Delhi District Court
Memo Of Parties vs Kurimeti Ayyappa. Ld. Counsel For on 24 September, 2011
IN THE COURT OF SH. VIKRAM, CIVIL JUDGE-02, NORTH DISTRICT
TIS HAZARI COURT, DELHI
Suit No. 802/06
Memo of Parties
M/s. Gravity Care Pvt. Ltd.
Regd Office : 1/11, East Patel Nagar,
New Delhi
Workshop at: B-91, Mayapuri Industrial Area
Phase I, New Delhi-110064 Plaintiff ........
Verus
M/s Mega Corporation Ltd.
N-18, (Market), Greater Kailash-I,
New Delhi-110048 Defendant.......
Date of institution of suit :
Date on which judgment was reserved :
Date of announcement of judgment :
SUIT FOR RECOVERY
Judgment
1. A suit was filed on 18.12.01, for recovery of Rs. 2,61,299.00/-, by
plaintiff, a private Ltd. Company incorporated under Companies Act,
against defendant Company. The suit was for recovery of costs of
repairs done by plaintiff company of the fleet of cars, which defendant
company had engaged for providing radio taxi service. The suit was
contested by defendant by filing written statement and it was tried
after framing of issues. Judgment followed on each issues. In the
judgment the issue no. 1, 3 and 4 were decided against plaintiff and
the suit was dismissed. Issue number 1 was "whether the plaint has
been signed & verified and suit instituted through duly authorised
person?" OPP. Issue number 3 and 4 were for plaintiff's entitlement of
recovery and interest on recovery.
2. Findings on these issues were recorded in detail. For issue no. 1
finding came out that plaintiff failed to prove that plaint has been
signed, verified and instituted by duly authorised person. To issue
Suit No. 802/06 (Suit No. 544/05) 1
number 3 and 4, despite the finding of issue no. 1, matter was looked
in and finding was recorded that plaintiff failed to prove that it is
entitled to recovery of any amount from defendant and further entitled
to recover interest on such amount. The suit of plaintiff was dismissed.
3. After dismissal of suit plaintiff preferred appeal. Ld. Appellate
Court, after hearing the parties in appeal remanded the matter back.
The relevant and operating para of order of Ld. Appellate Court
remanding the case back is reproduced here;
"6. the counsel for the appellant has otherwise
contended that, as has been written by him in the
appeal as well that the Trial Court should have given
an opportunity to him on account of the fact that the
suit has not been filed by an authorised person since
the appellant being a company would be able to bring
minute book containing the resolution authorising Mr.
Karan Jain to file the instant suit. Therefore, in all
fairness it appears proper to grant an opportunity to
the appellant to come clean on this aspect. Accordingly,
the case is remanded back to Ld. Trial Court with the
direction that the appellant would be given an
opportunity to lead additional evidence on the limited
aspect of the authority of the person through the suit
was filed since the counsel for appellant has stated that
a wrong authorisation was filed in inadvertently by
him. The respondent would have opportunity to lead
evidence in rebuttal. With above observations, the file be sent back to the Ld. Trial Court."
4. The requirement of bringing this order in the beginning has come as there is an issue raised by counsels for respective parties. The issue is, how much of the finding can be interfered by Trial Court after it receives a file in remand. The contention of counsel for plaintiff is that once a case has come under remand previous funding goes and Suit No. 802/06 (Suit No. 544/05) 2 the Trial court has to give fresh finding on each issue even if the remand is for limited purpose. In support of his contention counsel for plaintiff has placed reliance on AIR 1974 SC 1702 Gogula Gurumurthy and others versus Kurimeti Ayyappa. Ld. Counsel for plaintiff referred to para 5 of the Judgment where it is held that;
5. We consider that when a finding is called for on the basis of certain issues framed by the Appellate Court the appeal is not disposed of either in whole or in part. Therefore, the parties cannot be barred from arguing the whole appeal after the findings are received from the Court of first instance. We find the same view taken in Gopi Nath V. Sat Narain, (AIR 1923 All. 384) where it was held that:
"where an Appellate Court at the first hearing does not decide the case but merely remits certain specific issues, it is open to the Court before which the case comes to disregard the findings on those issues and equally to form its own opinion on the whole case irrespective of any thing that is said in remand order."
It was also held that:
"An order of remanding issues under rule 25 is not a final order. No appeal lies against it. The responsibility for the decree ultimately passed is entirely that of the Court before which the case comes after remand.
5. On the other hand counsel for defendant contended that the order of remand by Ld. Appellate Court was for a limited purpose and the court cannot go beyond that limited purpose. Ld. Counsel submitted that it is not a case where the it was remanded after framing an issue, in fact the remand is for leading additional evidence on an issue which has already been decided. The difference brought by counsel for defendant is that the judgment which is relied by plaintiff Suit No. 802/06 (Suit No. 544/05) 3 is on order 41 rule 25, whereas the present case falls under order 41 rule 23A. Counsel for defendant submitted that under order 41 rule 25 the court may look at the matter afresh but when a case, which has been disposed of on all issues comes under remand, the rule 23A comes into operation.
