Delhi High Court

Montblanc Simplo-Gmbh vs New Delhi Stationery Mart And Anr. on 27 April, 2011

Author: V. K. Jain

         THE HIGH COURT OF DELHI AT NEW DELHI

%                     Judgment Pronounced on: 27.04.2011

+           CS(OS) No. 1251/2007

MONTBLANC SIMPLO-GMBH                          .....Plaintiff

                            - versus -

NEW DELHI STATIONERY MART AND ANR.
                                               .....Defendant

Advocates who appeared in this case:
For the Plaintiff: Mr. Niki Kantawala, Mr. Neel Mason,
                   Ms. Vrinda Sharma and Mr. Sankalp
                   Dalal
For the Defendant: Mr. Shyam Moorjani and Mr. Anil Kr.
                    Sablawat for D-2.

CORAM:-
HON'BLE MR JUSTICE V.K. JAIN

1. Whether Reporters of local papers may
   be allowed to see the judgment?                         No

2. To be referred to the Reporter or not?                  No

3. Whether the judgment should be reported                 No
   in Digest?

V.K. JAIN, J. (ORAL)

IA No.13607/2011 (u/O 6 R 17 CPC)

1. This is an application filed by defendant No.2 for

amendment of written statement. A large number of

amendments are proposed to be made by the applicant in

various paragraphs of the written statement, besides

inserting certain additional paragraphs.

2. The application has been opposed by the plaintiff

on the ground that some of the proposed amendments are

in conflict with the order of the Supreme Court dated 20 th

September 2010 and the proposed amendments are not

necessary for complete and effective adjudication of

controversy and issue involved in the present suit.

3. IA No.3419/2009 was filed by defendant No.2

under Order 7 Rule 11 of CPC for rejection of the plaint.

The application was dismissed vide order dated 13 th August

2009. A Review was, thereafter, filed by defendant No.2,

which also came to be dismissed on 10th August 2010. A

Special Leave Petition was filed by defendant No.2 in

Supreme Court, which was disposed of vide order dated 20 th

September 2010. While disposing of the petition, Supreme

Court inter alia directed as under:-

"Learned counsel of the petitioner submitted that he urged important grounds in his application under Order VII Rule 11 but many of the grounds have not been dealt with by the High Court and the trial court. In our opinion, if any ground has not been dealt with by the High Court and the trial court the petitioner is at liberty to raise those grounds in his written statement but he will not be permitted to raise any ground which has been dealt

with by High Court and the trial court."

4. It would be seen from a perusal of the above

referred order that any ground taken in IA 3419/2009 if

dealt with by this Court, cannot be permitted to be raised by

the applicant/defendant No.2. Therefore, the proposed

amendments, to the extent they pertain to the grounds

which were dealt with by this Court vide order dated 13th

August 2009, cannot be allowed.

5. While dismissing IA 3419/2009, this Court in para

7 of the order observed as under:-

"After considering all the facts and submissions made by the counsel of the parties, I am of the view that, the issue of dual capacity as raised by the applicants, is mere a technical irregularity, which does not affect the root cause of the issue as raised in the original suit, it would not cause any prejudice to the non-applicants if allowed to get cured. There is no legal bar to an advocate being appointed as a constituted attorney by a party for the purpose of a case."

6. In para 10 of the application, the Court inter alia

held as under:-

"Substantial rights should not be allowed to be stultify and scuttle on account of a procedural irregularity which is curable. This technical irregularity is not fatal to the proceedings and if is allowed it would cause further delay in the matter."

7. The case of the applicant/defendant No.2 is that

M/s. DSK Legal were the Advocates and Solicitors of the

plaintiff company and a legal notice in respect of the present

matter was sent by them to the defendant through Mr.

Abhishek Malhotra, Advocate, who is a part of DSK Legal.

This is also their case that Ms. Gopika Pant, Advocate, who

is alleged to be attorney of the plaintiff, was also a partner of

DSK Legal and, therefore, there being a conflict of interest,

she could not have acted in dual capacity i.e. as attorney as

well as the counsel of the plaintiff company.

8. Since, this Court was of the view that the issue of

dual capacity, as raised by the applicants, was a mere

technical irregularity, which does not affect the root cause

of the issue and there was no legal bar to an advocate being

appointed as a constituted attorney by a party for the

purpose of a case and was further of the view that this

technical irregularity is not fatal to the proceedings, it is not

open to the applicant/defendant No.2 to again rake up the

issue of dual capacity by way of proposed amendment. If

allowed to be raised, this would be in conflict with the order

passed by the Supreme Court on 20th September 2010.

9. Mr. Moorjani states that the order of the Supreme

Court pertains to only an application under Order 7 Rule 11

of CPC for rejection of the plaint and, therefore, there can be

no bar to his raising same plea in the written statement, the

same being otherwise permissible in law. I need not go into

this aspect of the matter for the simple reason that the

Supreme Court, while passing the order dated 20th

September 2010, expressly directed that the grounds which

had been dealt with by this Court will not be allowed to be

raised.

10. A perusal of the application under consideration

would show that proposed paras 6(h) 6(i) and the following

part of proposed para 1(d) refer to the ground of dual

capacity which has already been dealt with and rejected by

this Court vide order dated 13th August 2009:-

"It is also imperative to mention herein that in the Appeal, a caveat application No.157 of 2007 was filed by DSK, Legal in which Ms. Gopika Pant as client has executed 1st vakalatnama on 23rd May, 2008 in favour of DSK Legal appointing inter alia herself as advocate along with other Advocates i.e., Gopika Pant, Balbir Singh Mastan, Abhishek Malhotra, Shweta Singh and Manu T.R. Advocates of DSL Legal, 40 Aradhna, Chankyapur, R.K. Puram, Sector-13, New Delhi-110066. Said Caveat Application was served upon

2nd Defendant through registered A.D. reference No.DSK/DEL/(HC-1) of dated 23rd May 2008. At this juncture Ms. Gopika Pant herself represented as client by concealing the true facts and also appointed herself among others as an Advocate to represent the instant case, from this it is apparent that DSK Legal and its partners have been representing and acting both as „Advocate/s‟ as well as „client‟ simultaneously in the same cause‟ which is not permissible under law. Hence, the suit is liable to be dismissed on this count alone."