FAO(OS) (COMM) 342/2019 Page 1 of 9

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IN THE HIGH COURT OF DELHI AT NEW DELHI

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Date of decision: 06 October 2023

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FAO(OS) (COMM) 342/2019

CHHATTISGARH DISTILLERIES LTD. ..... Appellant

Through:

Appearance not given.

versus

PERCEPT ADVERTISING LIMITED

..... Respondent

Through:

Mr. Venancio D‟Costa, Ms.

Astha Ojha and Ms. Gauri

Goel, Advs.

CORAM:

HON'BLE MR. JUSTICE YASHWANT VARMA

HON'BLE MR. JUSTICE DHARMESH SHARMA

DHARMESH SHARMA, J. (ORAL)

1.

This is an appeal preferred by the appellant/defendant under

Section 104 read with Order XLIII Rule 1 of the Code of Civil

Procedure, 1908¹ read with Section 10 of the Delhi High Court Act,

1966 assailing impugned order dated 08 August 2019 passed by the

learned Single Judge of this Court in CS (OS) 1252/1999 whereby the

application filed by the appellant/defendant under Order IX Rule 13 of

the CPC was dismissed.

2.

Shorn of unnecessary details, the respondent/plaintiff was

engaged as an advertising agent and consultant for advertising,

publicity and promotion by appellant/defendant vide appointment

letter dated 01 December 1994. During the course of such

1 CPC

Digitally Signed By:PRAMOD

KUMAR VATS

Signing Date:12.10.2023

17:29:37

Signature Not Verified

FAO(OS) (COMM) 342/2019 Page 2 of 9

engagement, various invoices were raised on the appellant/defendant.

While some payments were made, others remained outstanding. The

respondent/plaintiff filed a suit for recovery for an amount of Rs.

2,07,68,394/- on 28 May 1999 bearing No. CS(OS) 1252/1999.

Summons

to appear

in this

suit were

served upon the

appellant/defendant by way of publication and admittedly appearance

was put on its behalf on 28 November 2000 and 15 February 2001.

However, due to non-appearance of counsel on behalf of

appellant/defendant, the suit proceeded ex parte against the

appellant/defendant vide order dated 28 January 2002 and eventually

judgment/decree was passed on 27 May 2009. An application bearing

I.A. No. 6300/2019 under Order IX Rule 13 CPC was filed by the

appellant/defendant on 25 April 2019 inter alia submitting that it was

unaware of the suit proceedings and came to know about passing of

the impugned judgment/decree upon receiving show cause notice

dated 17 November 2018 in Execution Petition No. 61/2016. Herein,

it was the appellant/defendant‟s submission that an inquiry had been

initiated under the provisions of the Sick Industrial Companies Act,

1881² in reference bearing No.162/1998 registered with the Board of

Industrial and Financial Reconstruction³ on 18 September 1998 to

declare it a „sick company‟ which remained pending up until 18

September 2014. Thus, it was agitated that the suit by

respondent/claimant and the consequent decree were in contravention

of Section 22 of the SICA.

2SICA

3 BIFR

Digitally Signed By:PRAMOD

KUMAR VATS

Signing Date:12.10.2023

17:29:37

Signature Not Verified

FAO(OS) (COMM) 342/2019 Page 3 of 9

3.

Learned Single Judge addressed the issue of whether the

proceedings were non est on the date of filing of the suit due to

registration of the appellant/defendant under the provisions of SICA.

Relying on decisions of this Court in the case of Saketh India

Limited v. W. Diamond India Limited⁴; M/s. Ralson Industries

Ltd. (now Known as Da Rubber Industries Ltd.) v. M/s Adhunik

Transport Organisation Ltd⁵ and Raheja Universal Limited v.

NRC Limited and Ors.⁶,the learned Single Judge held that the suit

for recovery filed by the respondent against the appellant company

which had been registered under the Provisions of SICA was not ipso

facto rendered as not maintainable since the suit was for recovery and

the purview of Section 2