The Indian Hotels Company Ltd vs New Delhi Municipal Council
2016 Latest Caselaw 2234 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI
                                             Date of decision: March 21, 2016
+       CS(OS) 651/2013, IAs 16139/2015, 9691/2015, 1530/2016 &
        15819/2015 & OA 372/2015
        THE INDIAN HOTELS COMPANY LTD
                                                     ..... Plaintiff

                                  Through:   Mr.Rajiv Nayar, Sr. Adv.
                                             with Mr.Rishi Aggarwala,
                                             Ms.Misha Rohtgi, Mr.Anuj
                                             Malhotra, Mr.Saurabh Seth,
                                             Advs.
                                  versus

        NEW DELHI MUNICIPAL COUNCIL
                                                           ..... Defendant

                                  Through:   Mr. Sanjay Jain, ASG with
                                             Mr. Akshay Makhija
                                             (CGSC), Mr. V.Mohan, Ms.
                                             Bani Dixit, Advs.
                                             Mr. Ajit Sharma, Adv. with
                                             appellant/ applicant in OA
                                             372/2015/4924/2014

CORAM:
HON'BLE MR. JUSTICE V.KAMESWAR RAO
V.KAMESWAR RAO, J.(Oral)

IA 4924/2014

1.      Vide this order, I would decide IA 4924/2014, filed by Mr.

Mithlesh Kumar Pandey under Order 1 Rule 10 (2) read with Order 1

Rule 8A and Section 151 CPC for impleading him as defendant No.2.

2.      The averments averred in the application are that during the course


IA 4924/2014 in CS(OS) 651/2013                                Page 1 of 12
 of hearing on April 9, 2013 as per the directions of this Court, the

applicant was supplied a copy of CS(OS) No. 651/2013. The applicant

intervened in the matter as a caveator and also appeared before this Court

in this matter on November 7, 2013. In W.P.(C) 6615/2012 filed by the

petitioner, which was disposed of on October 17, 2012, the NDMC had

stated before the Court that they will hold a public auction within 3-4

months in respect of Taj Mansingh Hotel. But even after 12 months of

their promise before the Court, the NDMC officials did not held the

auction and thus violated their promise.          The petitioner also filed

SLP(Civil) No. 9142/2013 before Supreme Court of India, wherein CBI

enquiry is prayed along with other reliefs. The Supreme Court issued

notice to the plaintiff and the defendant. The plaintiff only for the

purpose of delay and to linger on the process filed the present CS (OS)

No. 651/2013 in collusion with NDMC. In SLP Civil No. 9142/2013 the

Supreme Court of India specifically requested this Court to complete the

pleading/filling of documents before January 21, 2014 in this suit.

3.      It is also averred by the applicant that in this suit, in para 26, the

plaintiff specifically mentioned the name of the applicant, Writ Petition

(Civil) No.6615/2012 and about his role. He has averred, that it is

necessary to allow the present applicant as a party to unearth the truth as

the same relates to public property. The lease, having expired in 2011,
IA 4924/2014 in CS(OS) 651/2013                              Page 2 of 12
 the NDMC was required to expedite the auction of the said property but

it was not done despite the fact that date of expiry of lease was known in

advance and preparation before hand could have been made for public

auction. But the NDMC extended the lease for a period of one year from

October 2011 to October 2012 in favour of the plaintiff. The NDMC

further extended the lease in favour of the plaintiff from October 2012 to

October 2013, which is in violation of the License Deed/Collaboration

Agreement dated December 18, 1976 and contrary to the opinion dated

September 14, 2012 of the learned Additional Solicitor General of India.

The grounds urged in support of the application, primarily are, that (i)

the SLP (Civil) No.9142 of 2013 filed by the applicant herein, involving

the same issue being agitated in the present suit, is pending before the

Supreme Court of India, wherein the plaintiff and the defendant are the

respondents; (ii) the present suit has been filed in collusion between the

plaintiff and the defendant; (iii) the presence of the applicant is necessary

in order to enable this Court to effectually and completely adjudicate

upon and settle all questions involved in the suit; (iv) according to the

applicant, the applicant apprehends that in case he is not impleaded as

one of the defendants, entire/true facts of the case will not likely to be

placed before this Court to enable this Court for proper adjudication of

the case; (v) by adding the applicant to the array of parties, no prejudice

will be caused to the parties already on record; neither will fair trial of

the questions in controversy be prejudiced. On the other hand, not

making the applicant party to the present proceedings will cause serious

prejudice to the economy of the State. No effective action has been

taken by the NDMC despite the assurance to hold a public auction within

3-6 months given to the Division Bench of this Court. NDMC as a

public authority is obligated to dispose of its properties at market value.

In the present case, NDMC has extended the licence of the hotel property

when the license deed itself not contemplate any extension. The NDMC

has extended the license deed without inviting public bids and thus in

breach of the ratio laid down by the Supreme Court in the case of

Aggarwal & Modi Enterprises Pvt. Ltd. Vs. NDMC (2007) 8 SCC 75.

