Interim Order 9

Order Details: COPY OF JUDICIAL PROCEEDINGS
Pdf Text: CS (COMM) No. 257/26
SURESH CHAND JAIN Vs. TEJBIR SINGH
11.07.2026
Present: None for the Plaintiff.
Sh. A.P. Sidharth, Counsel for the Defendant.
(through VC)
1. Matter is today fixed for orders on the miscellaneous
applications U/o VIII Rule 1 r/w Section 151 of CPC, U/o VII
Rule 10 r/w Section 151 of CPC, U/o I Rule 10 r/w Section 151
of CPC and U/s 151 of CPC.
I.A. U/o VIII Rule 1 r/w Section 151 of CPC :-
2. By way of present application, the defendant is
seeking condonation of delay of 1 day beyond the prescribed
period of 30 days in filing the written statement on the ground
that the copy of the paper book was not received alongwith the
process and was received only on 08.04.2026 and therefore,
delay occured in filing the W.S. It has been further averred that
the application is bona fide and not to delay the proceedings of
the present suit. It has been further averred that grave prejudice
would be caused if the present application is not allowed and
thus, it is prayed that delay may be condoned and W.S. may
kindly be permitted to be taken on record.
3. In the reply, it is stated that the defendant has been
served on 30.03.2026 and the W.S. has been e-filed on
08.05.2026 and therefore, there is a delay of 8 days in filing the
W.S. and not 1 day as pleaded in the application. It has been
further averred that as per order dated 08.04.2026, the advance
copy of the W.S. was to be supplied before one week failing
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which a costs of Rs.10,000/- was to be deposited with DLSA,
Central but no costs has been deposited, therefore, the present
W.S. should not be taken on record. It has been further submitted
that as per order dated 04.05.2026, the defendant was again
directed to file the W.S. within statutory period of 120 days with
advance copy to the plaintiff at least one week before 22.05.2026
failing which further costs of Rs.10,000/- will be deposited with
DLSA, Central but no costs has been deposited, therefore, W.S.
should not be taken on record. It has been further submitted that
application is not bona fide but malafide in nature and the W.S.
cannot be taken on record without depositing the costs. Thus, it is
prayed that application may kindly be dismissed with costs.
4. I have perused the record.
5. As per record, the defendant has been served on
30.03.2025. The hard copy of W.S. has been filed on 22.05.2026
and has been e-filed on 08.05.2026. The present application has
been filed seeking the condonation of delay of 1 day beyond the
statutory period of 30 days though there is a delay of 8 days in
filing the W.S. Since the W.S. has been filed within statutory
period of 120 days, therefore, in view of the submission and in
the facts and circumstances explained in the application, the
application in hand is allowed in the interest of justice. W.S. filed
on behalf of defendant be taken on record. Application is
disposed off accordingly.
I.A. U/s 151 of CPC:-
6. By way of present application, the defendant seeks
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to initiate appropriate proceedings against the plaintiff under
Sections 228 and 229 of the Bharatiya Nyaya Sanhita, 2023 on
the ground that the invoices and ledger accounts filed by the
plaintiff alongwith the present suit are false, fabricated and
manipulated and the present suit has been instituted on the basis
of false evidence and fabricated documents. It has been further
averred that such conduct on the part of the plaintiff attracts
penal consequences under Sections 228 and 229 of BNS and
hence, the present application.
7. In the reply, it is stated that the documents filed by
the defendant at page no.71 and 72 fully confirmed and support
the case of the plaintiff in which the payment to the plaintiff has
been made w.e.f. June 2022 to December 2022 and the defendant
with malafide intention has not filed one more payment of
Rs.70,000/-. Therefore, question of acknowledgment and
signature does not arise at all. It has been further averred that the
defendant has taken the goods from the shop of the plaintiff at
Bhagirath Palace and the question of e-way bill and delivery
challan does not arise. Moreover, the defendant himself
confirmed that he has made payment w.e.f June 2022 to
December 2022 through cheques. It has been further averred that
the plaintiff has not concealed any material facts, however the
plaintiff has no concern with the payments made by the
defendant to Mr. Aaditya Jain as the plaintiff never instructed the
defendant to make any payment to his son. It has been further
submitted that plaintiff has filed his complete and correct account
statement; no sections 228, 229 of BNS are attracted against the
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plaintiff and the present application is madafide, vexatious and
not tenable U/s 151 of CPC. Thus, it is prayed that application
may kindly be dismissed with costs as the same has been filed for
delay the proceedings of the case.
