Delhi District Court
Saran Motors Limited vs Sh. Shankar Dass Gangwani on 27 March, 2012
IN THE COURT OF SH. A.K. CHAWLA : DISTRICT JUDGE
(NORTH) : DELHI
Misc. No: 14/2012
Saran Motors Limited
4042, Janpath
New Delhi ..... Petitioner
Versus
Sh. Shankar Dass Gangwani
98C, DDA Flats MIG
Rajouri Garden, New Delhi ..... Respondents
ORDER
Vide this order, I proceed to dispose off the application filed by the applicantSaran Motors Limited, u/s 24 of the Code of Civil Procedure, hereafter referred to as 'the subject application'.
2. Succinctly stated, the facts relevant for the disposal of the 'the subject application' are that the nonapplicantShankar Das Gangwani has filed a suit for rendition of accounts against the applicant. It was originally filed before the Hon'ble High Court but later transferred to the District Courts, on account of the change of pecuniary jurisdiction M. no. 14/12 Page 1/14 and was at the stage of recording of nonapplicant/plaintiff's evidence, when 'the subject application' came to be filed. By 'the subject application', the applicantdefendant seeks transfer of suit no.
1532/11/86 titled Shankar Das Gangwani vs. Saran Motors Ltd.
pending before the Ld. Civil Judge, to another Court. In sum and substance, it proceeds on the premise that on 17.02.2012, the Ld. Civil Judge passed a premeditated order, coercing the applicant to cross examine the witnesses examined on that day and proceeded further in the matter, inspite of the protests made and without giving any effective hearing to the applicant's Managing Director and not following the dictum of certain judgments, already filed and relied upon by the applicant. In brief, the applicant alleges that the trial court was disregarding the due process of law and hastily passed order dated 17.02.2012 and imposed cost of Rs. 20,000/ which was wholly unwarranted in law and that, impedes the right of defending the suit.
Hence, the application.
3. I have heard the applicant's Managing Director Sh. Ashok Saran and perused the trial court's record.
M. no. 14/12 Page 2/144. Applicantdefendant seeks transfer of the suit from one court to the other, which was filed by the nonapplicant/plaintiff, way back in the year 1986 before the Hon'ble High Court. It is a suit for rendition of accounts and has been at the stage of non applicant/plaintiff's evidence even on 17.02.2012, when the Ld. Civil Judge, referring to the previous proceedings, dismissed the application filed by the applicantdefendant u/s 114 CPC readwith Order 14 & Section 151 CPC, seeking review of the order dated 20.05.2011 passed by Ld. Predecessor, with exemplary costs of Rs. 20,000/. Under what constrained circumstances, the Ld. Civil Judge dismissed the application with exemplary costs, I need not advert to, as the said order speaks itself, and is as under:
"17.02.2012 Present: Ms. Seema, advocate for plaintiff Sh. Ashok Saran, Managing Director of defendant Reply to application u/o 47 CPC files by Ms. Seema. Copy given.
It is submitted by Ms. Seema that defendant is not allowing the matter to proceed and case is pending since 1986 and defendant is filing application after application. Defendant submits that court is under compulsion to give time to read the reply. He submits that matter be adjourned for atleast four days. Court is not inclined to adjourn the case which is one of the oldest case in this court. Defendant/his counsel is supposed to know M. no. 14/12 Page 3/14 merits of his application.
However, in the interest of justice case is passed over for half an hour. It is 11:15 AM. Matter be taken up again at 12:00 noon.
(AJAY PANDEY ) CIVIL JUDGE06, NORTH DELHI/17.02.2012 17.02.2012 File was taken up again at 12:15 pm. It is 12:55 pm now.
Pr: Ms. Seema, advocate for plaintiff Ashok Saran, Managing Director for defendant Arguments on application u/s 114 CPC readwith Order 47 and section 151 CPC for review of order dated 20.05.2011 passed by my learned predecessor, heard.
Written submissions have been also filed by defendant during the course of arguments.
At the end of arguments defendant has filed one page submission which reads as follows:
"Submission to highlight in simplest outline the total absence of judicial due process with total disrespect and disregard of binding judgments of the Hon'ble Delhi High Court and of the Hon'ble Apex Court and of Civil Procedure Code and of Court Fees Act.
It is respectfully submitted THAT THIS HON'BLE COURT:
1. May be pleased to examine whether the requisite Court Fee has been paid by the plaintiff?
2. May be pleased to examine whether the Hon'ble Apex Court Judgments 2008 Rajdhani Law Reporter Kamlesh Babu vs. Lajpat Rai Sharma on M. no. 14/12 Page 4/14 Limitation Act Section 3 has been disregarded?
