Asha Sharma & Ors vs Sanimiya Vanijiya P. Ltd. & Ors.
2009 Latest Caselaw 3487 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

+       R.F.A. (OS) 35/2009 and CMs No. 5373/09 & 11767/09

                                             Reserved on: 24th August, 2009

                                      Pronounced on: 1st September, 2009

#       ASHA SHARMA & ORS                                 ..... Petitioner

!                                Through: Mr Rajat Joseph, Advocate.

                        Versus

$       SANIMIYA VANIJIYA P. LTD. & ORS.                ..... Respondent

^                                Through: Dr. A.M. Singhvi, Sr. Advocate
                                 with Mr. C. Mukund, Mr. Ashok Jain and
                                 Mr. N. Niohiram Sharma, Advocates
                                 Mr. A. Muakund, Advocate for R-9.

CORAM:

HON'BLE MR. JUSTICE VIKRAMAJIT SEN
HON'BLE MR. JUSTICE V.K. JAIN

        1. Whether Reporters of Local newspapers may be allowed
           to see the Judgment?

        2. To be referred to the Reporter or not?

        3. Whether the Judgment should be reported in the
           Digest?


V.K.Jain, J.

CM 5373/2009 & 11767/2009

1. This Appeal is diected against the Judgment dated 20.8.2008

in CS(OS) 1883/2006, whereby the plaint was rejected,

R.F.A. (OS) 35/2009 and CMs No. 5373/09 & 11767/09 ASHA SHARMA & ORS v SANIMIYA VANIJIYA P. LTD. & ORS.

under Order VII Rule 11(d) of Code of Civil Procedure was

rejected. The Appeal was initially filed on 26.9.2008 but was

returned with the following objections:

(1) Caveat Report is to be obtained or at the time of each

subsequent filing (1)

(2) Scrutiny charges of Rs. 100/- is to be deposited. (2)

(3) Opening sheet is to be filed and be placed just before

the appeal.(4)

(4) Court Fee is to be affixed according to valuation.(7)

(5) It should be stated whether the annexures filed are

part of trial court record.(9)

(6) Certified copy of Judgment & decree is to be filed and

stamped accordingly.(10)

(7) Petition/applications/ annexures / order / power of

attorney should be stamped.(109)

(8) Fair typed copy of dim annexure and hand written

annexure to be filed(115)

(9) List of dates to be filed.

(10) Application for delay in refilling be filed.

2. The appeal was re-filed on 20th October, 2008 but was

returned as objections had not been removed. It was again filed

on 30th October, 2008 but was returned on the same ground.

R.F.A. (OS) 35/2009 and CMs No. 5373/09 & 11767/09 ASHA SHARMA & ORS v SANIMIYA VANIJIYA P. LTD. & ORS.

Thereafter it was filed on 19th December, 2008 but was returned

as objections had not been removed. It was then filed on 13th

April, 2005 and was returned yet again as objections had not been

removed. It was thereafter filed on 15th April, 2009 and was

returned for the same reasons. Ultimately, it was filed on

16.4.2009. CM 5373/2009 has been filed for condonation of delay

in re-filing the Appeal. Since no Court fee stamp was affixed on

this appeal when it was filed, CM No. 11767/2009 under Section

149 Code of Civil Procedure for condonation of delay in making

deficiency in the Court fee has also been filed by the Appellants.

3. Section 149 of the Code of Civil Procedure provides that

where the whole or any part of any fee prescribed for any

document relating to Court fee has not been paid, the Court may

in its discretion, at any stage, allow payment of the whole or in

part of such Court fee, and upon such payment, the document, in

respect of which such fee is payable shall have the same force and

effect as if such fee had been paid in the first instance.

4. Section 4 of the Court Fee Act prohibits filing or receiving of

any Memorandum of Appeal, chargeable with court fee in case the

court fee as indicated in the relevant schedule of the Act is paid on

it.

R.F.A. (OS) 35/2009 and CMs No. 5373/09 & 11767/09 ASHA SHARMA & ORS v SANIMIYA VANIJIYA P. LTD. & ORS.

5. Section149 of the Code of Civil Procedure therefore

mitigates the rigours of Section 4 of Court Fee Act and if sufficient

cause is shown, the court may in its discretion allow a person who

has filed a Memorandum of Appeal without court fee or with

deficient court fee to make up the deficiency and the making good

of such deficiency cures the defect in the Memorandum, to the

extent it pertains to deficiency in court fee, not from the time

when it is made but from the time when it was presented in court.