One of the grounds includes filing of the W.P.(C) 6615/2012 disposed of

on October 17, 2012. A reference is also made to the filing of the SLP

before the Supreme Court, wherein CBI inquiry is prayed along with

other reliefs. As regards locus standi, according to him as large public

interest is involved and the issues being agitated in the interest of public

and other persons, any person can be impleaded as a necessary party. It

is also one of the grounds that if the applicant is not impleaded as

defendant No.2, it may cause grave loss to the public exchequer and

economy of the State.

4. Mr. Ajit Sharma, learned counsel appearing for the applicant

would submit that initial W.P.(C) 6615/2012 seeking a CBI inquiry was

filed by him in this Court. The said petition was disposed of on October

17, 2012. He states, that in the said petition, the NDMC was a party. He

has placed before me a copy of the order, to contend that the NDMC has

stated before this Court that they will hold a public auction within four

months, which they violated. He would also state, that the applicant had

also filed a SLP where the NDMC and the plaintiff were party before the

Supreme Court. According to him, the SLP was withdrawn vide order

dated April 4, 2014. It is the case of the applicant that the plaintiff and

the defendant are hand in glove and the suit is collusive. He states, that

despite opinions of the ASG, no auction has taken place. The learned

counsel for the applicant by conceding that the applicant is not a

necessary party but a proper party, states he, in public interest, intend to

assist the Court with numerous documents. He states, that out of the

various issues framed, he would like to assist the Court on issue Nos.1

and 3. In other words, for effective adjudication, the applicant is seeking

his impleadment. He states, if it had been a private property, his

impleadment was not necessary. The applicant relies upon the judgment

of 2010 (7) SCC 417 Mumbai International Airport Pvt. Ltd vs.

Rejency Convention Centre & Hotels Pvt. Ltd and ors.

5. On the other hand, Mr. Rajiv Nayar, learned Senior Counsel

appearing for the plaintiff would submit that the applicant in the suit is

completely alien to the agreements. He states, he is not even party to

them. He also states, prayer (b) of the suit is a direction against the

NDMC. According to him, against four issues framed, it is conceded by

learned counsel for the applicant, he is concern with issue Nos.1 & 3.

According to him, issue No.1 relates to Contract between the plaintiff

and the NDMC and on issue No.3, the onus is on the defendant. Even if

it is an interpretation of section 141 of the NDMC Act, the applicant is

not a proper party. He has referred to paras N, O of the application to

submit, under Order 1 Rule 8, which relates to suits in representative

capacity, it is persons having same interest, can sue or defend the suit.

According to him, the relief primarily is against NDMC and NDMC is

defending the suit. Moreover, the plaintiff is the dominus litis and it is

for the plaintiff to choose a party against whom relief is to be sought. He

relied upon the judgment of this Court reported as 223 (2015) DLT 449

Mehar Chand Sharma vs. Manjeet Singh Kohli and ors. He states, that

in the writ petition filed by the petitioner, the plaintiff was not impleaded

as a party. It is, in the Supreme Court unilaterally, the applicant

impleaded the plaintiff as a party without seeking any liberty for

impleadment. Merely because a document requires a construction,

everybody cannot be impleaded as a party.

6. Mr. Sanjay Jain, learned ASG, on behalf of defendant, would

submit, for a Court to decide the issue of a party being a proper party, it

is to be seen that presence of such a party is necessary to decide all the

questions involved in the suit. According to him, Order 1 Rule 10 (2)

contemplates proper party to be such, for the Court, to effectually and

completely to adjudicate upon and settle all the questions involved in the

suit. He states, learned counsel for the applicant conceding that he

would like to assist the Court only on issue Nos.1 & 3, itself is sufficient

to dismiss the application. In other words, it is his submission, only such

person can be impleaded as a party, without whom, there would not be a

complete adjudication. He states, unlike a discretion under Article 226,

no such discretion would lie when adjudication is made for impleadment

of a party in a civil suit and for which purpose application need to be

seen. The application does not show the facts, which would enable the

Court to exercise the discretion. He states, merely because a writ

petition was filed by the applicant, would not be a ground seeking

impleadment. He states, that the NDMC is defending the suit and filed a

written statement and seeking early disposal of the suit. The plea that

the suit is collusive is the perception of the applicant. He states, the plea,

that the applicant would rely upon the documents, if permitted to be

impleaded is outside the domain of the suit. It is his submission that no

ground for exercising discretion has been made out. Mr. Jain relies upon

the judgment of the Supreme Court in (2012) 8 SCC 384 Vidur Impex &

Traders Pvt. Ltd vs. Tosh Apartment Pvt. Ltd and ors and connected

appeals.

