Delhi High Court
M/S Banaras Clothiers (P) Ltd. vs Padam Chand Jain And Another on 16 August, 2001
Author: A Sikri
Bench: A Sikri
ORDER
A.K. Sikri, J.
1. By this order it is proposed to dispose of this I.A. No. 3654/2001 filed by the plaintiff under Section 24 read with Section 151 of the Code of Civil Procedure, 1908. By this application the plaintiff is seeking transfer of the following four civil suits pending in the Court of Shri A.K. Garg, Additional District Judge, Delhi:
1. P adam Chand Jain Vs. Banaras Clothiers Pvt. Ltd. and another.
2. Sandeep Jain Vs. Banaras Clothiers Pvt. Ltd. and anothers.
3. Mohit Jain Vs. banaras Clothiers Pvt. Ltd. and another.
4. Tarun Jain Vs. Banaras clothiers Pvt. Ltd. and another.
2. The plaintiff has filed the instant suit for recovery of Rs. 8,03,100/-. It is inter alia stated in the plaint that plaintiff is a Pvt. Ltd. Company and Shri R.K. Gupta is one of its Directors. Shri R.K. Gupta was having personal relations with Shri Padam Chand Jain, defendant No. 1 herein and being intimate friends, the defendant No. 1 in order to settle his son i.e. defendant No. 2 in the business of export garments approached Shri R.K. Gupta, the Director of the applicant company who was already carrying on business of export of garments and requested him to help in settling defendant No. 2 in the said business and showed his willingness to invest money by purchasing the shares of the applicant company and becoming one of the Directors of the plaintiff company. The Defendant No. 1 accordingly purchased shares from time to time in his name as well as in the name of defendant No. 2 and his two sons who were minor at that time namely Shri Mohit Jain and Shri Tarun Jain by giving cheques of different dates. The applied shares of the plaintiff company were accordingly issued as per application forms submitted by the defendant No. 1. The defendant No. 1 became one of the directors of the plaintiff company and nominated his son defendant No. 2 to look after and work in the company as the nominee of defendant No. 1 and on his behalf. These background facts are stated in the plaint. The cause of acton for filing the suit as can be discerned from the plaint is that all of a sudden defendant No. 2 stopped coming office of the plaintiff company from 15.6.1995 also took along with him keys of the plaintiff company he has in his possession stocks and items belonging the plaintiff company which he has not returned despite various demands made upon him. The details of the cost of goods/items allegedly in possession of defendant No. 2 are given in para-8 which are as under:
Cost of Stock Fabric
and other Material Rs. 6,50,000.00
Cost of Plant and Machinery Rs. 26,500.00
Cost of Furnitures and
Fixtures etc. Rs. 95,500.00
Cost of 15 Samples of buyers
@ Rs. 1000.00 per piece Rs. 15,000.00
Recovery of Balance Amount
from parties of defendants Rs. 10,600.00
Total Rs. 7,97,600.00
Adding Rs. 5,500/- as cost of Legal Notice sent, the total amount claimed is Rs. 8,03,100/-
3. Admittedly prior to the filing of the present suit the aforesaid four suits pending in the Court of Shri A.K. Garg, ADJ, Delhi which are sought to be transferred to this court were filed by defendant No. 1 and his sons. These four suits are filed on the allegations that certain loans were given by defendant No. 1 and his sons in those suits to the plaintiff company and suit are for recovery of those amounts along with interests.
4. Learned counsel for the plaintiff argued that the aforesaid four suits warrant to be transferred to this court inasmuch as there are common allegations relating to friendly relationship of Shri Padam Chand Jain and Shri R.K. Gupta in the present suit as well as in those suits and that against the money given by defendant No. 1 and his sons the agreement was to allot him shares to the plaintiff and the money was not given by way of loan. Learned counsel also relied upon the judgments of Indian Overseas Bank, Madras Vs. Chemical Construction Co. and others ; M/s Engineering Investments Pvt. Ltd. Vs. M/s Bharat Heavy Electricals Ltd., Madras and another ; Pitambar Padhi and another Vs. Smt. Santilata Padhi and others to contend that when the suit pending in this Court as well as suits pending in the District Court raise common question of facts and law between parties common to both the suits, it would be in the interests of justice to transfer the suits pending in the District Court to this Court to avoid multiplicity in the trial of the same issue and the risk of conflicting decision thereon.
5. While the proposition of law stated in the aforesaid judgments cannot be quarrelled with and has to be accepted, i am afraid the plaintiff has not been able to satisfy that this suit as well as suits pending in District Court raise common question of facts and law. As already pointed out above in the present suit filed by the plaintiff, it is averred that some monies were given by defendant No. 1 and his sons and is alleged that as against that defendant No. 1 and his sons were given some shares. This is only a background matrix of the plaint which may be treated as introductory in nature while introducing the case. The core issue in the present suit is as to whether defendant No. 2 was Director of the plaintiff company and whether defendant No. 2 is having the custody of goods/items belonging to the plaintiff company which he was under obligation to return and on defendant failure to return, whether plaintiff is entitled to claim on that account. On the other hand the core issue involved in the suits pending in the District Court is as to whether the amount given by defendant No. 1 and his sons herein was loan amount and the plaintiff herein is bound to return the same. May be what is stated in Para-3 of the plaint in the instant suit is to the effect that money given by defendant No. 1 and his sons was not loan but the value of the shares allotted to them could be the defense of the plaintiff company in the suits filed by defendant No. 1 herein and his sons. However, that would not show that any commonality of question of facts and law is involved between the proceedings pending in this suit and the suit pending in the District Court. At the cost of repetition, it is stated that relief sought in the suit pending before the District Court is on the basis of allegations that financial assistance was granted by the defendant No. 1 and his sons to the plaintiff herein and the suits are for repayment of the alleged loan advanced by them while in the present suit plaintiff has sought damages against defendant No. 1 and one of his sons, namely, defendant No. 2 on the ground that defendant No. 2 allegedly became Director of plaintiff company and in that capacity was in charge of Bodella Unit of the plaintiff company and mis-managed the affairs of the plaintiff company and is in custody of some goods belonging to the plaintiff company which he did not return. Merely because some of the allegations made by the parties are common in the two sets of suits, with no bearing on the outcome of the two sets of suits based on different causes of action, there is no ground to transfer the suits pending in the District Court to this Court. This application is accordingly dismissed.
