Ishpinder Kochhar vs Deluxe Dentelles (P) Ltd & Anr
2014 Latest Caselaw 2627 Del

*           HIGH COURT OF DELHI AT NEW DELHI

+                      CS(OS) 3075/2011

                                           Decided on: 22nd May, 2014

    ISHPINDER KOCHHAR                                 ..... Plaintiff

                       Through:    Mr.Sumit Bansal, Mr.Ateev
                                   Mathur, Ms.Richa Oberoi and
                                   Mr.Devmani Bansal, Advs.
                       versus

    DELUXE DENTELLES (P) LTD & ANR                ..... Defendant

                       Through:    Mr.C.A.Sundaram, Sr.Adv. with
                                   Ms.Divvya Kesaar and
                                   Mr.Mannmohit K. Puri, Advs.
    CORAM:
    HON'BLE MR. JUSTICE V.K. SHALI

    V.K. SHALI, J. (ORAL)

OA No.87/2014

1. This order shall dispose of the appeal filed by the

defendants/appellants under Chapter II Rule 4 of the Delhi High

Court (Original Side) Rules, 1967 against the order dated

03.05.2014 passed by the learned Joint Registrar by virtue of which

the learned Joint Registrar has directed the defendant No.2 to

produce on affidavit all the three documents as prescribed in Form No.5 of Appendix C under Order 11 Rule 13 CPC within a period

of four weeks, the details of which are given by the

respondent/plaintiff in the application. The said three documents

are:

i) Shareholding pattern of M/s Ramesh Kumar Overseas Private Limited;

ii) Shareholding pattern in the M/s Nidas Estate Private Limited; and

iii) The production of the alleged lease deed/ document pursuant to which you claim that the M/s Ramesh Kumar Overseas Private Limited is in possession of Western Portion of the shop in question.

2. Briefly stated, the facts leading to the filing of the present

appeal are that the plaintiff filed a suit for possession against the

appellants/defendants making the defendant No.2, an individual,

Mrs.Adarsh Gill, a party. It was alleged in the plaint that the

defendant No.1 had entered into an unregistered agreement of lease

dated 21.11.1999 with the erstwhile owner, Smt.Neeta Mehra, with

respect to 45% of the area of the suit property baring Plot No.10,

Block-172, Jor Bagh Market, New Delhi - 110003 which was

consisting of Eastern Shop, an office block, a mezzanine over the office block, a toilet, courtyard at the back and the concerned

verandah with a display window more particularly referred as RED

portion in the site plan annexed to the plaint and referred to as

Eastern part of the ground floor. The appellant/defendant No.1

was alleged to have been holding the premises unauthorizedly after

expiry of the period of lease of eleven years and eleven months. It

was alleged that initially the rent was Rs.2650/- per month which

was enhanced by 10% every three years and after 17.11.2008, the

rent of the premises in question was Rs.3527 and since the rent was

more than Rs.3,500/-, therefore, they were not protected by the

Delhi Rent Control Act, 1958. With regard to the western portion

of the premises in question, more particularly shown in Yellow in

the plaint, it was alleged that the same was in the unauthorized

occupation of the defendants as a trespasser with respect to which a

decree of possession was sought apart from a decree of damages.

The defendants filed the written statement and admitted being a

tenant in respect of the eastern portion of the premises in question.

The rent was stated to be initially Rs.2650/-. It was denied that the

rent was liable to be increased or that they were in arrears of rent.

However, so far as the eastern portion of the premises in question is concerned, a judgment on the basis of the admission under Order

12 Rule 6 CPC was passed by this court, which is stated to be

under appeal and is not in any way an issue in the present appeal.

What is in issue is that the defendants had taken a specific plea in

para 12 of the written statement that M/s Ramesh Kumar Overseas

Private Limited was the tenant under the erstwhile owner of the

suit property. However, they had occupied the premises after

removal of the wall separating the eastern portion from the western

portion of the premises in question with the consent of the M/s

Ramesh Kumar Overseas Private Limited and Mrs.Neeta Mehra

who is the erstwhile owner. The suit was contested and the issues

are yet to be framed in the suit. The respondent/plaintiff filed IA

No.20768/2012 under Order 11 Rule 12 & 14 read with Section

151 CPC seeking production of the following documents:

i) Shareholding pattern of M/s Ramesh Kumar Overseas Private Limited;

ii) Shareholding pattern in the M/s Nidas Estate Private Limited; and

iii) The production of the alleged lease deed/ document pursuant to which you claim that the M/s Ramesh Kumar Overseas Private Limited is in possession of Western Portion of the shop in question.

