Delhi District Court
Shahir Ali vs Bhawna on 4 May, 2023
BEFORE THE COURT OF SH. SURINDER S. RATHI, DISTRICT JUDGE
(COMM.)03 SHAHDARA, KARKARDOOMA, DELHI.
CS (COMM) 198/21
Shahir Ali
Proprietor of Proprietorship
of M/s Sana Silk
Office At : 12-A/157, Old No. 121/A-56,
3rd Floor, Khasra No. 256,
Gali No. 13, Vijay Mohalla, Moujpur
Delhi-110053
......Plaintiff
Versus
Bhawna
Proprietor of Proprietorship
of M/s Bhawna Sales Corporation
At : E2/1, Krishna Nagar,
Delhi
......Defendant
Date of Institution : 01.04.2021
Date o final argument : 04.05.2023
Date of judgment : 04.05.2023
Decision : Dismissed
SUIT FOR RECOVERY OF Rs. 5,78,320/- (RUPEES FIVE LACS
SEVENTY EIGHT THOUSAND THREE HUNDREN TWENTY ONLY)
JUDGMENT
1. This suit has been filed by plaintiff against the defendant for recovery of Rs.
5,78,320/- (no interest is claimed). The suit was initially filed under Order 37 CPC but was treated as ordinary on the request of the counsel for plaintiff on 01.04.2021.
2. Plaintiff's case :-
Case of the plaintiff as per plaint & evidence led is that he is in the business of ready made garments namely Sherwani and Kurta in the name and style of M/s Sana Silk, as its Proprietor. He has business relations with the CS No. 198/21 SAHIR ALI VS BHAWNA 1/13 defendant Bhawna, Proprietor of M/s Bhawana Sales Corporation since 2018. She approached the plaintiff on 14.10.2018 for purchase of ready made garments from the plaintiff company. Goods were sold by seven invoices issued between 14.10.2018 and 20.09.2019. Ledger account was maintained. After the goods were supplied, part payments were made but there was a debit balance of Rs. 5,78,320/- as on 04.10.2020. When the dues were not paid back by the defendant, plaintiff was constrained to issue legal demand notice dated 14.01.2021 which was neither replied nor complied the legal demand notice. The plaintiff approached the Shahdara, DLSA for 'Pre institution Mediation' under Section 12A of Commercial Court Act, 2015 where defendant did not participate and non-starter report dated 04.03.2021 was issued followed by the suit in hand was filed on 01.04.2021 with following prayers;
Prayers :-
a) Pass a decree of recovery of Rs. 5,78,320/- in favour of plaintiff and against the defendant.
(b) Court fees, cost of suit and advocate fees and other costs, charges and expenses incurred by the plaintiff may also kindly be allowed.
(c) Pass any other or further order, which the Hon'ble Court may deem fit and proper in favour of the plaintiff and against the defendant, in the interest of justice.
3. Summons of the suit was served upon the defendant on 07.12.2021 and appearance was entered on 15.12.2021. Detailed written statement was filed by the defendant on 17.05.2022. The delay was condoned subject to cost.
4. Defendant's case :-
Case of the defendant as per written statement & evidence led is that Plaintiff has not approached the Court with clean hands and suppressed material facts. It is accepted that defendant did purchase goods from the plaintiff worth 12,61,748/- between 14.10.2018 and 20.10.2019 against invoices but claimed that all the payments stood paid by way of cheques and cash. List of purportedly mode payments by way of cash and cheque were CS No. 198/21 SAHIR ALI VS BHAWNA 2/13 incorporated in the WS. Defendant has also placed on record her own ledger in support of a plea. In her reply on merits, she has accepted that plaintiff is doing business of ready made garments and that she had business relation with plaintiff since 2018. The factum of purchases made by her, from the plaintiff is also admitted. However, she denied as on 04.10.2020, there was a debit balance of Rs. 5,78,320/-. She denied that plaintiff requested her to make these payments or that she continued to defer the payment in the name of financial crises. The defendant has not denied that the factum of receipt of legal notice dated 14.01.2021, however, she stated that its contents are wrong. Admittedly, no reply to the said notice has been sent by her. Receipt of pre-institution mediation proceedings under Section 12-A of Commercial Court Act is also not denied. No reason specified as to why she did not participate there. She has accepted all the seven invoices. The factum of receipt of legal notice is also accepted. Likewise, other documents were also not denied, there is a evasive denial to the ledger statement maintained by the plaintiff. With these pleas, defendant prayed for dismissal of this suit.
