Delhi District Court
Kuljit Singh Butalia vs Firstcorp International Ltd on 24 August, 2012
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IN THE COURT OF DR. NEERA BHARIHOKE : ADDITIONAL DISTRICT
JUDGE01 : SOUTH DISTRICT : SAKET COURTS : NEW DELHI
Suit No.184/11
In the matter of :
KULJIT SINGH BUTALIA ....................Plaintiff
VS.
FIRSTCORP INTERNATIONAL LTD. ...................Defendant
24.08.2012
ORDER :
1 Vide this order, I shall dispose off the application filed by defendant company u/o XVI Rule 1 (3) read with Section 151 CPC praying for allowing the defendant company to summon one Mr. O.P. Aggarwal as its witness. 2 Defendant no.1 had filed an application on 08/08/2012 u/s 151 CPC for issuing summons to one Mr. O.P. Aggarwal for appearing before this court which was dismissed.
3 Earlier an application filed by defendant company u/o 6 Rule 16 CPC dated 20/12/2010 praying for striking off para 2 of the plaint and para 2 of affidavit of evidence as the averments made therein with respect to Mr. O.P. CS No. 184/2011 P 1 of 14 : 2 : Aggarwal are unnecessary and not connected to the matter in issue has been dismissed vide order dated 12/05/2011.
4 Defendant has submitted that during the course of cross examination of the plaintiff on 08/10/2010, he has stated that "The cheque of Rs.3 lakhs was handed over to him by Sh. Laxman Bhatt in the presence of Mr. O.P. Aggarwal."
5 Defendant has submitted that the plaintiff was further cross examined on 15.11.2010 and a cash receipt dated 15.09.2005 for Rs.10 lakhs was shown to him to which he has stated as follows: "It is correct that the amount of Rs.10 lakhs was written at the time when I signed this document. It is correct that this amount of Rs.10 lakhs was paid to me in cash by Mr. O.P. Aggarwal as he has been dealing with me in the Gallery account. When Mr. O.P. Aggarwal paid this amount his accountant was also presence. The signature of accountant is at point O. There was no noting on mark A as reflected from point B to B. This amount of Rs.10 lakhs was paid to me for sale of a painting by Shanti Dave. Vol. I can produce him in the court. I did not enter into any agreement with the defendant company on receipt of Rs.10 lakh."
CS No. 184/2011 P 2 of 14
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6 Defendant has submitted that the plaintiff in his crossexamination
on 15/11/2010 was confronted with a cash receipt dated 24/11/2005 for Rs.5 lakhs to which he has stated as follows: "Mark X bears my signature only at point A. I do not remember who handed over the amount of Rs.5 lakhs but it was on behalf of Mr. O.P. Aggarwal in his office. I do not remember who all were present in his office at that time but his accountant was present there. This amount was handed over to me in the office of M/s. Earthtech in the chamber of Mr. O.P. Aggarwal. The amount of Rs.5 lakhs was paid to me by the defendant company. Amount was paid to me for paintings."
7 Defendant has submitted that in terms of the directions contained in the order dated 18/01/2012 of Hon'ble Mr. Justice Valmiki J. Mehta the parties were directed to appear before the trial court on 24th January, 2012 i.e. the date already fixed and the crossexamination of DW 1 - Mr. Avdhesh Kumar Singh was completed and the matter was adjourned to 24/02/2012. That though DW 2 was present on 24/02/2012 but he was not cross examined by the Counsel for the plaintiff because he wanted to cross examine DW 2 and DW 3 on the same day and therefore the matter was adjourned to 13/03/2012. 8 Defendant has submitted that on 13/03/2012 the file of C.S. (OS) No. 1861 of 2008 was not summoned by the defendants from the Hon'ble High CS No. 184/2011 P 3 of 14 : 4 : Court of Delhi and accordingly they lost their second opportunity and the matter was adjourned to 01/05/2012 as last and final opportunity for the defendants to lead its evidence.
9 Defendant has submitted that the above said files were summoned from the Hon'ble High Court of Delhi on 01/05/2012 and the remaining witnesses of the defendant company i.e. DW 2, DW 3, DW 4 and DW 5 were cross examined and the defence evidence was closed and the matter was adjourned to 24/05/2012 as the plaintiff wanted to lead evidence in rebuttal. 10 Thereafter plaintiff filed the affidavit of Sh. Shanti Dave verified on 19/05/2012 and paragraph 4 to 6 of the said affidavit are reproduced below: "4 Sh. Kuljit Singh introduced me to one Sh. Om Prakash Aggarwal who wanted to start an art gallery with the help of the said Sh. Kuljit Singh Butalia."
