Chetak Logistics Limited v. The New India Assurance Co Limited & Anr.

1. This petition under Article 227 of the Constitution of India assails order dated 16th July 2022 passed by the learned District Judge (Commercial Court) in CS (Comm) 117/21 (The New India Assurance Co. Ltd. v. Chetak Logistics Ltd.).

2. The impugned order frames four issues as arising from the pleadings of the parties in the case. It specifically records the fact that no other issue arose, or was pressed by the parties.

3. The impugned order reads thus: “CS (COMM)117-21 MIS THE NEW INDIA ASSURANCE CO LTD TH. ITS DY.

MANAGER Vs.

MIS CHETAK LOGISTICS LTD 2022:DHC:3231 16.07.2022 Present: Sh. Pankaj Kumar, Proxy Counsel for the plaintiff. Sh. Sam Mathew, Counsel for the defendant. Arguments heard on the application under Order 8 Rule 1 CPC moved by the defendant. Keeping in view the averments made in the application, it is held that the defendant has filed the WS within a period of limitation. Application disposed of accordingly. Counsel for the plaintiff filed the replication alongwith affidavit of admission-denial of documents. Copies given. From the pleading of the parties, the following issues arise and framed as under:

1. Whether there is no privity of contract between the/plaintiff and the defendant as pleaded in the written statement? OPD

2. Whether the plaintiff is entitled to decree of recovery of Rs. 1,50,54,929/- as prayed for in the plaint? OPP

3. If answer to the issue no. 2 is in affirmative, whether the plaintiff is entitled to interest? If yes, at what rate and for which period? OPP.

4. Relief. No other issue arises or pressed for by the parties. Plaintiff is directed to file list of witnesses within 7 days from today. Plaintiff is also directed to file affidavit by way of evidence within 4 weeks from today with advance copy to the defendant/Counsel for the defendant. Put up for settlement, if any, otherwise for PE on 21.09.2022. Defendant is directed to file list of witnesses within 7 days from today. Defendant is also directed to file affidavit by way of evidence within 4 weeks from today with advance copy to the plaintiff/Ld. Counsel for the plaintiff. Put up for DE on 12.10.2022.”

4. Prayer B in the present petition, which is the substantive prayer therein, reads as under: “It is, therefore, most respectfully prayed that this Hon'ble Court may be pleased: ***** (b) To quash and set aside the impugned order dated 16.07.2022 and to frame the issues in the suit or to direct the Trial court to frame the same afresh, to direct the Respondents (Plaintiffs) to file their list of witnesses and evidence by way of affidavit of witnesses at the first instance, and the Petitioner may be called upon to do such exercise after the crossexamination of witnesses of the Respondents.”

5. I have heard Mr. Ramesh Kumar, learned Counsel for the petitioner at some length.

6. Insofar as the prayer of the petitioner, to direct the learned Commercial Court to allow the petitioner, as the defendant in the suit, to file his affidavit in evidence only after recording of evidence of the witnesses of the respondent (as the plaintiff in the suit) is complete, the prayer cannot be granted as it would be in the teeth of Order XV A (2) of the CPC as amended by the Commercial Courts Act, 2015, which reads thus: “2. Orders to be passed in a Case Management Hearing – In a Case Management Hearing, after hearing the parties, and once it finds that there are issues of fact and law which require to be tried, the Court may pass an order – (a) framing the issues between the parties in accordance with Order XIV of the Code of Civil Procedure, 1908 (5 of

1908) after examining pleadings, documents and documents produced before it, and on examination conducted by the Court under rule 2 of Order X, if required; (b) listing witnesses to be examined by the parties.

(c) fixing the date by which affidavit of evidence to be filed by parties;

(d) fixing the dates on which evidence of the witnesses of the parties to be recorded; (e) fixing the date by which written arguments are to be filed before the Court by the parties; (f) fixing the date on which oral arguments are to be heard by the Court; and (g) setting time limits for parties and their advocates to address oral arguments.”