P.D. Jain vs Oswal Agro Mills And Ors.
1995 Latest Caselaw 656 Del

JUDGMENT

(1) This is a Regular First Appeal filed by the appellant Along with Cm 588 of 1990 to permit the appellant to file an appeal as an indigent person. This application has been filed under Order 33 rules 2 and 3 CPC. The appellant is the defendant and the order under appeal is a decree in suit in the sum of Us $ 52,37,284.54. The appeal is against the decree dated May 9,1989 passed in Ia 5119/1987 etc. and in Suit No.1917 of 1986 and in Omp 28 of 1987. The suit was filed by Oswal Agro Mills Ltd. against the appellant and others claiming a decree for Rs.3,83,86,288.95 with interest thereon @ 18%.

(2) The suit ended in a decree for the amount of Us $ 52,37,284.54 with interest and costs. The appeal has been preferred by the first appellant against the said decree and on the ground that the appellant is not able to afford court fee payable on the memorandum of appeal,this application has been filed under Order 33 rules 2 and 3 CPC.

(3) Notice was ordered on 24.5.90 and the respondent appeared on subsequent dates of hearing. The matter was placed before the learned Registrar of this court for parties' evidence by an order dated 10.12.91. The case was taken up on 8.4.92,20.7.92, 15.3.93, 26.8.93, and 4.1.94 when no witness was brought before the learned Registrar for adducing evidence on the question whether the appellant could file an appeal as an indigent person. On 14.2.94 none appeared for the appellant, therefore the learned Registrar ordered notice to the appellant and to his counsel. On 22.4.94 counsel Ms.Ratna Divedi appeared and stated that she was no longer holding the brief of the appellant and the appellant had taken away the files from her. She undertook to inform the appellant by the next date of hearing and the matter was adjourned to July 27,1994. Then the matter was adjourned to 5.9.94. On that date learned counsel for the appellant had requested for last opportunity to contact his client to produce his evidence on the application. The matter was adjourned to 19.10.94 by the learned Registrar. On 19.10.94 learned counsel for respondent No.3 has pointed out that this case is pending for the last four years and the applicant is not leading evidence. Learned counsel for the appellant had stated that the appellant was in London and was not able to come to India. He undertook to produce the evidence of the appellant if another date was given. The application was therefore adjourned to 27.10.94. On that date no witness was present and learned counsel sought one more date in January, 1995 as the appellant was in London and it was stated that he was unable to procure evidence in support of the application. In spite of the opposition of the opposite side the learned Registrar granted an adjournment when the matter was adjourned to 5.1.1995. On that date learned Registrar noted that the appellant had not turned up and learned Registrar observed that there was no ground to adjourn the matter. However, in the interest of justice one more opportunity had been granted. The case was adjourned to 29.3.1995. On this date it was stated that the appellant was in U.K. and he was not able to come. It was also stated that the appellant had executed a power of attorney in favor of another person and that person may be examined by the court. The learned Registrar observed that since the application is under Order 33 rules 2 and 3 Civil Procedure Code and even Mr.P.D.Jain had not been examined by this court at the initial stage, it is desirable that Mr.P.D.Jain is examined in this case personally. Counsel then asked for an adjournment and the same was opposed. Learned Registrar gave the final opportunity and adjourned the matter to 28.4.1995. On that date the appellant was not present and learned counsel stated that he was in U.K and no reason had been given for his absence today. The Registrar found that no ground was made for adjourning the matter. The opposite party contended that statement of the respondent should be recorded. Thereafter the statement of Ms.Mukti Chaudhary, counsel for respondent No.1 was recorded without oath and the evidence of the appellant on the application was closed by the learned Registrar. Statement of Mr.Rishikesh, counsel for respondent No.3 without oath was also recorded and it was stated that the evidence of the appellant be closed. The learned Registrar closed the evidence and posted the matter for arguments on the application.

