* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Order delivered on: October 30, 2013
+ CM(M) 907/2013
MAN MOHAN BATRA & ANR ..... Petitioners
Through Mr.B.B. Gupta, Adv. with Mr.Sarthak
Ghonkrokta, Adv.
versus
CITIZEN ELECTRONICS PVT. LTD. ..... Respondent
Through None.
CORAM:
HON'BLE MR. JUSTICE MANMOHAN SINGH
MANMOHAN SINGH, J. (ORAL)
1. This petition has been filed under Article 227 of the Constitution of
India against the order dated 28th February, 2013 passed by the learned
Additional District Judge whereby an application under Section 45 of the
Indian Evidence Act, 1872 read with Section 151 of the Code of Civil
Procedure, 1908 has been dismissed.
2. The relevant facts were as under :-
(a) On 1st April, 1981 petitioner No.1 started the business of trading and
manufacturing electrical and electronic items under the name and
style of M/S Citizen Electronics with a trade mark "Citizen".
(b) In 1984, the petitioner No.1 converted the said sole proprietorship
business into partnership business with the same trade mark and under
the same name and style along with his brother, Umesh Batra and
sister-in-law, Deepa Batra as partners.
CM (M) No.907/2013 Page 1 of 4
(c) On 22nd July, 1985, the respondent company was incorporated under
the provision of the Companies Act, 1956 and took over all the assets
and liabilities of the said partnership business including the trade mark
"Citizen". The petitioner No.1, Umesh Batra and Deepa Batra were
promoters and directors of the said company.
(d) Lalit Batra and petitioner No.2 were appointed as directors on 29th
March, 1987 and 21st December, 1994 respectively.
(e) Later, Umesh Batra, Lalit Batra and Deepa Batra resigned from
directorship.
(f) Bharat Bhushan Batra was also appointed as director on 26th May,
1995 and resigned on 22nd August, 1995.
(g) On 29th August, 1995, the minutes book of the director's meetings of
the respondent company was lost and FIR was filed.
(h) On 4th March, 1996 Lalit Batra in collusion with Umesh Batra, Bharat
Bhushan Batra and Chander Kanta Batra instituted against the
respondent company a civil suit on the records of the Delhi High
Court and obtained a collusive decree against the respondent company
on 8th March, 1996 with regard to registered trade mark "Citizen".
(i) On 8th March, 1996 an application was filed by the respondent
company for setting aside of the said judgment and decree.
(j) On 12th May, 1996, notice under Order XI Rules 15 and 16 of the
Code of Civil Procedure was given to the petitioners for production of
the original minutes books.
(k) On 29th July, 2009 Bharat Bhushan Batra during his cross examination
deposed for the first time that the original minutes book was lost in
2007.
CM (M) No.907/2013 Page 2 of 4
3. The petitioner No.1 filed an application before the Learned Court
under Section 45 of the Indian Evidence Act, praying that the page numbers
in the said fabricated minutes book be verified through forensic science
laboratory.
4. The above said application was dismissed by the impugned order
dated 28th February, 2013. The impugned order stated that the court cannot
be made on instrumentality to collect evidence on behalf of either of parties.
It is the job of the parties to collect their best evidence and to put forth the
same before the court for its perusal. The defendant could engage services of
a handwriting expert to ventilate his grievances that the plaintiffs have
fabricated certain pages of the minutes book filed on the record aggrieved
thereof the present petition is filed.
5. Notice was issued to the respondent in the present petition but no one
appeared on behalf of the respondent despite service. Even counter affidavit
is not on record.
6. Having heard the learned counsel for the petitioner, I am of the view
that the present petition is liable to be allowed on the following ground :
a) The learned court was not correct in asking the petitioner to verify it
by engaging services of a hand writing expert. It could only be
verified by a thorough scientific verification by Central Forensic
Science Laboratory (CFSL) to reach a reliable conclusion. Even the
report that shall be given by the forensic authorities of CFSL shall be
required to be proved in accordance with law and as such will not
amount to collecting the evidence on behalf of either of the parties.
b) The learned trial court did not appreciate that the request made in the
application was only to send the documents for comparison and report
of CFSL as the petitioner cannot directly approach the CFSL.
CM (M) No.907/2013 Page 3 of 4
c) In case the prayer made in the application under Section 45 of the
Evidence Act, 1872 is not allowed, it would definitely affect the
case of the petitioner on merit. Therefore, in the interest of justice,
equity and fair play, the application of the petitioner would have
been allowed in view of facts and circumstances in the present
case.
7. In view of abovesaid reason, the present petition is allowed. The
application filed by the petitioner before the learned trial court is allowed.
The trial court will issue the necessary direction in view of prayer made in
the application. The impugned order is set-aside accordingly.
8. No costs.
(MANMOHAN SINGH)
JUDGE
OCTOBER 30, 2013
CM (M) No.907/2013 Page 4 of 4
|
