Full Judgment Text
* HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) 3075/2011
Decided on: 22nd May, 2014
ISHPINDER KOCHHAR ..... Plaintiff
Through: Mr.Sumit Bansal, Mr.Ateev
Mathur, Ms.Richa Oberoi and
Mr.Devmani Bansal, Advs.
versus
DELUXE DENTELLES (P) LTD & ANR ..... Defendant
Through: Mr.C.A.Sundaram, Sr.Adv. with
Ms.Divvya Kesaar and
Mr.Mannmohit K. Puri, Advs.
CORAM:
HON'BLE MR. JUSTICE V.K. SHALI
V.K. SHALI, J. ( ORAL)
OA No.87/2014
1. This order shall dispose of the appeal filed by the
defendants/appellants under Chapter II Rule 4 of the Delhi High
Court (Original Side) Rules, 1967 against the order dated
03.05.2014 passed by the learned Joint Registrar by virtue of which
the learned Joint Registrar has directed the defendant No.2 to
produce on affidavit all the three documents as prescribed in Form
No.5 of Appendix C under Order 11 Rule 13 CPC within a period
of four weeks, the details of which are given by the
respondent/plaintiff in the application. The said three documents
are:
i) Shareholding pattern of M/s Ramesh
Kumar Overseas Private Limited;
ii) Shareholding pattern in the M/s Nidas
Estate Private Limited; and
iii) The production of the alleged lease deed/
document pursuant to which you claim that
the M/s Ramesh Kumar Overseas Private
Limited is in possession of Western Portion
of the shop in question.
2. Briefly stated, the facts leading to the filing of the present
appeal are that the plaintiff filed a suit for possession against the
appellants/defendants making the defendant No.2, an individual,
Mrs.Adarsh Gill, a party. It was alleged in the plaint that the
defendant No.1 had entered into an unregistered agreement of lease
dated 21.11.1999 with the erstwhile owner, Smt.Neeta Mehra, with
respect to 45% of the area of the suit property baring Plot No.10,
Block-172, Jor Bagh Market, New Delhi – 110003 which was
consisting of Eastern Shop, an office block, a mezzanine over the
office block, a toilet, courtyard at the back and the concerned
verandah with a display window more particularly referred as RED
portion in the site plan annexed to the plaint and referred to as
Eastern part of the ground floor. The appellant/defendant No.1
was alleged to have been holding the premises unauthorizedly after
expiry of the period of lease of eleven years and eleven months. It
was alleged that initially the rent was Rs.2650/- per month which
was enhanced by 10% every three years and after 17.11.2008, the
rent of the premises in question was Rs.3527 and since the rent was
more than Rs.3,500/-, therefore, they were not protected by the
Delhi Rent Control Act, 1958. With regard to the western portion
of the premises in question, more particularly shown in Yellow in
the plaint, it was alleged that the same was in the unauthorized
occupation of the defendants as a trespasser with respect to which a
decree of possession was sought apart from a decree of damages.
The defendants filed the written statement and admitted being a
tenant in respect of the eastern portion of the premises in question.
The rent was stated to be initially Rs.2650/-. It was denied that the
rent was liable to be increased or that they were in arrears of rent.
However, so far as the eastern portion of the premises in question
is concerned, a judgment on the basis of the admission under Order
12 Rule 6 CPC was passed by this court, which is stated to be
under appeal and is not in any way an issue in the present appeal.
What is in issue is that the defendants had taken a specific plea in
para 12 of the written statement that M/s Ramesh Kumar Overseas
Private Limited was the tenant under the erstwhile owner of the
suit property. However, they had occupied the premises after
removal of the wall separating the eastern portion from the western
portion of the premises in question with the consent of the M/s
Ramesh Kumar Overseas Private Limited and Mrs.Neeta Mehra
who is the erstwhile owner. The suit was contested and the issues
are yet to be framed in the suit. The respondent/plaintiff filed IA
No.20768/2012 under Order 11 Rule 12 & 14 read with Section
151 CPC seeking production of the following documents:
i) Shareholding pattern of M/s Ramesh
Kumar Overseas Private Limited;
ii) Shareholding pattern in the M/s Nidas
Estate Private Limited; and
iii) The production of the alleged lease deed/
document pursuant to which you claim that
the M/s Ramesh Kumar Overseas Private
Limited is in possession of Western Portion
of the shop in question.
