Bhupinder Kumar Sahni vs Mukesh Kumar Aggarwal & Anr
2013 Latest Caselaw 5269 Del

$~16.
*        IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                              Judgment dated 18.11.2013

+                           CRL.A. 1455/2013

         BHUPINDER KUMAR SAHNI                                    ..... Appellant
                     Through : Appellant in person.

                            versus

         MUKESH KUMAR AGGARWAL & ANR                 ..... Respondents
                    Through : Mr.Firoz Khan Ghazi, Adv.

         CORAM:
               HON'BLE MR. JUSTICE G.S.SISTANI


G.S.SISTANI, J. (Oral)

CRL.M.A. No.17180/2013.

1. Exemption allowed subject to all just exceptions.

2. Application stands disposed of.

CRL.A. 1455/2013

3. Challenge in this appeal is to the order dated 6.8.2013 on an application filed by the appellant under Section 340 Cr.P.C.

4. The facts of the case, as mentioned in this appeal, are that respondent no.2, company, had filed a suit under Order XXXVII of the Code of Civil Procedure for recovery of Rs.5,68,750/- through respondent no.1 against M/s Byford Leasing Limited, of which the appellant herein is one of the Directors. According to appellant, false averments were made in the plaint, including that defendant no.3, Smt.Krishnawanti Sahni, in the suit was a Director of Byford Leasing Limited and was actively participating in day-to-day affairs and activities of the company. On the basis of this

averment, the learned trial court issued summons for judgments for appearance against the defendants. This averment, according to the appellant, is a false averment for the reason that the said Smt.Krishnawanti Sahni died on 20.10.2001 and, thus, respondent no.1 has committed perjury. Another application filed by the appellant herein with the same relief was on account of another false averments made with regard to sale of a tractor was also dismissed by an order dated 6.8.2013, which has led to the filing of the present appeal.

5. The appellant, who appears in person, submits that the order of the learned Additional District Judge is illegal, arbitrary and perverse, and the same has led to the gross miscarriage of justice. The documentary evidence was not considered i.e. the certificate dated 29.7.2002, which was filed by the appellant to establish that the respondents had made a false averment before the learned Additional District Judge, which would establish that a tractor was handed over to the respondents and sold by them as a distress sale. The certificate would also establish that the said tractor belongs to Byford Leasing Limited.

6. Arguments have been addressed by the appellant. In the judgment dated 6.8.2010 while dismissing both the applications the Additional District Judge has noticed that prior to the filing of the suit the respondents had issued a legal notice dated 13.8.2004, which was sent on behalf of the plaintiff (respondent no.1 herein) to all the defendants including Smt.Krishnawanti Sahni, who is the mother of the appellant herein. This notice was returned with a remark that 'the addressee has refused'. Moreover, in the reply filed, the defendants in the suit which includes the appellant herein, neither disputed the status of defendant no.3 (Smt.Krishnawanti Sahni) as a Director nor informed about her demise. On the other had as soon as the factum of her death became known in

Court the plaintiff got her name deleted from the array of parties by filing an application. The trial court also noticed that the plaintiffs in the suit had apparently arrayed Smt.Krishnawanti Sahni as a defendant on the basis of their personal dealings without actually verifying the existence of all the defendants on the date of the filing of the suit. While considering these factors, the trial court dismissed the application under Section 340 Cr.P.C.

7. I find no infirmity in the judgment of the trial court. The trial court has rightly dismissed the application under Section 340 Cr.P.C. filed by the appellant herein. The legal notice which was issued prior to the institution of the suit would have been sent at the address of the company and the company, being a legal entity, instead of refusing the notice should have made an endorsement that Smt.Krishnawanti Sahni has expired. There is no explanation by the appellant as to how and why such an endorsement was made on the envelope. It is also contended that the respondents stopped appearing in the suit before the learned trial court and the said suit was dismissed vide order dated 25.8.2010. Although this was not denied by the respondents in a statement made in Court when Mr.Mukesh Aggarwal appeared as a witness, he had admitted having sold a tractor as scrap, which initially belongs to defendant no.1. Thus, it cannot be said that the respondents herein initially filed a false affidavit, as there must be a prima facie case of deliberate falsehood on a matter of substance.

8. In my view this is not a case where the respondents intentionally or to gain any unfair advantage impleaded deceased, Smt.Krishnawanti Sahni, as a party to the suit. Thus, the application filed was misconceived and rightly dismissed.

9. The second application filed by the appellant was also dismissed on 6.8.2013 on the ground that false affidavit was filed by Mr.Mukesh

Aggarwal that a tractor was not delivered to them but admittedly having sold the same, when he appeared as a witness on 24.10.2009. The trial court has noticed that during his testimony, Mr.Mukesh Aggarwal had denied that the tractor was delivered towards full and final satisfaction of their claim and according to him it related to other claims of the company. In the absence of the appellant herein having been able to link the transaction, which is subject matter of the suit, with the delivery of the tractor, the trial court has rightly dismissed the second application as well. It may also be noticed that the trial court took a prima facie view in the matter and granted conditional leave to defend the appellant herein since the appellant herein was able to raise the triable issue with regard to the tractor. Accordingly, no grounds are made out to entertain the present appeal and the same is dismissed.

                                                                   G.S.SISTANI, J
NOVEMBER             18, 2013
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