Delhi High Court
Shreeji Overseas India Pvt Ltd vs Pec Ltd on 4 October, 2013
Author: Rajiv Shakdher
$~15
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on : 04.10.2013
+ O.M.P. 375/2013
SHREEJI OVERSEAS INDIA PVT LTD ..... Petitioner
Through: Mr. Yashish Chandra, Advocate
with Mr. Narender, AR of the petitioner
versus
PEC LTD ..... Respondent
Through: Mr. Sanjeev Narula, Advocate
CORAM:
HON'BLE MR. JUSTICE RAJIV SHAKDHER
RAJIV SHAKDHER, J.
IA No.7137/2013 (u/O. XXXIII R. 1 of CPC)
1. On the previous date, I had recorded in sum and substance, the
issue, which arose qua the said application. In order to avoid
repetition, the relevant paragraphs of the said order are reproduced
hereinbelow :-
"..7. A prayer is made that the petitioner company being an
„indigent person‟ should be exempted from payment of court
fee. Mr. Narula says that the application should be dismissed
for the following reasons:
(i) The petitioner/applicant company cannot be termed as
an indigent person in terms of Order XXXIII Rule 1 of CPC;
and
(ii) The petitioner/applicant company, in the application
O.M.P. 375/2013 page 1 of 5
itself, has referred to bank balances as well as immovable
properties, which clearly show that the petitioner cannot be
categorised as an "indigent person"; assuming that it falls
within the definition of the indigent person in terms of the
provisions of Order XXXIII Rule 1 CPC.
8. Insofar as the first objection is concerned, it must be
said that if the present action was in the nature of a suit it
would stand covered by the judgment of the Supreme Court in
the case of Union Bank of India v. Khader International
Construction (2001) 5 SCC 22. As per the judgment of the
Supreme Court, the term "person" appearing in Order
XXXIII of the CPC would include a juristic person. The issue
which requires determination is whether provisions of Order
XXXIII of the CPC would apply to a petition filed under
Section 34 of the Arbitration and Conciliation Act, 1996.
9. As far as the second objection is concerned, an
enquiry may have to be conducted to determine as to whether
the petitioner is indigent if the first objection is rejected by the
court.
10. The counsel for the petitioner/applicant is thus given
liberty to address arguments in the context of the observations
made hereinabove. In the meanwhile, the petitioner/applicant
will file audited balance sheets for previous three financial
years. The balance sheet presently filed is as on 15.3.2013..."
2. In consonance with the directions issued, the
applicant/petitioner has filed its balance sheets for the financial years
2010-2011, 2011-2012 and provisional balance sheet / profit and loss
account for the year ending 31.03.2013.
3. In so far as the first aspect is concerned, whether the company
can be treated as an indigent person, that need not, detain me any
O.M.P. 375/2013 page 2 of 5
further, in view of the observations of the Supreme Court in the case
of Union Bank of India v. Khader International Construction
(2001) 5 SCC 22.
3.1 Mr. Narula also does not seriously take umbrage to the
applicant/petitioner maintaining the application on the ground that it
is indigent. Mr. Narula says that the provisions of Order XXXIII of
the Code of Civil Procedure, 1908 (in short CPC) or principles
relevant thereto would apply even to the petition under Section 34 of
the Arbitration and Conciliation Act, 1996 (in short the Act). Mr.
Narula, however, says that a perusal of the balance sheet would show
that company is not indigent in the true sense of the word. He has
drawn my attention to the various aspects of the balance sheets filed
by the petitioner / applicant.
4. I have perused the balance sheets filed by the applicant /
petitioner. A perusal of the balance sheet / profit and loss account for
the year ending on 31.03.2013 would show that the petitioner has a
turnover for that particular financial year i.e., 2012-2013 of
Rs.91,05,36,645/- though there is a sharp decline as compared to the
previous financial years.
4.1 Curiously enough, there is no date given as to when the said
provisional balance sheet was prepared. On the counsel being
queried, I have been informed that this balance sheet was prepared
after passing of the order dated 03.09.2013.
4.2 It may be of some relevance to note that in the financial year
ending on 31.03.2012, the turnover of the applicant /petitioner
O.M.P. 375/2013 page 3 of 5
company was (approx.) Rs.242 Crores, which is exclusive of income
from service and freight.
4.3 The business in terms of turnover had considerably improved
when contrasted with the immediately preceding financial year i.e.,
financial year 2010-2011. In the financial year 2010-2011, the
applicant/petitioner registered a turnover (again exclusive of service
and freight income) equivalent to (approx.) Rs.180 Crores. The
sudden decline in the turnover of the petitioner to a figure of Rs.91
Crores approximately (which is inclusive of income from other
sources) does create a doubt in the mind of the court.
5. That apart, even if the balance sheet for the year ending on
31.03.2013 is taken into account, one gets a distinct impression that
the company is not without liquid funds. In Schedule 8 under the
heading, „Cash and Bank Balances‟, fixed deposits equivalent to
Rs.4,48,33,132/- are reflected. There are long term receivables shown
under Schedule 9 equivalent to Rs.4,40,56,859/- while there are
deposits in the sum of Rs.12,44,045/- available to the
applicant/petitioner.
6. In addition, the applicant/petitioner has earned on account of
interest (see schedule 12) alone in the year ending on 31.03.2013; a
sum equivalent to Rs.89,55,547/-. In the profit and loss account, there
are expenses debited towards travelling, conveyance and vehicle
amounting to Rs.12,66,932/- and legal and professional charges,
equivalent to Rs.12,19,335/-. The petitioner company has also paid
sums to banks and financial institutions, details with respect to which
O.M.P. 375/2013 page 4 of 5
are given in schedule 15. Interest paid to banks alone, is a sum of
Rs.3.06 Crores (approximately).
7. A cumulative reading of the balance sheets would show that the
company has the necessary wherewithal to pay the court fee. I am
informed that the court fee payable is a sum of Rs.25.65 Lakhs
(approximately).
8. In view of the above, I am not inclined to allow the prayer
made in the application. The same is accordingly rejected.
O.M.P. 375/2013
9. I have asked the learned counsel for the petitioner as to whether
they would still want to deposit the court fee. The counsel for the
petitioner on instructions has sought two weeks to deposit the
requisite court fee. It is made clear that if the court fee is not
deposited within the next two weeks, the petition will stand dismissed
peremptorily.
10. List on 29.10.2013 subject to the aforesaid direction.
11. It is made clear that the Registry will place the petition in court
only if the court fee is paid as indicated hereinabove.
RAJIV SHAKDHER, J
OCTOBER 04, 2013
yg
O.M.P. 375/2013 page 5 of 5