6. The second contention of counsel for defendant is that since the remand in this particular case is governed by order 41 rule 23A the Trial Court should adhere to the order of Ld. Appellate Court in that very manner to which the case has been remanded. Ld. Counsel for defendant placed reliance on AIR 1977 MP 90, AIR 1987 Raj. 75 and 116 (2005) DLT 283.
7. I have heard the counsel for parties and perused the record.
8. Order 41C.P.C. deals with appeals from original decree. All the rules under this order are made for First Appellate Court. It is necessary to remember here that no rule, except for rule 5 sub rule 2, under this order gives any power to Trial Court. But for the limited purpose of the nature of remand the rules are referred. Neither Rule 23, nor rule 23A or rule 25 describe the power of Trial Court to proceed with a case in any particular manner when it comes on remand. I agree with Ld. Counsel for defendant that this particular case has been remanded under Rule 23 A. Rule 25 is applicable only when the Ld. Appellate Court considers that a Trial Court has omitted to frame an issue and after framing that particular issue(s) findings on that very issue(s) are called by Ld. Appellate Court.
9. Ld. Counsel for plaintiff has mis-cited the judgment, as the judgment is dealing with the power of appellate court to hear the matter on receiving the case after findings on the points raised in remand. It was therefore, held that "when a finding is called for on the basis of certain issues framed by the appellate court the appeal is not disposed of either in whole or in part. Therefore the parties cannot be barred from arguing the whole appeal after the findings are received from court of first instance." ( AIR 1974 SC 1702 Gogula Suit No. 802/06 (Suit No. 544/05) 4 Gurumurthy and others versus Kurimeti Ayyappa). All that is meant by Hon'ble Supreme Court is that after the finding from remand, parties can argue the appeal in whole.
10. I agree with the contention of defendant when it is said that Trial Court cannot go beyond what is required by Ld. Appellate Court, in remand. "The Scope and ambit of Trial Court on a remand if restricted cannot be enlarged" Om Prakash Sharma Versus Raj Rani 116 (2005) DLT 283.
11. In AIR 1987 Rajasthan 75 Chote Lal V. Kalyan Prashad and Others the question was about the jurisdiction of Trial Court after the matter has been remanded to it by the Appellate Court and it was held that;
12. from the aforesaid discussion, it can be said that a remand under O. 41, R. 23-A, C.P.C., can be plain and simple order contemplating re-trial of suit by Trial Court or it may be an order directing the Trial Court to proceed in the suit in a specified manner. When the order of appellate Court falls under first category then the Trial Court can exercise all the powers which it has for the disposal of suit during the original trial. In exercise of the same, it can allow any application for producing further documents or for examining further witnesses and the like but when the remand is with a specified direction for a specific purpose then it is not open to the court to proceed as if there are no restrictions on its powers. It has to act according to specific directions.
11. Therefore, it is well settled that the Court to which the case is remanded has to comply with the order of remand. Acting contrary to the order of remand is contrary to law, Ramabai and others V. Harbilas and others AIR 1997 MP 90.
12. Now the question arises is that whether there was limited Suit No. 802/06 (Suit No. 544/05) 5 remand or open remand. As narrated in beginning the Ld. Appellate Court remanded back the case to provide an opportunity to plaintiff lead evidence to prove that Sh. Karan Jain was authorised to sign, verify and file the plaint. In the Judgment Ld. Appellate Court has not discussed on merits of other issues than the issue of authority of Sh. Karan Jain. Therefore it cannot be said that the remand was made to decide whole case. This case has only been remanded to provide an opportunity to plaintiff to bring evidence to show that Sh. Karan Jain was authorised to sign, verify and institute the plaint. So this is not a case of open remand but that of limited purpose.
13. Therefore the only issue to be decided after fresh evidence is that whether Sh. Karan Jain was authorised to sign, verify and institute the suit, or in other way, whether the suit was signed, verified and filed by duly authorised person.
14. The issue was whether the plaint is signed, verified and instituted through duly authorized person. During the trial plaintiff examined Sh. Karan Jain as PW1 being a director. PW1 produced Ex.PW1/1 which is certificate of incorporation of company and Ex.PW1/2 is the resolution authorizing PW1 to sign and verify the plaint and to file the suit. During his cross examination, PW1 admitted that the board of resolution dated 10.12.2001 i.e Ex.PW1/D1 did not authorize him to file the suit. Said resolution was pertaining to authorization of one Sh. Nischal Jain to appear in court in case of Rawal Apparment, Pvt. Ltd. It was observed that Ex.PW1/2 does not authorize Sh. Karan Jain to institute the suit on behalf of plaintiff company and original minutes book was not produced in which the resolution was recorded. PW1 explained it stating that inadvertently wrong resolution had been filed at the time of filing of suit.