In Mannan Lal Vs. Chhotaka Bibi, (Dead) by LRs. B. Sharda

Shankar and Ors. 1970(1) SCC 769, the Hon‟ble Supreme Court

held that the provisions of Section 149 of Code of Civil Procedure

should be read as a proviso to Section 4 of Court Fee Act which

places an embargo on filing of any document of prescribed nature

by the High Court unless requisite court fee is paid on it. This

proposition of law was reiterated by the Hon‟ble Supreme Court in

State of U.P. Vs. Rehmatullah AIR 1971 SC 1374. Similar view

was taken by the Hon‟ble Supreme Court recently in P.K.

Palanisamy Vs. N. Aruanugham and Anr. in Civil Appeal

No.4643/2009 decided on 23.07.09. The Hon‟ble Supreme Court

specifically held that if the deficiency in the court fee is made good

in terms of the order of the court, it must be held that the defects

must be treated as remedied from the date of original institution.

R.F.A. (OS) 35/2009 and CMs No. 5373/09 & 11767/09 ASHA SHARMA & ORS v SANIMIYA VANIJIYA P. LTD. & ORS.

6. Ordinarily, a document which is insufficiently stamped is not

to be received, filed or exhibited in a court. If and when an

insufficiently stamped document is filed in a court or is presented

before it, it has to be decided whether it has to exercise its

discretion in allowing time to the party presenting the document to

make good the deficiency. If it decides that the time should not be

granted, it will return the document as insufficiently stamped. If

the court decides that time should be granted, it will give time to

the party to make good the deficiency. If the deficiency is made

good within the time fixed by the court, the document is deemed to

have been filed or presented on the date it was originally filed or

presented.

7. No hard and fast rule can be laid down as to the

circumstances in which the discretion u/s 149 should be exercised

by extension of time. Each case has to be decided upon its own

facts. The use of the expression "at any stage" in Section 149 of

the Code of Civil Procedure leaves no doubt that the court can

allow deficiency in court fee to be made up at any stage. The

power of extension of time can be exercised even after lapse of the

period originally fixed by the Court (Mahanth Ram Vs. Ganga Dass

AIR 1961 SC 882). The discretion u/s 149 applies not only where

the court fee paid is not sufficient but also where no court fee has

R.F.A. (OS) 35/2009 and CMs No. 5373/09 & 11767/09 ASHA SHARMA & ORS v SANIMIYA VANIJIYA P. LTD. & ORS.

been paid at all as was held by the Privy Council in Faizullah Khan

Vs. Mauladed Khan AIR 1929 PC 147, and is otherwise evident

from use of the words "whole or any part of any fee" in Section

149 of the Code.

8. The Rules of Delhi High Court in the matter of filing and

scrutiny of appeals are contained in Volume V of High Court Rules

and Orders. Rule 5 Chaper „1‟, Part A prescribes as under:-

5. Amendment - The Deputy Registrar Assistant Registrar, Incharge of the Filing counter, may specify the objections (a copy of which will be kept for the Court Record) and return for amendment and re-filing within a time not exceeding 7 days at a time and 30 days in the aggregate to be fixed by him, any memorandum of appeal, for the reason specified in Order XLI, Rule 3, Civil Procedure Code.

(2) If the memorandum of appeal is not taken back for amendment within the time allowed by the Deputy Registrar, Asstt.

Registrar, in charge of the filing Counter under sub-rule(1), it shall be registered and listed before the Court for its dismissal for non-prosecution.

R.F.A. (OS) 35/2009 and CMs No. 5373/09 & 11767/09 ASHA SHARMA & ORS v SANIMIYA VANIJIYA P. LTD. & ORS.

(3) If the memorandum of appeal is filed beyond the time allowed by the Deputy Registrar, Asstt. Registrar in charge of the Filing Counter, under sub-rule(1) it shall be considered as fresh institution.

Note - The provision contained in Rule 5(1), 5(2) and 5(3) shall mutatis mutandis apply to all matters, whether civil or criminal.]

The above referred Rule was substituted with effect from

1.12.1988 vide notification No.208/DHC/Rules dated 5.8.1988.

