M/S Ms Shoes East Ltd. vs Anand Khandelwal & Ors.

$~8.
*    IN THE HIGH COURT OF DELHI AT NEW DELHI
+                         FAO(OS) 79/2016
                                             Date of decision: 16th May, 2017
       M/S MS SHOES EAST LTD.                        ..... Appellant
                     Through Mr. G.P. Thareja, Advocate alongwith
                     Mr. Pavan Sachdeva, CMD in person.

                          versus

       ANAND KHANDELWAL & ORS.                    ..... Respondents
                  Through Mr. Sanjeev Anand & Mr. Akshay
                  Kapoor, Advocates for respondent Nos. 2 to 4.
                  Ms. Shashi Panwar, Advocate for respondent Nos.
                  7 & 10.
                  Counsel for Mr. Lalit Kumar, Advocate for
                  respondent No. 9.

       CORAM:
       HON'BLE MR. JUSTICE SANJIV KHANNA
       HON'BLE MS. JUSTICE PRATHIBA M. SINGH

SANJIV KHANNA, J. (ORAL):

       This intra-Court appeal under Section 10 of the Delhi High Court Act,
1966 partly impugns the order dated 8th January, 2016 whereby IA Nos.
7591/2006 and 9204/2007 in CS(OS) No. 1005/1998, M/s M.S. Shoes East
Limited versus Anand Khandelwal have been disposed of. The contention
is that legal representatives of Anand Khandelwal should be brought on
record.
2.     The appellant herein, the plaintiff, had filed the aforesaid applications
in the suit which seeks decree of Rs.2,34,44,300/-. The suit was filed
against Anand Khandelwal on 20th March, 1998. Anand Khandelwal had



FAO(OS) No. 79/2016                                    Page 1 of 3
 expired before he could be served, on 27th October, 1999.
3.     The appellant had earlier filed IA No. 11960/1999 under Order XXII,
Rule 4 of the Code of Civil Procedure, 1908 (Code, for short) for bringing
on record legal representatives of Anand Khandelwal, namely, Ajay
Khandelwal. This application was dismissed vide order dated 25th March,
2008, inter alia, recording that Anand Khandelwal had not executed the
Memorandum of Understanding dated 1st November, 1994 pursuant to
which money was paid, in his personal capacity but in his representative
capacity as the managing trustee. The order refers to the definition of the
expression "legal representative" in Section 2(11) of the Code, and the
submission that Ajay Khandelwal should be impleaded as a party being a
legal representative or an inter-meddler in the estate. The contention was
specifically rejected holding that the "property" had not devolved on Ajay
Khandelwal nor he was the legal heir of the trust, which trust would
continue to subsist /survive irrespective of the demise of Anand Khandelwal.
This order specifically records that the plaintiff, i.e., the appellant had not
sought relief against Anand Khandelwal in his personal capacity.
4.     The appellant had accepted the order dated 25th March, 2008 and
states that he has not challenged or questioned the said order.
5.     In these circumstances, we find it difficult to accept the contention of
the appellant that legal representatives of Anand Khandelwal should have
been impleaded as a party in the second applications filed by him in 2006.
The earlier order dated 25th March, 2008 would prohibit and bar the
appellant from raising the said contention. In fact, IA Nos. 7591/2006 and
9204/2007 should have been disposed of, then.
6.     The impugned order passed by the single Judge impleads Mausmi



FAO(OS) No. 79/2016                                   Page 2 of 3
 Bhattacharya and Mahesh Sharma, trustees of Ram Charitable Trust, as
defendants. The aforesaid directions are in consonance with the provisions
of Order XXXI of the Code.
7.     No other contention or issue is raised by the appellant during the
course of arguments. He submits that he is not pressing the other prayers or
grounds raised, in view of limitation.
8.     We clarify that in this appeal we have dealt with a limited issue and
have not examined and expressed any opinion on other aspects, which are
pending trial. We also clarify that we are not required to express any
opinion relating to the criminal prosecution as this is not the subject matter
of the present appeal.
9.     With the aforesaid observations, the appeal is dismissed, with no
order as to costs.



                                             SANJIV KHANNA, J.

PRATHIBA M. SINGH, J. MAY 16, 2017 VKR FAO(OS) No. 79/2016 Page 3 of 3