Quantum Outdoors vs Realm Media Solutions Pvt Ltd & Ors
2017 Latest Caselaw 5072 Del

*        IN THE HIGH COURT OF DELHI AT NEW DELHI
%                        Date of decision: 14th September, 2017
+                     CM(M) No.774/2017
         QUANTUM OUTDOORS                           ..... Petitioner
                    Through:     Mr. Mahinderjeet Singh and Mr.
                                 Gagan Gupta, Advs.
                           Versus
    REALM MEDIA SOLUTIONS PVT
    LTD & ORS..                                  .....Respondents

Through: Mr. Romy Chacho and Mr. Rahat Bansal, Advs.

CORAM:

HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

1. This petition under Article 227 of the Constitution of India impugns the order (dated 2nd June, 2017 in CS No.653/2017 of the Court of Additional District Judge (ADJ)-02, New Delhi District, Patiala House Court, New Delhi) dismissing the application of the petitioner/plaintiff under Order XII Rule 6 of the Code of Civil Procedure, 1908 (CPC).

2. Notice of the petition was issued, though a query was made from the counsel for the petitioner/plaintiff, as to the maintainability of petition under Article 227 of the Constitution of India since an order of dismissal of an application under Order XII Rule 6 of CPC is revisable.

3. The counsel all the respondents/defendants appears and seeks time to file reply.

4. There is no need for a reply to a petition under Article 227 of the Constitution of India which is concerned with the correctness of the orders of the Trial Court and is to be decided on the basis of the record of the Trial Court and not on the basis of pleadings in this Court.

5. The counsels have been heard.

6. The counsel for the petitioner/plaintiff at the outset concedes that the filing of this petition under Article 227 of the Constitution of India was a mistake as the order impugned in this petition is revisable under Section 115 of CPC. He however refers to the judgments of the Court treating or converting a petition under Section 115 of CPC into a petition under Article 227 of the Constitution of India and vice-versa.

7. It is felt that because the Courts are indulgent in overlooking such errors, the law continues to be ignored and a time has come to enforce the law, so that such mistakes which continue to occur cease.

8. The counsel for the petitioner/plaintiff assures this Court that he will in future be careful and not make such mistake.

9. Accepting the aforesaid assurance, the petition is entertained.

10. The petitioner/plaintiff instituted the suit from which this petition arises, under Order XXXVII of CPC for recovery of Rs.19,04,135/- from the respondent No.1 and its Directors impleaded as respondents No.2 to 4 jointly and severally. The respondents/defendants did not enter appearance within the prescribed time and the suit was decreed. The respondents/defendants filed an application under Order XXXVII Rule 4 of CPC which was also dismissed. However thereafter, on the respondents / defendants approaching this Court by way of C.R.P. No.72/2017, vide order dated 30th March, 2017, the decree was set aside and subject to the respondents/defendants depositing a sum of Rs.9 lakhs in the Trial Court, leave was granted to the respondents/defendants to defend the suit.

11. The respondents/defendants filed their written statement where, towards the end of para 5 of the preliminary objections, it was stated as under:

".....Thus the Defendant has further paid Rs.10,41,605/- out of the settled amount i.e. Rs.16,98,283/- therefore the Plaintiff is entitled for only Rs.6,56,678 only."

To the same effect are parts of paras 13, 17 & 22 of the reply on merits in the written statement.

12. On the basis thereof, the application aforesaid for decree on admissions, at least to the extent of Rs.6,56,678/-, was filed.

13. The learned ADJ has declined the said request merely observing that since the suit was not going to be finally disposed of by passing the order of payment of admitted amount by the defendants and since the defendants had already deposited a sum of Rs.9 lakhs in the form of Fixed Deposit Receipt (FDR) in the Court, no case for passing a decree to the extent of admitted amount was made out.

14. To say the least, the reasoning given by the ADJ is contrary to law. The law permits decree on admissions for less than total amount claimed and merely because the learned ADJ may not have earned a unit from so decreeing the suit in part was no ground for the learned ADJ to have not allowed to the petitioner/plaintiff what was due in law to the petitioner/plaintiff. Similarly, the other reason given, of the respondents/defendants having deposited Rs.9 lakhs in the Trial Court as a condition for grant of leave to defend has no basis in law and does not come in the way of entitlement of the petitioner/plaintiff to a decree on admissions. While Rs.9 lakhs was only in the form of FDR not within

the hands of the petitioner/plaintiff, the money realised under the decree can be utilised by the petitioner/plaintiff for its business.

15. For the aforesaid reasons, the arguments of the counsel for the respondents/defendants justifying the order for the same reasons, are also devoid of any merits.

16. The counsel for the respondents/defendants has then contended that the question of the petitioner/plaintiff being entitled to recover any monies on admission would arise only if the Court in which the Suit is filed has territorial jurisdiction to entertain the suit. It is contended that the respondents/defendants in their joint written statement have contested the territorial jurisdiction of the Courts at Delhi and on which plea of the respondents/defendants, vide the impugned order, issue No.1 has been framed as under:

"1. Whether this court has no territorial jurisdiction to entertain the present suit? OPD"

17. The petitioner/plaintiff has invoked the territorial jurisdiction of the Courts at Delhi by pleading in para 26 of the plaint that the registered office of the respondent/defendant No.1 is at Delhi.

18. The respondents/defendants in their written statement, in response to the said paragraph of the plaint, have not disputed the factum of the registered office of the respondent/defendant No.1 being at Delhi. The counsel for the respondents/defendants also on being asked is unable to show the said fact having been controverted but states that though the registered office of the respondent/defendant No.1 was at Delhi at the time of institution of the suit but has since been shifted.