5. Perusal of record reveals that affidavit of admission / denial of document was not prepared by the defendant as per Order 11 Rule 4 (2) of CPC as per amended CPC. As per Order 11 Rule 4 CPC defendant was supposed to file affidavit of admission and denial of plaintiff's documents clearly explaining his position qua each document by specifically referring to:
(i) correctness of contents of a document;
(ii) existence of a document;
(iii) execution of a document;
(iv) issuance or receipt of a document;
(v) custody of a document.
6. Upon completion of pleadings, following issues were identified by this Court on 10.11.2022 :-
Issues :-
CS No. 198/21 SAHIR ALI VS BHAWNA 3/13
(i) Whether plaintiff is entitled to recovery of Rs. 5,78,320/- ?(OPP)
(ii) Relief
7. Evidence in this matter was recorded before Local Commissioner by Sh. Pulkit Krishnatray as per under mentioned protocol designed under Order 18 Rule 4 CPC and Order 15A Rule 6(l) CPC applicable to the Commercial Suit "Protocol for Recording of Evidence before Court Commissioner appointed by District Judge, Commercial Court, 2022"
Part - 1 Preliminary
1. Short title- This Protocol is titled "Protocol for Recording of Evidence before Court Commissioner appointed by District Judge Commercial Court 2022."
2. Statutory Provision- This protocol is prepared as per Order 18 Rule 4 CPC and Order 15A Rule 6(l) CPC as applicable to Commercial Court.
3. Court- Whenever the term 'Court' appears in this Protocol it should refer to Commercial Court as defined under Section 2(b) of Commercial Court Act 2015.
Part - 2 Preparation for Assignment
4. Recording of evidence in Commercial Cases- Recording of evidence in Commercial Cases may be carried out before the Court Commissioner.
Explanation: For reasons to be recorded, Court may retain the case for recording of evidence before the Court.
5. Appointment of Court Commissioner- As per the Protocol, on the first Case Management Hearing when the issues are identified, the Court may pass an order for appointment of Court Commissioner.
6. Copy of order be shared with parties and Court Commissioner- Copy of the order of framing of issues, appointment of Court Commissioner and the schedule of recording of evidence shall be supplied to the parties as well as the Court Commissioner.
Part - 3 Recording of Evidence
7. Filing of list of witnesses- Both sides shall file list of witnesses preferably within one week but not later than 15 days of identification of issues before the Court while sharing an advanced copy thereof with the opposite party.
8. Order of assignment of Case to the Court Commissioner- While assigning the case, following aspects shall be complied :
(i) Schedule of evidence- Recording of evidence shall start within two weeks of identification of issues.
Evidence shall continue on day to day basis, till conclusion. Any alteration in schedule for recording of evidence, if needed, shall be decided by the Court Commissioner as per convenience of all concerned, as far as possible. However, entire evidence shall be concluded within Eight weeks of initiation.
(ii) Judicial File- Judicial file shall not be sent or summoned for the purpose of recording of evidence by the Court Commissioner.
(iii) Examination-in-Chief- An advance copy of examination in chief by way of affidavit shall be supplied to opposite party preferably one week in advance. However, no adjournment shall be granted in case of non-supply of advance copy.
(iv) Production of documents for cross-examination- In case the opposite side is desirous of production of any document by the witness or any other entity for the purpose of cross-examination, an application requesting the same shall be moved well in advance before the Court.
