Mr. Sandeep Thapar vs Sme Technologies Pvt. Ltd.
2010 Latest Caselaw 5172 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+      FAO (OS) 607/2010
%                                       Reserved on: October 27, 2010

                                        Decided on: November 12, 2010
       Mr. Sandeep Thapar
       S/o Mr. Satish Thapar
       R/o S-383, 2nd Floor
       Greater Kailash-II
       New Delhi                                      ..... Petitioner
                         Through:   Mr. S.S.Ray, Advocate.

                   versus
       SME Technologies Pvt. Ltd.
       Earlier Known as
       M/s. Kalpataru Energy Venture Pvt. Ltd.
       M-10, 2nd Floor,
       Greater Kailash-II (Market)
       New Delhi-110 048                                ..... Respondents
                         Through:

Coram:
HON'BLE MR. JUSTICE VIKRAMAJIT SEN
HON'BLE MS. JUSTICE MUKTA GUPTA

1. Whether the Reporters of local papers may
   be allowed to see the judgment?                    Not necessary

2. To be referred to Reporter or not?                 Yes

3. Whether the judgment should be reported
   in the Digest?                                     Yes

MUKTA GUPTA, J.

CM No.18613/2010 (Delay)

For the reasons stated in the Application, the same is allowed.

Application stands disposed of accordingly.

FAO (OS) 607/2010 & CM No.18612/2010 (Stay)

1. The Appellant/Defendant in the Suit sought impleadment of Shri

Sharad Maheshwari, Managing Director of the Respondent Company as

a Plaintiff and a direction to file an Affidavit supporting the averments

in the plaint besides being examined by the Court in IA No.11803/2008

under Order I Rule 10 and Order X Rule 2 read with Section 151 CPC.

The Appellant contends that since Mr. Sharad Maheshwari was dealing

with the Appellant for and on behalf of the Respondent/Plaintiff

Company being its Managing Director, he was a necessary party to the

Suit. Learned counsel contends that the entire Suit is based on the oral

agreement between the Appellant and Mr. Maheshwari and thus he is a

necessary party to the adjudication of the Suit.

2. The learned Single Judge dismissed this Application of the

Appellant for the reason, the Respondent being a company is persona in

law and is entitled to sue in its own name through an authorized

representative. In so far as the examination of Shri Sharad

Maheshwari under Order X Rule 2 CPC is concerned, it was observed if

need be the same will be recorded at the relevant stage.

3. We do not find any infirmity in the Impugned Order. The learned

Single Judge has rightly held that it is not necessary to implead Shri

Sharad Maheshwari as a Plaintiff, as the company being a legal entity is

entitled to file a Suit in its own name through an authorized

representative. Moreover, it is for the Respondent/Plaintiff to prove its

case during the trial and if it does not implead or does not examine Shri

Sharad Maheshwari the consequence thereof will flow.

4. The Appellant filed yet another Application being IA

No.13902/2008 under Order VIII Rule 1 read with Section 151 CPC for

extension of time to file the Written Statement till the disposal of

Application IA No.11803/2008. As per the Appellant since Mr. Sharad

Maheshwari had not filed his Affidavit despite the entire Suit being

based on an oral agreement alleged to have been entered into between

the Appellant and Shri Sharad Maheshwari, in case the Appellant was

to file his Written Statement that would disclose his defence and the

Respondent is thus likely to change/modify the case set up in the Suit.

5. In our view, the learned Single Judge rightly dismissed this

Application on the ground that even if Shri Sharad Maheshwari was

impleaded as a party and would have filed his Affidavit, the averments

in the plaint could not have been changed. The same would not have

changed the character of the plaint, pleadings contained therein and

the relief sought by the Plaintiff. Thus, in no manner can the pendency

of the abovementioned Application be considered as a good or

sufficient cause for not filing the Written Statement within the period

prescribed.

6. This Application of the Appellant was not accompanied by the

Written Statement. Order VIII Rule 1 CPC is a clear mandate to the

Court to permit filing of the Written Statement within 30 days from the

date of service of summons and the Court has power to permit a period

of further 60 days from the date of service of summons to the

Defendant to file Written Statement for reasons to be recorded in

writing. This being the position the learned Single Judge rightly

dismissed the Application as neither the ground for extension of time to

file the Written Statement was made out nor an Application for

condonation of delay nor the Written Statement was filed. The learned

Single Judge rightly struck off the defence of the Appellant and we are

not inclined to interfere with this order.

7. The Appeal and all Applications are accordingly dismissed.

(MUKTA GUPTA) JUDGE

(VIKRAMAJIT SEN) JUDGE NOVEMBER 12, 2010 mm