It was stated in the application that the respondent/plaintiff had
come to know that the appellant No.2 who is the Managing
Director of the appellant No.1 is a majority shareholder in M/s
Ramesh Kumar Overseas Private Limited as well as M/s Nidas
Estate Private Limited. The respondent/plaintiff had placed on
record copies of Form 20(B) obtained from the Registrar of
Companies which show that M/s Ramesh Kumar Overseas Private
Limited had the authorized capital of 1000 equity shares of Rs.100
each. Out of these 1000 shares, appellant No.2, who is the
Managing Director of defendant No.1, holds 61% of the shares
i.e.610 share and the balance 39% are owned by M/s Nidas Estate
Private Limited. It was also the contention of the
respondent/plaintiff that the shareholding pattern of M/s Nidas
Estate Private Limited was 60,000 shares of Rs.10 each and out of
these 55,000 are owned by the appellant No.2 i.e. more than 90%
and the remaining 5,000 shares are owned by the daughter of the
appellant No.2. Thus, the entire exercise on the part of the
respondent/plaintiff was to show to the court that the appellant
No.2/defendant No.2 was the majority shareholder of M/s Ramesh
Kumar Overseas Private Limited and it was a fit case where the
corporate veil was required to be lifted to ascertain as to who were
the real persons controlling the affairs of these three companies and
once this is prima facie established, then it will be established that
this is a false plea set up by the appellant No.2 that M/s Ramesh
Kumar Overseas Private Limited was the tenant in respect of the
western portion of the suit property. In effect, it was the appellant
No.2 who was the holder of the vital interest and, therefore, the
appellant No.2 be directed to furnish the requisite information on
interrogatories on the prescribed form.
4. The application of the respondent/plaintiff was contested by
the appellants/defendants before the learned Joint Registrar and
they had file the reply. The contention of the appellants/defendants
was turned down and the court directed the appellants/defendants
to furnish the requisite information in respect of three documents
on affidavit in the prescribed Form No.5 of appendix C under
Order 11 Rule 13 CPC.
5. It is under these circumstances that the present appeal came
to be filed challenging the order of the learned Joint Registrar. The
learned senior counsel appearing for the appellants/defendants has
contested that the order of the learned Joint Registrar giving
direction to the appellant No.2 to furnish information with regard
to the shareholding pattern of M/s Ramesh Kumar Overseas
Private Limited or M/s Nidas Estate Private Limited or even to
produce the alleged lease deed by virtue of which the M/s Ramesh
Kumar Overseas Private Limited was given the possession of the
western portion of the shop in question are not the documents
pertaining to the ‘parties’ to the suit and the learned Joint Registrar
could not have issued any direction much less to the appellants
directing them to furnish the documents on affidavit pertaining to
third parties.
6. It was also contended by the learned senior counsel that
although there is no judgment on this score passed by the High
Court, but he has been able to lay his hands on two judgments.