It was stated in the application that the respondent/plaintiff had

come to know that the appellant No.2 who is the Managing

Director of the appellant No.1 is a majority shareholder in M/s

Ramesh Kumar Overseas Private Limited as well as M/s Nidas

Estate Private Limited. The respondent/plaintiff had placed on

record copies of Form 20(B) obtained from the Registrar of

Companies which show that M/s Ramesh Kumar Overseas Private

Limited had the authorized capital of 1000 equity shares of Rs.100

each. Out of these 1000 shares, appellant No.2, who is the

Managing Director of defendant No.1, holds 61% of the shares

i.e.610 share and the balance 39% are owned by M/s Nidas Estate

Private Limited. It was also the contention of the

respondent/plaintiff that the shareholding pattern of M/s Nidas

Estate Private Limited was 60,000 shares of Rs.10 each and out of

these 55,000 are owned by the appellant No.2 i.e. more than 90%

and the remaining 5,000 shares are owned by the daughter of the

appellant No.2. Thus, the entire exercise on the part of the

respondent/plaintiff was to show to the court that the appellant

No.2/defendant No.2 was the majority shareholder of M/s Ramesh

Kumar Overseas Private Limited and it was a fit case where the corporate veil was required to be lifted to ascertain as to who were

the real persons controlling the affairs of these three companies and

once this is prima facie established, then it will be established that

this is a false plea set up by the appellant No.2 that M/s Ramesh

Kumar Overseas Private Limited was the tenant in respect of the

western portion of the suit property. In effect, it was the appellant

No.2 who was the holder of the vital interest and, therefore, the

appellant No.2 be directed to furnish the requisite information on

interrogatories on the prescribed form.

4. The application of the respondent/plaintiff was contested by

the appellants/defendants before the learned Joint Registrar and

they had file the reply. The contention of the appellants/defendants

was turned down and the court directed the appellants/defendants

to furnish the requisite information in respect of three documents

on affidavit in the prescribed Form No.5 of appendix C under

Order 11 Rule 13 CPC.

5. It is under these circumstances that the present appeal came

to be filed challenging the order of the learned Joint Registrar. The

learned senior counsel appearing for the appellants/defendants has contested that the order of the learned Joint Registrar giving

direction to the appellant No.2 to furnish information with regard

to the shareholding pattern of M/s Ramesh Kumar Overseas

Private Limited or M/s Nidas Estate Private Limited or even to

produce the alleged lease deed by virtue of which the M/s Ramesh

Kumar Overseas Private Limited was given the possession of the

western portion of the shop in question are not the documents

pertaining to the 'parties' to the suit and the learned Joint Registrar

could not have issued any direction much less to the appellants

directing them to furnish the documents on affidavit pertaining to

third parties.

6. It was also contended by the learned senior counsel that

although there is no judgment on this score passed by the High

Court, but he has been able to lay his hands on two judgments.

The one is of Madras High Court and the other of Calcutta High

Court wherein it has been held by both the High Courts that a party

cannot be directed to produce documents in respect of a third party

who is not a party in the suit in question. These two judgments

are: i) S.A.K. Chinnathambi Chettiar v G.S. Murugan; [1968] 38 Comp.Cas. 772 (Mad) and ii) Gopaldas Modi v. Hansraj; AIR

