Dr. I.P.Singh vs Shri M.P.Jain
2010 Latest Caselaw 546 Del

 *                     IN THE HIGH COURT OF DELHI AT NEW DELHI

+                      C.M. (Main) No.207 of 2009 & C.M. Appl. No.3627 of 2009

%                                                                                01.02.2010

         DR. I.P. SINGH                                           ......Petitioner
                                 Through: Mr. Manish Sharma, Mr. Amit Bhardwaj and
                                          Mr. Rohan Sharma, Advocates.

                                            Versus

         SHRI M.P. JAIN                                           ......Respondent
                                 Through: Mr. R.B.S. Chauhan, Advocate.

                                                         Date of Reserve: 27th January, 2010
                                                           Date of Order: 1st February, 2010

         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?

                                       JUDGMENT

1. By this petition, the petitioner has assailed an order of Additional District Judge

dated 6th February, 2009 whereby an application of the petitioner under Order I Rule 10

CPC was dismissed.

2. Brief facts relevant for the purpose of deciding this petition are that the petitioner

is defendant in suit for specific performance filed before the trial court by one Mr. M.P.

Jain. The suit was filed on the basis of Agreement to Sell entered into between Mr. M.P.

Jain and the petitioner in respect of the property of the petitioner. The contention of the

petitioner is that the property was actually agreed to be bought by Mr. Raj Kumar Jain,

son of the plaintiff (Mr. M.P. Jain), who struck the deal with the petitioner but wanted

that the sale deed should be executed in the name of his father so the Agreement to Sell

was executed in the name of his father and a sum of Rs.1 lac was paid as token money to

the petitioner. Mr. Raj Kumar Jain signed the Agreement as a witness. However, after

entering into an Agreement, there was some resistance in the family of the petitioner

regarding sale deed and the petitioner wrote a letter to Mr. Raj Kumar Jain accompanied

with a cheque of Rs.1 lac, that is, token money received by the petitioner and the

petitioner scrapped the deal. This token money was received back by Mr. Raj Kumar

Jain, son of Mr. M.P. Jain and he deposited this money in his account. No response was

given to the petitioner that the deal was not scrapped. Thus, the petitioner considered that

the deal was scrapped. Later on, father of Mr. Raj Kumar Jain filed the suit for specific

performance. The petitioner made this application for making Mr. Raj Kumar Jain as a

party since Mr. Raj Kumar Jain was the person who had struck the deal and had also

taken Rs.1 lac back and deposited the same in his account.

3. The trial court dismissed this application on the ground that since Mr. Raj Kumar

Jain was not a party to the agreement, he was not a necessary party for adjudication of the

case. The deal was between Mr. M.P. Jain and the petitioner and only Mr. M.P. Jain was

a necessary and proper party.

4. In a suit for specific performance, normally the parties to the suit are only the

parties to the Agreement. However, where the allegations are made that the actual person

with whom deal was struck was different and this person had not only negotiated but was

also involved in the transaction either by payment of money or by receipt of money back,

such persons become a necessary and proper party for adjudication of the issues between

the parties. It is not disputed that the amount of Rs.1 lac paid as token money to the

petitioner, was received back by Mr. Raj Kr. Jain, son of the defendant. It is also not in

dispute that Mr. Raj Kumar Jain was one of the witnesses to Agreement to Sell. Mr. Raj

Kumar Jain had no reason to deposit the amount of Rs.1 lac in his account if he was not

involved in the transaction. If he had nothing to do with transaction, he would have

returned this money to the petitioner and told him that he was nobody to receive back this

money and the money should be sent to his father.

5. Looking at the conduct of Mr. Raj Kumar Jain in quietly receiving money back

from the petitioner, depositing it in his account and giving no response to the petitioner's

letter of sending the money back and scrapping the transaction, shows that Mr. Raj

Kumar Jain was a party to the transaction and was a necessary and proper party. The

trial court did not exercise its jurisdiction of making a proper and necessary party to the

suit. The order of the trial court is set aside. The application of the petitioner stands

allowed. Mr. Raj Kumar Jain shall be impleaded as a party to the suit.

6. With above directions, the petition stands disposed of.

SHIV NARAYAN DHINGRA J.

FEBRUARY 01, 2010 'AA'