The one is of Madras High Court and the other of Calcutta High
Court wherein it has been held by both the High Courts that a party
cannot be directed to produce documents in respect of a third party
who is not a party in the suit in question. These two judgments
are: i) S.A.K. Chinnathambi Chettiar v G.S. Murugan; [1968] 38
Comp.Cas. 772 (Mad) and ii) Gopaldas Modi v. Hansraj; AIR
1932 Calcutta 72.
7. The learned counsel for the respondent/plaintiff has
vehemently contested this submission of the learned senior counsel
for the appellants/defendants. He has stated that there is nothing
illegal in the order of the learned Joint Registrar directing
production on affidavit the documents pertaining to M/s Ramesh
Kumar Overseas Private Limited who is stated to be the tenant in
respect of the western portion of the suit property inasmuch the
appellants are claiming to have got the possession from M/s
Ramesh Kumar Overseas Private Limited. Secondly, it was
contended by the learned counsel for the respondent/plaintiff that
this plea of the appellants/defendants that M/s Ramesh Kumar
Overseas Private Limited was not a tenant in respect of the western
portion of the suit property is only an afterthought inasmuch as no
such plea was taken by them in reply to the notice served by the
plaintiff/respondent before initiating the action for retrieval of
possession. Thirdly, it has been contended by the learned counsel
for the plaintiff that so far as the appellant No.2 is concerned, no
doubt she is the Director of the appellant No.1 and through whom
the agreement in question for and on behalf of appellant No.1 was
signed with the erstwhile owner of the suit property, but she was
also the majority shareholder of both M/s Ramesh Kumar Overseas
Private Limited and M/s Nidas Estate Private Limited and thus
effectively controlling both these two companies and more
particularly M/s Ramesh Kumar Overseas Private Limited who is
stated to be the tenant and the court was well within its rights to lift
the corporate veil in order to arrive at the real issue in controversy
as to whether M/s Ramesh Kumar Overseas Private Limited was
the tenant in respect of the western portion of the suit property or
not. The learned counsel for the respondent/plaintiff has also
placed reliance on two judgments of the apex court: i)
Ramrameshwari devi and Ors. V.Nirmala Devi & Ors; JT 2011 (8)
SC 90 and Maria Margarida Sequeira Fernandes and Ors.
V.Erasmo Jack De Sequeira (dead) through LRs; (2012) 5 SCC
370.
8. In the second judgment, the learned counsel has drawn the
attention of the court to certain observations passed by the Hon’ble
Supreme Court with which there cannot be any dispute that the
entire exercise of judicial process is to come to the foundation of
the truth and arrive at the finding with regard to the lis which is
pending before the court. It has referred to the general
observations with which there cannot be any disagreement so far as
the present court is concerned. As regards the judgment, the
observations to which attention of the court has been drawn are
contained in para 52 which reads as under:
“52. Truth is the foundation of justice. It must be the
endeavour of all the judicial officers and judges to
ascertain truth in every matter and no stone should be
left unturned in achieving this object. Courts must
give greater emphasis on the veracity of pleadings
and documents in order to ascertain the truth.”
9. The foundation of the aforesaid observation is that the court
should resort to discovery and production of documents and
interrogatories at the earliest in order to focus and arrive at the
truth for the purpose of doing the substantial justice.
10. There cannot be any dispute with regard to this proposition
also, but the question which needs to be considered in the instant
case is that whether a direction can be issued on the basis of an
order passed on an application under Order 11 Rule 12 & 14 i.e.
discoveries to be effect on interrogatories in respect of certain
documents pertaining to someone who is not a ‘party’ to the suit in
which the interrogatories and the discoveries are sought to be
made. The answer to this question has been given by the Calcutta
High Court that before an interrogatory or a discovery is sought to
be made under Order 11 Rule 12 & 14 CPC, the party against
whom the documents are sought to be produced must be a party to
the suit. The exact language of Rule 1 of Order 11 CPC is as
under:
1. Discovery by interrogatories
In any suit the plaintiff or defendant by leave of the
Court may deliver interrogatories in writing for the
examination of the opposite parties or any one or
more of such parties and such interrogatories when
delivered shall have a note at the foot thereof
stating which of such interrogatories each of such
persons is required to answer :
Provided that no party shall deliver more than one
set of interrogatories to the same party without an
order for that purpose :
Provided also that interrogatories which do not
relate to any matters in question in the suit shall be
deemed irrelevant, notwithstanding that they might
be admissible on the oral cross-examination of a
witness.
11. It may also be pertinent here to refer to Rule 5 & Rule 12 of
Order 11 of CPC.
“5. Corporations
Where any party to a suit is a corporation or a
body of persons, whether incorporated or not,
empowered by law to sue or be sued, whether in its
own name or in the name of any officer or other
person, any opposite party may apply for an order
allowing him to deliver interrogatories to any
member or officer of such corporation or body,
and an order may be made accordingly.
xxx xxx xxx xxx
12. Application for discovery of documents
Any party may, without filing any affidavit, apply
to the Court for an order directing any other party
to any suit to make discovery on oath of the
documents which are or have been in his
possession or power, relating to any matter in
question therein. On the hearing of such
application the Court may either refuse or adjourn
the same, if satisfied that such discovery is not
necessary, or not necessary at that stage of the suit,
or make such order, either generally or limited to
certain classes of documents, as may, in its
discretion be thought fit :
Provided that discovery shall not be ordered when
and so far as the Court shall be of opinion that it is
not necessary either for disposing fairly of the suit
or for saving costs.”
