Case: M/s. P. D. Jain, Managing Director, Indo Europe Food Limited Vs. Oswal Agro Mills Limited and Another

1. We have heard Shri K. N. Bhat, learned senior advocate for the petitioner and Shri S. S. Ray and Dr. Shankar Ghosh, learned senior advocates for the respondent-company 2. Petitioner-P. D. Jain, claiming to be the Managing Director of Messrs Indo Europe Food Limited, a company incorporated in the United Kingdom, which, it is averred, has since been struck off from the Register of Companies, seeks special leave to appeal to this Court from decree dated May 9, 1989 made by the learned Single Judge of the Delhi High Court in Suit No. 1917 of 1986. Petitioner who was not eo nomine party to the suit has also sought leave to prefer the petition for special leave. In view of the averments that the company against which the decree is passed has been struck off from the Registers and the further case of the petitioner that the decree affects the rights and interests of the petitioners, we grant him leave to file the petition. However, the special leave to appeal, for reasons to be indicated presently, cannot be granted3. The decree sought to be appealed against, following, as it does, an order refusing leave to defend in a summary suit is, it is not disputed, appealable to the Division Bench of the High Court. Shri K. N. Bhat however, sought to maintain, somewhat strenuously, that having regard to the particular circumstances under which the leave to defend was refused and the consequential decree made and having regard further to the fact that the petitioner would be exposed to heavy liability towards court fee, it is otherwise a fit case in which this Court should entertain the appeal directly from the Single Judges decree. Shri Bhat said that in the circumstances of the case the right of appeal is an onerous one and the petitioner should not be compelled to have resort to such an onerous remedy. Shri Bhat said that the proposition of prosecuting such an appeal at this stage is best with difficulties of limitation as well 4. We are afraid, we cannot accept this submission. If the petitioner is not able to pay the court fee, it is open to him to seek to prosecute the appeal as an indigent person. We do not want to go into and pronounce here on that status of the petitioners. It appears to us that the proper course for the petitioner is to prefer and prosecute the remedy by way of an appeal before the Division Bench of the High Court

Decision:
1[ds]4. We are afraid, we cannot accept this submission. If the petitioner is not able to pay the court fee, it is open to him to seek to prosecute the appeal as an indigent person. We do not want to go into and pronounce here on that status of the petitioners. It appears to us that the proper course for the petitioner is to prefer and prosecute the remedy by way of an appeal before the Division Bench of the High