9. It is quite clear from a bare perusal of the above Rule that

the Deputy Registrar cannot grant time of more than 30 days in

aggregate for re-filing of a Memorandum of Appeal, for the

reasons specified in Order XLI Rule 3 of the Code of Civil

Procedure. If the Memorandum of Appeal, after removing the

defects notified by the registry, is filed after more than 30 days, it

shall be considered as a fresh appeal, filed on the date on which it

is presented after removal of the defects.

10. In the present case, since the appeal was filed, after

removing defects only on 16th April, 2009, it cannot be disputed

that in view of the provisions contained in the Rules of Delhi High

Court, it shall be deemed to have been instituted only on

R.F.A. (OS) 35/2009 and CMs No. 5373/09 & 11767/09 ASHA SHARMA & ORS v SANIMIYA VANIJIYA P. LTD. & ORS.

16.4.2009 and it cannot be considered on merit unless the court

condones the delay in re-filing the Appeal and also extends the

time for paying the deficient court fee.

11. No doubt the term "sufficient cause" appearing in Section 5

of Limitation Act and Order XLI Rule 3 of the Code of Civil

Procedure needs to be liberally construed so as to advance justice.

As was held by the Hon‟ble Supreme Court in Indian Statistical

Institute v. M/s Associated Builders and Ors. AIR 1978 SC 335, the

delay in re-filing is not subject to the rigours - which are usually

applied in excluding the delay in a petition filed u/s 5 of the

Limitation Act. While considering condonation of delay in re-filing,

the court has also to consider the nature of the defects which led

to return of the document. If the objections are minor and

technical in nature, the courts ought to be more liberal in

condoning the delay. The standard for testing bonafides of the

Appellant have to be more strict, in a case were mandatory

documents are not filed with the Memorandum of Appeal. The

approach of the court, therefore, has to be different where it is

found that the Memorandum of Appeal was not accompanied by

documents such as certified copy of the impugned

judgment/order/decree or the requisite court fee was not paid.

The court has to be mindful that when there is delay in filing the

R.F.A. (OS) 35/2009 and CMs No. 5373/09 & 11767/09 ASHA SHARMA & ORS v SANIMIYA VANIJIYA P. LTD. & ORS.

appeal, a vested right accrues in favour of the respondent who, on

account of non-filing of the appeal, becomes entitled to benefit of

the judgment/decree/order against which the appeal is preferred.

Non registration and consequent non listing of an Appeal within

the prescribed period leads the opposite party to believe that the

judgement/order passed in his favour has been accepted by the

opponent and that is the reason for not filing the Appeal.

Therefore, even while adopting a liberal approach in such matters,

the courts cannot mechanically condone even if no reasonable

cause is shown at all.

12. Coming to the grounds set out in the applications, we find

that there is no explanation as to why certified copy of the

judgment and decree which were mandatory documents required

to be filed with Memorandum of Appeal were not filed in the first

instance. A perusal of the certified copy filed by the appellants

would show that it was delivered to them on 28th August, 2008.

Thus, certified copy of the impugned judgment was available with

the appellants when the appeal was filed. Despite that, it was not

filed alongwith Memorandum of Appeal and there is absolutely no

explanation as to why the certified copy of the judgment did not

accompany the Memorandum of Appeal.

R.F.A. (OS) 35/2009 and CMs No. 5373/09 & 11767/09 ASHA SHARMA & ORS v SANIMIYA VANIJIYA P. LTD. & ORS.

13. A perusal of the Memorandum of Appeal would show that no

court fee at all was filed alongwith it. As is evident from the

endorsement on stamp papers, the Court fee stamps were

purchased only on 13.10.08. No reason at all has been given by

the appellants for not purchasing court fee before the

Memorandum of Appeal was initially filed on 26th September,

2008. The reason for not filing the court fee is contained in paras

3. That the Applicants are filing the instant Application as a measure of abundant caution for reason that the Counsel for Respondent Nos. 1 - 6 on the last date of hearing on 08.07.2009 raised the issue of the subject Appeal having been filed without the requisite Court Fees in the first instance.

However, it is earnestly believed that there exist no reasonable grounds for those protestations by that Counsel.