12. A conjoint reading of all these rules will clearly show that
the law permits in any suit the plaintiff or the defendant with the
leave of the court to deliver the interrogatories in writing for the
examination of the opposite parties. Further, no party shall deliver
more than once set of interrogatories to the same party without an
order for that purpose; that interrogatories which do not relate to
any matters in question to the suit shall be deemed to be irrelevant
and where a party to a suit is a corporation or a body of persons,
whether incorporated or not, in such a case, interrogatories may be
given to any member or an officer of such a body corporate or
corporation under an order of the court. A perusal of the aforesaid
rules will clearly show that before interrogatories are given, a
person or a body corporate must be a party to the suit. In the
instant case, the interrogatories are being sought from appellant
No.2 who has been impleaded as a party seeking eviction from the
eastern portion of the shop in question as a signatory to the lis for
and on behalf of the appellant No.1 and from western portion in the
capacity of a trespasser. The appellant No.2 has not been
impleaded as a party, as a Managing Director or a shareholder of
M/s Ramesh Kumar Overseas Private Limited which was claimed
by the present appellants to be the tenant in respect of the western
portion of the shop in question nor is M/s Ramesh Kumar Overseas
Private Limited a defendant in the suit. Therefore, in my
considered opinion, as M/s Ramesh Kumar Overseas Private
Limited is not a defendant in the suit, no interrogatories could be
issued to M/s Ramesh Kumar Overseas Private Limited or to
appellant No.2 in the capacity of the purported holder of a majority
stake of the said company. In my considered opinion, there is no
question of lifting of a corporate veil in the instant matter. There is
a definite case which has been set up by the plaintiff and a definite
defence taken by the defendant and the basic dictum is one who
asserts must prove.
13. The plaintiff has taken a definite plea in the plaint that the
appellants/defendants are trespassers in respect of the western
portion of the shop. Therefore, the issue which is to be framed
would be whether the respondent/plaintiff is the owner of the suit
premises and consequently whether the appellants/defendants are
the trespasser with respect to the western portion of the shop in
question. If so, its effect and the onus in respect of both these
issues would on the respondent/plaintiff.
14. So far as the defence of the appellant/defendant is
concerned, they have taken a defence that M/s Ramesh Kumar
Overseas Private Limited was the tenant in respect of the western
portion and they are in occupation of the said portion with the
consent of the previous owner Smt.Neeta Mehra and M/s Ramesh
Kumar Overseas Private Limited will have to discharge this onus
in rebuttal to the issues in respect of which burden of proof is on
the plaintiff. The question of shareholding of M/s Ramesh Kumar
Overseas Private Limited is not all relevant and in any case even if
it is considered to be relevant, the plaintiff/respondent has already
claimed that after making enquiries from the Registrar of
Companies he has placed on record the shareholding pattern of the
said company and another company M/s Nidas Estate Private
Limited which according to them is having the majority interest in
appellant No.2, but that is inconsequential, irrelevant and unrelated
to the lis between the parties for the reasons which have been
enunciated by the court hereinabove.
15. For the reasons mentioned above, I feel that the
respondent/plaintiff is trying to make a fishing enquiry by seeking
a direction to the appellant No.2 to produce the documents on
affidavit with respect to:
i) Shareholding pattern of M/s Ramesh
Kumar Overseas Private Limited;
ii) Shareholding pattern in the M/s Nidas
Estate Private Limited; and
iii) The production of the alleged lease deed/
document pursuant to which you claim that
the M/s Ramesh Kumar Overseas Private
Limited is in possession of Western Portion
of the shop in question.
The same could not have been done on the basis of Order 11 Rule
12 CPC. The learned Joint Registrar seems to have fallen into an
error in passing the order dated 03.05.2014, which is not in my
opinion, sustainable in the eyes of law. I accordingly, allow the
appeal and set aside the order passed by the learned Joint Registrar
dated 03.05.2014. No order as to cost.
16. List before the Joint Registrar on 08.08.2014, as already
fixed.