Part - 4 Duty of Court Commissioner
9. Recording of evidence by the Court Commissioner-
(i) Place and Time- Court Commissioner shall record evidence either in Lawyer's chamber, or Judges/Bar Library, Court Room or any other public place within the Court Complex as mutually agreed by all concerned. Evidence shall be recorded between 10.00 AM to 5.00 PM. It can carry on beyond 5.00 PM as well in case both parties agree. It can be recorded even on a holiday if all the stakeholders are comfortable and agree to the same.
(ii) Chronology of recording- Court Commissioner shall proceed to record the examination by first recording the deposition of litigating party before examining additional summoned witnesses.
(iii) Oath to witnesses- Court Commissioner shall administer oath to the witnesses under examination as a delegatee of the Court as per Oaths Act, 1969.
CS No. 198/21 SAHIR ALI VS BHAWNA 4/13
(iv) Recording of evidence- The evidence shall be preferably typed on a computer but can also be recorded by hand neatly.
(v)Time frame- Court Commissioner shall conclude the recording of evidence, as early as possible, but not later than eight weeks of assignment of a case. In case, for any reason the parties are unable to adhere to the time schedule, extension can be sought from the Court.
(vi)Comfortable sitting space- Witnesses and their Counsel shall be provided comfortable sitting space by the Court Commissioner.
(vii)Exhibition of documents- Court Commissioner shall exhibit all the documents sought to be proved by a party on record. In case of any objection to exhibition of the documents by either side, the objection shall be recorded in some detail and left open with an assurance that mere marking of such exhibits will not be treated as conclusive proof thereof and that admissibility of such document shall be decided by the referral Court at final stage.
(viii)Original documents to be retained by parties- Court Commissioner shall make an observation in the record of evidence of all original documents produced and shall sign the exhibits with an endorsement OSR (original seen and returned) wherever necessary. If a party has filed original documents alongwith pleadings in Court, the same can be taken back as per rules for the purpose of recording of evidence before the Court Commissioner.
(ix)Language- Recording of evidence shall preferably be carried out in English or Court language, as the case may be, unless requested by the parties otherwise.
(x)Adjournments- Once started, the cross-examination shall preferably concluded on the same day or continue on day-to-day basis. In case of any hardship viz. ill health etc. the case can be deferred but preferably for a day or two but not later than a week.
In case an evidence schedule is fixed and adjournment is sought by the opposite side, i.e the side other than who is leading evidence, without 24 hour advance notice.
Explanation: In case a witness scheduled to be examined or under examination is reported to be unwell or unavailable, the party leading the evidence shall produce the next witness in line in the list for recording of evidence.
(xi)Recording of objections- All the objections raised during cross-examination/reexamination shall be recorded in the deposition under title objections and shall be left open for the decision of the Court at the stage of final arguments. Witness shall not refuse to answer the question asked.
(xii)Questions to be allowed- In case Court Commissioner finds any question not related to the fact and issue, he shall record his objection but shall allow the question to be put and witness must answer.
(xiii)No third person intervention- Court Commissioner shall ensure that the witness is not assisted by his Counsel or any other person while under examination in answering the questions.
(xiv)Recording of demeanour of witness- Court Commissioner shall record the demeanour of the witness wherever it is found pertinent and necessary for sharing with the Court.
(xv)Copy of evidence- All parties shall be provided uncertified electronic/hard copy of the evidence recorded, free of cost by Court Commissioner.
(xvi)Safe keeping of original deposition- Court Commissioner shall keep the original depositions in his safe custody till such time they are filed in the Court in original upon completion of each witness individually.
(xvii)Miscellaneous proceedings- Court Commissioner shall maintain a miscellaneous proceeding sheet for each day of work and shall submit it in the Court at the time of submission of final report. (xviii)Hostile Witness- In case a witness is sought to be declared hostile, then Court Commissioner shall refer both the parties to Court at the earliest and the Court shall decide the issue within three days.
