Interim Order 3

Order Details: COPY OF JUDICIAL PROCEEDINGS
Pdf Text: 11
CS (COMM.)/373/2024
CNR NO. : DLND010033562024
MOHD MOHSIN
VS.
M/S SHAPOORJI PALLONJI AND CO PVT LTD
30-09-2024
Present : Mohd. Yusuf, Advocate for plaintiff.
[Having mobile No. : 9818072530]
Ms. Akshita Salampuria and Ms. Akanksha Batra,
Advocates for defendant.
[Mobile No.9953858787 and e-mail id
i.e.
saurabh.bindal@foxmandal.in]
Heard. File perused.
Ld. Counsel of defendant, while pointing out from the
record, has submitted that she has already filed written statement,
an application under Order VIII Rule 1 CPC read with S. 5 of
Limitation Act for condonation of delay in filing written statement,
List of Documents alongwith documents, Affidavit of admission
and denial of plaintiff’s documents and Certificate by way of
affidavit under Order XI Rule 6 (3) CPC as applicable to the
Commercial Courts Act, 2015. Copies thereof already supplied to
opposite side.
Written reply to the aforesaid application already
filed by non-applicant/ plaintiff is also on record. Copy already
supplied to applicant/ defendant.
With the joint consent of both the sides, arguments
heard on the condonation application. Record perused
By way of present application, the defendant has
sought condonation of delay of 29 days beyond period of 30 days
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for filing written statement on record on the ground,
inter alia, that
the defendant was served on 11-06-2024 and after the receipt of
summons, the defendant had to procure, collate and verify the
documents, records and bank account statements of the defendant
company for the purpose of filing written statement in this suit, in
order to present the correct and proper facts before this Court for
just and proper adjudication of this Court. It is stated that the
written statement has been been filed within maximum period of
120 days and thus, it is prayed that the application may be allowed
and written statement may be taken on record, else, great prejudice
shall be caused to the defendant.
The application is opposed on behalf of plaintiff on
the ground that no sufficient ground is shown or disclosed by
applicant/ defendant for condonation of delay. Hence, the
application may be dismissed.
Admittedly, the written statement is filed within
maximum period of 120 days from the date of service, on record.
It is
trite law that rules and procedures are hand made of justice and
procedural technicalities should not be allowed to stand in the way
of substantial justice. Moreover, the Court must endeavour to
decide the matter on merits.
Having considered the submissions made on behalf of
both the sides and in view of reasons assigned in the application
and overall facts and circumstances of the case, the delay of 29
days beyond statutory period of 30 days, is hereby condoned. The
application stands allowed and disposed off in these terms.
Consequently, the written statement is taken on record.
Replication to written statement alongwith affidavit
of admission/ denial of defendant’s document are already filed on
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record by plaintiff. Advance copies thereof already supplied to the
opposite side.
Pleadings are complete. From the pleadings of the
parties and material available on record, following issues are
framed :-
ISSUES
1. Whether the plaintiff had raised false, fraudulent
and fictitious invoices without executing/ carrying
out any work in terms of Work Orders, in view of
Preliminary Objection No.11 of the written
statement. If so, to what effect ? OPD.
2. Whether the plaintiff is entitled to recover
Rs.9,50,563/- from the defendant ? OPP
3. Whether the plaintiff is entitled to decree for
rendition of accounts in terms of prayer clause no.
(c) of the plaint. OPP.
4. Whether the plaintiff is entitled to recover interest
from the defendant ? If yes, then at what rate and
for which period ? OPP
5. Relief.
No other issue arises or is pressed for by the parties.
First case management hearing done.
Both parties are directed to file their respective list of
witnesses within 2 weeks from date of this order with advance
copy to each other.
The parties shall lead their respective evidence, as per
the following schedule :
1. The plaintiff will file the affidavits of evidence of
their witnesses on record on or before 14-10-2024
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with advance copy of the same to be supplied to
the opposite party at least 2-3 days prior to the said
date.
2. The evidence of the plaintiff’s witness will be now
recorded on and from 15-10-2024 onwards.
3. The defendant will file the affidavits of evidence
of its witnesses on record on or before 14-11-2024
by supplying advance copy of the same to the
opposite party.
4. The evidence of the defendant’s witnesses will be
recorded on and from 18-11-2024 onwards.
The parties are directed to adhere to this time-line,
failing which adverse consequences will follow in accordance
with the provisions of The Commercial Courts Act.
It is hereby made clear that in case due to any reason,
the purpose for which the matter is fixed, is not concluded, the
matter shall be taken up on the next working day. Any unjustified,
non-compliance of the aforesaid directions and delay in the above
mentioned time lines, may lead to consequences for non-
compliance as per Order XVA Rule 8 CPC pursuant to the
schedule U/s 16 of the Commercial Courts Act, 2015.
For recording evidence, the Court exercise the power
conferred under Order XV A Rule 6 (o) and (p) CPC by directing
that evidence shall be recorded by Local Commissioner, appointed
by this court on commission basis. Accordingly, it is directed that
plaintiff evidence (PE) and defendant evidence (DE) shall be
recorded on commission basis by Sh. Sunil Kumar, Advocate,
Enrol. No.:D/2843/99 having Mobile No.: 9818256885 and
8368623877. Ld. Local Commissioner shall record the evidence
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of the witnesses verbatim. In case of any objection raised by any
party, same shall be recorded verbatim, which shall be adjudicated
by this court. Ld. Local Commissioner on the same day shall
supply the copy of the evidence recorded to both the parties on
their own cost and also submit typed copy alongwith the relevant
proceedings in the court by next date so fixed.
The fee of the Ld. Local Commissioner shall be
Rs.5,000/- per sitting. The evidence shall be recorded at Judges
Library, Patiala House Courts or any other place as per
convenience of Ld. LC on date and time agreed by both parties but
not later than the date fixed by this court for submitting the report.
It is further directed that the plaintiff shall bear the
expenses of Ld. Local Commissioner for recording of PE and
defendant shall bear the expenses of Ld. Local Commissioner for
recording of DE. Further at the time of PE, plaintiff shall arrange
typist/ stenographer for recording of evidence, failing which Ld.
LC shall arrange for the same and in that eventuality, the plaintiff
has to bear Rs.750/- per day which shall be in addition to fee for
LC per sitting. Similar direction would apply at the stage of DE as
well.
Ahlmad/Nazir/Reader shall made himself available
with the court file and diet money for the said purpose is fixed
Rs.500/-.
In case any party seeks adjournment or recording of
evidence is adjourned then the party at fault shall pay the expenses
of the Commission for the said date.
Parties are directed to contact and appear before Ld.
Local Commissioner on 15-10-2024 for the purpose of recording
of evidence as per the above schedule. In case parties do not
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contact Ld. Local Commissioner on or after said date, Ld. LC may
file report stating so within 2 weeks from 15-10-2024
Copy of the order be provided to Ld. Local
Commissioner by way of Whatsapp/ e-mail for information and
necessary action.
Put up on 18-12-2024 for awaiting report of Local
Commissioner and further proceedings.
(VIDYA PRAKASH)
District Judge (Commercial Court)-02
Patiala House Court, New Delhi.
30-09-2024(r)
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