V.K. SHALI, J
MAY 22, 2014/dm
+ CS(OS) 3075/2011
Decided on: 22nd May, 2014
ISHPINDER KOCHHAR ..... Plaintiff
Through: Mr.Sumit Bansal, Mr.Ateev
Mathur, Ms.Richa Oberoi and
Mr.Devmani Bansal, Advs.
versus
DELUXE DENTELLES (P) LTD & ANR ..... Defendant
Through: Mr.C.A.Sundaram, Sr.Adv. with
Ms.Divvya Kesaar and
Mr.Mannmohit K. Puri, Advs.
CORAM:
HON'BLE MR. JUSTICE V.K. SHALI
V.K. SHALI, J. ( ORAL)
OA No.87/2014
1. This order shall dispose of the appeal filed by the
defendants/appellants under Chapter II Rule 4 of the Delhi High
Court (Original Side) Rules, 1967 against the order dated
03.05.2014 passed by the learned Joint Registrar by virtue of which
the learned Joint Registrar has directed the defendant No.2 to
produce on affidavit all the three documents as prescribed in Form
No.5 of Appendix C under Order 11 Rule 13 CPC within a period
of four weeks, the details of which are given by the
respondent/plaintiff in the application. The said three documents
are:
i) Shareholding pattern of M/s Ramesh
Kumar Overseas Private Limited;
ii) Shareholding pattern in the M/s Nidas
Estate Private Limited; and
iii) The production of the alleged lease deed/
document pursuant to which you claim that
the M/s Ramesh Kumar Overseas Private
Limited is in possession of Western Portion
of the shop in question.
2. Briefly stated, the facts leading to the filing of the present
appeal are that the plaintiff filed a suit for possession against the
appellants/defendants making the defendant No.2, an individual,
Mrs.Adarsh Gill, a party. It was alleged in the plaint that the
defendant No.1 had entered into an unregistered agreement of lease
dated 21.11.1999 with the erstwhile owner, Smt.Neeta Mehra, with
respect to 45% of the area of the suit property baring Plot No.10,
Block-172, Jor Bagh Market, New Delhi – 110003 which was
consisting of Eastern Shop, an office block, a mezzanine over the
office block, a toilet, courtyard at the back and the concerned
verandah with a display window more particularly referred as RED
portion in the site plan annexed to the plaint and referred to as
Eastern part of the ground floor. The appellant/defendant No.1
was alleged to have been holding the premises unauthorizedly after
expiry of the period of lease of eleven years and eleven months. It
was alleged that initially the rent was Rs.2650/- per month which
was enhanced by 10% every three years and after 17.11.2008, the
rent of the premises in question was Rs.3527 and since the rent was
more than Rs.3,500/-, therefore, they were not protected by the
Delhi Rent Control Act, 1958. With regard to the western portion
of the premises in question, more particularly shown in Yellow in
the plaint, it was alleged that the same was in the unauthorized
occupation of the defendants as a trespasser with respect to which a
decree of possession was sought apart from a decree of damages.
The defendants filed the written statement and admitted being a
tenant in respect of the eastern portion of the premises in question.
The rent was stated to be initially Rs.2650/-. It was denied that the
rent was liable to be increased or that they were in arrears of rent.
However, so far as the eastern portion of the premises in question
is concerned, a judgment on the basis of the admission under Order
12 Rule 6 CPC was passed by this court, which is stated to be
under appeal and is not in any way an issue in the present appeal.
What is in issue is that the defendants had taken a specific plea in
para 12 of the written statement that M/s Ramesh Kumar Overseas
Private Limited was the tenant under the erstwhile owner of the
suit property. However, they had occupied the premises after
removal of the wall separating the eastern portion from the western
portion of the premises in question with the consent of the M/s
Ramesh Kumar Overseas Private Limited and Mrs.Neeta Mehra
who is the erstwhile owner. The suit was contested and the issues
are yet to be framed in the suit. The respondent/plaintiff filed IA
No.20768/2012 under Order 11 Rule 12 & 14 read with Section
151 CPC seeking production of the following documents:
i) Shareholding pattern of M/s Ramesh
Kumar Overseas Private Limited;
ii) Shareholding pattern in the M/s Nidas
Estate Private Limited; and
iii) The production of the alleged lease deed/
document pursuant to which you claim that
the M/s Ramesh Kumar Overseas Private
Limited is in possession of Western Portion
of the shop in question.
