Prashanth Projects Pvt Ltd v. Indian Oil Corporation Ltd

judgment otherwise the appellate court (Division Bench) will be flooded with appeals from all kinds of orders passed by the trial Judge. The courts must give sufficient allowance to the trial Judge and raise a presumption that any discretionary order which he passes must be presumed to be correct unless it is ex facje legally erroneous or causes grave and substantial injustice.

(2) That the interlocutory order in order to be a judgment must contain the traits and trappings of finality either when the order decides the questions in fao( 05)53-54.2011 controversy in an ancillary proceeding or in the suit itself or in a part of the proceedings.

(3) The tests laid down by Sir White, C.]. as also by Sir Couch, C.]. as modified by later decisions of the Calcutta High Court itself which have been dealt with by us elaborately should be borne in mind.

¶8In paragraph 120 of Khimji, rejection of an application for appointment of a Local Commissioner does not find place in the itemization of order amenable to an appeal.

¶9Letters Patent was issued at a time when India was a colony of the British Empire and redressal against an order passed by a Single Judge/Trial Judge was available only before the Judicial Committee or the Prjvy Co un cjJ. This entailed not only huge financial expense, but also required considerable discomfort of involving months of travel. If Parliament perceives it to be prudent to provide for an intra court appeal in independent India, so far as Delhi High Court is concerned, the needful can be achieved by an amendment in the DHC Act. Citizens should not be required to seek succor from archaic laws.

¶10We shall now consider the contention of the Respondent that the real purpose behind the subject application is to nullify the joint inspection carried out by the parties. The

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(J) sequence of events which we find relevant is that by letter dated 8.10.2010, stated by Mr. Ramji Srinivasan to actually have been issued the following month, it had informed the Defendants that they had {(in terms of the termination order deputed our engineers to carry out the measurements. We request that the measurements for work carried out be taken physically. We also request you while taking the measurement, kindly jointly record the contractor supplied materials as well as the works done on this same". That this joint measurement had been carried out on 8.11.2010 has been admitted by the Appellant in paragraph 42 of the Plaint even though thereafter it has been pleaded that it was only in respect of a small part of the work done by the Plaintiff. The learned ASG, however, has emphasized that it was the first time that any grievance or umbrage had been recorded, so far as the exercise of joint measurement is concerned, was in the aforementioned pleadings. Our attention has also been drawn to the fact that the entire documentation has not been filed.

¶11It seems to us that there is a force in the argument raised on behalf of the Respondent that the strategy behind the application is not the carrying out of measurement but @ rather diluting or defeating the veracity of the joint measurement. So far as we are concerned, the Plaintiff's . refusal to qarry out inspection/measurement by its own engineers is indicative that the purpose behind the application for appointment of a Local Commissioner is oblique and malafide. It is also relevant to reflect that the carrying out of measurement may not be the only method by which the Plaintiff could prove the extent of the work carried out by it. Surely, it must also possess sufficient documentation of its own, showing deployment of manpower and utilization of material and resources at the relevant site. All this wilt no doubt be dealt with in detail in the arbitration proceedings. Therefore, assuming that the present Appeal is maintainable, we find that it is devoid of merit.

¶12In this view of the matter, no useful purpose will be served by a detailed consideration of the decisions of the learned Single Benches in Chjntapatla Arvind Babu -vs-Smt. K Balakristamma, AIR 1992 AP 300 and T. V. Balan -vs-UnjversHy of CaHcut, AIR 1996 Kerala 278, to which our attention has been drawn by Mr. Ramji Srinivasan. These are also our view with regard to the Division Bench Judgment of this Court in Prjma Developers -vs-Lords Cooperatjve Group ::-j Housing Society Ltd., 159(2009) DLT 586(DB). The Court indubitably possesses powers for appointment of a Local Commissioner, but whether those powers are to be exercised depends on the peculiarity of the factual matrix obtaining in the particular instance. It can scarcely be claimed that a Local Commissioner should be appointed to nullify jOint measurement carried out by the parties, even in the face of the offer by the Defendant that the Plaintiff may carry out inspection on its own.

¶13Since the matter has been argued at great length, the , Appeal is dismissed with costs of 20,000/-.

