Virtus Dorderecht B.V. vs Vikram Bhargava (Since Deceased) ...
2016 Latest Caselaw 5308 Del

$~16
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

%                              Date of Decision: August 11, 2016

+                        RFA(OS) 132/2014

       VIRTUS DORDERECHT B.V.                         .....Appellant
                Represented by: Dr.Ashwini Kumar, Sr.Advocate
                                instructed by Mr.L.K.Singh,
                                Ms.Sangeeta Bharti, Mr.S.K.Singh,
                                Advocates

                                     versus

    VIKRAM BHARGAVA (SINCE DECEASED)             ..... Respondents
    REPRESENTED BY: LR LATE MRS.MADHURI
    BHARGAV & ORS.
             Represented by: Mr.B.K.Sood, Mr.Manharjit
                             Singh, Mr.Shivam Rawat,
                             Mr.Tejinder Singh, Advocates
                             for R-2, 3, 4 & 6.
                             Mr.Akshay Bhandari, Advocate
                             for R-1B
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE PRATIBHA RANI

PRADEEP NANDRAJOG, J. (ORAL)

CM No.15161/2014

1. This is an application under Order XLI Rule 27 of the Code of Civil Procedure praying that the document annexed as Annexure-A1 to the application may be taken on record and allowed to be proved so as to form the evidence.

2. The backdrop facts necessary to decide the application are that M/s Virtus Dorderecht B.V. and M/s Bliesner & CIE S.A. joined as plaintiffs to sue on the plea that the former is a private limited company as per laws in Netherland and Nicolass T. De Deugd is the sole, shareholder/directors/ principal officer of the plaintiff No.1 and is competent to institute the suit and verify the pleadings on behalf of plaintiff No.1 and the later is a limited company incorporated as per laws in Switzerland and Thomas Bliesner is its Director and is competent to institute the suit and verify the pleadings on behalf of plaintiff No.2.

3. Since opposition to the application for additional evidence is by defendants No.2 to 4, relevant would it be to note that while denying said averments made in the plaint qua plaintiff No.1, it was pleaded that it appears that the plaintiff No.1 company is a sole proprietorship firm.

4. Issue No.IX settled vide order dated March 8, 2011 is : Whether the suit has been signed and instituted by a duly authorized person? OPP

5. The said issue has been decided against the plaintiffs by the learned Single Judge on the reasoning that it has not been proved that plaintiff No.1 was a single shareholder company.

6. Suffice it to state that if plaintiff No.1 was a single shareholder company and the single shareholder thereof was Nicolass T. De Deugd and the institution of the suit on behalf of plaintiff No.1 by Nico Lass T. De Deugd would be proved.

7. We find that Nicolass T. De Deugd has appeared as PW-1 and has pleaded that as owner and director of plaintiff No.1 he is competent to sue on behalf of plaintiff No.1 .

8. Now, parties rely upon their lawyers to ask them to give to the lawyer such documents as are necessary to prove their case and file the same in a Court and prove the same. If on account of an oversight a lawyer overlooks a relevant document to be filed and the result is a drastic verdict hitting at the very root of the case of the party, Order XLI Rule 27 of the Code of Civil Procedure is the panacea.

9. There are various municipal jurisdictions world over where a single shareholder company is recognised as a juristic entity. In such a situation the single shareholder acts on behalf of the company akin to the Indian situation of a sole proprietor acting on behalf of his sole proprietary firm and for this the sole proprietor requires no authorization because he is sue generic.

10. Learned counsel for the respondents No.2 to 4 has sought to urged that it is the case of Nicolass T. De Deugd that the debt in question has been assigned to him by plaintiff No.1. We do not understand the relevance thereof because as per Dutch laws a single shareholder company is controlled and managed by the single shareholder and is recognized as a juristic entity. Wearing one hat the single shareholder can assign the debt to himself wearing the other hat.

11. To the document now sought to be filed and proved the plaintiff No.1 intends to overcome the lacuna in the evidence by establishing that plaintiff No.1 was a single shareholder company and the shareholder thereof was Nicolass T. De Deugd.

12. The application is accordingly allowed. The document annexed as Annexure-A1 to the application is taken on record. The matter is being

listed before the learned Registrar for recording evidence limited to proving Annexure-A1 to the application. To recompense the respondents for inconvenience caused one set costs in sum of `10,000/- (Rupees Ten Thousand only) is imposed upon the appellants which shall be shared equally by the contesting respondents. The costs shall be tendered by cash or by cheque before the learned Registrar on the date fixed, and it is made clear that if costs is not tendered the present order granting relief prayed for to the appellants would be treated as not enabling the appellants to prove the document in question and the document would be deemed not to be taken on record.

RFA(OS) 132/2014 The appeal be listed before the learned Registrar on September 06, 2016 who shall notify a date for the appellant to examine the witness and prove the additional document taken on record in the appeal. Thereafter, the appeal shall be listed for directions in Court.

(PRADEEP NANDRAJOG) JUDGE

(PRATIBHA RANI) JUDGE AUGUST 11, 2016 skb