M/S Dev Infrastructures Pvt Ltd & ... vs M/S Jainco Developers Pvt Ltd & ...
2015 Latest Caselaw 385 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+                        CS(OS) 3268/2012

                                                      Decided on : 15.01.2015
IN THE MATTER OF:
M/S DEV INFRASTRUCTURES PVT LTD & OTHERS             ..... Plaintiffs
                   Through : Mr. Dhananjay Shahi, Advocate

                         versus

M/S JAINCO DEVELOPERS PVT LTD & OTHRS                ..... Defendants
                   Through : Mr. Dinesh Kr. Gupta with
                   Mr. Viditi Gupta, Advocates

CORAM
HON'BLE MS.JUSTICE HIMA KOHLI

HIMA KOHLI, J.(Oral)


I.A.No.8280/2013 (by D-3) and I.A.No.8281/2013 (by D-1) both
u/O R-I R-10 CPC for deletion of their name from the array of
defendants)

1.

The present applications have been filed by the defendants No.1 &

3, praying inter alia for deletion of their names from the array of

defendants on the ground of mis-joinder of parties.

2. The plaintiffs have instituted the present suit against three

defendants for recovery of a sum of `97,20,000/- with interest, on a joint

and several basis. It is the case of the plaintiffs/companies that Shri

Praveen Kumar Jain, Director of the defendants No.1 & 2/Company had

approached them through their Directors, proposing to broker a deal

between the plaintiffs No.1 & 2 and the defendant No.3/company in

respect of an immovable property situated at Hargovind Enclave, New

Delhi. It has been averred in the plaint that the total sale consideration of

the aforesaid property was agreed at `6.00 crores and the plaintiffs had

deposited a sum of `2.00 crores in instalments in the accounts of all the

three defendants towards the earnest money and it was further agreed

that the balance amount will be paid at the time of execution of the sale

deed in favour of the plaintiffs.

3. It has been further averred in the plaint that after receiving a sum of

`2.00 crores from the plaintiffs as part sale consideration, the defendant

No.3/company had proceeded to sell the subject premises to a third party

behind their back and when they had approached Shri Praveen Kumar

Jain, Director of the defendants No.1 & 2/Company for refund of the

amount paid by them, they were extended threats. Later on, Shri Shisher

Aggarwal, Director of the defendant No.3/company had returned a sum of

`60.00 lacs to the plaintiffs. Shri Praveen Kumar Jain, Director of the

Defendants No.1 & 2/Companies had returned a sum of `30.00 lacs to the

plaintiffs followed by a sum of `20.00 lacs received from the account of

the defendant No.1/Company, totalling to `1.10 crore, thus leaving an

outstanding amount of `90.00 lacs, which, as per the plaintiffs, is jointly

and severally payable by all the defendants.

4. Mr.Gupta, learned counsel for the defendants No.1 & 3 states that it

is the stand of his clients that the amounts received by the defendants

No.1 & 3 have been returned to the plaintiffs and therefore, the suit filed

for recovery of `90.00 lacs from the defendants jointly and severally is not

maintainable vis-a-vis defendants No.1 & 3/companies and nor is the

presence of the said defendants necessary to effectively and finally

adjudicate the disputes raised by the plaintiffs in this suit.

5. Learned counsel for the defendants No.1 & 3 submits that a perusal

of the averments made in the present applications would reveal that the

defendants No.1 & 3 have disputed the averments made in the plaint and

asserted that there is no privity of contract between them and the

plaintiffs and further that the defendant No.3/Company has already

refunded the amounts received by it from the plaintiffs.

6. The aforesaid submissions are however rebutted by the learned

counsel for the plaintiffs, who submits that the plaintiffs have instituted

the present suit jointly and severally against all the three defendants for

recovery of the suit amount and the averments made by the defendants

No.1 & 3 in the present applications can only be established after evidence

is led by the parties, and not at this preliminary stage.

7. Before considering the submissions made by the learned counsels

for the parties, it is necessary to examine the relevant provision of Order I

Rule 10(2) of the CPC that empowers the court to strike out or add parties

in a suit, which is extracted hereinbelow for ready reference:

"10. (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."

8. The general rule relating to impleadment of parties is that the

plaintiff in a suit, being dominus litis, has the right to choose the parties

against whom he proposes to institute a suit. The plaintiff is not obliged to

implead a party as a defendant in his suit against whom he does not

propose to seek any relief. In other words, the plaintiff cannot be

compelled to implead an unwanted party in his suit. However, the rule is

subject to the provisions of Order I Rule 10(2) of the CPC as reproduced

above.