19. No such plea has been taken in the written statement.

20. The counsel for the petitioner/plaintiff has also drawn attention to the memorandum of parties in C.R.P. No.72/2017 aforesaid preferred by the respondents/defendants and in which also, the registered office of the respondent/defendant No.1 was shown by the respondents / defendants themselves to be at Delhi.

21. It is thus evident that a false argument is being made before this Court to, by hook or crook, avoid payment of money which according to the written statement of the respondents/defendants also is admitted to be due to the petitioner/plaintiff. Such conduct of the respondents/defendants, of avoiding payment of admitted dues, including on false grounds of this Court not having jurisdiction owing to registered office of respondent/defendant no.1 having shifted, has to be taken into consideration while levying interest to which the petitioner/plaintiff is entitled to on the amounts found due to the petitioner/plaintiff.

22. I may notice that the respondents/defendants in the written statement, in reply to the paragraph in the plaint concerning territorial jurisdiction, have also contended that no cause of action had accrued within Delhi and that the invoices of the petitioner/plaintiff filed along with the plaint specifically mention that if any dispute arose between the parties, Karnal Court will be having jurisdiction to entertain the dispute. However the said pleas are of no avail once the respondents/defendants by having their registered office, are carrying on business at Delhi. It was open in law to the petitioner/plaintiff to institute the suit at Delhi instead of instituting the same at the place where the cause of action may have accrued. With respect to the clause on the invoice of the

petitioner/plaintiff, admittedly the respondents/defendants are not at Karnal and the counsel for the respondents/defendants argues that the office of the respondents/defendants is at Mumbai. It is thus obvious that the clause on the invoice of the petitioner/plaintiff of jurisdiction of Karnal was for the benefit of the petitioner/plaintiff and the petitioner/plaintiff is within its right to waive any clause intended for its own benefit and the respondents/defendants cannot have any objection thereto. Moreover, it is not the plea of the respondents/defendants that they had accepted the said clause of jurisdiction at Karnal. On the contrary, as per the written statement and as per the argument today, the suit should have been filed at Mumbai.

23. Thus, the ground urged by the respondents/defendants for opposing the decree on admissions, of the Court not having territorial jurisdiction has no merit.

24. Resultantly, the petition succeeds.

25. The order dated 2nd June, 2017 declining to pass decree on admissions in favour of the petitioner/plaintiff for recovery of Rs.6,56,678/- is set aside and a decree on admissions is passed, in favour of the petitioner/plaintiff and against the respondents/defendants jointly and severally, for recovery of principal sum of Rs.6,56,678/-.

26. Next is the question of the interest payable on the said amount.

27. The petitioner/plaintiff has not claimed any pre-suit interest. The rate of interest to be awarded during the pendency of the suit and future is in any case in the discretion of the Court.

28. Considering that the transaction between the parties was commercial and the respondents/defendants inspite of admitting the

liability in the said amount have been withholding the same, it is deemed appropriate to award interest with effect from the date of institution of the suit till realisation @ 12% per annum.

29. The entitlement of the petitioner/plaintiff to costs shall be determined at the stage of final adjudication of the suit.

30. A decree is accordingly passing in favour of the petitioner/plaintiff and against the respondents/defendants jointly and severally for recovery of Rs.6,56,678/- with interest from the date of institution of the suit till realisation @ 12% per annum.

31. The counsel for the respondents/defendants seeks decretal amount to be adjusted out of the sum of Rs.9 lakhs already deposited by the respondents/defendants in the Court.

32. Since the entire argument of the counsel for the respondents/defendants is of technicalities, if this Court were to be technical, the said relief cannot be granted in this petition and the respondents/defendants will have to apply in C.R.P. No.72/2017.

33. However without going into the said aspect, the said request has been considered. A perusal of the order dated 30 th March, 2017 in C.R.P. No.72/2017 shows that the order for deposit of amount of Rs.9 lakhs came to be passed on the joint statement of the counsels. The same was thus a consent order. The claim in the suit is for the principal amount of Rs.19,04,135/-.

34. The counsel for the respondents/defendants wants the entire decretal amount to be adjusted out of the said Rs.9 lakhs deposited in the Trial Court.

35. The counsel for the petitioner/plaintiff on the contrary states that at that time there was no admission and since the stand of the respondents/defendants now is that they are not operating their office from Delhi, the petitioner/plaintiff in the event of succeeding in the remaining claim would have to transfer the decree for execution to Mumbai or else would be left with a paper decree.

36. Considering the facts and circumstances and especially the conduct of the respondents/defendants, I am of the view that out of the amount of Rs.9 lakhs with interest due thereon, only a sum of Rs.3 lakhs be released forthwith to the petitioner/plaintiff in satisfaction of the decree aforesaid and the balance amount of Rs.6 lakhs with interest accrued thereon to continue to remain deposited with the Trial Court till the final adjudication of the suit.

37. It will be open to the respondents/defendants to, within four weeks herefrom, have a pay order prepared for Rs.3 lakhs plus interest due on FDR kept in this Court in favour of the petitioner/plaintiff and deposit in the Trial Court a FDR for the balance sum of Rs.6 lakhs with interest on the earlier FDR till then and to, by depositing the said FDR in the Trial Court, take back the FDR already deposited.

38. The petitioner/plaintiff shall be entitled to execute the balance decree passed today against the respondents / defendants, if the respondents / defendants fail to abide therewith.

Decree sheet be drawn up.

Copy of this order be given dasti.

RAJIV SAHAI ENDLAW, J.

SEPTEMBER 14, 2017/'bs'..