It was stated in the application that the respondent/plaintiff had
come to know that the appellant No.2 who is the Managing
Director of the appellant No.1 is a majority shareholder in M/s
Ramesh Kumar Overseas Private Limited as well as M/s Nidas
Estate Private Limited. The respondent/plaintiff had placed on
record copies of Form 20(B) obtained from the Registrar of
Companies which show that M/s Ramesh Kumar Overseas Private
Limited had the authorized capital of 1000 equity shares of Rs.100
each. Out of these 1000 shares, appellant No.2, who is the
Managing Director of defendant No.1, holds 61% of the shares
i.e.610 share and the balance 39% are owned by M/s Nidas Estate
Private Limited. It was also the contention of the
respondent/plaintiff that the shareholding pattern of M/s Nidas
Estate Private Limited was 60,000 shares of Rs.10 each and out of
these 55,000 are owned by the appellant No.2 i.e. more than 90%
and the remaining 5,000 shares are owned by the daughter of the
appellant No.2. Thus, the entire exercise on the part of the
respondent/plaintiff was to show to the court that the appellant
No.2/defendant No.2 was the majority shareholder of M/s Ramesh
Kumar Overseas Private Limited and it was a fit case where the
corporate veil was required to be lifted to ascertain as to who were
the real persons controlling the affairs of these three companies and
once this is prima facie established, then it will be established that
this is a false plea set up by the appellant No.2 that M/s Ramesh
Kumar Overseas Private Limited was the tenant in respect of the
western portion of the suit property. In effect, it was the appellant
No.2 who was the holder of the vital interest and, therefore, the
appellant No.2 be directed to furnish the requisite information on
interrogatories on the prescribed form.
4. The application of the respondent/plaintiff was contested by
the appellants/defendants before the learned Joint Registrar and
they had file the reply. The contention of the appellants/defendants
was turned down and the court directed the appellants/defendants
to furnish the requisite information in respect of three documents
on affidavit in the prescribed Form No.5 of appendix C under
Order 11 Rule 13 CPC.
5. It is under these circumstances that the present appeal came
to be filed challenging the order of the learned Joint Registrar. The
learned senior counsel appearing for the appellants/defendants has
contested that the order of the learned Joint Registrar giving
direction to the appellant No.2 to furnish information with regard
to the shareholding pattern of M/s Ramesh Kumar Overseas
Private Limited or M/s Nidas Estate Private Limited or even to
produce the alleged lease deed by virtue of which the M/s Ramesh
Kumar Overseas Private Limited was given the possession of the
western portion of the shop in question are not the documents
pertaining to the ‘parties’ to the suit and the learned Joint Registrar
could not have issued any direction much less to the appellants
directing them to furnish the documents on affidavit pertaining to
third parties.
6. It was also contended by the learned senior counsel that
although there is no judgment on this score passed by the High
Court, but he has been able to lay his hands on two judgments.
