Delhi High Court
Harinder Singh Kochar & Ors vs Bule Coast Infrastructure & Ors on 28 January, 2020
Author: S. Muralidhar
Bench: S.Muralidhar, Talwant Singh
$~1
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO (OS) 8/2020 and CM APPL. 3425/2020 (stay)
HARINDER SINGH KOCHAR & ORS ..... Appellants
Through: Mr. T.K.Ganju, Sr.Advocate with Mr.
Aquib Ali and Ms. Anekrita,
Advocates.
Mr. Dheeraj Gupta with Ms. Diksha
Arora, Advocates for Appellant
Nos.79 and 80.
versus
BULE COAST INFRASTRUCTURE & ORS ..... Respondents
Through: Mr. Sandeep Sethi, Senior Advocate
with Mr. Naman Joshi, Ms. Avshreya
P.S.Rudy, Mr. Gaurav Singh and Mr.
Abhishek Chhabra, Advocates for R1
and R2.
CORAM:
JUSTICE S.MURALIDHAR
JUSTICE TALWANT SINGH
ORDER
% 28.01.2020 Dr. S. Muralidhar, J.: CM APPL. 3449/2020 (impleadment)
1. Pursuant to the preliminary objection raised on the last occasion by Respondent No. 1 on the locus standi of the Appellant, the present application has been filed seeking to implead as co-Appellants 125 Plaintiffs who were parties in CS (OS) 176 of 2015. Such of those Plaintiffs who FAO(OS) 8/2020 Page 1 of 7 have not been able to join the present Applicants are sought to be impleaded as proforma Respondents in the appeal.
2. Having heard learned counsel for the parties and considering that the Applicants are themselves Plaintiffs in the suit, the application is allowed.
3. The amended memo of parties is taken on record.
FAO (OS) 8/2020 and CM APPL. 3425/2020 (stay)
4. The subject matter of the present appeal is an interlocutory order dated 11th December, 2019 passed by the learned Single Judge in certain IAs filed by the Defendants/Respondents in CS (OS) 176/2015. The learned Single Judge, while dealing with the issue of disbursal of the amount deposited by the Defendants/Respondents in the trial Court on a pro rata basis to not only the Plaintiffs before the Court, but all other Claimants whose claims against the Defendants/Respondents were pending adjudication, interpreted the scope of a consent order dated 3rd October, 2018 passed in the suit, and directed that "the Plaintiffs herein will not proceed with other coercive proceedings against the Defendants in respect of the dues claimed in the suit".
5. The Appellants‟ grievance is that the continuation of these "other coercive proceedings", which include complaints filed by some of the Plaintiffs under Section 138 of the Negotiable Instruments Act, 1881 („NI Act‟), the proceedings before the National Company Law Tribunal („NCLT‟) and contempt proceedings in different jurisdictions, could not have been FAO(OS) 8/2020 Page 2 of 7 restrained by the learned Single Judge.
6. This Court has heard the submissions of Mr. T.K.Ganju, learned Senior Counsel appearing for the Appellants and Mr. Sandeep Sethi, learned Senior Counsel appearing for the Respondents.
7. The submission of Mr. Ganju is that the impugned order to the extent it restrains the Plaintiffs from proceeding with „other coercive proceedings" is without jurisdiction and ex facie illegal. He reiterates that the Plaintiffs in the suit, which include the present Appellants and the proforma Respondents, are agreeable that the money deposited thus far in the suit by the Defendants/Respondents should be disbursed pro rata to all Claimants.
8. Mr. Sethi, learned Senior Counsel for the Respondents, raised a preliminary objection about the averments in the memorandum of appeal, which according to him still project the appeal as being filed in a representative capacity by one person claiming to be representative of "Blue Coast Aerocity Association". He insists that the averments in the memorandum of appeal would also have to be amended to reflect that 125 of the Plaintiffs are now co-Appellants and their submissions would have to be incorporated correspondingly.
9. As far as this objection is concerned, the Court is of the view that it is hyper-technical in nature. Considering that the appeal questions only one portion of the impugned order as being entirely without jurisdiction, that submission is common to all the Plaintiffs in the suit, some of whom are FAO(OS) 8/2020 Page 3 of 7 Appellants before this Court and others, proforma Respondents. Amending the averments in the appeal to reflect the same submission is really therefore not called for. In that view of the matter, the Court negatives this preliminary objection.
10. The second preliminary objection raised by Mr. Sethi is to the maintainability of the present appeal. He submits that the appeal against an interim order, which does not finally adjudicate upon an issue, is not maintainable either in terms of the Code of Civil Procedure 1908 („CPC‟) or Section 10 of the Delhi High Court Act, 1966.
