Nisha Saxena & Ors vs Bhartendu Chaturvedi & Ors
2013 Latest Caselaw 5198 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                        Reserved on       : 26.08.2013
                                        Pronounced on     : 13.11.2013

+      OA 101/2013 in CS(OS)978/2011

       NISHA SAXENA & ORS                          ..... Plaintiffs
                    Through             Mr. Vaibhav Dang, Advocate

                               versus

       BHARTENDU CHATURVEDI & ORS        ..... Defendants
                    Through  Ms. Rekha Palli and Ms.Amrita
                             Prakash, Advocate for D-2.
                             Mr. Arvind Shukla, Advocate for D-
                             3.
                             Mr. Anuj Aggarwal, Advocate for D-
                             4.
       CORAM:
       HON'BLE MR. JUSTICE JAYANT NATH

JAYANT NATH, J.

1. The present appeal is filed under the Delhi High Court (Original Side) Rules 1967 challenging the order dated 19.07.2013 of the Joint Registrar whereby the application of the appellant/defendant No.3 i.e. I.A. No. 15368/2013 under Order 1 Rule 10 CPC for being deleted as party was dismissed.

2. The plaintiff has filed the present suit for declaration, recovery and injunction. Plaintiff No.1 is the mother of plaintiffs No. 2 and 3. The son of plaintiff No.1 late Sh. Akash Chittranshi who was lawyer by profession, was living in New Delhi. He died at a very young age on account of massive

heart attack. The controversy revolves around his estate. It is stated that there are only two Class 1 legal heirs, namely, plaintiff No.1 the mother and the minor daughter who is living with the divorced wife of said deceased son. It is averred in the plaint that on account of the acts and advise of defendants, certain amount of money from the bank account of Sh. Akash Chittranshi was diverted by the defendants into the account of defendant No.4 with the assurance that this would help in keeping the money out of the reach of the Ex-wife of Sh. Akash Chittranshi and that once the matter is sorted out, the money would be transferred back to the plaintiff from the account of defendant No.4.

3. The learned counsel appearing for defendant No.3 has argued that the present application filed by defendant No.3 was liable to be allowed as no relief for damages has been claimed and the suit is hit by Section 40(2) of the Specific Relief Act. It is stressed that in the entire plaint there is no averment made against defendant No.3 and that she has been added as a party only to harass her inasmuch as she is the wife of defendant No.1. It is stressed that a perusal of the plaint would show that there is no allegation made that defendant No.3 was a party to the alleged fraudulent agreement or a beneficiary. It is stated that said defendant No.3 is neither a necessary nor a proper party.

4. Learned counsel for the plaintiff has submitted that there are serious allegations and claims of plaintiff against defendant No.3. Reliance is placed on para 20 of the plaint, where averments are made that defendants No. 1, 2 and 3 have mischievously obtained two back dated letters from plaintiff

No.3 where the transfer of a total sum of Rs.38,00,000/- was purportedly shown as voluntary donation to defendant No.4. Various reliefs as stated above are claimed jointly and severally against the defendants.

5. Order 1 Rule 10 (ii), CPC reads as follows:

"Rule 10.(1) .........

(2) Court may strike out or add parties.-The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added.

(3).........................

(4).........................

(5)........................."

6. The Hon'ble Supreme Court in the case of Mumbai International Airport Private Limited v. Regency Convention Centre and Hotels Private Limited And Ors (2010) 7 SCC 417, in para 22, held as follows:

"22. Let us consider the scope and ambit of Order 1 Rule 10(2) CPC regarding striking out or adding parties. The said sub-rule is not about the right of a non-party to be impleaded as a party, but about the judicial discretion of the court to strike out or add parties at any stage of a proceeding. The discretion under the sub-rule can be exercised either suo motu or on the application of the plaintiff or the defendant, or on an application of a person

who is not a party to the suit. The court can strike out any party who is improperly joined. The court can add anyone as a plaintiff or as a defendant if it finds that he is a necessary party or proper party. Such deletion or addition can be without any conditions or subject to such terms as the court deems fit to impose. In exercising its judicial discretion under Order 1 Rule 10(2) of the Code, the court will of course act according to reason and fair play and not according to whims and caprice."

7. The prayer in the plaint reads as follows:

"It is therefore, most respectfully prayed that this Hon'ble Court may be pleased to:-

(a) Hold and declare that transfer of a total sum of Rs.38,00,000/-

(Rupees Thirty Eight Lakh) from the bank account of late Akash Chittranshi/aca-law, after his demise, was fraudulent, non-est, vitiated and illegal.

