Delhi High Court
Dr. Pritesh Kumar Singh vs Peepee Publishers & Distributors ... on 23 July, 2015
* HIGH COURT OF DELHI AT NEW DELHI
+ Tr. P. (C) No.63/2014 & C.M. No.11544/2014
Decided on : 23rd July, 2015
DR. PRITESH KUMAR SINGH ...... Appellant
Through: Ms. Jyoti Taneja, Advocate.
Versus
PEEPEE PUBLISHERS & DISTRIBUTORS (P) LTD. & ANR.
...... Respondents
Through: Mr. Vaibhav Arora, Advocate.
CORAM:
HON'BLE MR. JUSTICE V.K. SHALI
V.K. SHALI, J. (ORAL)
1. This is a petition filed by the petitioner under Section 24 CPC for
transfer of Civil Suit 382/2014 titled Peepee Publishers & Distributors
(P) Ltd. vs. Dr. Pritesh Kumar Singh & Another along with a counter
claim titled Dr. Pritesh Kumar Singh & Another vs. Peepee Publishers &
Distributors (P) Ltd. & Another pending before Sh. Devender Kumar,
Additional District Judge, Patiala House Court, New Delhi to the original
side of the High Court on account of the jurisdictional value of the
counter claim being more than Rs.20 lacs.
2. Briefly stated the facts of the case are that the petitioner, Dr.
Pritesh Kumar Singh, MBBS, MS (Surgery) is the owner of all
intellectual property rights including copyrights in a book titled "Surgery
Essence". The petitioner entered into an agreement dated 1.1.2013 with
the respondent to publish the work. The respondent had promised good
service and timely publication; however, it is alleged that they failed to
fulfill any of the promises made by them. The petitioner vide letter dated
23.4.2014 intimated to the respondent that he is not bringing the second
edition of the book for which he had entered into an agreement with
them. The respondent vide letter dated 1.5.2014 intimated that they are
ready to transfer the rights to the petitioner in respect of second edition
for an amount of Rs.40 lacs. As a consequence of this difference in
perception, the petitioner while relying on clause 20 of the agreement
terminated the agreement between him and the respondent.
3. The respondent filed a suit claiming damages of Rs.19 lacs bearing
No.382/2014 titled Peepee Publishers & Distributors (P) Ltd. vs. Dr.
Pritesh Kumar Singh & Another which is pending before the learned
Additional District Judge, Patiala House Courts. The present petitioner
on being served filed his written statement along with counter claim of
Rs.25,00,500/- out of which Rs.5 lacs was by way of royalty and
Rs.20,00,500/- by way of damages.
4. It is in this background that the petitioner while relying on Order
VIII Rule 6A sub-clause (2) CPC has sought transfer of the main suit as
well as the counter claim being a cross suit to be tried by the High Court
because the valuation of the counter claim is more than Rs.20 lacs and
triable by the High Court.
5. I have heard the learned counsel for the parties and have gone
through the record.
6. The learned counsel for the petitioner has relied upon the judgment
of the Division Bench of this High Court in case titled M/s. Raj &
Associates & Anr. Vs. Videsh Sanchar Nigam Limited & Anr.; ILR (2009)
V Delhi 729 wherein the Division Bench of this court has observed that
the object of sub-clause (2) of Order VIII Rule 6A CPC is to avoid the
possibility of conflicting judgments by different courts on common issues
which may arise between the suit and the counter claim, if the same are
heard separately by different courts. In view of this Division Bench
judgment the question as to whether the suit and the counter claim can be
tried by the same court where the valuation of the counter claim may be
more than the pecuniary jurisdiction of the court is no more res integra
because the purpose of sub-clause (2) of Rule 6A of Order VIII is to
avoid the conflict of judgments being passed if they are tried by two
different courts. This can be avoided only if both suit and the counter
claim are tried by a court within whose pecuniary jurisdiction the counter
claim falls. Looked from this perspective, the counter claim being more
than Rs.20 lacs cannot be tried by the lower court. This being the
mandate of law as laid down by the statute and accepted by the Division
Bench of this court has to be followed by the single judge. The judgment
of the Division Bench of the High Court has taken note of this consistent
view expressed by other courts also in this regard in T.K.V.S.