"5 Sometimes in the year 200405 Sh. Kuljit Singh came with a demand for some paintings of high value which according to him were required by Sh. Om Prakash Aggarwal. He selected a few paintings one of which was titled as "Indrani", I sold the said paintings at a highly discounted price because of my regard for Sh. Kuljit singh Butalia."
"6 Sh. Kuljit Singh Butalia paid me the price of the paintings which amount to approximately Rs.25 lakhs. The painting "Indrani" was supplied by me CS No. 184/2011 P 4 of 14 : 5 : directly to Sh. O.P. Aggarwal at 39, Sadhna Enclave (2 nd Floor), New Delhi. During conversation Sh. O.P. Aggarwak told me that he was collecting paintings of high value as his daughter in law wanted to set up an "Art Gallery"." 11 Defendant has submitted that Mr. Shanti Dave was cross examined by the counsel for the defendant company on 24/05/2012 wherein amongst others a specific question was put to him and he replied to the same as follows: "Question : How many painting till date you have sold to Mr. O.P. Aggarwal, can you give the e estimated price thereof?
Ans. : I have never sold the painting s to Mr. O.P. Aggarwal. Vol. the same were delivered for donations. I do not remember the number of paintings."
12 Defendant has submitted that Mr. Shanti Dave was further cross examined by the counsel for the defendant company on 27/07/2012 wherein amongst others a specific question was put to him as follows: "Question : When you talk about donations, were they directly paid to you or through the dealer?
Ans. : With respect to the construction of temple, I received donation from only one person i.e. the plaintiff. When I asked for donation for the temple from the plaintiff, I do not know from where he arranged fro the same whether through Sh. O.P. Aggarwal or somebody else."
CS No. 184/2011 P 5 of 14
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13 Defendant has relied on the judgment of Sardar Gurbaksh Singh
Vs. Gurdial Singh & Anr., AIR 1927 Privy Council 230 where it was held that "sometimes a party adopts a manoeuvre whereby the party does not call essential witnesses but endeavours to force the other party to call him and so suffer the discomfiture of having them treated as their witnesses." 14 Ld. Counsel for the defendant argued that the plaintiff has admitted receiving the payments which were made by the defendant company for purchase of suit premises but he has raised a false plea that they were made by said Mr. O.P. Aggarwal for paintings sold by Mr. Shanti Dave. Moreover, after the categorical denial by Mr. Shanti Dave in his deposition it has therefore at the present stage become utmost relevant and necessary that said Mr. O.P. Aggarwal be summoned for the just decision of the case. 15 Defendant has relied on Pushpaben Champaklal Shah and Anr. Vs. Rikhavdev Tirathram Sharma & Ors., AIR 2006 Gujarat 66 wherein it was observed that " there is no express prohibition in examining other side as witness. " It was also observed in this decision that "both the parties can examine such contesting party or witness." It also must be pointed out that in this very decision it is also indicated that an application for summoning such a witness should not be granted as a matter of course but at the appropriate stage the Court can pass such an order keeping the CS No. 184/2011 P 6 of 14 : 7 : facts of the case and the conduct of the contesting parties in mind. 16 Defendant has submitted that in Union of India Vs. M/s. Orient Engineering and Commercial Co. Ltd., (1978) 1 SCC 10, wherein, in the context of summoning certain arbitrators, the Supreme Court observed:
"It is not right that every one who is included in the witness list is automatically summoned; but the true rule is that, if grounds are made out for summoning a witness he will be called; not if the demand is belated, vexatious or frivolous. Thus the court also has not approached the question from the proper perspective."
17 Defendant has submitted that in the present matter the demand being made for summoning Mr. O.P. Aggarwal is not belated, vexatious or frivolous but is being made at the appropriate stage for the just decision of the case.