9. The aforesaid provision clarifies that a court may, at any stage of

the proceedings, either upon or without an application being filed by either

party, and on such terms as may appear to it, to be just, issue directions

for adding any of the persons as a party, who ought to have been, in the

first instance, joined as plaintiff(s) or defendant(s), but were not added or

where the court considers the presence of a person before it necessary for

enabling it to effectively and completely adjudicate upon and settle the

questions involved in the suit. Further, wherever, it appears to be just to

the court, it may order the name of any party, improperly joined whether

as a plaintiff or a defendant, to be struck out. In other words, the court

has been given ample discretion to add as a party, any person who is

found to be a necessary or a proper party or delete the name of a party

who has been improperly joined. The said discretion vested in the court to

either allow or reject an application of a person claiming to be a proper

party or an improper party depends upon the facts and circumstances of

each case. No person has a right to insist that he should be impleaded as

a party, nor does he have any right to insist that his name be deleted from

a proceeding, if the court thinks otherwise. However, the aforesaid

discretion ought to be governed by the rules and must not be arbitrary,

vague or fanciful.[Refer: Ramji Dayawala & Sons (P) Ltd. Vs. Invest

Import (1981) 1 SCC 80]

10. In the case of Mumbai International Airport (P) Ltd. v. Regency

Convention Centre & Hotels (P) Ltd., reported as (2010) 7 SCC 417,

while adverting to the manner in which the courts ought to exercise their

judicial discretion to determine as to whether a party is a necessary or a

proper party for adjudication of the dispute raised, the Supreme Court

had made the following pertinent observations :

"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." (Emphasis added)

11. The contention of the counsel for the defendants No.1 and 3 that his

clients are neither necessary, nor proper parties in the present

proceedings and their names ought to be deleted from the array of

defendants, has to be examined in the light of the averments made by the

plaintiffs in the plaint qua the said defendants.

12. A perusal of the narration of facts made in the plaint reveals that the

plaintiffs have attributed a liability not only on the defendant No.2, but

also on the defendants No.1 & 3 and blamed all of them for misleading the

plaintiffs into purchasing the immovable property situated at Hargovind

Enclave, Delhi, and owned by M/s. Sparsh Builders Pvt. Ltd. The plaintiffs

have stated that on the inducement of all the three defendants, they had

parted with a sum of Rs.2.00 crores for purchasing the aforecited property

and out of the total sum of Rs.2.00 crores paid by them towards earnest

money, a cheque of Rs.50.00 lacs was drawn by them in favour of the

defendant No.1 and the said cheque was duly cleared on 11.8.2008 and

on the very next day, the said property was clandestinely sold to a third

party.

13. In para 2 (r) & (t) of the plaint, it has been averred that when the

Directors of the plaintiffs had visited the offices of the defendants on

several dates for seeking refund of Rs.2.00 crores, they were threatened

and warned by the defendants of dire consequences. Later on, the

defendant No.2 had refunded a sum of Rs.30.00 lacs through two

cheques, one in the sum of Rs.20.00 lacs and another in the sum of

Rs.10.00 lacs, both drawn from the account of the defendant

No.1/Company with an assurance that the remaining amount shall be

returned to the plaintiffs very soon. A specific averment has been made in

sub-para 2(x) of the plaint that all the defendants have played a fraud

upon the plaintiffs and have collusively avoided to make the balance

payment of Rs.90.00 lacs out of the sum of Rs.2.00 crores paid to them as

earnest money.

14. In para 9 of the plaint which is the cause of action para, the

plaintiffs have mentioned different dates on which the cause of action had

arisen to institute the present suit, and the narration of various dates

mentioned therein includes the date, 8.8.2008 on which a cheque of

Rs.50.00 lacs was issued by the plaintiffs in favour of the defendant No.2,

then on 13.11.2010, when the defendant No.2 had returned a sum of

Rs.20.00 lacs to the plaintiffs through the account of the defendant No.1.

15. Apart from the narration of the facts made in the plaint, even in the

cause of action para, the plaintiffs have specifically stated that the balance

earnest money of `90.00 lacs is in the possession of all the three

defendants and they are jointly and severally liable to reimburse them for

the said amount along with interest. At this stage, the averments made

by the plaintiffs in the plaint have to be accepted as correct. Simply

because the defendants No.1 & 3 deny having any role in the transaction

entered into by the plaintiffs in respect to the subject property, would not

be a ground for this Court to strike off their names from the array of

defendants.

16. Given the aforesaid averments made in the plaint, the submission

made by the counsel for the defendants No.1 and 3 that his clients are

neither necessary, nor proper parties to the dispute raised by the

plaintiffs, is not borne out from a reading of the plaint. The suit is at a

nascent stage and pleadings have not been completed and nor have the

issues been framed. This Court is therefore of the opinion that the prayer

made in the present applications for deletion of the names of the

defendants No.1 and 3 from the array of defendants cannot be entertained

at this stage.

17. Accordingly, the submission of the counsel for the defendants No.1 &

3 that his clients are neither necessary, nor proper parties in the present

proceedings and their names ought to be deleted from the array of

defendants, is turned down, in the given facts and circumstances. The

present applications are found to be devoid of merits and are accordingly

dismissed.

(HIMA KOHLI) JUDGE JANUARY 15, 2015 sk/mk/rkb