8. I have perused the record.
9. The arguments regarding the reliance upon false and
frivolous documents cannot be decided at this stage without trial,
therefore, application being premature is disposal off at this stage
with the liberty to the defendant to take appropriate steps after
the conclusion of the trial. Application is disposed off
accordingly.
I.A. U/o I Rule 10 r/w Section 151 of CPC:-
10. By way of present application, the defendant seeks to
implead Sh. Aaditya Jain, son of plaintiff/ Proprietor of M/s
Image The Lighting Solution as a party to the suit inter-alia on
the ground that the alleged transactions forming the subject
matter of the present suit were not confined to the plaintiff and
defendant alone and involved Sh. Aaditya Jain. It has been further
averred that the plaintiff, on multiple occasions, had instructed
the defendant to make payments to the said Sh. Aaditya Jain and
assured that the same would be duly adjusted in the accounts
maintained by the plaintiff. It has been further averred that acting
upon the such instructions, the defendant made several payments
to Sh. Aaditya Jain through various modes and the said Aaditya
Jain issued receipts acknowledging the payments and the said
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payments were towards discharge of liability arising out of the
same set of transactions. It has been further averred that the
plaintiff has deliberately concealed the involvement of Sh.
Aaditya Jain in the present suit and has failed to account for the
payments received through him. It has been further averred that
the accounts between the plaintiff, defendant and Sh. Aaditya Jain
are interlinked and inseparable and the present dispute cannot be
adjudicated effectively in absence of Sh. Aaditya Jain who is a
necessary as well as proper party. Thus, it is prayed that present
application may kindly be allowed and Sh. Aaditya Jain be
impleaded as party to the present suit.
11. In the reply, it is stated that the alleged transaction of
defendant with Mr. Aaditya Jain have no concern with the
plaintiff in any manner except that Mr.Aaditya Jain is son of the
plaintiff and doing his business separately under the name and
title of Image The Lighting Solution, having office at A-66, Jagat
Puri, Delhi-110051. It has been further averred that the
transaction mentioned in the suit is exclusively concerned with
the plaintiff and defendant and there is no involvement of Mr.
Aaditya Jain as per the suit. It has been further averred that the
plaintiff has never instructed defendant to make payment of its
goods to his son, however, what has been paid by the defendant
through cheques have been adjusted in his account and ledger
filed by the plaintiff and defendant in this respect finds no
difference at all. It has been further averred that plaintiff has no
concern with the separate business transactions between the
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defendant and his son and if there is any dispute between the
defendant and Mr. Aaditya Jain, the defendant is free to take any
legal action which has not been taken till date which shows that
there is no dispute between them in their business transactions. It
has been further averred that plaintiff is not aware at all, what
transaction took place between the defendant and Mr. Aaditya
Jain, therefore question of concealing the involvement of Mr.
Aaditya Jain does not arise moreover the defendant neither
replied to the legal notice nor appeared before pre-mediation
litigation which further confirms that the present application has
been filed in order to delay the proceedings of the present case. It
has been denied that the accounts of plaintiff, defendant and Mr.
Aaditya Jain are interlinked and in separatable and it is stated that
there is no involvement of Mr. Aaditya Jain in the present case in
any manner and therefore it is prayed that present application
may be dismissed with costs.
12. I have perused the record.
13. In the present matter, the claim has been made that
the payments of the transactions between the plaintiff and
defendant used to be made through the proposed defendant/son
of the plaintiff Mr. Aaditya Jain and he used to issue the
acknowledging receipts qua the transactions between the parties.