18 Defendant has also relied on Sr. Aurobindo Ashram Trust and Another Vs. Kamal Dora, AIR 2000 Madras 494, wherein the Court summarised the legal position in the following words: "9. So, the legal position is that a party who seeks for a prayer to the court to issue summons to a witness, must reveal to the court the purpose for which the witness is proposed to be summoned. Once such an application is filed, it is for the Court to use CS No. 184/2011 P 7 of 14 : 8 : its discretion and to decide whether summons are to be issued to those witnesses. It has to be pointed out that the issue of summons is not automatic and in appropriate or in cases where objections are raised, the bonafides of the request has to be looked into and appropriate orders passed."
19 Defendant has submitted that after the deposition of Mr. Shanti Dave it has become essential that the defendants be allowed to summon Mr. O.P. Aggarwal as a witness as the request is bonafide.
20 Ld. Counsel for the defendant has also placed reliance on judgment of Bishwanath Rai Vs. Sachhidanand Singh AIR 1971 SC 1949 wherein it is stated that where neither side has summoned a material witness to give evidence, court is justified in refusing to call him as a court witness after the closure of evidence."
It has been held in Para 6"........Such an opinion could only be formed after evidence of parties was over. The appellant was, therefore, directed to move the application at the appropriate stage." It has been further held in the same para that ".........In any case, he had the alternative, that, when the court refused to examine Swamiji as a court witness, he could have made a request to the Court to permit him to summon and examine Swamiji as his own witness;"
CS No. 184/2011 P 8 of 14
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21 Defendant has submitted that the application for summoning
Mr. O.P. Aggarwal is being moved at the appropriate stage in order to bring the entire matter before the Court. Ld. Counsel for defendant argued that the plaintiff has made two pleas which are inconsistent with each other and which can only be clarified by the deposition of Mr. O.P. Aggarwal.
22 Ld. Counsel for plaintiff argued that if there are any contradictions in deposition of Shanti Dave and crossexamination of plaintiff, then it is the case of plaintiff which is going to be affected. He further argued that the present application is a dilatory tactic adopted by the defendant company to drag on the litigation. Ld. Counsel for plaintiff prayed for the dismissal of application with heavy costs.
23 Arguments heard. Record perused carefully.
24 Defendant in its previous application dated 14/08/2012 has submitted that Mr. O.P. Aggarwal was the Director of the defendant company from 9th January, 1995 and has resigned on 25th May, 1996 and Form 32 has been duly filed with the Registrar of companies and since his resignation Mr. O.P. Aggarwal is not incharge and / or responsible for the affairs of the defendant company in any manner whatsoever.
CS No. 184/2011 P 9 of 14
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25 Defendant has submitted that apart from vague averments and
allegations made by the plaintiff in para 2 of the plaint and reproduced in para 3 hereinabove and in para 2 of his affidavit of evidence, the plaintiff has failed to place on record any document which was / is connected with said O.P. Aggarwal and / or witnessed and / or signed by said O.P. Aggarwal but has continued to make unnecessary, scandalous and frivolous allegations regarding O.P. Aggarwal even though they are not relevant to the issues arising in the present suit.
26 Defendant has submitted that the plaintiff is referring to the said Mr. O.P. Aggarwal though the reference to him is not relevant and / or connected and / or related to the issues in this suit. Defendant has also submitted that the said Mr. O.P. Aggarwal is not a party to the present suit. It is not understandable as to how testimony or examination or said Mr. O.P. Aggarwal will go to the root of the matter and how it is relevant for the just decision of this case when defendant is itself submitting that Mr. O.P. Aggarwal is not a party to the suit and reference to him is not relevant nor connected nor related to the issues in the suit. 27 Defendant has reproduced para 2 of plaint whereby reference of Mr. O.P. Aggarwal is made. Defendant has also referred to contradictions in statement of the plaintiff when he was crossexamined and stated that he had received the amount paid by the defendant company but has submitted that the CS No. 184/2011 P 10 of 14 : 11 : same was made by Mr. O.P. Aggarwal for paintings sold by Mr. Shanti Dave whereas Mr. Shanti Dave stated in his crossexamination that he never sold the paintings to Mr. O.P. Aggarwal. The said contradiction, if any, in my opinion, does not in any manner effect the defence of the defendant. If it has any repercussions, the same is likely to effect, if at all, the case of plaintiff. 