(4) On 9.5.1995 learned counsel for the appellant requested for short adjournment on the ground the senior counsel was not available and the matter was adjourned to 18.5.95. On that date, further adjournment was sought on the ground that the personal case of the counsel was posted in some other court and the case was adjourned to 7.7.1995. On that date, it was contended that Special Leave Petition was filed before the Supreme Court. The Supreme Court permitted the appellant to file an appeal against the impugned decree. It was stated that the Supreme Court had also observed that it was open to the appellant to file the appeal as indigent person. It was stated that the appellant did not possess any property other than the property exempted from attachment in execution of the decree, list has already been filed in Schedule I. The property is situated in London. The total suit amount would exceed Rs. six crores on which court fee of about Rs.11 lacs was required to be paid. It was said that the appellant being a retired person, he is not possessed of sufficient means to pay the court fee. It was further stated that the appellant was not in a position to come to India because of the expenses involved and because of his state of health. It was stated that air ticket would cost Rs.30,000.00 and therefore, C.M.588 of 1990 was being filed through his power of attorney holder Mr.Anil Jain who was in a position to answer all material questions relating to the petition. It was stated that although the petitioner was jointly owner with his wife a residential house in London, it stood mortgaged to Punjab National Bank London Branch as security for liability of M/s.Indo Europe Food Limited and the said house could neither be attached and that its resale value was nil. It was further stated that the appellant was unemployed and did not have any source of income and that he owned only wearing apparel which could neither be attached nor had resale value. The petition was accompanied by an affidavit of Mr.Anil Jain as holder of power of attorney executed by the appellant.

(5) The learned Registrar noticed that the appellant was not a party to the suit and the decree was passed against M/s.Indo Europe Food Limited which is now said to be defunct and that the appellant had no liability in his personal capacity under the impugned judgment and decree dated 19,5.1989. It was stated by the learned counsel for the appellant that the Supreme Court while disposing of the Special Leave Petition of the appellant vide orders 16.3.1990 had allowed the appellant to file appeal as indigent person. The learned Registrar then observed that that was not true and that the appellant had failed to produce any evidence to substantiate the grounds in spite of various opportunities granted to him. The request was declined as the appellant was not examined even at the time of presentation of the indigent petition. The learned Registrar found that considering all the facts and circumstances of the case the evidence of the appellant was closed. The total assets moveable and immovable, source of income etc. were in the personal knowledge of the appellant and without examining him on oath before court true financial status of the appellant could not be found. The examination of his power of attorney holder in this petition would not serve the purpose. Even the schedule of property attached with the petition was vague and in fact the appellant had supressed true facts.

(6) For all these reasons the learned Registrar found that the appellant was not an indigent person within the meaning of Order 33 rules 2 and 3 Civil Procedure Code and could not be granted leave to file suit as an indigent person. The learned Registrar then directed that his report be placed before the court on 24.7.95.

(7) When the matter came up before us on 24.7.95 we asked the counsel to state whether the appellant travelled to India in last five years during the pendency of the appeal or whether the appellant could not have come to India or move outside London before July,1995. We, therefore, directed the appellant to file a photocopy of the his passport for the period 24.5.1990 till date for the purposes of verifying whether during this period of pendency of the appeal he had not come to India. Photocopy of the passport was produced before us by the learned counsel for the appellant. It showed that the appellant had gone to the following places: 26.12.1990Madagascar. 27.12.1990 Mauritius 20.02.1992 U.S.A. 26.11.1992 Hongkong 28.11.1992 China. 13.12.1992 Venezuela 09.04.1994 India. 27.11.1994 India. 24.05.1995 Zambia 24.05.1995 Zinbabwe.

(8) From the above material and photocopy of the passport produced by the learned counsel for the appellant, we find that the appellant has been moving from London to various countries and it can not be said that the appellant in the circumstances was unable to appear before the Registrar for the purpose of adducing evidence or the appellant was not able to pay the court fee. We found that even the appellant was in India on 9.,4.94 and 27.11.94 and during this period his counsel was seeking adjournment on the ground that he was not having enough funds to come to India. Appellant, though in India, failed to appear before the Registrar or to produce his witness. Therefore the contention of the appellant that he was not able to come to India for adducing evidence before the Registrar cannot be accepted. In fact the contention raised before the learned Registrar on 7.7.1995 was that the appellant could not afford the air ticket which costs Rs.30,000.00 . This contention cannot be accepted.

(9) For the aforesaid reasons the application (CM 588 of 1990 ) for permission to file the appeal as indigent person is dismissed. No request is made for grant of time to pay court fee. Consequently the appeal is also rejected for non payment of court fee.