Thus, from the own averment of the defendant, the defendant
used to receive due acknowledgment of payment. There is no
allegation that the said Aaditya Jain never issued the
acknowledgment of payment nor there is any allegation that there
is anything due of the defendant towards any transaction between
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plaintiff and defendant over and above the said acknowledgment
received from Mr. Aaditya Jain. In the said circumstances, it
cannot be said that Mr. Aaditya Jain is the necessary party or
proper party to the present proceedings. It is settled law that it is
for the plaintiff to choose the parties and in absence of
impleading necessary and proper party it is for him to suffer.
14. The relevant provision under Order I Rule 10 of
CPC is reproduced for ready reference as under:-
"10. Suit in name of wrong plaintiff. — (1) Where a suit
has been instituted in the name of the wrong person as
plaintiff or where it is doubtful whether it has been
instituted in the name of the right plaintiff, the Court
may at any stage of the suit, if satisfied that the suit has
been instituted through a bona fide mistake, and that it is
necessary for the determination of the real matter in
dispute so to do, order any other person to be substituted
or added as plaintiff upon such terms as the Court thinks
just.
(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) No person shall be added as a plaintiff suing without
a next friend or as the next friend of a plaintiff under any
disability without his consent.
(4) Where defendant added, plaint to be amended.—
Where a defendant is added, the plaint shall, unless the
Court otherwise directs, be amended in such manner as
may be necessary, and amended copies of the summons
and of the plaint shall be served on the new defendant
and, if the Court thinks fit, on the original defendant
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(5) Subject to the provisions of the 1 [Indian Limitation
Act, 1877 (XV of 1877)], section 22, the proceedings as
against any person added as defendant shall be deemed
to have begun only on the service of the summons."
15. Further, the Hon'ble Supreme Court in case titled as
NAK Engineering Company Pvt. Ltd. vs. Tarun Keshrichand
Shah and Ors. (supra) has held as under :-
33. The fundamental distinction between a "necessary
party" and a "proper party" was succinctly explained in
Ramesh Hirachand Kundanmal v. Municipal
Corporation of Greater Bombay (1992) 2 SCC 524,
wherein this Court held:
“6… A necessary party is one without whom
no order can be made effectively. A proper
party is one in whose absence an effective
order can be made but whose presence is
necessary for a complete and final decision on
the question involved in the proceeding.”
34. In
Kasturi v. Iyyamperumal (2005) 6 SCC 733, this
Court crystallized the twin tests for a necessary party:
“…the question of jurisdiction of the court to
invoke Order 1 Rule 10 CPC to add a party
who is not made a party in the suit by the
plaintiff shall not arise unless a party proposed
to be added has direct and legal interest in the
controversy involved in the suit. … two tests
are to be satisfied for determining the question
as to who is a necessary party. The tests are:
(1) there must be a right to some relief against
such party in respect of the controversies
involved in the proceedings; (2) no effective
decree can be passed in the absence of such
party.”
35. This principle has been consistently reiterated. In
Mumbai International Airport (P) Ltd. v. Regency
Convention Centre & Hotels (P) Ltd. (2010) 7 SCC 417,
this Court reiterated:
“15. A “necessary party” is a person who
ought to have been joined as a party and in
whose absence no effective decree could be
passed at all by the court. If a “necessary
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party” is not impleaded, the suit itself is liable
to be dismissed. A “proper party” is a party
who, though not a necessary party, is a person
whose presence would enable the court to
completely, effectively and adequately
adjudicate upon all matters in dispute in the
suit, though he need not be a person in 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. The fact 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 person a necessary party or a
proper party to the suit for specific
performance.”
36. Thereafter, in
Vidur Impex & Traders (P) Ltd. v.
Tosh Apartments (P) Ltd. (2012) 8 SCC 384, the broad
principles governing impleadment were summarized:
“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.”