Part - 5 Miscellaneous
10. Summoning of Witness-
(i)Summons from Court- In case a litigating party is desirous of summoning a person for deposition or production of documents, it shall obtain summons from the Court with an endorsement that such person shall appear before the address of Court Commissioner on scheduled date, time and place.
(ii)Diet Money- Diet money shall be paid to such witness by the party desirous of summoning as per rules.
11. Advisory to Court Commissioner- While recording the evidence on commission, the Court Commissioner shall ensure the following:
(i)Impartial- Court Commissioner shall conduct himself in an impartial way and behave in an indiscriminate manner while recording of evidence.
(ii)Polite- Court Commissioner shall be polite with the witness and other stakeholders while recording of evidence.
(iii)Confidentiality- Court Commissioner shall maintain confidentiality during the whole process.
(iv)Keeping professional distance- Court Commissioner shall not solicit professional work from the parties.
(v)Integrity- Court Commissioner shall not accept remuneration or any favour in cash or kind from the parties over and above the honorarium fixed by the Court.
(vi)Non-judgmental- Court Commissioner shall not criticize the professional conduct of lawyers and litigating parties on their understanding of law.
(vii)Punctuality- Court Commissioner shall adhere to time schedules and shall not make excuses like being engaged in some personal or Court work etc. CS No. 198/21 SAHIR ALI VS BHAWNA 5/13
(viii)Coordination- In case of any unforeseen circumstances warranting change of dates of hearing, for his own case or the request of other side, he shall apprise the other side in advance via phone call, email, SMS, Whatsapp Group etc..
(ix)No third party sharing- Court Commissioner shall not allow the deposition to be inspected by any third party and shall not share a copy thereof with any stranger without permission of the Court.
(x)Inspection- Court Commissioner shall allow any party to inspect the recorded proceedings only in his presence.
(xi)Recusal- In case either of the parties or Counsel for the parties are related or closely known to Court Commissioner, he/she shall recuse self from the case and inform the referral Court.
12. Remuneration of Court Commissioner -
(i)Remuneration- In terms of Order 18 Rule 4 of the Code read with Order 15 Rule 2(l) and Rule 2(o) of the Code, Court Commissioner shall be paid remuneration for the work carried out.
(ii)Mode of payment- Such remuneration shall be paid by the party directly for the work carried out by way of cash, UPI, Bank Transfer, cheque or draft against due receipt.
(iii)Cost to parties- Each party shall individually bear the cost incurred in leading its evidence.
(iv)Fee to be paid- Remuneration fee for recording of evidence is fixed at Rs.10,000/- per witness.
(v)Court Commissioner shall record the Evidence himself and in case the Stenographer services are taken it can either be arranged by a litigating party on its own cost or in case the same is arranged by Court Commissioner, then the actual cost of typing shall be reimbursed by the party to the Court Commissioner.
(vi)Litigation Cost- Expenditure incurred in recording of evidence shall be redeemable as cost of litigation at the end of the suit.
13. Judicial Intervention during recording of evidence-
(i)Parties to cooperate- It is expected that both the sides will cooperate with Court Commissioner as well as with each other in recording of evidence and carry out proceedings in a cordial manner.
(ii)Dissolution of hindrances- In case of any conflict resulting into hindrance recording of evidence, it shall be resolved amicably by the parties at their own level with the active help of the Court Commissioner.
(iii)Court intervention- However, in case of any unforeseen situation requiring judicial intervention, Court Commissioner shall fix date and time for joint appearance of both sides before the Court for removal of any such impediment.
14. Miscellaneous Applications-
(i)Moving the application- In case either of the parties is desirous of moving any miscellaneous application viz. amending of pleadings, interim injunction etc. it shall share an advance copy with the opposite side and reply thereof, if any, shall be filed and shared within seven days.
(ii)Date of hearing- Upon receipt of reply, both the sides shall get the application fixed for disposal in the Court with the help of Reader of the Court and shall not wait till next date fixed for hearing. All such miscellaneous applications shall be registered, numbered and indexed separately.
