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r HIGH COURT OF DELHI
FAO(OS)245/2016&CM No.29605/2016
HINDALCOINDUSTRIES LIMITED Appellant
Through Mr Vaibhav Joshi,Adv.
FAO(OS)245/2016&CM No.29605/2016
HINDALCOINDUSTRIES LIMITED Appellant
Through Mr Vaibhav Joshi,Adv.
VERSUS
MIDIEXTRUSIONS LIMITED Respondent
Through MrAlok Krishna Agarwal,Adv.with Mr Mayank Bushani,Adv.
Through MrAlok Krishna Agarwal,Adv.with Mr Mayank Bushani,Adv.
FAO(OS)246/2016 &CM No.29615/2016
HINDALCOINDUSTRIES LTD Appellant
Through Mr Vaibhav Joshi,Adv.
HINDALCOINDUSTRIES LTD Appellant
Through Mr Vaibhav Joshi,Adv.
VERSUS
WHITE METALSINDUSTRIESPVTLTD Respondent
Through Mr Alok Krishna Agarwal,Adv.with Mr Mayank Bushani,Adv.
Through Mr Alok Krishna Agarwal,Adv.with Mr Mayank Bushani,Adv.
CORAM:
HON'BLE MR.JUSTICE BADAR DURREZAHMED
HON'BLE MR.JUSTICE ASHUTOSHKUMAR
ORDER o/„ 24.01.2017
These appeals are directed against the two orders dated 02.05.2016, one each in the two suits filed by the appellant. The orders dated 02.05.2016 were passed on review applications styled as recall applications. The appellants said applications havebeenrejected bytheimpugned orders.
Apartfrom the questionasto whetheranappealcan,atall,be maintainable against an order in review,the appellantis notentitled to any relief. The plea of the appellant is that it should be allowed to lead evidence of the authorised representativeinboththesuits. Butfromthe ordersheets whichhave been placed
2017:DHC:9042-DB before us by the learned eounsel for the respondents,it is evident thatthe eonduet ofthe appellant has been ofcomplete non-cooperation to say the least. Despite numerous opportunities having been given to the appellant in both the suits, it has refrained for whatever reasonfrom taking any steps infurtherance ofthe suit.
The point in issue in the present appeal is with regard to the leading of evidence ofthe authorised representative ofthe plaintiff. On 29.05.2012,an order was passed clearly stating the following:
"Since no steps have been taken for examination of any other witness, the right of the plaintiff to examine any other witness except ARfor the plaintiffstands closed.
The affidavit of AR for the plaintiff be filed within eight weeks from today,failing which the opportunity to examinethe AR would also stand closed without any further orders.
Adjournment is further subject to cost ofRs.10,000/-,to be paid to the learned counsel for the defendant."
The appellant did not file the affidavit of the Authorised Representative
(AR)within the period of eight weeks stipulated in the order dated 29.05.2012.
As a result,the opportunity to examine the authorised representative stood closed at the end of said period of eight weeks, without the necessity of any further orders.
We may also point out that the orders dated 29.05.2012 in each ofthe suits have never been made the subject matter ofappeals. Those orders have attained finality. A year later,sometime in July 2013,a request for mediation was made.
On 27.08.2014 when the matter was taken up,it was specifically recorded by the learned single Judge who was hearing the matter that the evidence ofthe plaintiff had been closed and a direction was given for listing the matter before the Joint
This is the order dated 27.08.2014 which was sought to be "recalled" by
V.
' way oftwo separate applications being lA No.5382/2016 in CS(OS)2058/2006 and lA No.5380/2016 in CS(OS) 2059/2006. Both these applications were rejected by identical impugned orders dated 02.05.2016. We may also note that in the meanwhile, in the suits before the learned single Judge, on 27.07.2016, the following order was passed:
"1. The learned counsel for the plaintiff and the counsel for the defendant in both the suits state that the trial in both the suits is complete and final arguments have to be heard.
2.Listtogether in the category of'Finals'as per turn."
The above narration offacts makes it clear that the evidence ofthe plaintiff stood closed and the only exception that was granted to the plaintiff/appellant was for recording the evidence of the authorised representative that was also conditional,as indicated in the order dated 29.05.2012,on the affidavit being filed within eight weeks of29.05.2012. The affidavit was not filed and in terms ofthe order dated 29.05.2012,that right also stood closed. The order dated 27.08.2014 merely records the state ofaffairs as they existed on that date thatthe evidence of the plaintiff has been closed. It is clear that the evidence ofthe plaintiffstood closed as the plaintiffdid notsatisfy the condition precedent which was laid down in the order dated 29.05.2012 and not by virtue of the order dated 27.08.2014.
