M/S Fuelco Industrial Corp. & Ors. Vs Raj Kumar Saxena — Delhi HC (2026) — LawSathi Research

M/S Fuelco Industrial Corp. & Ors. Vs Raj Kumar Saxena — Delhi HC (2026) — LawSathi Research

What the court decided

AI extract

Outcome

Impugned orders dated 30 September 2024, 23 July 2024 and 8 August 2024 quashed and set aside; suit restored to its original position; parties directed to appear before the learned Commercial Court on 30 March 2026, on which date the Commercial Court would fix a date for recording evidence of the two PWs; appeal disposed of in the aforesaid terms.

Issue for consideration

Whether the orders of the learned Commercial Court appointing a local commissioner to record evidence, reducing his fee, and dismissing the suit for non-prosecution were liable to be interfered with and set aside by this Court. +1 more

Court's answer

The decision on whether to record evidence through Commission vests with the Court; unless the exercise of discretion is palpably perverse, it is ordinarily not amenable to interference, following the enunciation by the Supreme Court in Salem Advocate Bar Association, T.N v. Union of India, (2005) 6 SCC 344.

Ratio / Principle

Where only two witnesses are cited by the plaintiff, the respondent is ex parte and his defence has already been struck off, the services of a Local Commissioner for recording evidence are not required.

Key takeaways

The impugned orders dated 30 September 2024, 23 July 2024 and 8 August 2024 were quashed and set aside, and the suit restored to its original position.ratio¶36

Detailed headnote1 paragraphs

High Court of Delhi, RFA(COMM) 135/2025 (C. Hari Shankar and Om Prakash Shukla, JJ.; oral order dated 19.03.2026): Appeal against three orders of the learned District Judge (Commercial Court) in CS (COMM) 155/2021 — dated 23 July 2024 appointing a local commissioner to record evidence (given work pressure), dated 8 August 2024 reducing the commissioner's fee while otherwise maintaining the appointment, and dated 30 September 2024 dismissing the suit for non-prosecution — in a suit where the defendant-respondent was ex parte. The Court held that the decision whether to record evidence through a Commission vests in the Court and is ordinarily not amenable to interference unless palpably perverse, relying on Salem Advocate Bar Association, T.N v. Union of India, (2005) 6 SCC 344, which had also rejected the contention that recording evidence through commission might financially prejudice a party. On the appellant's counsel reducing the cited witnesses from 25 (of whom 20 required summoning) to two, the Court held that the services of a Local Commissioner were not required, the respondent being ex parte and his defence already struck off. The three impugned orders were quashed and set aside, the suit was restored to its original position, and the parties were directed to appear before the learned Commercial Court on 30 March 2026 for fixing a date for recording evidence of the two PWs. The appeal was disposed of accordingly.

$~39

IN THE HIGH COURT OF DELHI AT NEW DELHI

- RFA(COMM) 135/2025

M/S FUELCO INDUSTRIAL

CORP. & ORS. .....Appellants

Through: Mr. Jai Wadhwa and Mr. Ronak Karanpuria, Advs.

versus

RAJ KUMAR SAXENA .....Respondent

Through:

CORAM:

HON'BLE MR. JUSTICE C. HARI SHANKAR HON'BLE MR. JUSTICE OM PRAKASH SHUKLA

ORDER (ORAL)

% 19.03.2026

C. HARI SHANKAR, J.

1. This appeal is directed against three orders passed by the learned District Judge (Commercial Court)¹ dated 30 September 2024, 23 July 2024 and 8 August 2024 in CS (COMM) 155/2021² .

2. The defendant-respondent, who chose not to enter appearance, was proceeded ex parte , before the learned Commercial Court as well as before this Court.

3. The appellant-plaintiff thereafter produced a list of as many as 25 witnesses which it desired to examine, of which 20 were witnesses who had to be summoned.

1 “the learned Commercial Court” hereinafter

2 “the suit” hereinafter

Signature Not Verified

Signed By:GUNN RFA(COMM) 135/2025 Signing Date:24.03.2026 11:03:18

Page 1 of 4

4. In these circumstances, the learned Commercial Court, by order dated 23 July 2024, which constitutes the first order under challenge herein, regretted its inability, given work pressure, to record the evidence itself and, therefore, appointed a local commissioner to do so, on or before 23 September 2024.

5. The appellant moved an application for modification of the order, pleading financial stringency and inability to disgorge the amounts specified, for recording of the evidence through commission.

6. Said application was disposed of, by the learned Commercial Court, by order dated 8 August 2024 (the second order under challenge herein), reducing the fee of the Local Commissioner but otherwise maintaining the earlier order.

7. As no steps were taken by the appellant, in compliance with the said orders, the learned Commercial Court, by order dated 30 September 2024 (the third order under challenge herein), dismissed the suit for non-prosecution.

8. The decision on whether to record evidence through Commission, or not, vests with the Court. Unless the exercise of discretion is palpably perverse, it is ordinarily not amenable to interference. The law, in this regard, has been authoritatively enunciated by the Supreme Court in Salem Advocate Bar Association, T.N v. Union of India³ , which also rejected a submission that

3 (2005) 6 SCC 344

Signature Not Verified

Signed By:GUNN RFA(COMM) 135/2025 Signing Date:24.03.2026 11:03:18

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recording of evidence through commission might be financially prejudicial to a party.

9. When this matter came up before us yesterday, we expressed our opinion that, if the appellant desired to examine 25 witnesses, even when the respondent was ex parte , and 20 of the 25 witnesses would have to be summoned, we would not be in a position to interfere with the orders under challenge, Mr. Jai Wadhwa, learned Counsel for the appellant, sought a days’ time to seek instructions as to whether the number of witnesses could be reduced.

10. We have to record, with satisfaction, that Mr. Jai Wadhwa has, today, at the very outset, agreed to reduce the number of witnesses cited by him to two.

11. In that view of the matter, as only two witnesses are cited by the appellant-plaintiff, we are of the view that the services of a Local Commissioner would not be required, as the respondent is ex parte and his defence has already been struck off.

12. Accordingly, the impugned orders dated 30 September 2024, 23 July 2024 and 8 August 2024 are quashed and set aside.

13. The suit is restored to its original position.

14. Let the parties appear before the learned Commercial Court on 30 March 2026. On that date, the learned Commercial Court would fix a date for recording of evidence of the two PWs.

Signature Not Verified

Signed By:GUNN RFA(COMM) 135/2025 Signing Date:24.03.2026 11:03:18

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15. The appeal is disposed of in the aforesaid terms.

C. HARI SHANKAR, J.

OM PRAKASH SHUKLA, J.

MARCH 19, 2026/ gunn

Signature Not Verified

Signed By:GUNN RFA(COMM) 135/2025 Signing Date:24.03.2026 11:03:18

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