[Cites 1, Cited by 0]
Delhi High Court
M/S Fuelco Industrial Corp. & Ors vs Raj Kumar Saxena on 19 March, 2026
Author: C. Hari Shankar
Bench: C. Hari Shankar
$~39
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA(COMM) 135/2025
M/S FUELCO INDUSTRIAL
CORP. & ORS. .....Appellants
Through: Mr. Jai Wadhwa and Mr. Ronak
Karanpuria, Advs.
versus
RAJ KUMAR SAXENA .....Respondent
Through:
CORAM:
HON'BLE MR. JUSTICE C. HARI SHANKAR
HON'BLE MR. JUSTICE OM PRAKASH SHUKLA
ORDER (ORAL)
% 19.03.2026
C. HARI SHANKAR, J.
1. This appeal is directed against three orders passed by the
learned District Judge (Commercial Court)1 dated 30 September 2024,
23 July 2024 and 8 August 2024 in CS (COMM) 155/20212.
2. The defendant-respondent, who chose not to enter appearance,
was proceeded ex parte, before the learned Commercial Court as well
as before this Court.
3. The appellant-plaintiff thereafter produced a list of as many as
25 witnesses which it desired to examine, of which 20 were witnesses
who had to be summoned.
1 "the learned Commercial Court" hereinafter
2 "the suit" hereinafter
4. In these circumstances, the learned Commercial Court, by order
dated 23 July 2024, which constitutes the first order under challenge
herein, regretted its inability, given work pressure, to record the
evidence itself and, therefore, appointed a local commissioner to do
so, on or before 23 September 2024.
5. The appellant moved an application for modification of the
order, pleading financial stringency and inability to disgorge the
amounts specified, for recording of the evidence through commission.
6. Said application was disposed of, by the learned Commercial
Court, by order dated 8 August 2024 (the second order under
challenge herein), reducing the fee of the Local Commissioner but
otherwise maintaining the earlier order.
7. As no steps were taken by the appellant, in compliance with the
said orders, the learned Commercial Court, by order dated 30
September 2024 (the third order under challenge herein), dismissed
the suit for non-prosecution.
8. The decision on whether to record evidence through
Commission, or not, vests with the Court. Unless the exercise of
discretion is palpably perverse, it is ordinarily not amenable to
interference. The law, in this regard, has been authoritatively
enunciated by the Supreme Court in Salem Advocate Bar Association,
T.N v. Union of India3, which also rejected a submission that
3 (2005) 6 SCC 344
recording of evidence through commission might be financially
prejudicial to a party.
9. When this matter came up before us yesterday, we expressed
our opinion that, if the appellant desired to examine 25 witnesses,
even when the respondent was ex parte, and 20 of the 25 witnesses
would have to be summoned, we would not be in a position to
interfere with the orders under challenge, Mr. Jai Wadhwa, learned
Counsel for the appellant, sought a days' time to seek instructions as
to whether the number of witnesses could be reduced.
10. We have to record, with satisfaction, that Mr. Jai Wadhwa has,
today, at the very outset, agreed to reduce the number of witnesses
cited by him to two.
11. In that view of the matter, as only two witnesses are cited by the
appellant-plaintiff, we are of the view that the services of a Local
Commissioner would not be required, as the respondent is ex parte
and his defence has already been struck off.
12. Accordingly, the impugned orders dated 30 September 2024, 23
July 2024 and 8 August 2024 are quashed and set aside.
13. The suit is restored to its original position.
14. Let the parties appear before the learned Commercial Court on
30 March 2026. On that date, the learned Commercial Court would fix
a date for recording of evidence of the two PWs.
15. The appeal is disposed of in the aforesaid terms.
C. HARI SHANKAR, J.
OM PRAKASH SHUKLA, J.
MARCH 19, 2026/gunn
