Delhi High Court

Bharat Chaudhary vs Sharad Gupta on 24 September, 2013

Author: Rajiv Sahai Endlaw

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                    Date of decision: 24th September, 2013.

+                                RFA 199/2012

       BHARAT CHAUDHARY                                  ..... Appellant
                  Through:             Mr. Mohd. Shariq, Adv. for Mr.
                                       Shahid Ali, Adv.

                                 Versus

       DEEPA GUPTA & ANR                                ..... Respondents
                   Through:            Mr. Rashid Hashmi, Adv.

                                       AND

+                                RFA 248/2012

       BHARAT CHAUDHARY                                       ..... Appellant
                  Through:             Mr. Rahul Jain, Adv.

                                 Versus

    SHARAD GUPTA                              ..... Respondent
                  Through: Mr. Rashid Hashmi, Adv.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J.

1. The appellant in both the appeals is the same. The respondent/s in the

two appeals are closely related to each other.

2. Both appeals challenge the money decree in the suits instituted by the

respective respondent(s) against the appellant. While RFA No.199/2012

impugns the judgment and decree dated 6th January, 2012 of the Court of the

Additional District Judge (ADJ) (Central) 12, Tis Hazari Courts, Delhi in

Case No.400/2009 (Unique Case ID No.02401C5966552004), of recovery

of Rs.6,91,200/- with simple interest at 15% per annum from 25th

December, 2001 till the date of decree and future simple interest at 15% per

annum on the principal amount of Rs.6,91,200/- and interest due till the date

of decree, RFA No.248/2012 impugns the judgment and decree dated 27 th

September, 2006 of the Court of ADJ, Delhi in Suit No.3/2004 of recovery

of Rs.1,87,723/- with interest at the rate of 24% per annum from the date of

filing of the suit till realization, both against the appellant.

3. RFA No.199/2012 is not accompanied with any application for stay

of execution. Notice thereof was issued and the same was vide order dated

6th December, 2012 admitted for hearing in due course as per seniority.

4. RFA No.248/2012 was accompanied with an application for

condonation of 1978 days delay in filing the same. The said appeal along

with the application for condonation of delay came for consideration on 1 st

June, 2012, when the file of RFA No.199/2012 was also requisitioned in the

Court. Mr. G.L. Rawal, Senior Advocate (wrongly recorded as Mr. P.K.

Rawal, Sr. Adv.) appearing for the appellant on that date informed the Court

that the endeavour of the appellant was to pay amounts to the respondent(s),

however, the rate of interest be scaled down from 24% to 12% per annum

for pendente lite and future; he also offered to deposit Rs.2 lakhs in the

Court and undertook to deposit the balance decretal amount of Rs.1,87,723/-

along with pendente lite and future interest at 12% per annum, also on or

before 31st July, 2012. The senior counsel then appearing for the appellant

also stated that the appellant was agreeable to pay the decretal amount of

Rs.6,91,200/- subject matter of RFA No.199/2012 along with simple interest

at 7½% per annum from 25th December, 2001 till payment.

5. On the aforesaid statement of the senior counsel for the appellant on

1st June, 2012, notice of the application for condonation of 1978 days delay

in filing RFA No.248/2012 was issued, and which otherwise the Court

appears to have been not inclined to issue. Rather, recording the willingness

of the appellant to pay the amounts as aforesaid, the execution proceedings

which were stated to be pending were also stayed.

6. The appellant has deposited a total amount of Rs.3,80,420/- in RFA

No.248/2012.

7. Vide subsequent order dated 17th July, 2013 in RFA No.248/2012, on

the failure of the respondent therein to appear, the delay of 1978 days delay

in preferring the appeal was condoned and the interim order made absolute

till the disposal of the appeal.

8. RFA No.248/2012 was listed yesterday i.e. 23rd September, 2013

when the counsel for the respondent(s) in both the appeals appeared and

invited attention to the order dated 1st June, 2012 (supra) and stated that the

respondent(s) are willing to settle the dispute subject matter of both appeals,

subject to the principal amount in both appeals being paid by the appellant

together with interest at 12% per annum.

9. Accordingly, the file of RFA No.199/2012 was also requisitioned.

10. However, the counsel appearing yesterday for the appellant stated that

he was the counsel for the appellant in RFA No.248/2012 only and was not

the counsel for the appellant in RFA No.199/2012.

11. Finding Mr. G.L. Rawal, Senior Advocate to have appeared on behalf

of the appellant in both the appeals, it was enquired from the counsel

appearing yesterday for the appellant as to how such a stand of the appellant

being represented by different counsels in the two appeals could be taken

and smelling an attempt by the appellant to, after making the statement on

1st June, 2012 to pay the principal amount in both the appeals wriggle out of

the said statement after having availed the benefit of having made such

statement, the presence of the appellant and of Mr. G.L. Rawal, Senior

Advocate was requested in the Court today.

12. None appeared for the appellant on the first call. On the second call,

Mr. Rahul Jain, Advocate who had appeared for the appellant yesterday

along with Mohd. Shariq, Advocate for Mr. Shahid Ali, Advocate for the

appellant in RFA No.199/2012, appeared. Mr. Rahul Jain, Advocate stated

that he had contacted the appellant but the appellant was out of station and

was thus unable to appear and sought adjournment. Mr. Mohd. Shariq

Advocate for the appellant in RFA No.199/2012 stated that the said appeal

had been admitted and ordered to be listed in due course and he was thus not

aware why the case is listed today.