(iii)Evidence not to be stalled- It is clarified that, unless Court Commissioner is of the view that the interim application moved by either of the parties is such that evidence cannot be recorded before its disposal, the recording of PE/DE shall continue unabatedly.
Plaintiff's evidence :-
8. To prove his case, plaintiff examined himself as PW-1 Sahir Ali vide his evidence affidavit Ex. PW1/1, who deposed on the lines of the plaint and exhibited the following documents :-
(i) Registration Certificate is Ex. PW1/A.
(ii) invoices bearing No. 003 is Ex. PW1/B.
(iii) invoices bearing No. 004 is Ex. PW1/C.
(iv) invoices bearing No. 036 is Ex. PW1/D.
(v) invoices bearing No. 037 is Ex. PW1/E.
(vi) invoices bearing No. 038 is Ex. PW1/F.
(vii) invoices bearing No. 039 is Ex. PW1/G.
(viii) invoices bearing No. 040 is Ex. PW1/H.
(ix) legal notice is Ex. PW1/I.
(x) Speed post receipt is Ex. PW1/J.
(xi) Tracking report is Ex. PW1/K.
(xii) Non-starter report is Ex. PW1/L. CS No. 198/21 SAHIR ALI VS BHAWNA 6/13
(xiii) Ledger of the defendant is Ex. PW1/M. He was cross examined at length by Ld. Counsel for defendant, wherein, he stated that he is in the business for the last 6-7 years. He stated that all the payments which he received from the defendant only by way of cheques. He could not remember of his turnover to 2017-18 to 2021-22. He stated that he is income tax payee. He accepted the he has not filed year wise ledger of defendant maintained by him. He stated that he cannot read and write English. He accepted that he received a sum of Rs. 52,932/- and 1,95,410/- on 11.02.2020 and 22.02.2020. He accepted that he received Rs. 2 lacs by way of cheque on 19.01.2019, Rs. 1,51,360/- by cheque on 28.02.2019 and another payment of One lac by way of cheque on 27.03.2019. He accepted that despite receiving above, Rs. 4,51,360/- from defendant, he neither mentioned in the ledger nor in text of the plaint. He did not bring the Income Tax record under the pretext of his CA was changed. Even accepted the suggestion of counsel for defendant that the ledger account was maintained by him qua the business carried out by the defendant was not correct. However, he denied that the he received cash payments from the defendant.
Thereafter, plaintiff evidence was closed.
Defendant's evidence :-
9. To prove her case, defendant examined DW-1 Nitin Sharma vide his evidence affidavit Ex. DW1/A, who deposed on the lines of the WS and stated that the cash payment of Rs. 1,26,950/- was made in 14 tranches to the plaintiff on behalf of the defendant firm in the presence of their employee Ms. Jaya Bisht but reference of this payment was concealed by the plaintiff in her ledger and exhibited the following documents :-
(i) Print out of Ledger for the period 01.04.2018 to 31.03.2019 and 01.04.2019 to 31.03.2022 (colly) is Ex. DW1/1 (colly).
(ii) Bank statement for the period from 07.01.2019 to 21.01.2019, 22.02.2019 to CS No. 198/21 SAHIR ALI VS BHAWNA 7/13 31.03.2019 and 01.02.2020 to 29.02.2020 is Ex. DW1/2 (colly). He was cross examined at length by Ld. Counsel for plaintiff, wherein he stated that his wife Bhawana is doing business since 2008 from a shop at Pratap Gali, Gandhi Nagar alongwith 7-9 employee. He stated that he manages the business with his wife. He accepted that ledger Ex. DW1/1 does carry a reference of specific voucher with individual number against each cash payment but no voucher has been filed on record. However, he claimed that the cash payment were duly entered in the ledger and in the GST portal. No printout of GST portal was filed. He accepted that this ledger Ex. DW1/1 was not attested by his CA. He accepted that bank statement filed by him does not bear the seal of the bank.