3. May be pleased to examine whether AIR 1976 Delhi 147 Judgment of Hon'ble Delhi High Court has been disregarded?
4. May be pleased to examine whether Order 7 Rule 11 CPC has been disregarded?
5. May be pleased to examine whether Court Fees Act has been disregarded?
6. May be pleased to examine whether all or any of above being disregarded effectually eliminates validity of the proceedings based on such disregard?
7. May be pleased to bring the proceedings within the discipline of Law and Due process in the interest of Justice and to prevent abuse of process of court by undertaking on the basis of Rational Application of Mind in the Service of Justice as mandated under the Scheme of the Constitution of India and the Oath of Office by virtue of which Judicial Power is granted.
The application has been filed for review of order dated 20.05.2011. Order dated 20.05.2011 was passed by my learned Predecessor disposing three applications including application u/s 3 of the Limitation Act filed by the defendant. Perusal of order dated 20.05.2011 reveals that my learned Predecessor had endorsed the view taken by his Predecessor vide order dated 19.03.05 that issue of Limitation and Court Fees were required to be decided on the basis of evidence.
Vide the impugned order my learned Predecessor further disposed of an application dated 29.10.05 for expunging some alleged structures contained in order dated 29.03.07 through which the defendant was purportedly challenging some order dated 03.12.02 for restoration of suit after its dismissal in default. Vide order dated 20.05.2011 my learned Predecessor also observed that defendant is in a habit of moving application on each M. no. 14/12 Page 5/14 and every date and that the contentions of the defendant have already been dealt by is learned predecessor. Ultimately, vide impugned order my learned predecessor posted the case for payment of cost and for recording cross examination of PW1 on 27.07.2011. After that on 05.07.2011, the present application appears to have been moved.
It is submitted by defendant that order dated 20.05.2011 is not sustainable as the same has been passed disregarding established law and procedure as well as the judgments passed by Hon'ble Supreme court and High Court. During the course of arguments, he appears to be repeatedly using improver language towards the court/order passed by the court like " EK PAISE KA BHI ORDER NAHI HAI YE".
It is submitted by the defendant that court is supposed to deal with each and every arguments raised by defendant and passing of reasoned order is first and foremost requirement of judicial order. He further submits that the case in hand is not maintainable being barred by limitation as well as being not valued properly or the purposes of court fees and jurisdiction. It is also submitted by him that the plaintiff is attempting to evade the court fees and the court is under bounden duty to decide the issues of court fees and limitation. He further submits that he has never delayed the case and the responsibility of failure of the courts to decide the issue on limitation and court fees cannot be fixed upon him and it is because of the latches and inaction on the part of the courts, that the non maintainable suit is pending since 1986.
It is rightly submitted by Ms. Seema and rightly observed in the order dated 20.05.2011 that defendant is in the habit of moving application on each and every date. It is further rightly observed in the order dated 20.05.2011 that the contentions of the defendant have been already dealt by the learned previous predecessor of predecessor of this court.
At the time of framing of M. no. 14/12 Page 6/14 additional/amended issues the issue regarding payment of court fees was discussed by the Hon'ble Single Judge of the Hon'ble High Court in order dated 22.03.95. Thereafter, in the order dated 19.03.05, the issue was again discussed on an application moved by the defendant and it was held that the said issue as well as issue of limitation can only be decided after leading the evidence by the parties. Thereafter, application for review of order dated 19.03.05, moved by the defendant was dismissed on 08.05.07 with cost of Rs. 1000/. Thereafter, another application for review of the order dated 08.05.07 was dismissed on 19.10.2010 with costs of Rs. 1000/ and the case was fixed for entire PE as well as for payment of cost. Thereafter, three applications were dismissed by my learned predecessor Sh. N.K. Malhotra vide impugned order dated 20.05.2011.
This court do not find any illegality or infirmity on the face of the order dated 20.05.2011, which calls for recall of the order or any part of it. It appears that the defendant is bent upon to delay the proceedings of the case and for doing so he do not hesitate even to make allegations upon the court. It is to be noted that when the application dated 20.05.2011 was dismissed by my learned predecessor, another application for review of order dated 20.05.2011 was moved by the defendant on 05.07.2011. While the Ld. Predecessor was seized of the matter and the application dated 05.07.2011, defendant alleged that he could not get justice from the Ld. Predecessor of this court and Ld. Predecessor recused himself and the case was transferred by the Ld. District Judge to this court.
Prior to this the defendant also made allegations of prejudices and bias against the then Civil Judge Ms. Smita Garg on 18.05.06 and she also requested the Learned District Judge at that time to transfer the case from her court.