28 Defendant has referred to judgment of Biswanath Vs. Sachidanand, AIR 1971 SC 1949, where it was held "That the manner in which the appellant could obviously challenge this letter was examining Swamji himself as a witness. Instead of examining Swamiji as a witness, the appellant adopted the procedure of making an application to the High Court to summon him and examine him as a Court witness. That request was first put forward at a very early stage before examination of witnesses of parties had commenced. The Court rightly held that it was too early a stage for the Court to come to a finding whether the examination of Swamiji as a Court witness was necessary. Such an opinion could only be formed after evidence of parties was over. The appellant was, therefore, directed to move the application at the appropriate stage. Thereafter, evidence of both parties was recorded and the appellant did not examine Swamiji as his witness. He renewed the request for his examination as a court witness after closing his evidence. The Court, in our opinion, quite correctly took the view that it was open to the appellant as well as the respondent to examine Swamiji as his witness and when both of them failed to produce hims CS No. 184/2011 P 11 of 14 : 12 : as a witness, there is no reason why the Court should summon him as its own witness. Ld. Counsel appearing for the appellant argued before us that the appellant had sufficient justification for not examining Swamiji, because the appellant had made an allegations that he was in collusion with Ram Chandra Sharma and further because the request of the appellant to examine Swamiji as a court witness was refused after the appellant had closed his evidence. Neither of the two reasons is adequate to explain the omission on the part of the appellant. A mere suggestion made as a guesswork that there was collusion between Swamiji and Ram Chandra Sharma were in anyway great friends or that Ram Chandra Sharma had some influence on Swamiji as a result of which he could induce him to collude and write this letter at that early stage in January, 1969 in advance of the election. In fact, whatever evidence there is on the record points to a closer association between the appellant and Swamiji than any association between Ram Chandra Sharma and Swamiji. So far as the second ground for nonexamination is concerned, it was the appellant's own fault that he did not examine Swamiji at the earlier stage before closing his evidence. In any case, he had the alternative that, when the Court refused to examine Swamiji as a court witness, he could have made a request to the Court to permit him to summon and examine Swamiji as his own witness; but no such request was made to the Court. In these circumstances, the fact that the appellant did not try to give the only possible evidence which he could to challenge the authenticity and genuineness of this letter justifies the conclusion that this letter was sent by CS No. 184/2011 P 12 of 14 : 13 : Swamiji on 2nd January, 1969 to Ram Chandra Sharma as stated by the letter". 29 In my considered opinion, the said judgment does not apply to the facts of the case. Defendant all along has taken a defence that the payments which were received by the plaintiff were made towards consideration for purchase of suit property and plaintiff in his cross examination had stated that he had received the payment not towards sale of the suit property rather the payment was made by Mr. O.P. Aggarwal for paintings sold by Mr. Shanti Dave. The cross examination of plaintiff was conducted as early as on 08/10/2010 and 15/11/2010. It was at that stage that the defendant should have included name of Mr. O.P. Aggarwal in the list of witnesses to prove the said statement to be wrong. The defendant had sufficient time and opportunity to summon said Mr. O.P. Aggarwal as a witness if it was aggrieved by any averments or contradictions. Rather defendant had moved an application u/o 6 Rule 16 CPC for striking of para 2 of plaint and para 2 of affidavit of evidence of plaintiff as the defendant had averred that the averments made and / or allegations made against the said Mr. O.P. Aggarwal are unnecessary and not connected to the matter in issue. The said application was dismissed. 30 Defendant has submitted that it is an appropriate stage to file the application as Mr. Shanti Dave in his cross examination has stated that he has never sold the paintings to Mr. O.P. Aggarwal. The said statement in my opinion CS No. 184/2011 P 13 of 14 : 14 : does not effect and is not relevant with respect to defence of the defendant or even with respect to issues before the court in the present matter. 31 In view of the observations made herein, none of the judgments referred or relied by the defendant is relevant to the facts of the case and I find no ground to summon Mr. O.P. Aggarwal, who admittedly is not a party to the suit and reference to whom has been admitted to be of no relevance nor connected nor related to the issues in the suit.
32 In view of observations made herein, the present application is dismissed subject to cost of Rs.5,000/ to be paid to the plaintiff. 33 To come up for final arguments on 28/08/2012 and 29/08/2012. Dictated and announced in the open court on 24.08.2012 (Dr. Neera Bharihoke) ADJI(South) Saket Courts 24.08.2012 CS No. 184/2011 P 14 of 14