10. DW-2 Ms. Jaya Bisht was also examined, wherein she stated that she was working with the defendant since 2017. She reiterated that cash payments were made by DW-1 on behalf of defendant to the plaintiff in her presence. She stated that defendant is not liable to pay any money to the plaintiff.
In her cross examination, she stated that she is a trained accountant. No acknowledgement or receipt were obtained qua payments made to the plaintiff by way of cheqyes or cash. She denied that no payments were made in her presence. As per her, defendant, used to come to the shop regularly.
Thereafter, defendant evidence was closed.
Arguments :-
11. I have heard final arguments advanced by Sh. Kapil Singhal, Ld. Counsel for plaintiff and Sh. Ashwani Kumar, Ld. Counsel for defendant. I have also gone through the case file carefully.
Issue-wise finding :
Issue No. 1 : Whether plaintiff is entitled to recovery of Rs. 5,78,320/- ?
(OPP)
CS No. 198/21 SAHIR ALI VS BHAWNA 8/13
12. At the outset, it is appropriate to cull the admitted factual matrix of the case.
It is admitted case of both the sides that they were doing business since 2017 during which plaintiff sold ready made garments to the defendant vide seven invoices. It is not pleaded case of either of the side that the goods were not delivered or they were returned by the defendant. Issuance and receipt of legal demand notice E.x PW1/I is also accepted and admittedly same is not replied. It is admitted that over and above the plaintiff's ledger Ex. PW1/M, he has received a sum of Rs. 4,51,360/- by way of cheque which was not reflected in the ledger.
13. While opening his submissions, it is argued by Ld. Counsel for plaintiff that as per invoices and ledger account filed by the plaintiff on record and that a decree may be passed in favour of plaintiff for Rs.1.26 lacs as against the suit amount of Rs. 5,78,320/-. It is interesting to observe that from the date of filing of the suit in hand i.e. 01.04.2021 till date defendant has not made any payment to the plaintiff but still the plaintiff through his Ld. Counsel has scaled down his suit claim from Rs. 5,78,320/- to Rs. 1.26 lacs. As discussed detailed supra, this change of stances is triggered by plaintiff per se contrary to his statement of truth filed in the Court with the suit as also his affidavit Examination in chief Ex. PW1/1. During his cross examination, PW-1 was confronted with his own Bank statement Ex. PW1/D1 wherein he accepted that despite receiving Rs. 4,51,360/- from the defendant by way of cheque, he did not make a credit entry into his ledger and went on to file a suit for recovery of Rs. 5,78,320/- as against actual debit balance of Rs. 1.26 lacs.
14. This act of plaintiff of repeatedly swearing of false affidavits per se amounts to commission of offence of perjury and calls action against him under Section 340 Cr.P.C for prosecuting him under Chapter 11 of Indian Penal Code titled 'False Affidavit and Offence against Public Justice' including CS No. 198/21 SAHIR ALI VS BHAWNA 9/13 offence of giving false affidavit punishable under Section 193 IPC, using Evidence known to be False punishable under Section 196 IPC and Using as True Certificate known to be false punishable under Section 198 IPC & like. As such, separate notice under Section 340 Cr.P.C is being issued to the plaintiff in this regard to submit his reply in writing supported with an affidavit within one week as to why the complaint not be made against him.
15. It is a settled legal proposition that a person who seek equity shall do equity.
A litigant, who has sworn a false affidavit with the aim of throwing dust in the eyes of the law does not deserve any relief. Although as per Section 103 of Evidence Act, onus of proving that Rs. 1.26 lacs was paid by defendant to the plaintiff in cash but once the plaintiff accepted in his cross examination that ledger account maintained and filed by him in the Court Ex. PW1/M is maintained by him incorrectly, it is quite probable that he did not make credit entries of cash receipt made to him stated by DW-1 and DW-2 in their deposition before the Court.
