Delhi High Court
The Hindustan Limited vs M/S Parichay Advertising on 15 December, 2009
Author: Shiv Narayan Dhingra
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ I.A. No.2909 of 2009 in C.S. (OS) No.572 of 2004
% 15.12.2009
THE HINDUSTAN LIMITED ......Plaintiff
Through: Mr. Amit Mahajan, Mr. Shashi Shekhar &
Mr. Sidhartha Das, Advocates.
Versus
M/S. PARICHAY ADVERTISING ......Defendant
Through: Mr. Prashant Mehra for Mr. Rajeev
Bansal, Advocate.
Date of Reserve: 16th November, 2009
Date of Order: 15th December, 2009
JUSTICE SHIV NARAYAN DHINGRA
1. Whether reporters of local papers may be allowed to see the judgment?
2. To be referred to the reporter or not?
3. Whether judgment should be reported in Digest?
ORDER
1. This application has been made under Order I Rule 10 CPC by defendant for
deleting the name of Ms. Jyoti Jain as proprietor of M/s. Parichay Advertising and to
substitute it by the name of Mr. Sanjay Bansal in her place.
2. It is submitted in the application that Ms. Jyoti Jain and Mr. Sanjay Bansal were
equal partners in partnership firm, namely, M/s. Parichay Advertising, however, Ms. Jyoti
Jain issued a notice dated 14th October, 2000 to Mr. Sanjay Bansal expressing her
intention to withdraw from the partnership business with effect from 1st November, 2000.
After this notice, the partnership was dissolved by a Dissolution Deed dated
1st November, 2000 and all liabilities of the firm M/s. Parichay Advertising known or
unknown were taken over by Mr. Sanjay Bansal in terms of the Dissolution Deed.
M/s. Parichay Advertising thereafter became a Sole Proprietor concern of Mr. Sanjay
Bansal with its office at 37, Rani Jhansi Road, Jhande Walan, New Delhi-55. An
intimation to this effect was sent to Secretary General, Indian Newspaper Society by
Mr. Sanjay Bansal. It is submitted that account of plaintiff in the books of M/s. Parichay
Advertising showed nil balance as on 31st October, 2000 and whatever liabilities were
there of the plaintiff towards M/s. Parichay Advertising were after 31st October, 2000.
Thus, the defendant Ms. Jyoti Jain was in no way concerned with these liabilities and
only Mr. Sanjay Bansal in his capacity as proprietor of M/s. Parichary Advertising was
answerable to the plaintiff.
3. A prayer is made that the name of the defendant be struck off from the array of
parties and name of Mr. Sanjay Bansal be added in place of the defendant.
4. The application per se is not maintainable. A defendant can make a request that
his name be deleted as no relief has been sought against him or there was no cause of
action against him or no privity of contract with him or that he was an unnecessary party
to the suit but a defendant cannot make a prayer that instead of him, somebody else
should be arrayed as a defendant. It is the prerogative of the plaintiff as to who should be
arrayed as defendant to the suit. The plaintiff runs the risk of failure of the suit if he
makes wrong defendants. He also runs the risk of paying cost to persons arrayed
defendants wrongfully. Thus, the prayer of the applicant to array Mr. Sanjay Bansal as
defendant is not tenable.
5. As far as deleting the name of Ms. Jyoti Jain is concerned, I consider that this
request also cannot be allowed. The plaintiff has filed this suit for recovery of its bills
from the month of June, 2000 to April, 2001 aggregating to an amount of Rs.92,53,548/-
out of which part of the amount was paid and part of the amount was credited as
commission and balance payable was Rs.26,19,293/-. For the period of which bills were
raised, Ms. Jyoti Jain admittedly was one of the partner. She resigned from the
partnership on 31st October, 2000. Prior to her entering into partnership with Mr. Sanjay
Bansal, it was she alone who was running this advertising firm in the name of M/s.
Parichay Advertising and it seems that she had been utilizing services of the plaintiff for
publishing advertisements of her clients. Prior to its becoming a partnership firm, the
plaintiff knew M/s. Parichay Advertising as a proprietorship firm of defendant No.1 and
that is how the plaintiff seems to have filed this suit against the defendant firm stating that
Ms. Jyoti Jain was proprietor of firm. After 20th April, 2000, this proprietorship firm of
Ms. Jyoti Jain became a partnership firm as she entered into partnership with Mr. Sanjay
Bansal. The liability of Ms. Jyoti Jain for the bills from April, 2000 till 1 st November,
2000 cannot be ignored. Reliance by applicant on the accounts of M/s. Parichay
Advertising can be of no help to her since these are self serving accounts and may not
reflect true position viz-a-viz the plaintiff.
6. I, therefore, consider that her name cannot be deleted from the array of parties. It
would be only after recording of evidence that court can come to a conclusion if there was
no liability of Ms. Jyoti Jain. I, therefore, dismiss this application.
C.S. (OS) No.572 of 2004
List this matter for framing of issues on 6th April, 2010.
SHIV NARAYAN DHINGRA J.
DECEMBER 15, 2009
'AA'
