Delhi High Court
Kushal K Rana vs M/S Et Infra Developers Private ... on 29 April, 2015
Author: Badar Durrez Ahmed
THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 29.04.2015
+ FAO(OS) 35/2015
KUSHAL K RANA ... Appellant
versus
M/S ET INFRA DEVELOPERS PRIVATE LIMITED ... Respondent
Advocates who appeared in this case:
For the Appellant : Ms Smita Maan and Mr Vishal Maan
For the Respondent : Mr Akhilesh Arora
CORAM:-
HON'BLE MR JUSTICE BADAR DURREZ AHMED
HON'BLE MR JUSTICE SANJEEV SACHDEVA
JUDGMENT
BADAR DURREZ AHMED, J (ORAL)
CM No. 1209/2015
This is an application for condonation of delay.
The delay in filing is condoned.
FAO(OS) 35/2015 and CM No. 1207/2015
1. This appeal is directed against the order dated 30.10.2014 passed by a
learned Single Judge of this court whereby the objection with regard to the
maintainability of the suit raised by the appellant / defendant has been
rejected. The appellant had raised the objection that the suit was not
maintainable in view of the provisions of Section 144 CPC which deals with
restitution. It was contended that in the plaint it has been stated in paragraph
15 as also in other places that the entire suit is founded on the stay order
which was passed by the Supreme Court on 30.01.2012 and which was
vacated on 16.02.2012. Paragraph 15 of the plaint reads as under:-
"That the cause of action arose on 04.02.2012 when the stay
order dated 30.01.2012 passed by the Hon'ble Supreme Court
of India was communicated to the plaintiff and in deference
with the same all construction activities going on at the site of
subject project were ceased. As already detailed above, the
cessation of the construction activities caused a huge financial
loss to the plaintiff. The cause of action is still continuing as
the plaintiff is still facing the after effects of releasing and
remobilizing man-power, machinery and resources and the
defendant has not yet compensated the plaintiff."
2. The learned Single Judge after considering the contentions raised by
the parties was of the view that Section 144 CPC deals with restitution
wherever any property has been delivered to a person in pursuance of any
orders passed by the court and the said orders are reversed either by the same
court or by the appellate court. The learned Single Judge felt that the present
case was not covered under Section 144 CPC and, therefore, the bar under
Section 144(2) CPC would not be applicable.
3. We have heard the learned counsel for the parties and are of the view
that no interference with the impugned order is called for. First of all, the
proceedings which went up to the Supreme Court where the stay order was
first passed and then vacated arose from a writ petition under Article 226 of
the Constitution and, therefore, strictly speaking the provisions under Section
144 CPC shall not be applicable. Secondly, there was no delivery of
property which needed restitution. All that the respondent / plaintiff has
claimed in the suit is that because of the stay order which was obtained at the
instance of the appellant / defendant, work under the project had to be
stopped and as a result of which he suffered losses. The suit has been filed
for damages for those losses.
4. In view of the foregoing, we see no reason to interfere with the
impugned order. The appeal is dismissed.
BADAR DURREZ AHMED, J
SANJEEV SACHDEVA, J
APRIL 29, 2015
SU
