Tendril Financial Services Pvt. ... vs Namedi Leasing & Finance Ltd. & ...
2016 Latest Caselaw 4459 Del

           *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                        Date of decision: 12th July, 2016

+      CS(OS) 2281/2006, IA No.13721/2016 (u/O 39 R-1&2 CPC), IA
       No.14158/06 (u/O 39 R-4 CPC), CCP (O) No.57/2007, IA
       No.291/07 (u/O 39 R-4 CPC), IA No.1922/2007 (u/O 11 R-12 &
       14), IA No.1389/2008 (u/S 47 r/w Section 151CPC) & IA
       No.7312/13 (u/O 1 R-10 CPC).

       TENDRIL FINANCIAL SERVICES PVT. LTD.
       AND ORS.                                    ..... Plaintiffs
                    Through: Mr. Rahul Srivastava and Mr. Manu
                             Dev Sharma, Advs.
                                   versus
    NAMEDI LEASING & FINANCE LTD. & ORS.E+... Defendants
                  Through: Mr. M.K. Sreejesh, Adv. for D-1 to 4.
                           Mr. Harish Malhotra, Sr. Adv. with
                           Mr. Ashok Kumar Singh, Adv. for D-
                           7.
                           Mr. Gaurav Mahajan and Mr. Lokesh
                           Chopra, Advs. for D-8.
CORAM:-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

1.

In this suit for declaration of rights with respect to shares of the defendant no.8 M/s. Blue Coast Hotels & Resorts Ltd., issues were framed as far back on 3rd May, 2012 and the plaintiffs were directed to file their affidavits by way of evidence within eight weeks.

2. No affidavit has been filed till date though more than four years have elapsed.

3. Upon the reason thereof being asked, the counsel for the plaintiffs seeks adjournment stating that some matter is pending before the Supreme Court and listed next on 10th August, 2016 and this suit be taken up thereafter.

4. That is no ground for adjournment when it is not disclosed as to why the trial of this suit is to await the decision of the matter in the Supreme Court and when the suit is already of 10 years vintage and default of the Plaintiffs in leading evidence of more than 4 years.

5. The counsel for the plaintiffs then states that the plaintiffs have also filed IA No.7312/2013 for transposition of the defendants no.8 & 9 namely M/s. Blue Coast Hotels & Resorts Ltd. and M/s. Morepen Laboratories Ltd. as plaintiffs to the suit along with the existing six plaintiffs.

6. It is further stated that the said IA No. 7312/2013 was dismissed by the Joint Registrar vide order dated 12th December, 2013 but vide order dated 15th December, 2014 in Chamber Appeal being OA No.142/2014, the said order was set aside and the IA No.7312/2013 directed to be heard afresh and for which purpose it is listed before the Joint Registrar on 29th August, 2016.

7. The senior counsel for the defendant no.7 M/s Morgan Securities and Credits Pvt. Ltd. states that it is the case of the plaintiffs that (i) they had pledged the shares held by them in defendant No.8 M/s. Blue Coast Hotels & Resorts Ltd. with the defendant no.7 M/s Morgan Securities and Credits Pvt. Ltd. and the sale by the defendant no.7 M/s Morgan Securities and Credits Pvt. Ltd. of the said shares to the defendants no.1 to 4 for realisation of its dues is illegal; (ii) the defendant no.8 M/s. Blue Coast Hotels &

Resorts Ltd. had also filed a complaint in this regard with the Securities and Exchange Board of India (SEBI) and which held the sale by defendant no.7 M/s Morgan Securities and Credits Pvt. Ltd. to be in violation of the procedure prescribed; (iii) the defendant no.7 M/s Morgan Securities and Credits Pvt. Ltd. and the defendants no.1 to 4 preferred an appeal to the Securities Appellate Tribunal and which appeal was allowed; (iv) against that, a Special Leave Petition (SLP) was filed by the defendant no.8 M/s. Blue Coast Hotels & Resorts Ltd. to the Supreme Court which was dismissed. The orders are handed over in the Court and are taken on record. It is thus his contention that the specialised tribunal set-up to go into the said question having adjudicated the controversy, the plaintiffs are not entitled to pursue this suit.

