. & 20.05.2009 in respect Ors. of the suit property Plot No. 4 Sector 18 Gurugram Haryana
3. CM (M) Sushma 01.06.2018 Against dismissal of CS (OS) CS No. 876/2018 Ravidass vs. application under 556/2008 57827/2 Jamna Order 1 Rule 10 CPC 016 Datwani wherein the applicant sought transposition as plaintiff.FAO (OS) 592/2013 Page 38/40
4. CM (M) Janak Datwani 01.06.2018 Against dismissal of CS (OS) CS No. 1376/2018 vs. Jamna application under 556/2008 57827/2 Datwani & Order 1 Rule 10 CPC 016 Ors. wherein the applicant sought transposition as plaintiff.
5. RFA Nitya SARL 21.02.2017 Against dismissal of CS (OS) 58548/2 545/2017 (France) vs. suit (number) by the 4061/1991 016 M/s. CNA ADJ Patiala House on Exports Pvt. the ground that the Ltd. signatory of the plaint Mr. Janak Datwani failed to prove that he was authorised to filed the suit.
82. This plea of Mr. Khosla is not opposed by Mr. Mahajan and other counsels for the parties except Mr. Mahajan stating that RFA 545/2017 should not be connected with the five suits as it arises from a suit being CS 4061/1991 which though pending when the order dated May 16, 2014 was passed, was not clubbed as the subject matter of the suit was not connected with the five suits. We agree with the submission of Mr. Mahajan with regard to RFA 545/2017 that arises from CS 4061/1991, which suit was filed by Nitya SARL (France) against M/s. CNA Exports Pvt. Ltd. and which was dismissed, and being on RFA, cannot be heard along with appeals arising out of interlocutory orders.
83. So, we direct the Registry to place the matters mentioned at Sl. Nos. 1 to 4 above (paragraph 81) before Hon'ble the Chief Justice for listing of the aforesaid appeals and petitions before one Single Judge preferably before the same Ld. Judge before whom the above six suits FAO (OS) 592/2013 Page 39/40 (paragraphs 71 & 78 which includes CS 1292/2017) are / shall be listed.
84. We also find Mr.Deora, has also made a submission that no consent was given for consolidation. Such a submission does not hold good after six years of passing of the order. In any case, the order has been passed by this Court, in exercise of its inherent jurisdiction.
85. In the end we also reiterate this Court's direction in paragraph 30 of the order dated May 16, 2014 in the following manner:
"30. In this regards we would like to pen that in suits the pendency of interim applications should not come in the way for the suits to be tried. For example, applications concerning interim measures and receiver being appointed have no concern with the onward march of the suit. Distinct and separate orders can always be passed in interim applications with separate dates of listing of interim applications, and as regards the suit, distinct and separate orders passed with separate dates can be fixed."
86. Applications are accordingly decided.
V. KAMESWAR RAO, J ANU MALHOTRA, J NOVEMBER 17, 2020/jg FAO (OS) 592/2013 Page 40/40