(b) Pass a money decree and/or a decree of mandatory injunction thereby directing the Defendants No.1 to 4 to jointly and/or severally, pay to the plaintiff No.1 a sum of Rs.38,00,000/- (Rupees Thirty Eight Lakh), being the value illegally transferred from the bank account of the deceased/aca-law, after his demise.

(c) Pass a money decree and/or a decree of mandatory injunction thereby directing the Defendant No. 1 to 4 jointly and/or severally, pay to the plaintiff No.1 a sum of Rs.5,18,153 (Rupees Five Lakh Eighteen Thousand One Hundred Fifty Three) or such other higher sum as may be found to have been paid to the defendants upon encashment and/or maturity of the Fixed Deposit Receipts, fraudulently created upon illegal transfer of funds from the bank accounts of the deceased/aca- law.

(d) pass an appropriate decree thereby directing the Defendants No. 1 to 4 to, jointly and /or severally, pay pendete-lite and future interest on the total decreetal amount, to be calculated @ 18% per annum from the date of illegal transfer/misappropriation/conversion of the funds till realization thereof by the plaintiff No. 1.

(e) Pass an appropriate decree/order directing that in the event Defendants No. 1 to 4 fail to, jointly and/or severally, pay the

decreetal amount and interest awarded to the Plaintiff No. 1 then the decree be satisfied by sale of the landed having property Ghata No. 301, situated at Village Govindpu, Pargana, Tehsil Mohanlal Ganj, District Lucknow (Uttar Pradesh) ad-measuring 3.212 hect. (purchased in the name of Defendant No. 4 vide sale deed dated 07.05.2010) and other properties belonging to and owned by the Defendants No. 1 to 4.

(f) Pass a decree of permanent and prohibitory injunction further restraining the Defendant No. 1 and 2 from misusing the name of Plaintiffs and/or aca-law, in any manner whatsoever.

(g) award costs of litigation in favour of the Plaintiffs.

(h) pass such other order(s) and/or direction(s) as may be deemed fit and proper in the facts of the present case and in the interests of Justice."

8. A perusal of the above prayer clause shows that the plaintiff seeks relief against defendants No. 1 to 4 including decree for mandatory injunction directing defendants No. 1 to 4 to jointly and /or severally pay to plaintiff No. 1 a sum of Rs. 38 lacs.

9. Para 20 of the plaint makes a categorical averment that defendants No. 1 to 3 mischievously obtained two back dated letters from plaintiff No. 3 whereby transfer of a total sum of Rs. 38 lacs was purported as voluntary donation. Along with the documents filed with the plaint, the plaintiff has placed on record an e-mail purportedly written by defendant No. 3 to plaintiff No. 3 dated 15.12.2010. The e-mail is accompanied by two letters purportedly dated 04.11.2008 which state that plaintiff No. 3 is donating Rs. 25 lacs and Rs. 13 lacs respectively to defendant No. 4. Hence, allegations and contentions have been raised against defendant No. 3. The contentions of the applicant to the contrary are clearly not tenable. It would not be appropriate at this stage to make an enquiry about the merits of the

contentions and allegations raised by the plaintiff against defendant No. 3. The appropriate stage would be only after the evidence has been led by the parties. In view of the above, defendant No. 3 would be a necessary and proper party to the present proceedings. The relief that is sought by the plaintiff against defendant No. 3 cannot be granted to the plaintiff in the absence of defendant No. 3.

10. Reference may be had to the judgment of this High Court in the case of Abdul Rashid vs. Shiv Bidi Manufacturing Co. Pvt. Ltd., 2004(74) DRF 540 where this Court held as follows:-

"At this stage it will not be possible to decide whether defendant No. 2 is responsible for the publication of the disparaging and defamatory advertisement or issue of leaflets etc. or defaming the plaintiff because this question will require evidence for decision but there are allegations against defendant No. 2 and the relief of injunction and damages is also claimed against defendant No. 2, therefore defendant No. 2 is necessary party. His name can be deleted only when the court finds that he is neither necessary nor proper party to the suit and in his absence also the subject-matter of the suit can be decided completely and effectually. In view of the positive case pleaded against him and the relief of injunction and damages claimed against defendant No. 2, it cannot be held at this stage that the suit can be completely and effectually decided in his absence. It is a different question that the plaintiff fails to establish its case against defendant No. 2 after trial."

11. The impugned order dated 19.07.2013 rightly held that defendant No.3 is necessary and proper party for the purpose of relief claimed. Further, the relief claimed is not based on damages and is not on account of some contract but for recovery of money said to be illegally siphoned off and

transferred by the defendants.

12. Hence the present appeal has no merit and the same is dismissed.

JAYANT NATH, J NOVEMBER 13, 2013 'raj'