The conduct of the defendant is sufficient to reflect that he is not allowing the case to proceed further and the courts are compelled to decide his frivolous M. no. 14/12 Page 7/14 application after application and whenever any court intends to proceed with the matter he do not even hesitate to make allegations against the court and to attempt the get his case transferred.
This court do not find any justification for review of the views expressed by the learned predecessors about the decision on issues of court fees and limitation.
As per the plaint the plaintiff is seeking rendition of accounts since 1966 till he was relieved from his duties on 29.08.1985. This suit was filed on 13.11.1996. Even if for the sake of arguments it is presumed that the part of the claim of plaintiff is barred by time, it cannot be presumed without evidence that the entire suit is barred. Hence, it is rightly observed by the Learned Predecessors that the issue of limitation can only be decided after leading of evidence by the parties. Similarly it has been consistently observed by the Learned Predecessors that since the amount which might be recoverable by the plaintiff in the suit is not certain, it would be proper to decide the court fees and the issue related to the same after leading of the evidence by the parties.
This court do not find any infirmity, illegality or error in the orders passed by my learned predecessors. The application is a device to delay and derail the case from its track. Such tendency of the litigants must be curbed. Application deserves to be dismissed with exemplary cost. Application is accordingly dismissed with cost of Rs.20,000/.
Witness Shankar Dass Gangwani whose affidavit has been filed is present in the Court. The court has asked the defendant whether he would cross examine the plaintiff today as he being a senior citizen about 80 years is present in court since morning and the case has been fixed for his cross examination a number of times. Defendant submits that the court has not discussed his arguments and has not referred to his judgment.
At this stage he has submitted photocopy of M. no. 14/12 Page 8/14 some judgment titled as Jagdish Rai & Ors. Vs. Sant Kaur, AIR 1976 Delhi 147 He is again asked whether he is ready to cross examine the plaintiff. He starts shouting at the court and states that the court is bullying him. He submits that he is going to appeal against the order.
Though no ground for adjournment is made out and no adjournment is sought by the defendant and the court is of the opinion that defendant is intended to further delay the case, however, in the interest of justice the matter is adjourned as one last and final opportunity to the defendant to cross examine the plaintiff which shall be subject to payment of entire cost imposed previously as well as today. It is made clear that no adjournment for cross examination shall be granted on the next date of hearing and any application, moved by the parties may be separately dealt with but the process of cross examination of plaintiff shall not be stalled or stopped for any application. It is further made clear that if the payment of cost is not made prior to the cross examination of plaintiff the opportunity of the defendant to cross examine the plaintiff and to lead his defence shall be forfeited.
Matter be put up on 03.03.2012.
Defendant states that the court must given him time to file an appeal and postpone the date. The court is not inclined to postpone the case further. Request declined. Even after adjournment of matter defendant submits that copy of his judgment should be returned. He continues to shout at the court though learned counsel for plaintiff has left the court. The court has repeatedly told him that he can avail the remedies against the order at appropriate forum. Since it is already lunch time let the matter be taken up on date fixed."
(AJAY PANDEY ) CIVIL JUDGE06, NORTH DELHI/17.02.2012"
M. no. 14/12 Page 9/14The abovesaid proceedings by itself show that the applicant is disregarding the court proceedings and kept the Ld. Civil Judge substantially involved and did not let the matter proceed with the non applicant/plaintiff's evidence, even on that day. In the event, the costs imposed were excessive and the applicant was aggrieved of the abovesaid order, the applicant's remedy did not lie in filing 'the subject application'. It appears that the applicant's Managing Director Ashok Saran wishes to impose his own thoughts on the mind of the trial judge and impress upon him to tow his line of action in proceeding with the case, having little regard to the well defined procedure of law. Observations made by the Ld. Civil Judge while passing order dated 17.02.2012 are indicative enough of his such conduct. Proceedings also reveal that, such similar situation was created by Sh. Ashok Saran, Managing Director of the applicant, before the Predecessor Court, when the Predecessor Court on 20.05.2011, being constrained, had referred the matter to this court with a request to transfer the case to another court and this court transferred it to the present court of the Ld. Civil Judge. Relevant to the context, the proceedings conducted by the predecessor Court on 20.05.2011 and 27.07.2011, are as follows: M. no. 14/12 Page 10/14 "20.05.2011 Present: Sh. Narender Kalra, counsel for plaintiff None for defendant Be awaited.
ASCJNorth/Delhi/20.05.2011 File again taken up at 12:40 pm Now, Present: As above Call again at 2 pm. ASCJNorth/Delhi/20.05.2011 File again taken up at 2:20 pm Now, Present: As above An application u/s 3 of the Limitation Act is pending disposal. Copy given to the counsel for plaintiff. I have perused the record. It is brought to my notice by the counsel for the plaintiff that vide order dated 08.05.07, this contention of defendant has also been addressed and the application u/o 14 readwith Sec. 151 CPC was dismissed by the ld. predecessor of this court subject to costs of Rs. 1000/. The defendant again filed an application and it was dismissed by this court on 19.10.10 subject to costs of Rs.1000/.
