Delhi Transport Corporation vs.m/s Prabhatam Advertising Pvt Ltd - Court Judgment

SooperKanoon Citationsooperkanoon.com/1220191
CourtDelhi High Court
Decided OnDec-20-2018
AppellantDelhi Transport Corporation
RespondentM/S Prabhatam Advertising Pvt Ltd
Excerpt:
30 $~ * + in the high court of delhi at new delhi cs(os) 3363/2015 delhi transport corporation through: ms. avnish ahlawat, advocate with ms. palak rohmetra, advocate ..... plaintiff m/s prabhatam advertising pvt ltd through: mr. sunil chaudhary, advocate with mr. garuav rana, advocate. ..... defendant date of decision:20. h december, 2018 versus % coram: hon'ble mr. justice manmohan judgment manmohan, j: (oral) o.as. 163-164/2018, i.as. 17570-17573/2018 1. present appeals have been filed challenging the orders dated 14th august, 2018 and 18th september, 2018 passed by the learned joint registrar, whereby the right of the appellant-defendant to cross-examine the witnesses of the plaintiff was closed and the right of the appellant-defendant to lead evidence was closed respectively. the orders dated 14th august, 2018 and 18th september, 2018 are reproduced hereinbelow:-"order dated 14th august, 2018 “proceedings from 11:45 am to 12:52 pm. evidence recorded from 12:35 pm to 12:50 pm number of page 01 cs (os) 3363/2015 page 1 of 5 proxy counsel for the defendant seeks an adjournment on the ground that the main counsel is not available. the defendant has also not paid the cost. thus the request for an adjournment is declined. the witness/pw-1 dr. r.s.minhas has been examined and discharged. by way of separate statement, learned counsel for the plaintiff has closed the evidence of the plaintiff. thus the evidence of the plaintiff is closed. the defendant is directed to file affidavit in evidence within four weeks from today with advance copy to the opposite side. relist for defendant's evidence on 18.09.2018.” order dated 18th september, 2018 “court fee for rs.2,56,000/- and vakalatnama filed by defendant. it is 12.20 p.m. the matter called thrice. on the first call, one proxy counsel sought pass over stating that main counsel will appear within 15 minutes. till this time, nobody has appeared on behalf of defendant. affidavit of evidence not filed by defendant. no dw is present. from the perusal of the earlier record, it appears that cost of rs.50,000/- was imposed on the defendant. it is submitted by the learned counsel for the plaintiff that the same has not been paid. in these circumstances, that defendant evidence is hereby closed. put up for further directions before hon’ble court on 19.9.2018, the date already fixed. sh. rakesh pandit (dhjs) joint registrar (judicial) september18 2018 1:20 p.m. at this stage, learned counsel for defendant appeared and stated that he will file the evidence today itself. he is apprised with the order of the court passed earlier.” cs (os) 3363/2015 page 2 of 5 2. in the present appeals, it has been averred that the main counsel for appellant-defendant was not well on 14th august, 2018 and therefore, the proxy counsel sought an accommodation.3. learned counsel for appellant-defendant states that the counsel for respondent-plaintiff objected to the adjournment and pointed out that the cost of rs.50,000/- imposed by this court vide order dated 03rd may, 2018 had not been paid.4. learned counsel for appellant-defendant states that the appellant- defendant was under the impression that the cost of rs.50,000/- had to be paid during the main court proceedings which was scheduled to be held on 19th september, 2018. he contends that defendant never endeavoured to delay the proceedings before the learned joint registrar as the appellant had filed a counter-claim of rs.5,64,43,594/-.5. he further states that the learned joint registrar on 18th september, 2018 without giving last opportunity had closed the appellant-defendant’s right to lead evidence.6. a perusal of the file reveals that though the issues in the present suit for recovery of rs.2,81,37,291/- along with 24% interest had been framed on 25th august, 2017, yet the appellant-defendant had either been taking adjournments or had not been appearing before this court or the learned joint registrar. on 01st november, 2017 this court had refused to frame additional issues as sought for by the appellant-defendant as it had not paid the court-fee on the counter-claim.7. on 03rd may, 2018, this court had reluctantly adjourned the matter to 19th september, 2018 subject to defendant paying costs of rs.50,000/- to the plaintiff. the order dated 03rd may, 2018 is reproduced hereinbelow:-"cs (os) 3363/2015 page 3 of 5 learned counsel for “today mr.gaurav rana, the defendant prays for an adjournment on the ground that he has recently been engaged. even on the last date of hearing before the joint registrar, none was present for the defendant. reluctantly the matter is adjourned to 19th september, 2018 subject to the defendant paying cost of rs.50,000/- to the plaintiff. list the matter before the joint registrar for recording of plaintiff’s evidence on 14th august, 2018.” 8. notwithstanding the aforesaid order imposing costs of rs.50,000/-, the counsel for appellant-defendant sought an adjournment on the ground that its main counsel was “not available” on 14th august, 2018.9. however, despite stating before the learned joint registrar that the defendant’s counsel was not available on 14th august, 2018, the defendant has taken a ground in the present appeals that its counsel was “not well” on the said date. no medical certificate of the counsel has been annexed with the present appeals.10. keeping in view the contemporaneous statement made before the learned joint registrar, this court is of the view that the ground that the counsel for appellant-defendant was unwell on 14th august, 2018, is not correct. belatedly the costs and court-fees had been paid by the appellant- defendant.11. it is pertinent to mention that this court had dismissed the appellant’s- defendant’s writ petition being wp(c) 7532/2012 and had directed government of nct of delhi to take into account the appellant’s conduct in indulging in frivolous litigation while awarding future contracts to it. cs (os) 3363/2015 page 4 of 5 12. it seems to this court that the appellant-defendant, has no objection to paying a few thousands rupees as costs as long as the present suit for recovery of rs 2,81,37,291/- along with interest ‘drags on’.13. it is also not understood as to how the appellant-defendant was under the impression that the costs had to be paid in the main court proceeding which was scheduled to be held on 19th september, 2018.14. in any event, on 14th august, 2018, the learned joint registrar had directed the defendant to file its evidence by way of affidavit within a period of four weeks and the matter was listed for defendant’s evidence on 18th september, 2018.15. admittedly, the aforesaid categorical order was not complied with by the appellant-defendant.16. keeping in view the aforesaid facts, this court finds no ground to interfere with the impugned orders. however, in the interest of justice, the appellant-defendant is permitted to cross-examine the plaintiff’s witnesses as well as to lead its evidence subject to payment of rs.5 lacs within a period of six weeks. in the event, the aforesaid costs is not paid within the stipulated period, the impugned orders will stand revived.17. with the aforesaid observations and direction, present appeals and applications stand disposed of.18. list the matter before the joint registrar on 06th february, 2019. manmohan, j december20 2018 js cs (os) 3363/2015 page 5 of 5
Judgment:

30 $~ * + IN THE HIGH COURT OF DELHI AT NEW DELHI CS(OS) 3363/2015 DELHI TRANSPORT CORPORATION Through: Ms. Avnish Ahlawat, Advocate with Ms. Palak Rohmetra, Advocate ..... Plaintiff M/S PRABHATAM ADVERTISING PVT LTD Through: Mr. Sunil Chaudhary, Advocate with Mr. Garuav Rana, Advocate. ..... Defendant Date of Decision:

20. h December, 2018 versus % CORAM: HON'BLE MR. JUSTICE MANMOHAN JUDGMENT

MANMOHAN, J: (Oral) O.As. 163-164/2018, I.As. 17570-17573/2018 1. Present appeals have been filed challenging the orders dated 14th August, 2018 and 18th September, 2018 passed by the learned Joint Registrar, whereby the right of the appellant-defendant to cross-examine the witnesses of the plaintiff was closed and the right of the appellant-defendant to lead evidence was closed respectively. The orders dated 14th August, 2018 and 18th September, 2018 are reproduced hereinbelow:-

"Order Dated 14th August, 2018 “Proceedings from 11:45 am to 12:52 pm. Evidence recorded from 12:35 pm to 12:50 pm Number of page 01 CS (OS) 3363/2015 Page 1 of 5 Proxy counsel for the defendant seeks an adjournment on the ground that the main counsel is not available. The defendant has also not paid the cost. Thus the request for an adjournment is declined. The witness/PW-1 Dr. R.S.Minhas has been examined and discharged. By way of separate statement, learned counsel for the plaintiff has closed the evidence of the plaintiff. Thus the evidence of the plaintiff is closed. The defendant is directed to file affidavit in evidence within four weeks from today with advance copy to the opposite side. Relist for defendant's evidence on 18.09.2018.” Order Dated 18th September, 2018 “Court fee for Rs.2,56,000/- and vakalatnama filed by defendant. It is 12.20 p.m. The matter called thrice. On the first call, one proxy counsel sought pass over stating that main counsel will appear within 15 minutes. Till this time, nobody has appeared on behalf of defendant. Affidavit of evidence not filed by defendant. No DW is present. From the perusal of the earlier record, it appears that cost of Rs.50,000/- was imposed on the defendant. It is submitted by the learned counsel for the plaintiff that the same has not been paid. In these circumstances, that defendant evidence is hereby closed. Put up for further directions before Hon’ble Court on 19.9.2018, the date already fixed. SH. RAKESH PANDIT (DHJS) JOINT REGISTRAR (JUDICIAL) SEPTEMBER18 2018 1:20 p.m. At this stage, learned counsel for defendant appeared and stated that he will file the evidence today itself. He is apprised with the order of the court passed earlier.” CS (OS) 3363/2015 Page 2 of 5 2. In the present appeals, it has been averred that the main counsel for appellant-defendant was not well on 14th August, 2018 and therefore, the proxy counsel sought an accommodation.