15. Before appellate court this was a stand taken by plaintiff and it was stated by counsel for plaintiff that there was an authorization letter in favour of PW1 but the for the lapse on the part of counsel correct resolution could not be placed on record and instead of that Suit No. 802/06 (Suit No. 544/05) 6 the resolution authorizing another director of the appellant company in respect of some other case was placed on record. As observed earlier this remand was for the purpose of proving authorization in favour of PW1, Sh. Karan Jain, to sign, verify and institute the suit. So the opportunity was afforded to plaintiff to produce authorisation in favour of Sh. Karan Jain.
16. After remand plaintiff produced PW2, Sh. Rishi Jain. PW2 filed his affidavit stating that he is one of the director of plaintiff company and conversant with the facts of the case. PW2 in his affidavit also states that Sh. Karan Jain was one of the director of plaintiff company and by resolution dated 10.12.2001, Sh. Karan Jain was authorized to file the present suit, sign and verify the plaint and depose in this case. PW2 also relied on document Ex.PW1/2, he identified signatures of Sh. Karan Jain in the plaint.
17. PW2 also stated that he could not produce the minute book as the office of plaintiff company in Patel Nagar was sealed by MCD in 2006 and during shifting of the records, the minute book was misplaced. PW2 stated that a fresh resolution was passed by the company on 19.12.2005 that resolution is marked as Ex.PW2/1.
18. Execution of this document was objected by counsel for defendant stating that the Ld. Appellate Court had only directed the plaintiff to place on record the letter of authorization. Counsel for defendant also objected to examination of PW2 as he was not examined earlier. After recording the objection, PW2 was cross examined. PW2 admitted that there was no resolution in his favour before 19.12.2005 authorising him to sign and verify on behalf of the plaintiff company, but stated that being a director of company PW2 is invested with sufficient power to sign on behalf of plaintiff company. To the production of document Ex.PW2/1, counsel for defendant put question whether any minutes of meeting was prepared when this resolution was passed. PW2 admitted that minutes of meeting was prepared but he did not brought the same as the office of the company Suit No. 802/06 (Suit No. 544/05) 7 was sealed by MCD in its drive.
19. As per the order of remand, the opportunity was given to plaintiff to lead additional evidence on the limited aspect of the authority of person through whom the suit was filed. The suit was filed by Sh. Karan Jain. The evidences which are required to decided this issue are the document, authorization letter, minutes of meeting passing the resolution in favour of Sh. Karan Jain etc. PW2 has not produced any new document to show that Sh. Karan Jain was authorized to sign, verify and institute the suit. He is relying on Ex.PW1/2 only. This document had been considered by the then Civil Judge while delivering the judgment. Ex.PW2/1 which is an authority in favuor of PW2 nowhere proves that on 10.12.2001 Sh. Karan Jain was authorized to sign, verify and institute the suit.
20. So far as the proof of authority on the basis of Ex.Pw1/2 is concerned it was held in the judgment passed by the then Cd. Civil Judge that "the execution of Ex.Pw1/2 does not specifically confer authority on Sh. Karan Jain to institute the suit on behalf of plaintiff company nor the Articles of Association of the company have been produced before the Court and it has already observed herein above, even Ex.Pw1/2 does not stands proved in accordance with law."
Since it the remand is for a limited inquiry, in absence of any new document, I cannot sit on review of the issue. The issue had been decided after considering the law and evidence. Despite having opportunity to lead additional evidence plaintiff has not produced the Articles of Association of company to show that Sh. Karan Jain was a director, neither any resolution of board of director is produced. The oral testimony of Pw2 that Sh. Karan Jain was director in the company and the authorisation letter in favour of Pw2 is not sufficient to prove the issue when such fact is required to be proved through Articles of Association showing Sh. Karan Jain as a director of company in the year 2001. even if record of minutes of board meeting was misplaced plaintiff could have produced Articles of Association.
Suit No. 802/06 (Suit No. 544/05) 8Hence, in my opinion plaintiff has failed to prove that plaint has been signed, verified and instituted by duly authorised person. The issue is accordingly decided against plaintiff.
The suit after remand is therefore dismissed.
Announced in the open Court VIKRAM
On 24.09.2011 CJ02 (North)/Delhi
24.09.2011
Suit No. 802/06 (Suit No. 544/05) 9
24.09.20111 Suit No.802/06
Present: None.
Vide separate judgment, suit of plaintiff is dismissed.
Decree sheet be prepared accordingly.
File be consigned to record room.
VIKRAM CJ02 (North)/Delhi 24.09.2011 Suit No. 802/06 (Suit No. 544/05) 10