Shashi Mohan Garg vs Mc Dowell & Co. Ltd. & Ors.
2012 Latest Caselaw 3864 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                 Date of Decision : July 03, 2012

+                       RFA(OS) 49/2010

       SHASHI MOHAN GARG                      ..... Appellant
           Represented by: Mr.Harsh Khanna, Advocate.


                        versus

       MC DOWELL & CO. LTD. & ORS.            ....Respondents
           Represented by: Mr.Hitender Kapur, Advocate.


       CORAM:
       HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
       HON'BLE MR. JUSTICE MANMOHAN SINGH


PRADEEP NANDRAJOG, J. (ORAL)

1. The appellant had sold a car of foreign make to the respondent No.1 which was found to be a stolen car and was thus seized by the police. The respondent No.1 filed a suit to not only recover the price of the car but also insurance charges paid for the car. Alleging that the respondent No.1 had obtained a finance from a bank to pay the price for the car, interest paid to the bank was also claimed, in addition to a claim for transport charges.

2. In the written statement filed the appellant did not deny having sold the car and that it was a stolen car, but raised certain issues giving birth to settlement of the issue whether the suit by the respondent No.1 company was signed, verified and instituted by a duly authorized person. Since the appellant had denied respondent No.1 having paid insurance charges as pleaded in the plaint and interest to the bank as

also transportation charges, issues were settled in respect of said amounts i.e. whether they were payable by the appellant to respondent No.1.

3. However, no issue was settled whether respondent No.1 was entitled to a decree in respect of the amount paid by it to the appellant and for not settling said issue, a detailed order was passed on July 12, 2007, which order has not been challenged and has attained finality. The order notes that in view of the pleadings of the parties said amount would in any case be payable by the appellant to respondent No.1.

4. Vide impugned decree dated February 22, 2010, noting that the appellant had filed a suit against respondents No.2 and 3, in which respondent No.1 company was also impleaded as a proforma defendant and in said suit the appellant had sued respondent No.1 through the same person who had instituted the instant suit on behalf of respondent No.1, the learned Single Judge has opined that the issue pertaining to the authorization in favour of the person who has instituted the instant suit on behalf of respondent No.1 need not be tried and thus a decree has been passed against the appellant with respect to the amount paid by respondent No.1 to the appellant requiring trial to be held with respect to the issues qua insurance charges paid by respondent No.1, interest paid to the bank and handling charges paid.

5. Learned counsel for the appellant concedes that in view of the order dated July 12, 2007, unless the said order is got set aside and an issue is got settled i.e. whether the respondent No.1 is entitled to a decree with respect to the amount paid by it to the appellant, the impugned decree has to stand.

6. Admittedly till date no steps have been taken by the appellant to challenge the order dated July 12, 2007. Thus, we find no worthwhile purpose being served in keeping alive the instant appeal which raises neither a question of law nor a question of fact to be adjudicated upon and hence we dismiss the appeal but refrain from imposing any costs.

(PRADEEP NANDRAJOG) JUDGE

(MANMOHAN SINGH) JUDGE JULY 03, 2012 dk