3. Learned counsel for appellant-defendant states that the counsel for respondent-plaintiff objected to the adjournment and pointed out that the cost of Rs.50,000/- imposed by this Court vide order dated 03rd May, 2018 had not been paid.

4. Learned counsel for appellant-defendant states that the appellant- defendant was under the impression that the cost of Rs.50,000/- had to be paid during the main Court proceedings which was scheduled to be held on 19th September, 2018. He contends that defendant never endeavoured to delay the proceedings before the learned Joint Registrar as the appellant had filed a counter-claim of Rs.5,64,43,594/-.

5. He further states that the learned Joint Registrar on 18th September, 2018 without giving last opportunity had closed the appellant-defendant’s right to lead evidence.

6. A perusal of the file reveals that though the issues in the present suit for recovery of Rs.2,81,37,291/- along with 24% interest had been framed on 25th August, 2017, yet the appellant-defendant had either been taking adjournments or had not been appearing before this Court or the learned Joint Registrar. On 01st November, 2017 this Court had refused to frame additional issues as sought for by the appellant-defendant as it had not paid the Court-fee on the counter-claim.

7. On 03rd May, 2018, this Court had reluctantly adjourned the matter to 19th September, 2018 subject to defendant paying costs of Rs.50,000/- to the plaintiff. The order dated 03rd May, 2018 is reproduced hereinbelow:-

"CS (OS) 3363/2015 Page 3 of 5 learned counsel for “Today Mr.Gaurav Rana, the defendant prays for an adjournment on the ground that he has recently been engaged. Even on the last date of hearing before the Joint Registrar, none was present for the defendant. Reluctantly the matter is adjourned to 19th September, 2018 subject to the defendant paying cost of Rs.50,000/- to the plaintiff. List the matter before the Joint Registrar for recording of plaintiff’s evidence on 14th August, 2018.” 8. Notwithstanding the aforesaid order imposing costs of Rs.50,000/-, the counsel for appellant-defendant sought an adjournment on the ground that its main counsel was “not available” on 14th August, 2018.

9. However, despite stating before the learned Joint Registrar that the defendant’s counsel was not available on 14th August, 2018, the defendant has taken a ground in the present appeals that its counsel was “not well” on the said date. No medical certificate of the counsel has been annexed with the present appeals.

10. Keeping in view the contemporaneous statement made before the learned Joint Registrar, this Court is of the view that the ground that the counsel for appellant-defendant was unwell on 14th August, 2018, is not correct. Belatedly the costs and Court-fees had been paid by the appellant- defendant.

11. It is pertinent to mention that this court had dismissed the appellant’s- defendant’s writ petition being WP(C) 7532/2012 and had directed Government of NCT of Delhi to take into account the appellant’s conduct in indulging in frivolous litigation while awarding future contracts to it. CS (OS) 3363/2015 Page 4 of 5 12. It seems to this court that the appellant-defendant, has no objection to paying a few thousands rupees as costs as long as the present suit for recovery of Rs 2,81,37,291/- along with interest ‘drags on’.

13. It is also not understood as to how the appellant-defendant was under the impression that the costs had to be paid in the main Court proceeding which was scheduled to be held on 19th September, 2018.

14. In any event, on 14th August, 2018, the learned Joint Registrar had directed the defendant to file its evidence by way of affidavit within a period of four weeks and the matter was listed for defendant’s evidence on 18th September, 2018.

15. Admittedly, the aforesaid categorical order was not complied with by the appellant-defendant.

16. Keeping in view the aforesaid facts, this Court finds no ground to interfere with the impugned orders. However, in the interest of justice, the appellant-defendant is permitted to cross-examine the plaintiff’s witnesses as well as to lead its evidence subject to payment of Rs.5 lacs within a period of six weeks. In the event, the aforesaid costs is not paid within the stipulated period, the impugned orders will stand revived.

17. With the aforesaid observations and direction, present appeals and applications stand disposed of.

18. List the matter before the Joint Registrar on 06th February, 2019. MANMOHAN, J DECEMBER20 2018 js CS (OS) 3363/2015 Page 5 of 5