13. On enquiry, as to the presence of Mr. G.L. Rawal, Senior Advocate,

Mr. Rahul Jain stated that he had asked the appellant only to communicate

to Mr. G.L. Rawal, Senior Advocate.

14. Finding the aforesaid state of affairs to be totally unsatisfactory, the

matter was kept after lunch and Mr. Rahul Jain, Advocate asked to inform

Mr. G.L. Rawal, Senior Advocate.

15. Mr. G.L. Rawal, Senior Advocate though has appeared after lunch but

states that he was briefed to appear on 1st June, 2012 when the appellant was

also present in person and had made statements as recorded in the order of

that date under instructions from the appellant.

16. Mr. Rahul Jain, Advocate also had yesterday stated that the appellant

was present in the Court on 1st June, 2012.

17. Mohd. Shariq, Advocate appearing for the appellant in RFA

No.199/2012 again feigns ignorance.

18. A perusal of the Vakalatnamas filed in the two appeals shows the

Vakalatnama of Mr. Kuljeet Rawal and Mr. Rajesh Rawal, Advocates to

have been first filed in RFA No.199/2012 and Vakalatnama of Mr. Shahid

Ali and Mohd. Shariq, Advocates to have been filed on behalf of the

appellant on 10th September, 2012. However, neither any discharge of Mr.

Kuljeet Rawal and Mr. Rajesh Rawal, Advocates was taken nor have Mr.

Kuljeet Rawal and Mr. Rajesh Rawal, Advocates given any 'no objection'

to the filing of the Vakalatnama of Mr. Shahid Ali and Mohd. Shariq,

Advocates. Interestingly, though Vakalatnama of Mr. Shahid Ali and

Mohd. Shariq, Advocates is filed on 10th September, 2012 but on 13th

September, 2012 as well as 6th December, 2012, Mr. Kuljeet Rawal along

with Mr. Shahid Ali, Advocates appeared in RFA No.199/2012 on behalf of

the appellant.

19. A perusal of the file of RFA No.248/2012 shows Vakalatnama of Mr.

Amit Sharma and Mr. Rahul Jain, Advocates on behalf of the appellant.

However when RFA No.248/2012 came up before this Court on 1st June,

2012, it was not Mr. Rahul Jain or Mr. Amit Sharma, Advocates who

appeared along with Mr. G.L. Rawal, Senior Advocate but it was Mr.

Rajesh Rawal, Advocate who appeared along with Mr. G.L. Rawal, Senior

Advocate. On subsequent dates also, it was either Mr. Rajesh Rawal,

Advocate or Mr. G.L. Rawal, Senior Advocate along with Mr. Rahul Jain,

Advocate, who appeared for the appellant.

20. The aforesaid shows that, different counsels i.e. Mr. Mohd. Shariq in

RFA No.199/2012 and Mr. Rahul Jain, in RFA No.248/2012 appearing

today for the appellant in the two appeals is a pretence, only to wriggle out

the statements made by the counsel appearing on 1st June, 2012 and taking

advantage whereof discretionary reliefs were obtained from the Court.

21. A clear case of abuse of the process of the Court is made out.

However, I am refraining from initiating any action therefor.

22. The appellant on 1st June, 2012, as recorded in order of that day,

admitted the liability for the principal amount in both the decrees. As far as

the interest is concerned, the same is always in the discretion of the Court.

The impugned judgments and decrees award interest at a much higher rate

than which the counsel for the respondent(s) has offered to accept. Though

in the light of the conduct aforesaid of the appellant, the appeals are liable to

be dismissed but since the counsel for the respondent(s) had yesterday stated

that the respondent(s) are willing to accept interest at the rate of 12% per

annum, and which is found appropriate, it is deemed expedient to dispose of

both these appeals with the following directions:

(i) RFA No.248/2012 is partly allowed, in view of admission of

liability in the principal amount, the challenge thereagainst is

dismissed and in view of concession of respondent as to rate of

interest the decree is modified, by changing the rate of interest to 12%

per annum;

(ii) the decretal amount deposited by the appellant in RFA

No.248/2012 together with interest, if any, accrued thereon be

forthwith released by the Registry in favour of the respondent therein

in full and final satisfaction of the decree under challenge therein;

(iii) RFA No.199/2012, in view of admission of the appellant of

liability in the principal amount is dismissed insofar as challenges the

decree for the principal amount; in view of the concession of the

respondents, which is conditional, an opportunity is given to the

appellant to pay the principal amount with interest at 12% per annum;

however if the appellant does not avail of opportunity, no error is

found in the decree qua interest and the appeal insofar as challenges

rate of interest is dismissed;

(iv) an opportunity is given to the appellant in RFA No.199/2012

to, within four weeks hereof, pay the principal amount of

Rs.6,91,200/- together with simple interest at 12% per annum from

25th December, 2001 till the date of payment to the respondents

therein, if the said amount is paid, the said decree shall also stand

satisfied;

(v) however, if the appellant fails to pay the aforesaid amount in

RFA No.199/2012 within the time stipulated therefor, RFA

No.199/2012 shall stand dismissed; and,