Vidyapoornachary Sons & Ors. vs. M.R. Krishnamachary; AIR 1983
Madras 291 and Shravan Jairam Jadhav vs. State Bank of India & Ors.;
2001 (1) Mh. LJ 475.
7. As against this, the learned counsel for the respondent has opposed
transfer of the suit and the counter claim to the High Court by relying on
a judgment of the Apex Court in a case titled Gurbachan Singh vs. Bhag
Singh & Ors.; 1996 (1) SCC 770 in support of his submission.
8. Not only the facts in Gurbachan Singh's case (supra) were
different but also the fact that what was involved before the Apex Court
in the said case was under Order VIII Rule 6A sub-clause (1) and not sub-
clause (2). It may be pertinent here to mention that Order VIII Rule 6A
(1) and (2) read as under :-
"6-A. Counter-claim by defendant - (1) A defendant in a
suit may, in addition to his right of pleading a set-off under
rule 6, set up, by way of counter-claim of the plaintiff, any
right or claim in respect of a cause of action accruing to the
defendant against the plaintiff either before or after the
filing of the suit but before the defendant has delivered his
defence or before the time limited for delivering his defence
has expired, whether such counter-claim is in the nature of a
claim for damages or not:
Provided that such counter-claim shall not exceed the
pecuniary limits of the jurisdiction of the Court.
(2) Such counter-claim shall have the same effect as a cross-
suit so as to enable the Court to pronounce a final judgment
in the same suit, both n the original claim and on the
counter claim."
9. As it crystallizes from the aforesaid the defendant in a suit may file
for a counter claim or damages or seek set off before filing his defense
but the same cannot exceed the pecuniary jurisdiction of the court. The
object of the aforesaid proviso is to see that the jurisdiction of the court
trying the suit is not ousted by taking unscrupulous stand in defence i.e.
by way of filing counter claim/set-off/damages in excess to the pecuniary
jurisdiction of that court.
10. It was in the context of interpretation of the aforesaid sub-rule (1)
that the Apex Court had while dismissing the SLP, had observed that in a
suit for injunction the counter claim for possession could also be
entertained and it was not necessary that the counter claim be entertained
by the same court which was entertaining the suit for the reason that the
power to try the suit already entertained cannot be taken away by
accepting the counter claim beyond its pecuniary jurisdiction.
11. Further the Apex Court in Bhakra Beas Management Board vs.
Krishan Kumar Vij & Another; (2010) 8 SCC 701 has observed in para
19 that a mere dismissal of a special leave petition at the preliminary
stage does not constitute a binding precedent. In the light of the aforesaid
the facts of Gurbachan Singh's case (supra) as well as the law contained
in Order VIII Rule 6A sub-rule (1) which was involved in the aforesaid
case makes it distinguishable from the facts of the present case in hand.
12. Seeing the totality of circumstances, the court can pronounce final
judgment in the suit and the counter claim only if they are tried together
by the same court and since in the instant case, both the parties are
claiming damages qua each other, the matter can be tried by the High
Court within whose pecuniary jurisdiction alone the counter claim will
lie. Permitting two different forums to hear and decide the two cases will
lead to multiplicity of proceedings and has the potential to result in
conflicting judgments which is a sheer abuse of the process of law.
13. Because of the aforesaid reasons, I allow the petition of the
petitioner and transfer both the Civil Suit No.382/2014 and the counter
claim titled Peepee Publishers & Distributors (P) Ltd. vs. Dr. Pritesh
Kumar Singh & Another pending before Sh. Devender Kumar, Additional
District Judge, Patiala House Court, New Delhi to the High Court. Both
the suits shall be listed before the Registrar on 18th August, 2015.
14. Record of the cases be summoned and the same be placed before
the Judge (Original side) for such directions as the court may deem fit.
V.K. SHALI, J.
JULY 23, 2015
'AA'/AD