37. In the case at hand, the respondent Nos.1 and 2 are
not claiming any relief against the appellant. There is no
iota of material to indicate that the relief, as claimed in
the suit against respondent No.3, if granted, would be
implemented against the appellant. Therefore, the
appellant is not a necessary party to the suit.
38. The appellant cannot also be construed as a proper
party once it has failed to establish that it is a successor
to the respondent No.3. In the absence of any evidence
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to prove that respondent No.3 has ceased to exist or
cannot be represented in the suit on its own to contest it
on merits, we are of the opinion that the appellant is not
even a proper party to provide any assistance to the court
in the suit.
39. This apart, the respondent Nos.1 and 2 who have
instituted the suit are
dominus litis and it is for them to
choose their adversaries. If they do not array the proper
and necessary parties to the suit, they do it at their own
risk. However, they cannot be compelled to add a party
to defend a suit against their wishes. The decree, if any,
passed in the suit would be binding only between the
parties to the suit and would not infringe upon any right
of a third party, much less of the appellant that is not a
party to the suit.
40. This conclusion is reinforced by the fundamental
principle laid down in
Kanaklata Das v. Naba Kumar
Das (2018) 2 SCC 352, wherein this Court has observed:
“11.4. …the plaintiff being a dominus litis
cannot be compelled to make any third person
a party to the suit, be that a plaintiff or the
defendant, against his wish unless such person
is able to prove that he is a necessary party to
the suit and without his presence, the suit
cannot proceed and nor can be decided
effectively. In other words, no person can
compel the plaintiff to allow such person to
become the co-plaintiff or defendant in the
suit. It is more so when such person is unable
to show as to how he is a necessary or proper
party to the suit and how without his presence,
the suit can neither proceed and nor it can be
decided or how his presence is necessary for
the effective decision of the suit.
11.5. … a necessary party is one without
whom, no order can be made effectively, a
proper party is one in whose absence an
effective order can be made but whose
presence is necessary for a complete and final
decision on the question involved in the
proceeding.”
16. In the light of aforesaid provisions of law and case
law, adverting to the facts of the present case, it is the case of the
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defendant/applicant that due acknowledgment was always issued
of receipt of payments made by defendant to the plaintiff through
the proposed defendant and it is further case that all such
documents have been placed on record, therefore, in the facts and
circumstances, as discussed herein-above, this Court is of the
opinion that the proposed defendant is neither the necessary party
nor proper party. The application filed on behalf of the defendant
U/o I Rule 10 CPC lacks merit. Accordingly, same is dismissed
with costs of Rs.10,000/- to be deposited with DLSA, Central
District for delaying the trial. Application is disposed off
accordingly.
I.A. U/o VII Rule 10 r/w Section 151 of CPC:-
17. By way of present application, the defendant seeks
return of the plaint for presentation before the Court of competent
jurisdiction.
18. In sum and substance, the averment made in the
application is that neither the defendant is residing or carrying
out business within territorial jurisdiction of this Court nor any
part of cause of action has arisen within its jurisdiction and hence
the plaint is liable to be returned to the plaintiff. Further, it has
been averred that the plaintiff has alleged that goods were
supplied from his office situated at 1897/27, Hari Ram Market,
Bhagirath Palace, Delhi. However, the defendant has never
visited the alleged office of the plaintiff nor placed any purchase
order at the said location. It has been further averred that plaintiff
has failed to place on record any document whatsoever to
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establish that any goods were delivered within the territorial
jurisdiction of this Court. Thus, no part of cause of action has
arisen within the territorial jurisdiction of this Court and
therefore it is prayed that plaint be returned to the plaintiff to file
before the appropriate Court having territorial jurisdiction.
19. In the reply, the application has been opposed on
behalf of the plaintiff stating that the plaintiff has filed the
invoices and specifically stated in para 11 of the plaint that the
defendant has purchased the goods at the office of the plaintiff
situated at 1897/7, Hari Ram Market, Bhargirath Palace and the
defendant has filed written statement and at page no.71 and 72
the payment made by the defendant through cheque have been
shown which tally in the ledger of the plaintiff. Thus, it has been
prayed that since the part of cause of action has arisen in Delhi,
the application is liable to be dismissed with heavy costs.