1932 Calcutta 72.

7. The learned counsel for the respondent/plaintiff has

vehemently contested this submission of the learned senior counsel

for the appellants/defendants. He has stated that there is nothing

illegal in the order of the learned Joint Registrar directing

production on affidavit the documents pertaining to M/s Ramesh

Kumar Overseas Private Limited who is stated to be the tenant in

respect of the western portion of the suit property inasmuch the

appellants are claiming to have got the possession from M/s

Ramesh Kumar Overseas Private Limited. Secondly, it was

contended by the learned counsel for the respondent/plaintiff that

this plea of the appellants/defendants that M/s Ramesh Kumar

Overseas Private Limited was not a tenant in respect of the western

portion of the suit property is only an afterthought inasmuch as no

such plea was taken by them in reply to the notice served by the

plaintiff/respondent before initiating the action for retrieval of

possession. Thirdly, it has been contended by the learned counsel

for the plaintiff that so far as the appellant No.2 is concerned, no

doubt she is the Director of the appellant No.1 and through whom the agreement in question for and on behalf of appellant No.1 was

signed with the erstwhile owner of the suit property, but she was

also the majority shareholder of both M/s Ramesh Kumar Overseas

Private Limited and M/s Nidas Estate Private Limited and thus

effectively controlling both these two companies and more

particularly M/s Ramesh Kumar Overseas Private Limited who is

stated to be the tenant and the court was well within its rights to lift

the corporate veil in order to arrive at the real issue in controversy

as to whether M/s Ramesh Kumar Overseas Private Limited was

the tenant in respect of the western portion of the suit property or

not. The learned counsel for the respondent/plaintiff has also

placed reliance on two judgments of the apex court: i)

Ramrameshwari devi and Ors. V.Nirmala Devi & Ors; JT 2011 (8)

SC 90 and Maria Margarida Sequeira Fernandes and Ors.

V.Erasmo Jack De Sequeira (dead) through LRs; (2012) 5 SCC

370.

8. In the second judgment, the learned counsel has drawn the

attention of the court to certain observations passed by the Hon'ble

Supreme Court with which there cannot be any dispute that the

entire exercise of judicial process is to come to the foundation of the truth and arrive at the finding with regard to the lis which is

pending before the court. It has referred to the general

observations with which there cannot be any disagreement so far as

the present court is concerned. As regards the judgment, the

observations to which attention of the court has been drawn are

contained in para 52 which reads as under:

"52. Truth is the foundation of justice. It must be the endeavour of all the judicial officers and judges to ascertain truth in every matter and no stone should be left unturned in achieving this object. Courts must give greater emphasis on the veracity of pleadings and documents in order to ascertain the truth."

9. The foundation of the aforesaid observation is that the court

should resort to discovery and production of documents and

interrogatories at the earliest in order to focus and arrive at the

truth for the purpose of doing the substantial justice.

10. There cannot be any dispute with regard to this proposition

also, but the question which needs to be considered in the instant

case is that whether a direction can be issued on the basis of an

order passed on an application under Order 11 Rule 12 & 14 i.e.

discoveries to be effect on interrogatories in respect of certain documents pertaining to someone who is not a 'party' to the suit in

which the interrogatories and the discoveries are sought to be

made. The answer to this question has been given by the Calcutta

High Court that before an interrogatory or a discovery is sought to

be made under Order 11 Rule 12 & 14 CPC, the party against

whom the documents are sought to be produced must be a party to

the suit. The exact language of Rule 1 of Order 11 CPC is as

under:

1. Discovery by interrogatories In any suit the plaintiff or defendant by leave of the Court may deliver interrogatories in writing for the examination of the opposite parties or any one or more of such parties and such interrogatories when delivered shall have a note at the foot thereof stating which of such interrogatories each of such persons is required to answer :

Provided that no party shall deliver more than one set of interrogatories to the same party without an order for that purpose :

Provided also that interrogatories which do not relate to any matters in question in the suit shall be deemed irrelevant, notwithstanding that they might be admissible on the oral cross-examination of a witness.

11. It may also be pertinent here to refer to Rule 5 & Rule 12 of

Order 11 of CPC.

"5. Corporations Where any party to a suit is a corporation or a body of persons, whether incorporated or not, empowered by law to sue or be sued, whether in its own name or in the name of any officer or other person, any opposite party may apply for an order allowing him to deliver interrogatories to any member or officer of such corporation or body, and an order may be made accordingly. xxx xxx xxx xxx

12. Application for discovery of documents Any party may, without filing any affidavit, apply to the Court for an order directing any other party to any suit to make discovery on oath of the documents which are or have been in his possession or power, relating to any matter in question therein. On the hearing of such application the Court may either refuse or adjourn the same, if satisfied that such discovery is not necessary, or not necessary at that stage of the suit, or make such order, either generally or limited to certain classes of documents, as may, in its discretion be thought fit :

Provided that discovery shall not be ordered when and so far as the Court shall be of opinion that it is not necessary either for disposing fairly of the suit or for saving costs."