16. For the forgoing reasons, on account of gross act of plaintiff of swearing a false affidavit in the Court and filing a suit in the Court for recovery of amount which was not due is unpardonable and cannot be ignored. Referring the suit in the Court of District Judge, Commercial Court even though as per correct accounts claimed payable amount is only of Rs. 1.26 lacs which is much less than specified value as per Section 2 (1) (i) of Rs. 3 lacs. This above issue is answered in favour of plaintiff and against the defendant.
In case titled Ramrameshwari Devi Vs. Nirmala Devi, 2011 Latest Caselaw 444 SC the Apex Court while dealing with the menace of frivolous litigants observed that the courts shall impose realistic costs on litigants who raised frivolous plea of delay trials. The relevant paras of the same are reproduced as under:
"52. The main question which arises for our consideration is whether the prevailing delay in civil litigation can be curbed? In our considered opinion the existing system can be CS No. 198/21 SAHIR ALI VS BHAWNA 10/13 drastically changed or improved if the following steps are taken by the trial courts while dealing with the civil trials.
1. Pleadings are foundation of the claims of parties. Civil litigation is largely based on documents. It is the bounden duty and obligation of the trial judge to carefully scrutinize, check and verify the pleadings and the documents filed by the parties. This must be done immediately after civil suits are filed.
2. The Court should resort to discovery and production of documents and interrogatories at the earliest according to the object of the Act. If this exercise is carefully carried out, it would focus the controversies involved in the case and help the court in arriving at truth of the matter and doing substantial justice.
3. Imposition of actual, realistic or proper costs and or ordering prosecution would go a long way in controlling the tendency of introducing false pleadings and forged and fabricated documents by the litigants. Imposition of heavy costs would also control unnecessary adjournments by the parties. In appropriate cases the courts may consider ordering prosecution otherwise it may not be possible to maintain purity and sanctity of judicial proceedings.
4. The Court must adopt realistic and pragmatic approach in granting mesne profits. The Court must carefully keep in view the ground realities while granting mesne profits.
5. The courts should be extremely careful and cautious in granting ex-parte ad interim injunctions or stay orders. Ordinarily short notice should be issued to the defendants or respondents and only after hearing concerned parties appropriate orders should be passed.
6. Litigants who obtained ex-parte ad interim injunction on the strength of false pleadings and forged documents should be adequately punished. No one should be allowed to abuse the process of the court.
7. The principle of restitution be fully applied in a pragmatic manner in order to do real and substantial justice.
8. Every case emanates from a human or a commercial problem and the Court must make serious endeavour to resolve the problem within the framework of law and in accordance with the well settled principles of law and justice.
9. If in a given case, ex parte injunction is granted, then the said application for grant of injunction should be disposed of on merits, after hearing both sides as expeditiously as may be possible on a priority basis and undue adjournments should be avoided.
10. At the time of filing of the plaint, the trial court should prepare complete schedule and fix dates for all the stages of the suit, right from filing of the written statement till pronouncement of judgment and the courts should strictly adhere to the said dates and the said time table as far as possible. If any interlocutory application is filed then the same be disposed of in between the said dates of hearings fixed in the said suit itself so that the date fixed for the main suit may not be disturbed.
54. While imposing costs we have to take into consideration pragmatic realities and be realistic what the defendants or the respondents had to actually incur in contesting the litigation before different courts. We have to also broadly take into consideration the prevalent fee structure of the lawyers and other miscellaneous expenses which have to be incurred towards drafting and filing of the counter affidavit, miscellaneous charges towards typing, photocopying, court fee etc.
55. T he Apex Court observed that the other factor which should not be forgotten while imposing costs is for how long the defendants or respondents were compelled to contest and defend the litigation in various courts. The appellants in the instant case have harassed the respondents to the hilt for four decades in a totally frivolous and dishonest litigation in various courts. The appellants have also wasted judicial time of the various courts.
(Emphasis supplied)
In case titled Maria Margarida Sequeria Fernandes Vs.
