Delhi District Court
Kuljit Singh Butalia vs Firstcorp International Ltd on 17 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
17.08.2012
ORDER :
Vide this order, I shall dispose off the application filed by defendant company u/s 151 CPC praying for issuing summons to one Mr. O.P. Aggarwal for appearing before this court.
BRIEF FACTS OF THE CASE ARE:
1 Defendant has submitted that during the course of cross examination of the plaintiff, it has observed 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. Defendant has CS No. 184/2011 P 1 of 10 : 2 : reproduced para 2 of plaint whereby reference of Mr. O.P. Aggarwal is made. 2 Defendant has further submitted that in para 2 of the plaint plaintiff has submitted "On 01/10/2002 Earthtech Enterprises Ltd. a company acting through Mr. O.P. Aggarwal took on rent the 2nd floor of the plaintiff's property no.
39, Sadhna Enclave, New Delhi. Sometime in December, 2002 the said Mr. O.P. Aggarwal requested the plaintiff that if a temporary construction is made on the roof of the 2nd floor he will take the same on rent and use the same as a guest house of Earthtech Enterprises Ltd. The plaintiff agreed to the proposal on the condition that some funds are advanced to him for raising a temporary structure to meet a part of finances required. The said Mr. O.P. Aggarwal having agreed to meet a part of the expenses, the plaintiff started construction in early part of 2003 and completed the same by March, 2004. When the temporary structure was completed, the plaintiff structure was completed, the plaintiff asked the said Mr. O.P. Aggarwal to take possession and also told him that he shall not charge any rent for first two years in return of his having advanced some money to meet the cost of construction. The said Mr. O.P. Aggarwal then wanted the newly constructed temporary structure on 3rd floor to be let out to the defendant company of which the said Mr. O.P. Aggarwal was the real controlling figure but managed through some junior employees who had no stake in its business, a dummy Directors. The said defendant took possession of the structure on or about 01.04.2004".
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3 Defendant has also referred to replication to WS of defendant in
para 13 of reply on merits whereby the plaintiff has stated that "There were other transactions between the parties regarding the procurement of projects by the plaintiff for and on behalf of the defendant."
4 Defendant has submitted that in the affidavit of evidence filed by the plaintiff verified on 24.02.2010 he has again referred to Mr. O.P. Aggarwal in para 2 and the same is reproduced below: " In April 2006, I let out the 3rd floor of my house property, 39, Sadhna Enclave, New Delhi to the defendant company at the instance of one Mr. O.P. Aggarwal, S/o Sh. Gopi Ram, who had, earlier, taken on rent the 2 nd floor of the said property for M/s. Earthtech Enterprises Ltd. of which he claimed to be the controlling head."
5 Defendant has submitted that the plaintiff was crossexamined on 08.10.2010 wherein 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." 6 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 CS No. 184/2011 P 3 of 10 : 4 : 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."
7 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 printing."
8 Defendant has submitted that the plaintiff has filed the affidavit of Sh. Shanti Dave verified on 19.05.2012 and paragraph 4 to 6 of the said affidavit CS No. 184/2011 P 4 of 10 : 5 : 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 prtice 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 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"." 9 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
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paintings."
10 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." 11 Defendant has submitted that from the aforesaid facts, it has become relevant and necessary that this court may summon the said Mr. O.P. Aggarwal as the evidence of said Mr. O.P. Aggarwal will go to the root of the matter and is relevant for the just decision of the case. 12 Defendant 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.
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13 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.
14 A perusal of all these submissions made on behalf of defendant reveals that defendant has prayed for summoning Mr. O.P. Aggarwal because of the contradictions with respect to him in the affidavit of Shanti Dave and his crossexamination and also because of reference to said Mr. O.P. Aggarwal in plaint as well as affidavit of evidence and crossexamination of plaintiff. 15 With respect to contradictions in affidavit of Shanti Dave and his crossexamination, the purpose of crossexamination can not be lost sight of, however, the same is not a ground to summon a person 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.
16 Similarly, with respect to averments made about the said Mr. O.P.
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Aggarwal in the plaint and affidavit of evidence of plaintiff and in his cross examination on different dates as early as on 15/11/2010, 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.
17 The present application is not maintainable u/s 151 CPC as there is a provision u/o 16 Rule 14 CPC for the same. However, it is only where the court thinks it necessary to examine any person who has not been called as a witness, the court may of its own motion summon him as a witness. It is not at the moving of application by either of the parties that the court may summon any person at any stage, it is only when court finds it necessary that the court summons a person for his examination. 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.
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18 Defendant has relied on Sardar Gurbakhsh Singh Vs. Gurdial
Singh and Anr., AIR 1927; Salem Advocates Bar Association, T.N. Vs. Union of India VI (2002) SLT 519; Pushpaben Champaklal Shah and Anr. Vs. Rikhavdev Tirthram Sharma and Ors., AIR 2006; Sri Awadh Kishore Singh and Anr. Vs. Sri Brij Bihari Singh and Others, AIR 1993 Patna 122; V.K. Periasamy alias Perianna Gounder Vs. D. Rajan, AIR 2001 Madras 41; Syed Yasin Vs. Syed Shaha Mohd. Hussain, AIR 1967 Mysore 37 to contend that the court may summon a person as a witness though he has not been summoned by either of the parties. However, in view of the observations made hereinbefore, I do not think it necessary to summon and examine the said Mr. O.P. Aggarwal.
19 In view of observations made herein, the present application is dismissed.
20 To come up for final arguments on 28/08/2012 and 29/08/2012. Dictated and announced in the open court on 17.08.2012 (Dr. Neera Bharihoke) ADJI(South) Saket Courts 17.08.2012 CS No. 184/2011 P 9 of 10 : 10 : CS No. 184/2011 P 10 of 10