The order of27.08.2014 merely records the fact that the evidence ofthe plaintiff had been closed. There is no challenge to the order dated 29.05.2012. That has become final. The attempt by the plaintiff seeking recall of the order dated
28.07.2014 two years later by moving applications in May 2016 is not only belated but would,in any event, be futile because ofthe subsistence ofthe order dated 29.05.2012 which has attained finality.
To put a lid on the appellant/plaintiffs case, the order dated 27.07.2016 clearly indicates that the plaintiff/appellant was also ofthe view that the trial in both the suits was complete and fmal arguments wereto be heard.
In these circumstances, no case has been made out by the appellant for interfering with the impugned orders.
Consequently,the appeals are dismissed.
BADAR DURREZAHMED,J JANUARY 24,2017/ab A^nirosHSjM^^
HON'BLE MR.JUSTICE ASHUTOSHKUMAR
ORDER o/„ 24.01.2017
These appeals are directed against the two orders dated 02.05.2016, one each in the two suits filed by the appellant. The orders dated 02.05.2016 were passed on review applications styled as recall applications. The appellants said applications havebeenrejected bytheimpugned orders.
Apartfrom the questionasto whetheranappealcan,atall,be maintainable against an order in review,the appellantis notentitled to any relief. The plea of the appellant is that it should be allowed to lead evidence of the authorised representativeinboththesuits. Butfromthe ordersheets whichhave been placed
2017:DHC:9042-DB before us by the learned eounsel for the respondents,it is evident thatthe eonduet ofthe appellant has been ofcomplete non-cooperation to say the least. Despite numerous opportunities having been given to the appellant in both the suits, it has refrained for whatever reasonfrom taking any steps infurtherance ofthe suit.
The point in issue in the present appeal is with regard to the leading of evidence ofthe authorised representative ofthe plaintiff. On 29.05.2012,an order was passed clearly stating the following:
"Since no steps have been taken for examination of any other witness, the right of the plaintiff to examine any other witness except ARfor the plaintiffstands closed.
The affidavit of AR for the plaintiff be filed within eight weeks from today,failing which the opportunity to examinethe AR would also stand closed without any further orders.
Adjournment is further subject to cost ofRs.10,000/-,to be paid to the learned counsel for the defendant."
The appellant did not file the affidavit of the Authorised Representative
(AR)within the period of eight weeks stipulated in the order dated 29.05.2012.
As a result,the opportunity to examine the authorised representative stood closed at the end of said period of eight weeks, without the necessity of any further orders.
We may also point out that the orders dated 29.05.2012 in each ofthe suits have never been made the subject matter ofappeals. Those orders have attained finality. A year later,sometime in July 2013,a request for mediation was made.
On 27.08.2014 when the matter was taken up,it was specifically recorded by the learned single Judge who was hearing the matter that the evidence ofthe plaintiff had been closed and a direction was given for listing the matter before the Joint
This is the order dated 27.08.2014 which was sought to be "recalled" by
V.
' way oftwo separate applications being lA No.5382/2016 in CS(OS)2058/2006 and lA No.5380/2016 in CS(OS) 2059/2006. Both these applications were rejected by identical impugned orders dated 02.05.2016. We may also note that in the meanwhile, in the suits before the learned single Judge, on 27.07.2016, the following order was passed:
"1. The learned counsel for the plaintiff and the counsel for the defendant in both the suits state that the trial in both the suits is complete and final arguments have to be heard.
2.Listtogether in the category of'Finals'as per turn."
The above narration offacts makes it clear that the evidence ofthe plaintiff stood closed and the only exception that was granted to the plaintiff/appellant was for recording the evidence of the authorised representative that was also conditional,as indicated in the order dated 29.05.2012,on the affidavit being filed within eight weeks of29.05.2012. The affidavit was not filed and in terms ofthe order dated 29.05.2012,that right also stood closed. The order dated 27.08.2014 merely records the state ofaffairs as they existed on that date thatthe evidence of the plaintiff has been closed. It is clear that the evidence ofthe plaintiffstood closed as the plaintiffdid notsatisfy the condition precedent which was laid down in the order dated 29.05.2012 and not by virtue of the order dated 27.08.2014.
The order of27.08.2014 merely records the fact that the evidence ofthe plaintiff had been closed. There is no challenge to the order dated 29.05.2012. That has become final. The attempt by the plaintiff seeking recall of the order dated
28.07.2014 two years later by moving applications in May 2016 is not only belated but would,in any event, be futile because ofthe subsistence ofthe order dated 29.05.2012 which has attained finality.
To put a lid on the appellant/plaintiffs case, the order dated 27.07.2016 clearly indicates that the plaintiff/appellant was also ofthe view that the trial in both the suits was complete and fmal arguments wereto be heard.
In these circumstances, no case has been made out by the appellant for interfering with the impugned orders.
Consequently,the appeals are dismissed.
BADAR DURREZAHMED,J JANUARY 24,2017/ab A^nirosHSjM^^
JUDGMENT