The one is of Madras High Court and the other of Calcutta High
Court wherein it has been held by both the High Courts that a party
cannot be directed to produce documents in respect of a third party
who is not a party in the suit in question. These two judgments
are: i) S.A.K. Chinnathambi Chettiar v G.S. Murugan; [1968] 38
Comp.Cas. 772 (Mad) and ii) Gopaldas Modi v. Hansraj; AIR
1932 Calcutta 72.
7. The learned counsel for the respondent/plaintiff has
vehemently contested this submission of the learned senior counsel
for the appellants/defendants. He has stated that there is nothing
illegal in the order of the learned Joint Registrar directing
production on affidavit the documents pertaining to M/s Ramesh
Kumar Overseas Private Limited who is stated to be the tenant in
respect of the western portion of the suit property inasmuch the
appellants are claiming to have got the possession from M/s
Ramesh Kumar Overseas Private Limited. Secondly, it was
contended by the learned counsel for the respondent/plaintiff that
this plea of the appellants/defendants that M/s Ramesh Kumar
Overseas Private Limited was not a tenant in respect of the western
portion of the suit property is only an afterthought inasmuch as no
such plea was taken by them in reply to the notice served by the
plaintiff/respondent before initiating the action for retrieval of
possession. Thirdly, it has been contended by the learned counsel
for the plaintiff that so far as the appellant No.2 is concerned, no
doubt she is the Director of the appellant No.1 and through whom
the agreement in question for and on behalf of appellant No.1 was
signed with the erstwhile owner of the suit property, but she was
also the majority shareholder of both M/s Ramesh Kumar Overseas
Private Limited and M/s Nidas Estate Private Limited and thus
effectively controlling both these two companies and more
particularly M/s Ramesh Kumar Overseas Private Limited who is
stated to be the tenant and the court was well within its rights to lift
the corporate veil in order to arrive at the real issue in controversy
as to whether M/s Ramesh Kumar Overseas Private Limited was
the tenant in respect of the western portion of the suit property or
not. The learned counsel for the respondent/plaintiff has also
placed reliance on two judgments of the apex court: i)
Ramrameshwari devi and Ors. V.Nirmala Devi & Ors; JT 2011 (8)
SC 90 and Maria Margarida Sequeira Fernandes and Ors.
V.Erasmo Jack De Sequeira (dead) through LRs; (2012) 5 SCC
370.
8. In the second judgment, the learned counsel has drawn the
attention of the court to certain observations passed by the Hon’ble
Supreme Court with which there cannot be any dispute that the
entire exercise of judicial process is to come to the foundation of
the truth and arrive at the finding with regard to the lis which is
pending before the court. It has referred to the general
observations with which there cannot be any disagreement so far as
the present court is concerned. As regards the judgment, the
observations to which attention of the court has been drawn are
contained in para 52 which reads as under:
“52. Truth is the foundation of justice. It must be the
endeavour of all the judicial officers and judges to
ascertain truth in every matter and no stone should be
left unturned in achieving this object. Courts must
give greater emphasis on the veracity of pleadings
and documents in order to ascertain the truth.”
9. The foundation of the aforesaid observation is that the court
should resort to discovery and production of documents and
interrogatories at the earliest in order to focus and arrive at the
truth for the purpose of doing the substantial justice.
10. There cannot be any dispute with regard to this proposition
also, but the question which needs to be considered in the instant
case is that whether a direction can be issued on the basis of an
order passed on an application under Order 11 Rule 12 & 14 i.e.
discoveries to be effect on interrogatories in respect of certain
documents pertaining to someone who is not a ‘party’ to the suit in
which the interrogatories and the discoveries are sought to be
made. The answer to this question has been given by the Calcutta
High Court that before an interrogatory or a discovery is sought to
be made under Order 11 Rule 12 & 14 CPC, the party against
whom the documents are sought to be produced must be a party to
the suit. The exact language of Rule 1 of Order 11 CPC is as
under:
1. Discovery by interrogatories
In any suit the plaintiff or defendant by leave of the
Court may deliver interrogatories in writing for the
examination of the opposite parties or any one or
more of such parties and such interrogatories when
delivered shall have a note at the foot thereof
stating which of such interrogatories each of such
persons is required to answer :
Provided that no party shall deliver more than one
set of interrogatories to the same party without an
order for that purpose :
Provided also that interrogatories which do not
relate to any matters in question in the suit shall be
deemed irrelevant, notwithstanding that they might
be admissible on the oral cross-examination of a
witness.
11. It may also be pertinent here to refer to Rule 5 & Rule 12 of
Order 11 of CPC.
“5. Corporations
Where any party to a suit is a corporation or a
body of persons, whether incorporated or not,
empowered by law to sue or be sued, whether in its
own name or in the name of any officer or other
person, any opposite party may apply for an order
allowing him to deliver interrogatories to any
member or officer of such corporation or body,
and an order may be made accordingly.
xxx xxx xxx xxx
12. Application for discovery of documents
Any party may, without filing any affidavit, apply
to the Court for an order directing any other party
to any suit to make discovery on oath of the
documents which are or have been in his
possession or power, relating to any matter in
question therein. On the hearing of such
application the Court may either refuse or adjourn
the same, if satisfied that such discovery is not
necessary, or not necessary at that stage of the suit,
or make such order, either generally or limited to
certain classes of documents, as may, in its
discretion be thought fit :
Provided that discovery shall not be ordered when
and so far as the Court shall be of opinion that it is
not necessary either for disposing fairly of the suit
or for saving costs.”
