M/S Aj.S.Restaurants P. Ltd. vs Seema Bhalla & Anr.
2013 Latest Caselaw 5832 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI
                                     Date of decision: 17th December, 2013.

+                                RFA 602/2003

       M/S AJ.S.RESTAURANTS P. LTD.             ..... Appellant
                     Through: Mr. Anshum Jain for Mr. Aseem
                              Mehrotra, Adv.

                                    Versus

    SEEMA BHALLA & ANR.                ..... Respondents
                  Through: None.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J.

1. The appeal impugns the judgment and decree dated 2nd April, 2003 of

the Court of the Addl. District Judge of dismissal of Suit No.52/2002 filed

by the appellant for recovery of Rs.5,50,000/- from the two

respondents/defendants jointly and severally.

2. This being a first appeal, was on 23rd July, 2003 when the same came

up first before this Court, admitted for hearing.

3. It however appears that the appellant/plaintiff did not take any steps

for service of the respondents/defendants after securing admission of the

appeal.

4. The appeal came up before this Court in the category of 'Regular

Matters' as per its turn on 4th January, 2012 when realizing that the

respondents/defendants had not been served, the matter was posted before

the Joint Registrar on 18th January, 2012 for ensuring completion of service.

5. Notices issued to the respondents/defendants were received back with

the report that neither of the two respondents/defendants were available at

the address furnished by the appellant/plaintiff. Accordingly the

appellant/plaintiff was vide order dated 18th January, 2012 directed to

furnish fresh address of the respondents/defendants no.1&2.

6. It is thereafter that the default yet again on the part of the

appellant/plaintiff commenced. No process fee for service of the

respondents/defendants was filed for 26th March, 2012, 13th July, 2012, 24th

August, 2012, 8th October, 2012, 23rd November, 2012 and 21st January,

2013. However for 18th March, 2013 though steps for service were taken by

the appellant/plaintiff but at the old address only and the notice was

accordingly received back with the same report, of the

respondents/defendants being not available at the said address. The counsel

for the appellant/plaintiff then stated that he will make an application for

substituted service. However no such application was filed and the counsel

or the appellant/plaintiff did not appear before the Registrar (Appellate) on

8th May, 2013; yet the matter was posted for 5th July, 2013, again no

application was filed and time was sought. On 21st August, 2013 again

none appeared for the appellant/plaintiff before the Registrar (Appellate) but

still adverse orders were deferred and the matter posted to 27 th September,

2013. Yet again no steps for service were taken and the Registrar

(Appellate) vide order dated 27th September, 2013 granted yet another

opportunity to the appellant/plaintiff subject to payment of costs and posted

the matter for 18th November, 2013. On 18th November, 2013 none

appeared for the appellant/plaintiff before the Registrar (Appellate) and the

costs had also not been paid. In these circumstances, the Registrar

(Appellate) posted the appeal before this Bench.

7. The counsel for the appellant/plaintiff today also is unable to state

whether costs have been paid or not. In fact the counsel for the

appellant/plaintiff has chosen to not even appear today and has sent a proxy

only for the purposes of taking the date.

8. More than ten years have already lapsed since the appeal was

admitted for hearing. The appellant/plaintiff inspite of not taking any

effective steps for ten years for service of notice of the appeal on the

respondents/defendants today also seeks an adjournment.

9. A mockery is sought to be made of the Court procedure. No further

adjournment or accommodation can be granted to the appellant/plaintiff.

10. Be that as it may, to satisfy the judicial conscience that no injustice is

being done to the appellant/plaintiff for the lapses if any of the Advocate,

the impugned judgment and the Trial Court record have been perused.

11. The appellant/plaintiff had instituted the suit from which this appeal

arises, pleading:-

(i) that the appellant/plaintiff had agreed to take the property of

the respondents/defendants for the purpose of opening a new

restaurant on the representation of the respondents/defendants that the

said property could be used for commercial purpose;

(ii) a License Agreement dated 5th May, 1999 was signed between

the parties and whereunder the appellant/plaintiff gave a sum of

Rs.3,25,000/- to the respondents/defendants as advance; and,

(iii) that the appellant/plaintiff however could not get the requisite

licenses for opening the restaurant in the said property inter alia on

the ground that the property was not commercial.

the suit was thus filed for refund of Rs.3,25,000/- paid to the

respondents/defendants with interest.

12. The learned Addl. District Judge, on the basis of the evidence led

before him has inter alia held,

(i) that the appellant/plaintiff had failed to prove any such

representation having been made by the respondents/defendants, of

the property being commercial and has found that what was deposed

by the Director of the appellant/plaintiff in his evidence was that it

was the property dealer who had represented so to him;

(ii) that merely because some other commercial activity was being

carried on in the property did not amount to representation by the

respondents/defendants to the appellant/plaintiff of the property being

commercial;

(iii) that it was for the appellant/plaintiff to have verified from the

concerned authorities with respect to the nature of the property and

the appellant/plaintiff had failed to prove that any such enquiry was

made by it;

(iv) that the appellant/plaintiff even after its application for license

had been rejected on the ground of the property being residential, did

not cancel the license and it was only when the

respondents/defendants upon non-payment by the appellant/plaintiff

of the agreed license fee cancelled the agreement that the

appellant/plaintiff for the first time took the said plea;

(v) that the respondents/defendants having kept their property

vacant and available for the appellant/plaintiff and the

appellant/plaintiff even after rejection of its application for licence

having slept over the matter for nearly one year, the

respondents/defendants were not liable for refund of any money.

13. No error is found in the reasoning given by the learned Addl. District

Judge and which is also found to be in consonance with the evidence led

before him.

14. Thus the appellant/plaintiff even on merits has no case.

15. The appeal is accordingly dismissed. Though exemplary costs should

be imposed on the appellant/plaintiff for taking up the time of this Court for

the last over ten years without showing any seriousness in pursuing the

appeal, but I am refraining from doing so.

Decree sheet be drawn up.

RAJIV SAHAI ENDLAW, J.

DECEMBER 17, 2013 pp..