4. That the Appellants first filed the accompanying Appeal against the impugned Order dated 20.8.2008 on 26.09.2008.

However, at that time due to reasons inadvertent the Appeal was unaccompanied by the requisite Court Fees and the same came to be deposited subsequently."

R.F.A. (OS) 35/2009 and CMs No. 5373/09 & 11767/09 ASHA SHARMA & ORS v SANIMIYA VANIJIYA P. LTD. & ORS.

14. It is not correct for the appellants to say that "inadvertently

the appeal was unaccompanied by requisite court fee". As noted

earlier, the court fee stamps had not at all been purchased by the

date on which the Appeal was initially filed. There could be no

quantum of inadvertently not filing the court fee, when it had not

been even purchased by that time. This is not the case of the

appellants that they did not possess sufficient means to purchase

the requisite court fee or that they were in some financial difficulty

which caused delay in purchase of court fee stamps. In fact, we do

not know on which date the court fee was actually filed by the

appellant. Since the date of filing court fee stamps has not been

given in the application, the inference is that it was filed only when

the appeal was finally filed on 16th April, 2009 after removal of all

the defects.

15. According to the appellant, the first delay occurred for the

reason that in the course of typing illegible and dim annexures and

documents the clerk of the counsel for the appellant misplaced

part of the annexures and only after extensive time consuming

efforts were those documents found, after which typing of those

documents/annexures also consumed considerable time. No

affidavit of the clerk of the counsel has been filed in support of this

averment. It has been alleged in CM No.5373/2009 that after

R.F.A. (OS) 35/2009 and CMs No. 5373/09 & 11767/09 ASHA SHARMA & ORS v SANIMIYA VANIJIYA P. LTD. & ORS.

filing on 20th October, 2008, the page numbering of appeal was

corrected and certain other documents had also to be typed out

being illegible and, therefore, it was re-filed on 31.10.08. We fail

to understand what could be the occasion for typing out more

documents when this is appellant‟s own case that the matter was

re-filed on 20th October, 2008 as illegible and dim documents were

to be typed. Surely, the documents which had already been typed

before re-filing on 20th October, 2008 were not required to be re-

typed. This is not the case of the Appellants that even the typed

documents filed by them were not acceptable to Registry and

therefore had to be retyped. What is more noteworthy in this

regard is that the Appellants have filed an application dated

09.04.09, (CM 5374/09) for exemption from filing clear / legible /

typed copies of documents. Filing of this application totally belies

the ground that the delay occurred on account of time taken in

typing certain illegible documents.

16. This is appellants‟ own case that the illegible documents had

been re-typed before the appeal was re-filed for the second time

on 31st October, 2008. The court fee stamps had already been

purchased by them before that date. Certified copy of the

impugned judgment / decree was also available with them since

prior to initial filing of the appeal. This is not the case of the

R.F.A. (OS) 35/2009 and CMs No. 5373/09 & 11767/09 ASHA SHARMA & ORS v SANIMIYA VANIJIYA P. LTD. & ORS.

appellants that they were not in a position to remove the other

defects notified by the Registry or had actually not removed those

defects by the time of second re-filing on 31st October, 2008.

There was absolutely no difficulty in removing the other defects

viz. i) Obtaining Caveat Report, ii) depositing scrutiny charges of

Rs. 100/-, iii) placing opening sheet just before the appeal, iv)

stating whether the annexures filed were on trial court record, v)

stamping petition/ applications/ annexures / orders / Power of

Attorney, vi) filing list of dates and vii) filing application for delay

in re-filing. In any case, the appellants do not say that they had

some difficulty in removing any of these, otherwise, minor defects.

Therefore, there is no explanation for the appellants not being in a

position to file the Memorandum of Appeal free from all the

difficulties notified by the Registry, when it was re-filed for the

second time on 30.10.2008. If the appellants had removed these

minor defects, there could have been no difficulty in filing the

appeal free from the defects notified by the Registry as certified

copy of the impugned judgment was also available with the

appellants and the court fee stamps had also been purchased by

them prior to 31.10.2008.

17. It has been alleged in para 5 of the application that when the

matter was re-filed on 19th December, 2008 after a passage of

R.F.A. (OS) 35/2009 and CMs No. 5373/09 & 11767/09 ASHA SHARMA & ORS v SANIMIYA VANIJIYA P. LTD. & ORS.

about 49 days since last filing the delay occurred as certified

copies of sale-deeds registered at Kolkata, West Bengal were

applied for and the same came in possession of the appellants only

around 15.11.2008. A perusal of the objections raised by the

registry would show that the appellant was not asked by the

Registry to file certified copies of sale deeds along with the appeal.