12. A conjoint reading of all these rules will clearly show that
the law permits in any suit the plaintiff or the defendant with the
leave of the court to deliver the interrogatories in writing for the
examination of the opposite parties. Further, no party shall deliver
more than once set of interrogatories to the same party without an
order for that purpose; that interrogatories which do not relate to
any matters in question to the suit shall be deemed to be irrelevant
and where a party to a suit is a corporation or a body of persons,
whether incorporated or not, in such a case, interrogatories may be
given to any member or an officer of such a body corporate or
corporation under an order of the court. A perusal of the aforesaid
rules will clearly show that before interrogatories are given, a
person or a body corporate must be a party to the suit. In the
instant case, the interrogatories are being sought from appellant
No.2 who has been impleaded as a party seeking eviction from the
eastern portion of the shop in question as a signatory to the lis for
and on behalf of the appellant No.1 and from western portion in the
capacity of a trespasser. The appellant No.2 has not been
impleaded as a party, as a Managing Director or a shareholder of
M/s Ramesh Kumar Overseas Private Limited which was claimed
by the present appellants to be the tenant in respect of the western
portion of the shop in question nor is M/s Ramesh Kumar Overseas
Private Limited a defendant in the suit. Therefore, in my
considered opinion, as M/s Ramesh Kumar Overseas Private
Limited is not a defendant in the suit, no interrogatories could be
issued to M/s Ramesh Kumar Overseas Private Limited or to
appellant No.2 in the capacity of the purported holder of a majority
stake of the said company. In my considered opinion, there is no
question of lifting of a corporate veil in the instant matter. There is
a definite case which has been set up by the plaintiff and a definite
defence taken by the defendant and the basic dictum is one who
asserts must prove.
13. The plaintiff has taken a definite plea in the plaint that the
appellants/defendants are trespassers in respect of the western
portion of the shop. Therefore, the issue which is to be framed
would be whether the respondent/plaintiff is the owner of the suit
premises and consequently whether the appellants/defendants are
the trespasser with respect to the western portion of the shop in
question. If so, its effect and the onus in respect of both these
issues would on the respondent/plaintiff.
14. So far as the defence of the appellant/defendant is
concerned, they have taken a defence that M/s Ramesh Kumar
Overseas Private Limited was the tenant in respect of the western
portion and they are in occupation of the said portion with the
consent of the previous owner Smt.Neeta Mehra and M/s Ramesh
Kumar Overseas Private Limited will have to discharge this onus
in rebuttal to the issues in respect of which burden of proof is on
the plaintiff. The question of shareholding of M/s Ramesh Kumar
Overseas Private Limited is not all relevant and in any case even if
it is considered to be relevant, the plaintiff/respondent has already
claimed that after making enquiries from the Registrar of
Companies he has placed on record the shareholding pattern of the
said company and another company M/s Nidas Estate Private
Limited which according to them is having the majority interest in
appellant No.2, but that is inconsequential, irrelevant and unrelated
to the lis between the parties for the reasons which have been
enunciated by the court hereinabove.
15. For the reasons mentioned above, I feel that the
respondent/plaintiff is trying to make a fishing enquiry by seeking
a direction to the appellant No.2 to produce the documents on
affidavit with respect to:
i) Shareholding pattern of M/s Ramesh
Kumar Overseas Private Limited;
ii) Shareholding pattern in the M/s Nidas
Estate Private Limited; and
iii) The production of the alleged lease deed/
document pursuant to which you claim that
the M/s Ramesh Kumar Overseas Private
Limited is in possession of Western Portion
of the shop in question.
The same could not have been done on the basis of Order 11 Rule
12 CPC. The learned Joint Registrar seems to have fallen into an
error in passing the order dated 03.05.2014, which is not in my
opinion, sustainable in the eyes of law. I accordingly, allow the
appeal and set aside the order passed by the learned Joint Registrar
dated 03.05.2014. No order as to cost.
16. List before the Joint Registrar on 08.08.2014, as already
fixed.
V.K. SHALI, J
MAY 22, 2014/dm