11. The Court does not find merit in the second preliminary objection either in view of the law explained in Shah Babulal Khimji v. Jayaben D.Kania (1981) 4 SCC 8 and in particular the following passage where one instance of when a Division Bench of the High Court could entertain an appeal against an order of the Single Judge on the Original Side was given:
"(1) That the Trial Judge being a senior court with vast experience of various branches of law occupying a very high status should be trusted to pass discretionary or interlocutory orders with due regard to the well settled principles of civil justice. Thus, any discretion exercised or routine orders passed by the Trial Judge in the course of the suit which may cause some inconvenience or, to some extent, prejudice one party or the other cannot be treated as a judgment otherwise the appellate court (Division Bench) will be flooded with appeals from all kinds of orders passed by the Trial Judge. The courts must give sufficient allowance to the Trial Judge and raise a presumption that any discretionary order which he passes must be presumed to be correct unless it is ex facie legally erroneous or causes grave and substantial injustice."FAO(OS) 8/2020 Page 4 of 7
12. For the reasons explained hereafter, this Court is of the view that the portion of the impugned order of the learned Single Judge challenged in this appeal is ex facie legally erroneous and, therefore, appealable.
13. On merits it is submitted by Mr. Sethi that in the interest of doing complete justice, it was essential for the learned Single Judge to have observed that the other proceedings i.e. the 138 NI Act proceedings, the proceedings before the NCLT and the contempt proceedings should not continue as these very Plaintiffs/Appellants are seeking enforcement of earlier orders in their favour for deposit of the entire sums due to them, which would be contrary to their submissions before the learned Single Judge in the civil suit. He submits that in order to ensure that the payments are disbursed as agreed between the parties, the other coercive proceedings should not be allowed to proceed.
14. The power to pass orders to do complete justice is undoubtedly vested in the Supreme Court of India under Article 142 of the Constitution. However, a Civil Court exercising original jurisdiction is constrained to act within the boundaries of the CPC and where it is a Court exercising the original jurisdiction of the Delhi High Court, additionally by the Delhi High Court Act,1966. A Court exercising civil jurisdiction cannot obviously pass orders in relation to the powers and jurisdiction of a Criminal Court or any other Tribunal/adjudicatory body. In other words, it is for the Courts exercising their respective jurisdictions viz., the Court of the learned Magistrate dealing with the complaint under Section 138 NI Act or the NCLT dealing with FAO(OS) 8/2020 Page 5 of 7 petitions before it or contempt proceedings arising from those proceedings, to deal with the submissions that the parties before those Courts may make, and pass appropriate orders.
15. For instance, in the present matter it will be open to the Respondents to place the facts and developments in the civil suit before the Court dealing with the complaint under Section 138 NI Act and seek orders before that Court. Equally the Appellants in the present appeal would resist those pleas. All such submissions will have to be considered by the Court concerned. It is not for the learned Single Judge hearing the civil suit to anticipate what might happen in those proceedings and preventively restrain such further proceedings.
16. Consequently, this Court holds that to the extent that the impugned order of the learned Single Judge seeks to restrain the Appellants/Plaintiffs from continuing other coercive proceedings, which include the proceedings pending in the various Courts under Section 138 of the NI Act, the contempt proceedings, the proceedings before NCLT and the execution proceedings, the impugned order is entirely without jurisdiction, ex facie illegal and, therefore, unsustainable in law. Accordingly, the portion of the impugned order whereby it has been directed that "the Plaintiffs herein will not proceed with other coercive proceedings against the Defendants in respect of the dues claimed in the suit", is hereby set aside.
17. It is made clear that this order should not be construed as an expression by this Court of an opinion on the merits of contentions of the parties in such FAO(OS) 8/2020 Page 6 of 7 other proceedings which would be decided by those respective Courts/fora in accordance with law. Equally, the learned Single Judge will continue the proceedings in the suit and decide the submissions on the question of the pro rata disbursal of the monies deposited in the Court. The pending applications shall also be disposed of by the learned Single Judge in accordance with law.
18. The appeal is allowed and the application is disposed of in the above terms. No order as to costs.
CM APPLs. 3426/2020 and 3450/2020 (exemption)
19. Allowed, subject to all just exceptions. The applications are disposed of.
20. A copy of the order be given dasti under the signatures of the Court Master.
S. MURALIDHAR, J.
TALWANT SINGH, J.
JANUARY 28, 2020 tr FAO(OS) 8/2020 Page 7 of 7