Delhi High Court
M/S Nissan Motor India Private ... vs M/S Fervent Communications ... on 10 December, 2020
$~2
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 10.12.2020
+ CM(M) 540/2020
M/S NISSAN MOTOR INDIA PRIVATE LIMITED
..... Petitioner
versus
M/S FERVENT COMMUNICATIONS PRIVATE LIMITED
& ANR. ..... Respondents
Advocates who appeared in this case:
For the Petitioner: Mr. Piyush Sharma, Advocate.
For the Respondents: None.
CORAM:-
HON'BLE MR JUSTICE SANJEEV SACHDEVA
JUDGMENT
SANJEEV SACHDEVA, J. (ORAL)
CM APPL.27809/2020 (exemption)
Exemption is allowed subject to all just exceptions.
CM (M) 540/2020 & CM APPL.27808/2020 (stay)
1. The hearing was conducted through video conferencing.
2. Petitioner impugns order dated 21.01.2020, whereby,
application of the petitioner under Order 1 Rule 10 CPC has been
dismissed.
Digitally Signed By:KUNAL
MAGGU
Signing Date:10.12.2020 22:13:42
This file is digitally signed by PS
to HMJ Sanjeev Sachdeva.
3. Respondent No.1 had filed the subject suit for recovery against
petitioner as well as respondent No.2, one of the dealers of the
petitioner.
4. Averment in the plaint is that the respondent No.2 is one of the
authorised dealers of the petitioner and the petitioner had approached
respondent No.1/Plaintiff to organize and conduct events at the
showroom of the respondent No.2.
5. It is contended in the plaint that the event was organized by the
petitioner and petitioner has also acknowledged his liability and has in
fact made the payment of the bill amount to respondent No.2 - its
dealer. However, the dealer has not paid the amount to him.
6. Learned counsel for the petitioner contends that there is no
material to show that the petitioner had ever dealt with the respondent
No.1/plaintiff or there is any privity of contract.
7. He further submits that there is an admission on behalf of the
respondent No.1 that the payment has been made by the petitioner to
respondent No.2 and as such, the petitioner cannot be made liable for
making double payment.
8. Trial Court, by the impugned order, has noticed that there is a
specific averment that the petitioner had approached respondent No.1
to organize the event and payment was made by the petitioner to
respondent No.2.
Digitally Signed By:KUNAL
MAGGU
Signing Date:10.12.2020 22:13:42
This file is digitally signed by PS
to HMJ Sanjeev Sachdeva.
9. Trial Court has held that it is apparent that the petitioner had
availed of the services in the form of the event and consequently both
the respondents are liable for the recovery of the alleged amount, if
proved and as such petitioner is a necessary party.
10. Perusal of the Plaint shows that there is a categorical averment
in the Plaint that petitioner had approached the respondent No.1 -
plaintiff to organize and conduct the events.
11. It is disputed by the learned counsel for the petitioner that the
petitioner had ever approached respondent No.1. It is contended that
there is no material on record to show there was any privity of
contract between the Petitioner and Respondent No. 1.
12. No doubt that there is a dispute as to whether petitioner had
approached respondent No.1 or there is a privity of contract between
the petitioner and respondent No.1 or not. But, that is a matter of trial
and in view of the specific averment in the plaint it cannot be, at this
stage, held that the petitioner is neither necessary nor a proper party.
This of course would be an issue which the Trial Court would
consider at an appropriate stage.
13. Further averment of respondent No.1 that the payment has been
made by the petitioner to respondent No.2 and the respondent No.2
has failed to make the payment to him, raises once again a disputed
question of fact as to whether the petitioner can be made liable to pay
Digitally Signed By:KUNAL
MAGGU
Signing Date:10.12.2020 22:13:42
This file is digitally signed by PS
to HMJ Sanjeev Sachdeva.
the said amount once again. It may, however, be observed that the
respondent No.2 is one of the dealers of the petitioner.
14. In view of the specific averments, which raise disputed
questions of fact, it cannot be said that Petitioner is neither a
necessary nor a proper party. The application under Order 1 Rule 10
CPC seeking deletion of the petitioner at this stage has rightly been
rejected by the Trial Court.
15. I find no infirmity in the impugned order of the Trial Court.
However, the observations in the impugned order that both the
defendants are liable for recovery of the alleged amount, if proved,
would not come in the way of the petitioner's defence that as he has
paid the amount to its dealer respondent No.2, he is not liable to make
double payment. This would be a question which the Trial Court
would consider at an appropriate stage.
16. I find no merit in the Petition. The Petition is, accordingly,
dismissed.
17. Copy of the judgment be uploaded on the High Court website
and be also forwarded to learned counsels through email.
DECEMBER 10, 2020 SANJEEV SACHDEVA, J
st
Digitally Signed By:KUNAL
MAGGU
Signing Date:10.12.2020 22:13:42
This file is digitally signed by PS
to HMJ Sanjeev Sachdeva.
