Chameleon Resources Ltd. vs Tata Tea Ltd.
2014 Latest Caselaw 53 Del

          *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                       Date of decision: 3rd January, 2014

+                                RFA No.568/2013

       CHAMELEON RESOURCES LTD.           ..... Appellant
                  Through: Mr. Rajesh Kumar & Mr. S.
                           Shekhar, Advs.

                                  Versus
       TATA TEA LTD.                                       ..... Respondent

                          Through:     None.
CORAM:-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J

1. The appeal impugns the judgment and decree dated 03.03.2010 of the

Court of the Additional District Judge (ADJ), Central-14, Delhi of dismissal

(for the reason of the appellant / plaintiff having failed to lead any evidence

in support of its claim) of suit No.1009/2008 filed by the appellant / plaintiff

for recovery of damages of US$31883.00 equivalent to Indian

Rs.12,11,535/- with interest.

2. The appeal, though accompanied with applications for condonation of

1182 days delay in filing and 60 days delay in re-filing the appeal, when

filed was without the requisite court fees. Eight weeks time was sought to

make up the deficiency in court fees. The appeal came up first before this

Court on 06.12.2013 when finding no justification for seeking long time of

eight weeks to pay the court fees and further finding the appellant / plaintiff

to be having a history of not only taking wrong legal steps but also of

delaying the matter, one week's time was given for payment of court fees.

3. Court fees is reported to have been paid and the counsel for the

appellant / plaintiff was heard on admission on 17.12.2013. In the absence

of evidence, the suit of the appellant / plaintiff could not have been decreed

especially when the onus of the issues framed was on the appellant /

plaintiff. The only question thus for consideration in the appeal was whether

the appellant / plaintiff was given ample opportunity to lead evidence or not.

The counsel for the appellant / plaintiff however in the memorandum of

appeal did not set out any facts in this regard. During the hearing also, he

could not tell as to how many opportunities for leading evidence had been

granted to the appellant / plaintiff. In fact, the copies of the order sheets in

the suit were also not available with the counsel. In the circumstances, the

Trial Court record was requisitioned and order on admission reserved. The

Trial Court record has been received.

4. A perusal of the Trial Court record shows, the suit from which this

appeal arises, to have been instituted as far back as on 20.10.2000, in this

Court and which, on change of pecuniary jurisdictions in the year 2003 was

transferred to the District Court. Issues were framed in the suit on

23.02.2005, with the onus of the main / material issues being on the

appellant / plaintiff. The suit was adjourned to 20.04.2005 for evidence of

the appellant / plaintiff with a direction to the appellant / plaintiff to file list

of witnesses along with the affidavits of the witnesses sought to be examined

with advance copy to the respondent / defendant.

5. Neither any list of witnesses nor any affidavits by way of

examination-in-chief were filed. The suit, on 20.04.2005 was adjourned to

26.05.2006 and thereafter to 08.08.2005, when last opportunity was granted

to the appellant / plaintiff for its evidence subject to deposit of costs of

Rs.3,000/- with Delhi Legal Services Authority (DLSA) and the suit

adjourned to 04.10.2005. It was further specified that long date had been

given with the clear understanding that no further opportunity shall be

granted.

6. On 04.10.2005, the appellant / plaintiff filed an application for review

of the earlier order dated 08.08.2005, along with an affidavit of one of its

witnesses. The witness however was not present in the Court and was stated

to be in England and likely to be in India in the month of November, 2005.

The application for review of the order dated 08.08.2005 was dismissed and

yet another opportunity was given to the appellant / plaintiff to produce its

witness subject to payment of further costs of Rs.5,000/- together with

earlier costs of Rs.3,000/- to the DLSA. A Court Commissioner was also

appointed to record the cross examination of the witness of the appellant /

plaintiff on 19.11.2005.

7. The witness of the appellant did not appear before the Court

Commissioner and an application for review of the order dated 04.10.2005

was filed and the suit adjourned thereon on 02.12.2005, 02.02.2006,

27.02.2006, 10.07.2006, 08.08.2006, 06.09.2006, 21.09.2006, 26.09.2006,

17.10.2006, 27.11.2006, 15.01.2007, 17.01.2007, 20.02.2007 and

09.04.2007.

8. On 16.04.2007 the appellant / plaintiff sought time to move an

application for recording of the evidence of its witness via video-

conferencing. Though 15 days time was granted to file the said application

but the application was filed beyond the said period, on 19.05.2007 and the

suit adjourned on the basis of the said application on 21.05.2007,

08.08.2007, 11.09.2007 and 31.10.2007.

9. On 28.11.2007, it was discovered that the appellant / plaintiff had not

deposited the costs earlier imposed with the DLSA. An opportunity therefor

was granted.

10. Vide order dated 19.03.2008, the application of the appellant /

plaintiff for examination of its witness by video-conferencing was disposed

of and the suit adjourned to 25.04.2008 for recording of the evidence of the

said witness before the Court Commissioner earlier appointed.

11. The witness of the appellant / plaintiff again failed to appear before

the Court Commissioner. Thereafter, an application for review of the order

declining the request for examination of the witness by video-conferencing

was filed and the suit adjourned from time to time on the said application.

The said application was finally dismissed on 10.12.2009 and the suit posted

for evidence of the respondent / defendant. The respondent / defendant, in

the absence of any evidence of the appellant / plaintiff, chose not to lead any

evidence and finding that the appellant / plaintiff had not led any evidence in

support of its claim, the suit was vide impugned judgment dismissed.

12. The aforesaid narrative will show that the suit remained pending for

recording evidence of the appellant / plaintiff from 20.04.2005 till its

dismissal in the year 2010 i.e. for over five years. I fail to see as to how the

said five years can be said to be not an ample opportunity to the appellant /

plaintiff for producing its witness. Not only so, after the dismissal of the suit

on 03.03.2010, the appellant / plaintiff instead of filing this appeal, on

30.11.2010 filed CM(M) No.42/2011 in this Court challenging the order of

dismissal of its application for examination of its witness via video-

conferencing. The said remedy also was taken after more than seven months

of the dismissal of the suit.

13. The aforesaid remedy itself was palpably misconceived after the suit

itself had been dismissed. The said CM(M) petition was dismissed on

25.01.2012 holding the same to be an abuse of the process of the Court and

with costs quantified at Rs.10,000/-.

14. The appellant thereafter preferred SLP(C) No.25966-67/2012 and

which was also dismissed on 15.07.2013. This appeal has been filed only on

13.09.2013. Even at that time no urgency was shown.

15. The aforesaid shows the entire action of the appellant / plaintiff to be

misguided and intended just to keep the proceeding alive, without the

appellant / plaintiff really being interested in a decision on its claim.

Though the appellant / plaintiff is itself to blame for the present lis having

remained pending for the last nearly 13 years, without the appellant /

plaintiff taking any effective steps therein but it is often the Courts which are

blamed for such delays.

16. No error is found in the impugned judgment and orders of the learned

ADJ closing the evidence of the appellant / plaintiff and resultantly in the

absence of any evidence, dismissing the claim of the appellant / plaintiff.

17. The appeal is without any merit and is dismissed in limine. I refrain

from imposing any costs on the appellant / plaintiff though a clear case

therefor is made out as the appellant / plaintiff is found to be wasting the

time of the Court.

Decree sheet be prepared.

RAJIV SAHAI ENDLAW, J

JANUARY 03, 2014 'gsr'..