Delhi High Court
Shri Praveen Kumar & Anr. vs M/S Goels Rolling Mills Pvt. Ltd. & ... on 20 August, 2009
Author: S.L.Bhayana
HIGH COURT OF DELHI : NEW DELHI
I.A. No. 2695/08 in CS(OS) No. 2256/2007
Date of Decision: August 20, 2009
SHRI PRAVEEN KUMAR & ANR. ... PLAINTIFF
Through: A.K Singla, Sr. Adv. with
Mr. H.D. Sharma, Advocate
Versus
M/S GOELS ROLLING MILLS PVT. LTD. & ORS .... DEFENDANTS
Through: Mr. Sidharth Silwal ,Adv
CORAM:
HON'BLE MR. JUSTICE S.L. BHAYANA
1. Whether reporters of local papers may be allowed
to see the judgment? Yes
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the digest or not?
Yes
S.L. BHAYANA, J.
This is an application filed by the Applicants/Defendants
under Order I Rule 10 read with Order VII Rule 11 and under
Section 151 of CPC, seeking deletion of defendant No.1 from the
array of the parties.
2. Factual background of the instant suit from which the
particular controversy arises is that the plaintiffs have, vide
agreement, dated 27/12/2006, decided to sell of their shares of
defendant No.1, i.e, Company, M/s Goel Rolling Mills Pvt. Ltd,
having its registered office at 32, Todermal Colony, Najafgarh,
New Delhi. Defendant Nos.2 & 3 have agreed to purchase 12500
equity shares for a total consideration of Rs.41,50,000/-. In order
IA No. 2695/08 in CS(OS) No. 2256/2007 Page No. 1 of 5
to obtain the recovery of the above mentioned amount, the
plaintiffs have filed the instant suit thereby also impleaded
M/s.Goel Rolling Mills Pvt. Ltd as Defendant No.1.
3. To support this application, Defendant No.1 has made the
following submission that there was no privity of contract
between the Plaintiff No.1 and Defendant No.1. Defendant No.1
was never a party to the agreement dated 27/12/2006, which
was executed and signed by Defendant No. 2 and Defendant No.
3 in their individual capacity for sale and purchase of equity
shares. Defendant No.1/Company is neither a necessary party
nor a proper party for the adjudication of dispute between the
parties. Moreover plaintiffs have not raised any cause of action
against Defendant No. 1 in their plaint. To support the
application, learned counsel of the applicants has relied upon a
judgment of this court in the case of TBWA Anthem Pvt. Ltd. Vs
Madhukar Kamath and Anr., 93 (2001) DLT 302.
4. While opposing present the application, the plaintiffs have
submitted that it is an admitted fact that somewhere in the year
2005, plaintiffs have approached Defendant No.1 company and
made some financial participation in the company to the tune of
Rs.12,50,000 /-and henceforth was allotted 125000 equity shares
of the company, i.e., Defendant No.1 and Plaintiff No.1 was also
IA No. 2695/08 in CS(OS) No. 2256/2007 Page No. 2 of 5
inducted as an Additional Director of Defendant No.1/Company.
So in view of the above mentioned fact it is pertinent to note that
for the recovery of money Defendant No.1/company is
necessary and proper party for full and final adjudication of the
suit.
5. To support his view point, learned counsel of plaintiffs has
relied upon the following judgments:-
(i) Autocop (India) Private ltd. vs. S.Savinay Impex Pvt.
Ltd., ILR (2006)2 Del 665.
(ii) Jheel Kurenja Milk Producers' co-operative Society
Ltd. & ANR vs. DDA & ORS, 115(2004) DLT 300.
(iii) The Benaras Bank Ltd. vs. Bhagwan Das and Ratanlal
and Anr. AIR 1947 (34) All 18.
6. Having heard learned counsel for the parties, I am of the
view that as far as question of deletion of M/S. Goel, i.e,
Defendant No.1 from the array of the party from the suit is
concerned, it is an admitted case that the agreement dated
27/12/2006 was in respect of 125000 equity shares of Defendant
No.1 company. Plaintiffs herein were shareholder as well as
Additional Director of the Company. Under Order 1 Rule 10(2)
CPC, no doubt, the Court has power to strike out the name of the
party from the array of parties, firstly when the plaint do not
disclose any cause of action against the impleaded Defendant
IA No. 2695/08 in CS(OS) No. 2256/2007 Page No. 3 of 5
and secondly when the presence of the Defendant is not
required for the effective and complete adjudication of the suit.
It is not a case where name of the Defendant No.1 is improperly
joined, Defendant No.1/Company is required in the suit for
effective settlement of all the disputes in the matter. Moreover,
para 12 of the plaint specifically discloses cause of action against
Defendant No.1 and it would be very unpractical to decide the
issue involving shareholders or ex-directors vis-a-vis the
promoter directors of the company without having the company
as a party. Suit is related to recovery of Rs 43,00,000/- pertaining
to agreement of sale, for sale and purchase of shares of
Defendant No.1/Company. Only a prima facie satisfaction is
required for deciding that impleadment of a party is required for
proper adjudication of the suit.
7. Applicants have failed to show any circumstances which
justify the deletion of Defendant No.1 from the array of the
parties. Each case is to be decided on its own facts. In view of
the peculiar facts of the present case, the judgment on which
applicants are relying upon cannot be applied on this case.
8. In view of the above, I hold that Defendant No.1 is a
necessary and proper party for factual and complete
adjudication of questions involved in the suit.
IA No. 2695/08 in CS(OS) No. 2256/2007 Page No. 4 of 5
9. In the result, the application is without any merit and
accordingly dismissed.
S.L. BHAYANA, J.
August 20, 2009
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