CS No. 198/21 SAHIR ALI VS BHAWNA 11/13
Erasmo Jack de Sequeria, 2012 Latest Caselaw 186 SC
Hon'ble Apex Court thus observed:
"False claims and false defences
False claims and defences are really serious problems with real estate litigation, predominantly because of ever escalating prices of the real estate. Litigation pertaining to valuable real estate properties is dragged on by unscrupulous litigants in the hope that the other party will tire out and ultimately would settle with them by paying a huge amount. This happens because of the enormous delay in adjudication of cases in our Courts. If pragmatic approach is adopted, then this problem can be minimized to a large extent.
After discussing Ramrameshwari Devi Judgment (supra) of Hon'ble Supreme Court and highlighting that the costs imposed by the Courts should be in consonance with pragmatic realities must be realistic. The Court imposing the cost should broadly take into consideration the prevalent fee structure of lawyers, expenses the parties must have incurred in defending the case. With these observations Hon'ble Supreme Court imposed a cost of Rs.75 lacs on the 3 litigants to be shared equally @ Rs.25 lacs each.
In Halsbury's Laws of England, (4th Edn.,Vol. 9, Paragraph 38) , there is a brief discussion of when "Abuse of the Process of the Court" may be a punishable contempt. It is said :
" Abuse of process in general. The Court has power to punish as contempt any misuse of the court's process. Thus the forging or altering of court documents and other deceits of like kind are punishable as serious contempts. Similarly, deceiving the court or the court's officers by deliberately suppressing a fact, or giving false facts, may be a punishable contempt."
In Morgan Stanley Mutual Fund Vs. Kartick Das, 1994 Latest Caselaw 336 SC, Hon'ble SC dealt with the issue and with intention to:
"Discourage speculative and vexatious litigation and judicial adventurism. "There is an increasing tendency on the part of the litigants to indulge in speculative and vexatious litigation and adventurism which the fora seem readily to oblige. We think such a tendency should be curbed. Having regard to the frivolous nature of the complaint, we think it is a fit case for award of costs, more so, when the appellant has suffered heavily. Therefore, we award costs of Rs.25,000/- in favour of the appellant."
In case titled as State of Karnataka Vs. All India Manufacturers Organisation, 2006 Latest Caselaw 217 SC, a challenge was laid to a common judgment of the High Court of Karnataka disposing of three public CS No. 198/21 SAHIR ALI VS BHAWNA 12/13 interest litigations whereby a direction was issued to the State of Karnataka to continue to implement a certain project known as the "Bangalore-Mysore Infrastructure Corridor Project". While dismissing the appeals, the Apex Court held that there was no merit in them. It was further directed that:-
"Considering the frivolous argument and the mala fides with which the State of Karnataka and its instrumentalities have conducted this litigation before the High Court and us, it shall pay Nandi costs quantified at Rs.5,00,000/-, within a period of four weeks of this order".
In Kishore Samrite Vs. The State of UP, 2012 Latest Caselaw 606 SC, Hon'ble Supreme Court expounded that:
"As and when the Courts found that a litigating party is abusing the Court process and had approached the Court with unclean hands without disclosing complete facts, they shall be burdened with exemplary and deterrent cost. In the cited case while observing that the petitioner have misused the judicial process, a cost of Rs.5 lacs was imposed."
17. In the light of the above discussions and findings, the present suit is dismissed. A cost of Rs. 3 lacs is imposed upon plaintiff in terms of salutary judgments of Hon'ble Supreme Court of India for filing false record & untrue affidavit to be deposited with Shahdara Bar Association and SBA shall use such funds for organizing Orientation Courses for young Members of the Bar for making them efficient Commercial Court practitioners and for honing their Advocacy Skills as Litigation Lawyers so that Justice Dispensation System is strengthened and Citizens get access to quality and timely Justice.
18.Decree sheet shall be prepared accordingly.
19. File be consigned to Record Room after due compliance.
Announced in the open Court (SURINDER S. RATHI)
on day of 04.05.2023 District Judge/Commercial Court-03
Shahdara District, KKD
CS No. 198/21 SAHIR ALI VS BHAWNA 13/13