I have perused the record. Issue in respect of limitation has been framed as issue no. 3. The predecessor of the court has specially held on 19.03.05 that issues no. 3 & 5 can be decided after evidence has been led by both the parties. Defendant is in the habit of filing one application or the other and is not allowing to proceed with the suit. The application is thus dismissed.
It is further brought to my notice by counsel for plaintiff that application dated 29.10.05 is pending disposal. This is an application for expunging the strictures contained in the order dated 20.09.05. I have perused the record. Vide a detailed order dated 20.09.05, the application u/s 114 CPC r/w Ord. 47 CPC was dismissed. No ground is made out to expunge any remarks in the order. The M. no. 14/12 Page 11/14 application is dismissed.
In the meanwhile, plaintiff filed an application dated 24.11.10 for recalling the order dated 19.10.10 which was dismissed on the same date.
Another application dated 29.03.2007 is on the record. It s prayed in the application that Suit no. 114/06 is a nullity. I have perused the application and the order of restoration dated 3.12.02. The suit was restored on 3.12.02. Vide order dated 3.12.02, the Hon'ble High Court of Delhi has restored the suit. No ground is made out to interfere in the order dated 3.12.02 i.e. after five years of the passing of the order. It is observed that defendant is in the habit of moving applications on each and every date. It is observed that contentions of the defendant have already been dealt by my learned predecessor. Put up for payment of costs and recording cross examination of PW1 on 27.07.2011. No further opportunity will be given.
(N.K. Malhotra)
ASCJNorth/Delhi/20.05.2011
27.07.2011
Present: None
Be awaited.
(Naresh Kumar Malhotra)
ASCJ/Delhi (N)/27.07.2011
File again taken up at 12:05 pm
Present: None
Be awaited.
(Naresh Kumar Malhotra)
ASCJ/Delhi (N)/27.07.2011
File again taken up at 01:00 Noon
Present: Plaintiff in person
Defendant in person
The defendant submits that present suit be M. no. 14/12 Page 12/14 transferred to other court.
I have perused the record. This court has taken the suit first time on 06.10.2010 and arguments were heard from both the parties on the application for recalling the order. I dismissed the application of defendant for recalling/reviewing the order dated 08.05.2007 on 19.10.2010 with cost of Rs. 1000/ and thereafter, the case was fixed for evidence. Again, application filed by the defendant for rectification of order dated 19.10.2010. The application was disposed of on the same day. Again on 06.12.2010, defendant filed application under Section 151 CPC and thereafter, the matter was referred to the Mediation Center. On 20.05.2011, all the applications pending disposal filed by the defendant were disposed of and the case was fixed for evidence.
Again application filed by the defendant under Section 114 CPC. As defendant alleged in the application that we cannot get justice from this court. Let, the case file be sent to the Ld. District JudgeNorth with request to transfer the case to some other court.
The parties are directed to appear before Ld. District Judge (North) on 29.07.2011.
Ahlmad is directed to send the file before the Ld. District Judge (North) complete in all respects.
(Naresh Kumar Malhotra) ASCJ/Delhi (N)/27.07.2011"
The abovesaid proceedings would equally show that, the applicant's Managing Director has the tendency to not to appear in the proceedings in the first instance and when he ultimately turns up, he takes up the issues, which are not relevant for the proceedings of that day and in the process, stalls the trial. Be that as it may, the allegations M. no. 14/12 Page 13/14 are not as regards any unfairness, independence or impartiality of the trial judge. Applicant's Managing Director seeks sympathy on the premise that he is running in 77 th year. It is another attempt to seek sympathy of the court on a frivolous stance. The applicant is a limited company and he is only its Managing Director. If he is not there, the applicantcompany would still survive. As against that, non applicant/plaintiff is aged about 80 years and, it is he, who approached the court way back in the year 1986 but the trial is yet at the initial stage. Nonapplicant's right to seek early justice, is being frustrated by the applicant, by filing one application after the other. Application is wholly meritless. Filing of such application, has resulted in wastage of time of this court as well.
5. In view of the foregoing, application is dismissed with costs of Rs. 5000/ to be deposited with DLSA (North) . Copy of the order be sent to DLSA (North) for information and necessary action.
Announced in the open Court (A.K. Chawla) th on 27 day of March, 2012 District Judge (N)/Delhi M. no. 14/12 Page 14/14