20. I have perused the record.
21. In para 11 of the plaint, plaintiff has made following
averments regarding territorial jurisdiction of the Court:-
“That the defendant purchased the goods at the office of
the plaintiff situated at 1897/27, Hari Ram Market,
Bhagirath Palace, Delhi-110006, hence this Hon'ble
Court has got the territorial jurisdiction to try and decide
the present suit.”
22. In the judgment in case titled as
Chandra Kishore
Chaurasia vs. R A Perfumery Works Private Ltd. FAO (COMM)
128/2021, CM Nos.28066/2021, 28067/2021 & 40033/2021
passed on 27.10.2022 by Hon’ble High Court of Delhi, in para 8
it was observed as under:-
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“8. It is trite law that an objection regarding territorial
jurisdiction of a court, raised by way of an application
under Order VII Rule 10 of the CPC, is to be decided on
a demurrer, that is, by accepting all statements made in
the plaint to be true. Thus, the examination for the
purpose of an application under Order VII Rule 10 of the
CPC is limited to the averments made in the plaint and
the documents filed by the plaintiff.”
23. Reference may also be made to judgments in case of
D.Ramachandran v. R.V. Janakiraman : (1999) 3 SCC 267,
Liverpool & London S.P. & I Association Ltd. v. M.V. Sea
Success I & Anr. : (2004) 9 SCC 512, Exphar Sa and Anr. v.
Eupharma Laboratories Ltd. and Anr. : (2004) 3 SCC 688, M/s
RSPL Limited v. Mukesh Sharma & Anr.: (2016) SCC OnLine
Del 4285 and M/s Allied Blenders and Distillers Pvt. Ltd. v. Prag
Distillery Pvt. Ltd. & Anr. : (2017) SCC OnLine Del 7225 to
further conclude in para 20 of the judgment as under:-
“20. At the stage of considering an application under
Order VII Rule 10 of the CPC, the court is not required to
examine the merits of the averments made and to
evaluate whether the plaintiff would be able to prove or
establish the same. As noted above, for the purpose of an
application under Order VII Rule 10 of the CPC, the
averments made in the plaint are required to be
considered as correct.”
24. Based on the above noted judgments as well as
averments made by plaintiff in para 11 of the plaint coupled with
the fact as mentioned in para 3 of the plaint,
prima facie
jurisdiction of this Court to entertain the suit of plaintiff is made
out as it has been clearly averred that defendant approached the
plaintiff at his above said office. Though there is denial on behalf
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of the defendant about the visit of defendant to plaintiff' office at
Delhi, the issue of visit or not visit cannot be decided without a
full-fledged trial which is pure issue of facts. Though counsel for
defendant has contended that plaintiff has not filed any document
to prove that cause of action has arisen at the place of business of
plaintiff, such minute examination on merits of the case is not
called for at this stage. Whether plaintiff is able to prove or
establish its case would be examined at an appropriate stage after
parties have led their respective evidence.
25. Moreover, perusal of the invoices makes it clear that
defendant have also subjected to itself to the Delhi jurisdiction
and this fact itself is sufficient at this stage to conclude that the
contention raised on behalf of the defendant/applicant has no leg
to stand.
26. In view of the foregoing discussion, this Court is of
the opinion that application U/o VII Rule 10 r/w Section 151
CPC filed on behalf of defendant is without merits and has been
filed in order to delay the trial of the present matter. Hence, the
same is dismissed with costs of Rs.10,000/- to be deposited with
DLSA, Central District.
27. Nothing discussed herein-above shall tantamount to
be an expression of opinion on the merits of the case.
28. Be put up for admission/denial of documents,
framing of issues and case management hearing on 28.07.2026.
Parties/AR shall remain present for admission/denial of
documents.
(Devendra Kumar Sharma)
District Judge (Commercial Court-03)
Central/ THC/ Delhi/11.07.2026
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