¶14Since the Appeal has been dismissed, CM Nos.2082-83/2011 are also dismissed. February 22, 2011 tp A (VIKRAMAJIT SEN) JUDGE (SIDDHARTH MRIDUL) JUDGE Q :-J

* IN THE HIGH COURT OF DELHI AT NEW DELHI + FAO(OS) No.53-54/2011 PRASHANT PROJECTS(P) LTD. . ... Appellant through versus Mr. Ramji Srinivasan, Sr. Adv. with Mr. Vikram Mehta, Mr. Kush Chaturvedi and Mr. Zeyaul Haque, Advs. INDIAN OIL CORPN. LTD. ..... Respondent through Mr. A.S. Chandhiok, Sr. Adv. with Ms. Mona Aneja, Mr.Bhagat Singh and . Ms. Snigdha Sharma, Advs. % Date of Hearing : January 3 L 2011 Date of Decision: February 22, 2011 * CORAM: HON'BLE MR. JUSTICE VIKRAMAJIT SEN HON'BLE MR. JUSTICE SIDDHARTH MRIDUL 1. Whether reporters of local papers may be allowed to see the Judgment? "f. 2. To be referred to the Reporter or not? v'" 3. Whether the Judgment should be reported in the Digest? v' VIKRAMAJIT SEN, r. CM No.2084/2011 1. Allowed, subject to all just exceptions. FAO(OS) No.53-54/2011 2. This Appeal has been filed under Section 10 of the Delhi High Court Act, 1966 (DHC Act for short) against the Order Q :.j --!, Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing. () passed by the learned Single judge on 21.1.2011 dismissing the Plaintiff's application under Order XXVI Rule 9 of the Code of Civil Procedure, 1908 CCPC for short) praying for the appointment of a Local Commissioner for carrying out measurement of the work done by the Plaintiff. 3. We have summoned and perused the original documents, especially because a copy of IA NO.17646/2010 under Order XXVI Rule 9 of the CPC appears not to have been placed on record. In the said application, there is no mention of the fact that a joint inspection of the Project had been carried out and/or that the Defendant/Respondent had not conducted this exercise properly. 4. In the impugned Order, the learned Single judge has dismissed the application opining that {(the appropriate course for the Plaintiff would be to get the measurement done at its own level from an expert independent body and for this purpose, the Local Commissioner is not required to be appointed". It had been contended before the learned Single judge, and reiterated before us by Mr. A.S. Chandhiok, learned Additional Solicitor General that the intent behind the application is the Plaintiff/Appellant's endeavour to wriggle out of jOint measurement which has been carried out J Q on 10.11. 2 0 10. In this regard, it has been emphasized that no objection in respect of the carrying out of the joint measurement has been articulated in the Plaintiff's letter/notice dated 12.11.2010. 5. At the very threshold, the learned ASG has raised an objection as to the maintainability of the present Appeal under Section 10 of the DHC Act. Nevertheless, he has again offered that the Respondent would have no objection to the Plaintiff/Appellant carrying out measurement of the work allegedly executed by it. The learned ASG has submitted that the Plaintiff only needs to indicate the date on which this exercise is to be embarked upon. Mr. Ramji Srinivasan, learned Senior Counsel for the Appellant however, has roundly rejected the offer contending that a Local Commissioner ought to have been appointed for the purpose. 6. So far as the maintainability of the Appeal under Section 10 of the DHC Act is concerned, we must refer to Shah Babulal Khimji -vs- jayaben D. Kania, (1981) 4 SCC 8. The High Court of Delhi was constituted under the DHC Act. While Letters Patent applied to the Punjab High Court which earlier held territorial sway, technically it was not the precursor of the Delhi High Court. This aspect of curial fao(os)53-S4.2011 j @ annals has been fully unraveled by a decision of a Constitution Bench of five learned Judges of this Court in University of Delhi -vs- Hafiz Mohd. Said AIR 1972 102 ILR (1972) Delhi I, which has been set aside by a brief Order of two paragraphs on the premise that it was irreconcilable with the enunciation of the law contained in Khimji. We may emphasise, at the risk of repetition, that Khimji deals with the main