We have perused these certified copies. They have been filed along

with an application under Order XLI Rule 27 of Code for Civil

Procedure, for additional evidence. If the appellants wanted to file

an application under Order XLI Rule 27 of CPC to produce these

certified copies of sale-deeds by way of evidence, nothing

prevented them from filing such an application at a later date,

after they had obtained certified copies of sale deeds, but they

could not have withheld filing of the appeal for this reason. In fact,

the application could have been filed even without these certified

copies. A bare perusal of these documents would show that the

application for certified copies of these documents was filed on 4th

November, 2008. The impugned judgment was passed on 20th

August, 2008. There is absolutely no explanation for not applying

for certified copies prior to 4.11.08. In case the appellants felt

need of filing these documents they should have applied for

certified copies not later than 26th September, 2008 when this

appeal was filed. The registry would definitely not have refused to

R.F.A. (OS) 35/2009 and CMs No. 5373/09 & 11767/09 ASHA SHARMA & ORS v SANIMIYA VANIJIYA P. LTD. & ORS.

accept the Memorandum of Appeal on the ground that it was not

accompanied by certified copies of the sale deeds. A perusal of the

reply filed by the respondents to CM No. 5373/09 would show that

the copies of these sale deeds were filed by them in a trial court,

even before filing of CS (OS) No. 1883/06 and copies were also

supplied to the counsel for the Appellants.

18. Unfortunately, the Appeal was not free from all defects, even

when it was re-filed on 19.12.2008 after certified copies of sale

deeds had been received by the Appellants.

19. It has been alleged in para 5 of the application that after

15.11.08, the learned counsel for the appellant had to travel out of

station to attend to urgent personal obligations. However, no

particulars in this regard have been given in the application. It

has not been stated where the counsel had to go, on which date he

left Delhi and on which date he returned from outstation. The

averments made in this regard lack particulars and are totally

vague. In any case travel of counsel after 15.11.2008 could not

have come in the way of filing of Appeal, free from defects, before

he left Delhi as he had received certified copies of sale deeds

before that date.

20. It has been alleged in para 6 of the application that during

vacation, the learned counsel for the applicant was out of station

R.F.A. (OS) 35/2009 and CMs No. 5373/09 & 11767/09 ASHA SHARMA & ORS v SANIMIYA VANIJIYA P. LTD. & ORS.

and at the same time the appellants were also to procure

statements of bank accounts of deceased Satyawati Sharma.

Again, we fail to appreciate how copies of bank accounts of

deceased Satyawati Sharma could have delayed filing of appeal.

These were not the documents required to be filed with

Memorandum of Appeal. Therefore, it appears to us that this

ground is not at all bona fide and has been made only in an

attempt to cover the unexplained delay in re-filing the appeal. In

fact, we do not find any application by the appellants for

permission to summon the record of these bank accounts. We

would like to add here that Bank Ledgers are not destroyed so

soon and in any case there is no certificate from the bank in this

regard so as to justify the time claimed to have been taken for this

purpose.

21. It has also been alleged in the application that in the course

of shifting of residence of the appellant in February, 2009, the

main appeal copy which had been taken by the appellants to

scrutinize/read came to be misplaced and was located only in the

second week of March, which also contributed to the delay. This

ground is not convincing at all and is absolutely flimsy, to say the

least. If the appellants were to read the appeals, they would do so

before its initial filing and not 5 months after filing the appeal. In

R.F.A. (OS) 35/2009 and CMs No. 5373/09 & 11767/09 ASHA SHARMA & ORS v SANIMIYA VANIJIYA P. LTD. & ORS.

fact, the Appeal ought to have been re-filed prior to Feb. 2009,

when the alleged shifting of residence took place.

22. The last ground given in the application is that the

worsening economic scenario paralysed and debilitated appellant

No.2 financially and, therefore, he remained unable to attend to

the appeal for a considerable period during the first quarter of this

year. No particulars of the alleged economic paralysis of appellant

No.2 have been given in the application. We fail to appreciate how

economic condition of appellant No.2 could have come in the way

of refilling of appeal when the court fee had already been

purchased in October, 2008, the lawyer had been engaged,

certified copy of the impugned judgment was already available and

the appeal had already been drafted, typed and filed way back in

September, 2008.

