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Raaj Unocal Lubricants Limited vs Apple Energy Pvt. Ltd. & Anr on 16 July, 2021

Author: Rajiv Sahai Endlaw

Bench: Rajiv Sahai Endlaw, Amit Bansal

$~13
*      IN THE HIGH COURT OF DELHI AT NEW DELHI
+      FAO(OS) (COMM) 86/2021
       RAAJ UNOCAL LUBRICANTS LIMITED             ..... Appellant
                    Through: Mr.Ratan Kumar Singh, Sr. Adv. with
                             Mr.Kapil   Wadhwa,       Ms.Deepika
                             Pokharia, Ms.Deepshri, Ms.Pranita
                             Saboo,     Mr.Jatan        Rodrigues,
                             Ms.Tishya Pandey, Advs.


                          versus

       APPLE ENERGY PVT. LTD. & ANR.              ..... Respondents
                    Through: Mr.Rajshekhar Rao, Sr. Adv. with
                               Ms.Shwetasree Majumder, Ms.Diva
                               Arora, Mr.Aditya Verma, Mr.Raghav
                               Kacker and Ms.Pritika Kohli, Advs.

       CORAM:
       HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
       HON'BLE MR. JUSTICE AMIT BANSAL
               ORDER

%              16.07.2021

[VIA VIDEO CONFERENCING]

C.M. Nos. 18793/2021, 18794/2021, 20967/2021 & 20969/2021 (all for exemption)

1. Allowed, subject to just exceptions and as per extant rules.

2. The applications are disposed of.

FAO(OS) (COMM) 86/2021, C.M. Nos. 18791/2021 (for placing on record additional documents), 18792/2021 (for stay), 20966/2021 (for placing on record additional documents) & 20968/2021 (for placing on record redacted documents) FAO(OS) (COMM) 86/2021 Page 1 of 4

3. This appeal, under Section 13(1A) of the Commercial Courts Act, 2015 read with Order XLIII Rule 1(r) of the Code of Civil Procedure, 1908, impugns the order dated 25th May, 2021, of the Commercial Division in CS (COMM) No. 100/2020 filed by the appellant/plaintiff against the respondents/defendants, (i) vacating the ad interim injunction earlier granted, restraining the respondent no.2/defendant no.2 from pursuing Civil Action No. 4:21-cv-279 against the appellant/plaintiff in the United States District Court at the Southern District of Texas (Houston Division); and, (ii) dismissing the application of the appellant/plaintiff for interim relief to the extent seeking anti-suit injunction against the respondent no.2/defendant no.2.

4. We have heard the opening arguments of the senior counsel for the appellant/plaintiff, the arguments in defence of the senior counsel for the respondents/defendants and the arguments in rejoinder of the senior counsel for the appellant/plaintiff.

5. It was inter alia the repeated assertion of the senior counsel for the appellant/plaintiff during his opening arguments, that the anti-suit injunction sought, ought to have been granted since the appellant/plaintiff is a small scale industry and has received a quotation from the United States' (U.S.) attorneys of Rs.4,00,00,000/- for contesting the proceedings in the U.S. Courts on behalf of the appellant/plaintiff and the appellant/plaintiff is unable to afford the said fees and the proceedings in the U.S. Courts are thus oppressive qua the appellant/plaintiff.

6. However we drew the attention of the senior counsel for the appellant/plaintiff to paragraph 7 of the plaint in the suit from which this FAO(OS) (COMM) 86/2021 Page 2 of 4 appeal arises, wherein the pleadings are to the contrary. The appellant/plaintiff therein has claimed to be the flagship company of the multi-million dollar Rajgarhia Group of Enterprises.

7. The senior counsel for the respondents/defendants, in his arguments has controverted the claim of the appellant/plaintiff, of being unable to afford the lawyer's fee and expenses of the US court, by referring to other pleadings in the plaint also. The senior counsel for the respondents/defendants has also drawn attention to various other inconsistent statements made by the appellant/plaintiff, to serve its purpose from time to time. Special attention has been drawn to the averments in paragraph 4s. of the appeal paper book, where it is pleaded that the respondent no.2/defendant no.2 has disputed one of the invoices produced by the appellant/plaintiff before the Commercial Division and have in fact also filed an application under Section 340 of the Code of Criminal Procedure, 1973 with respect thereto. Though the appellant/plaintiff has not produced the said document but the counsel for the respondents/defendants has screen-shared the same. Therefrom it is pointed out that though the invoice is stated to be of 5th July, 1992, but the telephone number thereon is of a series, which came about on a much later date and the invoice also refers to education cess which did not exist at the relevant time, clearly establishing a case of forgery and fabrication.

8. We have enquired from the senior counsel for the appellant/plaintiff, why, in this appeal, we should not deal with all the aforesaid arguments of the senior counsel for the respondents/defendants and if find in favour of the respondents/defendants thereon, not order appropriate action against the appellant/plaintiff.

9. The senior counsel for the appellant/plaintiff, under instructions, states that the appellant/plaintiff unconditionally withdraws this appeal and also agrees to, on or before 27th July, 2021 pay costs of this appeal of Rs.5,50,000/- to the counsel for the respondents/defendants.

10. Though the senior counsel for the respondents/defendants has contended that this Court should return findings on the arguments urged on behalf of the appellant/plaintiff having made false pleadings and arguments and having indulged in fabrication of documents, but since we are seized of the appeal only and the matter is still at large before the Commercial Division, it is deemed apposite that the appeal is permitted to be withdrawn in terms of above with liberty to the respondents/defendants to pursue the said arguments/pleas against the appellant/plaintiff before the Commercial Division.

11. The appeal is dismissed as withdrawn, subject to costs of Rs.5,50,000/- undertaken to be paid by the appellant/plaintiff to the counsel for the respondents/defendants, being paid on or before 27th July, 2021.

RAJIV SAHAI ENDLAW, J AMIT BANSAL, J JULY 16, 2021 SU ..