HARTLEY KNITS Vs. HARTLEY KNITS

JUDGEMENT

(1.) THE annals of the litigation are required to be placed in proper perspective. A suit for Mandatory Injunction was filed by the Respondent before us, namely, M/s. Hartley Knits. The Suit was valued at Rupees 5,01,000/- and a Court Fee of Rupees 7,800/- was affixed. However, in the so-called Suit for Mandatory Injunction it has been prayed to the Court to " (a) pass a decree for us$1,27,085. 50 with interest at the rate of 20 per cent per annum against the Defendants and (b) pass such other and further orders as this Honble Court may deem fit and proper in the facts and circumstances of the case". On the very first hearing, the valuation was found to be deficient and the Plaintiff was called upon to make good the deficiency of Court Fee. On this being done, on 4. 9. 2000 summons were issued to the Defendants. Defendants No. 1, 2 and 3 entered appearance on 6. 11. 2000. The Appellant, who was originally arrayed as Defendant No. 2, filed a Written Statement dated 25. 9. 2002. Noting that Defendant No. 2 had admitted that it had received US$76928. 48 in connection with this very transaction, the Court had restrained that Defendant, who is the appellant before us, from making payment of US$76928. 48 to any person except the Plaintiff. By Orders dated 4. 9. 2002 the appellant/defendant No. 2 was directed to remit the said sum of us$76928. 48 to the Registrar-General of this Court. This Order was unsuccessfully challenged before the Division Bench of this court and the further appeal to the Supreme Court was dismissed as withdrawn on 14. 8. 2003.

(2.) ON 19. 8. 2003 the Joint Registrar erroneously observed that the suit had been valued for the purposes of Court Fee and jurisdiction below Rupees 20,00,000/- and, therefore, it was liable to be transferred to the District Court, Delhi. All the parties, which included Defendant No. 2, who was represented at that hearing, were directed to appear before the District and Sessions Judge, delhi on 6. 11. 2003. Obviously, the Joint Registrar had lost sight of the fact that the deficiency in Court Fee had been made up and that the suit was for recovery of US$76928. 48 which was indubitably above Rupees 20,00,000/ -. On 26. 10. 2004, the Suit was transferred back to the High Court of Delhi in the presence of learned counsel for the Plaintiff and the Defendant No. 1.

(3.) THE Suit was dismissed for non-appearance on behalf of the plaintiff on 20. 9. 2005, on which date only the former Defendant no. 1 was present. On 25. 10. 2005 the Plaintiffs application for restoration of the suit was allowed in view of the statement made by learned counsel for the erstwhile Defendant No. 1 that it has no objection to the prayer being allowed. A perusal of the suit proceedings discloses that Defendant No. 2 had stopped appearing in the hearings at the suit after 19. 8. 2003, that is, after the withdrawal of the Special Leave Petition challenging the Order directing it to deposit the sum of US$76928. 48. Issues were framed on 8. 12. 2005 in the presence of Plaintiff and Defendant no. 1. Thereafter, by Orders dated 31. 7. 2006 the application filed by Defendant No. 1 was allowed and it was deleted from the Array of Parties. Consequently, the original Defendant No. 2, the appellant before us, became Defendant No. 1 in the Suit. On a subsequent hearing, the learned Single Judge observed that summons in the suit post its restoration have not been issued to defendants No. 2 and 3 (by then Defendant No. 1 and Defendant no. 2 respectively) and for that reason fresh summons were ordered, returnable for 6. 11. 2006. However, no summons were issued by the said date and the Joint Registrar again passed fresh orders for issuance of the summons on 2. 5. 2007. Thereafter, on 27. 7. 2007 time was given to the learned counsel of the plaintiff to file the Report submitted to him by the courier company, certifying that the Appellant stood served. On 13. 08. 2007, an Affidavit of service was filed by the Plaintiff stating that Defendant no. 2/appellant had been served through courier as well as by electronic mail. The Report of the Courier has been placed on the record. Since nobody had appeared for the Defendants, the case was put up for hearing on 10. 12. 2007. The Suit was decreed in favour of the Plaintiff and against the Defendants jointly and severally by Judgment dated 10. 12. 2007 for the recovery in Indian rupees of a sum equivalent to US$1,27,085. 50 together with simple interest at the rate of 7 per cent per annum and costs of rupees 51,416/ -.