8. It is yet further stated by the senior counsel for defendant No.7 M/s Morgan Securities and Credits Pvt. Ltd. that the plaintiffs had also lodged a First Information Report (FIR) against the defendant no.7 M/s Morgan Securities and Credits Pvt. Ltd. in this regard and which was quashed by this Court and the SLP preferred by the plaintiffs thereagainst also stands dismissed.

9. Since the only ground on which the plaintiffs have not led evidence for the last four years is the application for transposition of the defendants no.8&9 as plaintiffs and who, the counsel for the plaintiffs states have no objection to such transposition, I have enquired the need for transposition.

10. I have further enquired, why the plaintiffs could not have led evidence of defendant no.8, who seems to be hand in glove with the plaintiffs, by summoning the official of defendant No.8 M/s. Blue Coast Hotels & Resorts

Ltd. as their own witness. Significantly, the plaintiffs claim to be shareholders of the defendant no.8 M/s. Blue Coast Hotels & Resorts Ltd.

11. No answer is forthcoming.

12. At this stage the counsel for the plaintiffs states that though he could have examined the defendants no.8&9 as witnesses of the plaintiffs but had a choice either to follow that procedure or seek transposition and in exercise of the said discretion chose to file the application for transposition and which has been kept pending.

13. I do not agree. No litigant has a choice to proceed with a litigation at his/her/its own pace and to keep a litigation pending for as long as desires and the Courts cannot be silent spectators thereto and allow their process to be so abused. The Courts today, more than in the past, are in the public glare particularly on the aspect of delays in disposal of cases. The arguments of the counsel for the plaintiffs demonstrate one of the reasons for such delays. There is a class of litigants who though approach the courts but not really for seeking adjudication but to use the process of the court and the interim orders obtained, as a tool of harassment and to coerce/blackmail the opposite parties. The present appears to be one such case.

14. The counsel for the plaintiffs has been asked to argue the application for transposition.

15. He states that since it is listed before Joint Registrar, he will not be able to argue today.

16. Rule 3 of the Delhi High Court (Original Side) Rules, 1967 delegates to the Registrar/Joint Registrar of this Court the powers of the Court in the matters specified therein. One of such powers mentioned at serial no.57

thereof is to "deal with and decide applications under Order I Rule 10 of the Code of Civil Procedure". The plaintiffs having sought transposition of defendants no.8 & 9 as plaintiffs invoking Order I Rule 10, the said application is posted before the Joint Registrar. However the delegation of powers under Rule 3 supra does not denude the Court from exercising the powers which are so delegated. Often overlapping dates are fixed before the Court and before the Joint Registrar. However the date before the Court cannot be allowed to be wasted by contending that the hearing before the Court can only be after the hearing before the Joint Registrar. If the Court is of the opinion that the proceeding before it is dependent upon decision on some aspect which is pending consideration before the Joint Registrar, it is always open to the Court to itself decide that matter also for the sake of expediency and the counsels cannot seek adjournment on this ground.

17. The counsel for the plaintiffs then states that a date may be fixed for arguments.

18. In fact the contention of the counsel for the plaintiffs for being not prepared with IA No.1312/2012 is also not factually correct. A perusal of the order sheet shows that the said application was listed before this Bench on 15th February, 2016 when it was adjourned to today for non-availability of the counsel for the plaintiffs. However it appears that subsequently the Joint Registrar also posted this application before himself. Once the application, on 15th February, 2016 was posted for today, there is no occassion for the counsel to seek adjournment on the ground urged.

19. It is quite obvious that the plaintiffs, though filed the suit as far back as in the year 2006, are not interested in prosecuting the same.

20. The suit is dismissed for non-prosecution.

21. Needless to state that interim order stands vacated.

22. I refrain from imposing costs on the plaintiffs.

23. The date before the Joint Registrar is cancelled.

RAJIV SAHAI ENDLAW, J

JULY 12, 2016 „pp‟..