Interim Order 4

Order Details: COPY OF JUDICIAL PROCEEDINGS
Pdf Text: CS (Comm) No. 856/2024
Vijayant Soni Vs. Sanjay Soni
20.12.2024
Present : Sh. Yogesh Lotha, Counsel for the plaintiff
alongwith plaintiff (Mob. No. 8745866763/
9268403018).
Proxy counsel for defendant appeared at the first call
but none appeared thereafter.
The defendant was served on 05.11.2024 but the
defendant has not filed WS within the period of 30 days as
prescribed under the Commercial Courts Act. No WS has been
filed even today. As such the right of the Defendant to file WS is
closed and defence of the Defendant is hereby struck off.
In so far as 120 days are yet to elapse, Defendant is
at liberty to move appropriate application seeking condonation of
delay in filing WS within this window.
From the pleadings, the following notional issues are
framed:
(1) Whether the Plaintiff is entitled for decree of
permanent injunction as prayed for ? .... OPP
(2) Whether the Plaintiff is entitled to rendition of
accounts?OPP
(3) Whether the plainitff is entitled to damages as
prayed? …. OPP
(4) Relief.
The plaintiff is directed to file the list of witnesses
alongwith affidavit of witnesses within one week from today and
get the same approved from the court before examination of the
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witnesses. In default, a cost of Rs.10,000/- shall be deemed to
have been imposed on the plaintiff.
To achieve timely and expedient disposal of this
case, a decision is arrived at for recording of evidence by way of
Court Commissioner as provided under Order 15A Rule 6 (l)
of the Commercial Courts Act and Order XXVI Rule 4A read
with Order 18 Rule 4 CPC. Evidence in this case shall be
recorded before Ld. Local Commissioner Ms. Punam Sharma,
Advocate (Enrl. No.D-563/2007 & Mob.9868073290) at the
earliest. The terms of the assignment are as under:
(1) The evidence shall be recorded in this Court premises and
Ahlmad/Assistant Ahlmad shall make available the court file to
the LC while recording the evidence and the parties are required
to pay a sum of Rs.500/- per hearing to the Ahlmad/Assistant
Ahlmad for making available the file.
(2) Ld. Local Commissioner shall administer oath to the
witness under examination as per the Oaths Act.
(3) The evidence shall be preferably typed on a paper or in
case of non availability, the same shall be neatly hand written.
(4) Ld. Local Commissioner shall comply with the provisions
of Order 18 Rule 4 CPC while recording the evidences of the
witnesses.
(5) The documents shall be exhibited but in case of any
objection to the exhibition of documents the same shall be
recorded by the Local Commissioner.
(6) In case Ld. Commissioner finds any question not related to
the fact and issue, he shall record his objection but shall allow the
question to be put and witness must answer.
(7) Remuneration fee for recording of evidence is fixed at
Rs.15,000/- for each, main/public witness and Rs. 5,000/- for
official witnesses, which shall be paid to Ld. LC in advance, by
the plaintiff. It is also mentioned that in case the witnesses are
not examined in one day/session (three hours), the fee for the
examination of the witnesses on the other day/session shall be
paid by the plaintiff. The stenographer be arranged by LC and the
actual cost of typing shall be paid by the plaintiff to Ld. LC (upto
Rs.1,000/- per witness). Further, in case any adjournment is
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sought by any party, the fees of Ld. LC of that particular day
shall be paid by the party seeking adjournment.
Plaintiff is directed to appear before Ld. Local
Commissioner for recording of evidence. The Ld. LC may fix
other date of recording of evidence in consultation with the
plaintiff, and to conclude the evidence prior to final arguments.
Report be filed by Ld. Local Commissioner on or
before the next date of hearing.
Put up for final arguments on 29.01.2025.
A copy of this order be sent to the Local
Commissioner and be also given dasti to the counsel for the
plaintiff for information and necessary compliance.
(Gorakh Nath Pandey)
District Judge (Commercial Court)-08
Central, Tis Hazari Courts, Delhi
20.12.2024
At 2.45 pm:
Present: Sh. Rishi, Counsel for the plaintiff through
VC.
Sh. Sumit Singh, Counsel for the defendant
(Mob. No. 9654224557).
Written Statement alongwith list of documents, reply
to the application U/o 39 Rule 1 and 2 CPC, application U/s 5 for
condonation of delay and affidavit of admission/denial has been
filed by the defendant. Copy already supplied through whatsapp
as stated.
Arguments heard and gone through the record. In
view of the reasons mentioned in the application, same is allowed
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and delay in filing the WS is condoned, subject to cost of Rs.
5,000/- to be paid to the plaintiff. Cost be paid on the next date of
hearing. Subject to payment of cost, WS is taken on record.
The plaintiff is at liberty to file replication within
one week from today with advance copy to the opposite party.
In view of these facts, the order passed above is
modified as under:
“Pleadings are complete.
From the pleadings of the parties, the following
issues are framed:
(1) Whether the Plaintiff is entitled for decree of
permanent injunction as prayed for ? .... OPP
(2) Whether the Plaintiff is entitled to rendition of
accounts?... OPP
(3) Whether the plainitff is entitled to damages as
prayed? …. OPP
(4) Relief.
