M/S GRAND AUTO CAPITAL AND ORS v. M/S JINDAL DYECHEM INDUSTRIES PVT. LTD.

1. Appellant impugns judgment dated 19.02.2020 whereby an exparte decree has been passed against the appellant of eviction in respect of tenanted premises No. C-42, Wazirpur Industrial Area, New Delhi and also of awarding damages at the rate of Rs.30,000/- per day starting from January, 2019 till vacation of the suit property. RFA (COMM) 1/2023 2

2. It may be noticed that appellant had filed an application under Order IX Rule 13 which was dismissed by order dated 26.10.2020 against which appellant filed an appeal which was listed before a Division Bench of this Court being FAO(COMM) 20/2021.

3. By a detailed judgment dated 20.05.2021 the appeal was dismissed, however, with regard to the ex-parte decree (impugned herein) the same was modified holding as under:-

4. Perusal of the judgment dated 20.05.2021 of the Coordinate bench of this Court in the earlier appeal filed by the appellant shows that though the appeal of the appellant with regard to rejection of the application under Order IX Rule 13 is concerned was dismissed, however, the judgment which is impugned herein, the same was modified by reducing the rate of mesne profits. The rationale given by the Coordinate bench of this Court for adopting the said course is in view of the enactment of the Commercial Court Act, 2015 for expeditious dismissal of commercial disputes.

5. Since a Coordinate bench of this Court has already considered the impugned judgment in an appeal filed by the appellant themselves and granted relief to the appellant, it is not open to the appellant to seek to impugn the same once again by way of this appeal.

6. It may also be noticed that against the judgment dated 20.05.2021 of the Coordinate bench in the appeal filed by the RFA (COMM) 1/2023 5 appellant, a Special Leave Petition was filed by the appellant before the Supreme Court being SLP (Civil) No.13131/2022 which has been dismissed by the Supreme Court holding as under:- “We have heard Mr. Gopal Sankaranayanan, learned Senior Advocate, appearing for the petitioners at length. We see no reason to interfere with the impugned judgment and order passed by the High Court, more particularly, the earlier order dated 22.03.2021. The Special Leave Petition stands dismissed. Pending application stands disposed of.”

7. The contention of learned counsel for the appellant is that in order dated 20.05.2021, it has been erroneously recorded that possession was delivered on 23.03.2021 and as such direction has been issued to the appellant to pay mesne profits w.e.f January, 2019 till delivery of possession on 23.03.2021. It is contended that possession was forcibly taken in the month of February, 2019. He submits that the Coordinate bench of this Court in its judgment dated 20.05.2021 had erroneously recorded the date of possession as 23.03.2021.

8. We find no merit in the contention of learned counsel for the appellant for the reason that the date of 23.03.2021 mentioned in order of 20.05.2021 of the Coordinate bench is pursuant to an order of 22.03.2021 wherein the Coordinate Bench of this Court had directed the respondent to take possession on 23.03.2021. Be that as it may, the issue of date of handing over possession was also raised by the RFA (COMM) 1/2023 6 appellant before the Supreme Court in the above-referred Special Leave Petition and that is why in the order itself the Supreme Court has recorded that it finds no ground to interfere with the impugned judgment particularly the earlier order dated 22.03.2021. The order of 22.03.2021, as we have noticed hereinabove, is the order whereby the respondents were directed to take possession on 23.03.2021.

9. In view of the above, we find no ground to entertain the appeal. The appeal is consequently dismissed. CM APPL. 363/2023 (condonation of delay)