M/S Lubeman Additives (P) Ltd. And ... vs M/S Lubrioil Worldwide Inc.
2012 Latest Caselaw 2523 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI


+                             RFA No. 369-71/2006


%                                                          18th April, 2012

M/S LUBEMAN ADDITIVES (P) LTD. AND ORS.          ..... Appellants
                 Through : Ms. Damini Khaira, Advocate.

                     versus

M/S LUBRIOIL WORLDWIDE INC.                                  ..... Respondent
                  Through : None.

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J. (ORAL)

1. Mr. H.D. Talwani, Advocate appears for Mr. S.K. Chaudhary,

Advocate and states that Mr. S.K. Chaudhary had appeared in this case for the

respondent, however, no vakalatnama was received from the respondent. The

counsel, therefore, states that neither he nor Mr. S.K. Chaudhary can appear

for the respondent, inasmuch as, no instructions are received and nor is any

vakalatnama filed on record.

2. The challenge by means of this Regular First Appeal filed under

Section 96 of the Code of Civil Procedure, 1908 (CPC) is to the impugned

judgment of the trial Court dated 20.5.2006 decreeing the suit for recovery of

`16,25,000/- alongwith interest @ 9% per annum. The suit has been decreed

without any trial or framing of issues, by allowing an application under Order

12 Rule 6 CPC filed by the respondent/plaintiff.

3. The facts of the case are that the respondent/plaintiff filed a suit against

the appellants alleging that the sum of US$ 25,000/- was sent to the appellants

with respect to a joint venture agreement which did not fructify. It was

pleaded that there were disputes with respect to percentage of share holding in

the joint venture company which was to be floated and, therefore, the joint

venture could not take off. It was further pleaded that the

appellants/defendants had admitted, vide its letter dated 19.6.2001 the receipt

of US$ 25,000/- and, therefore, the suit for recovery should be decreed.

4. Before the trial Court, the appellants/defendants besides taking other

defences on merits specifically pleaded that the amount which was sent by the

respondent/plaintiff to the appellants/defendants was spent towards research

and development work for the products being lubricants, oil, etc. and

therefore the amount sent is not recoverable.

5. It is settled law that disputed questions of fact cannot be decided

without trial. The mere fact that the appellants admit having received US$

25,000/- cannot mean that the suit could be straightaway decreed under Order

12 Rule 6 CPC without the defence of the appellants/defendants being

considered that the amount which was received of US$ 25,000/- could not be

recovered as it was spent for research and development, and which defence

the appellants/defendants should be allowed to substantiate during trial.

Merely because the respondent/plaintiff may have a very strong case cannot

mean that the suit can be decreed under Order 12 Rule 6 CPC. Once there are

disputed questions of facts, as per Order 14 Rules 1 and 2 CPC issues have to

be framed and only after leading of evidence, can the suit be decided. Since

the appellants/defendants have disputed the entitlement of the

respondent/plaintiff to receive US$ 25,000/-, inasmuch as, the same is said to

have been spent in research and development, this is a factual issue which

requires trial.

6. The appeal is, therefore, accepted and the impugned judgment dated

20.5.2006 is set aside. Trial Court will now hear and dispose of the suit in

accordance with law after allowing the parties to lead their respective

evidences. Nothing contained in today's judgment is a reflection on merits of

the case of either of the parties and the trial Court will hear and dispose of the

suit uninfluenced by any observations as per the contentions of the parties

made in this judgment.

7. Parties to appear before the District and Sessions Judge, Delhi on 23rd

May, 2012, and on which date, the District and Sessions Judge, Delhi will

mark the suit for disposal to a competent Court in accordance with law.

8. Since the respondent/plaintiff is not represented in this Court, the

concerned competent Court will issue notice to the respondent/plaintiff as also

to its counsel before proceeding further in the matter. Trial Court record be

sent back so as to be available to the District and Sessions Judge, Delhi on the

date fixed before him.

VALMIKI J. MEHTA, J.

APRIL 18, 2012 AK