7. Having heard the learned counsel for the parties, it is not the case

of the applicant that he is a necessary party. The only question which

arises for consideration is whether the applicant is a proper party. In this

regard, it is important to refer to the judgment relied upon by Mr. Ajit

Sharma learned counsel for the applicant of the Supreme Court in the

case of Mumbai International Airport Pvt. Ltd. (supra), wherein, in

para 15, the Supreme Court held that a proper party is a party who

though not a necessary party but whose presence would enable the Court

to completely, effectually and adequately adjudicate all the matters in

dispute in the suit, though he need not be a person in whose favour, of or

against whom the decree is to be made. If a person is not found to be a

proper or necessary party, the Court has no jurisdiction to implead him

against the wishes of the plaintiff. I may note here, the Supreme Court

in the said para has also said that a person is likely to secure a

right/interest in a suit property after the suit is decided against the

plaintiff will not make such a person a necessary party or a proper party

to the suit for specific performance. In para 24.4, the Supreme Court

held that if Court finds that his addition will alter the nature of the suit or

introduce a new cause of action, it may dismiss the application even if

the Court finds him to be a proper party. Finally, in para 25, to which

reference was made by Mr. Sharma, it was held, the Court has discretion

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

party depending upon the facts and circumstances and no person has a

right to insist that he should be impleaded as a party merely because he

is a proper party.

8. That apart, in Vidur Impex & Traders (P) Ltd. (supra), the

Supreme Court after considering its various judgments, has summed up

the principle governing the impleadment as under:-

"41. Though there is apparent conflict in the observations made in some of the aforementioned judgments, the broad principles which should govern disposal of an application for impleadment are:-

41.1 The court can, at any stage of the proceedings, either on an application made by the parties or otherwise, direct impleadment of any person as party, who ought to have been joined as plaintiff or defendant or whose presence before the court is necessary for effective and complete adjudication of the issues involved in the suit.

41.2 A necessary party is the person who ought to be joined as party to the suit and in whose absence an effective decree cannot be passed by the court.

41.3 A proper party is a person whose presence would enable the court; to completely, effectively and properly adjudicate upon all matters and issues, though he may not be a person in favour of or against whom a decree is to be made.

41.4 If a person is not found to be a proper or necessary party, the court does not have the jurisdiction to order his impleadment against the wishes of the plaintiff.

41.5 In a suit for specific performance, the court can order impleadment of a purchaser whose conduct is above board, and who files; application for being joined as party within reasonable time of his acquiring knowledge about the pending litigation."

9. In the light of the above, it is to be seen that whether the applicant

is a proper party and whose presence would enable the Court to

completely, effectually and properly adjudicate upon all matters and

issues though he may not be a person in favour of or against whom a

decree is to be made. In the present case, the issues which have been

framed are as under:-

1. Whether the Plaintiff is entitled to the extension of licence as claimed in the Suit? OPP

2. Whether the Suit is barred by Section 385 of the NDMC Act, 1994? OPD

3. Whether Section 141 of the NDMC Act, 1994 is applicable to the contracts and transactions between the Plaintiff and the Defendant in respect of the extension of the licence deed dated 18.12.1976? OPD

4. Whether the Plaintiff is entitled to relief claimed in the present Suit? OPP

5. Any other Relief.

10. The issues have been framed on the basis of the pleadings of the

parties. In its written statement, the defendant has opposed the suit and

seeks its dismissal. It is the case of the applicant, as argued by Mr.

Sharma, that the applicant would like to assist the Court with regard to

issues Nos.1 and 3. In other words, not on all issues. This itself will not

make the applicant a proper party. The applicant if not a proper party,

the Court has no jurisdiction to implead him.

11. That apart, the plea that he was a petitioner who had filed W.P.

No. 6615/2012 in this Court is concerned, the plaintiff was not a party in

those proceedings. The reliefs sought, as noted above, are at variance

with the issues, which arises for consideration of this Court. In the

proceedings before the Supreme Court filed by the applicant, the same

were withdrawn by him. Mere filing of the petitions would not be a

ground for impleadment in view of the ratio of the judgments of the

Supreme Court.

12. The plea that the applicant apprehends, that in case he is not

impleaded as one of the defendants, entire/true facts of the case will not

likely to be placed before this Court for proper adjudication of the case is

untenable. It is not in dispute, that the defendant has filed a written

statement and got documents exhibited. It is not the case of the applicant

in the application that the same are inadequate or insufficient in response

to the averments in the plaint. It is not the case of the counsel that the

issues have not been properly/appropriately framed. Further, the plea

that no prejudice would be caused to the parties is concerned, suffice to

state, the same is not a ground governing impleadment. Similarly, the

plea of public interest is also untenable. The plea that the applicant

would show various documents while assisting the Court is concerned,

the same must be relatable to the issues framed, which arises for the

consideration of the Court.

13. Further, there is no dispute, that the defendant is a statutory body

governed by Statute. The defendant is represented by Additional

Solicitor General, a Law Officer of the Government of India and as such

the plea of impleadment of the applicant on the ground to enable this

Court to effectually and completely adjudicate upon all questions, is

untenable. I do not find any merit in the application. The same is

dismissed.

(V.KAMESWAR RAO) JUDGE

MARCH 21, 2016 ak