Tullio Giusi Spa vs House Of Trims Pvt Ltd
2019 Latest Caselaw 3674 Del

$~18
*    IN THE HIGH COURT OF DELHI AT NEW DELHI
+    CS(COMM) 221/2016
     TULLIO GIUSI SPA                          ..... Plaintiff
                    Through: Ms. Palak Nenwani, Adv.
                            Versus
     HOUSE OF TRIMS PVT LTD                    ..... Defendant
                    Through: Mr. Sonal Sinha, Adv.
     CORAM:
     HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
                    ORDER

% 07.08.2019

IA No.10754/2019 (of the defendant under Order XIV Rule 5 CPC)

1. The applicant / defendant, after framing of issues on 24th July, 2018 and after partly cross-examining the witness of the plaintiff, seeks amendment of issues by framing of an additional issue qua the authority of the signatory of the plaint to sign and verify the plaint and to institute the suit.

2. The counsel for the applicant / defendant has argued, that the said issue was contained in the proposed issues handed over to the Court on 24 th July, 2018 but remained to be framed.

3. There is no explanation that if the same remained to be framed, why did the counsel for the applicant / defendant not noticed it till the filing of this application and allowed the proceedings to move further. Moreover, merely because an issue has been proposed, does not necessarily entail framing thereof. Issues are to be framed only on substantial pleas of laws and facts and not on each plea of law and fact. Reference if any required in this regard can be made to Kawal Sachdeva Vs. Madhu Bala Rana 2013 SCC OnLine Del 1479, Adarsh Kumar Puniyani Vs. Lajwanti Piplani 2015 SCC OnLine Del 14022, Abbot Healthcare Pvt. Ltd. Vs. Raj Kumar Prasad

(2018) 249 DLT 220, Bhavana Khanna Vs. Subir Tara Chand 2019 SCC OnLine Del 6978, Anil Kumar Vs. Devender Kumar 2019 SCC OnLine Del 8782 and Precision Steels Vs. Reeta Salwan (2013) 205 DLT 695.

4. The order dated 24th July, 2018, as per its tenor, was dictated in open Court and the counsel who is appearing today for the applicant / defendant was present in the Court on that date also and again there is no explanation as to why the counsel, when present in the Court, if any issue proposed had inadvertently not been framed, not point out so.

5. Moreover, the order dated 24th July, 2018 records that the issues were framed with the consent of the parties.

6. The applicant / defendant for this reason also is deemed to have consented to only the issues framed on 24th July, 2018 and to any other issue even if proposed being not framed.

7. The counsel for the applicant / defendant draws attention to the cross- examination by the applicant / defendant on 30th July, 2019 of PW1.

8. A perusal of the said cross-examination shows the counsel for the applicant / defendant to have cross-examined PW1 on matters beyond the issues framed in this suit on 24th July, 2018. It is unfortunate that neither the counsel for the plaintiff nor the learned Joint Registrar who was recording the evidence, noticed the same and allowed questions beyond issues to be asked. Thus no reliance can be placed on the cross-examination conducted on 30th July, 2019 which itself is beyond the scope of the proceedings and ought not to have been conducted / permitted.

9. Else the suit, as per the memo of parties, shows M/s Tullio Giusi, SPA through its Managing Director / General Manager as the plaintiff and in paragraph 1 of the plaint it is pleaded that the plaintiff is a company

incorporated under the laws of Italy and is filing the suit through Mr. Guiseppe Bontempi who is the Managing Director / General Manager of the plaintiff and has been authorized by the Board Resolution of the plaintiff to institute the suit. The applicant / defendant in its written statement, in paragraph 4 of the preliminary objections, merely denied that Mr. Guiseppe Bontempi was authorized to institute the suit and pleaded that the suit had been filed without proper authority and competence on behalf of the plaintiff. To the same effect is paragraph 11 of the parawise reply in response to paragraph 1 of the plaint. Such a bare denial does not constitute a substantial plea, to invite framing of issue thereon.

10. A practice has developed in the Courts, of denying each and every plea in the pleadings of the opposite party, with the phrase "incorrect and denied" being found tens, if not hundreds of times in each pleading. Attempt is made to play a game of litigation in Courts, governed by law, by putting on the opposite party, the onus of proving each and every plea, most of which are not really disputed, and in an attempt to take advantage, in my view unfair, of lapse in proving any of the pleas. If each and every such denial were to invite an issue, a large number of issues would be framed in each suit, requiring equally voluminous evidence and cross-examination and resultant delays in disposal of suits. The Courts are not required to pedantically frame such issues and to allow such a game to be played.

11. The present suit, though filed as an ordinary suit, on coming into force of the Commercial Courts Act, 2015, falling in the category of a commercial suit, was re-numbered as a commercial suit and is being pursued as such.

12. The Commercial Courts Act endeavours to expedite the disposal of suits carved out as commercial suits. Such an expeditious disposal would

not be possible if each and every denial were to invite the framing of an issue. Further reference in this regard may be made to Vifor (International) Ltd. Vs. Suven Life Sciences Ltd. 2019 SCC OnLine Del 7514.

13. For an issue to be framed on the authority of the person suing on behalf of the plaintiff, the applicant / defendant who otherwise admits commercial dealings with the plaintiff, was required to take specific pleas as to the constitution of the plaintiff, the person who according to the laws of the country in which the plaintiff is incorporated is competent to sue on behalf of the plaintiff and the persons of the plaintiff with whom the applicant / defendant was dealing, to constitute a substantial plea. A bare denial does not suffice, specially when in the event of the plaintiff in this suit for recovery of money succeeding, it is not as if the money therein can be recovered by any person other than the plaintiff. The money can be recovered and will go in the account of the plaintiff only and in this case, also by repatriation to the country in which the plaintiff is incorporated.

14. In view of the aforesaid circumstances, I have still given an option to the counsel for the applicant / defendant, that if the applicant / defendant desires the framing of an issue as sought and which will entail giving of an opportunity to file documents if any in proof of the issue, fresh filing of evidence and cross-examination, the defendant / applicant should be willing to reimburse the costs of the same to the plaintiff and which costs are assessed at Rs.5 lacs.

15. The counsel for the applicant / defendant is not willing.

16. The same shows the frivolous manner in which an issue is sought to be raised, to delay the proceedings and perhaps to delay the passing of a decree for recovery of money against the applicant / defendant.

17. The counsel for the applicant / defendant, who was interrupting in between the dictation, now when given an opportunity wants me to go through the documents to contend that there is merit in the plea.

18. Issues are framed on the basis of the pleadings and once the pleadings in this respect are not found to be substantial and the counsel for the applicant / defendant on 24th July, 2018 consented to non-framing of the said issue, the said arguments are not open to the applicant / defendant.

19. The counsel for the applicant / defendant states that he had not consented and can file his own affidavit to the said effect.

20. There is no explanation however as to why no such plea was raised immediately after 24th July, 2018.

21. There is no merit in the application.

Dismissed.

RAJIV SAHAI ENDLAW, J AUGUST 07, 2019 „gsr‟