23. It is trite law that Rules of Procedure being hand-mades of

justice, a party should not be refused relief merely because of

some mistakes, negligence or inadvertence. Rules of Procedure

are designed to facilitate justice and further its ends. But,

even if we take a rather liberal approach in this matter, we are

unable to find any good ground for condonation of delay in filing

this appeal. None of the reasons given in the application is

convincing or logical. The impression we gather is that the

R.F.A. (OS) 35/2009 and CMs No. 5373/09 & 11767/09 ASHA SHARMA & ORS v SANIMIYA VANIJIYA P. LTD. & ORS.

appellants deliberately delayed filing of the appeal so as to prolong

the litigation. It cannot be said that even if the appellants were

totally negligent and careless and have not come forward with any

worthwhile explanation for the delay, the court ought to condone

the delay in re-filing. The Rules framed by the High Court cannot

be allowed to be taken so casually and there will be no sanctity

behind the rules if every delay in re-filing, is to be condoned

irrespective of howsoever unreasonably long and unexplained it

be, and howsoever mandatory be the nature of the documents,

non-filing of which renders the Appeal defective. We cannot

condone the delay merely because an application for condonation

of delay has been filed. No court would not like to reject an appeal

as time barred unless there are strong reasons, which compel the

court to take such a view. Some indulgence and a liberal view in

such matters is well-accepted but to say that the court has no

option in the matter and must accept the Memorandum of Appeal

irrespective of the nature of the objections and delay in re-filing,

even where there is no reasonable explanation to justify the delay,

would only be travesty of justice and will be as good as removing

the relevant Rule in High Court Rules and Orders, from the

Statute Book.

R.F.A. (OS) 35/2009 and CMs No. 5373/09 & 11767/09 ASHA SHARMA & ORS v SANIMIYA VANIJIYA P. LTD. & ORS.

24. These days we find a growing tendency to file an incomplete

Memorandum of Appeal and then take unreasonably long time to

remove the defects, even where such defects can be cured within a

very short time. Such a practice cannot be said to be conducive to

be fair and reasonable and therefore needs to be curbed. An

unduly liberal and benevolent approach will only give

encouragement to such unfair practices and therefore is not called

for. When an Appeal comes up for hearing long after expiry of the

prescribed period of limitation, it springs surprise on opposite

party, which assumes finality in his favour on account of non-filing

of Appeal within a reasonable period.

25. In Parvati and Ors. Vs. Anand Parkash alias Nand Lal AIR

1987 Delhi 90, this court refused to condone the delay of 9 months

as the explanation given for the delay was not found to be

satisfactory

In Radhey Shyam Gupta & Ors. Vs. Kamal Oil and Allied

Industries and Ors. 2005 (82) DRJ 530, this court refused to

condone the delay in re-filing as the appellant failed to justify the

delay in filing the matter.

In Gurbachan Singh V. Master Singh, etc., 1984(1) RCJ 619,

Punjab & Haryana High Court observed that these rules having

been made by the High Court to further the ends of justice, a party

R.F.A. (OS) 35/2009 and CMs No. 5373/09 & 11767/09 ASHA SHARMA & ORS v SANIMIYA VANIJIYA P. LTD. & ORS.

cannot be given undue latitude in complying with the orders of

Registry to remove the defects and to move at leisure. If latitude

is given to the litigants then they might take not only months but

years to comply with the orders.

26. For the reasons given in the preceding paragraphs, we find

no ground at all for extending the time for payment of deficient

court fee and for condoning the delay in filing the appeal.

CMs 5373/2009 and 11767/2009 are hereby dismissed.

RFA (OS) No. 35/2009

In view of dismissal of CMs No. 5373/2009 and 11767/2009,

the appeal is liable to be dismissed being barred by limitation.

The appeal is dismissed accordingly.

V.K.JAIN, J.

VIKRAMAJIT SEN,J.

SEPTEMBER 1, 2009 acm/sk

R.F.A. (OS) 35/2009 and CMs No. 5373/09 & 11767/09 ASHA SHARMA & ORS v SANIMIYA VANIJIYA P. LTD. & ORS.