12. A conjoint reading of all these rules will clearly show that

the law permits in any suit the plaintiff or the defendant with the

leave of the court to deliver the interrogatories in writing for the

examination of the opposite parties. Further, no party shall deliver more than once set of interrogatories to the same party without an

order for that purpose; that interrogatories which do not relate to

any matters in question to the suit shall be deemed to be irrelevant

and where a party to a suit is a corporation or a body of persons,

whether incorporated or not, in such a case, interrogatories may be

given to any member or an officer of such a body corporate or

corporation under an order of the court. A perusal of the aforesaid

rules will clearly show that before interrogatories are given, a

person or a body corporate must be a party to the suit. In the

instant case, the interrogatories are being sought from appellant

No.2 who has been impleaded as a party seeking eviction from the

eastern portion of the shop in question as a signatory to the lis for

and on behalf of the appellant No.1 and from western portion in the

capacity of a trespasser. The appellant No.2 has not been

impleaded as a party, as a Managing Director or a shareholder of

M/s Ramesh Kumar Overseas Private Limited which was claimed

by the present appellants to be the tenant in respect of the western

portion of the shop in question nor is M/s Ramesh Kumar Overseas

Private Limited a defendant in the suit. Therefore, in my

considered opinion, as M/s Ramesh Kumar Overseas Private Limited is not a defendant in the suit, no interrogatories could be

issued to M/s Ramesh Kumar Overseas Private Limited or to

appellant No.2 in the capacity of the purported holder of a majority

stake of the said company. In my considered opinion, there is no

question of lifting of a corporate veil in the instant matter. There is

a definite case which has been set up by the plaintiff and a definite

defence taken by the defendant and the basic dictum is one who

asserts must prove.

13. The plaintiff has taken a definite plea in the plaint that the

appellants/defendants are trespassers in respect of the western

portion of the shop. Therefore, the issue which is to be framed

would be whether the respondent/plaintiff is the owner of the suit

premises and consequently whether the appellants/defendants are

the trespasser with respect to the western portion of the shop in

question. If so, its effect and the onus in respect of both these

issues would on the respondent/plaintiff.

14. So far as the defence of the appellant/defendant is

concerned, they have taken a defence that M/s Ramesh Kumar

Overseas Private Limited was the tenant in respect of the western portion and they are in occupation of the said portion with the

consent of the previous owner Smt.Neeta Mehra and M/s Ramesh

Kumar Overseas Private Limited will have to discharge this onus

in rebuttal to the issues in respect of which burden of proof is on

the plaintiff. The question of shareholding of M/s Ramesh Kumar

Overseas Private Limited is not all relevant and in any case even if

it is considered to be relevant, the plaintiff/respondent has already

claimed that after making enquiries from the Registrar of

Companies he has placed on record the shareholding pattern of the

said company and another company M/s Nidas Estate Private

Limited which according to them is having the majority interest in

appellant No.2, but that is inconsequential, irrelevant and unrelated

to the lis between the parties for the reasons which have been

enunciated by the court hereinabove.

15. For the reasons mentioned above, I feel that the

respondent/plaintiff is trying to make a fishing enquiry by seeking

a direction to the appellant No.2 to produce the documents on

affidavit with respect to:

i) Shareholding pattern of M/s Ramesh Kumar Overseas Private Limited;

ii) Shareholding pattern in the M/s Nidas Estate Private Limited; and

iii) The production of the alleged lease deed/ document pursuant to which you claim that the M/s Ramesh Kumar Overseas Private Limited is in possession of Western Portion of the shop in question.

The same could not have been done on the basis of Order 11 Rule

12 CPC. The learned Joint Registrar seems to have fallen into an

error in passing the order dated 03.05.2014, which is not in my

opinion, sustainable in the eyes of law. I accordingly, allow the

appeal and set aside the order passed by the learned Joint Registrar

dated 03.05.2014. No order as to cost.

16. List before the Joint Registrar on 08.08.2014, as already

fixed.

V.K. SHALI, J MAY 22, 2014/dm