No other issue arises or is pressed by the parties
from the pleadings.
The parties are directed to file their respective list of
witnesses within one week from today and get the same approved
from the court before examination of the witnesses. The parties
are also directed to file their respective affidavits of witnesses
within one week from today. Advance copies of the same be
exchanged between the parties. In default, a cost of Rs.10,000/-
shall be deemed to have been imposed on the defaulting party.
To achieve timely and expedient disposal of this
case, a decision is arrived at for recording of evidence by way of
Court Commissioner as provided under Order 15A Rule 6 (l)
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of the Commercial Courts Act and Order XXVI Rule 4A read
with Order 18 Rule 4 CPC. Evidence in this case shall be
recorded before Ld. Local Commissioner Ms. Punam Sharma,
Advocate (Enrl. No.D-563/2007 & Mob.9868073290) at the
earliest. The terms of the assignment are as under:
(1) The evidence shall be recorded in this Court premises and
Ahlmad/Assistant Ahlmad shall make available the court file to
the LC while recording the evidence and the parties are required
to pay a sum of Rs.500/- per hearing to the Ahlmad/Assistant
Ahlmad for making available the file.
(2) Ld. Local Commissioner shall administer oath to the
witness under examination as per the Oaths Act.
(3) The evidence shall be preferably typed on a paper or in
case of non availability, the same shall be neatly hand written.
(4) Ld. Local Commissioner shall comply with the provisions
of Order 18 Rule 4 CPC while recording the evidences of the
witnesses.
(5) The documents shall be exhibited but in case of any
objection to the exhibition of documents by the either side the
same shall be recorded by the Local Commissioner.
(6) On the request of Ld. Counsel, cross examining the
witness, portions of deposition may be recorded in question
answer form.
(7) All the objections raised during cross-examination/re-
examination shall be recorded in the deposition under the title
objections and shall be left open for the decision of the Court at
the stage of final arguments. Witness shall not refuse to the
answer the question raised.
(8) In case Ld. Commissioner finds any question not related
to the fact and issue, he shall record his objection but shall allow
the question to be put and witness must answer.
(9) Remuneration fee for recording of evidence is fixed at
Rs.15,000/- for each, main/public witness and Rs.10,000/- each
for official witness for one sitting per day (3 hours) and thereafter
the fee shall be payable @ Rs.5000/- per sitting for the said
witness, which shall be paid to Ld. LC in advance, by the
respective parties.
The party who is leading the evidence shall bear the costs
of sitting. The parties to ensure that they will not seek any
adjournment before Ld. Local Commissioner. At the cost of
repetition, it is clarified that the plaintiff shall bear the expenses
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of plaintiff’s evidence and defendant shall bear the expenses of
defendants’ evidence.
In case an evidence schedule is fixed and adjournment is
sought by the opposite side, that is the side other than who is
leading evidence, without 24 hour advance notice, the party
seeking adjournment shall bear the cost of recording of evidence
by the LC for the adjournment taken. In case a witness scheduled
to be examined or under examination is reported to be unwell or
unavailable, the party leading the evidence shall produce the next
witness in line in the list for recording of evidence.
All parties shall be provided uncertified electronic/hard
copy of the evidence recorded by the Court Commissioner free of
cost.
Expenditure incurred in recording of evidence shall be
redeemable as cost of litigation at the end of the suit.
In case of any unforeseen situation requiring judicial
interpretation, the court commisioner shall fix the date and
preferably time at 2 pm for joint appearance of both sides before
the court for removal of any such impediment.
Every endeavour shall be made to record the evidence and
continue the same on day to day basis till conclusion. Any
alteration in schedule for recording of evidence, if needed, shall
be decided by the Court Commissioner as per the convenience of
both the sides. However, every effort be made to record the entire
evidence on or before the next date of hearing.
Advance copy of examination in chief by way of affidavit
shall be supplied to the opposite side preferably three days in
advance. In case a litigating party is desirous of summoning a
witness for deposition or production of document, it shall obtain
summons from the court with an endoresement that such person
shall appear at the address of the Court Commissioner at
scheduled time and place.
It is also mentioned that in case the witnesses are not
cross-examined in one day/session (three hours), the fee for the
cross examination of the witnesses on the other day/session
shall be paid by the respective party conducting cross-
examination. The stenographer be arranged by LC and the actual
cost of typing shall be paid by the plaintiff/defendant to Ld.
LC (upto Rs.1000/- per witness). Further, in case any
adjournment is sought by either of the parties, the fees of Ld. LC
of that particular day shall be paid by the party seeking
adjournment.
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Parties are directed to appear before Ld. Local
Commissioner for recording of evidence.
Report be filed by Ld. Local Commissioner on or before
the next date of hearing.
Put up for final arguments on 29.01.2025.
The Ld. Counsel for the parties are permitted to file their
respective written arguments on or before the next date of
hearing. Advance copies of the same be exchanged between the
parties, at least two days, prior to the date fixed for final
arguments.
A copy of this order be sent to the Local Commissioner
and be also given dasti to the parties for information and
necessary compliance.”
(Gorakh Nath Pandey)
District Judge (Commercial Court)-08
Central, Tis Hazari Courts, Delhi
20.12.2024
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