Jyoti Sarup Mittal Engineer & ... vs Acon Construction (India) Pvt. ...
2011 Latest Caselaw 5261 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                              Date of Judgment: 31.10.2011

+      CM (M) No. 2011/2006 & CM No.15848/2006 (for stay)

JYOTI SARUP MITTAL ENGINEER &
CONTRACTORS                               .... Petitioner
                   Through: Mr. K. Sunil, Advocate.

                      Versus

ACON CONSTRUCTION (INDIA) PVT. LTD. &ANR. ....Respondent
                 Through: None.

CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

     1. Whether the Reporters of local papers may be allowed to
        see the judgment?

     2. To be referred to the Reporter or not?              Yes

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

INDERMEET KAUR, J. (Oral)

1. The order impugned before this court is the order dated

09.10.2006 vide which the application filed by defendant No. 2

(Jyoti Sarup Mittal Engineer & Contractors) seeking transposition

as plaintiff No. 2 (initially arrayed as defendant No. 2) had been

dismissed.

2. Record shows that the present suit is a suit for recovery of

Rs. 13,50,000/- filed by the plaintiff M/s. Acon Construction (India)

Pvt. Ltd. against two defendants; the first defendant is Lok

Nirman Cooperative Group Housing Society Limited and second

defendant is the present petitioner, namely, Jyoti Sarup Mittal

Engineer & Contractors. Plaintiff is engaged in the business of

construction and building material; defendant No. 1 was a

registered society; defendant No. 1 had awarded a contract for

construction of 93 flats on plot No. 105 Patparganj, I.P. Extension,

Delhi at an estimated cost of Rs. 178 lacs to defendant No. 2.

Defendant No. 2 with the consent of the plaintiff and under the

guidance of their Architect i.e. M/s. Garg and Associates assigned

the said work to the plaintiff; contention of the plaintiff is that he

had completed this project and was in the preparation of the final

bill when defendant No. 1 forcefully entered into the aforenoted

plot and took the possession of the said flats constructed by the

plaintiff. It has further been averred that the defendant No. 1 on

or about 26.04.1999 certified that defendant No. 2 had completed

the construction of 93 flats at a total cost of Rs. 2.40 crores.

Plaintiff thereafter submitted his final bill to the defendants. Since

this payment was not made, the present suit was filed.

3. Admittedly, there was an arbitration clause between the

parties which had governed the agreement between the parties;

matter had been referred to the sole Arbitrator; since the

arbitration agreement was not signed, the Arbitrator had returned

the proceedings back for disposal by the Civil Court. An

application under Order 1 Rule 10 of the Code of Civil Procedure

(hereinafter referred to as 'the Code') had thereafter been filed by

the defendant No. 2 seeking transposition as plaintiff No. 2;

contention being that the interests of the plaintiff and defendant

No. 2 were common and in these circumstances, to avoid

multiplicity of litigation and in the interest of justice, he be

permitted to be transposed as plaintiff No. 2. It is also on record

that the plaintiff had not filed any opposition to the said

application. In spite of service, none has appeared for the

defendant No. 1 before this court.

4. Record shows that the plaintiff has set up his claim against

the defendant No. 1 who in turn had awarded a sub-contract to

the defendant No. 2. In this application, it has been contended by

defendant No. 2/petitioner that the defendant No. 1 had in fact

issued a certificate certifying that the plaintiff is an authorized

sub-contractor of defendant No. 2 and the construction of 93 flats

of the society have been completed at a cost of Rs. 2.40 crores;

contention being that the interest of the plaintiff and the

defendant No. 2 is the same. These facts and submissions are

borne out from the record. Impugned order is accordingly set

aside; defendant No. 2 is transposed as plaintiff No. 2. This is in

view of the fact that the record shows that the interest of plaintiff

and the defendant No. 2 is common; cause of action is

substantially the same; to avoid multiplicity of litigation, the

aforenoted order has been passed.

5. It is also relevant to note that the plaintiff had not opposed

this application. To support his submission that where the plaintiff

does not oppose an application filed by the defendant for

transposition as another plaintiff, the learned counsel for the

petitioner has placed reliance upon the judgment of the Punjab

and Haryana High Court reported in AIR 1979 Punjab & Haryana

10 titled as Dalbir Singh & Ors. vs. Lakhi Ram & Ors. as also on

the judgment of the Patna High Court reported in AIR 1979 Patna

73 titled as Basudeb Narayan Singh & Ors. vs. Shesh Narayan

Singh & Ors.

6. Perusal of this file also shows that the interim order staying

the proceedings in the Trial Court had been vacated on

11.08.2008. Court has been informed that there is no progress

before the Trial Court; there is no explanation for the same. Trial

Court shall proceed to deal with the case on its merits and will

endeavour to dispose of the case as expeditiously as possible. This

court has further been informed that there is no date fixed before

the Trial Court. The parties are directed to appear before the Trial

Court on 08.11.2011.

With these directions, petition is disposed of.

INDERMEET KAUR, J

OCTOBER 31, 2011 rb